JONESBORO, ARKANSAS, FEBRUARY 23, 1994, AT 9:30 A.M.
(THE FOLLOWING CONFERENCE TOOK PLACE IN CHAMBERS)
THE COURT: Let the record reflect that this is a hearing in chambers for the purpose of announcing an agreement between the prosecuting attorney and the attorneys for Mr. Misskelley.
MR. DAVIS: There‘s been an agreement reached between the prosecuting attorney and attorneys for Jessie Misskelley that no contact or effort will be (1396) made to contact him by the prosecution without first contacting Mr. Crow.
THE COURT: All right. Anything else?
MR. PRICE: Can you state what the results of Mr. Wells' conversation was with Mr. Misskelley?
THE COURT: It has been reported to the Court by Mr. Stidham and Mr. wells that at this time Mr. Misskelley does not intend to testify.
MR. STIDHAM: Your Honor, I also want to state for the record that our agreement not only goes to prosecutors but to law enforcement personnel as well --
MR. DAVIS: That's right.
MR. STIDHAM: -- that they are not to have any direct contact with him.
(VOIR DIRE PROCEEDINGS CONTINUING AT THIS TIME)
(THE FOLLOWING HEARING WAS HELD OUT OF THE PRESENCE OF THE PROSPECTIVE JURORS IN CHAMBERS)
MR. FOGLEMAN: I want to state an objection on the record to one of Mr. Ford‘s scenarios, in particular where he goes through the scenario about the burden of proof and beyond a reasonable doubt. He made the statement that if -- or something to the effect that if the defense decides that the State has not met its burden of proof, that because of that they (1397) may decide or would decide not to put their client on the stand and wouldn't be any need to do it.
My objection to that scenario is that he in effect is telling the jury that if they don‘t put the defendant on the stand, it is their opinion that the State has not met its burden of proof, and it is not proper for him to state his opinion to the jury. That's what he's doing. He's planting in advance in the jury's mind that if the defendant doesn‘t take the stand, it is their opinion the State has not met its burden of proof. That's not proper.
THE COURT: You could construe it that way the way the questions were asked, but I think he has the right to inquire from the jurors about their attitudes or feelings or what inferences they might draw by the defendant not taking the stand if you choose to do so.
I'm going to allow you -- and I kind of got the same impression Mr. Fogleman did by the way you phrased the question. It suggested to the juror that possibly the State would not make its case by proving it beyond a reasonable doubt and if they didn't, you were not going to put the defendant on and would they hold that against anybody.
I think it is more semantics than anything else. I'm going to allow you to make that inquiry. You (1398) might think about how you're going to readdress that same question which I will allow.
MR. FOGLEMAN: Are you going to allow him to ask it in the same way?
THE COURT: No. I just said that it needs to be addressed in a ditterent fashion than what was done.
MR. FORD: In other words I can't tell the jury that that's an attorney's decision that he makes -- a trial strategy -- whether to put him on -- and that may be a factor that I --
THE COURT: I didn't say that. That's exactly what you can tell her.
MR. FOGLEMAN: But you can't tell them, if you don't put him on, you believe the State hasn't met its burden of proof.
THE COURT: You can tell them it is a trial strategy whether to put the defendant on the stand or not and that is a decision you make based upon your view of the case.
MR. FORD: And whether or not the State has met its burden of proof. That can be my view of the case.
THE COURT: No.
MR. FOGLEMAN: That's stating their personal opinion to a juror.
THE COURT: I will sustain an objection to that. (1399) You can say it‘s a decision you have to make based upon the case and if you decide it's not necessary --
MR. FORD: My question is will they hold it against me for having that opinion.
THE COURT: I'm going to allow you to ask that -- will they hold it against you for deciding as a trial strategy not to put your defendant on the stand.
(VOIR DIRE PROCEEDINGS CONTINUING AT THIS TIME)
(THE FOLLOWING HEARING WAS HELD OUT OF THE PRESENCE OF THE PROSPECTIVE JURORS IN CHAMBERS)
THE COURT: All right. Let the record reflect that there are no jurors present in the room.
MR. WADLEY: Your Honor, we would ask that Mr. Eaton be removed for cause in that he was asked a question -- in his responses he has stated that on one hand he has an opinion of guilt and the other hand he doesn't. On one hand his mind is made up, and on the other hand it is not made up.
THE COURT: I'm not going to excuse him for cause. I thought his responses were appropriate. He seemed to indicate that he can set aside what came from the outside, that he can give the defendant a fair and impartial trial.
Basically, you’re asking sort of trick questions when you ask them, how do you feel about a defendant (1400) right now as you look at him, the fact that he's charged. The common sense approach from most laymen would be, well, somebody must have thought he had done something or he wouldn‘t be here.
MR. WADLEY: Your Honor, for the record, when a prospective juror states on one hand he has formed an opinion as to the guilt of Mr. Baldwin and on the other hand he states that he has no opinion, based on that --
THE COURT: I will let you requestion him. I‘m satisfied with his responses, that he can set aside any outside inferences and give them a fair and impartial trial and that he won't be guided by any outside statement. He was very clear in that. If you want to exercise a strike, that's fine. If you want to question him further, I will allow that.
MR. WADLEY: We would request that.
THE COURT: All right. Bring them hack in.
(VOIR DIRE PROCEEDINGS CONTINUING AT THIS TIME)
(THE FOLLOWING PROCEEDINGS TOOK PLACE OUT OF THE PRESENCE OF THE PROSPECTIVE JURY PANEL)
MR. DAVIDSON: Your Honor, I'd like to make a brief record here. Mr. Baldwin -- his attorneys on the defense -- just struck two of the jurors, Michael Eaton and Ernest Stallings, whom we had wanted to (1401) keep.
For the record, we again ask for a severance even though we've not used all our peremptory challenges. We would again ask for a severance. Our decision was to keep both of those individuals, and they obviously had another decision, and for that reason, we again ask for a severance.
THE COURT: Denied.
(VOIR DIRE PROCEEDINGS CONTINUING AT THIS TIME)
(THE FOLLOWING PROCEEDINGS TOOK PLACE OUT OF THE PRESENCE OF THE PROSPECTIVE JURY PANEL IN CHAMBERS)
MR. FORD: We have previously filed a motion in this case prohibiting the death qualification of the jury. We believe that's unconstitutional. Ms. Cravens was open in her opinions that she could be a fair and impartial juror with respect to the issues of guilt and innocence and the only reason that she has been excused is for her inability to impose the death penalty· And we would state that she should have been a juror, who assuming further questioning, that she was not, that she should not be disqualified for that basis alone.
THE COURT: I‘ve already denied that motion. The Arkansas Supreme Court has ruled upon it numerous times. The United States Supreme Court has ruled upon (1402) it numerous times. I recall an interview of Judge Blackmun this morning, however, that if you get it up there again, you might find a different result.
But I'm relying on Witherspoon, and that is the long tested law in Arkansas and this country.
