JONESBORO, ARKANSAS, FEBRUARY 24, 1994, AT 9:00 A.M.
THE COURT: Let the record reflect that this is a hearing out of the presence of the prospective jurors and in chambers. All right. gentlemen.
MR. DAVIDSON: Judge it has come to our attention that our investigator is under some sort of investigation. We want to know what the investigation is. Any actions of him are impugned to us.
We request that any investigation that is going (1403) on right now, that it cease, that we have information. We understand that there are statements that have been made, and any of those statements will directly invo1ve this case also, and we think we have rights through discovery to also get those statements. Basically we are wanting to know what is going on.
THE COURT: All I know is that your investigator's secretary testified in the other case under circumstances where, at least from the prosecutor‘s standpoint, they felt that a witness had been intimidated by whatever his name is.
MR. PRICE: Ron Lax.
THE COURT: We had a hearing on it. You both were present.
MR. PRICE: I was present. That's correct.
THE COURT: And that was the end of it as far as I'm concerned. In the first place I don't know it any investigation against Mr. Lax would have anything whatsoever to do with this case. He's not a witness that I know of --
MR. PRICE: There are witnesses he has talked to. There are defense witnesses in this case that have been talked to by state police investigators. And we are entitled to copies of his statements. We're (1404) entitled to that as part of discovery.
THE COURT: You are entitled to any witness statements that have been taken by police officers.
MR. PRICE: Has the State authorized an investigation?
THE COURT: I couldn't tell you, I don't know.
MR. PRICE: I'd like you to ask that of Mr. Davis and Mr. Fogleman.
MR. FOGLEMAN: Your Honor, I don't think we have to say that on a pending, it there is a pending criminal investigation. I think if that's being done, they should be allowed to do it unimpeded and they don't have to be disclosed.
THE COURT: I agree with that. I can make this statement: If there is any investigation against Mr. Lax or anyone else, that's not going to be mentioned by anybody in this case.
MHR. PRICE: I'd like to know if Bobby Stabbs from the state police is conducting that investigation.
THE COURT: I couldn't tell you, and I'm not going to require the State to.
MR. PRICE: I would like to ask if Bobby Stabbs has interviewed Narlene Hollingsworth, who is a witness in this case.
THE COURT: I don't know. Has he? If he's (1405) interviewed a witness in this case, if it involves this case --
MR. FOGLEMAN: As far as I know, Investigator Stabbs has not taken any statements from anybody related to any events or occurrences involving things that -- taken statements from witnesses as to what they have seen that might have substantive evidence related to the case.
MR. PRICE: So for the record, Bobby Stabbs is investigating.
MR. FOGLEMAN: I did not say that.
MR. PRICE: Judge, I would like a subpoena forthwith -- subpoena duces tecum -- for Bobby Stabbs to come here and bring all the interviews that he has conducted in this case. I think he has talked with Narlene Hollingsworth. I think he has talked with William Jones. I think he has talked with Buddy Lucas. I think each of them have given him statements concerning statements that they have given initially as part of the investigation in this case, plus statements from Mr. Lax. We are entitled to that.
MR. DAVIDSON: Your Honor, I would like to read from John Wesley Hall's book, Professional Responsibility of the Criminal Lawyer, page 635 -- 634, "Interference with Defense Access to Witnesses. (1406) As a general rule the defense has a right to interview witnesses without interference by law enforcement agencies or the prosecution. Courts have found numerous bases for this right. The due process clause of the Fifth Amendment, the right to effective assistance of counsel under the Sixth Amendment, compulsory process for witnesses under the Sixth Amendment, statutory rights, ethical obligations, the ABA standards, the right to a fair trial and possibly a supervisory power."
We submit that each of those does take a part in this. It is our information that Mr. Stabbs told one of the witnesses that he would rather that they would not talk to us anymore, and that is in direct violation of the Court's order that everybody have access, and it is stifling our investigation.
THE COURT: If Mr. Stabbs made a statement like that, that will be corrected promptly --
MR. FOGLEMAN: Um-hum.
THE COURT: -- because I'm not going to tolerate that.
MR. FOGLEMAN: I agree.
THE COURT: If that's your information, we will find out from Mr. Stabbs. So somebody get him here.
MR. FOGLEMAN: Your Honor, we would also like to (1407) have that go both ways. We have tried to talk to certain potential defense witnesses, and they have refused to talk to us. One said they would not talk to us until they have talked to Mr. Ford.
MR. PRICE: Which witness was that?
MR. DAVIDSON: Who?
MR. FOGLEMAN: Since it was Mr. Ford's witness, I think that is between Mr. Ford and --
MR. FORD: I don't know what you're talk -- I don't know. I know that I haven't instructed anyone not to talk to you. I know if you're getting that response, it is a response that I have received ad nauseam from people identified by the State as potential witnesses.
Whether or not I'm doing anything or you are doing anything, it's not -- they feel a certain -- I think that the witnesses that you have identified feel like they owe some -- like they're doing something improper if they talk to me. I don't know who this witness is. They may feel the same way. Because I have not instructed any witness or even encouraged a witness not to talk to you. I have told them the Court has said they can talk to any witness. If the witness doesn't want to talk, the witness doesn't have to talk. That's been the open ruling in open court. (1408)
THE COURT: As far as I know, that's the law. If they want to talk to you, that's fine. But if any lawyer or agent of a lawyer instructs a witness not to talk to the other side, I want to know about that. If Mr. Stabbs has done that -- he‘s been a police officer for a number of years. I would find that to be very unusual if he did. I'm not saying he didn't because he could have, but if he did, that will be corrected.
Apparently you've made an attempt to talk to the witnesses. Did you talk to them?
MR. DAVIDSON: Our investigator talked to the witness --
THE COURT: I don't care about your investigator.
MR. PRICE: Judge, the investigator is working for us.
MR. DAVIDSON: Judge, he's working for us --
MR. PRICE: -- Any actions of our investigator are impugned to us. Just like if any kind of ethical charge is made against the investigator, it's an ethical charge against Val Price and Scott Davidson, and I resent it.
I would like to know at this time if Brent Davis has authorized an investigation.
THE COURT: If he's authorized an investigation, an investigation is an investigation. It has nothing (1409) to do with this case.
MR. PRICE: If Bobby Stabbs is talking to Narlene Hollingsworth, a witness in the case; Buddy Lucas, a witness in the case; William Jones, a witness in the case, has talked to them about the case, has talked to them about statements. None of that has been disclosed in discovery. We have had an open file discovery policy.
THE COURT: It is a crime, gentlemen, to threaten or browbeat a witness or potential witness in a criminal case.
MR. PRICE: Yes, sir. I'm well aware of that.
THE COURT: If the State feels a crime has been committed, they have a right to investigate it. They don‘t have any obligation to disclose that to you, Val. That's all I'm saying.
MR. PRICE: If Bobby Stabbs has talked to three witnesses that we know of in this case, Judge, we're entitled to those statements prior to the beginning of the trial.
THE COURT: Again, I'm going to enter an order to all of you -- I guess it would be the State -- that if Bobby Stabbs or any other officer of the State has taken a statement from a witness in this case that relates to facts and circumstances of this case, then (1410) that statement -- technically, the law is it will be given to you after the witness testifies. But our rule has been that if they have such a statement, they give them to you now. So if they have them, they're directed to give them to you.
MR. PRICE: Could we have a subpoena issued forthwith for Bobby Stabbs to come to this Court and bring his file with him so that we can see what statement he's taken?
THE COURT: Again, if he is conducting an investigation in an unrelated matter that doesn't involve facts in this case, then no.
MR. DAVIDSON: This is the reason we think it does involve this case is that he's out there talking to these witnesses, suggesting to the witnesses that we have done something wrong, and that puts a chilling effect upon them coming in and actually telling the truth at trial. They are getting the impression that we have done something wrong. We say that we have not. We ask that any investigation cease until this trial is over and ask for a continuance until this is cleared up one way or the other.
MR. FORD: On behalf of Jason Baldwin, your Honor, this is new information we are hearing this morning. If Mr. Stabbs is taking these (1411) investigations, whether it be under a cloak of some illegality on behalf of Mr. Lax or just in an effort to obtain statements from these witnesses, if they are attempting to allege that Mr. Lax has done some improper conduct in intimidating a witness and they are attempting to elicit that information from these witnesses, if those witnesses were to be called -- if they were in fact to be called to the witness stand and give a statement, it is certainly proper cross examination from either side as to who has been intimidating who in an effort to influence the words that are actually spoken at trial.
The State may feel that Mr. Lax is intimidating a witness to get that witness to say something favorable to the defense of Mr. Echols, and Mr. Stabbs may be attempting to influence these witnesses to have that witness say something favorable to the State of Arkansas.
In either fashion we are entitled to those statements. If the State --
THE COURT: How many times have I got to say if Bobby Stabbs took a statement from those people involving this case, you're going to get it. Has he taken any statements that you're aware of in this case that relate to the facts and circumstances of this (1412) case?
MR. FOGLEMAN: Not that I’m aware of.
MR. FORD: Your Honor, I feel -- I feel -- I want those statements produced. As an officer of the court, if I were to view those documents and the Court were to view those documents and determine that they have no relevance in this case, as an officer of this court, I would be obliged to have those things remain confidential and to not utter a word as to their contents to impede an ongoing criminal investigation.
But as an officer of the court, I should have the opportunity to view those things and then hold them confidential because you don't know whether they're relevant or not until they're seen.
THE COURT: I want Mr. Lax and anyone hired by him that is interviewing any witnesses in this case -- I want them here just as quick as you can get them here. I want Bobby Stabbs here.
MR. DAVIDSON? He's in Nashville.
THE COURT: Get him here. I don't care where he is. I want to hear from him. I want to hear from Bobby Stabbs. All this B.S. about who gets to the witness last has got to stop, and I am tired of it.
In the Court's opinion it was highly suspect with regard to the witness in the previous trial that (1413) perhaps his testimony was altered through the efforts of Mr. Lax.
MR. PRICE: Number one, Judge, you did not make that ruling --
THE COURT: -- I didn't make that ruling. I said it was highly suggestible and suspicious, and it didn't come out in that trial. It was kept back in the back room like this is, and like I intend for all of this to be. I don't intend for any of this -- whether your investigator is being investigated, whether the State’s investigators are being investigated, that's just baloney. If there are statements taken, fine. You're going to get them.
MR. FORD: Your Honor, that repugnancy of getting to the witness last in an effort to influence their testimony, does that apply to Mr. Misskelley as well?
THE COURT: I don't understand what you're talking about.
MR. FORD: Well, it seems like he's a ping-pong ball being batted hack and forth in an effort to see who gets to him last in order to determine who is going to influence his testimony.
If it is improper to be doing it with Narlene Hollingsworth and other people that have been mentioned, it is exactly the same thing with Jessie. (1414) IF it's improper for those witnesses, then it's improper for Jessie.
THE COURT: I‘m saying it is improper for you to treat witnesses like a ping-pong ball for either side.
MR. FORD: On behalf of Mr. Baldwin, I want the record to reflect that although we have some interest in what‘s going on, I‘m not aware of any of these allegations. There's no investigator working for us.
THE COURT: All right. Is Mr. Lax subpoenaed as a witness?
MR. PRICE: No, sir.
THE COURT: Are any of his employees?
MR. PRICE: No, sir.
THE COURT: Is Bobby Stabbs subpoenaed as a witness in this case?
MR. PRICE: We had no knowledge of this until last night. The State has never given us anything that Bobby Stabbs has done in connection with this case.
THE COURT: It is apparent to the Court that apparently --
MR. PRICE: -- Apparently he's been investigating witnesses with respect to this case.
MR. DAVIDSON: And following our investigator, I should add. (1415)
MR. PRICE: Judge, our authority -- "The defense has a right to interview witnesses without interference by law enforcement agencies or the prosecution."
THE COURT: All right. You don't even have to read that. I'm well aware or that.
The only way I know to cure this is get all two hundred and fifty of them in there, and I'll tell them that they can talk to whoever they want to. If they don't want to talk, they don't have to talk.
MR. FOGLEMAN: Jimbo says that there was a process server in the process of serving subpoenas that told Jimbo that two of the potential witnesses had indicated that Mr. Lax had done something, and Bobby Stabbs did go out and investigate and take statements. They said they didn't have any complaint with what Mr. Lax had done and so that was the end of it.
MR. PRICE: Judge, I want the complete statement that he took.
THE COURT: Did he take any statements?
MR. FOGLEMAN: (TALKING ON THE TELEPHONE)
THE COURT: Did he type up a contact statement?
MR. PRICE: Judge, one witness has indicated that he signed something. (1416)
MR. FOGLEMAN: They're going to contact Bobby Stabbs to come over here.
MR. FORD: Just based on this information that is unbeknownst to Robin or I and due to the allegations that are flying back and forth between the State and counsel for Mr. Echols, we would ask that this factor be taken into the Court's consideration in redetermining our motion for severance.
THE COURT: Denied.
MR. DAVIDSON: We didn't ask for this on the record yesterday, but we'd like to put this on the record. We felt that -- we are sharing strikes as per order of the Court -- and Mr. Wadley in his questioning of a witness [sic] yesterday, the questioning was we felt was quite harsh and uncalled for.
I believe the paper said something this morning that she was almost brought to tears over it, and that’s another reason, that's a difference in trial strategies, and we think it has a direct effect on Mr. Echols and would also ask for a severance at this time.
THE COURT: Denied. The Court read the newspaper article, too. It was the juror Ms. King that made that statement, and at no time did I ever observe her (1417) even approach the tear stage. She answered the questions calmly and concisely, and I don't put a whole lot of store in what I read in the newspaper about this case, and you shouldn’t either.
MR. FOGLEMAN: Your Honor, I'd also like the record to reflect that none of the three jurors who were in the room during that questioning made it on the -- in the twelve.
THE COURT: Yes. The last three were all struck.
(VOIR DIRE PROCEEDINGS CONTINUING AT THIS TIME)
(THE FOLLOWING PROCEEDINGS WERE HELD OUT OF THE PRESENCE OF THE PROSPECTIVE JURY IN CHAMBERS)
MR. FOGLEMAN: Your Honor, a witness listed on Mr. Baldwin's potential witness list, a Gayle Comer -- an officer tried to go talk to her and she said she wasn't going to talk to the officer unless Paul Ford said it was okay.
So a prosecuting attorney's subpoena was issued for her to talk to a deputy prosecutor, and it is my understanding that Mr. Ford has instructed her not to comply with that subpoena until he got some instructions from the Court.
And we would like some instructions from the Court and if anything I said is wrong, then jump in. But we would like instructions from the Court about (1418) her appearance under this prosecuting attorney's subpoena.
THE COURT: Did you tell the lady not to speak to the officer?
MR. FORD: No, sir, I did not. I remember -- in fact, I received a little couple page contact report that Bryn Ridge had filled out in some last minute discovery, and it indicated that she would not talk to them without my permission.
I contacted her by phone and specifically told her that the Court’s ruling has been if they want to talk to the police, they can. If they don't want to, they don’t have to. That is what I told her, and I state it to you as an officer of the court.
At this point, it is my understanding that there is a prosecutor subpoena issued for her and I'm confused -- I'm not certain as to whether there's been one issued for Otto Bailey, Senior, who is also listed. Is that true or false?
MR. FOGLEMAN: I don‘t know anything about --
MR. FORD: -- I'm asking. I don’t know.
MR. FOGLEMAN: I don't know about a prosecuting attorney's subpoena. It may be. I don't know anything about it.
MR. FORD: Do you, Brent? Do you know anything (1419) about that?
MR. DAVIS: No.
MR. DAVIDSON: Is there anybody else other than you two?
MR. FORD: Who might issue it so we can ask them --
MR. FOGLEMAN: I'm sure that if there had been one issued, either Brent or I would know about it. Of course, there are other deputy prosecutors. There's Jimbo Hale and Fred Thorne, but the only one I asked them to issue one for was Gayle Comer.
MR. WADLEY: Judge, we're back in the same situation we were when we were over in the Federal Building on that Wednesday and the issue of a prosecutor's subpoena came up that day.
I can't recall what the Court -- the Court knows what it said that day. My question today is, what is the purpose of the subpoena? What is the purpose of their subpoena?
MR. FOGLEMAN: Well, your Honor, this Cook versus State says that the proper purpose of a subpoena is to interrogate a witness in a case under investigation as well as to review their testimony before trial. And we want to know what the person has to say.
MR. WADLEY: Judge, that is not -- for them to (1420) use the power of a prosecuting attorney’s office to find out what a witness is going to say in a case -- that is an abuse of that privilege -- of a prosecutor‘s subpoena simply to bring someone in their office and say, what are you going to say. That is not proper.
MR. FOGLEMAN: Maybe I should rephrase it, your Honor. We want to know what relevant information she has in her mind.
MR. FORD: Have you ever had the police department in the investigation of this case make contact with this lady before?
MR. FOGLEMAN: Yes. You just told me about it.
MR. FORD: Did you make contact with her before?
MR. FOGLEMAN: I said yes.
MR. FORD: And y'all had an opportunity to interview her --
MR. FOGLEMAN: And she declined to give a statement to the police because she wanted to talk to Paul Ford.
MR. FORD: Is it your statement as an officer of the court that no police officer ever contacted her before she was listed on my witness list?
MR. FOGLEMAN: I can’t -- the police talked to hundreds of people, and I can't say whether they did (1421) or not. There was some mention last time when she refused to give a statement, something about this Otto Bailey you mentioned before, and I remember some sort of notes, not a statement but notes, from an officer relating to an Otto Bailey saying that a female told somebody that they had overheard something about Otto Bailey. Now, whether it was this female or some other, I don't have any idea.
THE COURT: Do you have a statement you have taken from her or your investigators have taken on your behalf?
MR. FORD: No, sir.
MR. WADLEY: We don't have an investigator, Judge.
MR. DAVIS: Judge, one thing --
MR. FORD: -- I have no written statement to give to them.
THE COURT: From any witness.
MR. FORD: (SHAKES HEAD)
MR. DAVIS: One thing is different here -- and I think it's obvious to the Court why at this stage of the game we're issuing prosecutor's subpoenas -- is because people who we have taken statements from in the past have dramatically changed their statement right up to within days prior to the trial. (1422)
And in preparing tor trial we need to know what that statement is or what the facts are based on what their testimony will be as close as possible to trial because there have been such a large number of witnesses that after being contacted by defense investigators have come up with remarkably different stories.
After we had the hearing in the federal courtroom, I contacted the Prosecutor Coordinator's Office and also the Attorney General's Office to ask them to assist in searching for any new case law regarding prosecutor’s subpoenas. They have been unable to find anything under Arkansas law in the way of new cases up to the last two to three weeks.
And referred me to -- the case closest on point being Todd versus State, 678 Southwest 2d 345, which basically holds that -— refers to the fact that the prosecutor's subpoena has two purposes, to serve both as an investigative tool and in preparation for trial. It also indicates and states in this case that even after charges are filed, that it's still appropriate for the prosecutor's subpoena to be used not only as an investigative tool but in preparation for trial.
THE COURT: The State has the burden of proof. The State has been given peculiar and special tools to (1423) obtain evidence, one of which is the prosecuting attorney's subpoena to empower them to bring in persons that are reluctant or unwilling to discuss facts that they may have relative to a crime. They are permitted to do that.
On the other hand, you cannot use the prosecuting attorney's subpoena power to harass or intimidate or in any way affect a defendant's witness merely because they are defendant's witnesses.
There is a specific case -- I can't remember the style -- where our Supreme Court ruled that the prosecuting attorney wrongfully used the prosecuting attorney's subpoena power by calling in every person named as a witness for the defendant and grilling those persons over what their testimony would be.
MR. PRICE: Was that Jim Stallcup, your Honor?
THE COURT: I think it was but I don't remember the style of the case. I distinctly remember the ruling.
You cannot use the prosecuting attorney's subpoena power to harass or intimidate or affect the testimony of the defense witnesses en masse.
In this particular situation I have seen nothing whatsoever to indicate or suggest that the prosecuting attorney is improperly employing the subpoena power, (1424) and I am going to allow you on the two instances that I'm aware of out of some two hundred and fifty persons to call them in and question them.
MR. WADLEY: It is more than two out of two hundred and fifty.
THE COURT: Well, how many?
MR.WADLEY: I don’t know, Judge. I'll have to sit down and add it up. But let me say this, your Honor, I just want to make sure I understand the Court‘s ruling. The Court's ruling is that the prosecutors in this case can subpoena a defense witness in for questioning simply because -- and no statement has been taken -- and they just want to find out what they are going to say. I submit, your Honor, that that is not proper, and that is error that you allow that to happen.
THE COURT: That's not my ruling. I just explained my ruling, and I have cited an unnamed case --
MR. FOGLEMAN: Cook versus State where they brought all the witnesses in and had them all in one room.
MR. DAVIS: 274 Arkansas 244, 623 Southwest 2d 820.
MR. WADLEY: Judge, the prosecutors say, we want (1425) to bring them in for questioning. We just want to bring them in and talk to them to see what they're going to say. That's not a reason. That's not proper to bring them in for that reason.
MR. FORD: Your Honor, we have listed as potential witnesses -- one of our responses was, any person listed on the State's list is a potential witness. Then we list some individual names and these individual names, many of them have already been the subject of a prosecutor‘s subpoena or police interrogation and since there are a couple that they don't have and maybe someone’s done homework that the others did not, then they say, now we've got to go out and find out what we didn't find out before by virtue of a prosecutor's subpoena and if they don’t want to talk to me, I'll make them talk to me when you won't give us the same opportunity because we have requested the opportunity to take depositions in this ease under oath the way they are going to he allowed to do it under oath pursuant to a prosecutor‘s subpoena.
Now although there is a -- someone does have a burden of proof, we are -- it is a violation of the equal protection clause if one side has a right that you won't give to the other.
MR. FOGLEMAN: I would simply point out, your (1426) Honor, that the defense already gets all of the witness statements the State has. They've already got something. We cannot get a statement.
MR. WADLEY: The test though is, is what is the purpose of the subpoena. They have stated today here the only purpose of that subpoena is just so they can talk to a defense witness. That is not the purpose and that is not the proper issuance of the prosecutor's subpoena.
MR. FORD: Also, your Honor, they could very well have chosen not to give us all of these statements and have a specific reply discovery pursuant to the rules, but they chose to do it through the open file policy. They cannot make their election and then use it to cut off a right --
THE COURT: I don't think they have tried to do that. I think they have given you all the statements --
MR. FORD: -- they have --
THE COURT: -- And the rule requires only after the witness has testified. And I believe you have already acknowledged that they have given you full disclosure.
MR. FORD: They have, your Honor, to my knowledge. (1427)
THE COURT: There isn't any point in cluttering up the record about something that is not even in issue. As far as I’m concerned, I see no abuse of the prosecuting attorney's power. There's a statutory authority granted. The State has the burden of proving the case. They have the right to prepare and investigate. If they want to call a witness in to take a formal statement from them, they can do so.
In this particular case -- the Cook case -- and the cite has already been given. The prosecuting attorney -- and it was Mr. Stallcup, who most of you know next door to us in the adjoining county, called in the State's witnesses into the courtroom and put them on the witness stand and gave them an oath and did some other things.
To begin with, the witnesses don't belong to anybody. They are people that by course of fate or circumstances happen to know some information that may require their presence in court. They don't belong you to you and they don't belong to the State. A witness is a witness.
If the State needs to exercise its subpoena power to obtain a formal statement, I'm going to allow them to do so under the circumstances outlined here, and they'll be required to give you a copy of that (1428) statement.
MR. FOGLEMAN: Your Honor, will you direct either Mr. Ford or Mr. Wadley to call Ms. Comer and tell her what the Court's order is since they have instructed her not to honor the prosecuting attorney's subpoena?
THE COURT: If she doesn't honor the prosecuting attorney's subpoena, she's going to be in bad trouble with the Court. So you can take whatever action you feel is appropriate.
MR. WADLEY: That's fine. I just want to make sure I understand. You're saying today that the State of Arkansas for any reason can talk to a witness. They can use the prosecuting attorney’s --
THE COURT: No. I didn't say that. I didn't say for any reason. I said in order to investigate and gather information they have a right to do that. The mere fact that she's been designated as a defense witness doesn't necessarily give them the right to, but if they feel the need to investigate the case, I'm going to let them do it.
Like I said, wholesale summonsing in of 250 people and putting them under oath, that would be a violation and a breach of their right --
MR. FORD: If they've already talked to 227 of them and they want to send out for the remaining, (1429) that's basically what you have got.