JONESBORO, ARKANSAS, FEBRUARY 25, 1994, AT 9:30 A.M.
THE COURT: All right, Mr. Hale. Gentlemen, you have all been advised of Mr. Hale's motion before the Court and the Court was of the opinion that he had no standing but apparently from the cases he cited he does have standing to raise the issue that he's raising, and the Court was also of the opinion that it was within the sole discretion of the Court as to the conduct of the voir dire, and I was under the opinion that the voir dire was not a part of the trial itself as far as the public portion of it.
So Mr. Hale, do you want to -- oh, I need to tell you that I'm not going to allow an official transcript of other than my court reporter.
MR. HALE: I understand.
THE COURT: You can do whatever you want, but it's not going to be signed by the Court and as far as I'm concerned, it's not an official transcript. But you may proceed. State your appearance and --
MR. HALE: Your Honor, Stephen Hale representing (1431) the Commercial Appeal, which is a newspaper of general circulation out of Memphis, Tennessee, which also covers all counties in eastern Arkansas.
It is our understanding on Tuesday of this week when voir dire was commenced, Bartholomew Sullivan, a reporter with the Memphis Publishing Company, Commercial Appeal, as well as a reporter for the Arkansas Democrat Gazette requested that the voir dire proceedings be open and held in public.
The Court understanding at that time it to be in his discretion, chose to have voir dire proceedings including up to conclusion yesterday, where nine jurors had been selected, in closed proceedings outside of the general public and without the press allowed in.
Your Honor, we are requesting that pursuant to Arkansas Statute Sixteen Ten Dash One Oh Five, pursuant to the United States Constitution, First Amendment through the Fourteenth Amendment and the Arkansas Constitution and the cases interpreting the same, that the remaining voir dire proceedings in these cases be open to the public.
Your Honor, the Arkansas Supreme Court in Commercial Printing Company versus Lee, a copy of which has been supplied to your Honor and to all (1432) counsel, has held that as your Honor has stated, there is standing on behalf of the press to bring such an open request and further held that simply put, voir dire is part of the trial proceeding and must he held in the open.
Your Honor, that case was a case wherein the defendant had objected to voir dire being held in open court. The Court held that there's not only a right to a public trial, there is no concomitant right to a private trial by the defendant, ordered that under those circumstances a writ of mandamus if brought timely would have been the proper remedy.
Later, your Honor, in 1984 the Arkansas Supreme Court in the case of Taylor versus State, again affirming Commercial Printing Company versus Lee has held that under Arkansas law, applying the statute previously cited, that again voir dire must be held in public. In that case it was over defense objection. The Court held that that was automatic grounds for reversal at the prosecutor's discretion.
Finally, your Honor, the trinity under Arkansas law is finished with Shearis versus Britt which case was s pretrial proceeding, with the Court there applying --
THE COURT: -- Was that the Hot Springs case? (1433)
MR. HALE: Yes, sir, your Honor. Although it dealt with a pretrial proceeding that the proper remedy even in weighing the Sixth Amendment rights that were involved was for an open and public hearing.
Your Honor, that is not only the law of Arkansas but that is the law of the land. I would cite to your Honor the case of Press Enterprise Company versus Superior Court of California, 464 United States Supreme Court 501, a 1984 case, holding that the First Amendment right to access that is granted for right to open and public trials applies to voir dire.
Your Honor, we'd ask that the remaining voir dire be open to the general public and viewing on behalf of the Commercial Appeal and the public at large.
Thank you.
THE COURT: Why are you just now raising the issue? Why did you wait until we are almost concluded with the jury? Is there any particular reason for that?
MR. HALE: Your Honor, the extent of voir dire that had gone on -- there was some question about beginning on Tuesday, as I understood it from our reporters, and as far as the general editors, the editorship of the Commercial Appeal understood was that Tuesday were some closed hearings dealing with (1434) prosecutorial misconduct or discretion, or Wednesday, excuse me. And it was just brought to our attention mid-yesterday that voir dire had gone on as long as it had. It was brought to counsel's attention at which time we were asked to look into it.
THE COURT: Gentlemen, any comments?
MR. DAVIS: Your Honor, it is the State's position that the voir dire continue as it has up to this point. Recognizing that there may be some public right to coverage, I still think it is within the Court's discretion where we have had a change of venue.
It is a highly publicized case and the nature of the case -- in the Court's discretion we think it would be in the best interest of all parties if the voir dire was conducted in chambers without public access for that reason.
MR. DAVIDSON: On behalf of Mr. Echols, we would concur with that position, your Honor.
MR. FORD: Your Honor, it is the position of counsel for Mr. Baldwin that the potential jurors are not the people on trial. That what we are interested in in obtaining private voir dire is a fair and impartial jury.
We have had one juror yesterday express her (1435) relief that it was conducted in a such a private informal manner and that that made her feel at ease. She said she was much happier to do it there than out here in front of everybody. We feel we are more likely to get a fair jury, which is what we're after, in private.
THE COURT: We also had a couple of jurors express concern about anonymity and requesting that they remain anonymous and that their identity not be revealed in the media.
MR. FORD: I think the Court may be concerned by the question that it asked Mr. Hale that they may have waived their right.
Clearly, they indicate that they were not made aware of it until midday yesterday. I would state to the Court that Mr. Sullivan, their reporter, has been here from the beginning to the end. The press has run stories indicating that one juror was selected. They know the process that has been going on and continued to allow it to occur the way it did. We just feel that this is not a trial of these jurors and their answers are private.
MR, DAVIDSON: Your Honor --
THE COURT: -- I know the two-prong test if that's what you're going to point out. (1436)
MR. DAVIDSON: -- of irreparable harm. And we would put on evidence if you desire --
THE COURT: -- I don't think I need any additional evidence. Mr. Hale, any additional statements?
MR. HALE: Your Honor, two matters. Number one, with respect to the waiver argument put forward by Mr. Ford, I would refer the Court to Commercial Printing Company versus Lee where it was post trial --
THE COURT: -- I read it and it hasn't been waived. In fact that case ruled that even after the jury had been selected, it was still the subject matter of mandamus and a potential reversal so it is not an issue of waiver.
MR. HALE: Lastly, your Honor, I would also refer to you in that case the fact that the Court determined that the openness of the voir dire proceeding is a nondiscretionary function with the Court.
THE COURT: Yes. I'm familiar with the Britt case previously from a case in Greene County. It seemed to me that the Court, however, did retain some discretion and I am reminded in that regard of the two-prong test that I think came from the Tedder case, also a case that you cited.
It is somewhat amazing to the Court at this time (1437) -- I have never in twenty years been involved in a case where there's been more open access to the media than this case. The lawyers, the Court, have bent over backwards. We've even got a media room established in the hallway over here for access to the press. We have done everything possible to ensure that the public sees every aspect of this trial. It is just amazing.
I for one judge out of about the seventy judges in this state am probably the most liberal in allowing access to the press, and I'm being challenged on this issue. I'm frankly amazed by it.
It would be my finding based upon the test laid down in Tedder, a two-prong test, that irreparable damage will occur to the defendants' right to a fair trial. There is absolutely no question that if I allowed the sixty odd representatives of the media to crowd into a small room in the back to hear voir dire questions, extensive voir dire questions -- the space alone, the carnival atmosphere would just be enhanced.
Further, the sensitive nature of the questions that are being asked of prospective jurors simply should not be printed or publicized to the public at large. It is difficult at best, it is almost impossible, to find twelve people that can honestly (1438) set aside what they might have read, heard or seen about this case in the press.
The right of a fair trial, as far as this Court's concerned, supersedes by far the right of the press to access and I think counsel will join with the Court. This is not a one-sided deal. I would have preferred to conduct the voir dire as we normally do in the presence of everyone here. It would have been a lot simpler for me. We wouldn't have had to set up two pieces of equipment. We wouldn't have had to move beck and forth. We wouldn't have to take near as much time.
But the defendants in my estimation would receive irreparable harm from an open voir dire where every member of the potential jury panel would repeatedly hear questions that may reenforce biases or prejudices, that may reenforce preconceived ideas and notions, and it is absurd.
In my estimation there are no adequate alternatives for closure of the voir dire at this time.
Gentlemen, if you care to add anything to it that you see facilitates the voir dire in this fashion, I would be glad to hear your comments.
I'm also going to add that the method and manner (1439) that we have selected to conduct a very sensitive voir dire in the case of the highest magnitude -- I have never encountered one like this. In fact I have never encountered the multitudes of motions and side issues in any case I have ever handled.
We have elected to conduct the voir dire in this fashion to relieve the prospective jurors of that normal anxiety that all of them have in an ordinary, simple case.
With this case, the remedies sought by the State, the penalties that are being sought, to ask lay people to come in from their work, their home, their normal pursuits and to be bombarded by very sensitive questions to where they have to verbalize their innermost feelings in front of two hundred people, the eyes of the cameras, the eyes of the world, to me that is simply unreasonable to even expect people to have to respond under those circumstances.
And I am very strongly finding that the Tedder test is easily met by the circumstances of this case. That's my ruling.
Steve, it's nothing against you. You're just doing your job. You've been a friend for a long time.
You've also asked me for a three o'clock hearing, and I had anticipated that we might have the jury (1440) picked by that time. I think I can dispose of that issue at this time. Then you can take whatever appellate action you choose on it.
I'm going to rule that your FOI request -- the motion which I have read and your brief -- will he denied by this Court for these reasons.
There was already a hearing conducted by Municipal Judge Rainey and then subsequently by Juvenile Circuit Judge Ralph Wilson, and I believe the date was February 14th -- you will have the date -- whatever the date was.
A hearing was conducted on that issue and Judge Wilson's ruling was. to paraphrase it, was that no aspect of the West Memphis Police Department files on Jessie Misskelley, Baldwin or Echols, would he released until the conclusion of all the trials inasmuch as they were co-defendants and the trials were -- or the files were -- were not individual.
As I understand, Mr. Fogleman, you have a single file on this case which involves three defendants. Is that correct?
MR. FOGLEMAN: That's correct, your Honor.
MR. HALE: Your Honor, if I can be heard on that point?
THE COURT: Yes, sir. Sure. (1441)
MR. HALE: There's two points. First of all, to the extent that the Court made such a ruling, it was by far the broadest and grossest of dicta that could possibly have been stated by Judge Wilson. There was a very bullet and specific request. Judge Rainey in West Memphis had chosen to seal the affidavits of the search warrant --
MR. FORD: Your Honor, may I interpose an objection at this point? This is a proceeding in the matter of the State versus Jessie Misskelley. That is a separate ball game from what is going on here. I have potential jurors out here for this case which is a totally separate ball game from the Misskelley case. And this is an improper forum to be conducting a hearing on a separate defendant.
THE COURT: All right. I can take care of that. I'm not sure you have standing on this issue. I was just trying to save you time and the Court time.
I'm going to deny the motion as previously ruled upon by Judge Wilson.
MR. HALE: That's the basis of your ruling?
THE COURT: That's my ruling.
MR. MALE: Thank you, your Honor.
(VOIR DIRE PROCEEDINGS CONTINUING AT THIS TIME)
(THE FOLLOWING CONFERENCE HAS HELD IN CHAMBERS (1442) OUT OF THE PRESENCE OF THE PROSPECTIVE JURY PANEL)
THE COURT: All right, gentlemen. Mr. Stabbs is here in reference to the conference we had yesterday.
BOBBY STABBS
having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:
EXAMINATION
BY MR. DAVIDSON:
Q. Mr. Stabbs, it came to our attention yesterday that you had been talking with some witnesses. We would like to find out what the nature of your investigation was --
MR. FOGLEMAN: -- Your Honor, I don't want to set any kind of precedent about where somebody is called in who is conducting a criminal investigation and be able to be questioned about the nature of what their investigation is and all that. I don't want to set a precedent -- I don't mind him asking these questions in this particular case, but I don't think it is appropriate to --
THE COURT: You're not setting any kind of precedent as far as I'm concerned. An investigation is not a subject of inquiry by anybody. You can ask him who he talked to in this case.
BY MR. DAVIDSON:
Q. Who did you talk with that is listed as a witness in this (1443) case?
A. I got a call day before yesterday from Jimbo Hale, said he had already talked to my sergeant. Said David Howard, who is a deputy sheriff over there who's been to the academy, and he is serving your subpoenas, I presume, for your people that you're calling in, had been serving some subpoenas. He went to a Mary Hutson, H-U-T-S-O-N, and a Buddy Lucas' residence.
They made a comment to him that they were tired of being threatened about court or whatever but -- by the police or something -- but I understand it was an old case because I went and talked to them, and Mrs. Hutson and Buddy Lucas both said they were never threatened by anybody from y'all's office or anything. Their complaint was an old complaint that happened when this incident first began, dealing with the West Memphis police officers.
Q. So the complaint was not against Ron Lax or The Inquisitor or --
A. No, sir. I have a statement here from them that says they were never mistreated by Mr. Ron Lax, that he was very pleasant. And he was very nice to them.
Q. The complaint was actually against someone in the West Memphis Police Department?
A. Yes, sir. This was an old complaint. But you had a new and different deputy going there, and this was the first time he probably ever heard this so he felt that he was compelled to (1444) tell the prosecuting attorney that one of these witnesses said they don't want to go because they are tired of being threatened and all this kind of stuff. It was nothing about being threatened about their testimony.
Q. Did you talk with anybody else?
A. Yes, sir. Back -- I done a memo to Mr. Davis back February the 15th, and I talked to a Narlene Hollingsworth and her daughter, whose name is Tabitha Hollingsworth -- and I talked to them and they really didn't have anything.
They said a gentleman come over there and talked to them, but he just asked them questions, are you sure this is what you saw, and they said, yes, that's what it is. Their complaint is for the fact that they are tired of having to come over here.
They don't know Mr. Echols, who they were subpoenaed for. Also -- no, I take that back. That was not Hollingsworth. That was Miss Hutson and them that don't know Echols. They didn't know why they were subpoenaed. But they were just complaining to the fact that, they've already got our testimony on the first case. Why do we have to keep coming back and forth. They can't afford it. They have to work. That was more or less their complaint.
But they also swore and stated in here -- and it is in my memorandum to Mr. Davis -- that they were never threatened about their testimony and no one has been mistreating them.
Q. So there's nothing that Ron Lax or anybody from his office (1445) did that was uncalled for or out of the way?
A. Not with the four people I talked to. I don't know anything about anything else.
Q. Could we get a copy of the statements from these people?
A. Yes, sir, they are going to be typed up and sent to Mr. Davis and under the Freedom of Information Act I guess you can get anything you want. I'll get it dictated, and it will be sent to him and also a copy to my lieutenant so whatever you have to do to get it, you can get a copy of it, yes, sir, in my opinion.
EXAMINATION
BY MR. FOGLEMAN:
Q. Did Miss Hollingsworth indicate there had been some threats by some unknown parties?
A. The threats she was talking about is her kids going to school. She says she's tired of her kids going to school and they -- and I asked her who they was and she never could give me who they were -- talking about their kids, that somebody is going to get hurt and somebody is going to die over this for their children testifying in court.
But nobody ever give me any names or anything. That's just, I guess what you say, kids would say in school, like you shouldn't be going and saying anything to the police or anybody else. I mean, that's a problem we have now.
THE COURT: Did any of those people indicate that (1446) anyone else that had interviewed them had represented themselves to be FBI agents, police officers or anyone in authority other than in an investigative capacity for a lawyer?
THE WITNESS: Yes, sir. Ms. Hollingsworth stated that the guy that came there -- he said he was FBI. Then he said he was an attorney for Damien and then he said he was an investigator. This is what Ms. Hollingsworth's saying. She wasn't real clear on all that stuff, and I didn't add that into my memo because I didn't think it was really that appropriate.
MR. FOGLEMAN:
Q. It is in your notes?
A. Yes, it is. I didn't want to make a mountain out of a molehill, is what I'm trying to get at, I guess.
EXAMINATION
BY MR. DAVIDSON:
Q. In your opinion as an investigator did you think there's anything to this?
MR. FOGLEMAN: I object to that.
THE COURT: I'm going to sustain the objection to what he thinks. He compiles the information. It is for someone else to determine what's there.
BY MR. DAVIDSON:
Q. But the initial complaint was actually against Mr. Durham (1447) and someone assumed it was against Mr. Lax, is that right?
A. Yes. That's what I'm saying. I don't know. But that was the initial complaint.
Q. Mr. Durham is one of the investigators for the West Memphis police Department?
A. Yes, sir.
MR. FOGLEMAN: I would like the record to reflect that this witness that has complained is also one of these witnesses who gave the police a statement incriminating not even one of these defendants -- I believe it was Jessie Misskelley, Junior -- and who changed his statement after being contacted by Mr. Lax, the investigator for Damien, and recanted his former statement.
MR. DAVIDSON: Which one are you saying now?
MR. FOGLEMAN: Which one what?
MR. DAVIDSON: Repeat that again.
MR. FOGLEMAN: I don't know that I can repeat what I said. I don't remember exactly what I said.
MR. PRICE: Could the court reporter read it back?
THE REPORTER: (READING) I would like the record to reflect that this witness that has complained is also one of these witnesses who gave the police a statement incriminating not even one of these (1448) defendants --I believe it was Jessie Misskelley, Junior -- and who changed his statement after being contacted by Mr. Lax, the investigator for Damien, and recanted his former statement.
MR. PRICE: Which witness are we referring to?
MR. FOGLEMAN: Buddy Lucas.
MR. DAVIDSON: I would like to ask one further question.
EXAMINATION
BY MR. DAVIDSON:
Q. Officer, did you ask Ms. Hollingsworth not to talk to anybody else about this matter?
A. No, I did not.
Q. Did you say you would rather that she didn't?
A. No, I did not. The only person I told -- or mentioned he didn't have to talk to anybody -- is when I was talking to Buddy Lucas because he went on about this deal when they first got it, and I told Buddy Lucas, I said, Buddy, you don't even have to talk to me about coming here to interview you if you don't want to. You don't have to talk to the police unless you're under arrest. You just have to give your name and whatever like that. I said if you don't want to talk to somebody, you don't have to. That is your right not to talk to somebody.
And that's the only time -- like I told him, I said, you don't have to talk to me right now if you don't want to. But (1449) I've never told him or anybody else they didn't have to talk or they should not talk to anybody else.
I did tell Ms. Hollingsworth the next time somebody comes and identifies himself as a police officer -- I have a badge an I showed her my badge and I showed them my I.D. -- I said at least get some identification of who you're talking to and that is the only thing I said anything like that.
(WITNESS EXCUSED)
THE COURT: I'd like to hear from Mr. Lax. If he's representing himself to be an FBI agent or representing himself to be a police officer, than I certainly want to know about that. Certainly he can identify himself in the proper capacity.
And I think that is totally inappropriate when you're interviewing a witness, if he has identified himself as an FBI agent. I understand that that tactic might be employed by private investigators to seek evidence in some fashion but when you have identified a person as a witness and you call yourself an FBI agent, I find that to be improper, if he did it. I don't know whether he did it or not, but I sure want to ask him about that.
MR. DAVIDSON: I think that is entirely appropriate. We will have him here on Monday.
MR. FORD: One thing I want to make a record on, (1450) and we can make an argument about it later when we have a chance to fully develop it and not waste any more time here this morning.
There were some statements that were made by Mr. Wells to the media that I viewed on television last night that I cannot accurately set out, but the general content of his statements were alarming to me by virtue of him being in a peculiar capacity of not representing one of the parties and really in my opinion standing as a liaison of the Court and that some of his comments I felt were inappropriate.
THE COURT: You'll have to be specific. I read the Jonesboro Sun, and I didn‘t find any problem with what he was quoted as saying in there. He said he had been asked by the Court to be an impartial intermediary and to listen to what Mr. Misskelley's views were as to his thoughts about his rights.
MR. FORD: On a Channel Eight news report last night he said that Jessie had not made up his mind. He was going back and forth whether he would testify, whether he would not testify. He was talking to his daddy. But he also said that he has decided if he will testify, he will testify to the truth.
And I feel like that statement coming from that impartial capacity means that it's almost the Court (1451) indicating that if he testifies, he will be testifying to the truth, and that I feel is inappropriate.
THE COURT: All right. You've made your record.
MR. FORD: Thank you, your Honor.
THE COURT: I guess we've already got a record on it, but I understood the prosecution and the defense concurred with the Court's statements and findings with regard to access to this portion of the voir dire.
MR. PRICE: Yes, sir. That's correct.
MR. FOGLEMAN: Yes, sir.
MR. FORD: Yes, sir.
(VOIR DIRE PROCEEDINGS CONTINUING)
REPORTER‘S NOTE: PROSPECTIRE JUROR JOHN BOND EXCUSED BY THE COURT.
(THE FOLLOWING PROCEEDINGS WERE HELD OUT OF THE PRESENCE OF THE PROSPECTIVE JURY PANEL IN CHAMBERS)
THE COURT: All right. You wanted to make a record?
MR. FOGLEMAN: My objection to Mr. Ford's questioning is because it suggests to prospective jurors that -- well, number one, asking if they simply have an opinion, having an opinion is not the test.
The proper test is whether the person has such a fixed opinion that they cannot set aside that opinion. (1452) The gentleman who was just excused said, yes, honestly, I had formed an opinion on what I had read but, yes, I will set that aside.
And that is the test, is whether or not they can set aside any opinion they may have formed because anybody who reads the paper would have an opinion based on what they have read in the paper.
MR. WADLEY: He said that, your Honor, but he also said he would require the defendant to prove his innocence. It goes beyond that, Judge. That is proper inquiry.
THE COURT: I think the last juror which the Court excused because you challenged him was qualified under our test and that test is, as Mr. Fogleman outlined, if the prospective juror can testify or state that they can set out any tentative opinion or opinion they may have formed from the media and decide the case on the evidence that they hear in court.
And it is a different subject matter when you ask them about whether or not they would require the defendant to put on proof.
MR. FORD: That's what I asked them.
THE COURT: The layman's thought about that invariably if you ask them, wouldn't you like to hear from the defendant, and they are all going to say (1453) sure, I'd like to hear his side of the case. That's common sense. Lay people don't understand that a defendant doesn't have to do or say anything.
And that question is -- if you just want to sit here and go through 140 people if you ask it strongly enough and forcefully enough, you're going to get every one of them on that.
If that's what we are about here -- and I don't think it is -- I'm going to let you keep asking it the way you asked.
I don't like the, who do you think is guilty of this offense. I don‘t think it is a fair question.
MR. FORD: I feel I'm entitled to ask them questions as to what their mindset is and how more clearly and concisely if I ask them, who do you think did this. If they say, I don‘t know, that inquires into their mindset. If they say, these two boys, that inquires into their mindset.
THE COURT: When I do my voir dire. I'm going to take care of that question.
MR. DAVIS: My concern is --
MR. FORD: Your Honor, I'm going to continue to ask my question.
THE COURT: Yes. Go ahead. I'm going to take care of it though. I can assure you of that. (1454)
MR. DAVIS: Judge, my concern is --
MR. FORD: -- your Honor, I feel like --
MR. FOGLEMAN: -- Mr. Davis was speaking and Mr. Ford interrupted him.
MR. FORD: I want to respond to the comment the Court just made before we move to any new ground to plow.
Your Honor, if you attempt to usurp the questions that I'm going to ask to the jury in whole in order to -- you're going to clear up their minds before I ask them in order to plant in their minds an answer that the Court thinks is a proper answer -- because the jurors always want to answer the judge and say yes to the Court because they want to be good citizens. And for you to do an end run on my questioning, I object to it.
THE COURT: I'm going -- I‘m not going to do an end run on your questions. In fact I don't like some of the questions you posed. Some of them are good and some aren't. And I am certainly not going to usurp your questions. The Court has the right to question the jurors as to their state of mind and if necessary to make sure they understand a misleading question.
And that I'm going to continue to do. I don't choose to use the question you proffered to the last (1455) juror. I think it is basically unfair to ask them who do they think is guilty. That's all I'm saying. I'm going to tell you if you want to do it, go ahead and do it.
MR. FORD: Thank you.
MR. DAVIS: Can I speak now?
THE COURT: Yes.
MR. DAVIS: My concern is with the last juror -- and I think the Court will agree -- his comments to the Court in response to Mr. Ford's questions were exactly appropriate for what a juror should say.
The concern I have now is I don't know what impact that is going to have on these remaining two jurors, and I would ask that the Court be aware of that down the road because I'm afraid now they're going to be scared to say they have an opinion and think there's something wrong with having an opinion and think that it you have an opinion and say you can set it aside, that you're still not competent to serve on the jury.
THE COURT: I agree, and I made the statement that I thought that juror was actually qualified but in an effort to be cautious and because there is high media exposure, I went ahead and struck him and I am going to continue to follow that course. (1456)
MR. WADLEY: Your Honor, if we are not entitled to make further inquiry, Judge, then you have a juror on this jury, just as he stated there, who has formed an opinion. He has formed an opinion to such a nature that it would require the defense to prove his innocence. That's why it's proper to ask those questions, your Honor.
THE COURT: Go ahead. I have never said you couldn't ask what you wanted to. Call them back in here and ask your questions.
MR. FGGLEMAN: All we ask is that they not be allowed to mislead the jurors --
MR. FORD: -- I haven't asked a misleading question.
MR. FOGLEMAN: -- I'm talking now --
MR. FORD: -- And I'm stating my response.
MR. FOGLEMAN: Well, I'm not through.
THE COURT: Let him finish first.
MR. FOGLEMAN: -- And for them to ask, do you have an opinion to which the natural response is, yes, we have an opinion. But they are not told at that time that there's -- about -- well, the defense doesn‘t have to prove anything. That is not in their minds. They're laymen. They don't understand the legal intricacies. And then for them to come back and (1457) say, well, would you require my client to put on proof to take that away --
MR. FORD: -- When I get through, John, if when I submit them for cause, if you or Brent would like to ask questions and attempt to rehabilitate them, go right ahead.
MR. FOGLEMAN: I didn't have that opportunity.
MR. FORD: That's because the judge has been doing that for you. If that happens, y'all have a chance to rehabilitate them. I'll submit them. You can rehabilitate them.
THE COURT: Are you suggesting that the Court shouldn't ask questions of people to make sure they understand your questions?
MR. FORD: No, sir. Not at all. Not at all. I feel that's your role.
THE COURT: I sure don't want to usurp anything, to use your word.
MR. DAVIS: Judge, we don't -- it may not be appropriate for you to do an end run, but on some of the questions it may be appropriate for you to do a reverse.
