But, your Honor, for the State by innuendo and inference to parade those pieces of wood in the courtroom as three weapons, three types of injuries, three defendants the way they did at the last trial, there‘s no evidence of skin, hair or blood on any of those sticks. There was no evidence of any wood fragments in any of the injuries sustained by the three boys.
They want to establish that all three boys had similar types of bruising and injuries. That all three of them could have been hit with a club and all (1175) three of them could have been hit with a broomstick and then they had the third weapon being the knife.
Your Honor, there's nothing that was presented in that case, nothing that has been presented to me through discovery or through my personal discussions with individuals at the Crime Lab, to establish in any way that those sticks were weapons in this case.
And I am asking the Court to order in limine that the State be precluded from making any evidentiary reference that those sticks that were introduced at the last trial are the weapons. That to introduce a stick that looks like a piece of driftwood to me, your Honor, and I've been out there and those sticks are everywhere.
To introduce a stick that is about four or five inches in diameter and say, this was found at the crime scene, and then ask Doctor Peretti, is this injury consistent with having been caused by a piece of wood about -- and holding his hands up in the same way again.
Your Honor, that makes reference that this is the murder weapon. That we recovered the murder weapon. But we don't have any proof of that. I feel that it does not -- first of all, to show that there's two sticks out there, if it is relevant and probative of (1176) any proposition in the case, it's a very minor proposition and it has minor relevance. But the potential prejudice that can be made by the display of those pieces of wood and then to allow the prosecutor to argue by innuendo, those are the murder weapons, when we don't have that.
There's no indication whatsoever that those sticks were used as weapons from any physical evidence, not on the victims, not on the sticks themselves. To allow them to use those sticks for that proposition is inappropriate. I feel that the Court should order in limine that the State be prohibited from the introduction of those sticks for any use as argument that they are weapons used in this case.
MR. FOGLEMAN: Your Honor, these sticks were found at the crime scene. The Medical Examiner testified that they were consistent with the wounds caused. The victims had two separate types of head injuries. The Medical Examiner testified that the larger injuries were consistent with having been caused by the larger sticks, and the smaller head injuries were consistent with having been caused by the stick that appeared to have been carved. And we submit the sticks are relevant. It would be like 1177) saying if you find a hammer at the crime scene and that a hammer is consistent with being a weapon, you couldn't use it just because it didn't have any blood or hair on it.
THE COURT: I'm going to overrule your motion on that. As pointed out by Mr. Fogleman, the sticks -- one in particular -- was jobbed down into the water and was used to hold clothing. That is certainly relevant and admissible. The other two were found near where the bodies were found, if not right at where the bodies were found. And the Medical Examiner did testify that the injuries to the head -- and I believe there were three large contusions on one of the victims and I don't recall the number on the other -- but that they were consistent with a blunt trauma similar to what would have been caused by a stick of that type.
Also, they didn't appear to be just driftwood, they appeared to have the bark removed in places and some carving on one.
MR. FORD: The one that was -- Mr. Davis' term was a broomstick or broom handle -- that matches the title of the book.
THE COURT: That was the one that was jobbed in the water? I don't remember. (1178)
MR. DAVIS: That wasn't the one.
MR. FOGLEMAN: It was one of the bigger ones that was jabbed in the water.
THE COURT: I think that it was found at the crime scene and that you can make reasonable inferences that they could have been the weapons that inflicted the injuries and that to me is relevant, and I am going to overrule your motion.
MR. DAVIS: I think that also the -- one of the fellows from the Crime Lab -- I can't remember it it's Turbyfill. Turbyfill testified in trying to test one of those sticks for prints that although he was unable to find latent prints, he did find positive reaction for a substance -- chemical, some sort of enzyme from the hands. And even though he couldn't find prints, there was a positive reaction for that chemical which indicated that it had been held in someone‘s hands which would be consistent.
THE COURT: Those are items seized at the crime scene and any reasonable argument that can be made to their presence there is permissible and relevant. What makes it relevant is the Medical Examiner saying that the injuries could have been inflicted by a tool of that type and that makes it a relevant, permissible argument. (1179)
MR. FORD: The next motion I would like to address deals with a knife that was found sometime in October, I believe. October 30th, 1993. Or maybe it was the 31st. I believe it was the 31st, your Honor. A knife was found by an Arkansas State Police scuba diver in the lake in the trailer park where Mr. Baldwin resides.
I would like to mark and be allowed to substitute a copy -- a document that was provided to me by the prosecution's office of a drawing of the --
THE COURT: Are you going to let me see it?
MR. FORD: (HANDING) -- that constitutes a plat of the trailer park where Mr. Baldwin resides and that will also show the number of lots that are around that lake and there was a knife that was found in that lake. That knife is a survival type knife, blade length approximately nine inches. Apparently the search was on November 17th, 1993, if this report was correct.
THE COURT: What is your objection?
MR. FORD: Your Honor, that knife has been tested and there's no blood on the knife. There are no fingerprints on the knife. There's no testimony that I have been made aware of through discovery or any witness who would ever place it as a possession or (1180) ownership in the -- of the defendants Echols or Baldwin and particularly my concern is that of Jason Baldwin.
The map speaks for itself as to where the residence trailer of Mr. Baldwin was and the location where the knife was found based upon their observing where the diver came up from after he retrieved the knife.
To allow introduction of a knife that was found in a lake, although it is close to his home, it is clearly -- it can be looked at in one of two ways. First of all, if it is outside of his curtilage, there's no physical evidence found to link it to my client. Therefore, it's no different than finding a knife out on the sidewalk this afternoon.
If it is within his curtilage, then there's the expectation of privacy that would attach under the Fourth Amendment, and there was no warrant obtained for the search of the lake.
It is my argument that to allow the State of Arkansas to introduce that knife and to make reasonable inferences that it's the murder weapon or could have been the murder weapon and it was found in the location in close proximity to Baldwin's trailer, is inappropriate in the absence of physical evidence (1181) to link it to him. There's no fingerprints on the knife. There‘s no blood on the knife.
The knife has -- no evidence can be obtained by that knife to link it to Mr. Baldwin or to the crime itself and, therefore, it is no different than any other knife that exists out there in the world.
And to allow that knife to be introduced and paraded to the jury as being found outside the residence of Jason Baldwin and say this could be the murder weapon is inappropriate and I feel that that is the purpose of Rule 403. And, first of all, I don't know that it meets the definition of relevant evidence since there is nothing to connect it to the defendant or the crime scene.
MR. FOGLEMAN: Your Honor, first of all, as far as it being connected to the crime scene, it is our understanding that the Medical Examiner is prepared to testify that this knife is consistent with some wounds on the victims' bodies unlike any other knife in the world, not necessarily that that makes this knife the exclusive knife. He's not going to say positively this is the knife.
It is my understanding that he will say that because of the way the knife was made, there are some wounds on the body that are consistent with this (1182) knife, and I would suspect he would say it was a knife that had similar serrations on it that caused the injuries and with that and with the fact that it's found a very short distance --
THE COURT: How far was it found from Mister --
MR. FOGLEMAN: It's my recollection that it was found 47 feet into the water from the bank where the knife was found. And it is our position that that would be similar to a public alley behind somebody's house and finding the knife buried in that public alley behind their house. The knife was concealed and hidden and it was in an area right behind the lot where he was 47 feet out into the water.
THE COURT: Are you talking about directly behind his back --
MR. FOGLEMAN: Your Honor, this is the Baldwin residence, this one right here and it was right on that line.
THE COURT: I'm going to reserve a final ruling on this until the time of the trial, but my impression would be that the knife found 47 feet from the backyard of a defendant that could be compared by the Medical Examiner as a possible weapon that had inflicted injuries would certainly he relevant and, therefore, admissible. That would be my tentative (1183) ruling. I'm going to reserve my final ruling until time of trial.
MR. FORD: My argument would be then that before that -- then I would ask in light of the fact that the Court will reserve ruling that we be allowed to have a hearing outside of the presence of the jury at which time Doctor Peretti can testify under direct and be subject to cross examination as to his opinions regarding this serration pattern and this knife and if it fails to meet the foundation you require --
THE COURT: That‘s why I'm reserving my ruling. I‘ll warn you right now that if the doctor testifies that this knife is similar in makeup and design as the one that would have or did cause the injuries, then it is going to come in because it is relevant.
It is just like the sticks. If the doctor says it is consistent with the tool that likely caused the injuries he observed, the fact that it was found 47 feet behind the defendant's house certainly makes it relevant to me.
I'm going to have to hear the doctor tie it up to being a possible tool that could have inflicted the injuries he observed.
MR. FORD: You will allow that to be done in-camera? (1184)
THE COURT: Yes, sir. I want to avoid as many in-camera hearings as we can. That is one that I think I need to hear. So I'll do that.
MR. FORD: Your Honor. moving to the next matter, there was a -- I filed a motion in limine in response to the potential list of exhibits provided to me which contain a blanket reference to the search warrants issued for the residence of Jason Baldwin, Damien Echols, Jessie Misskelley and maybe Domini Teer.
All those search warrants, your Honor, if they were introduced, would contain, I contend, hearsay allegations. They make direct reference to the statement of Jessie Misskelley and that statement was actually copied verbatim and attached. There was also a statement by another individual, William Jones, who made some incriminating statements, that that was attached.
It is my contention that the State of Arkansas may be allowed to make reference to the fact that a search warrant was obtained and exe cuted upon, but to introduce the search warrant itself which contains those hearsay documents and references is inappropriate. Particularly in light of -- that is the reason we had a severance in the beginning was because of the statement of Mr. Misskelley. (1185)
THE COURT: Those statements were used for probable cause findings and should have been removed from the search warrant at the time of the search, but apparently they weren‘t.
MR. FORD: They were not.
MR. FOGLEMAN: They were inadvertently left on. Your Honor, if the Court decided it was permissible to introduce the search warrant, we would remove all those attachments.
THE COURT: A court has already found probable cause existed and unless you're challenging the search warrant, there wouldn't be any purpose to introduce the exhibits that were attached to provide and to prove probable cause.
MR. FORD: I'm trying to protect myself and protect my client. I don’t want them to be allowed to introduce through the back door the statement of Jessie Misskelley.
THE COURT: Those statements are not admissible.
MR. FORD: The next motion is with respect to the allegation that these homicides were cult related or motivated by cult activities. I'm of the opinion, right or wrong, that that is an extremely inflammatory issue in Craighead County, that anytime there's an allegation of occult activity, that creates a certain (1186) amount of panic and fear among everyone who hears that.
I have reviewed carefully the files that have been provided to us by the prosecuting attorney's office in an effort to determine what competent evidence there is that my client is involved in any occult activities or a member of some cult.
The Prosecution made numerous innuendoes to that effect during the first trial. In fact the statement of Mr. Misskelley indicates that. However, that is hearsay.
What I'm asking the Court to do is to instruct the State of Arkansas in limine to make no reference to my client's involvement with the occult or cult activities until such time as the Court is sure in its mind that that evidence exists.
THE COURT: Do you want to respond?
MR. FOGLEMAN: I'm not quite sure how to respond. What we say is not evidence. Unless we've got evidence of that. I'm not exactly sure -- if there is evidence -- if he's saying that we cannot put on any evidence of his client's being involved in these type of activities without a hearing, I‘m not -- I really didn‘t understand him to be saying that. What I'm understanding him to say is he didn't want us (1187) referring to it unless there was some hearing.
MR. FORD: Your Honor, what I'm asking for is the prosecuting attorneys not be allowed in opening, voir dire or closing or any other argument or by question of another witness -- intimate that my client is involved in cult activities or even interested in the occult without a proper foundation being laid for that. To prohibit the investigating officers from stating their opinions as to their concerns that it is occult in nature until the time that, number one, they can establish that was a cult type killing, that there is any physical evidence via the injuries or the crime scene itself to establish that this was an occult type ritualistic killing, that it meets those things that are consistent with that type of homicide.
And if they meet that first hurdle. Secondly, before they intimate it was my client, that they establish that he is involved in those type activities. There's no evidence that I'm aware of, and if I'm wrong they'll probably correct me, but I'm not aware of any witness who's been interviewed who will affirmatively state that Jason Baldwin was involved in any of those activities.
And for them to make those references and those innuendoes without being evidence to support that, in (1188) light of the prejudice that those accusations imply to jurors and to the common person in this area -- I believe is inappropriate.
What I'm asking and if the State intends to do that. that they do that to the satisfaction of your Honor outside of the hearing the jury to establish, number one, that it was a cult type killing and, number two, that my client is involved in the occult.
MR. FOGLEMAN: Your Honor, in regard to proof about an occult type killing -- for instance, if we had an expert testify it was an occult type killing, he'd almost have to hear all the testimony as to the nature of the wounds before he could give his opinion so I don‘t know what comes first, the chicken or the egg.
THE COURT: The State doesn't have to prove motivation. They may prove motive, intent, by suggesting or introducing evidence that the murders could be a result of that type or activity or not necessarily as a result of it but by that association between the parties could be the connecting link and, therefore, the possibility that those activities precipitated or attributed to or led up to the homicides.
If that evidence is merely connective to the (1189) common purposes between the three people, then it is relevant and whether or not it was an actual ceremony or I heard a new word, an Esbat, or whatever that was in the other trial. Whether or not that type stuff was involved or not, I don‘t know. It may be the single thread that ties the three together and if that's the case, the State will he permitted to introduce that evidence of that connective link between the defendants.
And also it could possibly go to motive, but I will reserve the ruling on it until we can have an in-camera hearing and decide just how much -- I don’t know if you are aware -- I guess you are aware -- I prohibited a great deal of it from the last trial.
MR. FORD: Yes, sir. I am aware of that and that is my concern and I think the Court is concerned because of the magnitude of that prejudice. If that common thread does exist, I would agree with you that the State is allowed to introduce those types of evidence to try to establish a common thread that weaves all this crime together. But before they make innuendoes and arguments to that common thread, I want you to be certain that that common thread exists.
THE COURT: I understand what you’re saying. The point I'm trying to make is if they can show the (1190) connection between the parties by this means and therefore develop a reasonable inference that that could have been the motive, then it is relevant evidence and appropriate.
I'm not ruling right now on that. I will reserve that for an in-camera hearing. I'm not barring testimony in those areas until I have an opportunity to see where it leads.
MR. FORD: As my client is 16 years of age now and although being charged as an adult, there‘s been some concern in the past about his juvenile record. We once had a closed hearing in Jonesboro regarding that.
THE COURT: That's not admissible in the guilt-innocence phase of his trial at all. That does not mean that it may not be relevant it there is any record in the punishment phase. That is something you will have to have an argument on. I don’t know if he has a record.
MR. FORD: I’m not indicating that there is. There have been numerous statements in the discovery file and there's the subpoenaed witness, Jerry Driver, who is the Crittenden County Juvenile Services Director, that any knowledge that Mr. Driver obtains from this individual is obtained -- if in fact he did (1191) obtain any information from Mr. Baldwin or any other individual as a juvenile and he obtained that as their juvenile probation officer, whether it be any party involved -- witness, defendant -- that that information is also protected by statute that prohibits the release of the juvenile record into these proceedings.
So I would not only object to any reference to the direct juvenile record of Mr. Baldwin, but any information which is gathered by Mr. Driver by virtue of his role as juvenile probation officer and any statements made to him by those juveniles that is a revelation or their juvenile record.
I would object to anything which Mr. Driver would learn exclusively as juvenile director from any witness or any defendant.
MR. FOGLEMAN: Your Honor, I don't remember that being a motion in limine or the one that was filed. That is something new to me. Was it in your motion?
MR. FORD: It was -- I don’t believe it was directly in the one I filed in the past two week period, but it was in the one I filed back in September.
THE COURT: The only thing I recall Mr. Driver testifying to in the other trial was that he was at a (1192) place and time in Lakeshore and that he observed one of the defendants --
MR. FOGLEMAN: The three of them.
THE COURT: -- The three or them together wearing black. If that is what his testimony is going to be, I'm certainly going to allow that. It wouldn't be any different than you or me or anybody else that happened to know a person and was driving down the street and saw them.
MR. FORD: I'm not objecting to that testimony. He did not observe and obtain that testimony by virtue of his exclusive role as juvenile probation officer. There has been a myriad of other things that he has knowledge of and he has that knowledge simply because he is a juvenile officer.
THE COURT: Like what?
MR. FOGLEMAN: I don't know how we can respond to that without knowing what in the world he's talking about.
THE COURT: I‘m asking him. Like what? The juvenile records, if any, are not admissible in the principal trial on guilt or innocence. They may be relevant and admissible in the punishment phase if you get to it and I don't know --
MR. FORD: What I'm asking the Court's (1193) prohibition to include at the guilt-innocence phase of the trial is not only the transcript and the paper docket sheets reflecting a juvenile record, but I'm also asking that that prohibition include statements that may or may not have been made by any of the parties or witnesses to this case to Mr. Driver as this probation officer. I think if basically the juvenile goes in because of his -- the direction of the juvenile court to go see Jerry Driver. He has to go see Jerry Driver. And while he's talking to Jerry Driver, he makes statements.
THE COURT: Give me an example.
MR. FORD: I didn't bring that file with me, but they know that there is a large amount of information that includes opinions, speculations, conclusions. All of them have been gathered by his role as juvenile officer.
THE COURT: He's not going to be permitted to testify to his opinion.
MR. FORD: I'm asking that if there are any statements that he claims have been made to him by Mr. Baldwin, Mr. Echols or Mr. Misskelley while they were under his direction as juvenile officer, that that be excluded as well.
THE COURT: Do you have any statements that you (1194) plan to introduce?
MR. FOGLEMAN: Your Honor, frankly, I hadn't thought of it until now. It might be a pretty good idea. Just offhand, I can‘t think of any offhand by Mr. Misskelley or by Mr. Baldwin. There was quite a bit of information from Damien but as to whether or not -- it hadn‘t occurred to me. Of course, that would be Damien's place to raise that. Any privilege would be his.
Secondly, the Juvenile Code provides that information that is provided in intake may not be used against him, that is given to a probation officer. I'm not aware of any similar prohibition just because you say something to a probation officer on the way going somewhere, some conversation you have, that you couldn‘t use that.
THE COURT: If there are conversations that by statute are prohibited, then I will prohibit them. If they were as a result of intake or as a result of a juvenile proceeding, then I think they are barred. If it is casual conversation in the hall of the courtroom, on the streets of West Memphis, Marion or Lakeshore, if it is an observation made by Mr. Driver in the capacity of being someone that just happens to know them, then he‘s permitted to make those (1195) observations just like anyone else.
If it is as a direct result of his role as juvenile probation officer in a protected area, you will have to raise that objection and I‘m sure I will sustain it. Neither or you have given me a specific example.
MR. FORD: It is hard for me to object before it occurs, but that's part of the reason you file a motion in limine to keep the skunk from getting out of the box.
THE COURT: It is even harder to rule on it.
MR. FORD: I understand, your Honor. I'm just trying to make a record on these things. If the prosecutor goes back now -- after I've given them an idea -- and they go back and review Jerry Driver's file and decide, I want to use this information, and it came from Jerry Driver and it may relate to one of the defendants, that if they intend to elicit that testimony from him, that we have that in-camera determination to see if it falls within those protected areas.
THE COURT: That does raise one issue in the Court's mind. I assume -- of course, you haven't had your motion to sever yet -- but it they were to be tried together, there needs to be a cautionary (1196) instruction that Y'all agree upon that when evidence is adduced that applies to only one of the jointly charged defendants, that I could remind the jury on if we go together. There is a stock instruction but you may agree upon it --
MR. FORD: I think there is one.
THE COURT: -- That would apply to evidence that's adduced as to one and not the other.
MR. FORD: Your Honor, there's evidence in the discovery file of a knife that was round at the Marion Public Schools, I'm not sure whether it was the junior high or high school, and that that knife was later examined by the Trace Evidence Section and there were some findings that may or may not have value to the prosecution's case.
In an effort to determine the ownership of that knife there were statements taken from a Jason Crossno and Richard Appellene (phonetic), both of which indicate that that knife could never have been in the possession or ownership of the defendant. That in light of that -- those two statements, we would ask for an order in limine instructing the State to make no reference to that knife or to any scientific testing or any results thereof.
MR. FOGLEMAN: Your Honor, at this time we don't (1197) have any plans on introducing the knife. If we decided we needed to, we would approach the Court.
THE COURT: I understand there were fifteen or sixteen different knives.
MR. FOGLEMAN: Yes, sir.
THE COURT: I assume you're not planning on parading them anyway.
MR. FORD: Due to the result of some of the testing is the reason I have grave concerns about one in particular.
THE COURT: If he attempts to introduce it, he'll request an in-camera hearing.
MR. FORD: I believe previously we discussed Luminol testing done by Kermit Channel.
THE COURT: Luminol is out. The ruling of the Court in the paper day before yesterday pretty well indicated unless there's some corroborative evidence, Luminol is not going to be allowed. Basically our Supreme Court has ruled Luminol is not admissible unless there's strong corroborative evidence and they ruled in that case that there wasn't any.
MR. FORD: Your Honor, I would also move for another motion in limine regarding testimony of any of the witnesses or reference to the conclusion that the three young boys were sodomized. (1198)
There was some issue of that at the previous trial. What I'd like to do is mark as Exhibit Two to this hearing a copy of the transcript of a phone recorded conversation I had with Doctor Peretti, who is the Medical Examiner who performed the autopsies.
I'd like for the Court -- I have the original tape here with me if the Court would like to listen to it to verify the accuracy of the transcription.
After the Court has an opportunity to read that, I would like to make an argument that to make any reference to the existence of the injury of sodomy would be impermissible based upon this testimony.
THE COURT: I'd be more concerned about his testimony at the time of trial. This is subsequent to the trial, isn't it?
MR. FORD: No, sir. This was -- I talked to him --
THE COURT: His sworn testimony in court, as I recall it, he testified that there were, I believe on all three of the victims, that their anuses were dilated. And he gave two or three possible reasons for why their anuses' orifices could be dilated. One was that it could have been penetrated by an object. a stick, a finger. or a penis. Two, it could have been as a result of the water. And I don't remember what (1199) the third was --
MR. FORD: Natural process of death.
THE COURT: I don't remember that, but there was a third reason he gave. I believe he didn't indicate anything about lividity, if that’s what you're referring to. He indicated there were some scrapes, tears, or abrasions on one of the boy’s rectum but not significant.
He also testified that he would have expected to find substantial tears and injury to the rectum had they been fully sodomized, I guess that's the way you describe it.
But his testimony, as I recall it, left a definite inference that they could have been sodomized, although he didn't find strong medical evidence to suggest it, that there was some and that's the way I took his testimony.
MR. FOGLEMAN: Not only that but the doctor also testified that he was aware of medical literature where children had been sodomized and there were no tears. In his experience he had not seen it but he was aware of medical literature to that effect.
Your Honor, this conversation, in fact what the doctor says here is that with what he found there could have been sodomy. It is what he says in the (1200) tape. Says that one of three things. "Could have been due to the bodies being in the water, could have been done by certain objects in the rectum or a small penis."
What the defense has done -- and this is not the first time they have done this -- they overstate -- I‘m not saying they do it intentionally -- but they overstate to Doctor Peretti what I tell them that he says and then he starts getting defensive.
THE COURT: Here's one comment he makes. In response to a question by GRW: "I'm not putting you there either. I'm concerned because I thought we took some fairly copious notes the other day, and I thought we’d fully understood what you told us and wanted to make sure that I had not recorded something on paper incorrectly concerning this issue of the boys being sodomized."
The Doctor: "No. there's no evidence of any anal-rectal trauma. Okay? I mean, could they have put a finger there? Yes. Could they have put a dildo there and not leave an injury? Yes. Could they have been penetrated after death and not have any injuries? That's a possibility but I would expect to see some tearing. See what I'm saying?"
That's fairly consistent to what I recall his (1201) testimony. He wasn't what I would call a gangbuster witness saying that they were sodomized but he did leave room for argument.
MR. FORD: In light of the Court's characterization that he was not a gangbuster witness on the issue of sodomy, in light of the content of that conversation, I believe this is the purpose of the 403 balancing test that the probative value of his testimony that these boys were sodomized is substantially outweighed by the prejudice of that.
It is clearly a possibility but the doctor would not tell you, based upon a reasonable degree of medical and scientific certainty, in my opinion these boys were sodomized.
With that as the two options, anything is possible but it is not a medical probability, that is when 403 should step in and say no, you cannot make that statement, you cannot make that argument, you cannot elicit that testimony. That's what I’m asking the Court to do.
THE COURT: It goes to the weight of the testimony.
MR. FORD: Your Honor, I agree it goes to the weight but once that weight is substantially outweighed by the prejudice -- is the Court finding (1202) that the probative value of that testimony is not substantiality outweighed by the prejudice of the issue of three young boys --
THE COURT: No, I am not finding that. I'm finding that any testimony of someone perpetrating a crime on someone raises prejudice. The question is, is whether or not there's any relevant evidence. I'm ruling that the evidence is relevant, that the issue you are taking is a matter of cross examination and goes to the weight that should be given to that question.
MR. FORD: Is the Court ruling that the probative value of that testimony is not substantially outweighed by the prejudice?
THE COURT: No, I am not ruling that. I‘m ruling that it's relevant.
MR. FORD: That's what I'm asking the Court to do.
THE COURT: The probative value of that -- in fact I don't think it calls for me to make a ruling in that regard.
MR. FORD: Your Honor, I'm asking that this evidence be excluded under Rule 403 and Rule 403 requires the --
THE COURT: Denied. (1203)
MR. FORD: -- Requires the Court to make a determination that the probative value of the evidence is not substantially outweighed by the prejudice. I'm asking the Court for a ruling. Does the Court rule that this testimony is not substantially outweighed by the prejudice?
THE COURT: I'm ruling that it's relevant evidence.
MR. FORD: I'm asking the Court to make a ruling.
THE COURT: I'm ruling that it’s relevant evidence under Rule 403 -- period.
MR. FORD: So you won‘t rule despite my asking for it.
THE COURT: I ruled it is relevant evidence based upon Rule 403 and any question about the issue goes to the weight of the doctor's testimony not its admissibility.
MR. FORD: when the motion of change of venue was presented to the Court, the Court did not rule out the possibility that a subsequent change of venue could occur.
Due to the extensive coverage that was received by the Misskelley trial, by virtue of the fact that some of the testimony was broadcast directly from the witness stand on television, I want the Court to be (1204) aware that we are not waiving an argument that venue is proper in Craighead County, that we are going to attempt to comply with the statutory procedures for affidavits for change of venue from Craighead County.
We would also like the Court to know that we do not waive that. We would also like the Court to perhaps take into consideration what the potential responses might be from the venire panel as to whether or not there's proper venue in Craighead County.
I don't want the record to indicate that we waived it because we may continue to raise that since the statute does allow it up until the time of trial itself.
THE COURT: I changed the venue from Crittenden County on your motion.
MR. FORD: I know you did, your Honor. You also indicated that if was necessary later, that you would do so again. And we don‘t want that to be any indication that we have waived that.
THE COURT: All right.
MR. FORD: I would like to turn now to what I would categorize as a motion to suppress. There was a previous ruling that there may have been items seized at the residence of Mr. Baldwin which were not properly categorized in the search warrant. (1205)
There was a poem which has subsequently been submitted to the Crime Lab for handwriting analysis to determine if in fact it was the handwriting of Jason Baldwin after submitting a known sample. And there was also a cloth that had animal teeth on it. It is our contention that neither one of those items were identified in the search warrant, that any of the content of the poem or the existence of the poem itself along with those animal teeth that were improperly seized should be suppressed.
THE COURT: Was the search warrant to search for evidence of a crime?
MR. FOGLEMAN: It was and it also listed specific things such as specific color fibers. I don't have it here with me so I don‘t know exactly what it said. But it also referred to satanic materials and also referred to -- I can't remember. But it referred to this crime. It also listen a number of specific things.
THE COURT: I cannot rule on it until I know what the search warrant said, a cloth with animal teeth and a poem?
MR. FORD: That's what the search warrant return says.
MR. FOGLEMAN: There was a cloth with what (1206) appeared to be a number of what appeared to be animal teeth in it and I have not determined whether or not that has any significance at all at this point. I don't know that we would be introducing the cloth with animal teeth unless we had somebody testify that that had some significance in the occult or something like that or if it was related to some of these dogs that we've heard about.
And in regard to the poem, I don't have that with me either, but it makes reference to, "Runnin away, don't run away from me, why did you run away from me," and there's some kind of veiled references in the poem.
THE COURT: I’m going to do this. That's another thing you can bring up in-camera if you're going to use it. We will decide that at the time of trial.
MR. FORD: I have asked the Court to reconsider the issue of severance and like the concern of venue, severance is waived if it is not continued to be raised so we are stating now that we are raising again the issue of severance and would like to --
THE COURT: What new matter are you raising at this time? I have previously ruled on the motion to sever.
MR. FORD: Your Honor, we filed a motion for (1207) severance originally requesting that we be severed from Jessie Misskelley. That was granted. We subsequently filed a motion to be severed from Damien Echols and a hearing was conducted, at which time you ruled that there was no antagonistic defenses and we did not meet the criteria of the case law and statutes to entitle us to a severance.
Since that time, I have filed a motion and have raised Arkansas Statute Annotated 43-1802 which was Section 29 of Initiated Measure Number 3 of 1936. That statute was codified --
THE COURT: Is that the one that amended the law that required a severance in capital murder?
MR. FORD: It gave any capital defendant the right to severance.
THE COURT: The law you just cited was the one that amended it and took away that absolute provision for right of severance?
MR. FORD: No, sir. The statute that I cited was the old Arkansas statute.
THE COURT: But that's since been amended and rewritten.
MR. FORD: It is not included in the new codification of the Arkansas Code. It is not listed in the Arkansas Rules of Criminal Procedure. (1208)
However, my argument is, is that -- that those statutes or those rules of criminal procedure which by implication have overruled Arkansas Statute 43—1802 are unconstitutional.
Amendment Seven to the Constitution of the State of Arkansas requires that any initiated act must be repealed by a two-thirds roll call vote of both houses of the legislature of the State of Arkansas.
I would like to substitute copies and have the original marked as Exhibit Three to this hearing which is a letter from Kern Treat who is the director of the Bureau of Legislative Research which indicates that he has conducted a search of all roll call votes in the State of Arkansas and finds no evidence that that initiated act was repealed as required by Amendment Seven to the Arkansas Constitution. That statute having not been repealed and with a specific requirement of the Constitution on how to repeal that, it is our contention that that absolute right to a separate trial in a capital case still exists and that that statute can't be, that right can't be taken away by implication by the passage and codification of other procedures and other statutes regarding criminal trials because it is unconstitutional under Amendment Seven. (1209)
MR. FOGLEMAN: We have discussed this issue before.
MR. FORD: If you have, your Honor, it was done without --
MR. FOGLEMAN: I thought the three of us had discussed it before.
THE COURT: I thought we discussed it in court.
MR. FOGLEMAN: Anyway, your Honor, there's an Arkansas Supreme Court case that considered whether or not this statute still had some application.
THE COURT: Is that Hallman versus State?
MR. FOGLEMAN: It may be, your Honor, and they held that the statute had been superceded by the Rules of Criminal Procedure adopted by the Supreme Court.
MR. FORD: Your Honor, before the Court rules, I would like the Court to pull that case and reed that case because it is not identical to the case we are dealing with here today. The case addresses that statute, but it is not controlling because of the distinguishing nature of the cases itself.
THE COURT: I thought there were other cases where our Supreme Court ruled that the rules of the Court were the rules of the Court, the legislature notwithstanding. What we are talking about is a Rule of Criminal Procedure that is promulgated by the (1210) Supreme Court.
MR. FORD: It is my contention that the Rules of Criminal Procedure are rules of procedure, and the Supreme Court does have the authority to promulgate procedural requirements. However, it is our contention that this act creates a substantive right and gives it to Mr. Baldwin and that takes it outside of the Supreme Court's authority to promulgate procedures because once it is a substantive right, it must be taken away from him as required by the constitution, and that has not occurred.
MR. FOGLEMAN: The case specifically deals with the issue of whether a capital defendant is entitled to a severance and the Court in that case held they were not because the Rules of Criminal Procedure supersedes it.
THE COURT: Somebody has penned a note that there were separate trials except when the death penalty was waived.
MR. FORD: That is the distinguishing factor. That is my handwritten note.
THE COURT: There's another case I'm talking about back when they adopted other rules -- there are several cases on procedural rules where our Court has universally held that the Supreme Court has the right (1211) to promulgate the Rules or Criminal Procedure and I take severance to be a rule of procedure and not a substantive right.
MR. FORD: I'd like then for the Court to take those arguments I've just made and consider them with other arguments that have been previously made with regard to severance because the Court is required to look at all factors and adding that into it, which was the legislature and the people decreed that that right existed. We would like that to be a factor for the Court to consider in ultimately determining whether a severance is proper.
I would also like to mark as Defendant's Exhibit Four a copy that was provided to me in discovery that is an interview that was conducted with the defendant Echols.
The first page is the questions they were asked and the next pages reflect the answers that they gave. If you look at number six, it said, "Do you know who did this?"
Turn to the next page. Answer: "Jason Baldwin could have. L.G. Hollingsworth."
It is my contention, your Honor, that is an out-of-court statement that implicates my client that entitles me to request a severance and requires the (1212) prosecutor to elect what his actions will be.
Let's move on farther to question number nine.
"How do you think they died?"
Answer: "Mutilation. All three were probably cut up but one more than the other. Heard they drowned. Probably just one person did it."
THE COURT: Is this an official interview or questionnaire by a law enforcement officer?
MR. FOGLEMAN: Your Honor, that was a -- the FBI had provided some assistance in trying to develop some kind of psychological profile and the police department is asking a large number of people these identical questions, and the answers were supposed to indicate something somehow. I didn't quite understand it all. The only one I did understand was the question about, what would you do to them, and they say depending upon the response it may indicate some involvement.
MR. FORD: It is an actual police conducted questioning of the defendant Echols, and these are the recorded responses. The responses directly implicate my client. They also describe with striking accuracy the injuries.
And if you'll see, this interview was conducted 5-10-93. "Heard they drowned. " We know what the (1213) medical examiner's opinion had been as to the cause of death for two of them, multiple injuries with drowning.
I believe that this statement which implicates Jason Baldwin is made by Mr. Echols. I'm entitled to call Mr. Echols and go into this area, but I'm not if we are tried together because I cannot call him to the witness stand, or we asked earlier for the grant of use immunity and the Court declined for there to be a use immunity.
I think if you take that factor, I think you take the arguments I have made previously regarding Domini Teer and Damien Echols being seen at the crime scene and that evidence being presented by Tabitha Hollingsworth on the stand to place Damien at the scene. Then you take the statements of Damien Echols which implicate Jason Baldwin and you take these other statements that have been introduced --
THE COURT: Are you planning on using this?
MR. FOGLEMAN: We may use some of these statements. We will be glad to instruct the witness not to respond to the question about, who do you think did it, where he names Jason Baldwin.
MR. FORD: It is my contention that in light of this evidence that to require me to go to trial with (1214) Damien Echols and prohibit me from discussing with him his involvement when there is a witness who places him at the scene, to discuss the fact that he implicates Jason Baldwin and the fact that his girlfriend lives close by to Jason Baldwin and that person could have been where the knife wound up in the lake.
Those are all arguments that I'm allowed to make that are reasonably concludable from the evidence. The way the prosecutor is being allowed to make those conclusions, I'm denied that conclusion. I'm denied that argument if I have to go to trial.
When you take all those things and add them together and you also factor the concern we have regarding our peremptory challenges --
THE COURT: That doesn't concern me at all. That is not an issue whether I grant a severance or not.
MR. FORD: You take the statute that gives him in my opinion the substantive right. We differ, but I have that legal argument. You take into consideration the testimony of Tabitha Hollingsworth placing Damien at the scene. You take the statements of Damien Echols that refers to my client --
THE COURT: That can be stricken.
MR. FORD: If the Court "brutonizes" this interview and does not allow me to delve into that, (1215) I'm denied the ability to draw all the reasonable inferences that I can from the evidence. The fact that one --
THE COURT: Why would you want to inquire into it? Would you want to inquire --
MR. FORD: Let's --
THE COURT: -- if your client was involved?
MR. FORD: Let's --
THE COURT: If I make that statement neutral as to who was involved or who may have been involved, why would you want to inquire into it?
MR. FORD: Let's say it is my trial strategy to come before the jury and say, we have Damien and Domini at the scene and we can establish that not only through Tabitha Hollingsworth but the other people who were in that automobile, all of whom are related to Domini Teer, so they would have a reason to know her over any other person they might see. That they have a desire to cover their own tracks so when Damien is interviewed he implicates Jason. And they live out there at Lakeshore. They place a knife which the State may argue is the murder weapon and they place it outside his house.
Then I'm not allowed to truly cross examine them on these issues if I have to go to trial and can’t (1216) call Damien Echols to the stand to disclose a possible cover-up that those two people may have participated in to implicate my client.
MR. FOGLEMAN: He's saying that his best friend --
MR. FORD: I don't know he's his best friend. Do you?
MR. FOGLEMAN: Sure.
MR. FORD: The jury doesn't.
MR. FOGLEMAN: It will. Your Honor, there's nothing to preclude Mr. Ford from bringing this forth about Damien and Domini, from all the Hollingsworths, all eight of them or however many of them were in the car. There's nothing to preclude him from developing that. There's nothing precluding him from putting Domini on the stand and questioning her about it. I don't see what he would want to ask Damien about.
MR. FORD: Your Honor, I do. And I feel that that creates -- I think that entitles my client to a severance.
THE COURT: You want to call Damien as a witness for your client.
MR. FORD: I don't have to commit myself at any time to say, I am going to call a witness, because I don't know exactly what the State's case will be, and (1217) obviously my case is going to evolve as their case comes forward.
THE COURT: I'm just trying to find where there's an inconsistency in the defenses. I don't see any inconsistency in you saying, the witnesses say that it was Damien's girlfriend.
MR. FORD: That Damien Echols is trying to implicate that my client did it.
THE COURT: I am going to strike that.
MR. FORD: I can't put that evidence on completely and fully.
THE COURT: Why would you want to put on a witness, statement that your client did it?
MR. FORD: If I can try to establish a scheme to implicate my client that was done by one of the actual perpetrators, it helps to exonerate him.
THE COURT: There's no way you can possibly want to put on testimony from an alleged co-defendant that your client did it. Now, that's absurd.
I can understand your wanting to argue, it wasn't my client. It was Domini Teer because that's who the witnesses say it was. I certainly can understand that.
MR. FORD: And Damien.
THE COURT: Well, and Damien. (1218)
MR. FORD: If I want to -- I think what you're telling me is I cannot have certain trial strategies because you're not going to separate these trials, and you are going to limit what my trial strategy is, what my potential ability to do on cross examination is because we have to have a joint trial.
THE COURT: I'm trying to see why it would be -- why it would be a contrary offense to anything by Baldwin. I assume his defense is -- I mean Echols' defense is going to be, I didn't do it. I wasn't there. So what's the inconsistency?
MR. FORD: That's not the only factor that the Court can consider as to whether they have antagonistic defenses. There are other factors for the Court to consider and I'm raising those arguments as well.
THE COURT: I'm also concerned about judicial economy, where I cannot see a real reason to separate them and to have a tremendous additional cost of time and energy of the Court and the parties.
I understand that his right to a fair and impartial trial probably outweighs every other possible consideration. I'm fully aware of that.
MR. FORD: You're not aware of all of the facts that I'm aware of. You're not privy to the State's (1219) discovery file. You're not privy to my conversations with my client.
THE COURT: You better be telling me something then if you want a severance.
MR. FORD: Your Honor, I'm trying to tell you something
THE COURT: Well, I'm listening.
MR. FORD: I have tried to tell you some of the things. I'm going to try to do. For me to be denied the ability call a person as a witness to help establish that, that sa [ ] you don't have that possible defense tactic. You're saying you cannot have that one by saying I have to go to trial with
[The last half of page 1220 is missing.]
not talking about this Jason Baldwin. He's talking about another Jason Baldwin in West Memphis that weighs two hundred and eighty pounds or something.
MR. FORD: Well, I have these notes here that are attached from Mr. Durham and I don’t see that.
MR. FOGLEMAN: It is Sudbury's notes. He was the one asking the questions. Durham was with him.
MR. FORD: I don't have the opportunity to cross examine that either. He's trying to say there's another Jason Baldwin that did it. It is not this Jason Baldwin. I have the right to call Damien and ask him what he thought about this heavy set Jason Baldwin doing it. I have the right to inquire about why he thinks that may have happened.
MR. FOGLEMAN: There are a hundred people that were questioned with these same questionnaires where they said, who do you think did it. And we’ve got all kinds of names coming out of the woodwork. Is he going to be allowed to call any one of these and say, well, you said it might have been this one. Why did you say that.
MR. FORD: I sure could. I certainly can.
MR. FOGLEMAN: To put on hearsay evidence --
MR. FORD: It's not hearsay if they are saying it on the witness stand. (1221)
MR. FOGLEMAN: But you're talking about rumors. The basis of their information is rumors.
MR. FORD: It may not be. It may not be.
MR. FOGLEMAN: Well, then get out and investigate.
MR. FORD: I'm trying to.
THE COURT: All right. That's enough of that. I'm going to take the severance under advisement.
Would y'all like to give me some additional briefing on severance, and I'm more concerned about whether or not it's a substantive or procedural rule. That‘s what I want to know. There are other cases where the Supreme Court has ruled on an identical --
MR. FORD: There's a medical malpractice issue that dealt with that.
THE COURT: Yes, a medical malpractice one, but there have been others where they clearly held that procedural rules are a matter for the Supreme Court.
MR. FOGLEMAN: Your Honor, if the Supreme Court has already considered whether this statute has effect as opposed to the Rules of Criminal Procedure and has held these Rules of Criminal Procedure --
THE COURT: I want to read the Hallman case plus I want to consider this last thing you all gave me. That's the first time I've ever heard that, the (1222) interview of Damien Echols. I didn't know he had ever been interviewed.
MR. FORD: I think he was interviewed three times, your Honor.
THE COURT: Did he make any other statements against interest or against Mr. Baldwin?
MR. FORD: That's the only one where I'm aware where he directly mentions my client by name.
THE COURT: All right. I'll think it over. I'll let you know by Friday morning.
(PROCEEDINGS CONCLUDED)
