JONESBORO, ARKANSAS, OCTOBER 19, 1993, AT 1:30 P.M.
THE COURT: This is the State of Arkansas versus Jessie Misskelley, Jason Baldwin and Michael Damien Echols.
The first motion to take up and consider is the motion to transfer to juvenile. Mr. Wadley and Mr. Ford, that's your motion.
MR. FORD: Your Honor, as the Court is well aware, Jason Baldwin is 16 years of age. He's clearly under the age of 18. The Juvenile Code is applicable to individuals charged with criminal offenses being below the age of 18 years of age. We feel that that in and of itself raises the issue regarding whether or not this matter is properly in a Circuit Court forum as opposed to being transferred to Juvenile Court.
Your Honor, defense counsel is aware that there are certain enumerated crimes that do provide the prosecuting attorney discretion with respect to filing against a juvenile in Circuit Court due to both the age of Mr. Baldwin and the offense charged -- capital murder -- provide that discretion to the prosecuting (733) attorney.
However, your Honor, we would submit on the basis of our motion and the statute that is cited that this is a case that should be transferred to Juvenile Court. The considerations that are of particular importance to the defense in this matter are that the Court is to take into consideration the ability for rehabilitation that could exist for a minor and the absence or extent of criminal -- past criminal involvement of the juvenile.
In this case there is a bare minimum if not an absence of criminal activity on behalf of Jason Baldwin which would place him clearly in that category and also, your Honor, Mr. Baldwin is a good student. He has not been a discipline problem at home. He has not been a discipline problem in the school system, all of which would indicate an ability to live within a system of confines that require him to live up to certain codes of conduct. We feel those matters should be taken into consideration in that Mr. Baldwin -- if in fact he is guilty of any crime -- which we vehemently deny -- he would be a candidate for rehabilitation.
And so, your Honor, based on the statute and the (734) motion on its face, we would ask that this matter as to the defendant Jason Baldwin be transferred to Juvenile Court.
THE COURT: I have read your motion and your brief and I want to hear from the State now.
MR. FOGLEMAN: Your Honor, the State is prepared today to put on evidence in regard to this motion to transfer to Juvenile Court. We submit that based on the standards that the Court is to follow pursuant to Arkansas Code Annotated Section nine twenty-seven three eighteen that evidence is necessary and you cannot simply take Mr. Ford's statements on their face, but evidence is required as to things and we are prepared today to go forward with evidence in this matter.
THE COURT: All right. Are you ready to proceed at this time?
(WITNESSES BEING SWORN AT THIS TIME)
MR. FORD: Your Honor, we would request that this hearing be conducted in-camera by virtue of the fact that this is a consideration of a juvenile offense. He is a juvenile, and the Juvenile Code provides him with certain protections regarding the openness of the courtroom and openness of the record that are not (735) afforded to adult defendants and in light of the fact that we are making a consideration of evidence under the Juvenile Code, we would ask that it be heard in-camera.
THE COURT: I'm going to grant that motion. You're going to have to clear the courtroom temporarily.
(WHEREUPON, THE FOLLOWING MATTERS WERE HELD IN-CAMERA)
THE COURT: The reason I closed this hearing is that if I elected after hearing your proof to remove the case to Juvenile Court, even though this is a hearing in Circuit Court, that that evidence that would have been adduced would be made a public record more or less and their rights under any hearing by the Juvenile Court would therefore be abridged so I'm going to conduct the evidentiary portion of the hearing in camera.
MR. FOGLEMAN: Your Honor, is this just as to Jason Baldwin, or are we doing Jessie Misskelley, too?
THE COURT: Right now I'm considering it just to Mr. Baldwin.
MR. FOGLEMAN: Okay.
JERRY DRIVER
having been first duly sworn to speak the truth, the whole truth (736) and nothing but the truth, then testified as follows:
DIRECT EXAMINATION
BY MR. FOGLEMAN:
Q. Will you please state your name and occupation?
A. Jerry Driver. I'm the juvenile officer for Crittenden County.
Q. How long have you held that position?
A. Ah, little over a year and a half.
Q. At my request did you bring with you the entire file related to Charles Jason Baldwin?
A. Yes, I did.
Q. Is that file kept in your office and under your supervision and control?
A. Yes, it is.
Q. Would you look at that file and tell me the first offense that Mr. Baldwin had in Juvenile Court?
A. (EXAMINING) First offense that he had in Juvenile Court was a breaking and entering and criminal mischief and that was on -- let's see -- one thirteen of ninety.
Q. January 13, 1990?
A. Yes, sir.
Q. And do you know about -- was it a felony criminal mischief or misdemeanor?
A. It as a Class C felony.
Q. And what was the result of that? (737)
A. He was placed on probation and ordered to pay restitution. There's also a note in this that he was ordered to the Arkansas Boys Training School pending payment of restitution.
Further along, there is a motion to rescind his probation because he had not paid his restitution.
Q. Were there subsequent offenses to that?
A. The next offense that we have on Mr. Baldwin is a shoplifting offense which occurred fifteen November of '92.
Q. And how was that offense handled?
A. That was handled through a diversion agreement.
Q. And in the diversion agreement does the defendant sign -- or the juvenile sign a statement acknowledging their commission of the offense?
A. Yes, sir, they do.
Q. Did he do that in this case?
A. He did so.
CROSS EXAMINATION
BY MR. FORD:
Q. Mr. Driver, may I look at that file?
A. Yes, sir. (HANDING)
THE COURT: Just for my notes, was Mr. Baldwin sixteen at the time of the alleged offense?
MR. FORD: Yes, sir. He's sixteen now.
THE COURT: What was his age at the time of the offense? What is his date of birth? (738)
MR. FORD: Four eleven seventy-seven, your Honor. He was sixteen at the time of the commission of the alleged offense.
MR. FOGLEMAN: Sixteen at the time of the alleged offense.
BY MR. FORD:
Q. At the time Mr. Baldwin executed the diversion agreement which you made reference to, which copy was in the file -- actually he entered that diversion program or signed these forms January 22, 1993. Is that correct?
A. Yes, sir.
Q. On that last page, there are signatures there which purport to be Jason and how is that signed -- his signature?
A. Jason Baldwin.
Q. Is there a parent's signature?
A. (EXAMINING) Yes. Gayle Grinnell.
Q. Is there an attorney for Mr. Baldwin at that proceeding?
A. No, sir.
Q. Did an attorney sign that agreement for diversion along with Mr. Baldwin?
A. No, sir.
Q. Was he represented by counsel at any time prior to the entry of that diversionary agreement?
A. No, sir, he waived his right.
Q. Is that -- is that document a waiver of rights represented (739) by that same form?
A. No, sir.
Q. Do you have that? Can you show me where he waived his right to counsel prior to the entry of the diversionary agreement?
MR. FOGLEMAN: Judge, the commotion back a minute ago -- the reporter with the Commercial Appeal was telling the officer that their attorneys had filed a motion to prohibit this kind of hearing, and I just wanted to bring that to the Court's attention.
THE COURT: Okay. Well, that will be taken up after we hear this.
BY MR. FORD:
Q. When a juvenile is subjected or made available for the diversionary program -- once he enters that diversionary program -- he is not adjudicated --
THE COURT: It is not an adjudication but it is a juvenile record and for the purposes of this hearing the Court is going to consider it.
MR. FORD: I understand that. I just want to make it clear that it is not an adjudication.
THE COURT: All right.
BY MR. FORD:
Q. The breaking and entering and criminal mischief. You indicated that he was sentenced to the training school but that (740) sentence was suspended or placed on probation provided he pay restitution and that in the event he failed to pay restitution he would be sent to the training school, and subsequent thereto there was a petition filed to revoke that probationary sentence by virtue of his failure to pay the restitution. Is that correct?
A. I cannot testify to that directly because I wasn't there at the time. That is what the record indicates.
Q. Was he represented by counsel at that time -- at that first proceeding?
A. He would have been in court.
THE COURT: Are you raising that as an issue like the DWI convictions that they can't be considered unless there was counsel present? Is that what you are --
MR. FORD: Your Honor, I have not seen this file so I'm --
THE COURT: I just asked if that is why you are raising that question.
MR. FORD: Your Honor, if he -- I feel like if he is or not represented by counsel, as a juvenile could have an impact on the Court's consideration as to whether or not he had a sufficient criminal record. He may not have been guilty of these things at all but felt like in all things considered -- (741)
THE COURT: That might be a good point to raise if and when it got to a jury question as to whether or not it was admissible as to lack of counsel, but I'm not sure at this particular aspect of the hearing whether or not it is really important.
MR. FROD: Your Honor, I think it could go to --
THE COURT: All right. Go ahead.
MR. FORD: -- whether or not he had a substantial criminal history, your Honor.
BY MR. FORD:
Q. Did he have an attorney at that time?
A. He would have had one in court.
Q. Does the record reflect who that attorney was?
A. My record will not but the court record will.
Q. So you do not have records there --
A. No.
THE COURT: Let me ask - in Crittenden County does the public defender not appear routinely at all juvenile hearings to represent a juvenile charged with a juvenile felony offense?
THE WITNESS: Yes, sir, he does.
THE COURT: And that is Mr. Montgomery or someone from his staff?
THE WITNESS: Yes, sir.
THE COURT: All right. (742)
BY MR. FORD:
Q. Did he have a trial or did he enter a plea to the petition?
A. Again, that would probably not be indicated in these records. It would probably be in the court records.
Q. So you're not able to tell us whether he admitted his delinquency or whether he contested his delinquency?
A. No, sir, I could not.
Q. Nor are you able to determine whether or not he -- you don't have any information other than what you have told me --
A. I have my court records.
Q. Is there any other information that you have with respect to his juvenile involvement other than these two you have just told us about?
A. Other than the statements that were given at the time this happened. We do have those.
Q. Was he adjudicated a juvenile delinquent at that hearing in 1990?
A. Yes, sir.
Q. Was his probationary status ever revoked?
A. I believe the record in here shows it was. (EXAMINING) It says he did violate the rules of his probation by failing to pay restitution by this Court on February 26, 1990. That was filed on February 21st, 1991.
Q. Was there --
A. I don't see a further probation order in here. (743)
Q. -- anything to indicate that he was ever given additional punishment available under the Juvenile Code?
A. Not to my knowledge.
Q. Never sent to the training school?
A. I take that back. In the same paperwork it says on his -- yes, he was adjudicated in that case. He was adjudicated and placed on further probation and in that probation order it said, "Ordered sent to the Boys Training School pending payment of restitution."
That is on the violation of probation. The original one did not send him to the training school.
Q. The original one was purely probation?
A. Right.
Q. The second one was probation but if you violate it, you go to the training school?
A. Well, it doesn't say that. It says that he was ordered to the training school pending payment of restitution.
Q. Does the record ever indicate that he was sent to the training school?
A. No, sir. And I wouldn't have that record.
(WITNESS EXCUSED)
MR. FOGLEMAN: We would need him on Mr. Misskelley's motion.
MR. STIDHAM: Your Honor, for the record we object to us having to proceed with this motion today. (744) We are simply not ready. I would submit to the Court again the discovery process is still ongoing. We are receiving information from the prosecutor -- still investigating -- our investigation is not completed. Our research is not --
THE COURT: You're not even going to have to do discovery in essence if this case is transferred to juvenile. I cannot see - what is the specific reason why you cannot hear the motion to transfer right now?
MR. STIDHAM: Your Honor, we are not prepared to bring it today. We don't have any witnesses here. We don't have any evidence to present. His mental evaluation --
THE COURT: Are you raising his mental capacity?
MR. STIDHAM: Your Honor, not as a defense to the charges that are filed but as a factor to be considered by the Court in ruling on the motion to transfer.
THE COURT: I'm going to enter an order having him taken immediately to the first available location in the State Hospital system to conduct a mental evaluation for his fitness to proceed.
MR. STIDHAM: We object to that --
THE COURT: That will be overruled.
MR. STIDHAM: Judge, according to -- (745)
THE COURT: If you are even suggesting that that is a factor for this Court to consider, then this is going to be my ruling.
MR. STIDHAM: Judge, according to nine twenty-seven three sixteen -- excuse me -- three eighteen -- the factors to be considered by the Court -- seriousness of the offense, whether violence was employed, whether the offense is part of a repetitive pattern of adjudicated offenses. Rehabilitation, prior history, character traits, mental maturity.
Mental maturity does not suggest his fitness to proceed is in question nor does it suggest that we intend to --
THE COURT Does that raise his competency to proceed -- mental maturity?
MR. STIDHAM: No, your Honor. It simply says what is his maturity and what is his --
THE COURT: Are you alleging and portraying to the Court that he doesn't have sufficient mental maturity to understand the nature of the proceedings, aid and assist in his defense?
MR. STIDHAM: Not that this point, your Honor, no.
THE COURT: All right. What is the problem of going forward?
MR. CROW: Your Honor, one of the elements of (746) mental maturity does deal -- does not deal with his competency to go forward -- it does deal with -- as this is a juvenile case -- not necessarily his chronological age but his mental maturity and there fore --
THE COURT: I'm asking you gentlemen as officers of the Court who have had several weeks now to deal with him -- are you telling me you are having a problem with him understanding your questions, you advice?
MR. STIDHAM: Judge, as an officer of the Court, I would submit to the Court that as of today, October 19th, I'm convinced that Mr. Misskelley is of limited intellect. I don't know what his mental capabilities --
THE COURT: I don't think you or me either one are going to be able to find out unless we send him to someone who calls themselves an expert in that area. whether or not they can do it or not, I don't know, but we usually accept it in court.
MR. STIDHAM: Your Honor, that is an issue that I would like to raise for myself and I would like to have the possibility to have a forensic evaluation done at our expense.
Obviously he is indigent, and we would ask the (747) Court to pay that for, but I know what the Arkansas law is on that issue. Arkansas law says he goes to the State Hospital. I object to him going to the State Hospital because I don't think the people at the State Hospital are qualified to render a forensic evaluation.
THE COURT: If you want a forensic evaluation on his mental capacity done, I'm going to send him to the State Hospital. I will permit you to have an outside examination done if you choose to after seeing that report. I may even order the county to pay for it.
MR. STIDHAM: We will have an opportunity for an independent evaluation?
THE COURT: Yes, sir, after you have had an opportunity to read the results and if you still feel it is necessary, then I'm going to allow you to do it but if you are raising that right now, then I'm going to order that evaluation conducted as soon as possible, and I am going to ask the prosecutor to contact a local regional health office and see if the short type examination can be done, whether they can give us an opinion whether he needs the 30 day evaluation. All of that time will be charged against Mr. Misskelley.
MR. STIDHAM: Your Honor, we didn't ask for it. (748)
THE COURT: If you are raising it, you're asking for it.
MR. STIDHAM: We haven't raised it yet.
THE COURT: Maybe I'm misunderstanding what you're telling me then.
MR. STIDHAM: Your Honor, if I may have a few minutes to find the statute --
THE COURT: I'm looking at nine twenty-seven three eighteen.
MR. STIDHAM: The code provision with regard to when the Court orders mental evaluation and that deals with the insanity defense. The thing I'm concerned about, Judge, is the prejudice that will result to the defendant, Mr. Misskelley, when the press starts printing news reports tomorrow that the court has ordered a psychiatric evaluation of Mr. Misskelley.
THE COURT: I don't know that that even attaches any stigma to anyone any more.
MR. STIDHAM: Judge, what I'm merely saying is I would like to have the opportunity to at least finish the discovery process, to conduct some --
THE COURT: What is it you want to do? What additional discovery are you requesting of the State?
MR. STIDHAM: Your Honor, I filed a motion to conduct the discovery deposition of the officers that (749) interrogated Mr. Misskelley. I have asked to look at the police files involving similar crimes from around the country.
Judge, our defense is going to be that Mr. Misskelley wasn't there and that this confession was coerced and involuntary.
Judge, we have the right under the law to examine the police files with regard to similar crimes. There is a recent Supreme Court decision. Zinger versus State, that outlines the admissibility of evidence of similar crimes. There may not be anything out there, but we at least have the right to look through that.
Also, your Honor, the police are in possession of videotapes of two suspects who left West Memphis days after the homicides and who flunked polygraph examinations when interviewed by police in Oceanside, California. We haven't seen those yet. We've got to look at those. The prosecution has agreed to let us view that information.
There's still a lot of work to be done, Judge. We are still only five months away from the actual homicides them selves. We have not had a chance to conduct our examination and research this thing properly.
THE COURT: Are you objecting to a speedy trial? (750)
MR. STIDHAM: Judge, if I have to ask for a continuance, I will certainly do that to protect my client's interest. I don't --
THE COURT: How much time are you asking to continue this hearing?
MR. STIDHAM: Judge, I'd like to have, well, first of all that probably would depend on whether the State is going to push for a trial date for us in December or January like it indicated. Judge, we don't think we can be ready. We like the February 21st court date, but I understand the problem it is going to impose upon the State -
THE COURT: Your court date is going to be January 18th if I don't rule on your other motions to the contrary. If I rule to transfer it if and when you are ready for me to hear it, then of course that date won't be applicable. But it is going to be January 18th through the 25th.
MR. STIDHAM: Judge, can we have sixty days if you're going to impose a trial date on January 18th?
THE COURT: No, sir, you cannot have sixty days. Today is the 19th of October. I'm going to give you until the 16th of November and at that time I'm going to hear your motion to transfer, and I am either going to order a psychiatric evaluation on that date or if (751) the State asks for it earlier, I will order it and I am going to continue it on your motion -- the 16th -- and that delay specifically is going to be charged against your client.
MR. STIDHAM: Yes, sir, your Honor. I'd like the record to reflect that we didn't ask for an evaluation.
THE COURT: You're asking for a continuance and that continuance could very well bring up the necessity of a psychiatric evaluation which would then probably take another thirty days so I don't know what else to do. I'm trying to give you as much latitude as you want. I will continue it to the 16th, and you are going to be directed to appear in Osceola at 1:30 for a hearing on the motion to transfer to juvenile and any other applicable motions that need to be heard in Mr. Misskelley's case at that time.
MR. FOGLEMAN: Your Honor, there was an evaluation in '87. It is kind of dated but there was an evaluation in '87. We have the report.
MR. STIDHAM: On Mr. Misskelley.
THE COURT: In regard to your motion for discovery, gentlemen, is there any reason why you cannot give him all that stuff?
MR. FOGLEMAN: Your Honor, on the other crimes (752) there is a concern because these are unresolved crimes and it is not that they are related to this one. It is just that they are unsolved child murders from around the --
THE COURT: I'm going to order you to let them review those files, and they are going to be ordered and directed that they are not to disclose any information that may be derived from those files, and you will not be permitted to utilize it in court unless you first seek permission of the Court and demonstrate to the Court that it has some substantive value in this particular case.
MR. FOGLEMAN: Your Honor, could you give a specific time?
THE COURT: Before the 16th of November.
MR. FOGLEMAN: I know but I mean a specific date for that to be done because the officers can't be sitting around waiting for them to come --
THE COURT: You gentlemen understand that I don't want any notes given to newspapers. I don't want any conversation with anyone. You can review it and if you find some relevant evidence to this case, then of course you will be permitted to use that. I don't have any idea what is in it.
MR. PRICE: Your Honor, would that apply to all (753) three cases?
THE COURT: Sure.
MR. STIDHAM: Your Honor, in our motion we suggested that the Court could solve the State's problems by issuing a protective order to that effect. We certainly have no --
THE COURT: I haven't read your motion but that's sure what I'm going to do. This will apply to all parties.
MR. FOGLEMAN: Judge, is this for reviewing the information or providing copies?
THE COURT: Well, again it seems to me it would be easier for you to go up there and peruse through it if they give you a place to look at it. How much is there?
MR. GITCHELL: Several cases.
MR. STIDHAM: Judge, it seems like we could make photocopies, go back to the office and analyze it. Obviously if we are under a protective order -
THE COURT: I'm going to let you copy the ones that you think might lead to or produce relevant evidence.
MR. STIDHAM: Your Honor, the second prong of our motion deals with we have asked the State to allow us to examine the personnel files of the interrogating (754) officers.
Again, we have filed a motion to suppress and the nature of our motion to suppress is that the two statements made by Mr. Misskelley are involuntary.
THE COURT: Well, officers are not on trial, but I understand the nature of your defense to be that it was a coerced confession, and you're looking to see if there are any disciplinary actions against those officers for coercion against detainees?
MR. STIDHAM: I want to know whether they beat up an old lady last year, whether they --
THE COURT: I'm going to do this. The personnel files -- and certainly the officers are not the subject matter of this trial -- I will allow you in the presence of the prosecution attorney and the chief of police to physically review the files and make handwritten notes. But again you're not to reveal in any way or transmit any information pertaining to those officers without prior written Court approval or you will be dealt with severely by the Court.
MR. STIDHAM: I understand, your Honor, and in our motion we asked that a protective order be issued.
THE COURT: I will do that and, again, you're not going to be permitted to utilize that in Court until I have an in-camera hearing as to the relevancy of those (755) matters.
MR. STIDHAM: Certainly, your Honor.
THE COURT: And you will not be allowed to photocopy any piece of their personnel files. You may make your handwritten notations and again the disclosure of those to anyone and by any source is going to be looked after by the Court very severely. I mean I'm going to find out who disseminated it and then I'm going to deal with you.
MR. STIDHAM: Judge, that won't be a problem.
THE COURT: All right. I will permit that under those conditions.
MR. DAVIS: Your Honor, what I would like to do is be sure and write a precedent as to an order regarding those motions in a timely fashion.
THE COURT: Fix a precedent for that order, and I want it by the end of the week, and I want you to deliver it to the prosecutor to approve and then mailed to me.
MR. STIDHAM: Your Honor, that leads us to the third prong of our problems with discovery.
THE COURT: All right.
MR. STIDHAM: I filed a motion to take discovery depositions of interrogation officers. At the September 27th hearing the Court stated that if we (756) could find some authority that we could present this to the Court. We have found some authority in Indiana as well as a U. S. Supreme Court case which is Wardius versus Oregon.
Basically, your Honor, the Wardius case the Supreme Court said that discovery is a two-way street, that the defendant should have the same rights to conduct discovery and investigate that the State enjoys.
Also, I would like for the record for the Court's purpose of reviewing the motion read a portion of the Wardius decision into the record.
MR. FOGLEMAN: Your Honor, I thought this was something we were not going to discuss today since we had only been provided that today and have not had a chance to have any kind of response.
THE COURT: What I will do on this is you can send me your brief on this po9int and I will decide it later.
MR. FORD: Your Honor, I would like to state on the record that we have previously filed -- it was discussed at the 27th hearing -- our desire to take a discovery deposition of the -- Inspector Gitchell, Detective Ridge and Detective Mike Allen.
THE COURT: And I think at that time I ruled that (757) I would make them available to give their statement to you if they chose to do so.
MR. FORD: Your Honor, what I think the Court stated -- I think that's where Dan is coming from -- is that led to a remark, "If you can find some authority to allow them to take their sworn statements the way that the prosecutor can," that you will do that. I think that's why we are here.
THE COURT: I'm going to allow the prosecutor an opportunity to brief that matter and respond before I rule on it. So let's move on to something else.
MR. STIDHAM: Your Honor, may I read this part of the opinion into the record assuming we will have another chance to make arguments?
THE COURT: Go ahead.
MR. STIDHAM: Your Honor, the Court in Wardius held that, "In the absence of a strong showing of state interest to the contrary, discovery must be a two-way street. The state may not insist that the trial be run as a search for the truth so far as the defense witnesses are concerned while maintaining poker game secrecy for its own witnesses."
Your Honor, we submit that we should be entitled to do the same that the State has the right to do, and we cannot prepare for an adequate defense if we don't (758) have an opportunity to discuss this with the officers under oath.
The Indiana courts have recognized, your Honor, that this is a substantial right of the defendant and that they routinely grant defendants authority to conduct depositions of the officers and there is a case -
THE COURT: This is not Indiana or California so -- I will listen to what the State has to say and then rule on that. I have ruled on that same issue previously and I am probably not inclined to change my rulings from what I have in the past. Anyway, brief it and let me see it.
Call your next witness.
MR. FOGLEMAN: Bryn Ridge.
BRYN RIDGE
having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:
DIRECT EXAMINATION
BY MR. FOGLEMAN:
Q. Will you please state your name and occupation?
A. Bryn Ridge, detective for the West Memphis police department.
Q. Did you participate in the investigation of the disappearance of the three murder victims on May the 5th, 1993? (759)
A. Yes, I did.
Q. Were you present when the three victims were discovered?
A. Yes
Q. If you would, describe briefly to the Court the condition of the bodies, where they were found and the manner in which they were found?
A. The bodies were found in a wooded area known as Robin Hood which is on the northern limits of West Memphis between a residential neighborhood and the expressway -- I-40.
Q. Is it in a wooded area?
A. Yes, it is.
Q. Specifically where were they found?
A. In a ditch in water.
THE COURT: Just a minute.
(REPORTER FROM THE COMMERCIAL APPEAL ENTERING COURTROOM)
THE COURT: I'm not going to let you come in now. I told the officers that I would let the attorney come in and then I'd rule on it. I'm considering this a matter that could potentially be in Juvenile Court and, therefore, it is subject to be closed. As soon as we finish this, I'm going to open it up and everybody can come back in.
MR. SULLIVAN: Our lawyers are on the way.
THE COURT: When they get here, I will hear it. (760)
MR. SULLIVAN: Thank you. (EXITING THE COUTROOM)
THE COURT: Go ahead.
BY MR. FOGLEMAN:
Q. There were found in water in a ditch?
A. Yes.
Q. Approximately how deep was the water?
A. Two to two and a half feet deep.
Q. Were the bodies of the victims visible from out of the water?
A. No, sir.
Q. How were they discovered?
A. A shoe was found floating in the water and a boy scout cap was found floating in the water. As officer Mike Allen approached those items that were floating in the water, he found-- he had struck something with his foot.
Q. In the water?
A. Yes, sir When he raised his foot, the naked body of the first victim was located.
Q. Were the three victims then removed from the water?
A. Yes.
Q. Were they clothed?
A. No, sir.
Q. Did any of them have any clothing on?
A. No clothing except the shoestrings they were tied with. (761)
Q. How were they tied?
A. Hand to foot on each side. The right hand was tied to the right foot at the ankle. The left hand was tied to the left foot at the ankle.
Q. Was there any evidence of violence?
A. Yes
Q. Describe for the judge the evidence of the violence.
A. All of the victims showed wounds to the head, face. There were lacerations, contusions. There was bleeding from the nose and the ear of the first victim. There was cuts to the side of the face of the second victim.
Q. When you say "cuts," what do you mean? Just a few little pick marks, or what do you mean?
A. No, sir. It was serious cuts that were five to five and a half inches long which just exposed part of what I call the jawbone, in that area. One of the victims was as if his penis had been removed. My terms, the penis was removed. There were pick marks all over the bodies.
Q. When you talk about "pick marks," what are you talking about?
A. It appears like a double edge knife will be used to repeatedly stab -- peck at the skin of the victims with entry having been gained to the flesh.
Q. Where were those little stab wounds?
A. Well, on the one with the cutting to his face, it was like (762) all away around the wound. He had marks on his eyelids. The one that the penis was removed was all the way around -- was about a foot in diameter around the genital area.
Q. Are you talking about just three or four of those stab wounds?
A. No, sir. I would call it hundreds.
Q. Did you bring photographs of the scene there?
A. Yes, I did.
Q. Did you at my request have those photographs with you?
A. Yes.
MR. FOGLEMAN: Your Honor, we will mark these as one exhibit.
MR. FORD: Your Honor, these are introduced for the purpose of this hearing only and not for the purpose of the trial?
THE COURT: Yes. They may be received for purposes of this hearing.
(STATE'S EXHIBIT SIX IS RECEIVED FOR PURPOSES OF THIS HEARING)
MR. PRICE: Judge, is it the Court's ruling that this being an in-camera proceeding will prevent anyone from making a copy of these exhibits or getting a transcript of the court reporter.
THE COURT: That's correct.
BY MR. FOGLEMAN: (763)
Q. I know they have been received but do they fairly and accurately portray the victims as they appeared to you that day?
A. Yes, sir.
Q. The victims were how old?
A. Eight years old.
Q. In the course of your investigation did you participate in taking a statement from one Jessie Misskelley?
A. Yes, I did.
Q. Who did he tell you did the stabbing?
MR. FORD: I object, your Honor, because it is hearsay. It is hearsay. He's asking what did Jessie Misskelley say.
THE COURT: Gentlemen, I have already heard that testimony from the statement that I hear that was attributable to Mr. Misskelley at the last hearing so I will sustain your objection, but I'm not going to discount what I have already heard.
MR. FORD: Is the Court going to consider what it heard at a previous hearing-
THE COURT: I certainly am -
MR. FORD: -- in terms of this issue?
THE COURT: Yes, sir.
MR. FORD: Your Honor, we object to that consideration as to things outside the record.
THE COURT: The sworn testimony that is a matter (764) of record is what I'm speaking of.
MR. FORD: I'm talking about --
THE COURT: I'm not going to consider anything that's outside the record at all. I'm only going to consider what is before the Court and what has been before the Court under a competent record and sworn testimony.
Anything else of this witness?
MR. FOGLEMAN: Not for the State, your Honor.
(WITNESS EXCUSED)
MR. FORD: Your Honor, let me further clarify my record. The evidence that the Court is going to consider was adduced at a hearing with respect to the admissibility of certain evidence that was taken from the residence of Mr. Baldwin pursuant to a Search Warrant. That Search Warrant had to be corroborated based -- it had to have some evidence to establish that.
Although that evidence comes in for the purpose of that, that does not make is admissible.
THE COURT: What are you telling me? You don't want me to consider the testimony that I heard at the Search Warrant hearing that I have already heard?
MR. FORD: Judge, whether or not a statement is admissible determines whether or not a neutral and (765) detached magistrate had reasonable cause to issue a warrant and -- the Court obviously has to hear what he was told.
THE COURT: That's right.
MR. FORD: In order to do that, hearsay statements invariably must come in but in order to determine whether or not under the Juvenile Code this juvenile --
THE COURT: I told you I wasn't going to allow questions to be asked of this witness, and I don't think he did ask it.
MR. FORD: If the Court is going to elicit -- if the Court already knows the answer but sustains the objection but listens to it anyway on the other side of its -- you know one ear --
THE COURT: Call your next witness. I will just take under consideration what I hear today.
MR. FORD: You are only going to consider what you hear today?
THE COURT: Only what I hear today on this particular issue.
MR. FOGLEMAN: Your Honor, that's all we have.
THE COURT: Any witnesses?
MR. FOGLEMAN: Actually, your Honor, it is their burden. They are supposed to go forward. (766)
MR. FORD: Your Honor, based on Arkansas Code Annotated nine - twenty-seven three eighteen, "Factors that the Court should consider in determining whether or not a case should be transferred are the seriousness of the offense and whether violence was employed by the juvenile in the commission of the offense."
Your Honor, clearly, by the photographs you have a serious offense. Homicide -- serious injuries in addition to death on three minor children eight years of age.
However, there's been no evidence presented here today on this record that indicated in any way violence was employed by this defendant.
Even taking into consideration other evidence that was presented which we object to, your Honor, that evidence that has been presented in no way indicates Jason Baldwin performed the violence as opposed to an allegation of his mere presence and complicity as opposed to whether or not he was the person who employed the violent force. We have no evidence at either hearing.
Secondly, "Whether the offense is part of a repetitive pattern of adjudicative offenses which would lead to the determination that the juvenile is (767) beyond rehabilitation under existing rehabilitative programs."
He has never been at any time placed in a rehabilitative program. He has been on probation. He has never been sent to the training school. This being charged with breaking and entering and criminal mischief is not part of a repetitive pattern to go from there to homicide.
Lastly, "The prior history, character traits, mental maturity, and any other factor --"
Your Honor, we don't have anything other than the fact that a very serious offense occurred, and that of that very serious offense Mr. Baldwin stands accused.
The three factors in the code indicate this matter should be transferred to Juvenile Court and we so ask.
THE COURT: The Court will take a five minute recess. You can bring everyone back in, and I will announce my ruling.
(RECESS)
(RETURN TO OPEN COURT)
THE COURT: Mr. Stidham, in regard to your discovery motion, you are to prepare the precedent for those rulings.
MR. STIDHAM: Certainly, your Honor. (768)
THE COURT: With regard to Mr. Misskelley's motion to transfer to juvenile, that will be continued on defense motion to November 16th, at 1:00 p.m. in Osceola.
Gentlemen, I also need the change of venue order.
MR. FORD: Your Honor, I have an order for Mr. Baldwin for the Court today.
THE COURT: With regard to Mr. Baldwin's motion on which the Court just heard testimony, it will be the Court's finding that he is not entitled to a transfer to Juvenile Court.
I find that the seriousness of the offense was most serious, grievous, heinous. The fact that there were three eight-year-old boys murdered in the fashion that the pictures depicted to the Court, the violence exhibited -- that certainly alone is enough to warrant that this charge be heard before a jury in Circuit Court.
I'm further making a finding that he was sixteen years of age at the time, that there had been previous juvenile considerations that meet the statutory test. That there's no apparent prospects that rehabilitation would be of any avail and that the findings that I'm making here today clearly convince the Court that this is a matter that should be tried in the adult court (769) before a jury and that the test of clear and convincing evidence is certainly met here.
