OSCEOLA, ARKANSAS, NOVEMBER 16, 1993, AT 1:00 P.M.
THE COURT: The Court is ready to proceed. Mr. Ford, did you have any matters you wanted to present to the Court today?
MR. FORD: I told the Court in chambers that I did not have anything that I was aware of that I need to present to the Court, but since I have walked in here I would like to state on the record that we have previously addressed to the Court how security was going to be maintained, and they brought my client in here shackled at the hands, feet and about the waist, and I object to that -- bringing him in here in front of the media shackled the way the Court has addressed for that not to be done. (826)
THE COURT: I understand your objection, and I had advised the officers when they asked me about security measures that it was fine to bring them up to the courthouse or the courtroom in whatever security restraints they felt necessary. Once they were brought into the courtroom they were to remove all restraints except leg irons. That was the Court's direction, and your objection will be noted.
MR. FORD: He sits here right now fully shackled.
MR. STIDHAM: Your Honor, for the record, we'd like to note our objection as well. We had discussed this issue previously at the other hearings, and Mr. Misskelley is presumed innocent until proven guilty, and I believe this treads on that right of his.
THE COURT: I have had the restraints removed except for the leg restraints, and in view of the attention this case gets I do not feel it is unreasonable. I'm going to allow the law enforcement officers to carry out the security measures that are not in my mind unreasonable. I don't find that to be unreasonable.
MR. STIDHAM: For the record, I would like to ask that the Court order them to remove the shackles from his ankles.
THE COURT: When we have the trial, I will have (827) that done.
MR. STIDHAM: The Court is going to deny that motion today?
THE COURT: Yes, sir. We are having to move these people around, and it is very difficult to coordinate those things, going to different counties, different sheriff's departments, and I am going to allow them to carry out what they consider to be proper security. You have made your point.
What I just discussed with you in the back room -- and it can be made a part of the record now -- that the orders that the Court has previously entered -- I want those orders to be approved by counsel for the State and counsel for the defendant and circulated and signed off on and then submitted to the Court for the Court's signature. Any order that doesn't have the signature of each or at least one of the attorneys for the defendants and the State, then I'm not going to sign them.
So we've discussed objections that each of you might have had to a precedent prepared by either the State or the defendant's lawyer, and I am going to have you discuss those modifications, and you can submit the order to me where each of you have signed off on.
MR. STIDHAM: Your Honor, for the record, I (828) discussed my proposed precedent for September 27th with Mr. Fogleman. He has no objections to that. Your Honor has already signed it.
THE COURT: Have them sign off on it and then file it.
MR. DAVIDSON: Your Honor, is it necessary to have written orders for each of the rulings you have made from the bench?
THE COURT: Not as far as I am concerned because I think I'm going to remember, but for a clean record, it probably would not hurt to have a precedent prepared and have each of you sign it and let me enter it.
MR. DAVIDSON: The rulings that have been made that specifically apply to the other defendants -- do those rulings also apply to Mr. Echols?
THE COURT: That's hard to say because I think you have joined in some of those. Some of them it may apply, and some of them may not. I can't tell you offhand which ones did and which ones did not. I think probably some of the procedural rulings would apply to all the defendants.
MR. WADLEY: But for the motion -- objection raised by Mr. Ford, we would have no other motions today to present on behalf of Mr. Baldwin. (829)
THE COURT: Mr. Baldwin will be remanded back to the sheriff, and you are free to go.
MR. DAVIDSON: We do not have any specific motions.
MR. FORD: We'd like for Mr. Baldwin to remain because there may be some things stated here today that could be of some benefit to him or us. I think he ought to be able to stay through the entire proceeding.
THE COURT: That's fine with me.
MR. DAVIDSON: Same with us, your Honor.
THE COURT: All right. That will be fine.
MR. FOGLEMAN: The record should reflect in regard to Mr. Stidham's joining in Mr. Ford's objection -- that Mr. Misskelley does not have the waist chain or handcuffs on him.
THE COURT: Well, I understood that he was really the only one we were to deal with today, and I directed the sheriff not five minutes before we came in here that he could leave the leg chains on, and I see that he's removed the other restraints. Other than that, I'm not going to get involved in their security procedures. When we have the trial, all restraints will be removed, but we are just going to be here for a short period of time today. (830)
I guess the first motion to take up is your motion to transfer?
MR. CROW: Yes, your Honor. The only thing to today will be the motion to transfer to Juvenile Court.
MR. STIDHAM: Your Honor, this is a matter which is going to discuss some possible -- may I approach the bench, your Honor?
THE COURT: All right.
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH)
MR. STIDHAM: Judge, just as we did at Jonesboro the other day, I assume the State is going to want to introduce testimony about past juvenile history. Due to the fact that the media are in court today, if they report on his prior juvenile record, then any possible --
(THE COURT AND MR. STIDHAM SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
MR. STIDHAM: We would ask that the Court impose the same restrictions that it did in Jonesboro.
THE COURT: What I did the other day was restricted the press from testimony that involved substantive facts and information about the crime scene --
MR. FOGLEMAN: You totally excluded everybody (831) from the courtroom while the evidence was being put on. Of course, I didn't think that should have been done --
THE COURT -- I probably shouldn't have done it.
MR. FOGLEMAN: -- but once it was done, I'm afraid if we did it for one and not the other, I don't know what it would do.
MR. STIDHAM: One of the witnesses I have called to testify today --
(THE COURT AND MR. STIDHAM SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
THE COURT: Why don't we go as far as we can and if a sensitive issue come up, I'll exclude them.
(RETURN TO OPEN COURT)
THE COURT: Gentlemen, while I'm thinking about it, I need your fee statement from the time you were first appointed up to the effective date of the new statute and then I need them from then until now just for my purposes.
MR. PRICE: Judge, as to that point, there's a brief that I'll be filing today. I have had the chance to read the brief from the Attorney General's Office and also the Crittenden County Attorney. The only difference I have put in this argument is that the Court should also consider not only the effective (832) date of the act, which is July 1, 1993, but also should consider the effective date that the Capital Conflicts Office would be able to accept cases.
It is our position that although the act was effective July one, they were not functioning. They were not able to take cases. Miss Sallings, who is the head of that office, is still even as of today's date not accepting appointments in cases. They won't be accepting cases until the first of January. So we think the Court should also consider that --
THE COURT: When the time comes to rule on those matters, I will probably want testimony from her and I will read your brief.
MR. STIDHAM: Your Honor, basically what we are asking the Court to do today is transfer Mr. Misskelley's case -- his three charges of capital murder -- to Juvenile Court pursuant to statute regarding waiver and transfer which is Arkansas Code Annotated nine dash twenty-seven dash three eighteen.
We intend to introduce evidence today reflecting on the seriousness of the offense, whether violence was employed by the juvenile in the commission of the offense, whether there's a repetitive pattern of adjudicated offenses which would determine that the juvenile is beyond rehabilitation, and also we are (833) going to introduce evidence about Mr. Misskelley's prior history, his character traits and his mental maturity and ask the Court to transfer the cases to Juvenile Court.
MR. FOGLEMAN: Could we approach the bench?
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH)
MR. FOGLEMAN: Your Honor, if part of this hearing is to be held open, I think the whole thing needs to be open.
MR. STIDHAM: Your Honor, with the press here, I don't want them printing his prior juvenile history --
THE COURT: Let's go on and do it all and if we get to a point where you think it's going to be a problem, then raise it and I'll see what I can do.
MR. FOGLEMAN: Your Honor, I think it's unfair for them to show one particular side to the public and then close the doors and then show another side.
THE COURT: The reason I did it the other time was because if there was a possibility at all that I would transfer it to juvenile, then the juvenile hearing would have been closed. I've later reflected on that, and I'm not sure there's any real necessity for that. Because if I transfer it to juvenile, then any further proceedings will be closed.
MR. FOGLEMAN: That's why I say the whole thing (834) either ought to be closed or it ought to be open.
THE COURT: I think that's right. I'm just going to leave it open.
MR. STIDHAM: Your Honor, what about the media reporting on these incidences --
(THE COURT AND MR. STIDHAM SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
THE COURT: -- anything about that.
MR. STIDHAM: We could have an in-camera --
THE COURT: -- if you win, you don't have to worry about it.
MR. STIDHAM: Well, that's a big "if" right now, your Honor. Obviously, if I win, I'm not going to be concerned about it. If I don't, I'm going to be real concerned about it.
THE COURT: Bring it up again and I'll see what I can do.
(RETURN TO OPEN COURT)
DOCTOR WILLIAM WILKINS
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. STIDHAM:
Q. Will you please state your name?
A. William E. Wilkins. (835)
Q. What is your occupation?
A. I'm a psychologist.
Q. You practice in Jonesboro?
A. Yes.
Q. Tell the Court about your education and professional experience.
A. I have a Bachelor's Degree in psychology from the State University of New York, a Master's Degree in research methods from Bucknell University and a Ph.D. in psychology from Cornell University.
I taught for a number of years at the State University of New York. I taught for the University of Houston. I've been director of health at mental health centers. I have worked in the mental health section of a reform school. Ah, I ran a mental health section for the Native American tribes in Utah, Idaho and Nevada. Was clinical director at George Jackson hospital and have been in private practice in Jonesboro for five years.
I have written fifteen or twenty articles, most recently on ah, ah, false confessions, one on, ah, the recidivism in the juvenile justice system -- I'm sorry. In the adult justice system for the American Congress of Criminal Justice.
Q. You have over twenty years experience as a licensed psychologist?
A. Yes. (836)
Q. Can you tell us about any professional groups or associations that you are involved with?
A. I'm a diplomat in the American Academy of Psychologists Treating Addiction. A member of the, ah, American Congress of Forensic Psychology, the American Psychological Association.
Q. Do you have any hospital affiliations?
A. I don't at the present time because I don't do any hospital work anymore, but I have had in the past at Saint Bernard's Hospital in Jonesboro, at Greenleaf Hospital in Jonesboro, and other hospitals throughout the United States.
MR. STIDHAM: We'd ask that Dr. Wilkins be qualified as an expert in the field of psychology.
THE COURT: Do you want to take him on additional voir dire?
MR. FOGLEMAN: Not at this time, your Honor.
THE COURT: You may proceed.
BY MR. STIDHAM:
Q. Doctor Wilkins, can you tell the Court whether you have had an opportunity to meet the defendant Jessie Lloyd Misskelley, Junior?
A. Yes, I have.
Q. How much time have you spent with Mr. Misskelley?
A. I met with him on, ah, first time October 15th, again October 22nd and again on November 4th for a total of about 10 or 11 hours. (837)
Q. Could you tell the Court what type of tests were conducted on Mr. Misskelley?
A. We conducted tests. We also gathered a large variety of past information. For example, there was about eight or nine hundred pages of his school records, some previous psychological evaluations from mental health centers. Ah, in addition to that, myself, I did an interview, I did a mental status, I have also did a, ah, WAIS-R, MMPI-2, Wechsler Memory Scale, Bender Gestalt, House/Tree/Person, REY Auditory Verbal Learning Test, a Rorschach, a, ah, REY Auditory Verbal Learning Test -- I think I mentioned that -- some tests by Lawrence Kolberg measuring moral development and some tests by Goldschmidt and Bentley measuring, ah, ah, cog -- cog -- cognitive thinking levels.
Q. Did you also have an opportunity to meet with Mr. Misskelley's family?
A. Yes. Mr Misskelley, Senior and I met for two to two and a half hours.
Q. Can you tell the Court a little bit about Mr. Misskelley's mother?
A. Are you talking about his biological mother?
Q. Yes.
A. Jessie's biological mother left the family unit when Jessie was about four years of age. Jessie had no further contact with her until about a year and a half, two years ago, and at this point is reasonably marginal in her action system with her -- (838) with him.
Q. Did that abandonment have any psychological impact on Mr. Misskelley?
A. Ah, my sense would -- it -- it would because being a four-year-old child and mother leaving and not having any further contact. In fact Jessie knows even when he first met her again at age 16 that he no longer considered her his mother. He did not want to go see her. He did not want any contact with her. He did not view her as -- ah, psychologically as his mother.
Q. In your report you referred to a "dysfunctional child rearing system." Can you tell us a little bit about that?
A. Well, I think when -- when -- when we see a child whose mother abandons at age four, that ah, Jessie's father has had a, ah, alcohol problem. There have been substitute parents.
Jessie describes at times when he was a small child being left with various baby-sitters, one of whom regularly put his head in the toilet and flushed it on numerous occasions.
Ah, Jessie described a time, ah, of -- his school records do -- of a wide variety of, ah, recommendations from the school for Jessie to receive counseling because of his school problems, academic problems, behavior problems in school and so on and at no time was any consistent follow-up ever done with that.
That, ah, in fact at the time of the current crime was committed, Jessie's parents were separated, his stepmother and (839) father. They have since rejoined each other but that has been over the years separations and a wide variety of stepbrothers, half brothers and family systems that just would consistently rotate and change with a lot of moving from place to place.
Q. I want to talk about his brothers and other siblings. You mentioned that it was recommended that Jessie receive some counseling earlier. To your knowledge in any of the documents that you reviewed and your discussions with Mr. and Mrs. Misskelley, did he receive any of that counseling?
A. Ah, he had, ah, I think they may have gone for one session or two sessions at the mental health center in West Memphis and had a couple evaluations at different places but no ongoing consistent pattern of therapy.
Q. In any of his previous evaluations, Doctor Wilkins, was Mr. Misskelley ever diagnosed as being mentally retarded?
A. Yes, he was.
Q. Were any other members of his family been diagnosed as being mentally retarded?
A. He has a brother who is diagnosed as mentally retarded, at least that I know if. I don't know beyond that, but he has at least one brother who has been.
Q. Let's talk for a moment about Mr. Misskelley's IQ. Did you conduct some IQ testing on Mr. Misskelley?
A. Yes, I did.
Q. Could you explain to the Court your findings? (840)
A. I conducted a WAIS-R which is a standard IQ test for adults. Jessie had a full scale IQ of 72, with a verbal IQ
of 70, performance of 75.
Q. Why is there a difference between the verbal and the other?
A. Ah, it's -- it's -- it's not a -- an important, ah, in this case. Ah, the ah, the WAIS-R measures 11 different things and it is designed to measure a kind of global concept of what IQ is so there is a wide variety of different tasks and sub-task that are used.
Ah, they are divided into categories, one called performance and one called verbal. And the verbal tasks as indicated include verbal type things. Ah, ah, ah, information, vocabulary, arithmetic, those kind of things.
Performance are in terms of block design, puzzle completion, those types of tasks. And so that's -- that's the rationale.
Q. Was the IQ which you established -- were those consistent with previous IQ testing done on Mr. Misskelley?
A. Yes. In the past Jessie's had -- I think I remember three or four different testings prior to mine. Ah, IQ was always in the neighborhood of ah, 67, ah, 70, 73. It was a pretty consistent pattern.
Q. His IQ level -- what level of intellectual functioning does that place Mr. Misskelley?
A. Ah, according to the DSM3R he would be placed in the low (841) borderline range of intellectual functioning.
Q. What is the average IQ level?
A. Average intelligence level is one hundred with a normal range between 84 and 116, typically.
Q. Were you able to determine at what level Mr. Misskelley's reading and arithmetic and spelling skills were?
A. Ah, consistently throughout his educational records, Jessie has reached maximum level of about the second or third grade.
My current testing indicated third -- beginning fourth grade for those skills. He's never passed the Arkansas minimum standards tests. He's never, ah -- looking at previous -- from, ah, about ten different measurements over the years of a pretty consistent pattern of second, third or fourth grade level.
Q. In your report you refer to a measure of moral judgment or reasoning?
A. Yes.
Q. Can you tell the Court at what level Mr. Misskelley is in regard to this reasoning ability?
A. The concept of moral reasoning that I developed or that I used was developed by a fellow by the name of Lawrence Kolberg and comes from the work of Jean Piaget.
And basically what Kolberg argues is that -- is that people -- well, let me rephrase that. I'm -- let me do Piaget first. I have to do that to make Kolberg make sense.
What Piaget argues is that over the years people think (842) qualitatively different. In terms of intelligence what he's saying is that what we talk about in the WAIS-R and those kinds of measurement is that we talk about intelligence as being a -- a -- a- quantitative thing.
The whole Piagetan notion is that there is a qualitatively different kind of thinking, that young children think differently than adolescents and adolescents think differently than adults think.
Q. So what you're saying is that a three or four-year-old child would have a different type of reasoning ability or intellectual level than, say a twelve-year-old?
A. Yes. And what Piaget also argues and Kolberg as well is that -- is that -- it is -- it is -- it is not just being less able to do what adults do but it is qualitatively different than what adults do.
Ah, for example. Ah -- ah -- typically in adult thinking. In -- in adult problem solving. Adults make hypotheses about the world and then gather evidence to support or reject that hypotheses. If the evidence is not supportive, they change the hypotheses and file new ones.
In little children they make hypotheses about the world and gather evidence and when the evidence doesn't fit, they change the evidence to fit their hypotheses. That is, Piaget's from a book is the child's conception of reality. That is, that, children basically construct their own reality. (843)
Q. Doctor, would that be similar to an adult stepping outside on a cold morning and realizing it was cold and went back in to get a jacket and maybe a small child stepping out on the same day and, "Well, it is cold but I don't need a jacket."
A. Ah, no. It's -- it's -- um -- um -- it's more in terms of, ah, if you see a small child, three or four, and you say to them, ah, ah, "Don't eat any cookies before supper," and then you watch the child and he goes to the cookie jar and takes one out. He starts eating them. And you say to him, "I told you not to eat any cookies before supper." The child says, "I didn't."
Well, you have just watched him go and do it, okay, so if you explore that further, what the child is saying to you -- and the child's perception of reality is that -- is that, "I was hungry and got something to eat." And for a child, being hungry and getting something to eat is logically different than, "Getting cookies when you told me not to." Those are -- those are independent kinds of events for a child.
Q. Where does Mr. Misskelley fit into this?
A. Jessie tends to fit into the child thinking category. That is -- that is Jessie constructs reality on kind of about the same system that a six, seven-year old child would do. Ah, that, ah, you want tests or would that be helpful to show you samples?
Q. Are you talking about some of the tests? (844)
A. Yes.
MR. STIDHAM: Would the Court permit that?
THE COURT: Go ahead.
BY THE WITNESS:
A. Ah, ah, ah, let me bring out some little tokens here. (DEMONSTRATING) If we have, ah, a small child count the number of chips in each row, they'll count, "One, two, three, four, five six. One, two, three, four, five, six." Then if you ask a small child, "Which one has more in it?" The child will say, "This one," because it's longer.
If I take these out and spread them out even further -- the white ones -- and have them count them again, "One, two, three, four, five, six. One, two, three, four, five, six," and ask which one has more in it, they'll say, "This row does now."
That is -- that is -- that kids think in -- little kids think in terms of -- of -- of one dimension. It is longer, has to have more in it. And the fact that it has the same quantitative number, that is, six has no meaning to them.
That's what I was talking about earlier about -- about -- about longer has to have more in it. The fact that both rows have six in them to a child is totally meaningless. They only deal with it in terms of one dimension.
Another -- ah -- ah -- if we have -- have a small child take a ball of clay (DEMONSTRATING) -- I don't know if I'll have these quite equal -- but if you have them so that two of them (845) are the same equal sizes, and typically when you have little kids do it, they'll play back and forth until they get precise notions that they are both the same size. And then you say, "Yes, those are both the same size."
Then you do this (DEMONSTRATING) and you ask the child, "Which one is bigger now?" And they'll say, "This one," because it is longer.
You do this again (DEMONSTRATING) and you ask them, "Are they both the same size again now?"
They'll answer, "Yeah." (DEMONSTRATING) "Which one is bigger now?" "This one."
Or if I do it -- flatten them out as a pancake (DEMONSTRATING). "This one," because it is taller.
That is -- that is -- that children think in terms of one dimension, single dimension, single concept. Now, when we translate that into moral development, okay, moral development in children then is done on that same kind of single dimension criteria.
Ah, let me show you one of the actual tests that we did with, ah --
Q. Did you perform either of those tests --
A. Yes, I did. I have one with two different farms and we put barns and cows on them. If I can find one, I'll show you one that Jessie did.
Q. Which of the two tests that you just demonstrated did (846) -- well, did Mr. Misskelley perform both of those tests or one of those?
A. He performed all of those in terms of what we would expect from a five to seven-year-old child.
Q. So he said that the --
MR. FOGLEMAN: I object to Mr. Stidham leading the witness.
THE COURT: Avoid leading. He's an expert. He can pretty well state his own opinions.
BY MR. STIDHAM:
Q. If you could, explain to the Court the choices that were made in the clay test by Mr. Misskelley?
A. Jessie did as I -- ah, well, when I -- when I had Jessie decide were these the same size, he said, "Yes," those were the same size.
If I went to the system where I did this (DEMONSTRATING) Jessie decided this one was bigger, that it was longer. If I went back in the other direction and asked him were they the same size again, Jessie said, "Yes." (DEMONSTRATING) "Now which one is bigger?" "This one."
That is -- that is -- and the same is true with the cows in the barn. If I did them flat (DEMONSTRATING) this way, Jessie responds (DEMONSTRATING) in single -- but it's not being bothered by the fact that they were the same size and then one's bigger and the other one is littler and then they are the same (847) size again -- that does not bother little kids. That -- that -- that doesn't bother them because they only think about the world in terms of a single dimension.
Now, in terms of moral systems, ah, we look at, ah, things such as, if I, ah -- one which I did with Jessie. There's a little girl who is being helpful with her father and he wants her to help him and they are being -- having this good time and the father asks the daughter to help him fill the fountain pen. The child is helping her daddy, being really good. She happens to accidentally spill the ink. It makes a spot of ink this big. (INDICATING)
There's another little girl who is playing with the ink when she's not supposed to be. She spills the milk - I'm sorry, the ink and makes a spot this big (DEMONSTRATING): Which child did the worst thing?
And Jessie's response is, "The bigger spill." That is -- that is that moral decisions are made in terms of size of consequence, not any kind of notion of intent-- ah, ah, ah, ah -- I guess mostly in terms of intent.
Ah, I have a story about a man whose wife is dying of cancer and, ah, a druggist invents a miracle cure. It costs the druggist two hundred dollars to make a dose. He's charging two thousand dollars a dose. So the man's wife goes and he can -- he borrows -- he goes -- he sells everything. He can get together -- is able to get only one thousand dollars. He goes (848) to the druggist and says, "All I can get is a thousand dollars. Can I have a dose for a thousand dollars or can I sign a promissory note," and then druggist says, "No."
So that night the man breaks into the pharmacy and steals a dose of medication for his wife and gives it to his wife.
Now, the question that it becomes is, is was he right or wrong to do that. Obviously there are multiple levels of right and wrong. That -- that one is a very, very concrete level of it's wrong to take things that don't belong to you. It's a very concrete level of operation. We can have ah, ah, ah, more complicated ones is that people may have a -- a -- a moral responsibility to share their things with other people. Whereas, at a more higher universal level is that -- is that -- is that a human life is more important than money. You know, so there are multiple levels we can kind of decide this issue.
Jessie tends to do all those contradictions in terms of it's right and wrong. That is a -- very again child-like conception of what is morally right and wrong.
Q. How did Mr. Misskelley fare on the Minnesota Multi-Phasic Personality Test?
A. Because Jessie is unable to read terribly well, ah, I read it to him so it was a complicated long process. Basically what we find with Jessie is a very small elevation on a -- on three of the, ah, clinical scales. And, ah, mostly what we find with Jessie is, ah, he kind of, ah, has severe inferiority complex, (849) severe insecurities, ah, has, ah -- lives in kind of a schizoid world. By that I mean that he's not -- he's not out of contact with reality in that sense but rather that -- that -- that -- he cannot cope, doesn't understand the world very well at times and so he kind of lives in his own little world lots of times because he doesn't have the wherewithal to understand the outside world.
Ah, when, ah, Jessie is under stress he ah, ah, ah rapidly ah, ah, ah reverts into, ah, fantasy and daydreaming, ah, and at times he can't tell the difference between fantasy and reality.
Q. your diagnosis as far as the axes -- what diagnosis did you make with regard to Mr. Misskelley?
A. On axis one I diagnosed him as adjustment disorder with depressed mood. That diagnosis is kind of temporary given the circumstances that he's under. He's having to adjust to being on trial, adjust to being in prison, adjust to a whole lot of things and that causes -- he's having some difficulty doing that. Also has a history of psychoactive substance abuse.
Q. What does that mean?
A. He's -- he's -- he's used, ah, marijuana. For a couple of years he huffed gasoline. He's used marijuana. He's used a lot of alcohol. Ah, tried some, ah, -- experimented with white crosses and other kinds of drugs as well. So that diagnosis mostly says that he has multiple experiences with a variety of drugs. (850)
Q. Are diagnoses made within axis one -- are those recognized by professionals as being treatable problems?
A. Yes. The ah -- ah -- ah DSM3 is decide with five axes level. the first one is -- is -- are those illnesses that are possible for us to treat or at least keep under management.
Q. Let's talk about axis two and your diagnosis of that.
A. Axis two the diagnosis was borderline intellectual functioning. That is -- that's what we talked about earlier in terms of his IQ level. That is viewed as a relatively permanent stable process. It is not likely to change. You're not going to get any great differences in Jessie's IQ in years assuming something doesn't happen like a brain trauma. Other than that, we're looking at this as being a relatively stable level of the functioning and it has been up to this point.
Q. That is reflected in his previous IQ testing?`
A. Yes.
Q. Are there any other diagnoses?
A. We diagnosed a developmental disorder. That is that Jessie has some reading dysfunctions, some academic dysfunction and finally with some personality trait dysfunctions as well, primarily schizotypal, antisocial and dependent.
Q. I notice in axis three you have no diagnosis. Could you describe what axis three is?
A. Axis three are physical diagnoses. If he had diabetes or -- ah -- ah -- ah -- the blind -- or something of that sort. (851)
Q. In your conclusion you talk about Jessie having marked deficits in judgment and memory. Could you tell the Court what that means?
A. Jessie has difficulty remembering both long-term and short-term. Has deficits in judgment in that ah -- ah -- questions such as, ah, if you were walking done the street and found an envelope was already addressed and sealed with a new stamp on it, what would you do with it?
Jessie's response was, "Well, I'd pick it up and sew who it belonged to and if I knew them, I'd tried to go find them. If I didn't know where they were, I probably would take it back and put it where it was."
That is -- ah -- ah -- ah -- it is not a very effective judgmental thing to do with that.
Q. You mentioned earlier about pressure or stress and what happens to Mr. Misskelley when that happens?
A. Yes. Typically when Jessie is under stress ah -- ah -- ah and because of his child-like perception of reality, when under stress, Jessie reverts back to kind of constructing reality as he chooses it which in one sense them makes mention of -- of -- of what adults would see as ah -- ah -- ah -- probably fantasy.
Q. Could you refer to page eight of your report? In the next to the last paragraph you refer to Mr. Misskelley's ability to perform a complicated criminal act.
A. With the marginal intellectual ability that Jessie has, (852) with his ah -- ah thinking processes, with his ah -- ah -- ah -- low level of functioning, Jessie would have a tough time planning much of anything more that would last more than five or ten minutes. That is, that, ah, Jessie is just not capable of putting together long-term complicated plans.
Q. Dealing with the specific concept of mental maturity, what level of maturity would you place Mr. Misskelley at?
A. I would place Jessie at the level of a child between five and eight, five and nine.
Q. The statute dealing with waiver of transfer to Circuit Court refers to the possibility of rehabilitation. Of course, Mr. Misskelley is innocent until proven guilty, but with the problems that he has with his mental functioning levels, is he someone you would refer to as could be rehabilitated?
A. Ah, in this case rehabilitation is a complicated issue. We talked about the fact that he is not going to get any more intelligent than he is. So in that sense we're not going to be able to rehabilitate that. Ah -- ah -- in terms of some of his ah -- ah -- ah -- adjustment disorders, his personality outbursts, those kind of things, yes, those are quite amenable to treatment particularly at his age.
CROSS EXAMINATION
BY MR. FOGLEMAN:
Q. Doctor, you have indicated that you spent some 11 hours with Mr. Misskelley. Is that right? (853)
A. Yes.
Q. What did those 11 hours consist of?
A. They consisted of doing an interview.
Q. How long did the interview last?
A. Probably on the first day hour, hour and a half maybe. Ah, then we did, ah, some other testing that day.
Q. How long did that testing last?
A. Ah, hour, hour and a half, I guess.
Q. Did you do anything else that first day?
A. Ah, that was probably all.
Q. How about the second time on the 22nd of October?
A. The, ah, second time we spent a lot of time, ah, doing the MMPI because I had to read it all to him.
Q. You had to read quite a bit to him?
A. Yes.
Q. Some five hundred and some off --
A. Yes, yes, uh-uh.
Q. How long did that take?
A. Probably hour and a half, maybe two hours. We stopped along the way, you know, just kind of a break because it was such a long difficult process.
Q. What else did you do that day?
A. We did some other testing.
Q. What type of testing?
A. Ah, as I recall we did the -- ah -- some --ah -- some -- (854) some of the Kolberg stuff. Lawrence Kolberg stuff, some of the mental maturity stuff.
Q. How long did that stuff last?
A. Oh, probably about an hour.
Q. What else did you do that day?
A. That's probably all, I think.
Q. How about on the fourth of November?
A. Okay. That date we did ah -- ah -- ah -- completed the mental status evaluation.
Q. What does that consist of?
A. Ah, that consists of a variety of questions which deal with, ah, being in contact with reality, basic intelligence levels. It is a standard form, ah, used to -- to assess whether people are competent or not competent.
Q. You determined he was competent?
A. Yes.
Q. How long did that take?
A. It takes about a half hour to 45 minutes.
Q. What else did you do that day?
A. We did a, ah, measurement of ah -- ah -- ah -- suggestability. We did --
Q. Go ahead --
A. I'm sorry.
Q. Go ahead.
A. Ah, we reviewed some other stuff that Jessie responded to (855) and further explored some of his responses to other questions, other issues.
Q. Um-hum. How long did that last?
A. Two and a half, three hours.
Q. And in formulating your opinions you not only took into consideration the tests and visits, but you also indicate three are available some five or six hundred pages of Jessie's school records. Did you ready those?
A. Yes.
Q. They weren't only available but you read them?
A. Yes, I did.
Q. There was also some of his school work that you say Jessie's parents provided?
A. Yes.
Q. did you talk to any of his school officials?
A. No, I did not.
Q. You did not. you also indicate in one place that he had some minor criminal problems.
MR. STIDHAM: Your Honor, I'm going to object to that.
THE COURT: Let's don't go into that at this time.
MR. FOGLEMAN: Your Honor, I don't know how else --
THE COURT: Ask him if he took them into (856) consideration.
MR. FOGLEMAN: I want to ask him a question about that.
MR. STIDHAM: Your Honor, I strongly object and would argue that that is not admissible, certainly not in this setting. Again we are talking about issues that I raised earlier at the bench and I would like to approach the bench again and talk about those.
(THE FOLLOWING CONFERENCE TOOK PLACE AT THE BENCH)
MR. STIDHAM: We are entitled to have a ruling on the admissibility of prior offenses. I know this is a hearing for transfer to --
THE COURT: Wait a minute. I'm not making any ruling that prior offenses are admissible. In fact the strong probability is that they are not. For the purposes of this hearing, they are relevant.
MR. STIDHAM: I agree, your Honor, and we would ask that we have a closed hearing with regard to those issues.
THE COURT: I did that the other time, and I was probably wrong in doing that so I'm going to overrule your motion.
MR. STIDHAM: We are entitled to the same rights that Mr. Baldwin has, and we're also entitled to a (857) fair and impartial jury trial, and if this stuff is published tomorrow, we're not going to get that right.
THE COURT: You cannot stop the media from printing whatever they choose. I hope that they use proper restraints.
THE COURT: I read something this morning, too, where you were quoted.
MR. STIDHAM: Matters of public record, your Honor.
THE COURT: Well, it had to do with your trial strategies and procedures. Anyway, I will overrule your motion.
(RETURN TO OPEN COURT)
THE COURT: You may proceed. Overruled. And in doing so I'm reversing the ruling I made in Jonesboro, and I recognize that, and I think I probably was in error to close that hearing. I don't think it was any harmful error, however. If anybody, the State should have been the one objecting, but go ahead.
BY MR. FOGLEMAN:
Q. Doctor, what I was referring to, you mentioned on page four of your report that, "Jessie indicates he has been involved in (858) some minor legal difficulties including a breaking of a window and other relatively minor juvenile offenses."
A. Um-hum.
Q. Did you check with the juvenile authorities to see what offenses he had?
A. No, but Mr. Stidham had some of the juvenile records, and I did check with those.
Q. You relied on what Jessie told you and what his lawyer provided to you?
A. Yes?
Q. All right.
A. Legally I have no way ethically to ask Jessie's juvenile probation officer any questions about --
THE COURT: Did you review the files involving this case?
THE WITNESS: I reviewed Jessie's confession and the Medical Examiner's office reports, and that was all I saw in terms of records of this case.
BY MR. FOGLEMAN:
Q. You indicate on page two of your report that the school records indicated that Jessie had a variety of conflict problems at school with aggressive outbursts.
A. Yes.
Q. What did those involve?
A. Sometimes hitting other kids. Sometimes leaving the room (859) or leaving the locale in conflict with the teacher so he would leave.
Q. That is an aggressive outburst by leaving?
A. Yes.
Q. You consider that an aggressive outburst?
A. Yes, um-hum.
Q. You indicate that -- something about a bicycle drawing test?
A. Yes.
Q. Tell us about a bicycle drawing test.
A. It is a blank piece of paper. You have a person draw a bicycle for you.
Q. Isn't it true that Jessie had difficulty in remembering and recalling visual information?
A. Yes.
Q. You also indicated that he had mild psychotic characteristics?
A. Possibility of them, yes.
Q. Isn't it true that he also indicated a need to demonstrate his masculinity?
A. Yes.
Q. That he had aggressive tendencies?
A. Yes.
Q. And you indicated a mild elevation in an F scale on MMPI-2?
A. Yes. (860)
Q. Which can be viewed as attempted malingering?
A. Yes.
Q. That his profile type is a common profile for those diagnosed as being paranoid schizophrenic?
A. Yes.
THE COURT: I'm reading where you said, "There is no indication Jessie does suffer from a severe pathological disorder."
THE WITNESS: All I said with the MMPI interpretation is that some people who have paranoid schizophrenia have that diagnosis as do other people. Just because he has that profile, it does not mean -- that is, the MMPI -- you cannot use it by itself. That is, ah, we have to take into account all evidence at one time.
THE COURT: I'm interested in this statement too: "While Jessie shows the potential for aggressive behavior on assessment instruments and a variety of records indicate Jessie has indeed had aggressive outbursts in the past," are you suggesting that there is a psychological instrument that can predict future violent behavior?
THE WITNESS: No, I am not.
THE COURT: What are you saying?
THE WITNESS: I'm saying that Jessie has a low (861) level of tolerance, low level of frustration, minimal ah -- ah -- ah -- intellectual skills, and it is not unusual for people to have that combination of things who when they are in frustrating circumstances to act out aggressively.
BY MR. FOGLEMAN:
Q. Doctor, were you aware that in April -- on April 12th of this year that Jessie was placed on probation in Juvenile Court for a third degree battery on a thirteen-year-old girl?
A. Yes.
Q. You were aware of that?
A. Yes.
Q. And that in January he had also appeared in Juvenile Court and was found to be a delinquent on a charge of criminal mischief, first degree?
A. Was that when he broke the windows?
Q. On a railroad.
A. (NODS HEAD)
THE COURT: You are nodding in the affirmative. Is that what your nod is for?
THE WITNESS: Ah -- that -- ah -- ah -- I'm not sure I'm aware of the January charges. I don't know the dates is all. I'm aware of the difficulties.
THE COURT: Well, the court reporter can't pick up a nod. (862)
THE WITNESS: I'm sorry. I was processing information.
BY MR. FOGLEMAN:
Q. Doctor, on your diagnosis I note that you do not make a diagnosis that he's mentally retarded?
A. Right.
THE COURT: Did I also understand you to say unequivocally that he is competent to proceed in these proceedings?
THE WITNESS: Yes.
THE COURT: And that he understands the traditional legal motion of right and wrong?
THE WITNESS: Yes.
THE COURT: What was his chronological age at the time of the event?
THE WITNESS: Ah, that was in May?
THE COURT: I believe so.
THE WITNESS: He would have been seventeen.
THE COURT: And when you examined him?
THE WITNESS: He was eighteen. He had just turned eighteen.
THE COURT: Does one with an IQ of 72 as they progress in age, do they develop what we call, or what I call -- and I'm not sure what your term for it would be -- "street smarts?" (863)
THE WITNESS: It is possible, yes.
THE COURT Did you in your interview with him determine whether or not he had what I'm calling "street smarts" -- and I think you know what I mean.
THE WITNESS: If you're saying of a -- of a --
THE COURT: -- Even though his intelligence capacity is borderline, did he not function in society well?
THE WITNESS: He did not function well. He functioned marginally.
THE COURT: All right.
BY MR. FOGLEMAN:
Q. On your diagnosis under axis two, number three oh one point nine, or ninety, you say "Personality disorder NOS with schizotypal, antisocial and dependent characteristics."
A. Yes.
Q. Could you explain what that means?
A. Ah, on axis two G diagnoses that are viewed as being relatively stable, permanent or rather all encompassing. In terms of the personality diagnosis, people who have personality disorders you're going to find an all encompassing thing they kind of live in terms of.
Now, there are several different ones. There is a paranoid personality disorder, antisocial personality disorder, schizotypal and others, and each one of them has a set of (864) criteria that makes you one of those.
In Jessie's case he had none of -- he did not have a sufficient number of symptoms in any one of the distinct categories to be one of those, but he did have a couple of characteristics of the antisocial, a couple of the schizotypal and a couple of the dependent. It's kind of -- his -- his personality but in kind of a mixed package.
Q. In the schizotypal area what were the characteristics there?
A. Ah -- the -- ah -- ah -- ah -- kind of a strange digressive style of interaction without any loosening of association, just kind of a nebulous, digressive kind of pattern of interaction.
Ah, the tendency to ah -- ah -- ah -- slide into fantasy at times or to have difficulty separating fantasy from reality at times. The ten - tendency to be fairly withdrawn from many intimate social interaction systems.
Q. On the antisocial part of it, would that be his aggressive tendencies toward others?
A. Right.
THE COURT: Doctor, were you -- well -- did you have anything else?
MR. STIDHAM: No, your Honor.
THE COURT: You may stand down. Why don't you remain in the courtroom for a few minutes in case we have something further. (865)
THE WITNESS: I'll be glad to, your Honor.
(WITNESS EXCUSED)
MR. STIDHAM: Your Honor, that's all we have, save rebuttal.
MR. FOGLEMAN: I was -- we can go through it again, I suppose -- I was going to offer the same photographs and the same testimony that was offered at the hearing on Jason Baldwin. If we need to go through that testimony again --
THE COURT: I can recall them unless you gentlemen want them to offer them again.
MR. STIDHAM: Your Honor, may I approach the bench?
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH)
THE COURT: I wanted to ask him if he was able to in his profile of Misskelley to determine whether or not he was a leader or a follower and how he would have reacted to a strong ---
MR. STIDHAM: -- I think he --
THE COURT: Appeal from a --
MR. STIDHAM: -- answered that question.
THE COURT: I'm not sure he did in my mind, but I'm going to let you do it if you want to instead of me doing it. If you don't want to do it, fine. I'm just telling you that that was in my mind. (866)
MR. STIDHAM: I don't see any reason to. I don't want to raise that particular issue.
THE COURT: All right. Go ahead.
MR. STIDHAM: Your Honor, I don't have any problem with the Court taking into consideration the same photographs and without him having to go through the process again.
I would like to point out -- and if the prosecution has no objection -- I would like the Court to point out that despite the fact that we vehemently oppose the reliability of the statement that Mr. Misskelley -- both statements that he made to the police on June third -- we would point out that in the statement itself does not say anything about any violence employed by Mr. Misskelley in the statement and one of the factors in the code section dealing with transfer is whether or not there was violence employed by this particular juvenile -- not whether the other two did that but whether he did that -- and we would like the Court to take judicial notice of that if the prosecution has no objection, and I wouldn't have any objection to them -- or the Court considering the photographs and other. I think we went through the juvenile --
MR. FOGLEMAN: I don't have any objection to the (867) Court taking judicial notice that Jessie said he didn't do any of the cutting.
THE COURT: I will consider his statement.
MR. CROW: I think it is a matter of law but the statement is coming in for the purposes of this hearing --
THE COURT: For the purposes of this hearing I'm going to consider it --
(THE COURT AND MR. CROW SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
THE COURT: As I recall the only involvement he indicated he directly participated in was that he ran down and restrained one of the victims that was escaping and by that he made himself an accomplice --
MR. FOGLEMAN: Of course, that is what he says he did.
MR. STIDHAM: We don't want to stipulate that that made him an accomplice but I would ask the Court to give -- for the purpose of this hearing only -- not for admissibility in trial.
THE COURT: That's what I'm doing. I'm not giving it any undue weight anyway.
MR. FOGLEMAN: We can make a part of the record on this hearing the hearing that was held on Jason Baldwin as far as the proof I put on. (868)
MR. STIDHAM: We will stipulate that the Court can take into consideration the photographs --
MR. FOGLEMAN: And the officer's testimony --
THE COURT: Weren't there two or three previous juvenile --
MR. FOGLEMAN: I will have to put on his juvenile stuff because I haven't done that.
MR. STIDHAM: Your Honor, we will even stipulate that this was a violent crime. Anybody with half a brain can look at the photographs and determine that. The point we're trying to make and what we want the Court to take notice of is the fact that even though we dispute the admissibility and the liability of the statement Mr. Misskelley made to the police, in his statement he does not make any mention of him personally using or deploying violence.
THE COURT: Other than restraining one of them. Okay.
(RETURN TO OPEN COURT)
JERRY DRIVER
having been fist duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:
DIRECT EXAMINATION
BY MR. FOGLEMAN: (869)
Q. Will you please state your name and occupation?
A. Jerry Driver. I'm the chief juvenile officer in Crittenden County.
Q. In the exerise of your duties as the chief juvenile officer in Crittenden County, do you have possession of records involving juveniles in Crittenden County?
A. Yes, sir.
Q. In the performance --
MR. STIDHAM: For the record, again, I know the Court's ruled on this at the bench, but I would like to incorporate our objections dealing with the admissibility of the statement with regard to the --
THE COURT: Your objection is that you want a closed hearing on it, not the admissibility of it, because it is clearly relevant and admissible and previously I had allowed the hearing to be in-camera because of the possibility I could transfer it to juvenile. On reflection on that, I probably shouldn't have done that so I'm going to allow it all out.
As far as the admissibility of the information during the trial, however, I'm certainly not ruling on that. In all probability it is not admissible at trial. But for the purpose of this hearing it is. Your objection specifically was that you couldn't trust the press not to print it and I can't stop them. (870) I don't blame you for that.
BY MR. FOGLEMAN:
Q. In the performance of your duties have you come in contact with the defendant, Jessie Lloyd Misskelley, Junior?
A. Yes, sir.
Q. Are you familiar with his appearances in Juvenile Court?
A. Yes, I am.
Q. When was his first appearance?
A. First appearance was in May of 1987.
Q. What was the charge and disposition?
A. First time he was in court was on a FINS petition, which is a family in need of services. The next occasion was in August of '88. Warrant was issued at that time on a theft of property charge.
Q. What was the disposition of that charge?
A. Probation.
Q. When was his next appearance in Juvenile Court?
A. Next appearance in Juvenile Court was '92. 12-21 of '92.
Q. What was the charge there?
A. Battery and violation of probation.
Q. His next appearance after the theft?
A. Yes.
Q. Would you look at the petition?
A. (EXAMINING) I take that back. I'm looking at the wrong one. Criminal mischief. (871)
THE COURT: What year?
THE WITNESS: '92.
BY MR. FOGLEMAN:
Q. That was the date the petition was filed?
A. Um-huh.
Q. What was the disposition of that case?
A. Probation.
Q. Any other provisions?
A. Drug testing.
Q. Is that all?
A. That's all on this one.
Q. In his next appearance -- when was the disposition on that one?
A. Disposition was the fourth of January of '93.
Q. And then the next appearance?
A. Next appearance was in April of '93.
Q. What was the charge there?
A. Violation of probation and battery third.
Q. What was the disposition in that case?
A. Probation and order to get a GED.
Q. And was that the case where it involved the battery of a thirteen-year-old girl?
A. Yes, sir.
Q. Were there any other court appearances besides those three?
A. I show four court appearances. But I think the last two (872) are combined. They were continued. There's another battery in here.
Q. That's been disposed of?
A. It is attached to that second where the flags are.
MR. STIDHAM: Your Honor, anything that hasn't been disposed of we object to.
THE COURT: I will sustain the objection to that. You are only talking about adjudicated matters.
MR. FOGLEMAN: So far. Yes, sir.
BY MR. FOGLEMAN:
Q. As a part of the record in CRJ-88-154, is this a report from the East Arkansas Regional Mental Health Center?
A. Yes, it is.
Q. Is that a part of the Juvenile Court file?
A. Yes, sir.
Q. Is that kept in the ordinary course of business of the Juvenile Court?
A. Yes, it is.
MR. FOGLEMAN: We would like to offer a copy of this report as a part of the record in this hearing.
MR. STIDHAM: The only objection I would have is that the person who conducted this evaluation is not here and I think that would probably be the most appropriate way to introduce that into evidence. I don't think there's been a foundation to allow that. (873) It may be placed in his juvenile file but that doesn't mean that it's admissible even for purposes of this hearing.
THE COURT: I will sustain the objection.
CROSS EXAMINATION:
BY MR. STIDHAM:
Q. The dispositions of each of these juvenile offenses has been probation?
A. Yes.
Q. Does that indicate that none of these were serious enough to impose a stay at the training school?
A. Not necessarily. That just means that we felt at the time it might be appropriate to try probation with him.
Q. So you didn't think it was appropriate to take him off the streets then?
A. I have only had dealings with him one time. The other two occurred before I got there.
Q. To your knowledge he's never been to the training school?
A. No, sir.
(WITNESS EXCUSED)
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: (874)
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?
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.
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. (875)
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.
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. (876)
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 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 (877) one exhibit.
THE COURT: They may be received for purposes of this hearing.
(STATE'S EXHIBIT SIX IS RECEIVED FOR PURPOSES OF THIS HEARING)
BY MR. FOGLEMAN:
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.
(WITNESS EXCUSED)
MR. FOGLEMAN: With Mr. Driver's testimony and Officer Ridge's testimony being made a part of the record from the prior hearing on Jason Baldwin and asking the Court to take into consideration the photographs introduced at that hearing, the State has nothing further at this time.
THE COURT: Anything else? Any statement?
MR. STIDHAM: Your Honor, I'd like to make a real brief closing.
THE COURT: All right.
MR. STIDHAM: The factors set forth in the statute with regard to waiver and transfer to Juvenile Court provide three sets of factors that the Court is (878) to determine on whether or not the case should be transferred to Juvenile Court.
The first one is the seriousness of the alleged offense and whether or not violence was employed. We talked about that earlier at the bench and I ask the Court to take notice of the contents of the statement that was previously introduced at Mr. Baldwin's transfer hearing.
Again, there's no doubt that this alleged offense is a very serious offense, and I don't think anyone could stand up and say that it's not. But we would like the Court to look at the contents of this alleged statement and without going into the issues of admissibility or reliability, would like to point out and submit that there was no violence employed by this juvenile in this case.
The second set of factors is a repetitive pattern of adjudicated offenses which would determine his abilities to rehabilitate, and I would like to point out to the Court that is evidenced by past efforts to treat this juvenile. The information submitted to the Court was that there was four juvenile adjudications, all of which resulted in probationary sentences. Never was he sentenced to the training school And I would submit to the Court that none of these offenses (879) were serious enough that they demanded anything other than probation. That is the evidence before the Court.
There is evidence before the Court that Jessie Misskelley did not receive the counseling that he needed, did not receive the help that he needed and the system failed miserable in providing these services. And we submit he's never had a chance to rehabilitate because nothing has ever been tried.
The third set of factors, the prior history, character traits, mental maturity and other factors related to rehabilitation. I would point out to the Court Mr. Misskelley is operating at a low borderline range of intellectual functioning. He has a very low IQ. His mother abandoned him at age four which caused him a significant amount of stress. He's been diagnosed several times as being mentally retarded, came from a dysfunctional family, he was in urgent need of individual or family counseling that he never received. He reads and writes at a third grade level. his moral judgment as pointed out by Dr. Wilkins is that of a five to seven-year-old.
In Doctor Wilkins' report he stated that Mr. Misskelley lacks the intellectual wherewithal to develop a complicated criminal act, and he lacks the (880) psychological characteristics we would assume would be part of a premeditated complicated criminal activity.
For all of these reasons we would submit that the Court should transfer this case to Juvenile Court, and we would ask that Mr. Misskelley be treated as a juvenile.
MR. FOGLEMAN: Your Honor, in considering the defense's motion in this case the first factor to be considered as Mr. Stidham has indicated is to take into consideration the seriousness of the offense and whether violence was employed by the juvenile in commission of the offense. I don't think anybody can argue with the proposition that in this particular case there has not been a more serious offense committed in this judicial district ever than taking the life of the three eight-year-old boys.
Now, Mr. Stidham says in the defendant's statement he says he didn't do anything other than run down one of the boys and capture him and bring him back to the place where these three young kids ultimately died. That is what he says that the defendant says. Because he says it doesn't make it so.
Secondly, the Court is to look at whether the offense is a part of a repetitive pattern of (881) adjudicated offenses which would lead to a determination that the juvenile is beyond rehabilitation.
Well, in this case we do have a series of adjudicated offenses, delinquent offenses, that this juvenile has committed leading up to this offense. Dr. Wilkins himself finds that he's got an antisocial personality, that he has characteristics of his personality which would indicate an aggressive person. In the past he's had aggressive outbursts. He's been a heavy gas huffer. He smokes marijuana, drank a large amount of alcohol. He's got a life-long problem with getting very angry. That he's got mild-psychotic characteristics. That there's some evidence of malingering and finally again that he has this antisocial personality characteristic exhibited by his aggressive nature.
Your Honor, we submit that because of the seriousness of the crime, his past record as a juvenile, the prior history and character traits of this juvenile, that this case should remain in circuit Court, should not be transferred to Juvenile Court and should be heard by a jury of twelve and decided by that jury.
THE COURT: Anything else? (882)
MR. STIDHAM: No, your Honor.
THE COURT: The Court will make the following findings: That Mr. Misskelley is competent to proceed based upon Dr. Wilkins' testimony, and I am going to reserve any ruling on your most recent filed motion -- the one filed today -- until the State can respond, and that is something we can hear at a later date as to the application of the death penalty if it becomes an issue.
As far as your motion to transfer to juvenile, the Court would point out that our Supreme Court has held that there's no requirement that every element or factor that we've been discussing in this particular statute be given equal weight. Holland versus State, 311 Ark. 494, a 1993 case, where our Supreme Court held that the serious and violent nature of the offense is sufficient basis for trying a juvenile as an adult.
Further, Walker versus State, 304 Ark. 393, a 1991 case, where a similar finding was made by the Court that the information itself with no additional evidence was sufficient basis for a finding that the clear and convincing evidence test under the statute Section F was met as to holding a juvenile to answer to an adult crime. (883)
Clearly on the facts of this case there's no question whatsoever that it is a most serious crime -- three eight-year-old boys and the factual evidence indicated by the photographs as to what happened to them -- is clear and convincing evidence to this Court that the accused juvenile should be tried as an adult.
Further, the defendant Misskelley has a juvenile history involving assault and battery on another juvenile. Dr. Wilkins' testimony also indicated there was some proclivity or chance based upon the character traits that Misskelley demonstrated to him that aggressive behavior could occur again.
It is unclear to the Court, although I have a strong belief and suspicion from what I have heard and seen, that there is little or no prospect of rehabilitation and would so find.
And, therefore, my finding is that Mr. Misskelley in view -- also an additional factor that the Court can consider under the Walker case is that he was seventeen years of age at the time of the offense, that that also weighs heavily that he should answer as an adult for any criminal charge brought against him. In fact he's eighteen today so he was approximately seventeen and a half at the time of the occurrence and that weighs heavily in my decision along with the (884) seriousness of the offense. Therefore, I find that he is to answer to the Circuit Court as an adult.
Anything else?
