CORNING, ARKANSAS, JANUARY 19, 1994, AT 10:30 A.M.
THE COURT: This is the case of the State of Arkansas versus Jessie Lloyd Misskelley, Junior. How says the State?
MR. DAVIS: The State is ready, your Honor.
THE COURT: How says the defendant?
MR. STIDHAM: We're ready, your Honor. Your Honor, we do have some matters we need to take up in chambers.
THE COURT: All right.
(THE FOLLOWING CONFERENCE WAS HELD IN CHAMBERS)
THE COURT: Let the record reflect this is a hearing out of the presence of the jury or the prospective jury. First of all I want to put in the record the announcement --
MR. DAVIS: Your Honor, can we excuse the attorneys that aren't involved in this matter?
MR. STIDHAM: I don't have any problem with them being here, Judge.
MR. DAVIS: I do in regard to something that we discussed earlier.
THE COURT: They already know about it.
MR. STIDHAM: They told me about it before you did. Your Honor, I --
THE COURT: Wait a minute. I want to get that matter -- that announcement that was made in the record about --
MR. DAVIS: That's why we would ask that the other defense counsel be excused.
THE COURT: They are aware of it from the discovery and I have also told them that I expected the gag order to apply to them and the media is not to be informed or told whatsoever until further investigation can be carried out and determine whether or not it leads to evidence or not so as lawyers --
MR. PRICE: I agree with that.
THE COURT: -- You're duty bound and are ordered by the Court that you're not to discuss it, period, with anyone in the media or anywhere else.
All right, Mr. Fogleman, you can put it on the record what --
MR. FOGLEMAN: I informed Mr. Stidham and Mr. Crow this morning that I talked to Genetic Design yesterday in regard to a knife that had been sent to Genetic Design -- I believe it was about January the eighth when it was sent -- and at Genetic Design they said that the blood on the knife was consistent with the blood of about eight percent of the population which was also the same type blood as Chris Byers. That there were further tests they could run to narrow that further.
We also informed them that it had been received by the police department by Federal Express but we felt like that we could track down where it came from.
I also informed them that Genetic Design told us they should have some results early next week, and it is my understanding that none of this is to be discussed with anybody until we have an opportunity to investigate whether or not it has anything to do with the case or whether it is even relevant.
MR. STIDHAM: Your Honor, is there anything that would indicate a link between Mr. Misskelley and this new evidence?
MR. FOGLEMAN: I'm not aware of any direct link between Mr. Misskelley or Mr. Echols or Mr. Baldwin at this time.
MR. STIDHAM: Due to the exculpatory nature of the evidence -- it may or may not be -- obviously this could pose a problem with the prosecution of Mr. Misskelley if it's determined that it's the murder weapon and the DNA matches one of the victims and it is tied to someone else other than Mr. Misskelley or the other two co-defendants. I want to be certain I don't waive anything so that we don't get too far along in this trial that we have to look for the governor to get a pardon. I don't want to by not standing up here and making a motion for a continuance today -- not waive that right if we do obtain information from Genetic Design or from other sources that would tend to show the innocence of Mr. Misskelley. I don't want to get too far down the road and not be able to stop this.
THE COURT: I understand that reservation. This is the date that's been set for some time. It will be almost a year within the next few months. There's no way to continue this at this time for the State to fall within the speedy trial requirement. If you're asking for a continuance, then that might be something to consider. At this point we have not picked the first juror. The Court has merely qualified the jury. What I would like to do -- and of course, it will be up to you and Mr. Crow.
MR. STIDHAM: Before you go any further, let me go ahead and make the motion at this point. Due to the potential evidence, I want to preserve the record here.
I would like to wait until we know what this evidence is going to say before we go any further. I know this case has been set for some time. I know we've got snow on the ground, and it will be difficult to get here. We've already had a twenty-four hour delay. But at the same time I don't want to do anything whatsoever to prejudice the rights of the defendant, and I couched my words earlier with the understanding that the Court would not continue it. We would like the Court to consider that possibility, give us some time to figure out what is going on. I know we have got a hundred people setting out there and we are here and ready to go today but this could be evidence that would tend to show that Mr. Misskelley is not guilty.
THE COURT: In what way?
MR. STIDHAM: For example, it has been our contention that Mr. Misskelley had nothing to do with this. If this knife and evidence comes back to Billy Joe and Jim Bob in Beaumont, Texas, and links them to this, that that would tend to show that the statement that Mr. Misskelley gave was obviously incorrect. We submit that it is and, therefore, we think the prosecution would probably dismiss the charge and prosecute the perpetrator and not someone who gave a statement to the police.
I know that is pretty farfetched at this point, but that is a possibility. From a judicial economy standpoint, I don't want to go to work for a week or week and a half and put a jury in the box and get started halfway through a trial or three-fourths through the trial and realize we did it all for nothing.
THE COURT: Is there anything at all remotely likely to develop that some fourth person that is completely unrelated to the three defendants in this case perpetrated this crime? Is there even any remote suggestion that this piece of evidence could --
MR. FOGLEMAN: I don't know what it is going to show. I don't know how to answer the question.
MR. STIDHAM: Just from a logic standpoint I think it's logical to assume that Jessie didn't mail it from the jail cell in Piggott and I would probably go so far as to say that Jason and Damien didn't do it either.
THE COURT: How are they ever going to find out anything about it? It may be just a mystery. I just recently had the same situation come up in Poinsett County where a knife was discovered that supposedly was the murder weapon and it absolutely turned out to be a huge sham, totally unrelated to the case. And that could very well happen here. On the other hand, it might be evidence.
MR. FOGLEMAN: I can't say that it won't do what you asked me. I can't say that it will either. I don't have enough information at this point.
THE COURT: You have been informed on it. I'm going to go ahead and start picking the jury. I think the remedies you just discussed were not all the remedies that you have. If this, of course, turns out to be newly discovered evidence that points a finger at totally different people, then this Court would declare a mistrial or grant you a new trial.
If there is newly discovered evidence that would suggest another person committed the crime or if it exonerates Mr. Misskelley in any way, that the Court could grant a new trial, and I certainly would.
MR. FOGLEMAN: I think we'll know a whole lot in ten days.
THE COURT: How long will it take to pick a jury?
MR. STIDHAM: I think we can have a jury by Friday afternoon.
MR. DAVIS: I have some serious reservations that we can have a jury by that time.
THE COURT: Well, I'm going to guess that it will take us at least until late Friday afternoon or even perhaps Monday. We'll pick alternates. Then I'll discharge the panel. Before I even swear the jury we've selected, I'll see where we stand on this and if we need to continue for two or three days before we even begin the first witness, we will do it before we ever swear the jury and put him in jeopardy. But I don't see any problem in beginning the voir dire.
MR. STIDHAM: This trial itself has cost the taxpayers so much money. I just hate to do it and find out that we didn't need the jury. Of course, that would make me joyous to learn that my client is innocent as I think he is, I want to be real careful that I don't waive anything because I may have to ask to do an independent analysis of some evidence. There's a lot of things that could come up. If we pick a jury and actually get testimony started, to get a continuance at that point it would really be a problem.
THE COURT: We are going to start picking a jury. I'm not going to continue it at this point because there's nothing that really even rises to the level of evidence yet. Possibly it could. So let's proceed.
MR. STIDHAM: I don't want to kick a dead horse, and I don't want to make the Court angry at me, but I felt tied up in there not being able to say some of the things I want to express about the way the voir dire examination should be conducted. Mr. Misskelley's life is in jeopardy. Capital murder cases are normally done individually sequestered.
THE COURT: No, they're not.
MR. STIDHAM: I think three would not be prejudicing anyone. I think the prosecution would request that as well.
THE COURT: I have already said I would do that.
MR. STIDHAM: But you said you were going to limit what questions we could talk about. You know, "Have you ever been on a jury before? Do you know the lawyers?"
But pre-trial publicity has been absolutely rampant. I think if one juror stands up and says, "The son-of-a-gun is guilty. I know he is because I read it in the Commercial Appeal" --
THE COURT: I'm going to caution them about doing that.
MR. STIDHAM: Why would we want to ask those kind of questions if they're not going to be able to answer it? That's why we need to do it back here.
THE COURT: I told you those kind of questions you can ask back here.
MR. STIDHAM: Another issue -- there's several motions that haven't been ruled upon. One motion -- the motion -- the only one that affects us today, your Honor, would be the motion that I faxed you yesterday and also we filed a motion back in October that basically is going to run parallel to the issue.
We asked that if the Court did determine the statement to be voluntary, that that not be communicated to the jury and that counsel not be allowed to comment on that during the trial.
THE COURT: My ruling is a ruling of the case and I don't see any reason for either one of you to say that the judge found it to be voluntary. It is just evidence. I think that would be inappropriate if either of you did that.
MR. STIDHAM: So you will be granting our motion to --
THE COURT: Sure.
MR. STIDHAM: With regard to our motion that we filed --
THE COURT: Are you talking about the polygraph and introduction of the results of polygraph?
MR. STIDHAM: That's correct.
MR. CROW: We just want that -- in addition to what Dan is going to argue -- we just want it clarified as to where we are going to go because I think it will affect the questions and what we are going to do on voir dire.
Mr. STIDHAM: Your Honor, the Arkansas courts, the federal courts and the United States Supreme Court have held that it's vital for the defendant to be able to explain to the jury the issue of voluntariness and some of the case law that I cited in my brief yesterday with regard to this issue is very, very compelling. Kagebein, which is an Arkansas Supreme Court decision, deals with the issue we just disposed of.
THE COURT: Kagebein is that case where there were three teenagers from over near DeWitt that killed a man and left him out by a car on a road by a duck club or something. I remember that case.
MR. STIDHAM: Your Honor, the Crane case, which is a United States Supreme Court case, and some of the language in that case is very, very powerful and if you limit the defendant Mr. Misskelley's right to tell the jury about the polygraph exam and the results of the exam, you're restricting his power to describe to the jury the circumstances that prompted his alleged confession and the defendant is effectively disabled from answering the one question that every juror needs answered. If the defendant is innocent, why did he previously admit his guilt. That is very compelling and right on point.
THE COURT: You are wanting to use third persons to testify for him. Are you wanting to put him on the stand and let him say they had overridden my voluntariness and forced me to do it, fine. I noticed that you didn't even put him on the stand in the Denno hearing.
MR. STIDHAM: That was a trial strategy decision that we had a right to make.
THE COURT: It wouldn't have been admissible at trial, but the thing that bothers me is you want to get into a contest between two polygraph examiners as to which one of them was accurate.
MR. STIDHAM: That is for the jury to determine.
THE COURT: No, it is not because in my estimation polygraph testimony is unreliable and has never been accepted as reliable in any court other than by consent of the parties.
What you are proposing to do is to have two polygraph examiners get up and quibble about who is right and who is wrong and assuming that the jury would believe your man is right, that they falsely accused him of lying and that, therefore, he made a statement.
I'm willing to let you put on proof that a polygraph was administered and after the polygraph he was told that he failed and after that he made a statement if that's what you want to do.
MR. STIDHAM: That would be like saying our client flunked a polygraph and then he gave them a confession. Why would we want to tell them that? We need to tell them everything or nothing at all.
THE COURT: The results of the polygraph simply aren't admissible.
MR. STIDHAM: Why should the West Memphis Police Department be able to pick up a mentally handicapped kid, take him down to the West Memphis Police Department, hook him up to this machine, tell him he's lying his ass off and we cannot get up and challenge the credibility of the officer and challenge the credibility of the test itself. That's exactly what the Court in Crane is talking about.
MR. FOGLEMAN: Do you have any cases where the results of the polygraph -- or a person contested the results of a polygraph?
MR. STIDHAM: I believe the Minnesota decision is exactly on point.
Also in the Leach case we have a very similar situation. We're talking about plea negotiations. In that case the defendant was told by the prosecuting attorney, "If you give me a statement right now, I won't charge you with capital murder."
MR. FOGLEMAN: That's -- the case was reversed.
MR. STIDHAM: That is inadmissible to talk about plea negotiations in front of the jury. Yet, the Court reversed it and cited the Crane case.
THE COURT: That is promise or inducement. That is something totally different.
MR. DAVIS: Our big concern is those test results go to one of the ultimate issues that the jury is required to determine, credibility of witnesses. And it is putting it onto some scientific machine and giving them some sort of false sense of security in that this machine may be right or may be wrong, and it matches the qualifications of operators and polygraph experts when in reality it is unreliable, and it shouldn't be used for the jury to determine what witnesses are credible and which ones aren't.
MR. STIDHAM: Why should the police be allowed to use it to extract confessions from mentally handicapped defendants? They're getting to use it, but we can't.
THE COURT: In the first place the Court has found him not to be mentally handicapped. His IQ is in excess of 70 which makes him borderline functioning, and he's not handicapped.
MR. STIDHAM: If that is not a handicap, I don't know what is.
MR. FOGLEMAN: The Arkansas Supreme Court has ruled it is not permissible for some expert to get up there and say, "I believe so and so is telling the truth."
MR. STIDHAM: We're not asking for that.
THE COURT: That's what you man did, in a sense. He said he believed he was telling the truth when he said he didn't know anything about it.
MR. STIDHAM: All he said in his report is, "There was no indication of deception on the polygraph with regard to the questions concerning the homicide."
THE COURT: What does that mean?
MR. FOGLEMAN: It means he thought he was telling the truth.
MR. STIDHAM: We are asking that you allow the expert to testify about his analysis of the case. But in the very least you should at least let him testify and show the jury that in our opinion he passed it and, therefore, that is why he gave the confession. You could even offer a jury instruction to the effect that they are not to consider the evidence of the polygraph to prove innocence or guilt. All we're trying to establish, Judge, is that was a catalyst to obtain the confession of the defendant. That is within the range of what the jury should consider. The Crane case, the Leach case, the Kagebein cause all point and say --
THE COURT: Kagebein didn't have anything to do with a polygraph.
MR. STIDHAM: They didn't have anything specific to do with the polygraph, but the Tanner case did. And it specifically says that, "It is necessary in the question of voluntariness of statements made by Tanner which was submitted to the jury as to weight and credibility that there would be an explanation of what took place during the period of time the appellant was alone with the officer."
MR. DAVIS: There was never a polygraph exam given in that case. There were no results to discuss. The jury would never have been led to ask, "I wonder what the results were," because the only testimony was, "We were preparing him for a polygraph test when he confessed."
So, therefore, you don't throw the skunk in the jury box and cause them to say, "I wonder what the results were."
MR. FOGLEMAN: There's also an Arkansas statute that says polygraph results are inadmissible.
MR. STIDHAM: When you consider the Rock and Patrick analysis that leads you back to --
THE COURT: I'm going to stick to my initial ruling that the results of the polygraph are not admissible either by the State or any defense expert. Any other purposes you can use him for like interrogation techniques. I'm going to allow you to do that.
MR. CROW: We are not going to put on evidence -- if that is the Court's ruling -- we not going to put on evidence that he took a polygraph test and was told he was flunked. Rule 37 would happen.
THE COURT: I noticed in one of the cases there that is exactly what they did. In that case the Court gave some kind of ruling about polygraph tests not being admissible, not having any -- I'm willing to do that if you want to do it from that standpoint.
MR. CROW: At this point in time we are not planning on doing that, your Honor. I think that would be tantamount to -- that would cause problems.
MR. STIDHAM: You're saying if you instruct the jury to disregard this as to guilt or innocence, you'll let us testify about whether he passed or flunked?
MR. CROW: No, he'll let us put on evidence that he was given a test and that he was told he flunked.
THE COURT: You can give all the circumstances that go into the voluntariness of his confession.
MR. STIDHAM: Why would we want to tell them that he flunked?
THE COURT: No, I'm not saying you can tell them he flunked.
MR. CROW: We can tell them he was told he flunked.
THE COURT: Yes. Whether he did or not would be inadmissible.
MR. STIDHAM: Why can't we just tell the jury everything and tell them the polygrapher examiner told him he flunked --
THE COURT: You can tell him that. I'm going to tell the jury they are not to consider that because whether he passed or failed it is not credible evidence.
MR. STIDHAM: We'd ask for a ruling that no one talks about the polygraph.
THE COURT: That will be granted. The results of it.
THE CROW: Or the fact that he was given one.
THE COURT: That's fine, too.
MR. FOGLEMAN: The only problem that might present itself is if they start raising questions about what happened in this period between the time when the polygraph examiner starts talking to him and when Gitchell and Ridge start talking to him.
MR. CROW: I would suggest that the officer testify he was the one interrogating him in that time period. He can talk about what questions he asked him. There's no reason to mention that he is a polygraph examiner or that he was giving a polygraph test.
MR. STIDHAM: It makes no sense to tell the jury the prosecution stuff but not the defense stuff.
THE COURT: That's not what I'm saying. I'm saying you can tell them anything you want about it except the results of the polygraph. I'm not going to get into a swearing match between experts on the polygraph as to whether they passed or failed.
MR. STIDHAM: Are you ruling that --
THE COURT: I'm ruling that polygraph results by state statute and by every case law I know are inadmissible. Anything else you want to do I'm going to let you do.
MR. STIDHAM: Are you also ruling that it is not within the jury's, ah, credence or within a jury's role to not determine the credibility of the confession and the credibility of the witnesses with regard to the polygraph?
THE COURT: I'm not ruling that at all. I'm ruling that the results of the polygraph, pass or fail, by either the operator for the State or the expert for the defense is not admissible. You can do anything you want --
MR. CROW: The only thing the expert for the defense could testify to is the results of the polygraph. I don't see any other way for him to testify about the polygraph exam that was given --
THE COURT: He can testify that that is a tool used by officers to --
MR. STIDHAM: That would be implicating that he flunked it then.
THE COURT: As long as they don't testify to what the results were either way, I don't care what he says. So if you want to use his testimony in that regard, you can.
MR. STIDHAM: What you're saying is that the statute supercedes any of the defendant's rights --
THE COURT: I'm not saying that the statute supercedes any defendant's rights, not at all, not even close to what I'm saying. I'm saying you have got to determine what evidence you want to put in, and I'm not saying your expert can't testify. I'm saying there are many things he can testify to. But I'm not going to allow him to testify, "In my opinion the defendant passed the polygraph." I'm not going to allow the State's man to say, "We think he failed."
If any of you bring that up, I'm going to give an instruction to the jury according to all those cases that you've briefed that the results of a polygraph are inadmissible, are inappropriate and that they shouldn't consider it. But anything short of that that you want to use to show or suggest that his confession was other than voluntary, you can do.
MR. STIDHAM: You are considering the constitutional issues that we've put into our brief with regard to the Sixth Amendment and due process -- you are considering those in making this ruling.
THE COURT: I hope he's getting due process now.
MR. CROW: At this point in time, we do not anticipate -- I don't want to be foreclosed -- but we do not anticipate putting on evidence that he was given a polygraph and was informed that he flunked. With that in mind we request that they not be voir dired about polygraph, that the polygraph not be mentioned.
THE COURT: Let me make my ruling clear. I'm not saying that you're barred from mentioning the fact that he took a polygraph test and that by taking that polygraph test some way the officers removed his voluntariness or that they in any way affected his mental approach to his statement -- you can by inference or innuendo or however you want to do it through your expert suggest that, but the results themselves are not admissible.
MR. CROW: I understand the Court's ruling -- I understand it to be that we can put on evidence that he was given a polygraph test. We can put on evidence that he was informed he flunked it. We cannot put on evidence as to what the State's results were.
THE COURT: That's right. You can put on your expert, and I think there are a lot of things that he can do that could help you in that regard. I'm not going to let the two polygraph people say, "He passed. He failed."
MR. STIDHAM: You're not going to permit the State to voir dire on that issue, then are you?
MR. DAVIS: The only thing we would voir dire on -- and I think this would be safe -- is when we get them back here three at a time is to ask them, "Is there any recent -- within the last four weeks have you read anything regarding this trial."
MR. FOGLEMAN: Any tests, or anything.
MR. DAVIS: I don't know if we need to go that far. "If you read anything, do you recall what it was you read?" And ask them and see if they recall anything and ask them --
THE COURT: I'm going to let you all ask questions like that. I don't want you to ask anything that infers he took a polygraph.
MR. DAVIS: I won't mention the word, polygraph.
THE COURT: If you want to use that as your defense, go right ahead. I see some merit to it. I'm not barring that. I'm barring an argument between two experts as to whether they passed or failed.
MR. CROW: We may change our mind but at this point in time --
THE COURT: You can certainly suggest by your expert that he was told he failed and by failing -- and telling him something contrary is an investigative technique that is employed. He can testify to those things.
But I don't want this case to boil down to where the jury would have to decide whether the expert is correct or not on passing or failing on what by state law is not credible evidence and by every case law I know is not credible evidence. The issue of whether he passed or failed is really immaterial. It is whether or not he believed he passed or failed and what he did as a result of it.
MR. CROW: You realize our argument is he was convinced that he was going to pass. When they told him he failed, he was so dumbfounded and confused that lead to --
THE COURT: You can still argue that to the jury. In fact that one case that you cited in there -- that is exactly what they did and I think the Court either failed to instruct on it not being credible or they did and I don't remember. But if you do that, I'm going to instruct the jury that polygraph results are notoriously incorrect, that they are not credible evidence and that courts do not accept the results of a polygraph test and they should not consider any results.
MR. STIDHAM: We need to move on to another issue. I learned that there was a possibility that the prosecution might attempt to impeach our expert, Doctor Wilkins, with regard to some allegations about him, some ethical violations that perhaps the State Psychological board is investigating, and we are asking in limine that the prosecution be prohibited from trying to impeach him in that regard.
MR. CROW: Unless it goes to the truthfulness of his testimony or some crime that fits within the --
MR. STIDHAM: -- The rules of evidence are clear that it is not proper, and we don't want that to happen when we put him on the witness stand for the prosecutor to stand up and say, "Isn't it true that at the present time there is an investigation pending against you with regard to some problems," same thing if one of us were being investigated --
THE COURT: What is he talking about?
MR. DAVIS: What I anticipated asking him was is he a member in good standing with the Arkansas Board of Psychologists.
THE COURT: That's a fair question.
MR. STIDHAM: He is.
MR. DAVIS: I don't anticipate asking anything beyond that. I am aware that he is under investigation.
THE COURT: For what?
MR. CROW: It has nothing to do with truthfulness. I'm not sure --
MR. DAVIS: He's under investigation for a few things.
THE COURT: For competency?
MR. CROW: Competency was not the issue, I don't believe.
MR. STIDHAM: It would be absolutely improper for the prosecutor to impeach him on any of that.
MR. CROW: He hasn't had a hearing yet.
MR. STIDHAM: He hasn't had a hearing. There's one scheduled. For the prosecutor to make that inference is absolutely and totally --
THE COURT: He said he wasn't going to do that.
MR. DAVIS: There is one thing -- and I'm not going to go into the specific questions I may ask him -- but I anticipate in his testimony he would indicate that a number of tests he gave were subjective in nature. In other words it was his personal interpretation of that test that rendered the result --
THE COURT: -- Those are fair questions.
MR. DAVIS: I may ask some things about his personal situation as far as his state of mind that would go to bearing on that subjective analysis.
THE COURT: That's all right. I don't think you need to ask him about any pending investigation by any licensing body, particularly if there's no -- if there had been a decision by them, that might have been a fair question.
MR. STIDHAM: Are you going to prevent the prosecutor from asking him if he is a member in good standing?
THE COURT: Why not? Is he a member of the board or society?
MR. STIDHAM: He is, yes.
THE COURT: Those questions are asked when you are qualifying a doctor. Are you a member of whatever boards or societies. I think those are proper questions. I don't think you need to go into any inference that he's being investigated or likely to lose his license, particularly if there has been no hearing on it. I'd grant the motion in that regard.
MR. STIDHAM: Moving along, on October 19th Mr. Crow and I on behalf of Mr. Misskelley joined in some death penalty motions that were heard in Jonesboro. I neglected to get an order. I just want to make sure I have the record straight. There was a motion to quash the information on the ground that it was unconstitutional due to its overlap.
THE COURT: Our Supreme Court has already ruled on those.