THE COURT: Let the record reflect this is out of the presence of the jury which hasn't been sworn at this time.
Mr. Misskelley, I need to ask you some questions. First of all, today is Wednesday, the 26th, and we are ready to proceed to jury trial and soon as we go out there, the clerk will swear in the jury. Do you understand that?
THE DEFENDANT: Um, tell the truth? Is that what you mean?
THE COURT: No, I'm asking you do you understand we are about to start your trial?
THE DEFENDANT: Oh, yeah, I understand.
THE COURT: I need to know if you are satisfied with Mr. Stidham and Mr. Crow's services, to this point.
THE DEFENDANT: Yes, sir.
THE COURT: Have you discussed with them all of the facts and circumstances of your case so they would be informed to adequately defend you?
THE DEFENDANT: Yes, sir.
THE COURT: Have they discussed with you the legal options that you have?
THE DEFENDANT: Yes.
THE COURT: Have they discussed with you any plea negotiations or offers made by the State?
THE DEFENDANT: Yes, sir.
THE COURT: You have rejected and turned down any offer to plead guilty in this case?
THE DEFENDANT: Yes, sir.
THE COURT: You have been advised of the State's offer, whatever it was -- gentlemen, for the record, what was it?
MR. CROW: Fifty years.
THE COURT: Have you had an opportunity to discuss that with your father, your parents or anyone else that you choose to besides Mr. Crow and Mr. Stidham?
THE DEFENDANT: No, sir.
THE COURT: Do you want to talk to anyone else about that?
THE DEFENDANT: I'd like to talk to my dad about it.
THE COURT: I want to give him a few minutes opportunity to --
MR. STIDHAM: I have spoken to his father about that, but the four of us have never sat down together.
THE COURT: I want you to do that before we get started.
Is there anything else you want to say for the record? Are we ready to proceed?
Mr. STIDHAM: I would like to know -- we had a discussion with the prosecution on Thursday, the last day that we were convened -- and there was some new evidence that I was told about. I was told where the source of the evidence was, but I was not informed as to the connection to the particular person that we are discussing, and I think it is time I be informed of that officially so I can proceed with the defense of my client. I have done a lot of guessing over the weekend. I have stayed out of the way. I have let the police do their investigation and let the prosecution do their investigation. But this is obviously -- could be some sort of exculpatory information and I demand that I be apprised of the entire situation and of the connection and know what's going on.
MR. FOGLEMAN: I think Mr. Stidham knows everything. It may be through surmise but from our conversations it is obvious to me that he does know that we have a statement from one of the people that worked or was an independent contractor for Creative Thinking which is making some kind of movie, that he obtained a knife in question that had what appeared to be blood on it and did turn out to be blood from Mark Byers, who is the father of one of the victims -- or stepfather --
MR. CROW: Adoptive father.
MR. FOGLEMAN: Adoptive father of one of the victims. And at this point we talked to Genetic Design this morning, and they have indicated, number one, they cannot tell us all of the individual results; for instance, which DQ Alpha type is Mark Byers and Melissa Byers and the son until it actually comes from the director of the corporation. But he did say they could not carry it any further -- their analysis -- than they already had, which showed that the DQ Alpha type of the blood that was found on the knife is what -- can't think of the number -- but anyway it is the same DQ Alpha type as that of Chris Byers.
MR. CROW: The victim.
MR. FOGLEMAN: The victim, Chris Byers. And that means that according to the expert there are eight percent of the population -- the white or Caucasian population -- that has that particular DQ Alpha type.
We also, Mr. Davis and I, have talked to the Medical Examiner in this case and he has indicated that the serrations on this particular knife are not consistent with the serration marks on any of the bodies like this knife that was found in the lake is.
MR. STIDHAM: Your Honor, my concern is I know where the police got the knife but I don't know how the Creative Thinking people got the knife.
MR. FOGLEMAN: I just said that he gave a statement to the police that Mark Byers gave him the knife.
MR. STIDHAM: That's all there is to it?
MR. FOGLEMAN: I don't have his statement. Inspector Gitchell has talked to him, and I have not talked to him about the specifics of the statement. I can get him here, see what he says.
MR. STIDHAM: I would like that information.
MR. FOGLEMAN: If Mr. Byers has just gotten here, Gary is going to try to interview him.
MR. STIDHAM: I certainly don't want to do anything to interfere with that.
MR. DAVIS: Judge, one thing. I certainly have nothing against Val or Scott personally and enjoy their company, but since this trial has been severed and they are no longer a party to this trial and I realize that 98 percent of what happens back here may not matter to them one way or another, but I don't think they have any more right to be back here than any attorney anywhere else that isn't involved in this case, and we would object to them being privy and back here during conferences that are out of the hearing of the jury and that during the course of the trial that they be seated -- if they want to observe it, they can observe it where other nonparticipants observe it but not be huddled up there where they can easily confer with defense counsel.
If they insist and if they want to do that, then we certainly feel it is our option to inform the jury that Damien's attorneys are up here consorting -- and point out during closing argument and things of that nature that Damien's attorneys are consorting with the defendant, Jessie Misskelley, and his defense team.
MR. STIDHAM: Judge, that is the most ridiculous thing I have ever heard in my long distinguished career as an attorney. And I would object -- does that mean Mr. Calvin can't come back here, too? That's ridiculous. They are officers of the Court and they have a stake in the outcome of this. Even though the trials have been severed, they have --
THE COURT: I'm going to let them come back. Although we don't have much room, it has kind of been traditional for lawyers who are curious and gawkers even to drift back in the back where conferences were held and to sit off to the side in front of the rail. That happens in every courthouse, although our circumstances are a little bit cramped right now. I don't have any particular problem with them back here.
Gentlemen, if you do sit behind the defense and the prosecution wants to point that out, I'm going to allow it. Particularly if you're making whispered conversations or carrying on, they'll certainly be permitted to indicate who you are and you are carrying on conversations and consulting so you might out of better interest for your own clients be removed during the trial from the defense team.
If they invite you to sit down, fine. But then surely they are going to be able to comment about it.
Mr. STIDHAM: Your Honor, would you note our objections to that -- the prosecutor making any mention of that whatsoever.
THE COURT: I just said I'm only going to allow that if they are up there conferring with you or sitting at counsel table or at close proximity to it conferring with you. If they are not, it is not a matter to be even mentioned.
MR. STIDHAM: If I get up during Mr. Davis' or Mr. Fogleman's direct examination of a witness and walk over to Mr. Price and ask him something or if he walks over and says something to me, they are going to be allowed in closing to say that Damien Echols' lawyers assisted in Mr. Misskelley's defense?
THE COURT: That's not what I'm saying.
MR. FOGLEMAN: I don't know why they need to be sitting inside the rail.
MR. STIDHAM: Judge, they are co-defendants' attorneys. They've got just as much right to --
MR. FOGLEMAN: Then they ought to be introduced as such.
THE COURT: If they are going to be sitting where it's obvious to everyone in the courtroom that you are conferring and acting in concert, then I'm going to let them comment on it if they want to. I just said they are welcome in the courtroom. They are welcome in the chambers. They're here. I'm not going to exclude them. But out in the courtroom -- if you want to consult with anybody, that's fair. If they are going to be sitting in close proximity to you where it is apparent that they're aiding and assisting, then the State is going to be permitted to point that out.
And I just suggested that they are welcome here, but they probably ought to move on down the bench a little bit. I don't care if you talk to them. That's up to you. I don't care if they talk to you. I'm surely not preventing that. I want that very clear. But if they sit at counsel table and confer with you, they are going to be able to point that out.
MR. STIDHAM: I don't anticipate that happening.
THE COURT: The jury would be entitled to know who these two distinguished looking young attorneys are that are up there. They may confuse them with an expert or something.
MR. DAVIS: We would also like to identify Mr. Price and Mr. Davidson along with whoever those two distinguished looking attorneys are.
MR FOGLEMAN: Your Honor, this is the statement of Doug Cooper who says that, "On December the 19th Doug Cooper received a hunting knife from Mark Byers at Mr. Byers' home during the late afternoon or early evening. Knife had a dark synthetic handle which the blade folded into. The total length of the knife was about nine inches. Mr. Cooper presented the knife to Joseph Berlinger and Bruce Sinofsky who in turn reported it to HBO. Upon being informed HBO demanded that the knife be returned to the West Memphis police. Mr. Cooper transferred the knife to Berlinger and Sinofsky who then sent the knife via Federal Express to Detective Gitchell of West Memphis."
Gary's notes say that, "Cooper said that he received the knife on December 19th, late afternoon from Mark Byers while at his residence. It was a folding type hunting knife, serrated egde blade, blade about three and a half to four and a half inches folding into handle. Handle was a composite type, black in color. Said by Byers, 'If I like or appreciated knives.' Was fishing all day, had been asleep on the couch. He left. Came back with the knife. Took the knife out. 'I want to give you something. I want to keep it in your car.'"
"Told him I didn't want the gift. Couldn't understand why he gave it to him. Said it was sharp. Said, 'It is between us. We have something between us. I want you to think of me if you should ever use it.' Safety, protection. Stayed maybe a half hour, forty-five minutes, then left. Took knife back to New York with me. Could tell the knife had been" -- looks like "used for a while." Maybe he meant could not -- or "could tell the knife had not," but there's not any "not" there.
"Looked like a serrated blade, cut leg off a deer in November. I have suspicions and my colleagues brought it to the attention of HBO. My possession was made known to them. They advised the knife to be turned over to the police. I gave verbal permission for the person -- Bruce and Joe together mailed the knife by Federal Express, shown as Gitchell sending and Gitchell receiving in order to protect identity. They videotaped possession of the knife and possession of the Fex Ex slip."
MR. STIDHAM: When do we expect a lab report from North Carolina?
MR. FOGLEMAN: Well, we talked to them this morning. Gary said that within 30 or 40 minutes of about ten minutes ago that we ought to be getting something from them faxed here and it is going to be handwritten. It's not going to be a formal official report, but that's what they said. And last check Mr. Byers had not arrived yet.
MR. STIDHAM: Your Honor, I have made a formal request that the interrogation or questioning of Mr. Byers be recorded from the beginning until the end.
THE COURT: I instructed Gitchell to record it as well. He plans to record his entire conversation and plans to advise him of his rights.
MR. STIDHAM: Thank you, your Honor.
THE COURT: And you will be given a copy of the interview.
MR. STIDHAM: Your Honor, I have a couple of motions in limine that I would like to present.
THE COURT: Let's go back on the record.
MR. STIDHAM: Back on July 26th, 1993, we filed a motion in limine for disclosure, and that was a very broad motion, and we have filed subsequent motions asking to exclude any reference to prior bad acts or juvenile offenses of the defendant. Obviously there may be some relevancy and the issue may be discussed at mitigation if that becomes necessary.
THE COURT: I thought I had already ruled on that.
MR. FOGLEMAN: You said that we -- when we were introducing them at the hearing, you said that you would take that up at the appropriate time as to whether they would be admissible.
It's our position as far as the advice of rights that the fact that he had been advised of his rights four or five times would be relevant if they put on the defense that they've indicated they would -- a false confession and he really didn't know what he was doing and that kind of thing.
THE COURT: I'd probably allow the advice of rights going to the issue of whether or not he knew and understood those rights and them having been given to him on three or four different occasions. However, any substantive juvenile offense that he was charged with -- I'm going to suppress that. That is not to be mentioned.
However, it might be relevant and admissible provided we got to the punishment phase of the trial. I'm not ruling on that at this point. I can see where that's possibly admissible during the punishment phase but during the guilt/innocence phase of the trial, no reference to any juvenile crime will be allowed.
MR. STIDHAM: Your Honor, we have also filed a motion in limine asking to exclude photographs of the victims and autopsy photographs.
I know that the Supreme Court has determined that those are relevant in showing wounds and things of that nature, but I would like to point out one thing that makes this case a little bit different from all the others that I've researched. That is, our defense is, your Honor, that we were not there and even if you look at Mr. Misskelley's statement nowhere in the statement does he indicate that he did anything to the victims or hurt them or cut them or anything of that nature and, therefore, we would submit that the prejudice of showing these very horrific pictures is going to be very great and their probative value actually as to what was Mr. Misskelley's participation in this, if you choose to believe his statement, certainly the prejudice outweighs the probative value, and we would ask that no photographs of the bodies be admitted into evidence in that the Medical Examiner can describe those wounds to the jury and that would be sufficient.
THE COURT: I'm going to deny that motion. The Medical Examiner can use his photographs, use photographs taken at the scene, so long as those photographs are used to depict the type of injuries sustained, the location of the wounds, the possible weapon used. There are a multitude of reasons why those photographs may be admissible. I will, however, consider the introduction of the photographs on an individual basis as tendered, and you can proffer your objection at that time.
Basically, I'm going to allow the photographs. I'm not going to allow repetitious and cumulative gory or gruesome photographs. I will allow a sufficient number for the State to prove cause of death, method and motive and manner of death if necessary.
And I'm not going to rule on the pictures until I see them and they're submitted to me. So what you will do is tender it to the defense and then to the Court, and then I'll rule it is either admissible or not admissible.
And my initial ruling is whatever is necessary for them to show the extent of the injuries I'm going to allow but not cumulative and duplicative type photographs.
MR. STIDHAM: If the State has no objection, could we have a few minutes to look at those and get those ruled on before we get in there?
THE COURT: I think y'all need to look at them and see what you can agree on and the ones you can't, set aside, and then I will rule on them.
MR. STIDHAM: The Court won't permit repetition.
THE COURT: No.
MR. DAVIS: We don't anticipate those coming in until at least sometime tomorrow.
MR. FOGLEMAN: There are some crime scene photographs.
MR. STIDHAM: Depicting the bodies?
MR. FOGLEMAN: Sure. It is part of the crime scene. You have seen them all.
THE COURT: Give them an opportunity to see them when you tender them, and I'll rule on them. I'm not going to rule in limine on photographs. I will, if they become repetitious or overly -- repetitious photographs are not going to be allowed.
MR. STIDHAM: Your Honor, two other motions, one of which is a motion challenging the constitutionality of Arkansas Code Annotated 16-8911 (d). That deals with the corroboration necessary to convict someone based on a confession.
And our challenge to that statute is based on the fact that the defendant is entitled to a fair and impartial trial under the terms of both the Arkansas and United States Constitutions and the provisions of Arkansas law requiring corroboration of a confession in a criminal case are unconstitutional in that they are violative of the fair trial and due process clauses of the United States Constitution in that they only require proof that the offense charged was actually committed by someone in order to corroborate a confession.
Further, the current law does not account for the possibility of a false confession by a criminal defendant. And we would further submit that not requiring the State to corroborate a confession by producing some evidence independent of the confession that the defendant himself actually committed the crime, violates the due process rights of the defendant.
We would also submit, your Honor, that the current provisions of Arkansas law regarding corroboration of a confession is violative of Arkansas Code Annotated five dash one dash one eleven A one which provides that the State is required to prove each element of the charges against the defendant beyond a reasonable doubt.
And that not requiring the State to corroborate a confession by producing evidence independent of a confession that the defendant himself actually committed the crime, unfairly shifts the burden of proof to the defendant who is not legally required to prove his innocence.
Also, we would submit that the legislature in promulgating sixteen dash eighty-nine dash one eleven D they promulgated and pronounced an arbitrary and unreasonable classification of the defendants, and that is a denial of the equal protection rights of the defendant which are guaranteed him under the Fourteenth Amendment of the United States Constitution.
Basically, our argument there is, your Honor, that a co-defendant can't be convicted solely upon the statement of another co-defendant. For example, if Mr. Misskelley was to testify against one of the other two co-defendants, the State would be required to prove -- provide some evidence corroborating that and linking that particular co-defendant to the crime, and that is not required to corroborate a confession of the defendant himself and, therefore, the State is treating these two co-defendants differently, and we submit that that is a violation of equal protection.
THE COURT: Denied. You might raise those on a motion for directed verdict. I might consider them at that time. I'm going to deny your constitutional challenge of the statute. There are a multitude of cases following that annotation. In fact there are several pages of cases that our Court has ruled on those issues, and it is extremely well-established law and, therefore, it is denied.
MR. STIDHAM: Your Honor, thank you for your consideration. That leaves us with one motion that hasn't been ruled upon yet and that is a motion regarding comment on the evidence and while I feel a little bit reluctant to raise this motion, I felt that it was important.
MR. DAVIS: Is this the "Lohnes Tiner motion?"
MR. STIDHAM: I've heard it referred to as that. Basically, I don't know if you've had an opportunity to review that or not, but your Honor has a long distinguished career as prosecuting attorney and judge and in previous trials and also in this trial I notice that your Honor likes to participate in the interrogation of witnesses, and there was at one point when I had an expert on the stand at a previous hearing that your Honor made a comment about "street smarts" and "street wise" and there wasn't a jury in the box and I didn't make an objection at that point --
THE COURT: I think my comment to the psychologist was, "Did he have street smarts? Was he able to --" or something to that effect. But that certainly wasn't a comment on the evidence and Lohnes Tiner notwithstanding, if the Court feels the need to ask a question for clarity purposes and to inform the jury, that is my duty and responsibility, and I am going to ask any question that I think is pertinent. Whether it's the State's witness or defense witness. If it is necessary to clarify an issue for the jury or the Court, then I'm going to ask what I feel is appropriate.
MR. STIDHAM: Your Honor, I'm not suggesting that you don't have the right to do that under Arkansas law but the point I want to make is --
THE COURT: I'm not going to try the case for anyone if that is the point you're trying to make.
MR. STIDHAM: The point that I'm trying to make and doing so without angering the Court --
THE COURT: I'm not getting angry at anyone.
MR. STIDHAM: Your Honor, the point that we are trying to make in our motion is not that the Court doesn't have the power to ask questions. The point we are trying to establish is that the jury is going to look to your Honor as a leader and if you ask a particular question that perhaps the prosecutor may have forgot to ask and any response or comment that you might make could have an effect upon the jury, and we ask that your Honor be careful in choosing comments and questions.
THE COURT: I'm not going to comment on the evidence. I might ask a question that you forgot to ask as well or should have asked.
MR. STIDHAM: I also have an order ruling on our motion in limine to exclude the prosecutor from mentioning the finding of voluntariness of the confession --
THE COURT: No, you're not going to do that. I'm not going to allow them to do that in opening statement that the judge has found his statement was voluntary. I'll grant a motion in limine to that effect. I'm not going to allow you to say it either or comment on it.
MR. STIDHAM: I have no desire to do that.
THE COURT: In fact I don't want either one of you commenting on any order that the Court enters. I don't think that's appropriate. If I entered an order, it's the law of the case.