From AUDIO Part 2 - 0.00-4.48

THE COURT: Alright, let the record reflect that this is a hearing out of the presence of the jury and after the jury has proceeded to deliberation.

MR. CROW: Your Honor, we would move for a mistrial on the following bases. First, during the summation of Mr. Davis we believe he made a veiled comment on the silen-- on Mr. Misskelley's failure to testify. He talked about him sitting there with his head bent over, in different clothes, different hair cut, and he won't look you in the eye. We feel that was -- I don't know (that exact?) quote but the record will reflect what all he said and I feel that was a veiled reference to his --

MR. STIDHAM: Your Honor, it amounts to a comment that the defendant didn't testify.

THE COURT: You wanna respond?

MR. DAVIS: Judge, I can't recall exactly what I said, but it certainly wasn't intended to be a comment on his not testifying. It was a comment on the fact that his appearance here in the courtroom had been that of a meek, mild juvenile, or pre-juvenile, contrary to what his picture shows and contrary to what his actions indicated in the tape. I don't think I made any comment whatsoever on his failure to take the stand.

THE COURT: No, in fact you used the term "veiled" Mr. Stidham. The Court was conscious and aware of the comment made and did not feel at the time that is was an inappropriate remark that would single out or call to the attention of the jury the defendant's failure to testify. It just simply was too remote to do that in my opinion and a mistrial after several days of trial would be a drastic remedy and that if there was any error in that it was so minuscule that it was harmless. And I frankly didn't feel that from my observation of the closing argument, the tactic that it was employed was a proper inference that the jury could draw from the appearance of the defendant from the photographs that were introduced and his appearance during the trial, and, if anything, reflected his demeanor during the trial, and not his failure to testify in his own behalf and recant or deny any statement he made. So the motion for mistrial will be denied and the record's made on that issue.

MR. CROW: Thank you, Your Honor.

MR. STIDHAM: Thank you for your consideration, your Honor.

MR. CROW: I have a a couple other ones, your Honor, real quickly. Also ask for a mistrial on the ground of the prosecution's remarks during closing he talked about 99% of cases on people confessing are guilty. I objected during the trial when that response was solicited from Mr. Holmes -- although it was our witness we certainly didn't ask that question, your Honor, and objected. I thought that was using other people's guilt or innocence to reflect on the guilt or innocence of Mr. Misskelley. And it has now been compounded by the prosecutor's comment during closing, and I feel at this point --


MR. CROW: -- call for a mistrial.

THE COURT: Well, for several reasons I will deny the motion for mistrial. One, and perhaps the most important reason for denying it is no objection was made at the time. The Court was not given an opportunity, therefore, to rule upon any objectionable comment, nor was the Court given an opportunity to caution the jury on excessive language that any attorney might use other than the standard instruction that's given in 101. So your failure to object at the time in my estimation is a waiver of that objection. Secondly, it seems to me to be fair comment based upon the evidence and testimony and the nature of the defense, inasmuch as the defense called so-called experts or experts in the field of interrogation and suggested to the jury that the statement was contrived, manipulated, coerced, and otherwise involuntary, that is was an appropriate line of inquiry and that the very nature of the defense invoked those inquires and made that a pertinent subject matter of inquiry. That'll be my second reason for it.

MR. CROW: Thank you, your Honor.

THE COURT: Alright.