(This transcription is transcribed from the audio file. Pages 1183-1186 [from this Hearing] of the court reporter's official transcript doesn't include the first half of this transcription.)
THE COURT: Good morning ladies and gentlemen. You're all awful low down there, can you -- is there anything we can do to elevate those chairs for the alternate jurors? It's almost like they're in a well. Are you all comfortable there? Okay I wanna be sure. Can you see alright? We'll try to do something to kind of raise you -- a little box or a platform in there -- raise you up a little bit if that's alright. Alright ladies and gentlemen, if you would stand and raise your right hand to be sworn as jurors in this case.
THE CLERK: You and each of you do solemnly swear and affirm that you will well and truly try this case now before the court and a true verdict render unless discharged by the court or withdrawn by the parties, so help you God?
MULTIPLE VOICES: I do.
THE COURT: Alright, you may be seated. And ladies and gentlemen, in just a moment the sheriff or one of the deputies will be passing out juror identification badges and we ask that you wear those badges while you're in or around the courthouse. If you take them home, invariably people will forget to bring them back so just leave them in the seat when you leave in the evening. You will also be given pencil and paper or writing material to take notes. You're not required to take notes, you're not gonna be tested on your recollection, um, well, that's not completely accurate. Your recollection of the facts will certainly be extremely important and those notes should be your own personal property, and you may refer to them during your deliberations to refresh your own recollection, so you may -- what I'm trying to say is, you may take notes if you think it will be helpful. This will be five, four to five days, maybe a week or two week trial. So certainly, notes that you take, you might find them to be helpful. And again, they're for your personal refreshing your recollection of the events, not to refresh your neighbor's recollection. Sheriff, you got paper ready for them? Alright gentlemen, you've already told me for the record in the chambers that you are -- the State was ready to proceed and the defense was ready to proceed?
MR. STIDHAM: That's correct, Your Honor.
MR: DAVIS: That's correct.
THE COURT: Alright let me give the officers just a second to pass out the paper so they won't interrupt or interfere with your opening statements, and then I'll allow you to proceed. It'll be just a minute. And to the ladies and gentlemen in the audience, you probably noticed the no smoking signs. We've -- after consulting with the county judge, the county officials, we've asked that the courthouse be declared non smoking during this trial. And that's simply because of the number of people that will be here, and we ask that you adhere to that decision. It shouldn't be necessary for me to remind anyone, but I don't want any audible sound from the audience during any testimony or during any ruling of the Court. If you have a comment you just get up and go outside to make it, 'cause I'm not gonna tolerate in here, it's not proper and I think you know and understand that. So no outbursts of any kind will be tolerated in or around the courtroom or for that matter on the courtyard, and it will be dealt with strongly and appropriately. Is there some question, gentlemen?
MR. STIDHAM: Your Honor, I was asking them about the rule, (?) rule, and we'll be asking that there'll be an exception made for the rule.
THE COURT: You mean as to expert witnesses?
MR. STIDHAM: That's correct, your Honor.
MR. DAVIS: Your Honor, as to the particular expert they're talking about, it's our opinion that he could be excluded from the rule to hear any experts we might offer to testify. But as far as anything to be gained from hearing the other testimony or anything that will bear on his opinion, it will be inappropriate for him to hear testimony just as it would other witnesses.
MR. STIDHAM: Your Honor, that's not the law. The law is clear that experts are allowed to remain in the courtroom and hear the testimony, and they can base their testimony on what they hear in the courtroom, and we would ask that the exception be made for our expert.
THE COURT: Well, if there are witnesses that can assimilate what they hear by way of testimony and use that information to form an opinion, that's true. But what witnesses are you talking about that need to do that?
MR. STIDHAM: Our psychologist, your Honor.
MR. DAVIS: Your Honor --
THE COURT: Approach the bench gentlemen. I need the cameras -- these microphones cut off. Are they off? Alright.
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH OUT OF THE HEARING OF THE JURY)
MR. STIDHAM: Your Honor, it's clear that the rules allows for this exception --
THE COURT: That's not the problem, Dan. What it is specifically he needs to hear in the courtroom?
MR. STIDHAM: Everything.
THE COURT: To form an opinion as to what?
MR. STIDHAM: Your Honor, he's gonna testify as to Mr. Misskelley's mental capability, and he's gonna testify as to what his mental capability was possibly during the interrogation, and we feel that's very important that he hear all testimony. I don't know exactly when this is gonna come in --
MR. FOGLEMAN: What has that got to do with mental capability?
MR. STIDHAM: Your Honor, what prejudice will the State have by allowing him to listen to the testimony?
MR. DAVIS: Judge, it's very important that Doctor Wilkins be confined to areas that his expertise actually applies to. They are attempting to range far beyond his area of his expertise --
MR. STIDHAM: -- Judge, they can bring that up at the proper time.
MR. DAVIS: Are you going to let me finish?
MR. STIDHAM: Sure.
MR. DAVIS: If they are allowed to have him listen to all the testimony, then he is going to get into areas that we feel like clearly go beyond his expertise and what we anticipate they're going to do is talk about based on what he's seen or observed how the officers influenced him and that is clearly not something he can give an opinion on.
MR. STIDHAM. Judge, he can give his opinion on that. They can challenge that at the appropriate time when he testifies but now is not the time to do that.
MR. FOGLEMAN: Mr. Stidham has indicated to the Court that the only thing that he will be giving opinions on is the defendant's mental capacity, either now or at the time the questioning occurred, and I don't see how anything he heard in the courtroom could affect his opinion on the defendant's mental capacity.
MR. STIDHAM: Judge, what are they afraid of? Are they afraid he's going to hear something that -- I just want to make it clear that he should be able to hear all the testimony and if there's anything that he hears --
THE COURT: I'm going to let him stay in.
MR. STIDHAM: Thank you, your Honor.
THE COURT: You've got any you want to stay in? Is that the only one?
MR. STIDHAM: Yes, your Honor.
(RETURN TO OPEN COURT)
THE COURT: You want the witnesses sworn at this time? Those that are here?
MR. FOGLEMAN: It doesn't make any difference to us, your Honor, when you do it.
