IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
WESTERN DISTRICT
DAMIEN ECHOLS and CHARLES JASON BALDWIN, PLAINTIFFS,
vs. CR-93-450A & 450 B
THE STATE OF ARKANSAS, RESPONDENT.
______________________________/
IN THE
WESTERN DISTRICT
JESSIE LLOYD MISSKELLEY, JR. PLAINTIFF,
CR-93-47
vs.
THE STATE OF
_____________________________/
JOINT STATUS AND CASE MANAGEMENT
MEMORANDUM SUBMITTED BY ALL PARTIES
DEPT: THE HON. DAVID
BURNETT, CIRCUIT JUDGE
-1-
1. INTRODUCTION
Prior to their receipt of this Court’s January 29, 2008 letter
counsel for the parties in this case had been in discussions about case
management issues. In an effort to respond to the Court’s scheduling
concerns, and to inform the Court of the status of these matters to assist the
Court in making further case management decisions, the parties are submitting
this Joint Status and Case Management Memorandum. In doing so, the parties
inform the Court that for a variety of reasons, stated below, they cannot begin
a multi week evidentiary hearing on April 14, 2008. Moreover, the case cannot
be fully briefed by then. However, the parties respectfully suggest that the
Court maintain the April 14 date for a case management conference and motion
hearing to resolve a number of issues summarized below.
In addressing this Memorandum to the Court, the parties respectfully note that
in its January 29, 2008 letter, the Court appears to be approaching this case
on the basis that all conditions precedent to an evidentiary hearing have been
met, all necessary pleadings filed, all discovery or case management Orders
entered, and all other work completed. That is not the case. As the parties
further explain below, first, there is additional agreed upon DNA testing to be
completed, as described below. Second, there are several matters that need to
be brought to the Court’s attention, and certain rulings obtained prior
to the filing of amended (or original) Petitions and responses from the State. In
addition,
-2-
as further noted, it is doubtful that the hearing contemplated by the Court can
be completed in a week or two. Further, most of the counsel involved in this
case have preexisting scheduling conflicts that will need to be discussed with
the Court. Finally, neither the State of
As a result, the parties propose that hearings in this matter be held on April
14, 2008, with a view towards obtaining necessary Orders, and setting forth a
realistic hearing schedule given the issues presented and known by the parties
in this case to exist.
II. CASE STATUS MEMORANDUM
a) DNA experts are still reviewing
issues in this case and further testing is being undertaken
As previously reported to the Court, as of last year, considerable progress had
been made in completing DNA testing. The data available to the parties
indicates that there are some foreign biological materials (meaning biological
materials such as hair shafts, or other cellular material) that are not
identified as having come from any of the three victims or any of the three
defendants/Petitioners. Further testing indicated that some hairs found at the
crime scene may have similar profiles to persons whose DNA profiles are known,
including the step-father of one of the victims, and a male friend of the
step-father’s. Some biological material was also found in material swabbed
from the
-3-
penis of one of the victims. In an effort to see whether this foreign material
can be profiled and identified, further DNA testing, using another type of DNA
testing that has been employed to date, is in progress as this report is
prepared.
In addition, the parties may seek a ruling from the Court on whether any
additional DNA testing conducted from this point forward can be the subject of
the basis for any amendment of current or soon to be filed post-conviction
actions by the Petitioners here, or successor Petitions - a ruling that may
influence whether the defendant Petitioners seek leave of the Court to complete
further DNA testing. It may be, since not all items subject to DNA testing have
been tested, that some additional DNA testing may be undertaken.
b) In addition, there are rulings
that the Court will be required to make
on matters on which the parties have
agreed to disagree
According to the procedure agreed upon by the parties in this case,
evidence has been reviewed, and agreements have been reached to allow the
laboratory testing of material, the results of which are contemplated to be
incorporated into Petitions for Writ of Habeas Corpus brought under A.C.A.
§§ 16-112-201 et seq.
However, from the beginning of the discussions between the parties on these
matters, it became evident that there were certain areas in which the parties
disagreed - for example, defendants/Petitioners and the State have disagreed on
whether the fiber evidence that was the subject of testimony during the
Echols/Baldwin trial should be released for further
-4-
testing by the defense, or whether the fiber evidence does not meet the
criteria specified in A.C.A. §16-112-201.
The State has taken the position that the fiber testing done at the trial level
demonstrates that the scientific evidence was available at trial. A.C.A.
§16-112-201(a)(1). The defense has taken the position that the
State’s fiber testing documentation does not establish that the fiber
evidence was processed according to then-existent scientific standards and
further that other techniques available for use to process the fiber evidence
establish that ‘the scientific predicate for the claim could not have
been previously discovered through the exercise of due diligence...’ at
the time of trial, thereby setting the stage for an Order releasing the fiber
evidence to be tested by experts on the testing of fibers, using current
technologies and processes. A.C.A. §16-112-201(a)(1) and (2).
In addition to the above specified controversy which requires resolution by the
Court, the parties have also discussed the implications of certain fingerprint
evidence, and a record will need to be made so as to establish whether there
was scientific evidence not available at trial that fits the A.C.A. §16-112-201(a)(1)
definition.
c) Defendants/Petitioners have some
outstanding discovery requests to bring to the Court’s
attention
The parties have, over the past few years, discussed this case on an ongoing
basis.
-5-
In May, 2007, the parties’ experts on forensic pathology met to discuss
the case, and one result of that meeting was that the Arkansas Crime Laboratory
indicated that it would complete a review of its records to ascertain whether
it had any evidence from other cases (in which human remains were found in
bodies of water) that might be relevant to this case.
Also, because both parties have been conducting post-conviction investigation
of this matter, with the acquisition of further information about witness
information and credibility issues, it will be necessary for a record to be
made of the status of postconviction discovery to avoid the possibility that
these cases may leave the Arkansas State courts without having received a full
and fair adjudication.
d) None of the defendants/Petitioners
has yet to file a statutory habeas corpus Petition, or Amended Rule 37
Petition, or any other Petition pending completion of scientific testing and
rulings on case management issues specified above
While the Court’s January 29, 2008 letter contemplates a hearing
beginning on April 14, 2008 on State habeas Petitions, and Petitions for relief
pursuant to Rule 37, for a number of reasons (including those described above)
none of the defendants/Petitioners yet has final State habeas or Rule 37
Petitions pending in this Court. Moreover, any Petition filed on an interim
basis (a situation that the parties had attempted to avoid by ensuring that all
testing was completed before the just-described Petitions were filed) may need
to be amended depending on the Court’s rulings on the above issues. Since
-6-
defendants/Petitioners want to ensure that they have made every effort to
fulfill the Federal requirement of a ‘fair and full’ State
post-conviction hearing process, the parties respectfully suggest that the
Court should consider the above matters before scheduling any evidentiary
hearing in this case.
e) The State will need time to
respond to the various defense filings
The State anticipates that the defense pleadings will be voluminous. It will
take time for the State to respond to all of the anticipated defense pleadings.
The current schedule does not allow adequate time for the State’s
replies.
f) Most defense counsel have
pre-existing obligations and scheduling
conflicts
Undersigned Dennis Riordan, Lead Counsel for Petitioner Echols has a
preexisting hearing set in the matter of the extradition of Sergio Dorantes
Zurita, XR0790051 (JCS) MJJ, in the Federal District Court, Northern District
of California.
Undersigned co-counsel for Jason Baldwin, J. Blake Hendrix, has pre-existing
hearings in U.S. v. Fennell,
4-0700086 JMM,
-7-
Philip J. Moscone, San Francisco Superior Court, People v. Bell, No. 2301301. It is a multiple defendant
case.
Undersigned Michael Burt is also counsel of record in People v. Bell, the case just
described. Mr. Burt is also counsel of record in a murder trial that was
scheduled on January 18, 2008 to begin on March 25, 2008. That trial is
estimated to take 4 to 6 weeks. The title of the case is People v. Pizarro, Case No. M8517. Mr.
Burt may be given a recess in the matter simply to attend the commencement of
the hearings in People v.
III. BECAUSE OF THE NEED FOR THE
ABOVE-DESCRIBED LITIGATION, PREPARATION, AND PRODUCTION OF DOCUMENTS, THE
PARTIES RESPECTFULLY SUBMIT THAT THEY WILL NOT BE READY TO BEGIN AN EVIDENTIARY
HEARING ON APRIL 14, 2008 BUT WILL BE AVAILABLE TO ADDRESS CERTAIN PRE-HEARING
MATTERS AT THAT TIME
Counsel for parties agree that it is doubtful, even were additional documents
filed
-8-
in the near future, that all parties would have necessary Petitions,
Oppositions, Replies, and Responses on file, and that all discovery and case
management related issues would have been briefed (and resolved) by April 14,
2008. Counsel have also been informed that the Court anticipates the hearings
in this case will take two weeks, which counsel respectfully believe is less
than the time necessary for the Court to accomplish what it has described in
its January 29, 2008 letter.
For example, the Petitioners have an interest in fully litigating the question
of how the injuries to the victims occurred, and whether the causes of death
were properly established at the time of the original trials. The Petitioners
anticipate having a series of witnesses on this subject alone, and while it is
likely that this is one of the aspects of the hearing that would be of interest
to all parties, undersigned counsel for the Petitioners anticipate that the
hearing on cause of death/forensic pathology issues alone will be protracted,
unless the Court denies all parties the opportunity to call witnesses on this
issue. If that is the case, then the parties will need the time to prepare
detailed affidavits with the relevant experts so that an adequate record can be
made for all concerned.
Similarly, while the parties agreed to the use of one DNA laboratory, it may be
necessary for either the State, the defense, or both to call more than one DNA
expert to explain the implications of certain DNA testing testing results. Again,
it is likely that such testimony will (if the Court allows it) take several
days to complete.
-9-
Based on the discussions, and meetings, in between the parties to date, the
parties anticipate the need for the presentation of experts in several
different areas of forensic science. First, while the parties agreed that a
specific DNA laboratory would conduct the testing, and prepare the reports, in
this case, they anticipate that the significance of the DNA results may be the
subject of some testimony- though it is possible that much of the
foundational evidence will be introduced through a combination of affidavits
and laboratory reports that may be the subject of stipulations.
An area Petitioners believe likely to be more contested involves the testimony
concerning mechanisms of injury and the causes of death of the victims-
evidence that Petitioners believe will involve specific descriptions of what scientific
evidence not available at trial establishes Petitioners’ actual innocence
(A.C.A. 116-12-201(a)(1)), and also evidence of whether the scientific
predicates for the claim could not have been previously discovered through the
exercise of due diligence, given the technologies, and protocols for the
determination of causes of death and mechanisms of injury available at the time
that these cases arose.
As will be demonstrated during the course of the testimony, some of the
evidence now being relied upon is the newly applied (and relatively newly
available) DNA technology. In the Arkansas Supreme Court’s opinion on
direct appeal in Echols and Baldwin,
the Arkansas Supreme Court described the facts as established by the evidence
-10-
as demonstrating that the Medical Examiner testified that there was bruising
and discoloring comparable to that frequently seen in children who were forced
to perform oral sex. One of the children (Steve Branch) victimized in the case
was described as having stab wounds, and injuries to his penis that indicated
that oral sex had been performed on him. A second one of the victims (Chris
Byers) was described as having had cuts around the anus and hemorrhaging
indicative that he was still alive when the cuts were made. He too is described
as having had injuries indicating that he had been forced to perform oral sex. Id. at 935-938. Petitioners contend the
new DNA evidence and anticipated testimony on cause of death and mechanism of
injury will address these issues.
The parties are guided in part by the review of the evidence by the Arkansas
Supreme Court in approaching the impact of scientific evidence developed, and
reviewed, during the post-conviction investigation - which will impact the
nature of the evidence that is relevant to the habeas corpus litigation
conducted under A.C.A. 116-12-201 et seq.,
as well as to the context of the Rule 37 petitions that remain to be litigated
in the Misskelley and Baldwin cases.
It is partially for that reason that the parties respectfully submit that
proceeding to an evidentiary hearing before all necessary testing has been
completed, results reviewed and digested, and necessary experts prepared
(whether to tender affidavits or to testify)
-11-
would be counterproductive and not in the best interests of justice from the
viewpoint of all the parties, including the State and Petitioners.
CONCLUSION
For the reasons stated above, the parties respectfully submit that the
Court’s currently proposed schedule cannot realistically be met first because
testing is ongoing; second, because certain matters remain to be resolved by
the Court that may influence what further testing can be undertaken prior to
any hearing in this case; third, because all parties require further time to
complete briefing the issues; and fourth, because of scheduling conflicts
involving not only some of the counsel but also some of the proposed experts. Finally,
the parties submit that two to three weeks is less time than is likely
necessary to complete the hearings contemplated. The parties request the
opportunity to appear on April 14, 2008 to discuss case status and management
issues, and to litigate matters that should be reviewed prior to the
commencement of any evidentiary hearing, including but not limited to
addressing the scientific evidence that the parties have agreed to disagree
upon, and that the Petitioners at least seek permission to test.
//
//
//
-12-
Respectfully Submitted by the Following Parties:
THE STATE OF ARKANSAS
Dated: __________, 2008
By: __________
BRENT DAVIS
Prosecuting Attorney
Second Judicial District
PETITIONER DAMIEN ECHOLS
Dennis Riordan, Esq.
Don Horgan, Esq.
Theresa Gibbons, Esq.
Deborah Sallings, Esq.
Dated: __________, 2008.
By: ____________
DENNIS RIORDAN
Attorneys for Damien Echols
PETITIONER JESSIE MISSKELLEY
Michael N. Burt, Esq.
Jeffery M. Rosenzweig Esq.
Dated: __________, 2008
By: ____________
MICHAEL N. BURT
Attorneys for Jessie Misskelley, Jr.
-13-
PETITIONER CHARLES JASON BALDWIN
J. Blake Hendrix, Esq
John T. Philipsborn, Esq.
Dated: __________,
2008
By: ____________
JOHN T. PHILIPSBORN
Attorneys for Jason Baldwin
-14-
