THE COURT: To the ladies and gentlemen of the media, there has been an objection made to cameras in the courtroom. So what I'm proposing to do is to allow you to make a few shots and you're going to have to exit the courtroom. I will allow you to remain in until the defendants are brought in, and then you can get those shots made, and then I'm going to ask that you leave the courtroom. Those of you with still cameras -- that rule -- gentlemen, are you objecting to still shots?
MR. FOGLEMAN: Your Honor, we are objecting to all of them as of right now.
THE COURT: As of this moment.
MR. FOGLEMAN: As of this moment.
THE COURT: I'm going to allow them to make some shots in the courtroom since they're already set up. Then they can have that for their file photos.
MR. FOGLEMAN: As long as the record shows -- Barbara, are you --
THE COURT REPORTER: Yes, sir.
THE COURT: The record will reflect that there's been an objection made by the State.
REPORTER: Your Honor, could I ask for a clarification?
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THE COURT: Yes.
REPORTER: Do you object to the media being here or just the cameras?
THE COURT: No, I don't have an objection to the media.
MR. FOGLEMAN: We don't object to them either.
THE COURT: Nobody objects to that. This is an open courtroom. The objection is to the cameras. Sometimes they can be disruptive, and I understand that. Sometimes people that are called upon to testify are affected by the cameras, as well as the attorneys and the Court.
Gentlemen, the reason I'm allowing them to make the pictures now is because they'll just be outside trying to get them as they come and go so let's get it over with.
My ruling is based upon the objection of one of the parties -- one of the lawyers involved – the cameras will be excluded from the courtroom. That does not exclude the press.
(CAMERAS LEAVING THE COURTROOM)
THE COURT: The Court is ready to proceed with arraignment. Have the defendants been formally arraigned?
MR. WADLEY: No, your Honor.
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THE COURT: Are you asking a formal reading of the information?
MR. PRICE: Yes, Your Honor, we are.
THE COURT: Jessie Lloyd Misskelley. You are Jessie Lloyd Misskelley, Junior?
THE DEFENDANT: Yes, sir.
THE COURT: You are charged by an information filed by the prosecuting attorney's office with three counts of capital murder. It being alleged that on or about the fifth day of May, 1993, in Crittenden County, Arkansas, you did unlawfully and feloniously and with the premeditated and deliberated purpose of causing the death of another person cause the death of steven Edward Branch against the peace and dignity of the State of Arkansas.
It is also alleged in -- that information is CR-93-516 A and 517 A -- a similar charge -- it being alleged that on that on or about the fifth day of May, 1993, in Crittenden County, Arkansas, you did unlawfully and feloniously and with the premeditated and deliberated purpose of causing the death of another person cause the death of Michael Moore against the peace and dignity of the State of Arkansas.
It is further alleged in CR-93-518 A that you
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committed the crime of capital murder, it being alleged that on or about the fifth day of May in 1993 in Crittenden County, Arkansas, you did unlawfully and feloniously and with the premeditated and deliberated purpose of causing the death of another person cause the death of Christopher Byers.
Now that I have read the formal informations to you, do you understand the nature of the charges against you?
THE DEFENDANT: Yes.
THE COURT: Have your attorneys informed you of the range of punishment for that charge? In other words do you understand the charges against you and the potential punishment?
THE DEFENDANT: Yeah, I understand.
THE COURT: How do you plead -- guilty or not guilty?
MR. STIDHAM: Not guilty, your Honor.
THE COURT: Your pleas of not guilty to all three counts will be noted. You may have a seat.
THE COURT: Charles Jason Baldwin. You're Charles Jason Baldwin?
THE DEFENDANT: Yes, sir.
THE COURT: You have been charged by three separate informations filed by the prosecuting
[000790]
attorney's office with the crime of capital murder, it being alleged that on or about the fifth day of May in 1993 in Crittenden County, Arkansas, you did unlawfully and feloniously and with the premeditated and deliberated purpose of causing the death of another person did cause the death of Christopher Byers.
And a similar information charged you with capital murder. On the fifth day of May in 1993 in Crittenden County, Arkansas, that you did unlawfully and feloniously and with the premeditated and deliberated purpose of causing the death of another person cause the death of Michael Moore.
And in a separate information, a similar charge of capital murder, it being alleged that on or about the same day, the fifth of May, 1993, in Crittenden County, Arkansas, you did unlawfully and feloniously and with the premeditated and deliberated purpose of causing the death of another person cause the death of Steven Edward Branch.
Do you understand what you're charged with?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand the range of punishment?
THE DEFENDANT: Yes, sir.
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THE COURT: How do you plead to those charges -- guilty or not guilty?
MR. WADLEY: Your Honor, as to each information we would enter a plea of not guilty.
THE COURT: Pleas of not guilty will be shown in all three counts. You may have a seat.
Damien Wayne Echols. You're Damien Wayne Echols?
THE DEFENDANT: Yes, sir.
THE COURT: You are charged in three separate informations filed by the prosecuting attorney's office with the offense of capital murder, it being alleged that on or about the fifth day of May in 1993 in Crittenden County, Arkansas, you did unlawfully and feloniously and with the premeditated and deliberated purpose of causing the death of another person cause the death of Michael Moore.
A similar information charges you with capital murder, it being alleged that on or about the fifth day of May, 1993, in Crittenden County, Arkansas, you did unlawfully and feloniously and with the premeditated and deliberated purpose of causing the death of another person cause the death of Steven Edward Branch.
And a similar information charges you with capital murder, it being alleged that on or about the
[000792]
fifth day of May 1993, you did unlawfully and feloniously with the premeditated and deliberated purpose of causing the death of another person cause the death of Christopher Byers.
Do you understand what you are charged with in those three charges?
THE DEFENDANT: Yes, sir.
THE COURT: Has it been explained to you what the possible range of punishment is for those charges?
THE DEFENDANT: Yes, sir.
THE COURT: How do you plead -- guilty or not guilty?
THE DEFENDANT: Not guilty.
THE COURT: That is to all three counts?
THE DEFENDANT: Yes, sir.
THE COURT: Pleas of not guilty will be shown in all three counts.
Let's set a date for the termination of motions or a motion day and that will be the 27th day of September. As of the 27th of September all motions that you intend to file for severance, for suppression, for change of venue -- I will expect those motions to be of record of that date or not filed at all. That is the cut-off date.
I am ready to hear -- I understand that you are
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each ready to hear discovery motions. I think I'll take the State’s discovery motion first. That ought to be the easiest to dispose of.
MR. FOGLEMAN: Your Honor, the state on June 17 filed motions for discovery in each of the cases.
In regard to Jason Baldwin the State has requested that they be allowed blood, saliva, head hair, body hair, pubic hair, also fingerprints, footprints and handwriting specimens.
In regard to Mr. Misskelley, the State is requesting blood, saliva, head hair, body hair, pubic hair, fingerprints and footprints.
And in regard to Damien Echols the State is requesting footprints. This is all pursuant to Rule eighteen point one of the Arkansas Rules of Criminal Procedure.
THE COURT: All right, gentlemen. One at a time. Do you have any objection?
MR. WADLEY: Your Honor, as you're aware, myself and Paul Ford represent Jason Baldwin. The State has filed a motion, as Mr. Fogleman has just stated, requesting certain things from the defendant. Hair, saliva -- the things that the Court was just told about.
Your Honor, the state of Arkansas has already
[000794]
obtained these things from this defendant. We have filed a motion to suppress in this case. One of the issues dealing with that has to do -- the original search warrant requested the body of the defendant to recover these things. It's our position, your Honor, that these things were obtained illegally and not pursuant to Arkansas law, that the search was invalid and until his Honor makes a ruling on our motion to suppress in this case, we feel the State's motion requesting these items should not be granted until that time comes.
If the Court makes a ruling that these items were illegally obtained, the fruit of the poisonous tree doctrine will apply. That evidence will not be admissible and in Arkansas a violation in this manner results in exclusion of the evidence at trial. That is the remedy for a violation, for instance, an illegal search.
Therefore, until the Court hears our suppression motion and rules on that motion, then the State's request should not be granted until the Court makes a ruling on the motion to suppress.
We don't feel, Judge, that they should be able to -- until that happens come back in and take more samples.
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MR. FOGLEMAN: I'd like to respond to that, your Honor. Your Honor, it is my understanding that there may have been blood and hair and saliva taken from Charles Jason Baldwin at the time of the arrest. There was a question raised about whether it was covered sufficiently in the search warrant. Those items haven't been used. They have not been sent to the Crime Lab. We're asking under the rules of criminal procedure for an order permitting the taking of those samples. There is something that – it doesn't -- the fruit of the poisonous tree doctrine does not apply because we have not used those items. These are not items we would be obtaining as a result of an illegal search. They would be pursuant to the Court's order which we would be entitled to whether or not the search warrant covered it or not.
THE COURT: Are you telling me those items could possibly lead to substantive evidence?
MR. FOGLEMAN: Yes, sir.
THE COURT: All of them?
MR. FOGLEMAN: Yes, sir. And also -- the fingerprints I'm sure were taken. We. want a more detailed set of fingerprints. Footprints haven't been taken and we also want specimens of his handwriting which don't have anything to do with their objection.
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THE COURT: You don't have any objection to that?
MR. WADLEY: Judge, they have already taken handwriting samples.
MR. FOGLEMAN: That's not true, your Honor.
MR. WADLEY: You're telling us that hasn't happened?
MR. FOGLEMAN: No specimens of handwriting have been taken other than some writing materials from the defendant's home or trailer. We don't know -- until we have the handwriting samples, we don't know where they came from.
MR. WADLEY: In response to Mr. Fogleman, whether or not the State intends to introduce evidence or not has nothing to do, Judge, with an illegal search and the results of that afterwards. That's our position.
THE COURT: I understand that. The motion for discovery to take body fluids, hair or scrapings from the fingernails and et cetera, there has to be some indication that they would lead to evidence. In other words if there is no basis for taking a blood sample, I wouldn't order it. But apparently he's telling me there is trace evidence that they need to make comparisons on all of those items. Is that what you're telling the Court?
MR. FOGLEMAN: That's correct, your Honor.
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MR. WADLEY: Judge, we are telling the Court that they have already done that and we're telling the Court it was done in an improper way and the remedy is exclusion of the evidence.
THE COURT: I'm going to overrule your motion. I'm not ruling on the motion to suppress that that was already taken. I'll hear that at a later time. Plus, you would be entitled to raise the same objection you're raising now to any discoverable evidence that might be derived from these. Those are not unreasonable intrusions to the body. They are normally matters that the Court would routinely order in cases of this nature or any other. So I'm going to order the taking of those samples from the person and have them submitted to the Crime Lab. You can preserve any objection you had, and I'll rule on that later.
MR. WADLEY: Thank you, Judge. Note my exceptions.
THE COURT: Does anyone else object?
MR. STIDHAM: Your Honor, we object on the basis of the Fourth Amendment provisions and also amendments of the Arkansas Constitution. The basis for our objection basically is that the taking of these samples is an unnecessary and unreasonable intrusion
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to the body of the defendant. I would like to make that argument.
THE COURT: That argument can be noted. In many, many, many cases the Court has ruled that to take hair snippings, fingernail scrapings, blood samples, fingerprints, footprints, saliva, involve only a minor intrusion into the person and, therefore, are not subject to the constitutional objections that you raise and are routinely ordered by courts. I will grant that discovery motion.
MR. STIDHAM: Note our exception.
MR. WADLEY: I believe the State in its motion in regard to Mr. Baldwin is seeking skin samples. I don't know what they mean by that. I believe that's what they are asking for. I don't know, Judge. If they intend on taking that, we would like to be informed prior to the taking what intrusion they are talking about, Judge.
THE COURT: I'm kind of curious, too.
MR. FOGLEMAN: l am, too, your Honor. I hadn't seen anything in here about peeling their skin off or anything like that.
THE COURT: Well, I wouldn't allow you to do that.
MR. FOGLEMAN: Your Honor, it says in the motion
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in paragraph two we are looking for samples of blood and saliva, pubic hair, head hair, body hair, fingerprints, footprints, and handwriting specimens.
THE COURT: And that will be allowed over your objections. Your objections will be noted and you can preserve any objections to any discoverable evidence that might arise as a result of it.
MR. WADLEY: Thank you.
MR. STIDHAM: Your Honor, I believe the rule provides that defense counsel will be given notice of the time and place of the taking of these samples.
THE COURT: You can be present.
MR. PRICE: On behalf of Mr. Echols, the State's motion for discovery -- the only physical evidence they're requesting in paragraph two is his footprints. We have no objection to the State taking a sample of the footprints. If the State intends to take any other samples and if they have taken samples in the past, we have not received any kind of notice about that. We eertainly object to any previous samples that may have been taken without our knowledge.
THE COURT: I couldn't tell you that. I don't know.
MR. PRICE: As far as everything else in the motion for discovery, they are requesting names of
[000800]
witnesses, reports of any experts. We certainly don't have any objection. We certainly don't have that information at this time, but we will be providing that material as soon as discovery is completed on behalf of the State.
MR. STIDHAM: Is the Court going to make a ruling with regard to a deadline for discovery?
THE COURT: Yes. I gave that deadline earlier. The 27th of September.
MR. FOGLEMAN: Discovery was the 31st of August -- for the State.
THE COURT: Yes. I'm sorry. That's correct. I indicated that the State is to comply with your discovery motions -- as far as copying the file -- by the 31st of August.
MR. FOGLEMAN: Your Honor, I would state that to date the State has provided thirteen hundred and thirty-five pages to the defense.
MR. FORD: With respect to the State's request for names of witnesses, the content and character of the defense to be offered, we have a discovery cut-off by the 31st of August for the State to us.
THE COURT: Your response time would be the 27th of September by filing any motions to object.
MR. FORD: Are you saying that we must also file
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our responses to their discovery requests prior to September 27th as to witnesses?
THE COURT: If you have any additional discovery motions or any other motions to be raised, I expect it to be filed by the 27th.
MR. FOGLEMAN: Your Honor, I got a little confused on that. When does the defense respond to the State's discovery request?
THE COURT: I'm anticipating they should respond by the 27th of September or give a reason why. Do you have any problem with that?
MR. FORD: No, your Honor.
MR. STIDHAM: No, your Honor.
THE COURT: Do any of you want to present your discovery motions? I think they are fairly well being complied with. I've ordered him to give you a copy of the entire file -- three sets of it -- by August 31st. That's what you plan to do?
MR. FOGLEMAN: Yes, sir.
MR. FORD: Your Honor, the only thing we would like to have stated on the record that was discussed in chambers was that in addition to the copy of the entire file, the State also provide us with a list of witnesses, a list of all documentary evidence which they intend to introduce and a list of all tangible
[000802]
evidence which they intend to introduce.
THE COURT: I don't have any problem with that, do you?
MR. FOGLEMAN: Your Honor, the only problem there that I see -- the list of witnesses -- I don't have any problem with. The tangible documents and things -- that is something that as we prepare for trial, we will be deciding on one thing and changing our mind on another and it will come and go. They'll have everything that we've got. I don't think the State should be required to tell them, "Witness A is going to put in Document B" --
THE COURT: I'm not going to require you to do that. I think what he is asking for is a list of witnesses, which you don't have any problem with, and a list of the physical items, physical evidence that you might choose to introduce.
MR. FOGLEMAN: They'll have that through the discovery process.
MR. FORD: Your Honor, I think I'm speaking -- I know I'm speaking for Mr. Baldwin -- and I'm probably speaking for all of us. Mr. Fogleman said he has given us some thirteen hundred pages. A lot of that information is dry runs that the investigators in this case investigated every conceivable lead. They have
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document after document after document that relate to those things. If he's going to say, "I may introduce any of those thirteen hundred pages," I don't feel that's a reasonable response to our request for discovery.
I feel that he's going to know within reasonable certainty the certain number of documents out of that two thousand plus pages that may ultimately arrive, that he's going to know which one of those pages he's going to use and he's going to know that the great majority of it he has no intention to introduce. If that is the case, then we shouldn't have to be spending all our time and effort reviewing all those documents for the conceivable possibility they may be introduced into evidence.
MR. FOGLEMAN: Your Honor, the rule does not require us to tell the defense what evidence we are going to use and not going to use.
THE COURT: I understand you're giving them everything that is in the file.
MR. FOGLEMAN: That's correct, your Honor. By the 31st of August they will have seen every photograph. They will have seen all of the physical evidence, except for things that haven't gotten to us yet from the other sources.
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THE COURT: Such as lab reports.
MR. FOGLEMAN: Yes, sir.
THE COURT: I understand that.
MR. FORD: One last note and then I'll let the Court rule. We have thirteen some hundred odd pages. Mr. Fogleman is not personally doing the copying. We get to trial and he comes to a witness and says, "Can you identify this document?" And all of us lawyers will erupt saying, "We've never seen that."
And he says, "I gave it to you. It was in all those two thousand pages."
THE COURT: Then he's going to have to show me where it was.
MR. FORD: But he won't have what we actually got. He'll have what he has, but he won't have what was sent to us in those files like you saw this morning. He won't know whether something got omitted or not. If he has a list af documents that he intends to introduce and says, "These are a list af items that we may introduce," then we can double-check what we have and make sure we actually have it as opposed to coming to trial and it being one of those three page documents that got lost in the shuffle of some two thousand pages.
THE COURT: It will be to your advantage. If
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it's something that you were not provided, I would not allow its introduction.
MR. FORD: Your Honor, it would be in the Court's sound discretion whether or not it would be. He would have one officer of the Court telling him he didn't get it, and one officer of the Court telling him he did get it, and we don't have anything to resolve that dilemma except for you requiring today the State to give us a list.
THE COURT: How much trouble is it for them to have a date and time and place where they can go and look at the physical evidence?
MR. FOGLEMAN: We are going to do it by the 31st. In principle I don't have a problem with what Mr. Ford has now said but by the 31st of August -- I do have a problem with that. We won't be prepared for trial by the 31st of August. We can give them a list like that prior to trial.
MR. FORD: If he'll give us that list ten days prior to trial, that's sufficient time for us to go through it.
THE COURT: You ought to be able to give him that list ten days prior to trial.
MR. FORD: That satisfies my concern. If he'll give us everything and then ten days prior to trial if
[000806]
he will give us a list of items he'll introduce --
THE COURT: I'm going to rule that that be done. On the other hand, if you are given the entire file, you can read through it, too.
MR. FORD: I agree with that, your Honor.
MR. PRICE: One other matter to bring up that we discussed in chambers. I had requested and I think you said you would grant an order allowing us to go directly to the Crime Lab to make copies of the entire Crime Lab file.
THE COURT: Yes. You need to prepare a written order and that order should include that you be given copies of any report that the State Crime Lab might prepare and that you be permitted to view the physical evidence and the report in the presence of the Crime Lab representative.
MR. PRICE: Would that order also allow us to go directly to the Crittenden County or West Memphis Police Department to look at the physical evidence?
THE COURT: That is what I said. I want a date, time and place established where you can do that.
MR. FOGLEMAN: I just said we were going to be doing that by the 31st of August.
MR. PRICE: We will go to the police department by the 31st of August then?
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THE COURT: I anticipate prior to the 31st that they'll say, "You ean come view the physical evidence."
MR. PRICE: That's fine.
THE COURT: Do you have a problem giving them a time?
MR. FOGLEMAN: I cannot do that right now.
THE COURT: I understand that. Anything else we can discuss now? What about your severance motion?
MR. WADLEY: Your Honor, I believe it was discussed in chambers earlier that the State with respect to our motion for severance as to Mr. Baldwin and Mr. Misskelley, the State is not objeeting to our motion to sever the trial of those two defendants.
MR. FOGLEMAN: Your Honor, as a result of -- I believe it is Rule twenty-two point three -- I think they would be entitled to a severance of the defendant Misskelley because of his statement and we don't have any objection as to the severance as to the defendant Misskelley.
THE COURT: That will be granted.
MR. WADLEY: We have not filed but will file within the Court's deadline a motion to sever as between Mr. Baldwin and Mr. Echols and will do that timely, your Honor.
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THE COURT: All right. But the motion to sever Misskelley from Baldwin and Echols will be granted.
MR. DAVIDSON: I have an order for the Crime Lab to release the information.
THE COURT: Did it provide like I said --
MR. DAVIDSON: "It is therefore ordered that the State Medical Examiner release copies of all photographs and notes in the case of Michael Wayne Echols to defendant's attorneys, Val P. Price and Scott Davidson, to talk with them or the investigators of their office concerning the results of the autopsy and release other Crime Lab reports." I think that will be sufficient.
THE COURT: Are you asking for the autopsy protocol or lab notes?
MR. PRICE: Everything in the autopsy.
MR. DAVIDSON: Everything they have. I believe they would have notes also.
THE COURT: I don't have any problem with that, do you, Mr. Fogleman?
MR. FOGLEMAN: Your Honor, I think it would be better to have an order that covered all the defendants and all the attorneys. Also, this has a provision that requires the people in the State Medical Examiner's Office to talk with the defense
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attorneys or their investigators and although if the people at the Crime Lab want to talk with them, we certainly have no objection. I don't think it is appropriate to order them to talk to them if they don't choose to.
THE COURT: I think they'll talk to you.
MR. FOGLEMAN: I think they will, too, but I don't think it's appropriate to order them to.
THE COURT: Let's redo the order that includes all three defendants and omit the portion ordering them to discuss the case with you although I'm quite certain they will.
MR. FOGLEMAN: Your Honor, it also says that the attorneys will pay for the photographs. As a practical matter, we know that the attorneys won't be paying for the photographs. I would just as soon the State pay for the photographs.
THE COURT: Put it in there the State will be required to pay for the duplicating costs of the photographs, reports, autopsy protocol. Anything else?
MR. STIDHAM: We filed a motion asking that we be allowed separate and individual questioning of jurors at the time of voir dire. Do you want to take that up now?
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THE COURT: It might be appropriate to do it closer to any trial date, but right now I'm kind of indifferent about it. I have allowed that in the past. It would depend upon how the cases were tried. If we try one separately, all or all three separately, I'd probably allow individual voir dire. I have in the past. If we try two together, if I allow individual voir dire, I'm not going to allow both defense attorneys to go through a whole raft of questions that are identical or close to identical. Each of you would be allowed to ask specific questions as to your defendant as long as they are not repetitive. I think it would be better to rule specifically on that later.
MR. STIDHAM: We also filed a motion for --
THE COURT: -- Complete stenographic coverage and that will be granted. You asked for -- what else?
MR. STIDHAM: Asked that the jury charge be reduced to writing.
THE COURT: That will be done anyway for sure. I've never done a case that I haven't.
MR. STIDHAM: That's all I have.
THE COURT: Mr. Ford.
MR. FORD: Your Honor, I would like to address one thing to the Court. It has to do with money.
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Usually attorneys are interested in that. We are prepared today to file a motion for attorney's fees and I think the Court is well aware of the recent decision the Court is well aware of -- the State of Arkansas versus Independence County.
THE COURT: I think I have heard of it.
MR. FORD: Dealing with the fact that the State of Arkansas is required to bear the expense of Court appointed counsel as well as any investigative cost, any cost of testing physical evidence, et cetera. It goes without saying that the amount of time that will be required to be expended by counsel will be enormous. It was that very reason that led Judge Goodson to appoint co-counsel in each case due to the amount of time that would be involved.
THE COURT: Why was the public defender's office not given one of the cases?
MR. FORD: The public defender's office in the initial appearance in Municipal Court advised Judge Rainey as to a basis why there was a conflict of interest. I was not at the bench when that conversation took place, but I did speak to Mr. Montgomery about that and without -- I don't feel it is appropriate to state what that conflict was. However, Judge Rainey felt there was a conflict that
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would prohibit him from representing any of these parties, and that decision has been entered.
THE COURT: The reason I asked is because in that Independence County case the county had no public defender. It was following the procedure that many counties in this state followed that the Court would appoint local counsel and local counsel would be paid a fee established by statute and a hundred dollars for expenses. There was no public defender. The objection was of course that to require attorneys to basically serve the county -- to self-finance major cases.
Here we had a public defender. The public defender also had funds budgeted and allocated to hire attorneys where there were conflicts. Obviously there wouldn't be enough budgeted in this case.
All I can say is the Court will certainly take up and consider your request for attorney's fees, and I will order attorney's fees that are appropriate and within the law.
MR. FORD: In addition to asking that the Court order attorney's fees to be paid by the State, but that the Court also order that any expenses incurred to be reimbursed.
The question I have to the Court today is that we
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do not feel that we should have to self-finance this case until it is completed and then have all of our expenses reimbursed after we have already paid them or to spend the amount of time that we are going to have to spend and then be paid at one time.
We feel that it would be appropriate for the Court to entertain motions on a monthly basis and allow us to submit to the Court the amount of time and expenses that we have invested in this case, have the Court enter an order that those be paid on a monthly basis as opposed to proceeding on this case for the next six months and requiring us to self-finance that.
THE COURT: I understand your motion. Does the State have any position on that?
MR. FOGLEMAN: Your Honor, the only response that the State has -- there's two problems I see. The Attorney General's Office may need to be joined. I'm deputy prosecutor for Crittenden County, and I think the State ought to be paying it, too, rather than the county. Even though there's a public defender's office, the public defender did have a conflict. It's routine that the Court appoint attorneys just like there wasn't a public defender's office when there are conflicts and it is my position the State ought to be paying it.
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THE COURT: There is a specific statute that I ruled on in the Independence County case but in that case that fund was to defray extraordinary costs of counties and it is not -- they didn't keep much money in it.
MR. FOGLEMAN: I think the Attorney General may need to become involved to represent the interests of the State because I think the county's position is going to be more consistent with Mr. Ford. The county shouldn't be paying it. The State should.
THE COURT: That was the same issue raised in Batesville. It was the county versus the State. I guess it has to be resolved. File a petition bringing in the Attorney General's Office and let them respond to it. I want briefs on that if you want to bring the Attorney General's Office in.
In the meantime you gentlemen prepare monthly statements of your time and I want detailed time records. I want it to where I can look at it and see what you did and what you're saying you did on it. I'm talking about detailed. So you keep your time records, telephone calls.
Also, I meant to tell you gentlemen this. It is not a gag order, but I don't think that the lawyers for the State or defendant need to be carrying on
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direct conversations with the media about the case or about the presentation of the case, and you are each reminded of the Code of Ethics in that regard. If you stay within the Code of Ethics, I won't have any problem with it. If you get away from it, I'm going to get mad.
MR. FORD: I also wanted to put in the record that we are requesting monthly reimbursement of our time and expenses.
THE COURT: I'll look into that. I understand your problem. I just don't know who's going to pay you yet.
Anything else we can do now? The question that I'm sure -- we have discussed briefly in chambers -- that everyone wants to know is change of venue. I understand that nobody is ready for the Court to hear those at this time so I expect if you're going to request a change of venue, that that motion be filed prior to the cut-off date -- the 27th.
MR. FORD: Can we all also agree that we definitely be prepared to hear the motion on that date?
THE COURT: If you're asking for a change of venue, it's got to be filed by then and it is going to be heard then -- either granted or denied.
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MR. DAVIS: Could you set a date earlier than the 27th?
MR. FORD: How about a week prior to that, your Honor?
THE COURT: If you are requesting a change of venue, file it by the 17th of September or not at all. There's one motion for change of venue now?
MR .CROW: Yes, sir.
THE COURT: You all mentioned to me out of the judicial district. I would look at that, but you're going to have to -- I want that briefed and we all know the Swindler case, and I suggest that those circumstances were different than these.
Anyway, I will listen to that and consider it if you are seriously contending that. Anything else?
