February 22, 1994 Hearing

JONESBORO, ARKANSAS, FEBRUARY 22, 1994 AT 9:30 A.M.

(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH OUT OF THE HEARING OF THE JURY)

MR. DAVIS: Judge, before we get cranked up, we were going to ask that the entourage of the investigator and the assistant and everything that's inside the bar be asked to sit out in the audience.

MR. DAVIDSON: They‘re helping and assisting, your Honor. We'd ask that they remain.

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MR. DAVIS: Unless they're a party or counsel, they can provide whatever assistance they can provide from out in the audience without sitting there inside the bar.

MR. DAVIDSON: This is about the silliest stuff I‘ve ever heard in my life, your Honor.

MR. PRICE: This is my client's trial today. We have the right to have our staff and the right to defend our client the way we want to defend him. If that means we want the investigator sitting right behind us, we have that right.

MR. FOGLEMAN: Your Honor, there's three of them sitting over there.

MR. PRICE: They've all three been working on the case for the past nine months.

MR. FOGLEMAN: Your Honor, if we were to have an expected witness sitting at counsel table, it would be reversible error -- and even inside the rail.

THE COURT: After he testifies, if you want him there. I'll let you have him there. What is the need for him to he sitting right behind you?

MR. PRICE: It is to give us advice during the trial. They've been investigating this case. They've been helping on jury selection. They‘ve been helping us with witness preparation.

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THE COURT: All right. I'll let them stay.

MR. FOGLEMAN: All three of them?

THE COURT: Yes.

(RETURN TO OPEN COURT)

(THE COURT QUALIFYING JURY PANEL)

(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH)

MR. FORD: By my count, we have less than fifty-five jurors who are here who are ready to proceed, that there has been another panel that has been -- to be called in tomorrow. I feel it‘s a virtual impossibility to get a jury from these fifty.

THE COURT: We'll have another fifty to look at.

MR. FORD: I'm asking that the Court bring them all in at one time before we proceed and that both sides of the panel be qualified, that all qualified jurors he placed into the hat to be drawn out at random as opposed to two separate groups, that both groups be commingled and that we have an equal opportunity to have each one of those, if we say a hundred jurors, pulled at the same time.

THE COURT: Tomorrow that will be done but today we‘re going to proceed with the ones we've got.

MR. FORD: But tomorrow you will add those all into one pile.

THE COURT: Sure.

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MR. DAVIS: Will we have to go back through this again tomorrow?

THE COURT: Yes.

(RETURN TO OPEN COURT)

(VOIR DIRE PROCEEDINGS BEGUN AT THIS TIME)

(THE FOLLOWING PROCEEDINGS WERE HAD IN CHAMBERS)

MR. STIDHAM: Your Honor, the motion is fairly self-explanatory. It sets forth some things that I'm going to ask the Court for reIief with regard to Mr. Misskelley.

It has come to my attention -- and of course it was brought to the Court's attention last Thursday -- that Mr. Misskelley was brought from the Arkansas Department of Corrections. Mr. Crow and I are attorneys for record for Mr. Misskelley and our representation and the scope of the representation extends beyond his conviction on February the fourth. We are attorneys of record. Everyone involved -- including the prosecutors, the Craighead County Sheriff's office -- everyone has known that Mr. Crow and I represent Mr. Misskelley since we were appointed by the Court on June 7, 1993.

We object -- we never had an opportunity to object because the order was presented to the Court ex parte -- to Mr. Misskelley being transported from the

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Department of Corrections to Mr. Calvin's office. We understand it is not unusual for a prisoner to be transferred from the Department of Corrections in order to testify at trial, but two circumstances warrant what I believe rises to a level of prosecutorial misconduct in this matter.

The prosecution knew in no uncertain terms that Mr. Misskelley was not going to be testifying against his co-defendants, Mr. Echols and Mr. Baldwin. I notified the prosecutor's office of that. I made two trips to Pine Bluff to talk to my client regarding an offer that had been made by the prosecution. He rejected the offer and instructed me to pursue the appeal and that he would not be testifying against his co-defendants. That brings us back to him being transported from the Arkansas Department of Corrections.

While again in my brief I pointed out and in the motion itself that it is not unusual for a prisoner to be transferred, under Arkansas law the prosecution can't even call Mr. Misskelley once they've been notified that he would assert his Fifth Amendment privilege. They had no right whatsoever to pick him up at the Department of Corrections and transport him anyplace, much less the prosecuting attorney's office

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in Rector, Arkansas. I'm deeply disturbed by the conversation that took place between the Craighead County Sheriff's deputy, who I only know as Dickie. I don't know his last name. I think it may be Howell.

Mr. Misskelley has informed Mr. Crow and I of the conversation that took place. Basically they strongarmed him into believing it was in his best interests to testify. They even promised to bring his girlfriend to see him at the jail, Judge, and I think that is the most abhorent, ridiculous, flagrant violation of my client's rights that I have ever seen.

Also, I believe, your Honor, that they poisoned his mind against his attorneys and I think that is a flagrant violation of his constitutional rights. As was pointed out in our motion, as was pointed out in our brief -- and I'll be glad to go under oath if that's necessary and I have an affidavit prepared as well. I received a phone call at home at approximately 6:15. Mr. Crow notified me that Mr. Calvin had Mr. Misskelley in his office.

Upon receiving this word, I called Mr. Calvin. Mr. Calvin also told me Mr. Misskelley was in his office -- this was on February 17th. I instructed him that he was not to talk to my client and that I was on my way to Rector.

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At that point Mr. Crow and I arrived in Rector. We were allowed to talk to Mr. Misskelley in Joe Calvin's conference room. Mr. Misskelley was very reluctant to talk to us. Approximately fifteen minutes into our conference with our client, Mr. Davis and Mr. Calvin burst into the conference room and announced that they were tired of waiting, that they were going to take a statement from our client irregardless of what we thought or believed and irregardless of the situation.

I informed the prosecutors in a very spirited debate that they were violating my client's constitutional rights and I objected to him being there in the first place and them bursting in and demanding to take a statement from my client. They were kind enough to leave momentarily and again they entered the room and demanded in the presence of my client to take his statement and also demanded or stated in the presence of Mr. Misskelley that they were concerned that Mr. Crow and I would talk him out of giving them a statement.

At that point Mr. Misskelley stood up in the conference room and said, I'm giving a statement and walked out and he declined to further discuss the matter with us.

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At this time your Honor was called and apprised of the situation, and I declared to the Court my opinion as to Mr. Misskelley's mental competency. At that point, your Honor, I demanded -- or requested, I should say, a mental evaluation. That request was denied by the Court and as the Court knows, the Court permitted that an offer of use immunity be granted to Mr. Misskelley, and he was permitted to give a statement despite Mr. Crow and I's adamant objection.

The statement was given. Mr. Misskelley was then transported to Piggott to the county jail and in conversations that I have had with Mr. Misskelley Senior, he traveled from West Memphis to Piggott to talk to his son, and he was denied access to his son, still has been denied access to his son as we speak here today.

Yesterday, Mr. Misskelley contacted Mr. Crow at our office and informed Mr. Crow that he had talked to the prosecutors Sunday. Without our knowledge and consent, the meeting took place. They spoke to Mr. Misskelley without even bothering to inform us that that is what they were doing.

Mr. Crow learned yesterday from Mr. Davis that they had also talked to him on Saturday and also on Friday, and we informed the prosecutor again in no

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uncertain terms on Friday, February the 18th, that they were not to have any contact whatsoever with our client.

They have refused to obey this request, and they have proceeded to violate both Mr. Misskelley's Fifth Amendment rights and his Sixth Amendment rights.

As I pointed out in my brief, your Honor, this offer of use immunity they're going to -- I anticipate the prosecution will say, now that he's been offered use immunity, we can do whatever the hell we want.

I think it is absolutely abhorent and a monkey of justice for these prosecutors to allege that by the offer of use immunity and the circumstances that it was granted that, therefore, they can do whatever they want to with our client.

Mr. Misskelley informed Mr. Crow, your Honor, that they were at the jail yesterday with trial exhibits, going over trial exhibits with our client without our knowledge and our consent. That highly prejudices our ability to represent our client, interferes with our attorney-client relationship. It also harms irreparably in our opinion our ability to pursue a new trial on a remand if we are successful on appeal.

Mr. Misskelley informed Mr. Crow that he had

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doubts about his testifying against his co-defendants yesterday, and we object, and we have asked for specific relief in our motion.

My primary concern is that the prosecutor be ordered not to talk to Mr. Misskelley anymore, and I don't think that the Court should condone a violation of his Sixth Amendment rights just so the prosecutor will have an opportunity to formally offer use immunity and, therefore, circumvent his Fifth Amendment rights. I think it is abhorent, and we would ask that the prosecution be held in contempt in addition to them being ordered not to communicate with our client, and we'd also ask that the Court appoint a special prosecutor to investigate this matter.

THE COURT: Do you want to respond?

MR. FOGLEMAN: Your Honor, the only thing I want to respond to that I know about personally is paragraph eight where he alleges that when I talked to Jessie Senior that I asked him to talk his son into testifying and that Jessie Senior told me he would not be testifying. That is not correct. That is not true. Jessie Senior did not tell me that he would not be testifying against his co-defendants. To the contrary, he told me he didn't know whether he was guilty or not at that time.

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I'm sure that Brent will want to have more specific responses to some of the other things in there. I would like to say this: Number one, his request for a special prosecutor to investigate these acts -- there's nothing in here alleged that is alleged to be criminal so I don't know where he gets off asking for a special prosecutor.

Number two, Jessie has indicated from my information that he wanted to testify and that Mr. Stidham and Mr. Crow despite knowing that he had relevant information that could assist Mr. Misskelley, they have instructed him not to testify despite the fact that he wants to. I think an attorney needs to be appointed to represent Jessie Junior in advising him about testifying. I cannot imagine a situation where a client wants to testify, has told Mr. Stidham that he was involved in this, has told his daddy that he was involved in this in Mr. Stidham's presence, and still Mr. Stidham won't do anything to help his client. He could still have his appeal. Nothing that he does in this trial could affect his right to appeal. I'm sure Mr. Davis wants to respond more specifically to the other allegations.

MR. DAVIS: Judge, I'd like to clarify one thing while we are on the subject. In discussing it -- and

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we did -- I talked to Jessie Misskelley on Friday afternoon. On that morning I called Greg Crow and told him, "I'm going down there to talk with him. It will be under the same conditions I talked with him Thursday night. If you want to be there, you're welcome to be there, but I'm going to go talk with Jessie Misskelley."

When I arrived at the jail, Greg Crow was not there. I brought two witnesses into the jail cell. I advised Jessie Misskelley that his attorney, Greg Crow, had advised him not to talk with anyone, that if he desired to talk with me, it would be against the wishes of his attorney. And he advised me at that time that he had been the one who told me on Thursday night that he wanted me to come down Friday and talk to me, that he certainly wanted to talk with me and indicated that he did not want to follow the advice of his attorneys and wanted to talk with me on that afternoon.

Again on Saturday when I talked with him -- and I have a copy of the document signed and witnessed by an individual at the sheriff's department. He indicated, I advised him if he talked with us, it would be against the advice of his attorneys, that his attorneys advised him not to talk with me and if he

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talked with me, it would be against their advice and based on his own personal wishes. He again told me he wanted to speak with me. I talked with him on that day.

Again on Sunday the exact same procedure was followed. Mr. Fogleman was there that time. He was advised that Mr. Crow had said it was their advice not to talk with us. He said he desired to waive their advice, so to speak. I don't remember the exact language -- wanted to talk with us, and he did so on that date.

To clarify some incorrect statements that Mr. Stidham made, originally we went down to the Department of Correction on Tuesday, which would have been the Tuesday after Mr. Misskelley was convicted.

It was our information that on the way down to the Department of Corrections on Friday, that he had spoken, talked continuously for a period of two to three hours, however long it took to get there, describing his involvement and even indicating to the officers that he was not shocked by what the jury did because he basically deserved the punishment he received. He talked constantly about what -- his involvement in the case. The officers advised me of that information and that's when I contacted Dan

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Stidham to see if we should go down there to discuss his client's options and if he did in fact want to testify.

We then rode down to the Department of Corrections on Tuesday. Mr. Stidham rode with me. Mr. Fogleman and Mr. Gitchell met us at Brinkley, and we went to Pine Bluff. At that time, Mr. Stidham talked with him for approximately ten or fifteen minutes, at which point he came out of the room, grabbed a Bible. went back in and -- this is my personal observation -- but approximately 30 to 45 minutes later Mr. Stidham exited. He was very upset, unnerved, just kept mumbling things -- "I don't know what I'm supposed to do now. I don't know what to do now."

And after thirty minutes of conversation, it became apparent at that point that his client had indicated that he was involved in the murders and had in fact witnessed and played a part in the murders.

Mr. Stidham then went back into the room, at which time he did not allow us, nor did we request or insist on having contact with his client. He went back inside and talked for another hour and came back and to paraphrase indicated that his client's story matched with the facts much better and there were a

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few things we needed to do to be able to corroborate his statement.

At that point we got in our vehicles, and one of the things to corroborate his client's statement was to determine if there was an Evan Williams whiskey bottle under an overpass in West Memphis.

To quote Mr. Stidham, I believe at that time, "If we can find a bottle like he says, then that will convince me that it happened." At 9:30 or 10:00 at night we drive -- ten o'clock in the evening -- we proceed, the four of us, to roam underneath the overpasses of West Memphis and lo and behold find a broken bottle in the location indicated by his client.

We then take the bottle to a local liquor store where we proceeded to spend the better part of an hour matching the bottle with certain items, and lo and behold it matches with the brand name bottle Mr. Stidham had indicated that we should be looking for in the first place.

At that point Mr. Stidham says that wasn't good enough to convince him. Additional efforts were made. He then -- there was a week hiatus where there was no contact apparently.

On Tuesday evening -- on Tuesday he apparently went with Jessie Senior to the Department of

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Corrections. They had contact with Jessie down there. I received information through my secretary that Dan had come through town, stopped, played a portion of the tape and said that his client was indicating at this point he was not there and that he would not be testifying.

On Wednesday morning I called Dan's partner, Greg Crow, another defense attorney, talked to Mr. Crow and at that time was somewhat surprised to find out initially when they went in to speak with the defendant, that he indicated that he in fact was there and was present when this happened and that it was after his father made some remark as if, you couldn't be there, you couldn't possibly be there, before there was a change in attitude.

At that point I indicated to Greg that, "I think Dan has lost his objectivity. I think he has lost the best interest of his client."

I said, "If we can make arrangements to get your client up here, would you be agreeable to letting me talk to him and you be present when that occurred."

At that point Greg said, "I would be inclined to do that." Yesterday he informed me that what he recalled saying was, "I need to talk to Dan." My impression was he would be inclined to do it, but he

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didn't know exactly how he was going to do it without discussing it with Dan.

I make no bones to the Court -- I was dealing with Mr. Crow because I thought Mr. Stidham had lost objectivity as to what was in his client's best interest, what actually to do in order to get to the bottom of the truth.

Mr. Crow was then -- we prepared the order. The Court signed it. I have had witnesses brought back a thousand times and never have asked permission of defense attorneys or counsel for that person or anyone else to bring a person back from the Department of Corrections as a witness.

He was brought back on Thursday. I was called by Joe Calvin. He had just talked to Greg Crow. He then called Greg back and advised Greg that Jessie Misskelley, Junior was on the way back from the Department of Corrections and would he meet us either at the jail or at Joe's office. Greg said he thought it would be better to meet at Joe's office. At that point Greg said he would be there by 4:15 or 4:30 and he would meet us there.

We transmitted that information to the deputy that was bringing him back and told him to bring him straight to Joe's office. I left anticipating we

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would meet Greg Crow there.

When I arrived at the office, Joe said he had talked with Greg, that Greg said he had talked with Dan and Dan was upset and that Dan would not come down there. That Greg told Joe, "If when he gets there and he wants to give a statement, call us and we will be there."

When Officer Howell arrived with Jessie Misskelley, Junior, he brought him inside the law office. There was one question asked. Did he desire to give a statement. He said yes. We told him to stop. We picked up the telephone, called Greg Crow. Greg was then allowed to listen over the telephone as his client told him that, yes, he wanted to talk to us.

At that point Greg Crow and Dan Stidham started down. No additional questions were asked until they got there. The basic scenario once they arrived was they went in the room with Jessie. We could hear efforts being made to tell him that he didn't -- that he was wrong in the statements that he was making, that he should not talk with us, and at some point I walked in the room.

I said, "I'm here to take a statement. You are here. We called you here. You can advise your

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client. If you tell your client not to talk and he doesn't not want to talk, then there won't be a statement taken. If you advise your client that he's not to talk and he wants to give me a statement, then I'm here ready, willing and able to take a statement and that's what I intend to do. I didn't bring him back here so that we could spend two hours with you cross examining your client, trying to get him to change his story again."

At that point, I left the room and Jessie Misskelley, Junior walked out of the room behind me and refused to talk to his attorneys any further.

At one point Mr. Stidham did call your Honor, and I think at the point where he asked that -- told the Court that Jessie Misskelley needed a psychiatric evaluation, Mr. Crow, who was sitting next to me at that time, made the comment that someone in the room needed a psychiatric evaluation but he wasn't sure that it was Jessie Misskelley, Junior.

And at that point I was -- since other things had developed in talking with Mr. Misskelley over the weekend, I had concerns because in every conversation I have had with him he indicates insistently that he was present, he did observe these things and he does want to testify and can't understand why his attorneys

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are not interested in that.

It is surprising and concerning to me that his attorneys even though disagreeing on strategy have now apparently provided the content of the statement that was given that evening to other co-defense counsel, and it was shocking to me to learn from Mr. Misskelley that during the course of preparation for the last trial, that counsel for co-defendants were brought in to provide cross examination training regarding this case.

MR. WADLEY: You need to identify who you're talking about.

MR. DAVIS: Mr. Price. Not counsel for Jason Baldwin.

MR. PRICE: That's correct.

MR. DAVIS: That Mr. Stidham allowed one of the attorneys for the co-defendant to come in and according to Jessie Misskelley, Junior give two to three hours of cross examination in preparation for their testimony which appeared to me to create a significant conflict since the two interests of those defendants are not necessarily in accord, and it seemed to eliminate potential avenues available to Jessie Misskelley should he desire to take them.

It is my concern at this point -- number one, I

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don't think any of the relief requested in the motion -- one other thing I'd like to indicate -- Saturday morning --

MR. FOGLEMAN: Brent, one other thing while you're back on the Joe Calvin thing, the statement that Joe made before y'all left --

MR. DAVIS: One other thing is and there is a witness that was present the entire time that Mr. Stidham and Mr. Crow were at Joe Calvin's office the night the statement was taken of Jessie Misskelley, Junior and upon leaving, Mr. Stidham made the statement he didn't like what we did. His quote was, "I know there was nothing unethical about it and I would have done the exact same thing were I in your position, but I still don't like it." And that was his exact quote as he left the door that night heading back to Paragould.

On Saturday morning because -- Friday afternoon when I had contact with Jessie Misskelley, Junior -- I didn't receive the fax where Mr. Stidham chewed me out for outrageous conduct until after I had returned, but before I went Saturday, I contacted three who I consider to be very highly reputable defense attorneys, one being Bobby McDaniel, one being Bill Bristow and one being Kent Rubens and -- John talked

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to Kent personally. I didn't talk to him directly.

But in talking with Bobby and Bill Bristow, I outlined the scenario as it had occurred, the situation under which we had contact with Jessie Misskelley, Junior and asked him at that point based on their experience as a defense attorney, did they feel that it was necessary to have defense counsel present or to make any further contact with defense counsel if the defendant had indicated that he wanted to waive his rights and talk to us regarding this matter. All three of those attorneys advised me it would be a dereliction of my duty as prosecuting attorney to fail to make contact and that they felt that I had gone beyond any ethical requirements or any legal requirements in contacting Mr. Stidham and having him present for the first statement which was done Thursday and there was no additional requirement to make any additional contact with him as long as Mr. Misskelley was advised once again before each statement that this was against his attorney's advice previously and asked him if he independently and individually wanted to give his statement to us. That's what was done each time.

I think there's no merit to the motion. I certainly don't think that there's been any ethical or

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legal violations. At every discussion or statement Mr. Misskelley was advised that he was talking with us under complete use immunity, and it is my concern and I think it's the concern of Mr. Fogleman also that the biggest problem we have here now is that Jessie Misskelley, Junior is being represented by two attorneys who in spite of their client's wishes and desires are taking action which is not only not consistent but impeding what his intentions and desires are and it will create -- if he continues to take the position that he's going to testify as he has indicated to us on the last three occasions -- it will create a nightmare because there are certain privileged communications which attorneys who represent him will need to claim, and it is difficult for me to envision -- when Mr. Stidham is providing information from his client to defense attorneys of other co-defendants -- how he is going to be in a position to claim and preserve and protect his client's rights when it seems that at this point his wishes and his client's wishes are no longer consistent.

MR. STIDHAM: Your Honor, I would like to respond to that. First of all, I would point out that anything that I say or Mr. Crow says is not anything

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that Mr. Misskelley says. It shouldn't be used against him. That's privileged communications.

Second of all, I'd like to ask that Mr. Crow's affidavit be admitted for the purpose of this hearing. Mr. Crow has a different version of what happened. Your Honor, again, all this stuff that he says Mr. Misskelley told him Sunday, Saturday and Friday -- how did the prosecution get privy to this information? It's clear they violated his Sixth Amendment rights and once they did that, that gave them the authority which was granted by the Court to grant him use immunity.

THE COURT: You're talking about after Thursday night?

MR. STIDHAM: Yes. What they did is kidnap my client, contrary to what I had told them, that he was not going to testify.

Mr. Misskelley, my client, informed me -- and which I have a tape recorded conversation of that meeting -- that he did not want to testify, that he was not at the crime scene, that he did not want to testify. I made that very, very clear to Mr. Davis.

What Mr. Davis did was attempt to circumvent the attorney-client relationship --

MR. DAVIS: Can I interrupt?

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MR. STIDHAM: No, you can't interrupt. When I'm done, you can talk.

THE COURT: Go ahead.

MR. STIDHAM: What he did was kidnap my client through the assistance of the Craighead County Sheriff, poison my client's mind and basically by saying, we will get your girlfriend up here to see you and the judge is going to drop your sentence and it would be the right thing to do to testify.

Basically, what they did is they went in and violated my client's Sixth Amendment rights so they could back him in the corner, offer him use immunity and then violate his Fifth Amendment rights.

THE COURT: You're talking about what happened after Thursday night.

MR. STIDHAM: No, your Honor. I'm talking about what happened when they went and picked him up at Pine Bluff and brought him up to Joe Calvin's office.

Mr. Crow called Mr. Calvin and said, "We are not going to meet you at your office with our client. We are not going to do that." They did it anyway. They did everything they possibly could to violate my client's constitutional rights in contradiction to all established principles of the Sixth Amendment and under this guise of use immunity they could do

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whatever they want to with my client. It is ludicrous, Judge, and the Court should not condone that.

If Mr. Misskelley wants to testify, he should make that decision based on an intelligent waiver of his rights if he wants to do that and with the prosecutors kidnapping him and bringing him to the prosecutor's offices and busting in the room and interfering with my attorney-client relationship, I think that is absolutely absurd. No court has ever condoned such activity.

MR. FOGLEMAN: Your Honor, Mr. Misskelley did make the statement that he was mad at Mr. Stidham because Mr. Stidham had cussed at him.

THE COURT: Did you record all of that conversation down at the penitentiary or just the last part of it?

MR. STIDHAM: I recorded most of the conversation --

THE COURT: -- Did you disclose that to anybody?

MR. STIDHAM: I played to Mr. Davis' secretary Mr. Misskelley saying that he did not wish to testify.

MR. DAVIS: Did you disclose it to anyone else?

MR. STIDHAM: I told the defense lawyers that he told me on February 15th that he was not going to

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testify. I think all of them were present in the room. They will confirm that. I informed them. They had a right to know whether he was going to testify or not. The prosecution requested that I go down and ask him that, and I told them that's not what he wanted to do. He did not want to testify. All this stuff, your Honor, that he says Mr. Misskelley told him -- that was after they had violated his rights, and I think it is absolutely improper.

MR. FOGLEMAN: Your Honor, whether he wanted to testify or not, he told Mr. Stidham before we ever had any contact that he was involved. He did tell him that. And he is a witness and if he's given use immunity, it doesn't matter what Mr. Stidham says.

MR. STIDHAM: Look at the way use immunity was granted.

THE COURT: Let me get to that real quick. One, the Court was aware that Mr. Misskelley had made statements to officers. I discussed it with both defense and prosecution, I think you both were present. I also knew that each of you were going down to the penitentiary to visit with him. I'm aware that you went down there. Exactly whether or not he was going to give a statement, I'm not sure of.

From that point on, I received not just one

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telephone call but at least three, maybe four, originating from Joe Calvin's office on Thursday evening of last week.

MR. PRICE: Can you state the contents of the conversations?

THE COURT: I'm going to do the best I can. I don't remember who called me first. But I talked to you, Mr. Stidham. I talked to Greg. I talked to Joe Calvin, Brent -- I don't remember whether I talked to John Fogleman. I don't think I did. Y'all were asking me to make a ruling from my den where I was watching TV in my underwear. And you popped all this on me where everybody was angry with each other, and essentially what you have outlined here today you outlined to me over the phone.

You asked me what you do. Frankly, I was put back by the whole circumstance and what I told each of you to do was that the only thing that mattered was what Jessie Misskelley wanted to do and that you should advise him that he didn't have to make a statement to anyone and that it was your advice for him as his defense attorney not to make a statement and that it was again your advice if he made such a statement.

Further, I told you if he persisted in it, you

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should request and demand that the State grant you use immunity for him. That if they were going to take a statement against your desires and over your objection, that the boy should be afforded that protection, that anything he said from that point on could not be used against him in any subsequent legal proceeding.

I also instructed each of you if a statement was going to be taken, if further conversation was going to be carried on, to record it.

MR. DAVIS: Judge, I have got a transcript certified by the transcriptionist that I would make part of this.

THE COURT: I want it made --

MR. STIDHAM: Your Honor, do you recall me also informing you that in my opinion Mr. Misskelley was perjuring himself?

THE COURT: Yes. You indicated that you didn't believe the story that he was involved. I told you if you didn't believe him, you were in a dilemma and that was something that you probably were ethically bound to report to the Court --

MR. STIDHAM: That's why I did it, your Honor.

THE COURT: And I told you if you felt that way and believed that, then you probably should make that

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statement on the record that I was asking y'all to make since everybody was present and that's -- y'all called me back three or four times -- how many times was it --

MR. DAVIS: I think it was three.

THE COURT: Essentially, I told you do whatever you had to do based upon the circumstances. Make sure you had a recording of what took place and that Mr. Misskelley was advised, that that was your obligation as a lawyer to advise him that it was against your best judgment. That it's Misskelley's decision, not the prosecution, not the Court's, not the defense attorneys as to what he might do.

In that regard I'm going to appoint an independent attorney to question him further and to obtain from him his opinion as to whether or not Mr. Misskelley is willing to testify and I'm going to have him record that conversation with him.

MR. STIDHAM: Your Honor, am I being relieved?

THE COURT: No. You have the obligation to perfect the appeal unless you are relieved by the Supreme Court. I think in view of this that maybe an independent attorney who hasn't had any involvement in it needs to discuss with Mr. Misskelley what his desires are and to report to the Court.

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Before I'll allow him to testify, if he does testify, I'm going to want to be satisfied that he knows what he's doing and that it is his own voluntary act and not influenced by his father, his lawyers or anyone else.

MR. STIDHAM: Your Honor, I want to respond to a comment Mr. Davis made.

MR. PRICE: Your Honor, we would request that the attorney talk to Mr. Misskelley before we begin the voir dire process. Our voir dire questions will be completely different whether or not Mr. Misskelley is a witness.

MR. FORD: We join in that, your Honor.

MR. PRICE: We are joining in this motion.

THE COURT: You don't have any standing.

MR. PRICE: Judge, we have standing if the conduct by the State is the only way that they can get Mr. Misskelley to testify against Damien Echols, we do have standing. We join in this motion. We also have an identical motion. It is identical to the one filed, an identical brief. We do join in this request.

MR. FOGLEMAN: This is why Jessie Junior needs an independent attorney that is not working with Damien Echols.

[001317]

MR. STIDHAM: Your Honor, I resent that insinuation, and I would like to make a further comment that on Thursday night at Joe Calvin's office, as the Court well pointed out, that was a shocking situation and it wasn't clear exactly what should happen at that point. Any comments that I made to Mr. Davis after the melee without the benefit or full knowledge of the situation -- at that point I didn't know the Sheriff's Department had promised to bring his girlfriend to the jail. I didn't know the sheriff talked him into testifying on the way from Pine Bluff.

Also, I needed to research this issue. My formal response was done after an investigation and research and all that is set forth in my motion and brief and, furthermore, I think it is prosecutorial misconduct for the Craighead County Sheriff to elicit a statement from him as they did. In that statement, "We cannot use any of this against you, Jessie, so you might as well tell us what's going on," and that basically elicited a response.

Your Honor, at the trial and throughout all the pretrial hearings, we heard testimony about his mental competency, his mental status, his suggestibility, and all these things. And the prosecution knew that and they engaged in conduct which violated his Sixth

[001318]

Amendment rights and his Fifth Amendment rights and they interfered with the attorney-client relationship.

Mr. Misskelley instructed me on tape on Tuesday, February 15th, at Pine Bluff, Arkansas, in the assistant warden's office that he did not want to testify, that he wanted me to pursue this appeal and that is a course of conduct that I undertook, and it was in the best interest of my client.

I informed the prosecutor that he was not going to testify. Under the law, the prosecutor at that point was duty bound to leave Mr. Misskelley alone. They did not do that. They kidnapped him, brought him to the prosecutor's office and elicited a statement from him and then gave him use immunity. And now they're going down to the jail and talking to him without my knowledge and consent or Mr. Crow's knowledge and consent. We'd ask again that Mr. Crow's affidavit be made a part of the record.

THE COURT: I think I accepted his affidavit. Why is he not here?

MR. STIDHAM: We had two court appearances and a deposition today.

THE COURT: I will take it for the purposes of this hearing but I may want to hear him testify. I'm taking you gentlemen's statements as if they were

[001319]

given under oath. You're officers of the court so I'm accepting your statements without having you sworn.

With regard to the relief requested, there's nothing here that I see any reason or cause to appoint a special prosecutor. That'll be denied.

Whether or not the prosecuting attorneys are in the contempt of Court, that'll be denied. There's no conduct that I know of that is directly before the Court that would rise to contempt.

The issue really before the Court and the one that I'm going to take under advisement is whether or not Misskelley will be allowed to testify. That is the only issue. I would have been inclined to appoint Mr. McDaniel who is a criminal defense lawyer of some repute in this area but I'm not sure that -- since he's been consulted, I'm not sure he would be an appropriate person to appoint. Unless y'all can agree.

MR. STIDHAM: I have consulted with him as well.

THE COURT: Do y'all have any objection to Bobby being the one I ask to talk to Mr. Misskelley?

MR. STIDHAM: I think it would be a conflict.

MR. PRICE: Yes, sir, I would if he's talked to both sides.

THE COURT: Anybody got any suggestions?

[001320]

MR. FORD: How about suggesting -- his name escapes me but he's an associate dean at the University of Arkansas at Little Rock -- Howard Eisenberg. He's reputable in all areas of criminal practice and particularly appellate procedures, who may know some of the import and impact of some of the higher court decisions in this case that we may not have working knowledge of because of our not being so involved in appellate work that he would be truly independent and he sort of has a connection to the State.

MR. FOGLEMAN: Your Honor, first of all, he is not a criminal defense lawyer. He doesn't try cases. What effect it would have on appeal has nothing to do with whether he testifies. Nothing that he says in his testimony can be used against him, can't affect his appeal.

MR. STIDHAM: That is not true, your Honor. If prosecutors are at the jail and going over exhibits and testimony with witnesses, with our client, if we are successful on appeal, it is going to affect a remand.

MR. FOGLEMAN: How?

THE COURT: No. I'm not going to allow anything at all that boy says to anybody, including those

[001321]

officers that talked to him, be used -- if he were successful on appeal, which I have some doubts about, if he were successful, then none of this, not one word said here today or that he's said since his conviction will be used against him by innuendo, implication or any other way.

MR. STIDHAM: Your Honor, I need to ask for a specific ruling.

THE COURT: I'm denying your request for a special prosecutor and find that it's not even applicable to this situation. I'm denying your requested relief to hold the prosecutors in contempt for misconduct. I'm taking under advisement the issues that have been raised as to the method and manner of the statements that have been received from Mr. Misskelley and I am ordering that each of you hold those tapes that have been made of Mr. Misskelley's statements and not make those available to anyone at this time.

I think you are duty bound by attorney-client privilege not to disclose your conversation recorded at the penitentiary to anyone. It is a violation of attorney-client privilege.

Further, I'm telling the State that they are not to release any statements that they may have taken

[001322]

until I make a determination as to whether or not those statements are admissible.

MR. PRICE: Does that include the recorded conversations that the State had with Mr. Misskelley on Friday, Saturday and Sunday as well?

THE COURT: All statements until I make a decision on whether or not they are proper.

MR. STIDHAM: There are two remaining issues. First of all, I object to the Court relieving me. I understand the Court's ruling. I just want to make --

THE COURT: I am not relieving you.

MR. STIDHAM: I'm confused then.

THE COURT: I'm not relieving you. All I'm attempting to do at this time is have an independent attorney that is not involved in the defense of this case or the prosecution determine and question Mr. Misskelley as to whether or not he's willing and voluntarily making a statement. In other words it is an independent determination of whether -- first of all, I'm going to ask the attorney to advise him of his constitutional rights not to testify, advise him --

MR. FOGLEMAN: If he's got use immunity, he doesn't have that right.

MR. STIDHAM: We go back to the issue of how he

[001323]

got the use immunity.

THE COURT: Are you talking about the fact that they brought him back here --

MR. STIDHAM: Under the --

THE COURT: And Mr. Davis says he had some kind of understanding with Mr. Crow --

MR. STIDHAM: He did not have any kind of understanding with Mr. Crow at all.

THE COURT: What was Mr. Crow's statement?

MR. STIDHAM: He received a phone call from Mr. Calvin and that Mr. Calvin asked him --

THE COURT: No, no. I'm talking about before they ever brought him back.

MR. STIDHAM: We had no idea whatever that Mr. Crow [sic] was being brought from the penitentiary -- none.

MR. DAVIS: I didn't talk with you so you didn't have any idea. I talked with Greg Crow.

MR. STIDHAM: Mr. Crow said that he got a phone call from Mr. Davis saying that Mr. Misskelley was already on his way up from Pine Bluff.

MR. DAVIS: No. I'm talking Wednesday morning before the order was ever signed I talked with Greg. In fact once you came back from the Department of Corrections, on the record you'll agree that we never

[001324]

-- you never told me or talked with me about what happened on Tuesday when you took Jessie's dad down there --

MR. STIDHAM: I talked to --

THE COURT: All right, wait a minute. For the record, the affidavit in paragraph four says that, "On Wednesday February 16, 1994, the prosecuting attorney, Brent Davis, telephoned me and requested permission from myself and my co-counsel, Mr. Stidham, to interview Jessie Lloyd Misskelley, Junior. Said permission was never granted."

MR. STIDHAM: That's correct, your Honor.

THE COURT: The way I'm seeing it there's a difference of opinion between Mr. Davis and Mr. Crow as to what was said on Wednesday before the order was obtained bringing him back.

MR. DAVIS: Judge, I can --

MR. STIDHAM: Your Honor, he said under -- I guess he wasn't under oath -- but as an officer of the court, he said a while ago he didn't call us, didn't tell us, didn't have to. He's done it thousands of times.

THE COURT: No, Dan, that is not what he said. He stated that he called Mr. Crow on Wednesday because he wasn't getting anywhere with you, basically, and

[001325]

that Mr. Crow said that it was all right to bring him back and he would consider talking to him but he would have to talk to you --

MR. STIDHAM: That's not the way it happened, your Honor.

THE COURT: I don't know. Do you know what Mr. Crow said?

MR. STIDHAM: Mr. Crow's affidavit speaks for itself. I'll be happy to get him out of the deposition and have him come down here.

MR. DAVIS: Judge, I will agree that it wasn't -- what was said was, I said, "I'm tired of talking with Dan. Dan has lost his objectivity. He no longer is doing what is in his client's best interest. He's on a crusade. If I arrange to bring Jessie back up here, would you go with me and meet with me to talk with him?"

He said, "I'm inclined to do that if you get him back up here." And at that point I went ahead and prepared the order and I made arrangements to get him back up here because, frankly, I felt like until I did and until I got with Greg Crow and could meet with him, that there wasn't going to be anything accomplished.

MR. STIDHAM: Mr. Crow has told me that that did

[001326]

not happen. Furthermore, I resent the fact that the prosecuting attorney has to decide what my duties as defense counsel is and his desire to call my law partner and tell him that I'm off my rocker and I don't know what my client's telling me. My client told me he did not want to testify, and I relayed that to the prosecutor. At that point he had a legal duty and obligation to leave my client alone. He did not follow the law.

MR. DAVIS: The difference is, Judge, it is their client, not his client, and I did talk with the other attorney.

MR. STIDHAM: It did not happen that way --

(MR. DAVIDSON, MR. STIDHAM AND THE COURT REPORTER SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)

THE REPORTER: I can't hear you when you're all talking at the same time.

THE COURT: One at a time. I thought you said your motion was identical.

MR. DAVIDSON: It is close to it.

MR. FORD: It tracks the same misconduct, your Honor.

THE COURT: Then it's denied.

(REPORTER'S NOTE: THE SHERIFF AND THE COURT SPEAKING OFF THE RECORD)

[001327]

THE COURT: The press wants to come in, gentlemen. I told them y'all object.

MR. FORD: That's correct, your Honor.

THE COURT: Gentlemen, the only issue is as I see it from your motion and their motion is whether or not Jessie Misskelley is voluntarily giving a statement and whether or not that statement is admissible and that's the only issue.

MR. FOGLEMAN: His statement is obviously not admissible but his testimony is.

THE COURT: I mean his testimony.

MR. FORD: If we're going to switch to our record, I'd like to make a record in this case, not the record that has been made in Mr. Misskelley's case with respect to similar issues --

MR. STIDHAM: -- your Honor, I would like to designate this hearing as part of the record in the Misskelley case and designate it on the record as for appeal purposes.

THE COURT: It would be my ruling that this is not relevant for appeal purposes. It is not part of the transcript of the trial, and it is not an appealable issue.

THE REPORTER: Is Mr. Ford making a record in this case?

[001328]

THE COURT: Well, it is apparent that all the defense attorneys are together on this issue.

MR. FORD: Your Honor, I object to that comment. That's not correct, your Honor --

THE COURT: You're not to have any standing here right now --

MR. FORD: You're making a record. You're making an innuendo on the record that defense counsel is in concert together, and that may be an issue at a later point in our trial, and I object to that innuendo by the Court.

THE COURT: All right. Are you through?

MR. STIDHAM: Before you close the record with regard to Mr. Misskelley, for purposes of the record, you're taking part of the motion under advisement as to whether or not there's been a misconduct with the way I'm alleging they violated his Sixth Amendment rights. Are they going to be allowed to communicate further with my client until this issue is resolved? I respectfully request that they not be allowed to communicate with him.

THE COURT: I'm not going to dwell on this for a long time so until I make my final decision on this, yes, I will say that they are not to talk to him.

MR. STIDHAM: Will the State -- we also request

[001329]

that the prosecution not be permitted to sequester my client from his family.

MR. FOGLEMAN: That has not happened, your Honor.

THE COURT: I don't know anything about that and whatever the sheriff's visitation rules are would apply to him as they would anybody else.

MR. STIDHAM: Thank you, your Honor. And the Court will not permit me to attach a transcript of this hearing as a part of our record on appeal?

THE COURT: I don't see where it has anything at all to do with an appeal issue. It's not anything that happened in his trial and I have already ruled anything that involving any statements that he might make from the time he was transported to anytime subsequent based upon police or prosecutor's efforts to obtain the statement, are not admissible against him at all. So there's absolutely no prejudice toward him whatsoever by any of this.

MR. STIDHAM: Note my objections, your Honor.

MR. DAVIDSON: Your Honor, we would ask that this hearing be made a part of record in our case. Rather than going through the same testimony. I guess we would put Mr. Davis and Mr. Stidham on the stand. We would ask that --

MR. STIDHAM: I'll be happy to be put under oath.

[001330]

THE COURT: I will make it a part of your case -- this hearing --

THE REPORTER: For which defendants?

THE COURT: For Baldwin and Echols.

MR. FORD: Your Honor, if this record is an all-inclusive record, then at this point I would like to make some statements since I now feel I have some standing.

THE COURT: All right. Go ahead.

MR. FORD: Your Honor, it is the allegation of Robin and I on behalf of Jason Baldwin that the prosecuting attorney's office is guilty of misconduct, that they have been informed by defense counsel that Mr. Misskelley --

THE COURT: Meaning Mr. Misskelley's attorneys?

MR. FORD: That's correct. By Mr. Stidham and Mr. Crow. That they advised the prosecuting attorney's office that Mr. Misskelley would not be testifying. At that point in time I concur with Mr. Stidham that they had a duty bound legal obligation to cease any efforts to discuss this matter further with Mr. Misskelley. The Court rulings on appeal discussing these areas have been clear that they cannot even subpoena him.

THE COURT: Are you talking about someone that

[001331]

they know is going to claim their Fifth Amendment --

MR. FORD: That's correct. And Mr. Stidham had advised them that would be the case.

THE COURT: It seemed to me there were kind of mixed signals given.

MR. FORD: Your Honor, that's for the Court's determination. But for my record, my contentions are there were no mixed signals. That they were aware that he would not be testifying and at that point when they proceeded further to obtain a pick-up order pursuant to a subpoena to bring him here to testify, they violated his rights under the Sixth Amendment. They initiated the contact. Once your Sixth Amendment right to counsel attaches and has been invoked, the State or the police may make no contact with the defendant until such time as the defendant initiates the contact. Being picked up by order of the Court, being placed in custody of the Sheriff of Craighead County, being transported back in here and to begin to question him and tell him the things that will be said will not be used against him, they are initiating the contact with a criminal defendant who has previously invoked his Sixth Amendment right to counsel.

At that point in time, they have violated his Sixth Amendment right to counsel and to do it

[001332]

knowingly, that rises to the level of misconduct. Once that prosecutor misconduct has occurred, we are requesting a remedy --

THE COURT: Are you saying there was misconduct when they obtained an order to bring him back as a possible witness in the case?

MR. PRICE: After being told --

MR. FORD: After being told --

MR. PRICE: -- by Mr. Stidham that he would not testify.

MR. FORD: -- that he would not testify. That he was going to invoke his right to counsel.

THE REPORTER: Please don't talk over one another.

MR. FORD: I'm sorry, Barbara.

THE COURT: Are you completely disregarding Mr. Davis' statement that he contacted Mr. Crow and Mr. Crow informed him according to Davis' statement that, "I might be inclined to do that if you get him back here. I need to talk to Dan about it."

MR. FORD: It is a question of fact. It is a question of fact as to whether Jason Baldwin is guilty of a crime in this case. I totally disregard many of the things they say in that contention. It is a question of fact as to whether or not it occurred.

[001333]

Mr. Crow's affidavit --

THE COURT: Mr. Crow's affidavit acknowledges that there was a Wednesday telephone call. I prefer having him here --

(THE COURT AND MR. FORD SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)

MR. FORD: His affidavit states that permission was not granted --

THE COURT: To talk to him.

MR. FORD: And they did.

THE COURT: He's not saying that permission was not granted to bring him back with the possibility that they would talk to him. That is what I want to hear from Mr. Crow.

MR. FORD: Then, your Honor, I will move further. I feel that the written motion we have filed speaks for our position.

Also I would state, your Honor, that until this issue has been fully pursued, until this matter has -- there's a determination as to whether this party will be allowed to testify, until the Court is going to fulfill its ruling to appoint an independent counsel -- quote, independent counsel, which I feel is inappropriate to begin with.

But if the Court does that and the Court is going

[001334]

to make these determinations, the voir dire process in this case be indefinitely postponed until the Court has made that ruling. As defense counsel, we are entitled to know that answer.

MR. FOGLEMAN: He's been listed as a witness.

MR. FORD: We are entitled to know whether we should make that a subject of our voir dire examination.

THE COURT: All right, gentlemen, anything else?

MR. DAVIDSON: We would concur in his motion and also set forth the things we put in our written motion.

THE COURT: I understand you don't want a co-defendant to testify. That is rather clear. The thing that is puzzling me -- all of these cases you've cited -- or basically all of them -- there may be one or two that aren't -- involved a situation where a defendant was called or co-defendant was called to the stand to testify when the State knew full well that that person was going to take the Fifth Amendment against self-incrimination and that they called that person in any regard and allowed them to make the statement in the presence of the jury that, I refuse to testify on the grounds that it may incriminate me. Which in and of itself created a prejudicial

[001335]

situation, the fact that the inference to the jury was, I'm not going to testify because it may incriminate me. And that is totally different to the situation before the Court.

Secondly, the issue y'all are making is that his Sixth Amendment rights to an attorney have been abridged by this action. The whole concept and notion of use immunity is one where the State may use it as a tool to obtain testimony that would not have otherwise been available to them by granting that use immunity and only after leave of the Court to do so, and they are totally protected under a situation like that.

In fact in this case before a statement was taken -- other than the one made by the officers -- and that might have been misconduct on the part of the officers -- and clearly none of that would have been allowable in any case, and the only way a person can be given a grant of immunity or use immunity is by action of the Court.

Attorneys were present. The defendant was advised of his rights and that it was their best judgment that he should not make a statement and that he elected to do so anyway.

I suggest, how would a prosecuting attorney go to a defendant who had been convicted and tried before a

[001336]

jury and request his testimony against co-defendants if they didn't have access to him or have the opportunity to offer that grant of immunity to him either through attorneys or directly.

Do you have any cases on this point? Are there any? I don't know.

MR. STIDHAM: I think we are going to make some new law here.

THE COURT: That's what I told you on the telephone. I didn't know. I knew that after a person had been tried and convicted before a jury that they had a right to appeal. It seemed to me that a smart prosecutor would be doing everything they could to obtain that person's testimony in a subsequent trial against co-defendants.

And I'm not sure there's any misconduct on the part of the prosecuting attorney to do his job and that is to try to obtain testimony. The only issue I see of any significance is whether or not Jessie Misskelley is willing voluntarily to make a statement and -- perhaps, too, whether or not -- it has been suggested in the other trial that he was a suggestive type person -- to whether or not that free will has been yanked around either to get him not to testify or to get him to testify. And I can't be sure from the

[001337]

facts that are before the Court.

So for those reasons I'm going to find an independent attorney that does criminal practice to visit with Mr. Misskelley and inquire of him and inform him what use immunity means and whether or not it is his desire and whether or not anyone has overridden his will and I'm going to take that report from the attorney and go from there.

MR. FOGLEMAN: You asked for suggestions earlier. I just thought of something. It is my understanding Tom Montgomery has represented him before. We have not spoken to him about this.

MR. WADLEY: Your Honor, if Tom Montgomery, the public defended in Crittenden County, has a conflict in this case which caused us to be involved in the case, he should not be this person picked as an independent --

THE COURT: What about Bill Ross?

MR. FOGLEMAN: Your Honor, his conflict didn't have anything to do with Jessie.

MR. WADLEY: I don't know what his conflict was.

MR. STIDHAM: I understood his conflict was a religious objection.

THE COURT: No, I don't think that was it.

MR. FORD: Just a point of clarification. Did

[001338]

the Court grant use immunity to Mr. Misskelley at the time the order was signed to pick him up or would that use immunity be granted by the Court until after you had been made --

THE COURT: Nobody asked me to do it until Thursday night and at the point Dan was asking me -- he was frustrated -- "What do I do under these situations?" I said, "You demand use immunity."

MR. FORD: So it hadn't been granted --

THE COURT: It was obvious to the Court -- anybody with a lick of sense that that was what was going to be requested.

MR. DAVIDSON: Has use immunity been granted?

THE COURT: I granted it that night. There wasn't any question about it in my mind, if a statement was going to be made.

I was also under the opinion and belief that Mr. Crow had been informed that the Court was going to enter an order to bring him back.

MR. STIDHAM: Should I have Mr. Crow summoned here, your Honor?

THE COURT: If you want to put it on the record. He didn't deny that a phone call was made.

MR. STIDHAM: No, your Honor. A phone call was made.

[001339]

THE COURT: It seems to me his statement is kind of in between there. It is not just saying that the permission wasn't given to question him but he's not saying permission wasn't given to bring him back with the prospect of a meeting to have him interviewed.

MR. DAVIS: For clarification on the record, Mr. Crow and I never discussed that morning an order to bring him back. From my recollection, the extent of the discussion was, "If I have him brought back," and I think I said specifically Clay County. "If I have him brought back to Clay County, will you go with me to talk with him," and he said, "I'm inclined to do so if you have him brought back."

I actually don't think he -- I don't recall him saying I'm going to discuss it with Dan but I kind of got the inference when he said, "I'm inclined to do so if you have him brought back," that he was either going to discuss it with Dan or was trying to figure out how to do it without burning bridges with Dan.

MR. STIDHAM: The key word is "if."

MR. WADLEY: Your Honor, it seems to me that the inquiry in this case should not be to appoint an independent attorney to make a determination as to whether or not he wants to testify. It seems to me the inquiry should be whether or not Mr. Stidham is

[001340]

his lawyer or not. If he is his lawyer, he's still the lawyer in this case. That should be the inquiry. If Dan Stidham's his lawyer, then he can act as his lawyer. If he wants him to be his lawyer or he doesn't want him to be his lawyer. That should be the inquiry, not whether or not he's going to testify or not.

THE COURT: Does anybody want to make any more record?

MR. STIDHAM: Your Honor, just one point. The Court should analyze how the contact took place with Mr. Misskelley after February 15th when the prosecutor was notified that he would not testify. The circumstances surrounding the contact should be what the Court is analyzing to determine whether or not there was misconduct of him getting use immunity in the first place. That is the crux of our argument --

THE COURT: I understand that. That's what I've just done. As of Wednesday, Mr. Davis has testified he indicated to your partner and Jessie's co-counsel that, "If I bring him back, will you be willing to go to him and see if he's willing to make a statement," or words to -- whatever he's testified to.

MR. STIDHAM: Did Mr. Crow ever tell you he would be willing to do that?

[001341]

MR. DAVIS: He said, "I would be inclined to do so if you bring him back."

MR. STIDHAM: Did you tell him that you were going to be bringing him up from the Department of Corrections? Did you tell him that that was going to happen?

MR. DAVIS: No, I didn't tell him.

MR. STIDHAM: Did he consent to that?

MR. DAVIS: In my opinion he didn't have to consent to him being brought back.

THE COURT: I don't have any problem with bringing prisoners back.

MR. STIDHAM: Two weeks before he's needed at trial?

THE COURT: I've brought them back months before -- before.

MR. FORD: What is the Court going to do with respect that voir dire be postponed until a determination has been made by the Court?

THE COURT: I'm going to make that determination real quick.

MR. FORD: Will the Court -- is that a yes or a no as to whether or not voir dire will be postponed until that determination is made?

THE COURT: I'm not going to postpone the voir

[001342]

dire. We are going to start at one o'clock so I will make my ruling before then.

MR. FORD: You'll make your ruling on this issue before then.

THE COURT: Yes.

MR. DAVIDSON: Depending on your ruling, we will probably have other motions.

THE COURT: Like what?

MR. DAVIDSON: Possibly a motion for continuance, possibly a motion for a copy of those tapes.

MR. FOGLEMAN: He was listed as a witness.

MR. PRICE: We would like copies --

THE COURT: If he testifies --

(THE COURT AND MR. PRICE SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)

MR. PRICE: -- of Mr. Misskelley Friday, Saturday, and Sunday.

THE COURT: You are entitled to co-defendant's statements that are recorded.

MR. PRICE: And also a copy of any notes of the three days of conversation.

THE COURT: You're entitled to that by the discovery statute.

MR. PRICE: Thank you.

MR. DAVIS: Your Honor, we can resolve that real

[001343]

quick. Number one, there's not tapes and number two, there are no notes.

MR. DAVIDSON: Mr. Stidham just said there was a tape.

THE COURT: Mr. Stidham has a tape of his conversation with his client, and I think that's attorney-client privilege and the only way you're going to get that is if Mr. Misskelley says you can have it.

MR. PRICE: We would also request that Mr. Misskelley be brought -- if he's allowed to testify -- that he be brought to my office so I can interview him and prepare to cross examine him just like --

MR. FOGLEMAN: Your Honor --

(MR. PRICE, MR. FOGLEMAN AND THE COURT SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)

THE COURT: -- I thought you already had.

MR. FOGLEMAN: Mr. Price already has cross examined him.

MR. DAVIDSON: No, we have not.

MR. PRICE: No, your Honor --

MR. STIDHAM: -- your Honor, that is not correct. That is an absolute absurdity.

MR. FORD: I'd like the same opportunity.

MR. STIDHAM: Your Honor, as his lawyer, I'm

[001344]

objecting to anybody talking to him -- anybody.

MR. PRICE: If I could clarify something. Approximately two or three days prior to the Denno hearing, I went up with Mr. Stidham and I practiced cross examination of Mr. Misskelley approximately ten or fifteen minutes. That's the only conversations I've had with Mr. Misskelley.

MR. FOGLEMAN: Was that to assist Mr. Misskelley in preparation for his trial?

MR. STIDHAM: Mr. Price was asking questions of Mr. Misskelley to prepare him for the onslaught we anticipated --

MR. PRICE: -- At the direction of Mr. Stidham.

MR. FOGLEMAN: So that was to assist him in preparation for their trial.

MR. DAVIS: Your Honor, we would certainly note on the record that if any statements were made by Mr. Misskelley under those circumstances, then Mr. Price was providing legal services at the request of Mr. Misskelley's counsel and, therefore, any statements Mr. Misskelley made at that point would be subject to attorney-client privilege and one of the things that's going to come up is who is going to advise him to claim that privilege and, number two, what happens when Mr. Price who represents a co-defendant in the

[001345]

case gets up and starts to examine him regarding that. Because Mr. Price said that he was there to provide legal assistance to Mr. Stidham in preparing him for a hearing.

MR. STIDHAM: I don't know if you want to term it "legal assistance." It was a mock trial situation, your Honor.

MR. FORD: I'd like a transcript of Thursday's statement at Mr. Calvin's office that he is preparing a rough draft for.

MR. FOGLEMAN: And y'all were told about that.

(MR. FORD AND MR. PRICE SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)

THE COURT: According to the rules of evidence, you are entitled to it. I think the rule reflects after he testifies, but I generally allow it beforehand.

MR. FORD: They have an open file policy.

THE COURT: I'm telling you that my ruling has been you are entitled to it.

MR. DAVIDSON: We also request a copy of any tape that Mr. Stidham has that he played for Brent's secretary and thereby wouldn't be privilieged anymore.

MR. FOGLEMAN: It is the client's privilege.

MR. FORD: Are you representing Mr. Misskelley

[001346]

now?

MR. FOGLEMAN: Somebody has got to.

MR. FORD: Y'all don't have a conflict -- you two gentlemen -- the prosecutors --

MR. STIDHAM: It seems incredulous that the same two guys who are wanting to kill him two weeks ago are now his best friends --

THE COURT: All right --

MR. DAVIS: -- You could reverse that, Judge. It's nearly incredulous to us that the same guy that defended him two weeks ago is now doing these things.

THE COURT: All right. We're off the record. Let's take a recess.

(RECESS)

(THE FOLLOWING CONFERENCE WAS HELD IN CHAMBERS)

THE COURT: Let the record reflect this is a continuation of the hearing in chambers.

MR. FORD: Your Honor, two things --

THE COURT: You need to let the record reflect that the defendants are not present.

MR. FORD: That's correct. The defendants are not present. This is a hearing outside the presence of the prospective jury panel.

THE COURT: Do you want the defendants present?

MR. PRICE: We waive the presence of Mr. Echols.

[001347]

MR. FORD: We waive the presence of Mr. Baldwin. Before we broke for lunch, the Court indicated that it would grant my request that voir dire be postponed until the Court has made its decision as to whether or not it would let Jessie Misskelley testify.

It's now my understanding that you're going to withhold that ruling but yet proceed with voir dire. Is that correct?

THE COURT: Yes.

MR. FORD: We'd like to voice our objection to the Court's ruling in that respect and state to the Court that we believe that whether or not Mr. Misskelley will testify or not is an extremely critical portion of the voir dire inquiry.

If he was to be eliminated from the potential list of State's witnesses, that the manner and method at which we would proceed with voir dire would be different and that if he is going to testify, it would put us in the position of not knowing. It's different in this situation than not knowing because of trial strategy as opposed to not being allowed to call him by virtue of whether or not he is a competent and qualified witness.

Secondly, we believe that not knowing for certain the Court's ruling in this respect could affect

[001348]

drastically the way in which we would exercise our challenges for cause and the challenges for peremptory reasons. If the defense is -- if the State is going to call Jessie Misskelley, then questions regarding the jury's perception as to his believability whether or not he -- his impact and his indication that the two remaining co-defendants were the perpetrators along with him is clearly something that could create challenges for cause and not being able to clearly understand that at this point in time from a defense standpoint, I believe unduly prejudices us at this stage. Also, your Honor, we would --

(THE COURT RECEIVING A TELEPHONE CALL)

THE COURT TO THE BAILIFF: Bring Mr. Misskelley up here.

MR. DAVIS: Could we take him somewhere else besides up here because if we bring him up here, there's going to be an absolute circus with the media --

THE COURT TO THE BAILIFF: Take him to the county jail.

MR. STIDHAM: Your Honor, Mr. Crow is at the Clay County Jail talking to Mr. Misskelley and he's going to be on his way here.

MR. FORD: Are you objecting to him talking to

[001349]

his client?

MR. FOGLEMAN: I didn't say a word, Mr. Ford.

MR. FORD: Well, based on your laughter --

THE COURT: Is there any change in what was said this morning?

MR. STIDHAM: He had just gotten there.

THE COURT: Bring him out to the jail and we will make arrangements to go out there and I am going to have Phillip Wells talk to him briefly and we will make a record out there as well.

MR. STIDHAM: Your Honor, I'd like to make an objection for the record and I'd ask that this be made a part of Mr. Misskelley's --

THE COURT: Well --

MR. STIDHAM: I hate to keep jumping back and forth, your Honor, but I need to protect my client's rights. Mr. Wells is a law partner of Mr. McDaniel. Mr. Wells and Mr. McDaniel have been color commentators for Channel Eight News during the course of the entire Misskelley trial. I have personally spoken to Mr. McDaniel about this case as has the prosecution, and I think it is an inherent conflict for Mr. Wells to talk to Mr. Misskelley. Again, I will renew my objection that anyone talk to him.

I think Mr. Misskelley needs to have a mental

[001350]

evaluation and Mr. Misskelley needs some time to decide what he's going to do, and he needs to make an intelligent decision about this. All I ask is that we have him evaluated and I have an opportunity to inform him of what his rights are.

THE COURT: You are going to do that in the presence of the Court and you are going to do it today, and I'm going to be here, and we are going to make a record of it and get on with this, and it is going to be done.

The only significant issue is whether or not Misskelley is informed and if he's making a voluntary statement and if it is his voluntary desire to testify. That's the only thing that is important. All the rest of it is just window dressing.

MR. STIDHAM: Is the Court ruling on our motion?

THE COURT: I'm going to tell Mr. Wells -- if y'all want an independent attorney to listen to him -- it seems to me that --

MR. FOGLEMAN: Your Honor, somebody is going to have to advise him in regard to attorney-client privilege.

MR. STIDHAM: Mr. Crow is quite capable of doing that.

MR. DAVIS: The concern -- and I think the Court

[001351]

would agree based on what has been presented here, based on some of the statements of Mr. Stidham -- that there are at least grave concerns whether that attorney-client privilege hasn't been jeopardized or violated up to this point and there needs to be some steps taken to insure that it's protected down the road.

MR. STIDHAM: Your Honor, I would ask that the Court talk to Mr. Crow and allow him to testify under oath with regard to our motion and also allow Mr. Misskelley to visit with his family before making any decision. He's eighteen-years-old but he's also very incapable from a mental standpoint.

THE SHERIFF: I can bring him to this back door.

THE COURT: If you can do that, that's fine. Bring him on.

MR. STIDHAM: Your Honor, I think it would be important to have Mr. Crow testify under oath regarding our motion before the Court --

THE COURT: Call him and tell him to get up here.

MR. STIDHAM: He's on his way.

(VOIR DIRE BY THE COURT OF THE PROSPECTIVE JURY PANEL HELD AT THIS TIME)

(THE FOLLOWING CONFERENCE WAS HELD IN CHAMBERS)

MR. STIDHAM: I know I've objected to this.

[001352]

We've been on and off the record at this point. I want to make sure that I got this on the record. I understand the Court's ruling that an independent attorney is going to discuss with Mr. Misskelley whether he understands the concept of use immunity and the appeal process and all that information, and I formally would object to that. Mr. Misskelley is my client, and I would I like the opportunity to visit with him, something that I have been denied for the past several days. And also --

THE COURT: Wait a minute. Nobody has denied you the right to visit your client that I'm aware of. I've heard nothing that would prohibit you from visiting your client.

MR. STIDHAM: No one has physically restrained me but my allegation is that the circumstances that led to this offer of immunity has precluded and interfered with my attorney-client relationship.

THE COURT: Let's get the record clear. Has anyone prohibited you from going to the Clay County jail and visiting your client?

MR. STIDHAM: No one has physically --

THE COURT: Have you made any effort to go there physically and interview your client?

MR. STIDHAM: I have made phone calls to the

[001353]

county jail --

THE COURT: Were you allowed to talk to him?

MR. STIDHAM: I was not allowed to talk to him. I asked them to have him call me. He did not call me. He finally called Mr. Crow yesterday afternoon.

THE COURT: Did you make any other efforts on your own to go visit him?

MR. STIDHAM: No, your Honor, because if he's not going to talk to me on the phone, he's not going to talk to me in person.

THE COURT: I understand that Mr. Crow was at the Clay County jail about an hour and a half ago when I called to have Misskelley brought back up here --

MR. STIDHAM: Yes, sir.

THE COURT: -- Talking to him.

MR. STIDHAM: My understanding was -- I had just got off the phone with Mr. Crow prior to you placing the phone call, and Mr. Crow had just gotten there.

THE COURT: In view of this unusual circumstance and the dispute between the prosecutor and the defense attorneys, the Court has taken it upon itself to call Phillip Wells, a lawyer of some reputation, to make an inquiry of your client and to make a report to the Court. I don't plan to be here. I want him to independently interview him in your presence and in

[001354]

the presence of the prosecutor to determine whether or not he understands what use immunity means, what the consequences are and all those things we've gone over.

MR. STIDHAM: I object to the prosecutors being in there because those are the same guys that have been talking to him without my knowledge and consent.

THE COURT: All right. The prosecutors won't be present then. Do you want a record made of that?

MR. STIDHAM: No, I don't want a record made of that. Mr. Wells can report to the Court his findings and even though I object to him going in in the first place, I understand the Court's ruling and I would ask that he make a full and complete report to the Court.

THE COURT: There's several reasons for it. One is that there is a potentiality that -- based upon your statement that you believe it to be perjury -- that you would have to be relieved from the case and at that point I would have to have another attorney appointed. So there are other reasons that I think an independent attorney needs to evaluate Mr. Misskelley's willingness to testify and I am going to allow that to be done in your presence.

MR. STIDHAM: Would you be willing to make a ruling on our motion we filed this morning on prosecutorial misconduct prior to this meeting taking

[001355]

place?

THE COURT: I think I have ruled on that.

MR. STIDHAM: You have not spoken to Mr. Crow and you asked that he be here to be put under oath and explain the circumstances of the --

THE COURT: I will be glad to talk .to Mr. Crow before I make any ruling. All right, let's go out there.

(RECESS)

(THE FOLLOWING PROCEEDINGS WERE HELD IN CHAMBERS)

THE COURT: Let the record reflect that this is a continuation of the hearing outside of the presence of he prospective jury.

MR. WELLS: For the record, I was brought in as an independent attorney to make a determination as to whether or not Jessie Misskelley was aware of the offer that had been previously made by the prosecuting attorney to offer him use immunity in exchange so that his testimony should he desire and choose to take the stand would not be used against him in any subsequent proceedings or be used against him in his appeal.

My first determination had to be made, is he mentally competent to be able to understand what was going on. Was he aware of the consequences of making a decision either way, and it is my opinion that

[001356]

Jessie Misskelley is mentally competent and does understand the circumstances of what his choice is to be.

It is my understanding and my impression that Jessie Misskelley, although not an educated person and does not understand a lot of the words that we lawyers use in our normal discussions in legal circumstances, does understand that he has a decision to make as to whether or not he chooses to take the stand or whether or not he chooses not to take the stand.

I feel he understands what the consequences of either of those decisions would be. I feel that he understands what an appeal is, that he understands that his case is now on appeal and he understands that if he chooses not to testify, that he can continue with his appeal.

I believe that he also understands that if he chooses to testify under the use immunity situation, that he can continue his appeal.

I have attempted with the assistance of his attorneys to explain to him the technical defense that he has in terms of the fact that he signed a statement when he was 17 years of age and I believe Mr. Misskelley understands that that is an appellate argument that can be raised.

[001357]

As any criminal defense lawyer has in a circumstance like this, Mr. Misskelley has a very, very difficult decision to make and as it stands right now, he understands that the prosecuting attorney is of the opinion and is under the impression that the statement that he gave to the prosecuting attorneys is a truthful statement and that they are attempting to have him testify in open court as to the statement he gave against the other two defendants.

I specifically asked him not to go into any facts or circumstances so that I wouldn't be involved in whether or not he has provided truthful testimony, or made a truthful statement, but what I wanted to make sure that Jessie Misskelley understood is that if he took the stand, that he needed to provide truthful testimony under oath and if he had some kind of negotiations, that it would demand that he provide truthful testimony.

The other decision he has to make is which decision he should make. It is my impression that he is faced with the decision of not testifying and even though he is granted use immunity, he has indicated to me that that may be one of his decisions. But before he makes that decision, he would like to talk to his mother and father and get their parental guidance as

[001358]

to which decision he makes.

He has made that specific request and I also told him and I think his defense lawyers told him before this trial commences, both the defense lawyers and the prosecuting attorneys want to know what his decision is because the voir dire and the trial is going to depend on that. And he understands that he has to make a decision as to whether or not he should testify, whether or not he would be granted more than use immunity. And as a criminal defense lawyer, I have indicated to him that if he makes a decision that he is willing to testify, that before he makes that decision, he needs to have his criminal defense lawyer try to find out what type of negotiated plea they are willing to offer and only at that decision should Jessie Misskelley decide whether or not to give up his appellate rights and his opportunity not to testify in exchange for finding out what kind of negotiated plea that is.

I don't believe that at the present time Jessie Misskelley is going to make a decision until he talks to his parents. I have asked defense lawyers whether or not your Honor would allow him to talk to his parents. I feel it is a very unbelievably difficult decision that he has to make, and I would ask that he

[001359]

be given that opportunity.

Then, I believe that he will be willing to make a decision as to whether or not he should testify or whether or not he should choose not to testify and depend on the appeal and understanding -- and I believe he understands if he chooses not to testify and the appeal is unsuccessful, that his sentence will remain as life imprisonment plus two twenty-year sentences.

THE COURT: Thank you, Mr. Wells. Anything else, gentlemen?

MR. STIDHAM: As Mr. Misskelley's court-appointed counsel, we would also make the request that he be allowed to visit with his parents before he makes probably the most important decision that he'll ever face.

THE COURT: I will permit him to talk to his parents. I don't know any reason why he couldn't anyway. Where are they?

MR. STIDHAM: I assume they are in Marion. I would be happy to make a phone call and have them start heading this way immediately.

THE COURT: Go ahead and do that.

MR. FORD: Was the question as to the factual dispute between Mr. Stidham and Mr. Davis this morning

[001360]

regarding Mr. Crow's recollection of Wednesday and Thursday morning -- has that been developed on the record?

THE COURT: Let's do that.

MR. DAVIS: One thing I would -- as far as the scenario of him talking to his parents -- and I realize this would be asking an additional hardship on Mr. Wells -- but would the Court request that Mr. Wells be present or at least initially to advise them and bring them up to snuff on the scenario that's transpired here today and kind of fill them in --

MR. STIDHAM: We would object -- Mr. Crow and I would object to that, your Honor.

THE COURT: For what reason?

MR. STIDHAM: We feel again the same objection with Mr. Wells talking to him in the first place. We feel that that is Mr. Crow and I's job to take care of matters which fall within the realm of the attorney-client relationship.

We certainly -- and I don't mean that as an affront or attack on Mr. Wells at all. I think he understands that.

MR. DAVIS: Your Honor, it is the State's position that all the same reasons that made it make sense to the Court for Mr. Wells to communicate with

[001361]

the defendant Misskelley about this, that all those same reasons would apply to providing that same information and communication to parents who obviously are going to be assisting in making this decision.

THE COURT: Frankly, the Court doesn't believe the parents ought to make that decision. They're not legally trained and probably the worst persons to give him advice, but I'm going to allow them to talk to him if that's who he wants to talk to.

MR. STIDHAM: Mr. Misskelley, would you like to talk to your parents before you make this decision?

THE DEFENDANT: Yes, sir.

THE COURT: I'm going to let him do that. Can you sit in on that, Mr. Wells?

MR. WELLS: I'll be willing to do anything that the Court directs me to do.

THE COURT: I'm going to ask that you stand in with Mr. Crow and Mr. Stidham during that interview with his parents.

MR. STIDHAM: We'd ask that no officers -- that the officers be directed to not discuss anything regarding the case with our client.

THE SHERIFF: Fine with me.

THE COURT: Okay. That's fine. You can take him back to the jail.

[001362]

(THE SHERIFF AND JESSIE MISSKELLEY LEAVING CHAMBERS)

THE COURT: Mr. Crow, do you want to state for the record your recollection of a Wednesday telephone call from you to Mr. Davis or one he originated? I don't remember which.

MR. CROW: I honestly don't recall who called who. He may have called me and I called him back. I don't recall which way it was.

He wanted to know if we would consider letting he speak with Jessie in the presence of Dan and myself about testifying. He simply, as I understood it, just want -- just wanted to talk to him and make himself, make his own pitch kind of like what Mr. Calvin did on the day before -- on the day of trial. This is what we are offering, this is what you're going to get, which we certainly allowed on the day the trial started. Mr. Calvin came in and spoke, made Jessie an offer in our presence and then left and we discussed it.

I said that I didn't think I had a problem with it, but I expected Mr. Stidham would, and I wasn't making any decision yet, and I would talk to Dan and call him back. That was the end of the conversation at that point.

[001363]

THE COURT: Did you indicate whether or not -- let me put it another way. Let me think how --

MR. DAVIS: Judge, could I ask a question?

THE COURT: Go ahead.

MR. DAVIS: Greg, didn't I say to you on the telephone that if Jessie were to be brought back to Clay County, would you agree to go talk to him with me where I could ask the questions?

MR. CROW: I don't honestly remember if it was Wednesday or Thursday the first time I was aware that Jessie was being brought back to Clay County. The first time I remember it being discussed it was given to me as a, "He is being brought back," not a, "Do you mind if he's brought back."

I don't think I made an objection to him being brought back because I don't think I have -- they can put him in Cummins. They can put him in the Miller County jail in Texarkana if that's what they want to do. That's not my role, to decide where my convicted client is housed.

I honestly don't think it was until Thursday morning that I was aware of the fact that he was being brought back, but it may have been Wednesday morning. My recollection was not, "Do you mind." It was, "He is being brought back."

[001364]

MR. DAVIS: Are you saying that it didn't happen or you just don't recall on Wednesday morning if at that time I said, "If I can get Jessie back to Clay County, would you go up there and talk with him."

MR. CROW: My recollection was, whether it was Wednesday or Thursday, that "He is being brought back. Would you go talk to him with us."

MR. DAVIS: We never had any telephone conversations between you and I on Thursday, correct?

MR. CROW: I did with Joe. First -- when I was aware he was being brought back it was, "He is being brought back." And then if that was the conversation with you, if it was Wednesday, my recollection, you said, "He is being brought back. Would you mind going to talk to him."

At that point I said, "I will have to discuss it" -- I certainly said, "I'm going to discuss it with Mr. Stidham." I think talking with you yesterday you had the impression I was going to talk to Mr. Stidham.

You didn't remember one way or the other. You certainly had the impression I was going to talk to him.

MR. DAVIS: Would it be accurate to say that what you related to me over the phone was you personally didn't have any qualms with that but in order to do

[001365]

it, you needed to talk with Dan first?

MR. CROW: And I expected he would have a problem.

MR. DAVIS: On Thursday when Joe called you and said he was on his way to Clay County, didn't you tell Joe that, "I will talk to Dan and we will be there by 4:30," or something to that effect?

MR. CROW: My recollection is when I first talked to Joe, "He is on his way, would you come talk to him." And I took it that he didn't want me to tell Dan and I wasn't going to do that. I said, "I have got to check into some things and I will get back to you."

I then went and talked to Dan. We decided that we did not want to proceed that way and -- Joe may have called me back or I called him. I think I had a phone message on my desk to call him, and the phone rang and it was Joe, or it may have been me calling him back. And he said, "He's on his way up here." I told him, "I'm not coming up. It is not going to happen."

Then at that point Joe asked if they could talk to him and I said absolutely not and that was it.

MR. DAVIS: Did -- at that point did Joe indicate to you, "If he's here and indicates he wants to give a

[001366]

statement, do you want us to call you and have you present?"

MR. CROW: He said, "If he wants to give us a statement, what happens?" I said, "He's not giving a statement to anybody without us being there." I made it clear that I didn't want him to question him without me being there -- me and Dan, one or both.

MR. DAVIS: To your knowledge, there was no statement taken until after you were present at Joe Calvin's office?

MR. CROW: What I understand from talking to you guys is he walks in the door and he was asked a one line question, "Do you want to give a statement?"

MR. DAVIS: And you were immediately called and advised as to what his response was.

MR. CROW: That's my understanding.

MR. DAVIS: Did Joe and you discuss that he was on his way to Clay County and what -- and this is in that conversation where Joe calls you and says he's on his way here -- did you discuss the fact that he was -- as to whether or not he was going to be brought to Joe's office versus the jail?

MR. CROW: Yes. That was the first conversation Joe and I had. At this point it wasn't -- I had already told either you or Joe one that there wasn't

[001367]

going to be a conversation with all of us, the prosecution, Jessie and the defense attorneys in the room.

At this point the question was, "Am I going to talk to Jessie?" And Joe said, "Do you want to do it at the jail or my office," and Joe's office is a little closer than mine. That's when I said, "I'm not sure it is going to happen. Let me check on some things. But if it does happen, I'd as soon do it at your office."

Then when I called him back, I told him I didn't want him going to anybody's office.

MR. DAVIS: At that time he advised you that the sheriff's deputy was already --

MR. CROW: -- Apparently he -- apparently that was already set up before I got on the phone because -- that was already set up to happen before I ever talked to you the first time. My understanding is the first time he ever left Pine Bluff --

MR. DAVIS: But in the first conversation with Joe, he asked would you rather do it at the jail or my office, correct?

MR. CROW: That's correct.

MR. DAVIS: You indicated that you would prefer if it was done, that it be done at Joe's office.

[001368]

MR. CROW: That's right.

MR. DAVIS: So you don't know if he was already headed to Joe's office or if that was changed as a result of --

MR. CROW: I have no knowledge. Timing wise he had to be already out of Pine Bluff before that conversation occurred.

MR. STIDHAM: Your Honor, I'd like to ask Mr. Davis a couple of questions.

THE COURT: All right.

MR. STIDHAM: Mr. Davis, earlier while we were not on the record, you mentioned that there was radio contact between Joe's office and this deputy that was bringing Jessie up?

MR. DAVIS: It wasn't radio contact between Joe's office. When Joe talked with Greg the first time, Joe calls me and says, "Greg said he will be up here in about 45 minutes."

At that time I called the Craighead County jail and asked them if they had radio contact with Deputy Howell. They indicated that they did not at that point in time. I waited around and they called back and said that he had checked in and he was at Brinkley.

Then I called the jail and told them, "When he

[001369]

gets near Jonesboro, contact him and tell him to go to Joe Calvin's office. It is an office on the left right before you get to the Citgo station."

In fact I had to call them back and give them directions because I didn't know exactly how to explain it to them.

And so then I took off for Rector myself and was -- I think at Halliday when Joe calls me on my car phone and tells me at that point that he said that he had talked with Greg and that he indicated that he wasn't coming unless Jessie indicated he was going to give a statement.

So at that point I went on to Joe's office. I didn't know Officer Howell's -- apparently he had a car phone but I didn't know his number and I didn't have radio communication. I just assumed when he got there, we would figure out what was going to happen.

MR. STIDHAM: When you got there and Officer Howell got there, Officer Howell told you that Jessie wanted to make a statement?

MR. DAVIS: I think that's correct.

MR. STIDHAM: So Officer Howell had been discussing the matter with Mr. Misskelley prior to arriving at Joe's office.

MR. DAVIS: I got the impression from Officer

[001370]

Howell that Jessie Misskelley indicated that he wanted to discuss this matter.
MR. STIDHAM: I don't have anything further.

MR. DAVIS: I'd like Joe Calvin to tell his recollection of the events.

MR. CALVIN: Your Honor, on February 7th we had criminal pretrial in Piggott and as deputy prosecutor I was discussing this case with Judge Pearson and asking his opinion about the possibility of having Misskelley testify. And he said most certainly the prosecution can do so. You would give that individual immunity and bring him to court and have him testify. He said you could do not do it unless you give him immunity. He said it was probably a dereliction of duty if you did not do that. So I relayed that conversation somewhere in the next few days to Brent.

But what happened on February 11th, John Fogleman called me and said he had some political aspirations, and we discussed that, and I told him I'd have to wait and see who was running for a particular job.

I asked him, are you going to have Misskelley testify, and he said, "I don't know." And he asked if I would call Dan Stidham. That was on the 11th day of February which was a Friday. And if I'm not mistaken, that was the day that we had a considerable amount of

[001371]

ice and when I called down there, they said Dan was somewhere shooting ducks or geese or deer or something in Mississippi and he probably couldn't get back. That was on Friday.

So the following Thursday Greg Crow called me and said, "We are four days late in returning your phone call." Greg and I talked a little bit about the case, and I do not remember what the conversation was at that point.

I -- immediately when we hung up, they buzzed me and said Brent was on the phone and Brent got on the phone. I said, "I just hung up from talking to Greg."

He said, "I just wanted to tell you that Jessie Misskelley is on his way to Clay County to give a statement or perhaps to be asked to give a statement."

MR. STIDHAM: Who told you that?

MR. CALVIN: Brent.

MR. STIDHAM: He told you that when?

MR. CALVIN: When he said, "He's on his way to Clay County to give a statement or to be asked to give a statement."

MR. STIDHAM: This was on the 17th?

MR. CALVIN: Yes.

MR. STIDHAM: What time was that?

MR. CALVIN: That was that afternoon. But at

[001372]

that point then he said, "Would you mind calling Greg and tell him that if he gives a statement, could he be present."

I said, "If you want me to." He says, "You have a better rapport with the two attorneys than I do." I then picked up the phone and called Greg.

MR. STIDHAM: Why did he ask you to call Greg?

MR. CALVIN: I don't know. I didn't ask him. I called Greg and I said, "It is my understanding that Misskelley is on his way to Clay County."

I might also mention that I discussed with Brent, do we want to do this in my office or in the jail. The jail is pretty noisy. He said, "That would not make a lot of difference," or something to that effect.

Anyway when I did call Greg, I said, "Greg, it is my understanding that he might be coming here to give a statement. I don't know what about." I guessed what it would be about. We discussed how long it would take him to get here, and he said about 40 minutes.

He said, "Don't talk to him until we get there." And he said, "We are going to advise him not to make a statement."

I asked him if he was going to inform Dan of the

[001373]

conversation because I think they had had some problems during the trial about defense tactics, and he said, probably will, but I certainly didn't tell him not to inform Dan.

So he said he could be there in about 40 minutes. I then called Brent back and Brent said, "I'm on my way to Rector."

I said -- Greg had mentioned that it would probably be more comfortable in my office to take a statement if one was given. I called Brent back, and he said that he would contact the Sheriff's Department some way to tell Dick Howell to bring him to my office, told him where it was.

Brent then called back on the phone. I think we had another conversation, I don't remember what, but I did call Greg back after an hour and a half and wondered why he wasn't there, and he told me he wasn't coming and I said, "Well, what if he gets here and wants to make a statement?"

He said, "If he wants to make a statement, you call me and I will be there."

Then about five o'clock Brent drives up and I tell him that Crow had indicated he was not coming, that I did ask him if he wanted to make a statement, what would happen. He said I'll be there.

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So after he drove up, the deputy sheriff left Misskelley out in the car and came in. Brent was there. He left him out there I guess for about five minutes. I suggested bringing him in the library, and I would ask him if he wanted to make a statement.

So the deputy sheriff went out and -- I guess he had him in handcuffs. I don't know. He brought him into the library. He took a seat at the end of the table and I asked Misskelley if he wanted to make a statement. He said he did.

I immediately picked up the phone and dialed Greg's number that he had given me. He gave me two numbers, his residence and his office, and I think you said it was a direct number where it would not go through the switchboard.

So he answered the phone and I said, "Misskelley is here and he told me he wanted to make a statement," and so I held the phone out and Jessie said where Greg could hear him, "I want to make a statement."

Then Greg said, "I heard him," and I said, "Can you come up?" He said yes. I said over the phone, "He's indicated he's hungry and we are going to get something to eat. Do you have any objection to that," and Greg said no, and at that point somebody went and got several cheeseburgers and brought them over and we

[001375]

ate.

About 45 minutes later Dan calls and is very upset. He said, "Is Misskelley there," and I said, "Yeah, he's here and wants to make a statement," and he might have said -- I don't know -- "It might not be in his best interest," and I said, "I don't know anything about that."

About seven o'clock, I think, the two of them arrived and came into the office. So we stood around and waited. Jessie went outside to smoke a cigarette. We don't allow smoking in the office. I think he smoked several cigarettes. I think Brent smoked a cigarette. Several people smoked cigarettes. But at no time was any discussion had with Misskelley about anything he had done.

When they arrived, they said, "We want to talk to our client." No problem. So they went into the library and shut the door. And I want to say it was about 40, 45 minutes -- it was quite a length of time -- it was getting late and I was wanting to go home so I came in and said, "Why don't we get the show on the road," or something like that.

I think Dan became upset with me because I had walked in the room, and so he said something about, "He made a statement," and I said, "Well, according to

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what I know about law he certainly has a right to make a statement. He has already been convicted." They said, "He's innocent." I said, "Well, he may be innocent but twelve people in Clay County said he was guilty. If you grant him immunity that you can't use it against him, the state has a right to call him."

We said a few words back and forth. I went out and shut the door. We stood out there about another twenty minutes or so. Brent and I walked back in then and Jessie Misskelley was angry. He got up and went out and made some derogatory remarks about -- I won't say about who -- but anyway he stood back out in the lobby and Dan came out and he indicated he wasn't finished talking with Jessie.

Jessie said he didn't want to talk to him anymore. He wanted to make his statement. Dan says, "I will have the sheriff handcuff you and drag you back in there," and Dick says, "Not this sheriff. I will not drag him back in there."

Then about that time they said, "Let's call the judge." So then we all four proceeded into my office. I dialed Judge David Burnett. He answered the phone and I said, "Judge Burnett, this is Joe Calvin. I'm in my office at Rector and before me is Brent, Dan Stidham and Greg Crow."

[001377]

And at that time I had just about a thirty second conversation. Dan talked to you. I don't know what you said to Dan. And then Brent talked to you. And then I think we went back in there --

THE COURT: I think I talked to Greg, too, didn't I?

MR. CROW: Yes.

MR. CALVIN: You talked to everybody but me. I just heard one side of the conversation.

THE COURT: I wanted to talk to people who knew something.

MR. CALVIN: And I appreciate that. I might add that I was paying the phone bill. So after all that phone conversation, they got up and went back out and said -- they told me what you had said to both of them. We got a tape recorder. Dan had a tape recorder --

MR. STIDHAM: The police chief --

MR. CALVIN: The police chief had a tape recorder.

THE COURT: Is this the transcript? I want it to be made a part of the record.

MR. CALVIN: We took a tape recording of his statement. Brent swore him in, and in that recording gave him immunity and he related to Brent about

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certain things about the crime and he wanted to testify. At the end of the conversation they went on the record as saying they thought he had committed perjury.

So at that time we concluded the interview and got up and we found that my tape, the third tape, was dragging, was not real audible. So we got another tape and I can't remember where we got that but we played our tape back and let Dan record it again and that took 45 minutes. So we had to sit around the office for 45 minutes. I might say at that time the feelings were very nice. They were very cordial.

THE COURT: What were you doing?

MR. CALVIN: Well, I had about six or eight beers and they drank all the beer and I had about a half of a fifth --

MR. STIDHAM: -- of cheap bourbon.

MR. CALVIN: I don't think it was actually cheap.

MR. FOGLEMAN: I think the record should reflect --

THE COURT: That John Fogleman wasn't there?

MR. FOGLEMAN: -- that Jessie did not partake. And John Fogleman was not there.

MR. CALVIN: Jessie had already gone. We set there for 45 minutes and recorded that and I think Dan

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had a fairly accurate statement of what Mr. Misskelley had given and we stood around a few more minutes and talked and shook hands and Dan says to Brent, "I don't really agree with this, but you are just doing your job and if I were prosecutor, I would have done the same thing."

And we shook hands and they left. That was basically it. Then I get a copy of a letter that he faxed to you and various other people. But at no time was any questions asked of Misskelley until they got there. I honestly think under the rules that they wouldn't have to be there from what the Honorable Judge Pearson said. But there were no questions asked.

Jessie did make statements about prison life, that he didn't like it, things like that. But he stood outside and smoked about half the time.

MR. STIDHAM: For purposes of the record, I didn't have a clear understanding of what had transpired when I made any statements to Mr. Calvin and Mr. Davis. I do respect and understand they have got a job to do. I think it is very clear from the motion I filed this morning that I disagree entirely with the tactics that they used and I think that's very obvious to the Court exactly why they transported

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Mr. Misskelley.

We again would renew our motion and the arguments set forth that this was a deliberate and willful attempt to interfere with Jessie Misskelley's Fifth Amendment rights and his Sixth Amendment right to counsel, and we submit the offer of immunity was given in bad faith, and we would also submit that the prosecution shouldn't be allowed to violate one constitutional right in order to compel a witness to testify by granting him immunity, and we think that is absolutely improper.

MR. CALVIN: Your Honor, I would like to add something. This is actually not my case and it was moved to Clay County. I helped pick the jury, and I only did this to assist Mr. Davis.

THE COURT: Are you saying don't do it again? Anybody else?

MR. STIDHAM: I do have one other thing. Who told you that Mr. Crow and I had different ideas about trial strategy?

MR. CALVIN: I think Greg told me over in Corning that y'all might -- y'all, you know, as two law partners, y'all disagreed on some of your theories of how to defend the case. It was nothing derogatory.

MR. CROW: I don't remember that.

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MR. CALVIN: Something to that effect, but that would have been a month ago.

MR. STIDHAM: I would like to say for the record I don't recall ever having any disagreement with Mr. Crow throughout the process.

MR. CALVIN: I don't know that it makes any difference.

MR. STIDHAM: I would like Mr. Crow to state whether or not he believes we had any problems or disagreements with regard to the representation of Mr. Misskelley.

MR. CROW: I don't remember anything during the trial process.

THE COURT: All right. I'm ready to rule. Motion will be denied. Specifically, the motion for Jason Baldwin and Damien Echols -- the relief requested was dismissal of all charges against those defendants with prejudice. That will be denied. There's absolutely no reason or justification whatsoever. You've barely got standing. I'm making an affirmative finding that there was no, absolutely no, prosecutorial misconduct in this case. The prosecuting attorney is duty bound once evidence comes to their knowledge to pursue that evidence with all vigor and to present that evidence in a court of law.

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That is his sworn duty.

Once the statements that Misskelley made were made known to him, he had a duty and an obligation to pursue that. Frankly, in my mind I'm not sure that he had any obligation at all to contact defense attorneys before approaching Mr. Misskelley at the penitentiary. If he had driven down there and asked him if he wanted to make a statement and testify under a grant of immunity, assuming he could get that from the Court, I'm not sure that it was necessary.

As I see the facts and from my knowledge of how it developed, he apparently was reluctant and did not attempt to take a statement from Misskelley before informing defense counsel.

You may not like how he brought him down here and the fact that you were summonsed to an office and went there because your client was there. I certainly can understand that feeling and your objection to that. On the other hand, he informed you and had you present before he made any attempt to even approach your client with regard to use immunity.

So I don't find that there was any misconduct on his part at all. There's absolutely no reason to suppress the statements made by Misskelley or any references to them.

That was some of the relief that

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was requested in Baldwin and Echols' motion.

"That the prosecutor be ordered not to have any contact directly or indirectly with any of the defendants." Well, the – them trying to approach a defendant that is being tried and to obtain a statement from him is quite different from what was done under these circumstances. Obviously, I think Mr. Davis and Mr. Fogleman know that they are not to contact Baldwin and Echols prior to -- and that would be an infringement of attorney-client privilege to attempt to do so.

However, where there are co-defendants and one has been convicted and sentenced to the penitentiary, I think the prosecutor would be derelict in his duty if he didn't attempt to elicit testimony from that co-defendant, at least make the attempt to do so.

I'm not going to forbid the State to call Jessie Misskelley as a witness or to to make any reference to him at the trial. His statement that he previously had given and any statement that has been taken and recorded is not admissible, and I think all of you know that, and I shouldn't have to make any ruling on that. It's simply not admissible.

However, if Misskelley is willing to come forward and give testimony at the time of trial, the State

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will not be prohibited from calling him as a witness and eliciting that testimony.

There's no reason or justification to hold anyone in contempt of Court on this and so a special prosecutor would be absurd and that is the extent of it.

The way I see it, if Mr. Misskelley is willing to testify, then he will be permitted to do so.

MR. PRICE: Will that decision be made known to us?

THE COURT: I'm sure it will be. I haven't removed Mr. Crow or Mr. Stidham. It's been my observation they have done a rather remarkable job in a capital murder case where the client had given police officers a statement. With the nature of this case, the high interest that's been involved in it and the emotions that have been involved, they have done a remarkable job in avoiding a capital murder conviction.

I did seek Mr. Wells' help because of the conflict between the prosecutor and the defense attorneys under the circumstances and the allegations made in the motion, and I feel it is beneficial to the Court to have that outside influence where parties or their feelings are raw and their attitude toward each

[001385]

other are at odds.

So for that reason I thought it was beneficial to have an independent attorney that didn't have any emotional tie to the case one way or the other to make inquiry of Mr. Misskelley as to whether he was willing to make a statement.

From Mr. Wells' report, he apparently didn't ask him whether or not he wanted to make a statement, but he apparently talked for about an hour.

MR. CROW: At least.

THE COURT: So I'm going to give him an opportunity to visit with his parents. I'm going to start this trial tomorrow morning and after I finish voir diring that next batch of jurors, we're going to start picking a jury. So you can do whatever you want with regard to your voir dire questions, each of you, the State and the defendants, because I think you will be on fairly equal footing as to whether you surmise whether he'll testify.

Hopefully, he will be able to give an answer tomorrow or this evening as to whether or not he's desirous in giving his statement, or his testimony. His statements don't mean a thing. They're hearsay. The only way Jessie Misskelley is going to be able to do anything is if he physically takes the stand.

[001386]

MR. DAVIDSON: At that time we should be given the statements for impeachment purposes.

THE COURT: You have already been given a copy of the statement. Mr. Stidham gave you a copy of the statement that he gave --

MR. PRICE: We did get a copy of the statement. Brent brought me one yesterday. I think it is a rough draft version --

MR. DAVIS: I've got one of those for each defense attorney, which is a certified transcript that Joe's secretary prepared based on the tapes that were taken that night. They can compare them with whatever Dan's got.

MR. CALVIN: I have a question for curiosity's sake. You're going to afford Mr. Misskelley the opportunity to speak with his parents. When he talks with his parents, then he's going to tell somebody, I want to testify or I do not want to testify. That still wouldn't be his decision to make because the State even if he says, I don't want to testify, still has the right to put him on the stand.

MR. STIDHAM: I disagree, your Honor. That's not the law.

MR. CALVIN: I think it is. If they want to put him on the stand --

[001387]

MR. STIDHAM: -- Knowing that he's going to invoke his Fifth Amendment privileges?

MR. CALVIN: He's been given immunity, and he doesn't have a Fifth Amendment right. Once the judge grants immunity, the State can still call him as a witness even though he says, I don't want to testify.

THE COURT: That's my understanding as well. If there is a grant of immunity, he doesn't have the right to impose the Fifth Amendment.

MR. CALVIN: If he says today that he doesn't want to testify, that still --

THE COURT: That doesn't mean that they cannot call him. That's correct.

MR. DAVIDSON: If I go to the jail tonight and ask him if he wants to talk with me --

THE COURT: I'll do this on that. If you want to brief that issue further -- if there is a grant of immunity given, the person who received that grant can't refuse to testify. That is my understanding of the --

MR. PRICE: Even if the case is on appeal.

THE COURT: That's right.

MR. STIDHAM: Our research indicates --

THE COURT: Y'all can research that if you want to, but I think that is a correct statement of the

[001388]

law.

I'm not ruling on that. I'm ruling that if he chooses to testify, I'm sure going to let him.

MR. STIDHAM: I'd again make the request that a transcript of these hearings today -- that I be allowed to designate those on appeal for the purposes of Mr. Misskelley.

Second of all, if Mr. Misskelley says, I don't want to testify, does that mean the prosecutors are going to be able to go down there and beg him some more or do anything with him some more? Do we have a right to be notified and be present? I think that issue probably needs to be clarified.

THE COURT: I think they have a right to talk to him.

MR. PRICE: In the presence of their attorney?

THE COURT: It would be preferable --

MR. DAVIDSON: -- Can we talk to him?

THE COURT: If he wants to talk to you, I think you can.

MR. STIDHAM: Your Honor, you're ruling that if he tells us that he does not want to testify, they are still going to have an opportunity to pursue him unbridled by --

THE COURT: In view of all this hoopla we've

[001389]

raised about it I think it would probably be preferable to have you present, but I'm not going to bar them access to a potential witness, or at least a person they believe has some testimony or information.

MR. PRICE: So the State can talk to Mr. Misskelley without his attorneys being present --

THE COURT: I didn't say that. I said it would be more advisable to have them present in view of this motion.

MR. STIDHAM: They haven't deemed it to be advisable thus far.

THE COURT: My thought is -- and y'all haven't shown me any law contrary -- I'm not sure that they don't have a right to go down there and talk to him.

MR. PRICE: So the same thing would apply to us? We would have the right to talk to him --

MR. FOGLEMAN: Your Honor, there are different interests involved --

THE COURT: Yeah, I think you probably do. As a witness, you probably have a right to.

MR. FORD: But we can talk to him now, too. You're going to allow him to testify if he chooses to and will not -- under use immunity would order him with the contempt powers to testify against his will.

THE COURT: I haven't made that ruling yet. I'm

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saying that is a potentiality that that ruling will be made, and I am giving you an opportunity to brief that.

MR. FORD: Okay.

MR. STIDHAM: We would ask that no one be allowed to talk to him until that ruling has been made. We submit to the Court that Jessie Misskelley has just as much Sixth Amendment rights now as he did before because of the status of his appeal and the fact if we have a remand, your Honor, we'll be trying this again.

THE COURT: Nothing he says can be used in that trial when you do it again.

MR. CALVIN: This man is a convicted person from Clay County, Arkansas. He has been convicted.

MR. STIDHAM: That man has rights --

MR. CALVIN: He may have rights to appeal but once he's been convicted and the Court grants him immunity, the State can call him and put him on the stand. They might not know what he's going to say but they can flat call him. That's been law for years.

MR. STIDHAM: I disagree --

THE COURT: There's one other thing. There's been some talk about the Court's power to reduce the sentence, and we have talked about that indirectly. And for the record, I have never said I would do

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anything one way or the other. In fact I tried to tell each of you that I wasn't going to make any commitment that I'd do anything, one way or the other, whether he testifies, doesn't testify or what.

If they are going to require his testimony after you brief that and I have considered that, then the proper way to proceed if that were to happen would be for his defense attorneys to file a motion for a new trial, and I can rule on that, and I suppose at that point a plea bargain if I granted a new trial based upon him testifying under a grant of use immunity, that a plea bargain could be agreed upon. Those are mechanics that I'm not sure whether anyone really knows --

MR. CROW: Judge, the statute basically says within 120 days you can do what you want without --

MR. FOGLEMAN: That's not what the statute says.

THE COURT: In a civil case I can.

MR. STIDHAM: For the record, I object to anyone -- law enforcement personnel, prosecutors, anybody -- conferring with my client. I object to that at all in any form or fashion -- indirect, direct, innuendo or anything.

MR. DAVIS: One thing I would like to request -- and I don't know what the logistics are with Barbara

[001392]

-- but the portion of your ruling on this motion and I know -- I don't know how much of it would be -- since apparently everybody in the media has a motion alleging misconduct on my part, if there is a transcript of your order or your findings made which indicates no prosecutorial misconduct, I would request that that portion of your ruling that indicates that be transcribed so I can file that in the Court file so that I don't have to make a public comment but that there's some record so that --

THE COURT: Well, everyone of these people out here have been given -- or obtained a copy of the motion. I'm prepared to go out and announce my ruling.

MR. DAVIS: I would certainly appreciate that, your Honor, because that leaves me in a --

THE COURT: They know what the motion was. I'm going to announce the ruling the Court has made.

It still leaves a question mark as to whether or not Mr. Misskelley will testify. Y'all will just have to deal with that however you can in your voir dire because I'm going to start the voir dire in the morning.

MR. WADLEY: Judge, while we're on the subject concerning tomorrow, we are going to have a new pool

[001393]

coming in tomorrow.

THE COURT: About putting the twelve back in? I don't care. I will do that.

MR. FORD: One last thing regarding tomorrow. The Court has previously indicated that we have to share our strikes and that Mr. Price -- at least it's our agreement -- will be entitled to six and we will be entitled to six, and we are aware that the State has ten strikes.

We would ask that each side be placed on equal footing and that we be given ten strikes and that Mr. Price be given ten strikes. In the event the Court deems that to be inappropriate the Court has previously indicated to me in off-the-record discussions that if all the strikes were going to be used, that you would give us another one to avoid any error. If you're going to give those strikes at that time, we would ask to know whether you're going to give one or two and to basically give those to us now so that we know how many cards we have in our hand to order to determine how we play those cards.

THE COURT: All right. What my remark was, was that I was going to follow the longstanding traditional law that when you have a joint trial, the defendants are required to share their strikes. I see

[001394]

no reason to change that whatsoever and don't intend to do so. I by habit and custom have in the past where defense lawyers requested additional strikes, given them additional strikes, but I'm not going to commit myself to give you one, two, ten or none.

If you exhaust your strikes, we still have not picked a jury and the Court feels that it's appropriate, I will give you additional strikes, but I'm not going to commit myself to how many or when.

MR. WADLEY: Your Honor, the long line of cases the Court talked about, those cases dealing with shared strikes were not capital cases.

THE COURT: Oh, yes, they have been.

MR. WADLEY: Well, I --

MR. DAVIDSON: Your Honor, again, we would renew our motion for severance in that we again still feel that we would not be able to adequately share strikes with the other side. We believe our defenses are adverse, and we would again renew our motion for severance.

THE COURT: Adverse in what regard? Y'all have been working pretty darn good as a tag team.

MR. FORD: Your Honor, I object to that inference on the record like you did this morning. I don't see that we're doing any tag team.

[001395]

Your Honor, I likewise join in a motion for severance based on the Rules of Criminal Procedure which require that we renew it at trial or lose it. We are hereby renewing, and it will be a continuing request for severance throughout the entire proceeding --

THE COURT: -- I'm not going to allow a continuing objection on that. You're going to have to raise your objections as they come up, and I'll rule on them.

MR. FORD: We ask for a ruling on our motion for severance.

THE COURT: Denied.

MR. DAVIDSON: Ours also.

THE COURT: Denied.

(ADJOURNMENT)

[001396]