THE COURT: If you are raising it, you're asking for it.
MR. STIDHAM: We haven't raised it yet.
THE COURT: Maybe I'm misunderstanding what you're telling me then.
MR. STIDHAM: Your Honor, if I may have a few minutes to find the statute -
THE COURT: I'm looking at nine twenty-seven three eighteen.
MR. STIDHAM: The code provision with regard to when the Court orders mental evaluation and that deals with the insanity defense. The thing I'm concerned about, Judge, is the prejudice that will result to the defendant, Mr. Misskelley, when the press starts printing news reports tomorrow that the court has ordered a psychiatric evaluation of Mr. Misskelley.
THE COURT: I don't know that that even attaches any stigma to anyone any more.
MR. STIDHAM: Judge, what I'm merely saying is I would like to have the opportunity to at least finish the discovery process, to conduct some --
THE COURT: What is it you want to do? What additional discovery are you requesting of the State?
MR. STIDHAM: Your Honor, I filed a motion to conduct the discovery deposition of the officer that
(p.252) interrogated Mr. Misskelley. I have asked to look at the police files involving similar crimes from around the country.
Judge, our defense is going to be that Mr. Misskelley wasn't there and that this confession was coerced and involuntary.
Judge, we have the right under the law to examine the police files with regard to similar crimes. There is a recent Supreme Court decision. Zinger versus State, that outlines the admissibility of evidence of similar crimes. There may not be anything out there, but we at least have the right to look through that.
Also, your Honor, the police are in possession of videotapes of two suspects who left West Memphis days after the homicides and who flunked polygraph examinations when interviewed by police in Oceanside, California. We haven't seen those yet. We've got to look at those. The prosecution has agreed to let us view that information.
There's still a lot of work to be done, Judge. We are still only five months away from the actual homicides them selves. We have not had a chance to conduct our examination and research this thing properly.
THE COURT: Are you objecting to a speedy trial?
(P.253)
MR. STIDHAM: Judge, if I have to ask for a continuance, I will certainly do that to protect my client's interest. I don't -
THE COURT: How much time are you asking to continue this hearing?
MR. STIDHAM: Judge, I'd like to have, well, first of all that probably would depend on whether the State is going to push for a trial date for us in December or January like it indicated. Judge, we don't think we can be ready. We like the February 21st court date, but I understand the problem it is going to impose upon the State -
THE COURT: Your court date is going to be January 18th if I don't rule on your other motions to the contrary. If I rule to transfer it if and when you are ready for me to hear it, then of course that date won't be applicable. But it is going to be January 18th through the 25th.
MR. STIDHAM: Judge, can we have sixty days if you're going to impose a trial date on January 18th?
THE COURT: No, sir, you cannot have sixty days. Today is the 19th of October. I'm going to give you until the 16th of November and at that time I'm going to hear your motion to transfer, and I am either going to order a psychiatric evaluation on that date or if (p. 254) the State asks for it earlier, I will order it and I am going to continue it on your motion -- the 16th -- and that delay specifically is going to be charged against your client.
MR. STIDHAM: Yes, sir, your Honor. I'd like the record to reflect that we didn't ask for an evaluation.
THE COURT: You're asking for a continuance and that continuance could very well bring up the necessity of a psychiatric evaluation which would then probably take another thirty days so I don't know what else to do. I'm trying to give you as much latitude as you want. I will continue it to the 16th, and you are going to be directed to appear in Osceola at 1:30 for a hearing on the motion to transfer to juvenile and any other applicable motions that need to be heard in Mr. Misskelley's case at that time.
MR. FOGLEMAN: Your Honor, there was an evaluation in '87. It is kind of dated but there was an evaluation in '87. We have the report.
MR. STIDHAM: On Mr. Misskelley.
THE COURT: In regard to your motion for discovery, gentlemen, is there any reason why you cannot give him all that stuff?
MR. FOGLEMAN: Your Honor, on the other crimes (p. 255) there is a concern because these are unresolved crimes and it is not that they are related to this one. It is just that they are unsolved child murders from around the -
THE COURT: I'm going to order you to let them review those files, and they are going to be ordered and directed that they are not to disclose any information that may be derived from those files, and you will not be permitted to utilize it in court unless you first seek permission of the Court and demonstrate to the Court that it has some substantive value in this particular case.
MR. FOGLEMAN: Your Honor, could you give a specific time?
THE COURT: Before the 16th of November.
MR. FOGLEMAN: I know but I mean a specific date for that to be done because the officers can't be sitting around waiting for them to come -
THE COURT: You gentlemen understand that I don't want any notes given to newspapers. I don't want any conversation with anyone. You can review it and if you find some relevant evidence to this case, then of course you will be permitted to use that. I don't have any idea what is in it.
MR. PRICE: Your Honor, would that apply to all (p. 256) three cases?
THE COURT: Sure.
MR. STIDHAM: Your Honor, in our motion we suggested that the Court could solve the State's problems by issuing a protective order to that effect. We certainly have no --
THE COURT: I haven't read your motion but that's sure what I'm going to do. This will apply to all parties.
MR. FOGLEMAN: Judge, is this for reviewing the information or providing copies?
THE COURT: Well, again it seems to me it would be easier for you to go up there and peruse through it if they give you a place to look at it. How much is there?
MR. GITCHELL: Several cases.
MR. STIDHAM: Judge, it seems like we could make photocopies, go back to the office and analyze it. Obviously if we are under a protective order -
THE COURT: I'm going to let you copy the ones that you think might lead to or produce relevant evidence.
MR. STIDHAM: Your Honor, the second prong of our motion deals with we have asked the State to allow us to examine the personnel files of the interrogation (p.257) officers.
Again, we have filed a motion to suppress and the nature of our motion to suppress is that the two statements made by Mr. Misskelley are involuntary.
THE COURT: Well, officers are not on trial, but I understand the nature of your defense to be that it was a coerced confession, and you're looking to see if there are any disciplinary actions against those officers for coercion against detainees?
MR. STIDHAM: I want to know whether they beat up an old lady last year, whether they --
THE COURT: I'm going to do this. The personnel files -- and certainly the officers are not the subject matter of this trial -- I will allow you in the presence of the prosecution attorney and the chief of police to physically review the files and make handwritten notes. But again you're not to reveal in any way or transmit any information pertaining to those officers without prior written Court approval or you will be dealt with severely by the Court.
MR. STIDHAM: I understand, your Honor, and in our motion we asked that a protective order be issued.
THE COURT: I will do that and, again, you're not going to be permitted to utilize that in Court until I have an in-camera hearing as to the relevancy of those (p. 258) matters.
MR. STIDHAM: Certainly, your Honor.
THE COURT: And you will not be allowed to photocopy any piece of their personnel files. You may make your handwritten notations and again the disclosure of those to anyone and by any source is going to be looked after by the Court very severely. I mean I'm going to find out who disseminated it and then I'm going to deal with you.
MR. STIDHAM: Judge, that won't be a problem.
THE COURT: All right. I will permit that under those conditions.
MR. DAVIS: Your Honor, what I would like to do is be sure and write a precedent as to an order regarding those motions in a timely fashion.
THE COURT: Fix a precedent for that order, and I want it by the end of the week, and I want you to deliver it to the prosecutor to approve and then mailed to me.
MR. STIDHAM: Your Honor, that leads us to the third prong of our problems with discovery.
THE COURT: All right.
MR. STIDHAM: I filed a motion to take discovery depositions of interrogation officers. At the September 27th hearing the Court stated that if we (p. 259) could find some authority that we could present this to the Court. We have found some authority in Indiana as well as a U. S. Supreme Court case which is Wardius versus Oregon.
Basically, your Honor, the Wardius case the Supreme Court said that discovery is a two-way street, that the defendant should have the same rights to conduct discovery and investigate that the State enjoys.
Also, I would like for the record for the Court's purpose of reviewing the motion read a portion of the Wardius decision into the record.
MR. FOGLEMAN: Your Honor, I thought this was something we were not going to discuss today since we had only been provided that today and have not had a chance to have any kind of response.
THE COURT: What I will do on this is you can send me your brief on this po9int and I will decide it later.
MR. FORD: Your Honor, I would like to state on the record that we have previously filed -- it was discussed at the 27th hearing -- our desire to take a discovery deposition of the -- Inspector Gitchell, Detective Ridge and Detective Mike Allen.
THE COURT: And I think at that time I ruled that (p. 260) I would make them available to give their statement to you if they chose to do so.
MR. FORD: Your Honor, what I think the Court stated -- I think that's where Dan is coming from -- is that led to a remark, "If you can find some authority to allow them to take their swore statements the way that the prosecutor can," that you will do that. I think that's why we are here.
THE COURT: I'm going to allow the prosecutor an opportunity to brief that matter and respond before I rule on it. So let's move on to something else.
MR. STIDHAM: Your Honor, may I read this part of the opinion into the record assuming we will have another chance to make arguments?
THE COURT: Go ahead.
MR. STIDHAM: Your Honor, the Court in Wardius held that, "In the absence of a strong showing of state interest to the contrary, discovery must be a two-way street. The state may not insist that the trial be run as a search for the truth so far as the defense witnesses are concerned while maintaining poker game secrecy for its own witnesses."
Your Honor, we submit that we should be entitled to do the same that the State has the right to do, and we cannot prepare for an adequate defense if we don't (p. 261) have an opportunity to discuss this with the officers under oath.
The Indiana courts have recognized, your Honor, that this is a substantial right of the defendant and that they routinely grant defendants authority to conduct depositions of the officers and there is a case -
THE COURT: This is not Indiana or California so -- I will listen to what the State has to say and then rule on that. I have ruled on that same issue previously and I am probably not inclined to change my rulings from what I have in the past. Anyway, brief it and let me see it.
Call your next witness.
MR. FOGLEMAN: Bryn Ridge.
BRYN RIDGE
having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:
DIRECT EXAMINATION
BY MR. FOGLEMAN:
Q. Will you please state your name and occupation?
A. Bryn Ridge, detective for the West Memphis police department.
Q Did you participate in the investigation of the disappearance of the three murder victims on May the 5th, 1993?
(p. 262)
A. Yes, I did.
Q. Were you present when the three victims were discovered?
A. Yes
Q. If you would, describe briefly to the Court the condition of the bodies, where they were found and the manner in which they were found?
A. The bodies were found in a wooded area known as Robin Hood which is on the northern limits of West Memphis between a residential neighborhood and the expressway -- I-40.
Q. Is it in a wooded area?
A. Yes, it is.
Q. Specifically where were they found?
A. In a ditch in water.
THE COURT: Just a minute.
(REPORTER FROM THE COMMERCIAL APPEAL ENTERING COURTROOM)
THE COURT: I'm not going to let you come in now. I told the officers that I would let the attorney come in and then I'd rule on it. I'm considering this a matter that could potentially be in Juvenile Court and, therefore, it is subject to be closed. As soon as we finish this, I'm going to open it up and everybody can come back in.
MR. SULLIVAN: Our lawyers are on the way.
THE COURT: When they get here, I will hear it.
(p. 263)
MR. SULLIVAN: Thank you. (EXITING THE COUTROOM)
THE COURT: Go ahead.
BY MR. FOGLEMAN:
Q. There were found in water in a ditch?
A. Yes.
Q. Approximately how deep was the water?
A. Two to two and a half feet deep.
Q. Were the bodies of the victims visible from out of the water?
A. No, sir.
Q. How were they discovered?
A. A shoe was found floating in the water and a boy scout cap was found floating in the water. As officer Mike Allen approached those items that were floating in the water, he found-- he had struck something with his foot.
Q. In the water?
A. Yes, sir. When he raised his foot, the naked body of the first victim was located.
Q. Were the three victims then removed from the water?
A. Yes.
Q. Were they clothed?
A. No, sir.
Q. Did any of them have any clothing on?
A. No clothing except the shoestrings they were tied with.
(p. 264)
Q. How were they tied?
A. Hand to foot on each side. The right hand was tied to the right foot at the ankle. The left hand was tied to the left foot at the ankle.
Q. Was there any evidence of violence?
A. Yes
Q. Describe for the judge the evidence of the violence.
A. All of the victims showed wounds to the head, face. There were lacerations, contusions. There was bleeding from the nose and the ear of the first victim. There was cuts to the side of the face of the second victim.
Q. When you say "cuts," what do you mean? Just a few little pick marks, or what do you mean?
A. No, sir. It was serious cuts that were five to five and a half inches long which just exposed part of what I call the jawbone, in that area. One of the victims was as if his penis had been removed. My terms, the penis was removed. There were pick marks all over the bodies.
Q. When you talk about "pick marks," what are you talking about?
A. It appears like a double edge knife will be used to repeatedly stab -- peck at the skin of the victims with entry having been gained to the flesh.
Q. Where were those little stab wounds?
A. Well, on the one with the cutting to his face, it was like (p. 265) all away around the wound. He had marks on his eyelids. The one that the penis was removed was all the way around -- was about a foot in diameter around the genital area.
Q. Are you talking about just three or four of those stab wounds?
A. No, sir. I would call it hundreds.
Q. Did you bring photographs of the scene there?
A. Yes, I did.
Q. Did you at my request have those photographs with you?
A. Yes.
MR. FOGLEMAN: Your Honor, we will mark these as one exhibit.
MR. FORD: Your Honor, these are introduced for the purpose of this hearing only and not for the purpose of the trial?
THE COURT: Yes. They may be received for purposes of this hearing.
(STATE'S EXHIBIT SIX IS RECEIVED FOR PURPOSES OF THIS HEARING)
MR. PRICE: Judge, is it the Court's ruling that this being an in-camera proceeding will prevent anyone from making a copy of these exhibits or getting a transcript of the court reporter.
THE COURT: That's correct.
BY MR. FOGLEMAN: (p. 266)
Q. I know they have been received but do they fairly and accurately portray the victims as they appeared to you that day?
A. Yes, sir.
Q. The victims were how old?
A. Eight years old.
Q. In the course of your investigation did you participate in taking a statement from one Jessie Misskelley?
A. Yes, I did.
Q. Who did he tell you did the stabbing?
MR. FORD: I object, your Honor, because it is hearsay. It is hearsay. He's asking what did Jessie Misskelley say.
THE COURT: Gentlemen, I have already heard that testimony from the statement that I hear that was attributable to Mr. Misskelley at the last hearing so I will sustain your objection, but I'm not going to discount what I have already heard.
MR. FORD: Is the Court going to consider what it heard at a previous hearing-
THE COURT: I certainly am -
MR. FORD: -- in terms of this issue?
THE COURT: Yes, sir.
MR. FORD: Your Honor, we object to that consideration as to things outside the record.
THE COURT: The sworn testimony that is a matter (p. 267)
