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1 | JONESBORO, ARKANSAS, JUNE 10, 1998, AT 9:30 A.M. |
2 | THE COURT: All right, court will be in |
3 | session. I think it's your turn, Mr. Davis |
4 | MR. DAVIS: Your Honor, somebody said something |
5 | about they were going to try to call the HBO guy out |
6 | of order. |
7 | THE COURT: That's all right if you want to do |
8 | that. |
9 | MR. MALLETT: We have a gentleman here from New |
10 | York. I had indicated to him I would ask the Court to |
11 | take him out of order. |
12 | THE COURT: All right. Leon, are you appealing |
13 | here? Are you going to be shown of record? I don't |
14 | know that it's necessary. |
15 | MR. HOLMES: I am representing Mr. Sinofsky. We |
16 | may have an objection. |
17 | THE COURT: I just wanted to acknowledge that he |
18 | was here. |
19 | BRUCE SINOFSKY |
20 | having been first duly sworn to speak the truth, the whole truth |
21 | and nothing but the truth then testified as follows: |
22 | DIRECT EXAMINATION |
23 | BY MR. MALLETT: |
24 | Q. Please introduce yourself to Judge Burnett. |
25 | A. My name is Bruce Sinofsky. |
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1 | Q. Mr. Sinofsky, where do you live -- not the address - but |
2 | generally? |
3 | A. I live in Montclair, New Jersey. |
4 | Q. Would you spell that, please? |
5 | A. M-O-N-T-C-L-A-I-R. |
6 | Q. Also as a courtesy, would you please spell your last name? |
7 | A. S-I-N-O-F-S-K-Y. |
8 | Q. How are you employed? |
9 | A. I work for Creative Thinking International. That's my |
10 | company. |
11 | Q. We've seen on papers that are in evidence the expression, |
12 | "Creative Thinking International, Limited." Will you tell us |
13 | briefly what form of business organization it is? |
14 | A. It's a partnership that Joe Berlinger and myself have to |
15 | make films, commercials, industrial films and in some cases |
16 | distribute films that we have made. |
17 | Q. Berlinger, B-E-R-L-I-N-G-E-R? |
18 | A. Correct. |
19 | Q. In my state when we say "limited," it usually means that |
20 | there are business association papers filed with the Secretary |
21 | of State indicating it's a limited partnership? |
22 | A. It's Sub S corporation. In terms of the business aspects, |
23 | that's something that Joe really deals with. |
24 | Q. It's a corporation. I would assume a closely-held |
25 | corporation, not a public corporation? |
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1 | A. Right. Just Joe and myself. |
2 | Q. You and Joe are the company? |
3 | A. Yeah. |
4 | Q. How many employees do you have? |
5 | A. Five. |
6 | Q. And where are the principal offices and principal place of |
7 | business? |
8 | A. 208 West 30th Street, Suite 302, in New York City. |
9 | Q. Do you have any office space at any other locations? |
10 | A. No. |
11 | Q. What sort of business is Creative Thinking International, |
12 | Limited? |
13 | A. We produce nonfiction feature films. We make commercials. |
14 | We do corporate films and in some cases distribute our own work |
15 | in theaters. |
16 | Q. And I take it that the places you may go to do your work in |
17 | filmmaking are virtually without limit. You could go anywhere |
18 | in the world and still be doing business as Creative Thinking |
19 | International, Limited? |
20 | A. Yes. I imagine we could be in Paris and be able to make a |
21 | living. |
22 | Q. Have you done work outside the United States? |
23 | A. No. |
24 | Q. But you have done work in Jonesboro, Arkansas? |
25 | A. Yes, we have. |
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1 | Q. What is the relationship between -- let me withdraw that |
2 | and start over. What is the business called Home Box Office? |
3 | A. Home Box Office is a cable television network that I |
4 | believe is owned by Time Warner. |
5 | Q. To your understanding -- and this is just for general |
6 | knowledge -- it's a subsidiary of a large publicly-held |
7 | corporation? |
8 | A. Yes. |
9 | Q. Now let's direct our attention to your work in Jonesboro, |
10 | Arkansas. |
11 | A. Okay. |
12 | Q. With respect to coming to Jonesboro, Arkansas, what is the |
13 | relationship between Home Box Office, a Division of Time Warner, |
14 | and Creative Thinking International, Limited? |
15 | A. Creative Thinking International was hired by Home Box |
16 | Office to produce a film about a triple murder in West Memphis, |
17 | Arkansas. |
18 | Q. The employment of Creative Thinking would have been, I |
19 | presume, sometime after May the 5th, 1993? |
20 | A. Ah, I believe it was the beginning of June. |
21 | Q. As you understand it and as a co-owner of the business, how |
22 | did you first become interested in making this particular case |
23 | into a motion picture? |
24 | A. There was a AP wire service, I believe from the Commercial |
25 | Appeal, talking about the arrests of three teenagers for what |
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1 | was described as a cult murder -- killing -- and we were |
2 | intrigued by the story, and we approached HBO who also had seen |
3 | the story because we were looking for some sort of a crime story |
4 | and sat down and discussed it and made a decision to go down to |
5 | West Memphis and meet some of the people involved and talk to |
6 | them about the possibility of us making a film. |
7 | Q. You had previously made a film about a crime story? |
8 | A. Yes. We had made a film -- |
9 | Q. What was that film? |
10 | A. "Brother's Keeper." |
11 | Q. The film, "Brother's Keeper," did it have some degree of |
12 | artistic or commercial success? |
13 | A. Yes. |
14 | Q. Such as? |
15 | A. "Brother's Keeper" was probably the most successful |
16 | documentary of 1992. It was -- won the Directors Guild of |
17 | America -- Best Documentary. It was the National Board of |
18 | Review Best Documentary, the New York film critics, the L.A. |
19 | film critics. It was on over fifty top ten -- ah -- critics |
20 | you know, top ten at the end of the year films. It did very |
21 | well at the box office as well as sold quite well |
22 | internationally. It's considered to be one of the top fifty |
23 | documentaries of all time. |
24 | Q. And without needing to know the precise details, I presume |
25 | that since the film, "Brother's Keeper," was a commercial |
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1 | success at the box office and other places, that that inured to |
2 | the benefit of other business of Creative Thinking |
3 | International. That is, the film makes money, you make money? |
4 | A. Sure. |
5 | Q. So you had a good track record with Home Box Office? |
6 | A. We didn't make that film for Home Box Office. That film |
7 | was made for American Playhouse, and it was originally financed |
8 | by Joe Berlinger and myself on our credit cards. It was only |
9 | after we had filmed about 90 percent of it -- everything but the |
10 | trial -- that we were able to get American Playhouse to fully |
11 | fund the film. |
12 | Q. When you began discussing making a film about the case in |
13 | Jonesboro -- or the case in West Memphis, Arkansas, that was |
14 | ultimately tried in Jonesboro -- you were able to show Home Box |
15 | Office that you had a history of success at making films that |
16 | were successful at the box office. |
17 | A. Yes. |
18 | Q. I would take it there would be some commercial negotiations |
19 | between you and Home Box Office relating to how the money would |
20 | be split up if the new film was a commercial success. |
21 | A. Initially our dealings with HBO were simply to produce a |
22 | film that they were gonna broadcast on television. We really |
23 | didn't discuss initially at that time any kind of thoughts about |
24 | a theatrical release because they're not in the business of |
25 | producing films to show in theaters. That's not something that |
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1 | they traditionally do. |
2 | Q. I'm really not at this point interested in finding out how |
3 | much money you made so I'm not gonna ask that question, but I am |
4 | gonna inquire whether your arrangement with Home Box Office |
5 | would be considered a business arrangement whereby Home Box |
6 | Office was able to make money through viewers of cable TV or |
7 | through sales of video or through rentals of video or mass sales |
8 | to chain stores that rent videos -- any of those things |
9 | whether your business would profit if the film profited? |
10 | A. Yes, it would. |
11 | Q. Okay. So when you made a film, you initially had a |
12 | commercial interest, and I presume you also consider yourselves |
13 | persons who have an artistic interest in your work? |
14 | A. Absolutely. |
15 | Q. In addition to having a commercial interest and an artistic |
16 | interest, I guess you would have a professional interest -- a |
17 | general professional interest -- in that whenever your business |
18 | or business dealings -- when you and Joe would make a film, you |
19 | want it to be a good film, a film that you would be proud of |
20 | within the professional community? |
21 | A. Absolutely. It's imperative. |
22 | Q. So you had all those things on your mind and probably |
23 | others as you were negotiating with Home Box Office? |
24 | A. Yes. |
25 | Q. Do you have a clipping service that you contacted and you |
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1 | asked them to look for a good crime story for you? I'm still |
2 | not sure how it came to pass that you were reading newspapers |
3 | from Memphis, Tennessee -- |
4 | A. No, it was in the New York Times. Part of our daily |
5 | routine is to -- as with Brother's Keeper -- we look for |
6 | articles either in the Metro Section or the front page of the |
7 | paper that might be interesting film subject material. It could |
8 | take years to find something that sparks an interest in you that |
9 | you feel you can dedicate the two or three years that you have |
10 | to dedicate to make a film of this quality. |
11 | Q. So this event was actually in the New York Times? |
12 | A. It was in the Metro Section of the New York Times -- on |
13 | Sunday, June the 6th, I believe. |
14 | Q. In the negotiations with Home Box Office about one of |
15 | the issues about which there would be negotiations I presume |
16 | would be who would have rights to determine how the film would |
17 | be distributed, to whom it would be distributed. Is that sort |
18 | of a subject that would be negotiated? |
19 | MR. HOLMES: Your Honor, may I object to the |
20 | inquiry about their negotiations with Home Box Office? |
21 | It is utterly irrelevant and proprietary information |
22 | It has nothing to do with this proceeding. |
23 | THE COURT: I don't know where there's any |
24 | relevancy to it. What is the relevancy, Mr. Mallett? |
25 | MR. MALLETT: Our pleadings say that the |
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1 | performance of the lawyer was affected by the |
2 | relationship between themselves and Home Box Office |
3 | THE COURT: What does that have to do with any |
4 | financial arrangements or negotiations made between |
5 | Home Box Office and Creative Thinking? |
6 | MR. MALLETT: I'm seeking to determine who had |
7 | control over the use of the materials that were shot |
8 | -- both used in the film and also not used in the |
9 | film. |
10 | THE COURT: I don't think there's much question |
11 | about that from the contract you read yesterday. It's |
12 | fairly obvious that Creative Thinking drafted a |
13 | contract that was to their financial benefit. |
14 | MR. MALLETT: I think the contract is in |
15 | evidence, and the contract has within it language |
16 | indicating that Home Box Office in turn has the power |
17 | to transfer all rights to control, privileges, et |
18 | cetera, that are incorporated within their contract to |
19 | some other person. |
20 | THE COURT: Well, the contract speaks for itself |
21 | I don't know what ether relevancy it would have on any |
22 | issue in this case. |
23 | I understand that you're saying that because of |
24 | entering into the contract, that the defense attorneys |
25 | either breached an ethical duty or failed in some way |
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1 | to perform to the standard expected of a defense |
2 | attorney. But how that relates to what he made off |
3 | the film or what he negotiated with some third party, |
4 | I can't see it. If you can tell me how it relates, |
5 | then go ahead. |
6 | MR. MALLETT: Well, I was not asking how much he |
7 | made off the film. I'm saying, generally speaking, |
8 | people consider their earnings to be private and |
9 | that's -- I'm not making an issue of that -- but I was |
10 | seeking to establish whether control of the content |
11 | that would be selected for use was protected by these |
12 | -- |
13 | THE COURT: I'll let you ask him that. |
14 | BY MR. MALLETT: |
15 | Q. Did Home Box Office have the power to control the content |
16 | that would be incorporated in the film? |
17 | A. I would say that we had final cut. We would show cuts of |
18 | the film to the people at Home Box Office, but generally |
19 | speaking I would say 99 percent of what you see in the film was |
20 | decided by Joe Berlinger and myself. |
21 | Q. And I think it's pretty obvious -- but to make it really |
22 | clear -- in this small operation in which you have about five |
23 | people and you and your partner own the company, the |
24 | negotiations with Home Box Office about what would be included |
25 | or not included was really between you or Joe and someone |
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1 | representing Home Box Office on the other side? |
2 | A. Right. Creatively it was us -- Joe and myself exclusively |
3 | -- and probably Sheila Nevins who was the executive producer at |
4 | Home Box Office. |
5 | Q. I have marked Petitioner Exhibit 41, a document dated |
6 | September 15th, 1993. Do you have that in front of you? |
7 | A. Yes, I do. |
8 | Q. I want to tell you that I'm very grateful that you were |
9 | kind enough to bring a file of your materials to court today. |
10 | And this is the first date I see in the file for written |
11 | correspondence. Is there any other document of some earlier |
12 | date than this between you on the one side and the lawyers from |
13 | Damien Echols on the other side? |
14 | A. Not that I know of. |
15 | Q. So this is the written letter -- a confirmation of some |
16 | earlier telephone conversations that sets out the general |
17 | purposes that you had in negotiating with them to make the film? |
18 | A. Yes. |
19 | MR. MALLETT: Move then the admission of |
20 | Petitioner Exhibit 41. |
21 | MR. DAVIS: No objection. |
22 | THE COURT: It may be received without objection, |
23 | (PETITIONER EXHIBIT 41 IS RECEIVED IN EVIDENCE) |
24 | BY MR. MALLETT: |
25 | Q. You have a copy of it? |
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1 | A. Yes. |
2 | Q. The date on this is September 15, 19937 |
3 | A. Yes. |
4 | Q. It's a letter you wrote to Mr. Scott Davidson, who you then |
5 | knew to be one of the attorneys appointed to represent Damien |
6 | Echols? |
7 | A. Yes. |
8 | Q. The letter begins, "As you know, we're interested in making |
9 | a documentary film about the West Memphis murder case in which |
10 | you are involved." |
11 | The second paragraph begins with this phrase: "As we told |
12 | you on the phone, we do not consider ourselves part of the |
13 | media." Do you see that? |
14 | A. Yes, I do. |
15 | Q. One of the things we know from that is that you had |
16 | previously spoken to Mr. Davidson on the phone? |
17 | A. Yeah. Probably within a week of that. |
18 | Q. That's what I was gonna try to isolate. At what point did |
19 | you make contact with the court-appointed lawyers for Damien |
20 | Echols to begin negotiations about access to -- |
21 | A. To the best of my recollection -- I'm sure the way Joe and |
22 | I work -- it was probably within a week of writing a letter. |
23 | Q. That would certainly be consistent with your custom and |
24 | practice and the most likely to have occurred? |
25 | A. Yeah. We tend to follow up a phone conversation with a |
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449
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1 | letter. |
2 | Q. Sure. And you also say here, "We do not consider ourselves |
3 | part of the media." Correct? |
4 | A. Right. |
5 | Q. You're not a newsgathering organization. |
6 | A. In the sense that we don't broadcast what we gather that |
7 | day on the evening news, yeah. |
8 | Q. You were involved -- in addition to gathering information |
9 | for documentary purposes -- also in the business of determining |
10 | whether what you had gathered may be incorporated within a movie |
11 | to be sold for commercial purposes? |
12 | A. Part of the process, yeah. |
13 | Q. Also in determining what you will incorporate within your |
14 | movie, you use as appropriate some degree of artistic license? |
15 | A. Yes. |
16 | Q. In the making of the movie "Paradise Lost" I presume that |
17 | what we see on the film when we look at the movie which is in |
18 | evidence includes the portions that were selected for the movie, |
19 | and that there is other footage which as we lay people say, "was |
20 | left on the cutting room floor," that was not chosen for |
21 | inclusion in the movie? |
22 | A. That's correct. |
23 | Q. If you can tell us within a rough range of estimate subject |
24 | to some error, how many hours of footage did you have to use in |
25 | making this film which says on the box, "150 minutes?" |
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1 | A. We had 150 hours of material. |
2 | Q. Then the selection from the 150 hours of material -- the |
3 | 150 minutes of material that became part of the film -- you have |
4 | virtually the whole trial? |
5 | A. Correct. |
6 | Q. As well as numerous minutes or hours of film shot outside |
7 | the courtroom -- interviews, locations, meetings -- that kind of |
8 | thing? |
9 | A. Yes. |
10 | Q. Incorporated within the movie, there is one scene in which |
11 | a number of lawyers are sitting around and they seem to be |
12 | discussing the strategic decision of whether to call a |
13 | particular witness to the stand. It's toward the end of the |
14 | movie. The witness is John Mark Byers. Do you recall that? |
15 | A. Yes, I do. |
16 | Q. That particular footage that you shot was staged footage |
17 | That is, that wasn't the real conversation at the time it |
18 | happened, was it? |
19 | A. It wasn't staged. |
20 | Q. Okay. That was then the first time that the lawyers ever |
21 | discussed this to your knowledge, and you were there fresh on |
22 | the scene making the documentary -- a contemporaneous record of |
23 | that meeting? |
24 | A. Ah, I don't know whether they talked about that before or |
25 | not, but it came up in conversation. It's not unusual when |
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451
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1 | you're filming two or three people to throw out a subject matter |
2 | to discuss, but we certainly don't tell them what to say or put |
3 | words in their mouths. |
4 | Q. Well, my interest is whether you asked them to go and |
5 | pretend to be having a conversation that in fact had already |
6 | occurred sometime in the past and was not filmed? |
7 | A. I don't know whether they discussed the Mark Byers knife |
8 | issue previously to that or not because we weren't there. I |
9 | simply remember us suggesting to them, could you talk about any |
10 | number of subjects. And as a matter of fact, we probably talked |
11 | about nine or ten different things not exclusive to the Mark |
12 | Byers knife situation. |
13 | Q. Did you at any time ask the lawyers to allow you to |
14 | recreate a past event by pretending to be actors; that is, by |
15 | pretending to be making a decision -- having an event -- when |
16 | fact it was about an event or decision that had already |
17 | occurred? |
18 | A. Not to my knowledge. |
19 | Q. Or to your belief? |
20 | A. Or to my belief. |
21 | Q. That is to say not only as to footage that is in the film, |
22 | but as to the additional hundreds of hours of footage that were |
23 | left on the cutting room floor, there were no staged meetings or |
24 | activities? |
25 | A. No. We might ask people a question as any interviewer |
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1 | would, and we film situations. We certainly don't tell people |
2 | what to think, say or how to act. |
3 | Q. In the course of interviewing did you make any effort to be |
4 | sure that when you were interviewing people that might have |
5 | knowledge of the case, there was someone present from law |
6 | enforcement or from the district attorney's office when you were |
7 | interviewing witnesses? |
8 | A. No. |
9 | Q. Likewise, you made no effort to be sure there was some |
10 | investigator or attorney or someone representing the defendant |
11 | when you were interviewing witnesses? |
12 | A. Except for the three defendants. |
13 | Q. Did you acquire evidence in these -- you were sure there |
14 | were lawyers present when you interviewed the defendants? |
15 | A. Of course. |
16 | Q. But you didn't have the defendants present when you were |
17 | interviewing third parties? |
18 | A. No, I don't seem to remember that. |
19 | Q. You couldn't have done it. |
20 | A. No. Absolutely not. |
21 | Q. They were in custody. And in the course of interviewing |
22 | did you from time to time obtain evidence that you had not seen |
23 | in the courtroom or in police reports that had been shown you or |
24 | in material shown you by the lawyers for the prosecution or the |
25 | defense? |
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1 | A. No, I don't think we ever found anything that was evidence |
2 | that would have been of value in the courtroom. |
3 | Q. Nothing that would tend to be incriminating as to Damien |
4 | Echols and the other defendants? |
5 | A. Only if you believe rumor and innuendo which we certainly |
6 | don't. |
7 | Q. And anything that would be exculpatory as to Damien Echols |
8 | or the other defendants? |
9 | A. No. |
10 | Q. In your opinion? |
11 | A. In my opinion, no. |
12 | Q. Do I understand that pursuant to an agreement you have with |
13 | Home Box Office, you consider the hours of footage of film that |
14 | you have not incorporated within the movie to be protected by |
15 | some kind of contractual privilege or legal privilege or some |
16 | sort of privilege? |
17 | A. Every frame we shoot is protected. |
18 | Q. By contract? |
19 | A. Yes. |
20 | Q. In fact you have a lawyer here today. |
21 | A. Yes. |
22 | MR. MALLETT: May the record identify who his |
23 | lawyer is, your Honor? |
24 | THE COURT: Leon Holmes. This is Mr. Mallett. |
25 | Ed Mallett. |
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1 | MR. MALLETT: We've been introduced. I wasn't |
2 | sure it was in the record. |
3 | THE COURT: Leon practices in Little Rock. |
4 | MR. HOLMES: In fact the issue came up and your |
5 | Honor ruled on it on March 11, 1994 -- a ruling that: |
6 | footage was protected by the First Amendment to the |
7 | Constitution. When we raised that issue as we were |
8 | required to do by the contract with one of the |
9 | defendants, the Court ruled that in fact the footage |
10 | was protected, and I brought that order with me in |
11 | case we need it. |
12 | THE COURT: I remember it. |
13 | MR. MALLETT: For the record, that was a |
14 | proceeding for which I was not present. |
15 | THE COURT: Well, no. It didn't have anything to |
16 | do with you that I know of. |
17 | MR. MALLETT: I'll be pleased to read a copy of |
18 | that |
19 | BY MR. MALLETT: |
20 | Q. Was there some restriction placed on you with respect to my |
21 | request -- it may have been by Mr. Alvin Schay who was appointed |
22 | by the Court to represent Damien Echols - - some restriction |
23 | whereby you were unable to sell us or provide us a boxed copy of |
24 | this motion picture? |
25 | A. I brought one with me to give to you, which I have already. |
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455
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1 | Q. Do you know of any instructions that were left at your |
2 | office -- or given to your office in New York -- that you shall |
3 | not mail a copy of the film to Mr. A1 Schay? |
4 | A. Not to me. When I left that day, I was given a tape, and |
5 | they said, "Give this to Ed when you see him." |
6 | Q. Was it you or Joe who installed a microphone on Mr Mark |
7 | Byers during our previous hearing? |
8 | A. It was actually our sound person, Mike Carras, who -- at |
9 | our instruction certainly. |
10 | Q. For purposes of hearing better conversations between Mr. |
11 | Byers and other persons going on outside the courtroom? |
12 | A. That's correct. |
13 | Q. I believe you gave Mr. Byers transportation to the |
14 | courtroom that day? |
15 | A. Yes. |
16 | Q. And with the hope -- with the thought that he didn't have |
17 | transportation of his own? |
18 | A. Well, in speaking to him he said he had no way of getting |
19 | here. We said we would be happy to drive him. |
20 | Q. And you rode here with him? |
21 | A. Yes. He drove with us. |
22 | Q. And shot footage while we were here for the hearing? |
23 | A. Yes. |
24 | Q. For purposes of making your next commercial film? |
25 | A. Commercial in the sense that it will be on television. |
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1 | Certainly not in the theaters. |
2 | Q. I don't mean to argue -- and I'm not sure it's extremely |
3 | relevant -- but how do you know it will not be in the theaters |
4 | if Home Box Office -- |
5 | A. Because they're not in the business of distributing films |
6 | in the theaters. They just don't do that. If it was to be |
7 | released theatrically, it would be a decision that Joe and I |
8 | would make, and we certainly have no intention of doing that |
9 | again. |
10 | Q. So your contract with Home Box Office, which is a |
11 | subsidiary of Time Warner, does not authorize them to make |
12 | whatever use they want to of the film? |
13 | A. I suppose if they wanted to they could, but it's not |
14 | something that is sound business practice for them. |
15 | Q. It's not presently in your mind that that would happen? |
16 | A. Yeah, exactly. I have no plans -- |
17 | Q. I presume they have the same kind of control over this that |
18 | you have over the information you got when you taped Damien |
19 | Echols, right? You probably signed one of those releases |
20 | A. Yes. |
21 | Q. Who negotiated on behalf of Home Box Office or Creative |
22 | Thinking with the lawyers for Damien Echols about the amount of |
23 | money he would be paid for access to him? |
24 | A. Probably Joe Berlinger. It would not have been me. |
25 | Q. You also had negotiations -- ah, you had these negotiations |
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457
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1 | beginning sometime, I presume, around the time of this September |
2 | 15, 1993 letter? |
3 | A. I think so. I wouldn't say necessarily negotiations I |
4 | would say some initial conversations. |
5 | Q. Was there a time when it's fair to say that these |
6 | conversations became negotiations over how much money he would |
7 | be paid? |
8 | A. Yes, I would say. |
9 | Q. Would that have been as early as, say, the first week in |
10 | November of '93? |
11 | A. It could have been, yeah. It was sometime in the fall |
12 | Q. So talk about money happened over a period of weeks or |
13 | months? |
14 | A. Yes. |
15 | Q. At the same time that you were having these negotiations |
16 | with the lawyers for Damien Echols, you were having |
17 | negotiations, I presume and believe, with lawyers on behalf of |
18 | Mr. Misskelley. |
19 | A. Yes. |
20 | Q. Was that Mr. Misskelley's court-appointed attorney, Dan |
21 | Stidham, or some civil lawyer who did not represent him in the |
22 | criminal case? |
23 | A. We were initially talking with Dan Stidham and then when he |
24 | -- |
25 | Q. I'm only seeking the identify of the lawyer. I'm telling |
|
458
|
1 | you the testimony about this so I can help refresh your memory. |
2 | A. He basically -- |
3 | MR. HOLMES: I'm sorry, your Honor -- |
4 | THE COURT: Wait a minute. |
5 | MR. HOLMES: I again object to the relevance of |
6 | questioning about his conversations with sources other |
7 | than Mr. Echols or his attorneys, and I don't think |
8 | that it is relevant to this proceeding, and I think |
9 | it's intruding into the editorial process in a way |
10 | that infringes on the First Amendment. I think the |
11 | most important thing is it's not relevant to this |
12 | proceeding what conversations he had with lawyers |
13 | other than with those who were representing Mr. |
14 | Echols. |
15 | MR. MALLETT: I can imagine some conversations |
16 | between a newsgathering person -- even though they're |
17 | not part of the media -- and another might within some |
18 | balancing standard touch upon the First Amendment: |
19 | On the other hand, we are truly interested in the |
20 | fact that Home Box Office paid money and promised |
21 | money well in advance of trial and in advance of |
22 | shooting footage to, ah -- |
23 | THE COURT: I'll allow you to ask about that. |
24 | BY MR. MALLETT: |
25 | Q. Well in advance of shooting, were you paying money and |
|
459
|
1 | promising money for the benefit of Damien Echols? |
2 | A. Well in advance of shooting the interviews or -- |
3 | Q. Of the trial. Well in advance of the trial. |
4 | A. Of the trial, yes. |
5 | Q. Ah, Jessie Misskelley? |
6 | A. Yes. |
7 | Q. Ah, Jason Baldwin? |
8 | A. Yes. |
9 | Q. Ah, Mark and Melissa Byers? |
10 | A. Wasn't really a negotiation with the families of the |
11 | victims. |
12 | Q. You paid them money? |
13 | A. Yes. |
14 | Q. You entered into some sort of contract with them. |
15 | A. Yes. |
16 | Q. Ah, also the Moore family -- |
17 | A. Yes. |
18 | Q. And also the Branch family? |
19 | A. Yes. |
20 | Q. You entered into an agreement whereby you would pay them |
21 | money in advance of trial for access to them to utilize them in |
22 | your movie? |
23 | A. It really wasn't designed for that purpose. In regards to |
24 | the families of the victims, it was much more a humanitarian |
25 | gesture than it was any kind of business decision. |
|
460
|
1 | Q. You are characterizing the payment of money for access to |
2 | people as a humanitarian gesture. Your business here was to |
3 | make a motion picture for artistic, commercial and professional |
4 | reasons. |
5 | A. Yes, but -- |
6 | Q. You wouldn't have been here if you hadn't had artistic, |
7 | commercial and professional reasons? |
8 | A. But I have to say that the issue of financial, you know, |
9 | payments to any of those families came way, way into the filming |
10 | process. We were filming for three or four months before the |
11 | issue of money came up with any of the family members. |
12 | Certainly we were filming them throughout June, July, August, |
13 | September before any money, you knew, was even discussed. |
14 | So to say that access to them was only tied to money would |
15 | be incorrect. |
16 | Q. Well, of course, I'm doing what I can to make a record by |
17 | asking questions. |
18 | A. I understand. |
19 | Q. So the subject of money -- I believe you've now told us |
20 | that the subject of money came up after you had done some |
21 | filming? |
22 | A. Yes. |
23 | Q. Did Mark Byers bring up the subject of money? |
24 | MR. HOLMES: Excuse me, your Honor. I object. |
25 | It's irrelevant what conversations he had with Mark |
|
461
|
1 | Byers about money or any other sources that he has. |
2 | This is not a discovery deposition regarding the |
3 | contracts between Creative Thinking and their -- |
4 | THE COURT: I'm having a little bit of trouble |
5 | with it, too, Mr. Mallett. What does it have to do |
6 | with the performance of the attorneys which is the key |
7 | and really the sole issue that you're raising? All |
8 | these things are sideline issues. I don't see how |
9 | it's relevant to the performance of the attorneys |
10 | involved in the case, and that's what ostensibly |
11 | you're asking the questions for. |
12 | MR. MALLETT: Well, of course, in laying the |
13 | foundation, lawyers are often reluctant to state to |
14 | the witness where they intend to go -- |
15 | THE COURT: Well, I understand that. I'm trying |
16 | to give you plenty of leeway to develop whatever issue: |
17 | you're attempting to, but on the other hand, you need |
18 | to kind of narrow it down. |
19 | MR. DAVIS: Your Honor, can we find out what the |
20 | foundation is being laid for -- at least some |
21 | anticipation -- because in the past few days of this |
22 | hearing every -- that is the excuse given for getting |
23 | outside the realm of this proceeding is, I'm laying a |
24 | foundation. And oftentimes 30 minutes later we still |
25 | don't know what the foundation is or why it's relevant |
|
462
|
1 | to the hearing. I don't think it's too much to ask to |
2 | inquire of that. |
3 | MR. HOLMES: I'm not trying to obstruct Mr. |
4 | Mallett in doing what he needs to do here, but I was |
5 | sent here to protect from an inquiry into business |
6 | that really doesn't relate, and that's what I'm trying |
7 | to do. |
8 | I don't know where he's going either. It seems |
9 | to me that we're just taking a discovery deposition |
10 | about matters that don't relate to this proceeding, |
11 | and that's the nature and purpose of my objection. |
12 | THE COURT: I'm sustaining your objection both |
13 | of you -- at this point. I will allow you some |
14 | latitude so if you want to take another tack, go |
15 | ahead. |
16 | MR. MALLETT: If I may be heard briefly. |
17 | THE COURT: Yes, sir. |
18 | MR. MALLETT: It is already in the record that at |
19 | the time the jury was being selected, the people on |
20 | the jury were -- many of them, many on the venire, the |
21 | panel from which the jury was selected -- were well |
22 | familiar with abundant publicity about the case. |
23 | I think that much of the publicity they saw was |
24 | in the form of footage shot of interviews of people |
25 | who had received money in trade for being open for |
|
463
|
1 | interviews. |
2 | I think it's fair for Damien Echols for the |
3 | record to reflect how much money was paid to Mark |
4 | Byers for agreeing to become a participant in this |
5 | commercial, motion picture and participating in it by |
6 | giving interviews in and around the community prior to |
7 | the case being tried in Jonesboro. |
8 | And I think that that fact -- that contribution |
9 | to the atmosphere in the community at the time of |
10 | trial is very, very relevant, particularly when we go |
11 | and look at the behavior of the lawyers who never |
12 | asked the prospective jurors what it was that they |
13 | heard, what it was that they said. |
14 | We don't have a community in which there is some |
15 | passive interest in what is reported in the newspaper |
16 | affecting the jury panel. We have a community in |
17 | which people have asked for and received money in |
18 | trade for giving interviews which in turn become well |
19 | portrayed and who know and believe they're going to be |
20 | characters in a movie that's going to be out very soon |
21 | for which they've been paid. |
22 | THE COURT: Mr. Mallett, I don't believe anything |
23 | that Creative Thinking or Home Box Office did was |
24 | publicized or viewed until well after the trial and, I |
25 | think, even after the appeal. |
|
464
|
1 | MR. MALLETT: Judge, respectfully, I'm not saying |
2 | that you're testifying, but I'm saying that as I see |
3 | the movie and the parts that I observed -- |
4 | THE COURT: If you can establish that anything he |
5 | produced went out into the general public which a |
6 | potential juror could have seen, then I'm going to |
7 | allow you to develop that. But you're first gonna |
8 | have to establish that his work product was available |
9 | to a potential juror if that is the premise you're |
10 | going by, and you may proceed on those bases |
11 | MR. MALLETT: I think I can win it or lose it |
12 | with a question. |
13 | THE COURT: Go ahead. |
14 | BY MR. HALLETT: |
15 | Q. Can you assure us for an absolute fact that each and every |
16 | time a Creative Thinking camera was trained on a person that you |
17 | were interviewing from the Moore family, the Byers family or the |
18 | Branch family or members of the defendants' families -- that |
19 | each and every time there were no cameras from any of the |
20 | television media, no microphones from any of the television or |
21 | radio broadcast media and no journalists from the print media -- |
22 | that you never shot film in the presence of any ether person of |
23 | the media and that all of your film was shot totally in private, |
24 | separate and apart --- |
25 | A. Are we differentiating the public forums that were outside |
|
465
|
1 | of courtrooms where there were five or six local media cameras |
2 | in addition to ours or -- |
3 | Q. I think that's exactly what happened, and that's what I'm |
4 | concerned about. You've got a person -- a Joe Smith. I'm not |
5 | trying to make this individualized. Joe Smith, who has been |
6 | promised money, maybe received money, for fully cooperating with |
7 | your interview and knows he's gonna be in a movie. Joe Smith |
8 | steps outside the courthouse, and you're there with your camera |
9 | and your microphone, and so are all the other media from Little |
10 | Rock, Jonesboro and West Memphis and every other community in |
11 | the circuit. And you're shooting and they're shooting, and the |
12 | person that you're shooting is getting money from you and is |
13 | obliged by contract to fully and a hundred percent cooperate |
14 | with you at all times in connection with helping with the film |
15 | -- |
16 | A. They're not obliged by contract to participate in any |
17 | filming at any given time. We did not buy their interviews. |
18 | They could not talk to us if they wanted to, or they could talk |
19 | to us if they wanted to. Any and all interviews that we did |
20 | with the families were always done in private, they're shot on |
21 | film, they have to be processed in New York, the material was |
22 | not available and not seen by anybody for two years. |
23 | I don't believe that going outside the courtroom we were |
24 | any more responsible for their communication with the press than |
25 | -- than -- than the local press themselves. |
|
466
|
1 | Q. You're telling us what your subjective belief is to the |
2 | state of mind of another person, right? |
3 | A. Yes. |
4 | Q. The state of mind of another person who has been promised |
5 | money from Home Box Office and from you and who is under |
6 | contract with you, right? |
7 | A. The contract -- |
8 | MR. DAVIS: Your Honor, excuse me. A minute ago |
9 | we were talking hypothetical -- and I'm not going to |
10 | talk about who we're dealing with -- and it was some |
11 | Smith hypothetical -- and now we're talking a specific |
12 | question about people that were promised money and |
13 | that were interviewed by Home Box Office. |
14 | And I think we are now treading into the exact |
15 | area that the Court ruled was improper a minute ago, |
16 | and there's been no change in the situation in terms |
17 | of any relevant information that has come forth to |
18 | make this area any more relevant than it was five |
19 | minutes ago. |
20 | THE COURT: I'm going to sustain your objection |
21 | As I understood the whole premise of your argument, it |
22 | was that Creative Thinking created an atmosphere by |
23 | promising money to potential witnesses involved in the |
24 | case that caused a media frenzy from which the jury |
25 | could have been influenced. |
|
467
|
1 | Now, I understood him to testify that it was well |
2 | into the trial before money was even discussed. So |
3 | certainly the jury had already been selected. If you |
4 | want to clear that up for me, I'll listen. |
5 | BY MR. MALLETT: |
6 | Q. When did you start discussing money? |
7 | A. With the families or everybody? |
8 | Q. The families. |
9 | A. Sometime in the fall -- October, November, which would have |
10 | been before the trial. |
11 | MR. MALLETT: So the Court was misled I'm sure by |
12 | my questions in thinking this happened during the |
13 | trial. The money was negotiated for in the fall which |
14 | would be well in advance of the trial. |
15 | May I continue, your Honor? |
16 | THE COURT: Yes. |
17 | MR. DAVIS: Your Honor, I still object as to any |
18 | relevancy in regard to what this has to do with the |
19 | potential effect upon jurors since it's been testified |
20 | to that none of this information in any of the |
21 | interviews that were conducted by the entity that Mr. |
22 | Sinofsky is associated with were aired or provided or |
23 | could have even been accessible to anybody prior to |
24 | trial. |
25 | MR. MALLETT: We've established he was |
|
468
|
1 | interviewing them in the presence of other media. ! |
2 | think that's uncontested. |
3 | BY MR. MALLETT: |
4 | Q. The interviews happened outside the courthouse and other |
5 | places. |
6 | A. No. We actually -- I want to correct it. We didn't |
7 | interview them. We certainly filmed -- it was more of our |
8 | interest in filming local media asking questions of them because |
9 | that was part of the story. |
10 | Q. You're turning on the choice of my word, "interview." You |
11 | were shooting footage of the persons with whom you had a |
12 | contract in the presence of the other media. |
13 | A. I believe at the time -- I'm not exactly sure when these |
14 | contracts were actually signed. I can look here to see when, |
15 | you know -- but I believe that nothing was officially signed |
16 | until well into the trials. So some of it could have been |
17 | before a contract was signed or certainly afterwards. |
18 | Again, I have to say that we did not have a contract for |
19 | them to give us exclusivity or for them to have any obligation |
20 | to talk to us. |
21 | MR. MALLETT: May I ask a couple more questions? |
22 | I know Mr. Davis is standing. |
23 | MR. DAVIS: I certainly am. |
24 | THE COURT: Does that make you nervous? |
25 | MR. MALLETT: He's so big, your Honor. |
|
469
|
1 | THE COURT: I guess he's waiting on me to rule on |
2 | his objection. |
3 | MR. DAVIS: No, your Honor. I heard the Court |
4 | rule on the objection and sustain it, and now we've |
5 | been asking questions about the objection the Court |
6 | sustained five minutes ago. |
7 | MR. MALLETT: Well -- |
8 | MR. DAVIS: And this is -- and I admire somebody |
9 | who has the capability as an attorney to ask a |
10 | question, have it objected to, be sustained, and |
11 | continue along that line of questioning for five or |
12 | ten minutes. I wish I had that capability because |
13 | it's been going on for three days, and I haven't |
14 | mastered the skill, but I know it when I see it, and |
15 | that's what's going on right now. |
16 | It's either sustained and it is not appropriate, |
17 | or I'm missing the boat, and the objection should be |
18 | overruled. |
19 | MR. MALLETT: What is the objection that is on |
20 | the table? May I ask the Court to -- |
21 | MR. DAVIS: Relevancy. Absolutely no relevancy |
22 | to these proceedings. |
23 | THE COURT: Again, I'm having trouble seeing |
24 | where your line of questioning is relevant so I'm |
25 | going to sustain the objection again, but you can take |
|
470
|
1 | another tack if you want to. You've been pretty good |
2 | at that |
3 | BY MR. MALLETT: |
4 | Q. In the comments you made just a moment ago I think I did |
5 | hear an answer to this question: Were you shooting footage of |
6 | people that you had contracts with in the presence of the other |
7 | media. I think your answer to that was yes. |
8 | A. I can say yes, but the idea that the reason they're talking |
9 | to us -- |
10 | Q. I'm not asking you to explain the reasoning. I'm just |
11 | asking if we can confirm that that's true. |
12 | A. Yes. You certainly could say that. |
13 | Q. A different subject that I think I heard you say in |
14 | narrative presentation just a few seconds ago was that, we |
15 | didn't actually sign contracts with these people until later. |
16 | Is that what I heard? |
17 | A. We did not have contracts signed with the family members |
18 | until probably in January or February. |
19 | Q. All right. Actually, for example, you didn't sign a |
20 | contract with Damien Echols until after he had already given you |
21 | his first interview. |
22 | A. Right. |
23 | Q. You signed a contract on May the 15th, and incorporated |
24 | within the signed contract there's a reference to an interview |
25 | that's already completed, right? |
|
471
|
1 | A. I think it was March 15th. |
2 | Q. March 15th. Excuse me -- |
3 | THE COURT: I believe you established yesterday |
4 | or the day before or whenever that the contract was |
5 | actually signed one or two days before the end of the |
6 | trial as I remember. |
7 | BY MR. MALLETT: |
8 | Q. So when you say the contracts were not signed until later, |
9 | do you mean for me to believe that Creative Thinking had no |
10 | obligation to the persons with whom it was negotiated until |
11 | there was a signed contract? |
12 | MR. HOLMES: Excuse me, your Honor |
13 | BY MR. MALLETT: |
14 | Q. As to your state of -- I'm not asking for a legal opinion. |
15 | I'm talking about your state of mind. |
16 | MR. HOLMES: I have to object to the relevance. |
17 | THE COURT: Sustained. I don't know what his |
18 | state of mind would have to do with it -- anything |
19 | that is the subject matter of this hearing. |
20 | MR. MALLETT: Well, I'm -- |
21 | THE COURT: You're asking him whether he believed |
22 | he had any moral obligation even though there was not |
23 | a legal contract signed, and I don't see where that's |
24 | relevant to any issue that's before the Court. |
25 | BY MR. MALLETT: |
|
472
|
1 | Q. You don't think that all contracts have to be in writing, |
2 | do you? |
3 | MR. HOLMES: Excuse me. I'm gonna object to the |
4 | relevance. |
5 | THE COURT: Sustained. |
6 | BY MR. MALLETT: |
7 | Q. May I ask whether in your negotiations for money it was |
8 | part -- in general -- a part of the agreement that the persons |
9 | with whom you were negotiating -- families of the victims and |
10 | defendants -- would cooperate with Home Box Office, Creative |
11 | Thinking in giving interviews? Was that a part of all the |
12 | contracts? |
13 | A. I'd actually have to read the actual contract. It gave us |
14 | rights to use what we garnered from them and all media. I'm not |
15 | sure there's an obligation for them to cooperate. |
16 | Q. Let me suggest to you -- it's not a suggestion. I'll just |
17 | tell you. We have the Damien Echols contract in evidence. You |
18 | probably have a copy of it, don't you? |
19 | A. I do. |
20 | Q. As well as a release that he signed. And there is language |
21 | -- if you will refer to the release that he signed on the back I |
22 | think on the -- towards the bottom of the first page, saying |
23 | that you have universal and perpetual use and control of the |
24 | materials that you generated. |
25 | A. Correct. |
|
473
|
1 | Q. Is it fair for the Court to believe that similar language |
2 | appears in the contracts with the Moore, Branch and Byers |
3 | families? |
4 | MR. HOLMES: If you remember, you can answer. I |
5 | don't think it's relevant. But if you remember, I'll |
6 | let you answer it. |
7 | BY THE WITNESS: |
8 | A. I'm sure there's some wording to that effect. |
9 | Q. They're substantially the same. In other words, for the |
10 | Court to have an understanding that the arrangements were |
11 | essentially the same for all six contracts, do you really need |
12 | to even look at the contracts? |
13 | MR. HOLMES: I'm going to object to that. The |
14 | other contracts are irrelevant. They are utterly |
15 | irrelevant. What contractual arrangement he had with |
16 | the Byers or Mr. Branch or any of those people is |
17 | irrelevant to this proceeding, and you have already |
18 | ruled on that. Again, Mr. Mallett is very skillfully |
39 | going back to the point where we have already |
20 | objected, already ruled and opened the door. I have |
21 | been very kind up to this point, but I object. |
22 | THE COURT: I'm going to sustain your objection |
23 | again. We need to move on and plow some new ground, |
24 | as we say in Arkansas. |
25 | MR. MALLETT: May I ask if the Court is ruling |
|
474
|
1 | that the behavior of the persons -- Moore family, |
2 | Branch family, Byers family, the defendants Echols, |
3 | Baldwin and Misskelley -- if required to conform to a |
4 | contract for which they were paid, that all of that is |
5 | irrelevant and can't be developed in this record? |
6 | THE COURT: I'm not saying that you can't develop |
7 | some of that information. That's just kind of a broad |
8 | brush you've painted with, and you're gonna have to |
9 | show me where it would be relevant to any issue that |
10 | is properly before the Court. And Rule 37 is rather |
11 | narrow in scope. |
12 | Primarily, your entire petition suggests that the |
13 | attorneys based upon these relationships didn't: |
14 | perform to their legal standard. In that connection |
15 | I'm going to allow it. I've told you that before |
16 | But short of that, then I'm going to overrule you. |
17 | MR. MALLETT: May I have leave to mark as |
18 | exhibits the contracts with the three families and |
19 | three defendants so that we can have them made part of |
20 | the record? |
21 | MR. HOLMES: I'm not going to give them to him |
22 | unless I'm ordered to. If he already has them from |
23 | independent sources, that's fine. |
24 | MR. MALLETT: I haven't burglarized anybody's |
25 | office lately. |
|
475
|
1 | THE COURT: Have you ever? |
2 | MR. HOLMES: There are other ways of getting the |
3 | information without burglary, your Honor -- |
4 | MR. MALLETT: There's a statute of limitations, |
5 | your Honor -- |
6 | MR. HOLMES: We object to -- |
7 | MR. MALLETT: -- and I was a young man once. |
8 | MR. HOLMES: We object to turning them over. |
9 | They are irrelevant. They are proprietary. I have |
10 | read the amended Rule 37 petition. I think it's well |
11 | done, Mr. Mallett, but there's nothing in here that |
12 | relates to these ether contracts, the behavior of the |
13 | families or the attorneys for the other defendants. |
14 | There's a lengthy paragraph about trial counsel for |
15 | Mr. Echols. And we brought in response to subpoena |
16 | and have given to Mr. Mallett the records that relate |
17 | to Mr. Echols, but we have not given him the other -- |
18 | THE COURT: I'm going to sustain the objection |
19 | again. |
20 | MR. MALLETT: Thank you, your Honor. I have no |
21 | other questions. |
22 | THE COURT: All right. You've made a good |
23 | record. |
24 | CROSS EXAMINATION |
25 | BY MR. DAVIS: |
|
476
|
1 | Q. I've been sittin' down for a day and a half. It's kind of |
2 | hard to figure out what to do when you stand up here -- |
3 | MR. MALLETT: Your Honor, I've been reminded that |
4 | I have neglected an area that is an entirely new area |
5 | and I don't want to be accused of going outside the |
6 | scope of cross. Can I very briefly introduce this |
7 | subject I forgot to question on? |
8 | THE COURT: All right. You can sit back down, |
9 | Mr. Davis. |
10 | MR. DAVIS: Which reminds me, your Honor, the |
11 | first thing you do is get a question out so you don't |
12 | get cut off at the pass. |
13 | BY MR. MALLETT: |
14 | Q. Mr. Sinofsky, the brief area that I forgot to touch upon |
15 | was who the money was for. Was Home Box Office in some |
16 | agreement as you understand it with you that Home Box Office |
17 | would finance the defense of Damien Echols in this murder trial |
18 | A. No. |
19 | Q. The contract has the signatures of the lawyers on it with a |
20 | statement the money is to be put into Mr. Davidson's trust |
21 | account. You're generally familiar with that, aren't you? |
22 | A. Yes. |
23 | Q. I would presume that is a trust account -- that's not a |
24 | trust account for the benefit of John Fogleman, is it -- |
25 | A. No. |
|
477
|
1 | Q. -- or Brent Davis? |
2 | A. No. |
3 | Q. That money was to be held in trust by Mr. Davidson for the |
4 | benefit of Damien Echols? |
5 | A. For Damien Echols, yes. |
6 | Q. And it was in your mind that in giving Mr. Davidson and Mr |
7 | Price money to be held in trust for Damien Echols, that you were |
8 | financing the criminal defense of Damien Echols charged with |
9 | capital murder. Was that your plan? |
10 | A. No. |
11 | Q. What was your intention as to whose money it would be? |
12 | A. That money belonged to Damien Echols. |
13 | Q. Who would have the right to decide how that money was |
14 | spent? |
15 | A. Damien Echols. |
16 | Q. The role of Mr. Davidson and Mr. Price would be as trustees |
17 | for Damien Echols' money. |
18 | A. Yes. |
19 | MR. MALLETT: Thank you. |
20 | MR. DAVIS: Your Honor, may we take a short |
21 | recess? |
22 | THE COURT: We'll take a ten minute recess. |
23 | (RECESS) |
24 | (RETURN TO OPEN COURT) |
25 | THE COURT: All right, it's your turn |
|
478
|
1 | CROSS EXAMINATION |
2 | BY MR. DAVIS: |
3 | Q. Bruce, when was it y'all first became aware of the murders |
4 | that occurred in Crittenden County and first started to |
5 | formulate the idea you might try to make this into a |
6 | documentary? |
7 | A. I believe it was June 6th of 1993. |
8 | Q. Can you explain to us in terms of -- after you came to |
9 | Crittenden County or came to the locale where the murders |
10 | occurred -- what y'all did in terms of -- you and your partner, |
11 | Joe --- what y'all did in terms of making contacts with family |
12 | members and things of that nature in order to secure access to |
13 | certain people and be able to do the movie? |
14 | A. It's a very, very slow process. You find out who the three |
15 | families of the victims and the three families of the accused |
16 | were and you through friends or direct contact try to |
17 | communicate with them and talk to them about the thoughts about |
18 | making a film. Nobody jumps up and says, I want to be a movie |
19 | star, believe me. That's all part of human communication. |
20 | Q. Were the first contacts that were made -- were they made |
21 | with individuals of the families rather than the attorneys that |
22 | were involved? |
23 | MR. HOLMES: Excuse me, your Honor. I hate to |
24 | interrupt Mr. Davis, but I have the same problem that |
25 | I had with Mr. Mallett. I don't think their |
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479
|
1 | communications or contacts with families and all those |
2 | people are relevant to this proceedings I objected on |
3 | direct, and I have to make the same objection on |
4 | cross. |
5 | THE COURT: Sustained. |
6 | MR. DAVIS: Not even for foundation purposes? |
7 | MR. MALLETT: I think it's very relevant, your |
8 | Honor, and I think he ought to be able to pursue it |
9 | THE COURT: How far -- how big a foundation do |
10 | you want to build? |
11 | BY MR. DAVIS: |
12 | Q. Let me just ask -- in regard to Mr. Echols, did you have |
13 | contacts with members of his family? |
14 | A. No. |
15 | Q. At any point did you? |
16 | A. Only after we had contact with his counsel. |
17 | Q. Did you get contact with his family through counsel for |
18 | Damien Echols? |
19 | A. We actually -- I'm trying to remember as best I can. It |
20 | seems to me we met them the second day of his trial for the |
21 | first time -- we were introduced to them. |
22 | Q. Did you do any filming with them? |
23 | A. Yes. |
24 | Q. Did they cooperate with you? |
25 | A. Yes. |
|
480
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1 | Q. Did they seem to be -- did you explain to them what the |
2 | making of this documentary was all about? |
3 | A. Yes. |
4 | Q. Did they indicate to you that they felt this was in the |
5 | best interest not only for themselves but also as relatives of |
6 | Damien Echols? |
7 | MR. MALLETT: Object to hearsay, your Honor. |
8 | THE COURT: Overruled. |
9 | BY THE WITNESS: |
10 | A. I think they felt any attention that could be paid to the |
11 | case, certainly on a national level, probably would have some |
12 | positive effect in their mind. |
13 | Q. Would it be fair to say that your impression of their view |
14 | was that this film could be beneficial ultimately to their |
15 | relative, Damien Echols? |
16 | A. I think that's what they felt, yes. |
17 | Q. You had some personal contact with Damien Echols in the |
18 | weeks leading up to the trial, correct? |
19 | A. We -- his trial --- where we met him for the first time |
20 | the eve of the Misskelley trial -- when we did an interview with |
21 | him. |
22 | Q. Was he -- how did that take place? Did you introduce |
23 | yourself? Did you explain to him what you were there for, that |
24 | sort of thing? |
25 | A. He was brought in, and we told him that we were making a |
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481
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1 | film and what the film was about, and that's probably -- it |
2 | wasn't much more than that |
3 | Q. Where did this take place? |
4 | A. Where he was being held. I'm not sure where the jail was, |
5 | but it was where he was being held before his trial. |
6 | Q. Who was present for that particular interview? |
7 | A. Val Price, Scott Davidson, Ron Lax. |
8 | Q. So the investigator that was also working with the defense |
9 | team for Mr. Echols was present? |
10 | A. He was there, yes. |
11 | Q. Was there -- were you aware -- were you making any effort |
12 | to be careful as to the topics of the conversations that you had |
13 | -- the subject matter of the conversations that you had with Mr. |
14 | Echols? |
15 | A. Yes. |
16 | Q. In what regard? What were you trying to steer clear of, or |
17 | what were you trying to avoid? |
18 | A. We didn't ask any questions that were directly related to |
19 | the events of May 5th. |
20 | Q. The facts surrounding what occurred on that date? |
21 | A. Correct. |
22 | Q. Why was that? |
23 | A. Because defense counsel insisted that we not go in that |
24 | direction. |
25 | Q. That would have been Mr. Price or Mr. Davidson or both? |
|
482
|
1 | A. Yes. |
2 | Q. At that stage when that interview was made, there wasn't |
3 | any written contract, right? |
4 | A. There probably had been some sort of initial contract |
5 | agreement, you know, a prototype of it was probably sent. I'm |
6 | not sure whether that was done or not, but I don't believe that |
7 | March 4th was the first time that they had seen any kind of |
8 | contract. |
9 | Q. At that stage the attorneys are giving you input, there's |
10 | areas that you can't cover in this interview, and you honored |
11 | their request, correct? |
12 | A. Correct. |
13 | Q. Was there anything in terms of content about that first |
14 | interview that was conducted that from that content you were |
15 | concerned that it would jeopardize Mr. Echols' defense? |
16 | A. No. |
17 | Q. Would there be anything that shocked you, surprised you or |
18 | was a new revelation to you about that first interview that |
19 | would have had any relevance to Mr. Echols' defense? |
20 | A. No. |
21 | MR. MALLETT: Excuse me, your Honor. I would |
22 | object to him asking words that sound like he's |
23 | calling for legal opinions from the witness like, |
24 | relevance to his defense. I don't think he's |
25 | qualified -- is able to express opinions in legal |
|
483
|
1 | terms. I object to it. |
2 | THE COURT: Well, I think I'm going to sustain |
3 | the objection although I did allow you to ask him if |
4 | there was any exculpatory material. If that isn't a |
5 | legal parlance, I don't know what is. |
6 | MR. MALLETT: Well, I was interested whether he |
7 | would be qualified to answer that, your Honor, and the |
8 | state didn't object. He can ask him if there was any |
9 | exculpatory material. I wouldn't object to that |
10 | because that's already in. |
11 | THE COURT: I'm going to sustain the objection, |
12 | but go ahead. |
13 | BY MR. DAVIS: |
14 | Q. Was there anything that was incriminatory about the |
15 | material that was discussed in that interview? |
16 | A. No. |
17 | Q. When was the first time that any portion of that interview |
18 | aired for public consumption or was available to anybody other |
19 | than yourselves and the people who were working directly on the |
20 | film? |
21 | A. I believe that would have been at the Sundance Film |
22 | Festival which would have been in January of 1996. |
23 | Q. And so from the time of that interview until January, 1996, |
24 | no one other than the people involved in your production would |
25 | have had access to that film? |
|
484
|
1 | A. That's correct. |
2 | Q. The only people that were present during that interview |
3 | were Mr. Lax, Mr. Price, Scott Davidson and you and Joe - |
4 | A. And the cameraman, yes. |
5 | Q. -- and the cameraman. Was there an additional interview |
6 | that was done of Mr. Echols? |
7 | A. I wouldn't say there was a formal interview. I believe we |
8 | did some filming with him during the deliberation. |
9 | Q. While the jury was out deliberating his guilt or innocence? |
10 | A. Yes. |
11 | Q. Was that done here at the courthouse? |
12 | A. It was done in that room right over there (Indicating). |
13 | Q. Was Mr. Echols cooperative in that? |
14 | A. Seemed to be, yes. |
15 | Q. Did he seem -- could you tell if this was a burden to him |
16 | or a distraction to him, or did he seem to enjoy the cameras and |
17 | the interview scenario or the filming? |
18 | A. It's hard for me to say whether he enjoyed it or not, but |
19 | he didn't object to it. |
20 | Q. Did he ever ask you not to? |
21 | A. No. |
22 | Q. Did he ever indicate that he didn't want to answer certain |
23 | questions or provide certain information? |
24 | A. No. He was very forthcoming. |
25 | Q. Anything that was incriminatory about what you filmed on |
|
485
|
1 | that particular day regarding Mr. Echols? |
2 | A. No. |
3 | Q. Any questions that were directed of him, or was it just |
4 | filming him as he talked to others? |
5 | A. I believe he was having lunch with Val and Scott and Ron, |
6 | and I think there was a moment where he was with Jason as well. |
7 | It's in the film but it was -- or with his child I think |
8 | there's some time where he's with his son, Seth, for the first |
9 | time. |
10 | Q. Any questions that were asked of him that counsel objected |
11 | to or Mr. Echols objected to? |
12 | A. No. |
13 | Q. Any effort to make him answer questions that he didn't want |
14 | to answer? |
15 | A. No. |
16 | Q. Any of that footage -- when was the first time it would |
17 | have been provided for public access or public consumption? |
18 | A. January of 1996. |
19 | Q. Mr. Mallett asked you about your - about the reasons you |
20 | made the movie. And I want to ask you in regard to making the |
21 | movie, were you willing to sacrifice or jeopardize the |
22 | defendant's right to a fair trial in order to make the film? |
23 | A. Absolutely not. |
24 | Q. Did you place a high priority on in fact not doing that in |
25 | order to produce this movie? |
|
486
|
1 | A. That's true. |
2 | Q. Was there anything in your contacts or dealings with Mr. |
3 | Price or Mr. Davidson that caused you concern that their actions |
4 | involving you might jeopardize their defendant's right to a fair |
5 | trial? |
6 | A. No. |
7 | Q. Were there instances where they voiced concerns and wanted |
8 | assurances that certain things would not be done in order to |
9 | protect their client? |
10 | A. Yes. |
11 | Q. Such as? |
12 | A. Asking for a list of questions that we would be asking |
13 | Damien when we did the interview so that they could look at them |
14 | first, and they gave us guidelines in addition to that to what |
15 | we shouldn't talk about. That's pretty much, I think, their |
16 | concerns in relation to Damien. |
17 | Q. Did you attempt on your own without their urging to steer |
18 | clear of issues that might be controversial or that might |
19 | jeopardize Mr. Echols' trial? |
20 | A. That's a tough question in the sense that, you know, we're |
21 | filming people, and there's so much rumor and innuendo swirling |
22 | around. I mean, in the editorial of our film we had to be very |
23 | careful we didn't use stuff that was just -- we found to be |
24 | ridiculous. But there were other people that were talked about |
25 | all over the state as being potential to have been part of the |
|
487
|
1 | crime, you know. |
2 | So, yeah, we steered clear of it in the final presentation |
3 | of the material, but certainly when we were filming, we were |
4 | told all kind of strange things. |
5 | Q. In regard to -- I should have narrowed the question down |
6 | in regard to your filming and contact directly with Mr. Echols |
7 | or his defense counsel, did you keep in mind a concern for not |
8 | doing anything that would affect his right to a fair trial? |
9 | A. Yes. We were very cognizant of that. |
10 | Q. Who in the Echols family did you have interviews with? |
11 | A. His mother, his father, his sister, and I think that's is |
12 | in terms of family. There was his girlfriend Dominee as well. |
13 | Q. Would it be fair to say that the content of those |
14 | interviews was basically their version of why Damien was |
15 | innocent? |
16 | A. Correct. |
17 | Q. And through your movie that was produced, that message -- |
18 | what portion of it was in the film -- was aired all ever this |
19 | country and in parts around the world, correct? |
20 | A. Correct. |
21 | Q. What has been the reaction that you've seen in terms of |
22 | people who viewed the movie? Has there been a reaction either |
23 | favorable or unfavorable toward Damien by the majority of people |
24 | who have seen your documentary? |
25 | MR. HOLHES: Your Honor, I'm gonna object to the |
|
488
|
1 | relevance again. It's asking him to speculate about |
2 | what other people have thought about the movie and |
3 | what opinions they formed of Damien. I object to |
4 | that. |
5 | THE COURT: I'm gonna sustain the objection. |
6 | BY MR. DAVIS: |
7 | Q. As a result of this film -- number one, let me ask you, |
8 | where was the film shown and when? |
9 | A. It was shown on June 6th of 1996 on HBO, which would be all |
10 | over this country and Canada, and then released theatrically in |
11 | the fall of '96 to other parts of the country including |
12 | Jonesboro. It has shown -- I'm sure although we didn't control |
13 | rights to that -- it's been shown all over the world. |
14 | Q. Has there been anything that has come to your attention |
15 | that has been damaging or detrimental to Mr. Echols as the |
16 | result of the airing of this film? |
17 | MR. HOLMES: Objection, your Honor. That's just |
18 | the flip side of the previous question. Same |
19 | objection. |
20 | MR. DAVIS: Your Honor, it's the state's position |
21 | that this man is in a unique position to be able to |
22 | observe through his own observation whether there have |
23 | been things that have been harmful that resulted from |
24 | the airing of this picture -- since he's at the very |
25 | center and focal point of its production -- and |
|
489
|
1 | whether there's been benefits gained by it or positive |
2 | results. |
3 | MR. HOLMES: The Rule 37 petition and the reason |
4 | this man is here has to do with the claim of |
5 | ineffective assistance of counsel at trial. The film |
6 | was not released until nearly two years after this |
7 | trial, and so whatever impact the film had could not |
8 | possibly be related to this Rule 37 petition, and I |
9 | think it calls for a certain degree of speculation on |
10 | the witness' part. I'm going to object. |
11 | MR. DAVIS: Your Honor, if the Court fully agrees |
12 | with the statement - - and I think what he says is |
13 | accurate -- if the Court fully agrees and has |
14 | concluded a finding that whatever is involved with |
15 | this HBO film and contract has nothing to do with this |
16 | Rule 37 hearing, then I'll be glad to leave this and |
17 | sit down and waive further -- |
18 | MR. HOLMES: I'm not trying to weigh in on the |
19 | merits of the petition. I understand Mr. Mallett's |
20 | theory, and it is not that the release of the film two |
21 | years later -- as I understand his theory - somehow |
22 | retroactively impacted the trial. |
23 | And since I don't think that's the theory of the |
24 | Rule 37 petition, I don't think it's relevant what |
25 | the effect of the film was two years later. |
|
490
|
1 | THE COURT: I'm going to sustain the objection to |
2 | what effect it might have had or what public opinion |
3 | might have been if Mr. Sinofsky is even in a position |
4 | to tell us. It certainly didn't relate to the conduct |
5 | of the lawyers at the time of the trial -- at least |
6 | what happened two years later. |
7 | MR. DAVIS: Your Honor, I thought a number of the |
8 | questions from defense counsel -- in fact, a long part |
9 | of their questioning yesterday -- involved potential |
10 | damage that could have occurred as a result of this |
11 | This might have happened. You didn't do this it |
12 | could have caused this to occur to your client. It |
13 | could have caused this. |
14 | What I'm asking is based on this person's |
15 | perception, what he actually saw the results were. |
16 | THE COURT: I'm going to allow you just the one |
17 | shot question to ask him if he has an opinion as to |
18 | whether or not the movie provided any benefit to |
19 | Damien Echols if that's what you want to ask. |
20 | BY MR. DAVIS: |
21 | Q. From your observation and from your position to observe, |
22 | did the movie provide any benefits to Damien Echols? |
23 | A. Yes. |
24 | Q. Can you explain what those were? |
25 | A. I think it galvanized a small group of people who believed |
|
491
|
1 | that he was innocent and some support groups and drew attention |
2 | to this case, and people could then make up their own judgments |
3 | on a mere national basis than just Arkansas. And I think there |
4 | have been some people that have come out to support him based on |
5 | seeing the film. |
6 | Q. Anything that you observed that was detrimental? |
7 | A. No. |
8 | Q. You indicated that you were concerned that your actions not |
9 | inhibit or affect Damien Echols' right to a fair trial? |
10 | A. Correct. |
11 | Q. Were you also concerned or wanted to ensure that your |
12 | actions did not interfere with his counsel's ability to |
13 | represent him at trial? |
14 | A. Correct. |
15 | Q. Was there ever anything that was said or done between you |
16 | and Mr. Price or Mr. Davidson that caused you concern that what |
17 | was going on with this contract or with this agreement with |
18 | Damien Echols was affecting their ability to represent him? |
19 | A. No, I never had any concerns with that. |
20 | Q. Anything that you observed that you felt caused a conflict |
21 | between their representing Mr. Echols' interest and the interest |
22 | you had as far as producing this documentary? |
23 | A. No. |
24 | Q. Mr. Mallett talked yesterday in terms of Mr. Price was |
25 | promoting the movie, that some of the documentary was staged and |
|
492
|
1 | that Mr. Price was an actor in a film. |
2 | Is that an accurate portrayal of his involvement? |
3 | A. No. It's completely inaccurate. |
4 | Q. Explain why. |
5 | A. Because we never ask anybody to say anything. We have no |
6 | scripts. We might say, could you talk about this particular |
7 | subject -- and it could be any of a dozen subjects -- but we |
8 | certainly don't put words in people's mouths. They're free to |
9 | say what they want and if they don't want to speak about a |
10 | particular subject, they can certainly say that's off the table. |
11 | We can't talk about that. |
12 | Q. Were you aware of a need on the part -- when you described |
13 | it as a humanitarian act to provide some compensation to people |
14 | who were granting interviews in this movie in -- Mr. Echols' |
15 | case was it your understanding that the interviews were granted |
16 | only because the money was made available? |
17 | A. Yeah. I don't think we would have gotten the interviews |
18 | otherwise. |
19 | Q. He signed the contract, correct? |
20 | A. Yes, he did. |
21 | Q. To your knowledge, was Mr. Price or Mr. Davidson paid a fee |
22 | to assist y'all in producing this documentary? |
23 | A. No. |
24 | Q. Did you enter into a contract to pay them a fee to get them |
25 | to assist you in producing this documentary? |
|
493
|
1 | A. No. |
2 | MR. DAVIS: Pass the witness, your Honor. |
3 | REDIRECT EXAMINATION |
4 | BY MR. HALLETT: |
5 | Q. Very briefly, Mr. Sinofsky, do you recall meeting with Mr. |
6 | Echols' mother and father on the second day of trial? I believe |
7 | you testified to that. |
8 | A. Yes. |
9 | Q. Did you discuss the compensation arrangement with the |
10 | family when you had a meeting with them? |
11 | A. I don't honestly recall. |
12 | Q. It's possible you did, possible you didn't? |
13 | A. Yeah. It could have happened. I don't honestly remember. |
14 | Q. You were aware at the time that you were making the trial |
15 | [sic] that oftentimes a criminal trial is tried more than once |
16 | because there may be a retrial following a hung jury, there may |
17 | be a retrial following a mistrial, there may be retrial |
18 | following a reversal on appeal, there may be a retrial following |
19 | some court order that there be a retrial. |
20 | You were aware at all times that you were filming that some |
21 | cases get tried more than once, the second trial being some time |
22 | after the first? |
23 | A. Yes. |
24 | Q. And when that occurs, the calendering of it is completely |
25 | unpredictable in the sense that you never knew when the case |
|
494
|
1 | might wind up getting tried twice? |
2 | A. Right |
3 | Q. You know there's no set rule as to how soon a second trial |
4 | commences following the first trial? |
5 | A. Right. |
6 | Q. The arrangement you had pursuant to your contract with Mr. |
7 | Echols was that you could show the film as professionally |
8 | appropriate at things like film festivals as early as August lst |
9 | of 1994? |
10 | A. Yes. |
11 | Q. I believe you said it was shown in Telluride in 1996. |
12 | But it could have been shown as early as August of '94 |
13 | A. Sundance. Right. |
14 | Q. -- if HBO had chosen to do that. |
15 | A. Right. |
16 | Q. That would be a decision HBO would have the power to make? |
17 | A. Yes. |
18 | Q. Do you have in your file the questions you prepared for Mr. |
19 | Echols and submitted to him in writing before the interviews? |
20 | A. No, I don't. |
21 | Q. Did you submit questions in writing, or was there just sort |
22 | of casual conversation? |
23 | A. No. We submitted questions in writing. |
24 | Q. But we don't have those in the courtroom today? |
25 | A. No. |
|
495
|
1 | Q. And with respect to humanitarian acts, is it fair to say |
2 | that the amount of money that HBO has advanced to the Moore |
3 | family, Byers family, Echols family, the Branch family, Baldwin |
4 | family, Misskelley family -- all of that is in excess of 40 |
5 | thousand dollars? |
6 | MR. HOLMES: Objection, your Honor. It's |
7 | irrelevant, confidential, proprietary. We've been |
8 | over this. He wants to know how much money or the |
9 | range of how much money was paid to these families, |
10 | and it doesn't have anything to do with this Rule 37 |
11 | petition and whether Echols' counsel was ineffective. |
12 | MR. MALLETT: Of course, Echols' counsel, if the |
13 | Court please, didn't ask these people about money when |
14 | they testified at trial. They were witnesses at the |
15 | trial. And Echols' counsel was then aware that at |
16 | least Echols had been promised money for allowing |
17 | interviews. So I think it's fair to knew how much |
18 | money these witnesses had contracted to receive before |
19 | they testified at trial. |
20 | MR. DAVIS: How is the amount relevant? |
21 | MR. MALLETT: I think that when a witness is |
22 | receiving compensation, agreeing to allow their |
23 | statement to be filmed, that that is consideration |
24 | that may bear on the weight and credibility of their |
25 | testimony. And if they're not cross examined by a |
|
496
|
1 | lawyer that knows about it, then he's failing to raise |
2 | a very traditional, common and available means of |
3 | introducing evidence that helps the jury consider the |
4 | weight to be given the testimony -- payment for |
5 | testimony. |
6 | MR. DAVIS: I again ask your Honor how is the |
7 | amount of that relevant? |
8 | MR. HOLMES: Let me interject. There's no |
9 | payment for testimony. There's been no foundation |
10 | that they were paid for testifying at trial and, your |
11 | Honor, that doesn't make -- they were the mothers of |
12 | the victims. They were not paid to testify, and the |
13 | suggestion that they were paid to testify is |
14 | completely unfounded. |
15 | MR. MALLETT: I'll withdraw that. It was an |
16 | inartful choice of language. |
17 | THE COURT: All right. |
18 | BY MR. MALLETT: |
19 | Q. Is it true that they were offered money, discussed money or |
20 | paid money to allow interviews relating to subjects about which |
21 | they would testify? |
22 | THE COURT: I'm going to allow that question. Go |
23 | ahead. |
24 | BY THE WITNESS: |
25 | A. Again I have to say that the money that was given to the |
|
497
|
1 | families of the victims had nothing to do with granting us |
2 | interviews. It -- it -- it -- it comes across like checkbook |
3 | journalism which is not the case. |
4 | Q. The best evidence whether there was a relationship between |
5 | the payment of money and the granting of the interviews would be |
6 | the contracts between Creative Thinking and the families, true? |
7 | A. True. |
8 | MR. MALLETT: I ask for production of the |
9 | contracts between Creative Thinking and the families |
10 | MR. HOLMES: Objection to relevance. We've been |
11 | over this -- |
12 | THE COURT: I'm gonna stick with my original |
13 | ruling. I don't think it's relevant. The issue |
14 | perhaps of whether or not they were cross examined as |
15 | to any compensation they might have received for |
16 | interviews to media or anyone else might be an |
17 | appropriate subject, but the amount or the contract |
18 | itself is not really relevant. |
19 | MR. MALLETT: The Court then has in mind my |
20 | concern that they were offered money, given money, |
21 | promised money and paid money. |
22 | THE COURT: I think you've made a point that -- |
23 | MR. MALLETT: -- for interviews about subjects |
24 | about which they testified. |
25 | THE COURT: I think you scored a point there that |
|
498
|
1 | if they were not cross examined on it, that it might |
2 | have some relevance to the issue before the Court. |
3 | MR. MALLETT: And further, to touch on the |
4 | testimony we have just heard, that when his contractor |
5 | -- Home Box Office, not his company -- agreed to pay |
6 | money in a term not yet disclosed -- where the money |
7 | was agreed to be paid -- it's been proffered and been |
8 | sworn to that the testimony was a purely humanitarian |
9 | gesture and had nothing to do with giving the |
10 | interviews -- |
11 | MR. HOLMES: Your Honor, I'm gonna -- |
12 | MR. MALLETT: -- to test the truth of that |
13 | statement, I would like to look at the contracts. |
14 | MR. HOLMES: I'm going to object to the |
15 | characterization of the testimony which is inaccurate. |
16 | I'm going to continue to object to the release of the |
17 | contracts which don't have anything to do with whether |
18 | this counsel was ineffective. |
19 | THE COURT: I have already sustained that |
20 | objection, Leon. The - |
21 | MR. HOLMES: I get tired of making the same |
22 | objection, but we keep hearing the same questions |
23 | after it's been sustained. |
24 | MR. MALLETT: I'm sorry he's getting tired. I'm |
25 | sure he's getting paid by the hour, and I don't mean |
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499
|
1 | to wear him out. |
2 | MR. DAVIS: I'm not. |
3 | THE COURT: I'm not either. |
4 | MR. MALLETT: May I ask your Honor to examine |
5 | these contracts in camera to make a determination as |
6 | to whether there is any language in the contracts |
7 | relating to the giving of interviews? I know they're |
8 | in the courtroom. |
9 | MR. HOLMES: Your Honor, I don't object to the |
10 | Court reviewing them in camera for that purpose, |
11 | THE COURT: All right. |
12 | MR. HOLMES: If the Court wants to take a recess, |
13 | I'll be glad to furnish them to the Court in camera, |
14 | let the Court review them and make that determination. |
15 | I think that's a fair request and an appropriate way |
16 | to handle that. |
17 | MR. MALLETT: We would like to ask you to do |
18 | that. I have no further questions. |
19 | THE COURT: All right. Anything else? |
20 | MR. DAVIS: No, sir, your Honor. |
21 | (WITNESS EXCUSED) |
22 | THE COURT: Call your next witness. |
23 | MR. DAVIS: Your Honor, I think Mr. Price was |
24 | back on the stand. |
25 | MR. HOLMES: Your Honor, if I may, we're |
|
500
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1 | finished, and I know he has a plane to catch. I'd |
2 | like to furnish these documents for an in camera |
3 | review and then be on my way. |
4 | THE COURT: Okay. |
5 | MR. MALLETT: Excuse me. For the record, there's |
6 | a possibility always that when the Court looks at the |
7 | best evidence, the Court may reconsider its ruling. I |
8 | hesitate to agree to release the witness. |
9 | MR. HOLMES: That's fine. Let's just do it now |
10 | before we start on Mr. Price. |
11 | THE COURT: All right. We'll take a ten minute |
12 | recess. |
13 | (RECESS) |
14 | (RETURN TO OPEN COURT) |
15 | THE COURT: All right, gentlemen, I have had an |
16 | opportunity to review the three contracts that were |
17 | signed by family members. |
18 | The earliest one was signed, I believe on |
19 | February the second. The others were signed -- the |
20 | other two were signed on March the third. The |
21 | language contained in it basically says, I'm a willing |
22 | participant in the documentary and they received the |
23 | consideration -- or as it's called, an honorarium -- |
24 | to give up the rights to have their likeness and voice |
25 | portrayed. There's nothing in it about any interview |
|
501
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1 | or certainly nothing about any testimony. It's just |
2 | simply a waiver of any claim for having their likeness |
3 | and voice exhibited. |
4 | MR. MALLETT: I presume we have a representation |
5 | that this is each and every document that they signed. |
6 | We know that in Mr. Echols' case there were really two |
7 | documents that were signed. There was a contract and |
8 | a general release. I take it the Court has been |
9 | provided each and every document that they signed? |
10 | MR. HOLMES: To my knowledge, it's true. |
11 | THE COURT: I have looked at the three contracts |
12 | and I have also looked at -- which is really not |
13 | relevant to the issue -- the letters where - - |
14 | MR. HOLMES: Those are to the other defense |
15 | counsel |
16 | THE COURT: -- compensation was tendered to the |
17 | attorneys. |
18 | MR. MALLETT: Can I ask that those be sealed and |
19 | made a part of the record, your Honor? |
20 | THE COURT: I don't have any problem with it. |
21 | They can be made a sealed record for -- |
22 | MR. MALLETT: I guess I would ask for the record |
23 | to allow me to review them. I don't see anything |
24 | there that could possibly be harmful to the First |
25 | Amendment of the United States Constitution or any |
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502
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1 | part of the Arkansas Constitution. So in light of the |
2 | Court's summary -- |
3 | THE COURT: I think Mr. Holmes' attitude is that |
4 | it's proprietary and private -- |
5 | MR. HOLMES: And it's not relevant to this |
6 | proceeding. He's not entitled to have them |
7 | subpoenaed. What we're really moving to do is quash |
8 | the subpoena, and I don't want to furnish them to him. |
9 | I don't think they're relevant. The Court has seen |
10 | them and has had an opportunity to review them and |
11 | determine if they're relevant. |
12 | THE COURT: If you can make copies of them for me |
13 | and seal them, I'll make them a part of the sealed |
14 | record for appellate review if the Court wants to look |
15 | at it -- if that becomes necessary. |
16 | Do you have any objection to that? |
17 | MR. HOLMES: Your Honor, I will comply with the |
18 | Court's request. Obviously we have asked to quash the |
19 | subpoena, but we will if the Court will permit me -- |
20 | THE COURT: I'm not allowing him to subpoena |
21 | those contracts that we just made reference to, but I |
22 | would honor his request to have them a part of the |
23 | sealed record for appellate review if that becomes |
24 | necessary. |
25 | MR. HOLMES: That's fine. We'll do that, your |
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503
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1 | Honor I will put them in a sealed envelope and mail |
2 | copies from my office this afternoon back to the |
3 | Court. Is that acceptable? |
4 | THE COURT: That'll be fine. Or you can mail |
5 | them to the court reporter. |
6 | MR. HOLMES: These are the only copies I have |
7 | with me, and I'll take them back and copy them and |
8 | mail them to the Court in an envelope with a cover |
9 | letter explaining that these are the documents that we |
10 | discussed on the record, and you can give the sealed |
11 | envelope to the court reporter. |
12 | THE COURT: That's fine. |
13 | MR. MALLETT: Your Honor, with that, we do not |
14 | object to Mr. Sinofsky leaving if he needs to go back. |
15 | THE COURT: All right. |
16 | VAL PRICE |
17 | having been previously duly sworn to speak the truth, the whole |
18 | truth and nothing but the truth, then testified as follows: |
19 | CROSS EXAMINATION |
20 | BY MR. DAVIS: |
21 | Q. Will you please state your name? |
22 | A. Val Price. |
23 | Q. Mr. Price, for the record, you're the same Val Price that |
24 | testified in these proceedings yesterday? |
25 | A. Yes, sir. |
|
504
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1 | Q. You understand you're still under oath? |
2 | A. Yes, sir. |
3 | Q. Mr. Price, if you would, would you state when it was that |
4 | you graduated from law school? |
5 | A. I graduated from law school in 1981. |
6 | Q. And have you been primarily involved in the criminal |
7 | defense practice since then? |
8 | A. Yes, sir. |
9 | Q. Have you got an estimate as to the number of criminal jury |
10 | trials you've personally been involved in? |
11 | A. Approximately 60. |
12 | Q. Out of those 60, do you have an estimate as to the number |
13 | of trials that involved murders? |
14 | A. Ten to fifteen. |
15 | Q. I believe you testified earlier that you had had at least |
16 | two trials or had been involved in two cases in which the death |
17 | penalty was being sought? |
18 | A. Yes, sir. |
19 | Q. Was that accurate? |
20 | A. Two cases beside this one and then another case after the |
21 | Echols case was tried. |
22 | Q. In the cases besides this one you successfully defended |
23 | your client against receiving the death penalty, correct? |
24 | A. Yes, sir. |
25 | Q. Have you had any special training or seminars geared to the |
|
505
|
1 | criminal defense practice? |
2 | A. Yes, sir. |
3 | Q. Can you tell us some of those and some of that specific |
4 | training? |
5 | A. I attended, I believe in 1991 or '92, the National Criminal |
6 | Defense College in Macon, Georgia. That was a two week course. |
7 | That was where they videotaped us each day doing different parts |
8 | of the trial -- cross examination, closing arguments, direct |
9 | examination, jury selection. |
10 | I have also been to a separate weekend course in advanced |
11 | cross examination put on by the same organization. |
12 | I have been to, I think, any and all criminal seminars that |
13 | they've had in Arkansas pretty much for the past ten years or |
14 | so. |
15 | Since 1992 or '93 the Arkansas Public Defender Commission |
16 | has put on a death penalty geared seminar. I think I have been |
17 | to at least two or three of those. |
18 | Q. You said the one in Georgia in '91 or '92 was a two week |
19 | course? |
20 | A. Yes, sir. |
21 | Q. Who were the instructors for that course? |
22 | A. The instructors -- |
23 | Q. I mean, not specifically by name. What did they -- were |
24 | they college professors, or were they practicing criminal |
25 | lawyers? |
|
506
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1 | A. Practicing trial lawyers. A large majority of them were |
2 | members of the National Association of Criminal Defense Lawyers |
3 | --NACDL. |
4 | Q. Are you a member of that association? |
5 | A. Yes, sir. |
6 | Q. Do you receive publications that are put out by that |
7 | association? |
8 | A. Yes, sir. There's a monthly magazine that comes out ten |
9 | times a year. |
10 | I have been to two of their seminars on different topics. |
11 | The seminar is usually a two day seminar, and I have ordered |
12 | other materials from them in the past from seminars I was unable |
13 | to attend. |
14 | Q. I'm not familiar with their publication. I'm not on their |
15 | mailing list. Is that publication -- does it contain articles |
16 | regarding various strategies that criminal defense attorneys may |
17 | use to benefit their clients? |
18 | A. Yes, sir. |
19 | Q. Do you read and go over those articles on a regular monthly |
20 | basis when you receive the magazine? |
21 | A. Yes, sir. |
22 | Q. Are those articles written by experts in the field of |
23 | criminal defense law? |
24 | A. Yes, sir. |
25 | Q. In the cases that you have represented that have gone to |
|
507
|
1 | jury trials, in most of those cases have you worked by yourself |
2 | or with other counsel? |
3 | A. Most of the cases I worked by myself. Some of the cases |
4 | particularly in the more recent years in the more difficult |
5 | cases -- I have had co-counsel. |
6 | Q. In this particular case in the defense and the trial of |
7 | Damien Echols, how many hours did you put in in this case in |
8 | preparation and trial work? |
9 | A. At the trial level including the trial itself and pro-trial |
10 | preparation, I spent approximately 922 hours. |
11 | Q. How does that compare with the other cases in terms of the |
12 | amount of time you were --- that it look from your practice to |
13 | prepare and to present this defense compared with other cases |
14 | you have been in? |
15 | A. It's certainly the most time I have spent on any case |
16 | before or since. |
17 | Q. You also had co-counsel, Mr. Scott Davidson? |
18 | A. Yes, sir. |
19 | Q. Do you have any estimate as to the amount of time that Mr. |
20 | Davidson was involved in preparation and trial of this case? |
21 | A. I would estimate somewhere between 700 to 800 hours, I |
22 | know when we appealed -- when the fee issue was being appealed |
23 | -- Crittenden County versus the State of Arkansas -- our numbers |
24 | -- the hourly -- the number of hours each of us spent was listed |
25 | in there. But I believe that's the approximate amount. |
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508
|
1 | Q. Have both you and Mr. Davidson been practicing law for |
2 | about the same period of time? |
3 | A. Yes, sir. |
4 | Q. You have been practicing for 16 years? |
5 | A. Yes, sir. |
6 | Q. I believe you indicated earlier that Mr. Davidson at one |
7 | time was a full-time public defender? |
8 | A. He was on the full-time list. He still had a private |
9 | practice, but at one point there was only lawyers that wanted to |
10 | be on the appointed list, and it was down to the three of us -- |
11 | he and myself and one other lawyer. That lasted for about two |
12 | or three years. |
13 | Q. In addition to Mr. Scott Davidson assisting you with the |
14 | defense of this case, who else provided assistance to the Echols |
15 | defense team, so-to-speak? |
16 | A. Ron Lax, who is an investigator from Memphis. His business |
17 | entity is called Inquisitor, Inc., and Ron Lax was the primary |
18 | person from his office, but he also had a female named Cheryl -- |
19 | I forgot her last name -- who was also an investigator and then |
20 | a Glori Shettles who was primarily gathering mitigation |
21 | materials and information for us. |
22 | Q. As far as Mr. Lax is concerned, how did he get involved in |
23 | this case, or how did Inquisitor, Inc. get involved in this |
24 | case? |
25 | A. Mr. Lax had sent us a letter and contacted us probably |
|
509
|
1 | within a week or ten days of Mr. Davidson and I being appointed |
2 | to represent Mr. Echols. At that time he expressed an interest |
3 | in assisting us in providing investigative services for us. |
4 | Q. Were you aware of Mr. Lax prior to that time? |
5 | A. At that time I was not. |
6 | Q. What did you do to check him out to see if he would be a |
7 | valuable asset to your defense team? |
8 | A. Mr. Lax had provided us with several references of cases he |
9 | had been involved with. His primary -- I believe he's got about |
10 | 15 to 20 investigators total in his firm. I think he's got |
11 | several branch offices -- in Knoxville, Nashville and maybe even |
12 | Jackson, Mississippi. |
13 | Most of the investigators work on insurance defense work, |
14 | but Mr. Lax and the other two individuals who worked on our case |
15 | primarily spent most of their time doing death penalty |
16 | investigation work. He had been involved with the NLADA, the |
17 | National Legal Aid and Public Defender Association. I checked |
18 | with those people. He'd also been involved in -- TACDL |
19 | Tennessee Association of Criminal Defense Lawyers. He had done |
20 | some work -- I don't know the exact status at the time of the |
21 | Death Penalty Resource Centers -- but he worked with the |
22 | Nashville Capital Murder Death Penalty Resources Organization |
23 | and other national -- nationwide cases as well. |
24 | Q. Did you check into the references that he gave you to kind |
25 | of find out something about his background? |
|
510
|
1 | A. Yes, sir. |
2 | Q. After doing that background check, did you decide it would |
3 | be of benefit to Mr. Echols to agree to let Mr. Lax assist you? |
4 | A. Yes, sir. |
5 | Q. You say he had specific experience and background in |
6 | assisting in the defense of death penalty cases in the State of |
7 | Tennessee? |
8 | A. Yes, sir. Also midsouth besides just Tennessee. |
9 | Q. Did you know, or did you find out what Mr. Lax's background |
10 | was in terms of -- did he do criminal investigations himself, or |
11 | did he have a background in it or training in it? |
12 | A. I think he had worked for a private investigation firm for |
13 | a certain period of time and then branched out and formed his |
14 | own organization. |
15 | Q. Your understanding -- he had how many employees? |
16 | A. Total employees would -- I think he had 15 to 20 |
17 | investigators -- and then he had support staff, secretaries, |
18 | receptionist as well. |
19 | Q. He worked on your case, and two other people from your |
20 | office assisted him? |
21 | A. Yes, sir. |
22 | Q. When he contacted you, was there any -- did he -- did he |
23 | make his availability contingent upon you providing him money? |
24 | A. No, sir. He had told us -- and part of this being his |
25 | personal beliefs about -- against the death penalty. He had |
|
511
|
1 | indicated his willingness to work for us. His only request was |
2 | at the conclusion of the case, that he would be able to submit a |
3 | bill, and we would submit it to the judge and try to get paid |
4 | for his services. He said if he received no fee, then it would |
5 | have been pro bono work, but he wanted us to help him get a fee |
6 | in this. |
7 | Q. In your opinion was it a wise decision to have associated |
8 | yourself with Mr. Lax to assist in Mr. Echols' defense? |
9 | A. Yes, sir. |
10 | Q. What all did he do for you -- and his associates? |
11 | A. Mr. Lax -- when we began getting the batch of discovery |
12 | that came out, I think we maybe had ten or fifteen bundles of |
13 | materials -- |
14 | Q. Would you describe how it was that the discovery material |
15 | was furnished to you so everybody will knew at a later date? |
16 | A. Approximately about a month after we got appointed, |
17 | discovery started coming in, and it was kind of in bundles. I |
18 | have got notebooks -- probably two or three inch thick notebooks |
19 | -- and we would get a batch of material in periodically. |
20 | I would say it started in maybe July and continued we |
21 | got the major part of it probably through October, and then |
22 | there was additional material we got all the way through our |
23 | trial itself. But that was kind of the main portion. Then |
24 | there was about -- I would say there was 10 or 12 batches of |
25 | material we would get during this 10 or 12 week time period. |
|
512
|
1 | Q. When that material would come in, how was Mr. Lax involved |
2 | as far as organizing that material and investigating some of the |
3 | information? |
4 | A. We sent a copy of that to Mr. Lax and which -- and he |
5 | numbered it, I believe chronologically, and gave some kind of |
6 | internal numbering system to each document that we had received. |
7 | And then besides organizing it, he summarized -- he probably had |
8 | three or four sheets of information -- about a paragraph summary |
9 | of each of the documents that we received. |
10 | Plus, besides just the initial looking at it, then he began |
11 | kind of on his own to start pursuing leads about following up |
12 | with this particular witness or -- in the initial stages there |
13 | were maybe hundreds of interviews that the West Memphis Police |
14 | Department did with people, many of them that knew nothing about |
15 | the case. So he would kind of try to sort those through and see |
16 | which ones we needed to focus on and which ones we could kind of |
17 | discard. |
18 | Q. Was he involved in reviewing information that you had |
19 | received from the State Crime Lab or from the Medical Examiner's |
20 | Office? |
21 | A. Yes, sir The Crime Lab, the autopsy itself, the Crime Lab |
22 | reports, trace evidence and serology and fingerprints, all the |
23 | different sections -- we would send that to him. He would look |
24 | at that to tell us what he thought what areas we needed to |
25 | proceed with. |
|
513
|
1 | Q. Was his role in assisting you as a criminal investigator |
2 | for the defense? |
3 | A. For the criminal defense of Damien Echols, yes, sir. |
4 | Q. Did you rely on his experience in criminal defense work, |
5 | criminal investigation and death penalty cases in sorting |
6 | through and deciding what some of the strategies would be that |
7 | you would use in the defense? |
8 | A. Yes, sir. |
9 | Q. Did he make suggestions as far as based on his experience |
10 | and expertise as to where you might go for additional assistance |
11 | in getting expert testimony for the defense? |
12 | A. Yes, sir. |
13 | Q. Who did he recommend? |
14 | A. In the area dealing with the autopsy, he recommended a |
15 | Chris Sperry, who was a pathologist in Atlanta. And he |
16 | recommended that we send materials to Doctor Sperry to review. |
17 | Q. Do you know -- I believe you indicated the other day that |
18 | you were not quite sure as to what materials you did send to |
19 | him? |
20 | A. I believe we sent the autopsy itself. Beside the autopsy |
21 | report itself, I think we also had the other material -- |
22 | protocols, things of that nature -- that are kind of generated |
23 | by the Medical Examiner's office. I believe at that time we had |
24 | the autopsy photographs. We probably sent other crime scene -- |
25 | reports from the crime scene from the West Memphis Police |
|
514
|
1 | Department. We probably sent the other Crime Lab reports that |
2 | we had at that time. |
3 | Q. Did you understand that Mr. Lax had used Doctor Sperry from |
4 | Georgia in the past? |
5 | A. I believe he had either used him or certainly heard about |
6 | him through other contacts. |
7 | Q. Did you rely on Mr. Lax to make contact with him? |
8 | A. Yes, sir. |
9 | Q. He was a forensic pathologist? |
10 | A. Yes, sir. |
11 | Q. So you had access to a forensic pathologist that reviewed |
12 | certain materials? |
13 | A. Yes, sir. |
14 | Q. One of the issues you wanted Doctor Sperry to look at |
15 | time of death. Is that correct? |
16 | A. Yes, sir. |
17 | Q. Because that might or might not be an issue at trial? |
18 | A. Yes, sir. |
19 | Q. Was there something that was coming up before trial that |
20 | led you to believe that time of death might be of some |
21 | consequence -- or estimation of the time of death? |
22 | A. Mr. Baldwin's lawyers -- one of their key issues in their |
23 | defense was trying to establish that the time of death did not |
24 | occur between the -- this is kind of general -- 6:00 o'clock to |
25 | 10:00 o'clock p.m. time period on the day of the murders. |
|
515
|
1 | Their theory was it took place sometime after midnight, |
2 | around 2:00 o'clock to 4:00 a.m., somewhere in that time period. |
3 | So that was one of the things that Doctor Sperry had looked |
4 | at for us to see if he could determine the time of death and |
5 | determine which of those windows it would fit in. |
6 | Q. When he looked at that particular information, are you |
7 | aware as to what input he gave back to you regarding an estimate |
8 | as to time of death? |
9 | A. His conclusion was it would not have been the 2:00 to 4:00 |
10 | a.m. time period, that it would have been between the 6:00 and |
11 | 10:00 p.m. -- on the days the boys were missing. |
12 | Q. That 6:00 to 10:00 p.m. would have been something that |
13 | would have been consistent with the state's theory of the case, |
14 | correct? |
15 | A. Yes, sir. |
16 | Q. So y'all kind of kept that tight to your vest and didn't |
17 | reveal that because it's not helpful to your client? |
18 | A. That's correct. |
19 | Q. Now, so you had the -- let me ask you this: In terms of a |
20 | criminal investigator, have you ever used or been associated |
21 | with a criminal investigator that was any more skilled at his |
22 | job than Ron Lax was? |
23 | A. Not in the area of death penalty cases. |
24 | Q. And you said that he had an assistant that also worked with |
25 | you that helped you on mitigators. Had that person been |
|
516
|
1 | involved in helping people prepare defenses for death penalty |
2 | cases? |
3 | A. Yes, sir. That person was -- Glori Shettles was her name. |
4 | She had worked as either a Tennessee parole officer or probation |
5 | officer. So she had a social work type background. She was the |
6 | one that -- and she had also worked on ether cases preparing |
7 | mitigation. She's the one that obtained the medical records and |
8 | psychiatric records and psychological records, background |
9 | information on Mr. Echols. |
10 | Q. Would it be fair to say that Mr. Lax's concern with the |
11 | defense caused him to give you access to her to help you in any |
12 | way you needed to come up with the defense of this case? |
13 | A. Yes, sir. |
14 | Q. The defense has introduced what is marked as Exhibit 31. |
15 | This is the motion that was prepared but was not filed? |
16 | A. Yes, sir. |
17 | Q. I'm gonna refer you to Paragraph 3. In that Paragraph 3 it |
18 | lists a number of things that you say that the state had access |
19 | to, correct? |
20 | A. Yes. |
21 | Q. What is the first one? |
22 | A. Pathologist. |
23 | Q. A forensic pathologist? |
24 | A. Yes, sir. |
25 | Q. And that was Doctor Peretti who testified in this case? |
|
517
|
1 | A. Yes, sir. |
2 | Q. You had access to Doctor Chris Sperry. Is that right? |
3 | A. That's correct. |
4 | Q. You sent him information, and you received input from him, |
5 | correct? |
6 | A. Yes, sir. |
7 | Q. And that input was not favorable so you didn't use him? |
8 | A. Yes, sir. As to that aspect. |
9 | Q. Was there anything that you recall from the testimony -- |
10 | strike that. |
11 | So the state had a forensic pathologist and you had |
12 | information and input from a forensic pathologist, right? |
13 | A. Right. |
14 | Q. What is the next expert? |
15 | A. Criminologist. |
16 | Q. What is your understanding as to the role that a |
17 | criminologist serves in terms of a criminal investigation? |
18 | A. It's my understanding a criminologist is kind of a general |
19 | or generic type term of someone that searches for evidence, |
20 | reviews evidence, that is not in a specified category. |
21 | Q. In terms of the state's case against Mr. Echols, was there |
22 | any trace evidence that a criminologist might be involved in |
23 | comparing that was particularly harmful -- that was introduced |
24 | that was particularly harmful to Mr. Echols? |
25 | A. As far as the evidence admissible against Mr. Echols in |
|
518
|
1 | regard to the trace evidence, the only evidence that was really |
2 | damaging was there was some evidence about some red cotton |
3 | fibers that were found on one of the bodies that was consistent |
4 | with red cotton fibers that came from Mr. Echols' clothing in |
5 | his closet in his house. |
6 | Q. Was that evidence a crucial point from your observation in |
7 | the state's case? |
8 | A. I don't know if it was crucial. It was an important aspect |
9 | of the state's case. |
10 | Q. How were you able to defuse any damage caused by that |
11 | particular evidence? What was your strategy? |
12 | A. Our strategy on the red cotton fibers was that all the |
13 | evidence was that the red cotton fibers were similar or |
14 | consistent with -- the red cotton fibers from Mr. Echols' closest |
15 | -- with ones found on one of the bodies. |
16 | But a red cotton fiber is a red cotton fiber, and our |
17 | thought -- and I think we argued this -- well, I know we at |
18 | least talked about this -- you could go down to Wal-Mart and |
19 | look at a hundred red cotton tee shirts -- Razorback tee shirts |
20 | -- they would all be red cotton fibers. You can't further look |
21 | at cotton and say that it's -- break it down any further -- and |
22 | the fact that it was consistent with being a red cotton fiber |
23 | it doesn't really narrow it down with Mr. Echols. |
24 | That was our strategy and plan of attack in dealing with |
25 | that trace evidence. As a matter of fact, we prepared a chart |
|
519
|
1 | we could use which we drew out each of the different physical |
2 | evidence -- and that was one of the things that was in there -- |
3 | and we put down where it came from, whether it was consistent |
4 | not consistent and then what our explanation would be for it. |
5 | Q. Did you in fact cross examine the state's expert regarding |
6 | that and get a concession from the expert that that particular |
7 | type fiber was very common and did not have any particularly |
8 | unusual characteristics? |
9 | A. Yes, sir, I believe we did that. |
10 | Q. Did you feel as a defense attorney in a case of this nature |
11 | that there was additional benefit that could have been gained |
12 | from having expert testimony -- an expert for the defense to say |
13 | anything otherwise to contradict that testimony? |
14 | A. In retrospect, no. I don't think -- if we would have had |
15 | an expert witness -- if we would have been in the position to |
16 | hire an expert witness to come in to look at the red cotton |
17 | fiber to say it was consistent with a red cotton fiber but that |
18 | -- all consistent -- all red cotton fibers are consistent -- I |
19 | don't think -- I don't think that would have added anything to |
20 | our defense and affected our strategy or tactics on that point |
21 | Q. The defense was able to retain the testimony of an expert, |
22 | a Mr, Hicks. Is that correct? |
23 | A. Yes, sir. |
24 | Q. And how did you locate this particular expert? |
25 | A. Mr. Lax was the primary source. When we found out the |
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520
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1 | state was going to be calling Doctor Griffis, the so-called cult |
2 | expert from Ohio, Mr. Lax started checking to see -- you know, |
3 | any information he could find on Hicks -- excuse me, on Griffis. |
4 | And he found out that Robert Hicks had written a book, in |
5 | Pursuit of Satan, kind of an anti-cult book. And his premise |
6 | was there are not any cult killings, and there were several |
7 | paragraphs -- no, several chapters in his book dealing with |
8 | different individuals that claimed to be cult experts, and there |
9 | were two or three chapters on Griffis. So Mr. Lax tracked that |
10 | book down, and I read a copy of it during the trial, and we |
11 | decided we needed to try to get a hold of Hicks, who was in |
12 | Virginia. |
13 | Q. So your thinking was if the state's gonna put an expert on |
14 | in this area, then the defense needs one, too? |
15 | A. Right. |
16 | Q. Was Mr. Hicks your first choice? |
17 | A. I believe so. We may have contacted somebody else who |
18 | wasn't interested or wasn't available, but Hicks was certainly |
19 | one of the ones at the top of the list. |
20 | Q. You were able to get him, and he did come and testify? |
21 | A. He did come and testify and also provided information to us |
22 | during the cross examination of Griffis as well. |
23 | Q. Assisted you in Mr. Griffis' cross examination? |
24 | A. Yes, sir. We had -- I think I had talked with him about |
25 | what Hicks [sic] had said or what we would anticipate Hicks |
|
521
|
1 | [sic] would say -- excuse me, Griffis would say. And he gave us |
2 | the information to cross examine him with. |
3 | Q. There is -- included in that list does it show a serologist |
4 | as some of the things the state had access to? |
5 | A. Yes, sir. Fluid analysis expert, yes, sir. |
6 | Q. Was there any testimony presented from a serologist or |
7 | fluid analysis expert that in your opinion was damaging to Mr |
8 | Echols? |
9 | A. There was no evidence of any type of semen or blood or any |
10 | other fluids of that nature linking Mr. Echols to the murders. |
11 | Q. And in fact part of your defense was to underline the fact |
12 | that there was a lack of physical evidence at what the state |
13 | contended was the scene, correct? |
14 | A. Yes, sir. The state's theory of the case was that and |
15 | this is primarily through Griffis -- that it was a satanic |
16 | killing but the Satanists cleaned everything up, and that's why |
17 | there was no physical evidence at the crime scene. |
18 | We dealt with that thinking that sounded like a |
19 | proposterous belief and it wouldn't have happened that way, but |
20 | there wasn't any fluid analysis or serology type evidence found |
21 | at the crime scene linking Mr. Echols. |
22 | Q. This theory about additional tests that might have been |
23 | performed on this necklace that came up toward the end of the |
24 | trial -- is there any -- can you come up with a theory how |
25 | additional tests would have provided anything exculpatory for |
|
522
|
1 | Mr. Echols? |
2 | A. No, sir. As a matter of fact, that necklace that came up |
3 | at the end of the trial -- that necklace at one time had been |
4 | worn by Jason Baldwin. And one of the police photographs shows |
5 | Jason wearing that particular necklace, and the blood -- the |
6 | initial -- I believe that Jason Baldwin's DNA blood typing and, |
7 | I think, Michael Moore's was consistent. |
8 | I know there was -- because on some of the other areas |
9 | where they had done some testing about blood found on the tee |
10 | shirt -- I don't know if that was admitted at our trial or not |
11 | -- but because there was the blood that was on the necklace that |
12 | Jason was wearing was consistent with Jason's blood, we didn't |
13 | think that hurt Mr. Echols at all and actually was a good |
14 | explanation to it. |
15 | Q. Was there anything about that that you saw that if |
16 | additional testimony had been requested, would have been |
17 | anything exculpatory to benefit Mr. Echols? |
18 | A. No sir. |
19 | Q. If it turned out to be somebody else's blood, that doesn't |
20 | help Mr. Echols, does it? |
21 | A. No sir. |
22 | Q. If it turns out to be one of the children's blood, it |
23 | surely doesn't help Mr. Echols? |
24 | A. That's correct. |
25 | Q. If it turned out to be one of the other co-defendants' |
|
523
|
1 | blood, that doesn't help him or hurt him either way, correct? |
2 | A. That's correct. |
3 | Q. So there's nothing exculpatory to be gained from testing |
4 | that necklace? |
5 | A. That's correct. |
6 | Q. There's been some questioning of you regarding whether |
7 | that you were familiar with a forensic odontologist or a case |
8 | where a forensic odontologist was used. Is that right? |
9 | A. Yes, sir. |
10 | Q. In that case you were opposing me in another murder case, |
11 | right? |
12 | A. That's right. |
13 | Q. The state put on a forensic odontologist, right? |
14 | A. Right. |
15 | Q. Doctor West? |
16 | A. Right. From Hattiesburg. |
17 | Q. Would you for the record explain what your impression was |
18 | of the science of forensic odontology based on your experience |
19 | with Doctor West? |
20 | A. I thought it was highly -- I thought he was kind of a |
21 | quack. Part of West's theory is when he took the bite |
22 | impressions, and that particular bite mark was found on a female |
23 | kind of on the thumb area. Our theory in the case was that the |
24 | woman after being shot in the back four times bit herself on |
25 | this area of the thumb, and it is possible to do that. |
|
524
|
1 | Doctor West's theory was by taking the bite impression, he |
2 | would match up one tooth -- I'm not familiar with all the teeth |
3 | -- but a bicuspid -- and it would match with one indentation. |
4 | And then if you twisted the impressions, then the left molar |
5 | would match. And then if you moved it around another way, you |
6 | would get another match. |
7 | Our theory was if you're biting somebody, it's all gotta |
8 | match at the same time. And so I thought his testimony was |
9 | highly questionable. I thought I did a pretty good job of cross |
10 | examining him. At the time there was a question about his |
11 | credentials which later on we found out -- this was sometime |
12 | after this case was over with -- that apparently he'd gotten |
13 | into some kind of trouble from his -- American Academy of |
14 | Odontology or whatever organization he's a member of -- but I |
15 | thought his testimony was highly questionable. I talked to |
16 | jurors about it afterwards, and they said that they didn't put |
17 | any stock in his testimony at all. |
18 | Q. Would it be fair to say that after hearing his testimony, |
19 | that it kind of left a bad taste in your mouth regarding |
20 | forensic odontology? |
21 | A. Yes, sir. |
22 | Q. Did you consider that in this case as an option? |
23 | A. I think we probably looked at all the evidence, but I don't |
24 | recall -- as a matter of fact, we may have even talked about it. |
25 | Let me back up. I think we looked at that as a possibility. |
|
525
|
1 | Throughout the entire case we were -- during our strategy |
2 | sessions, we would throw out all kinds of options about ways to |
3 | go, possible defense theories and possible explanations with |
4 | certain evidence. |
5 | Q. And when you would talk or discuss what options were |
6 | available to you, would Mr. Lax be there present when some of |
7 | these discussions took place? |
8 | A. Yes, sir. |
9 | Q. Frankly, in terms of criminal investigation, would you and |
10 | Mr. Davidson kind of look to him in terms of guidance and |
11 | suggestions as to what route you might take? |
12 | A. Yes, sir. |
13 | Q. Did Mr. Lax look at any of these photographs -- did he have |
14 | access to autopsy photos? |
15 | A. Yes. |
16 | Q. And he's an experienced criminal investigator, right? |
17 | A. Right. |
18 | Q. Did he ever suggest to you or infer that it might be a good |
19 | idea to have these examined by a forensic odontologist to see if |
20 | these might be bite marks? |
21 | A. I don't recall any such conversations. |
22 | Q. There were questions raised yesterday or it may have been |
23 | -- I've lost track of time -- it may have been longer than |
24 | yesterday -- about did you ever discuss or consider the need for |
25 | a polygraph test or expert? Was there any need for a polygraph |
|
526
|
1 | expert in relation to the defense of Mr. Echols? |
2 | A. No, sir. Polygraph evidence is not admissible and wasn't |
3 | admissible at the time. The law -- still it's not admissible in |
4 | Arkansas even if it is a favorable result. We certainly didn't |
5 | -- didn't have any plans of having Mr. Echols polygraphed as |
6 | part of our defense. |
7 | Q. Blood splatter evidence. Did you ever -- Mr. Lax or you or |
8 | Mr. Davidson in your meetings -- did you ever feel -- or do you |
9 | feel now that there was a need to call in a blood splatter |
10 | expert to give you guidance on this case? |
11 | A. No. I'm sure we talked about, do we need a blood splatter |
12 | expert. But based on the evidence that we were provided, I |
13 | don't recall any blood splatter type evidence that was there |
14 | that we would need an expert to take a look at. |
15 | Q. A profiler. Have you ever used a profiler in a criminal |
16 | case before? |
17 | A. I have never used a profiler. |
18 | Q. Have you ever seen in your sixteen years of experience -- |
19 | have you ever seen a profiler come and take the witness stand |
20 | and testify under oath that in their opinion a certain type of |
21 | individual must have committed this crime? |
22 | A. No, sir. I have been aware of cases where one side tries |
23 | to use a profiler where they've been kept out by the Court. |
24 | Q. Did you consider, or do you -- in looking back do you now |
25 | think that you should have obtained a profiler to testify in |
|
527
|
1 | this case? |
2 | A. No, sir. |
3 | Q. Do you think you could have had the testimony of a profiler |
4 | in this case if you had desired? |
5 | A. I suppose if we would have decided we wanted one, we could |
6 | have done some calls and tried to find a profiler. |
7 | Q. Do you think testimony of that nature would have been |
8 | admissible in your opinion? |
9 | A. No, sir. |
10 | Q. Would it have -- in terms of looking at the evidence and |
11 | making determinations regarding possible avenues for the defense |
12 | or people to point the finger at, did Mr. Lax assist you in that |
13 | regard? |
14 | A. Yes, sir. |
15 | Q. Did you all as a group -- Mr. Lax, Mr. Davidson and |
16 | yourself -- all discuss possibilities in terms of other people |
17 | that you could point the finger at to assist your defense? |
18 | A. Yes, sir. |
19 | Q. Was Mr. Byers one of those people? |
20 | A. Mr. Byers was one of the alternate theories of defense that |
21 | we came up with. |
22 | Q. Did you also discuss the Bojangles -- unknown individual -- |
23 | as the person you could point the finger at? |
24 | A. Yes, sir. I suppose for the record, Bojangles being the |
25 | individual that came into the Bojangles chicken restaurant in |
|
528
|
1 | West Memphis early in the evening hours of the day the boys were |
2 | found missing with blood all over him that came into a |
3 | restaurant, and all that had been -- I think the police had |
4 | drove by that day and were aware of it and came by the next day, |
5 | and everything was cleaned up. |
6 | Q. As far as other options were concerned, did you and Mr. Lax |
7 | and Mr. Davidson discuss the viability of trying to use those |
8 | and intertwine it within your defense? |
9 | A. Yes, sir. We also talked about using a gentleman Chris |
10 | Morgan -- who went out and gave a confession out in California, |
11 | and those were the three sort of alternate theories of defense |
12 | Q. That was the California dude who went from Memphis to |
13 | California? |
14 | A. Yes, sir. |
15 | Q. That was on the four hour videotape? |
16 | A. Right. Probably even longer. He had a lengthy interview |
17 | and I think at one point had confessed and recanted. |
18 | Q. And that was the individual who five seconds after he |
19 | confessed, recanted and said, "Tell me what you want me to say |
20 | I'll say anything to get out of this broom closet." |
21 | A. Soon after that, yes, sir. |
22 | Q. What other -- you list in here pathologist, criminologist, |
23 | criminal investigators, medical experts, fluid analysis experts, |
24 | trace evidence experts. Were there any of these people listed |
25 | in paragraph three of that motion that you said the state had |
|
529
|
1 | access to that you felt your defense was shortchanged or unable |
2 | to be presented because you didn't have any of those people |
3 | listed in paragraph three? |
4 | A. No, sir. |
5 | Q. You also were able to retain another expert for the death |
6 | penalty phase. Is that right? |
7 | A. Yes, sir. |
8 | Q. That was Doctor Moneypenny? |
9 | A. Yes, sir. James or Jim Moneypenny from Little Rock. |
10 | Q. And -- psychiatrist, psychologist? |
11 | A. Psychologist. |
12 | Q. Okay. And you were able to retain him ahead of trial and |
13 | have him examine -- not only review records -- but examine your |
14 | client prior to trial? |
15 | A. Yes, sir. For purposes of mitigation. |
16 | Q. Was that on the advice of Mr. Lax's assistant who had been |
17 | involved in death penalty cases? |
18 | A. Yes. She said we needed to get somebody -- get a doctor to |
19 | review the records. I think we tried maybe one or two other |
20 | individuals that weren't available or couldn't do it. |
21 | Q. Do you recall how it was you retained him? |
22 | A. We called him and asked him if he would be willing to help. |
23 | I think I checked with some other Little Rock criminal defense |
24 | lawyers to see who was somebody in the Little Rock area that's |
25 | done this before, and his name had surfaced. |
|
530
|
1 | Q. You had certainly had the funds and resources to secure his |
2 | testimony and have him available and ready for trial, correct? |
3 | A. Yes, sir. |
4 | Q. And he was available to interview your client prior to |
5 | trial? |
6 | A. Yes, sir. |
7 | Q. He was available to review and go over psychiatric records |
8 | of your client that were provided to him? |
9 | A. Yes, sir. |
10 | Q. So were you prejudiced or affected or unable to obtain the |
11 | psychiatric testimony you desired and felt was necessary to |
12 | present? |
13 | A. No, sir. We had -- he had told us approximately how much |
14 | he would charge. We were able to pay part of his bill from the |
15 | HBO money and then the rest of his bill when we finally got paid |
16 | our fee from the state a year and a half later. |
17 | MR. DAVIS: Your Honor, I'm getting ready to get |
18 | into another topic if -- |
19 | THE COURT: All right. We'll take our noon |
20 | recess until 1:15. |
21 | (RECESS) |
22 | (RETURN TO OPEN COURT) |
23 | BY MR. DAVIS: |
24 | Q. I'm referring you to what is marked as Petitioner Exhibit |
25 | 31 which was the motion that was prepared but not filed. I'm |
|
531
|
1 | referring you to page five, paragraph 12. Can you read that |
2 | paragraph? |
3 | A. "Specifically, the defendant is in need of the following |
4 | experts to aid and assist the attorneys in the investigation and |
5 | preparation of his case for trial: (a) Examination of blood |
6 | samples, hair samples, fiber samples, saliva samples, DNA |
7 | samples, semen samples and fingerprints." Do you want me to go |
8 | on? |
9 | Q. Is this a -- did you get a copy of a form petition that |
10 | some other attorney had used in some other case? |
11 | A. Yes, sir. I believe that was the source of this. We added |
12 | some additional -- made some changes to it. |
13 | Q. Some of the things you left is just generic language, |
14 | right? |
15 | A. Yes, sir. |
16 | Q. Like on the fingerprints and some of the things that are |
17 | mentioned in that paragraph? |
18 | A. I don't recall if those were in the original motion or |
19 | things that we had put in there at the time we had drafted this. |
20 | Q. To your knowledge, was there any latent fingerprint |
21 | evidence found associated with this crime? |
22 | A. No, sir. |
23 | Q. Those items that you've listed -- the date on this at the |
24 | top is November of '93. Is that right? |
25 | A. Yes, sir. |
|
532
|
1 | Q. And obviously you didn't file this. Did you think -- were |
2 | these things that are listed in Paragraph 12 -- as the trial |
3 | approached, did you determine that they were actually needed or |
4 | not needed? |
5 | A. As the trial approached, we decided that we didn't need the |
6 | experts that we had listed in this motion. |
7 | Q. Is that the reason that you didn't file it? |
8 | A. I'm sure -- yeah, that was certainly one of the reasons why |
9 | we didn't file it. |
10 | Q. Looking in hindsight and evaluating the testimony that you |
11 | realized came forth in the case, the experts that were listed |
12 | there in Paragraph 12 of Petitioner Exhibit 31, did those -- do |
13 | you think that there would have been benefit gained from having |
14 | experts of that type available to testify? |
15 | A. Looking at hindsight, the only area that might have been |
16 | beneficial is DNA samples. The last two or three days of the |
17 | trial when evidence about possible DNA evidence on the necklace |
18 | came up, there was a recess of a half a day, maybe a whole day, |
19 | in the middle there on Wednesday, Thursday, Friday - right |
20 | towards the end of the trial. |
21 | We made some phone calls to a DNA expert in Miami to see if |
22 | he would be available, if he was interested in testifying for |
23 | us, what he would charge, and we made the decision not to use |
24 | him because the DNA sample that -- when they came up with it -- |
25 | we concluded that the DNA didn't hurt us. So we didn't use that |
|
533
|
1 | witness. |
2 | Q. Wouldn't you agree that the testimony -- the eyewitness |
3 | testimony of Narlene Hollingsworth -- was about as damaging as |
4 | any evidence presented against your client at trial? |
5 | A. Yes, that was one of the damaging parts of the evidence. |
6 | Q. Wasn't that a factor that was hammered on in terms of her |
7 | testifying that she had seen the defendant Damien Echols near |
8 | the location of the murders on the very evening that the murders |
9 | occurred? |
10 | A. Near the location where the bodies were found, yes, sir. |
11 | Q. Did Mr. Lax attempt to interview her? |
12 | A. Yes, sir. |
13 | Q. Did he interview her? |
14 | A. I believe he did interview Narlene and a lot of her family |
15 | as well. |
16 | Q. Was there anything that expert testimony could have done to |
17 | rebut or counter what she testified to? |
18 | A. No, sir. As a matter of fact, Arkansas law at the time |
19 | and still is -- that expert testimony cannot be used in order to |
20 | attack eyewitness testimony. |
21 | Q. Was the testimony of the two girls -- and I forget their |
22 | names -- |
23 | A. The softball girls? |
24 | Q. Yeah, I guess characterized under that umbrella -- that |
25 | testified to statements that your client made and that they |
|
534
|
1 | overheard at the softball park, did Mr. Lax interview them? |
2 | A. Yes, sir. |
3 | Q. Was that at your request? |
4 | A. Yes, sir. We interviewed them and other family members of |
5 | them as well. |
6 | Q. Did you consider that testimony and that evidence to be |
7 | damaging against your client at trial? |
8 | A. Yes, sir. |
9 | Q. Was there anything that experts or expert testimony could |
10 | have done in your opinion and in your experience to rebut that |
11 | testimony? |
12 | A. No, sir. |
13 | Q. You indicated, yesterday I believe, that you yourself |
14 | didn't hire a jury selection expert, correct? |
15 | A. Correct. |
16 | Q. You have personally picked at least 60 juries in the past? |
17 | A. Yes, sir. |
18 | Q. Did you utilize some of the ideas or information provided |
19 | by the expert that I believe was retained by Mr. Ford and Mr. |
20 | Wadley in behalf of Jason Baldwin? |
21 | A. Yes, sir. |
22 | Q. How did you utilize what information he had? |
23 | A. First of all, he had written a book about jury selection |
24 | and also other aspects of trials. It was kind of a "Color Me |
25 | Beautiful" book for lawyers. A lot of his theories dealt with |
|
535
|
1 | the dress of jurors, what jurors wear. I think he had a chapter |
2 | or two about what clothing lawyers need to wear at trial. |
3 | But there was also some material in there about ways to |
4 | pick jurors, and rate jurors and score jurors. |
5 | I had also used a jury consultant in a previous case, |
6 | Melissa McMath from Little Rock, and I used some of the ideas I |
7 | picked up from her in that case to select a jury in our case. |
8 | Q. Would you characterize the process of selecting a jury as |
9 | being -- ah, that experience is invaluable in doing that? |
10 | A. I think experience on behalf of the attorney is the most |
11 | invaluable part of voir dire. |
12 | Q. How important is it to be present and observe a potential |
13 | juror in terms of making a determination whether to exercise a |
14 | peremptory strike? |
15 | A. Very important. |
16 | Q. Is what a juror says -- is that vitally important in terms |
17 | of evaluating whether you want to accept that juror or not? |
18 | A. What a juror says is important, but there are other factors |
19 | as well. |
20 | Q. What other factors? |
21 | A. The juror's demeanor, the juror's body language. On jury |
22 | questionnaires you can't state the race of a juror, but |
23 | obviously if you're there in court, you can look at 'em and tell |
24 | what race they are. |
25 | You can pick up things -- you knew, some jurors may be hard |
|
536
|
1 | of hearing, and they may not want to state that in open court, |
2 | but you can kind of notice if they're having trouble picking up |
3 | on answers. And you can -- you know, if they're stand-offish |
4 | about answers or if they've got their arms crossed - a lot of |
5 | just sizing up jurors is a very important factor to look at. |
6 | Q. In other words you can ask a juror, could you give my |
7 | client a fair trial, and two jurors could answer yes, and you |
8 | might want one of 'em and not want the other one? |
9 | A. Yes, sir. |
10 | Q. And it's because of how they look, how they say it, their |
11 | mannerisms, their inflections, their posture, things of that |
12 | nature? |
13 | A. Yes, sir. |
14 | Q. Did you use all those things in making determinations as to |
15 | whether you wanted a certain juror in this particular case? |
16 | A. Yes, we did. |
17 | Q. Did you also utilize to some extent the expertise of the |
18 | jury expert hired by Mr. Ford and Mr. Wadley? |
19 | A. Yes, I believe James Rascote [phonetic] was his name. We |
20 | consulted with him. We were questioning the jurors primarily in |
21 | groups of three or four. |
22 | I think the judge asked the initial questions, the state |
23 | and then I believe Mr. Ford went and then either myself or Mr. |
24 | Davidson. |
25 | Once everybody had a chance to question 'em, there was a |
|
537
|
1 | brief recess, and we would discuss with him -- we would kind of |
2 | have our ideas if we wanted to strike people or not and we would |
3 | consult with him as well. Mr. Davidson and also Mr. Lax and I |
4 | were all having feedback and interaction. |
5 | Q. Generally, your defense at trial was, my client didn't do |
6 | it, right? |
7 | A. That's correct. |
8 | Q. The defense that Baldwin's attorneys put forth is that my |
9 | client didn't do it? |
10 | A. The legal defense that Baldwin put forth is that my client |
11 | didn't do it. |
12 | Q. In that respect the interest y'all had in selecting jurors |
13 | were similar in that you wanted jurors who could consider not |
14 | only - in your position - could consider whether Mr. Echols |
15 | was innocent or not based on the evidence? |
16 | A. Yes, sir. |
17 | Q. Did you think that the jury that was picked was fair and |
18 | impartial in their ability to consider the evidence and to make |
19 | a determination? |
20 | A. Yes, sir. |
21 | Q. Now, did you rely solely on the advice of the expert hired |
22 | by Ford and Wadley to make your decisions? |
23 | A. No. Mr. Davidson and I conversed. I think Mr. Lax and |
24 | maybe even Ms. Shettles may have been here during part of that. |
25 | The jury selection process lasted about five days -- they may |
|
538
|
1 | not have been here all days. |
2 | We also had conversations with Mr. Echols during the voir |
3 | dire process to get his feedback on individuals. You know, if |
4 | he strongly opposed someone or didn't have an opinion either way |
5 | or strongly liked someone, wanted us to keep somebody. |
6 | Q. With Mr. Echols, one of the things -- and correct me if I'm |
7 | wrong -- but his appearance in terms of his hair length, the way |
8 | he dressed and things like that had received quite a bit of |
9 | attention prior to trial, correct? |
10 | A. Yes, sir. |
11 | Q. Was it important to you when picking a jury to be able to |
12 | size up how the jurors were perceiving or viewing your client |
13 | while they responded to your questions? |
14 | A. Yes, sir. |
15 | Q. That is something that we can't detect from a black and |
16 | white transcript that says what questions were asked and what |
17 | answers were made during the voir dire process, can we? |
18 | A. No, we can't. |
19 | Q. Now, you were asked a number of questions about why you |
20 | didn't insist on an individual voir dire, correct? |
21 | A. Correct. |
22 | Q. Are there benefits that a voir dire conducted with more |
23 | than one person present -- are there advantages to be gained if |
24 | you have two, three or four people in a group when voir dire is |
25 | being conducted? |
|
539
|
1 | A. Yes, sir. |
2 | Q. What are these advantages? |
3 | A. If you're only asking one juror questions to the exclusion |
4 | of all others, you've got to base your responses on what they're |
5 | saying alone and what you think of that person without |
6 | comparison to anybody else. |
7 | If you've got two, three or four individuals, you can |
8 | compare the answers of juror number one to the answers of juror |
9 | number two, see which one is favorable or nonfavorable. You can |
10 | play them off. |
11 | If one of them says something, you turn and ask another |
12 | one, how do you feel about what -- Ms. Smith, how do you feel |
13 | about the answer that Mr. Jones gave. So you can kind of play |
14 | them off. |
15 | A lot of times, particularly if you're asking jurors one at |
16 | a time, and the one juror is in there with in lawyers and judges |
17 | and court reporters and court personnel, and defendants, they're |
18 | real hesitant to speak. But if you've get two or three or four |
19 | in there, when one starts talking about some area, then another |
20 | one can start talking. You may have somebody -- a problem in |
21 | their background about drinking or alcoholism. If one person |
22 | starts talking about it, then the ether person may begin to talk |
23 | some more about kind of sensitive type, private issues and you |
24 | can use that information to be beneficial in exercising your |
25 | strikes. |
|
540
|
1 | Q. Isn't it vitally important that you develop a communication |
2 | with a juror -- that they are responding and opening up and |
3 | talking to you? |
4 | A. Yes, sir, rapport is very important. |
5 | Q. Is it your experience that that is more likely to occur if |
6 | there's one juror, six attorneys, a court reporter and a judge |
7 | or if there's three or four jurors, six attorneys, a court |
8 | reporter and a judge? |
9 | A. I think by having several jurors in there, they're more |
10 | likely to start opening up and talking and many times -- even |
11 | asking general questions that you already know the answers of. |
12 | Tell me your name, tell me where you live, where you work. |
13 | You've got it on the standard questionnaire we use in all trials |
14 | here. We were able to get them to start talking and feeling |
15 | comfortable and feeling a rapport with the lawyers. |
16 | Q. Just because a juror says -- I think the example used by |
17 | defense counsel was the juror who said they heard something |
18 | about witchcraft was involved. Because that statement is made |
19 | in front of another juror, do you feel that that necessarily |
20 | taints that juror? |
21 | A. Not necessarily. In our case there was a lot of pre-trial |
22 | publicity, and the press was covering stories and trying to seek |
23 | different angles. |
24 | Because a lot of it initially -- of course, the first month |
25 | of it was about the crimes themselves, and then after that about |
|
541
|
1 | our clients. There was a lot of negative stuff out there, but |
2 | much of the stuff that was out there we couldn't really respond |
3 | to until the trial. We're not trained to battle in the press to |
4 | win our case there. We're trying to win in the courtroom. |
5 | That's why it's important to -- just because people have |
6 | heard things through the media or through rumors, if what |
7 | they've heard does not comport with what they hear at the trial, |
8 | sometimes it can actually be an advantage to the defendant. |
9 | Q. In this case when things like that would be mentioned, did |
10 | you feel that it was important that those things be brought out |
11 | in front of other jurors so that you could get their response |
12 | because things like this might come out at trial? |
13 | A. In a way we really didn't want it -- we had a general idea |
14 | what had been out there, and we knew a lot of our case had not |
15 | been reported in the press. The fact that we were intending to |
16 | use an alternate theory of defense about the Bojangles incident |
17 | -- that was something that hadn't surfaced much. It may have |
18 | come up at the Misskelley trial, but there hadn't been a lot of |
19 | articles about that, a lot of TV reports about that, prior to |
20 | that. |
21 | There was different -- I think at one time there was a |
22 | report about sticks being found or clubs being found which |
23 | turned out that didn't have anything to do with the evidence in |
24 | this case. So just the fact that people had heard things in the |
25 | media wasn't necessarily bad for us. |
|
542
|
1 | There were other aspects of -- one of our alternate |
2 | theories was the gentleman who went to California, Chris Morgan |
3 | -- had made a Confession. That was something that people were |
4 | not aware of, and I think it was favorable. That's why we |
5 | didn't really question jurors about that aspect of it. |
6 | Q. What is the reason that you would do three or four back |
7 | there versus doing an entire jury panel up here with the |
8 | courtroom full of prospective jurors? |
9 | A. The reason to limit to three or four is you can develop |
10 | more rapport. Typically, we'll pick a jury where we put 12 or |
11 | 18 in the jury box immediately to your right in the courtroom |
12 | here that holds probably 120 people. People are very reluctant |
13 | to speak in open court -- particularly if it's a very serious |
14 | case about their personal backgrounds and information you |
15 | need to decide if they're an appropriate juror. |
16 | Q. In this case there were a number of jurors that spoke about |
17 | items of a personal nature that they felt like had an impact on |
18 | their ability to serve, correct? |
19 | A. Yes, sir. |
20 | Q. Wasn't there one juror who at one point brought it to our |
21 | attention that her son was serving time in the penitentiary on a |
22 | murder charge? |
23 | A. I believe that's correct. |
24 | Q. Did it appear to be in your estimation very difficult for |
25 | that lady to bring that information forward? |
|
543
|
1 | A. Yes, sir. |
2 | Q. Yet she was still able to do it in the presence of two or |
3 | three other people, correct? |
4 | A. That's correct. |
5 | Q. If with three or four people back there something that is |
6 | very, very explosive in terms of a statement made by a juror -- |
7 | like if a juror makes a statement -- prospective juror says, I |
8 | know three officers on the West Memphis Police Department and |
9 | they've told me this, this and this -- even though it won't come |
10 | out at trial -- and says that in the presence of three other |
11 | jurors, by having just three or four back there, do you avoid |
12 | completely destroying the possibility of using the entire jury |
13 | panel? |
14 | A. Yes, sir. |
15 | Q. Is it basically a compromise between the tension created |
16 | when you have a single juror being subjected to voir dire by six |
17 | attorneys and -- a compromise between that and an entire panel |
18 | that could be tainted by one response from a juror? |
19 | A. Yes, sir. |
20 | Q. In your experience in trials if you're in a noncapital |
21 | case, the first and foremost thing that you're concerned with is |
22 | the guilt or innocence of your client, right? |
23 | A. That's correct. |
24 | Q. Your primary concern is to get a jury that you think will |
25 | give your client a fair shot at listening to the evidence and |
|
544
|
1 | being acquitted if he's deserving of that, correct? |
2 | A. Most of the time that's correct. |
3 | Q. In a death penalty case does the focus shift -- do you |
4 | worry so much about the potential punishment that the concern |
5 | about getting a jury that will acquit your client that the |
6 | evidence there becomes a secondary concern? |
7 | A. I would say you're concerned in a death case about both |
8 | parts -- about the jury dealing with the guilt or innocence |
9 | phase and the jury dealing with punishment -- death phase. |
10 | Q. In a situation such as you found yourself with Mr. Echols |
11 | where he contended that he didn't do it, was there -- was your |
12 | emphasis in jury selection on trying to get those jurors who |
13 | could acquit him if you gave them the evidence or if the state |
14 | failed to prove the case? |
15 | A. I would say our emphasis was on both parts of it. |
16 | Q. Did your experience from other trials in which guilt or |
17 | innocence is the primary issue -- did that experience carry over |
18 | and benefit you in a jury selection in a death penalty case? |
19 | A. Yes, sir. |
20 | Q. I'd like to ask you in regard to the voir dire, are there |
21 | times when actually by having a number of jurors back there that |
22 | jurors make comments that positively taint the jury in behalf of |
23 | the defendant? |
24 | A. Yes, sir. |
25 | Q. Can you think of an example of that? |
|
545
|
1 | A. In this case I think there was some instances where there |
2 | was some references to media coverage, and individual |
3 | prospective jurors made comments about, I don't believe what I |
4 | have read, or something to that effect, and I think comments |
5 | like that are favorable to the defendants. |
6 | Q. If at times a juror says something like, I feel like these |
7 | boys are presumed innocent and you are gonna have to prove it to |
8 | me at trial and I'm not gonna find 'em guilty until you've met |
9 | your burden of proof, is that something that not only you're |
10 | glad to hear it for that juror but affects everybody in the |
11 | room? |
12 | A. Definitely. You want to ask them follow-up questions to |
13 | keep 'em talking. |
14 | Q. Those are the kind of keys -- and later go back on in |
15 | closing argument -- even make reference to, remember back in |
16 | voir dire when such and such said it's important to give the |
17 | defendant the presumption of innocence. You can use that, can't |
18 | you. |
19 | A. Yes, sir. |
20 | Q. Did these things occur during the jury selection in this |
21 | case? |
22 | A. Yes, sir, there were some favorable comments that we got |
23 | from jurors. |
24 | Q. I'd like to show you at page 223 of the voir dire -- I |
25 | believe it's a question asked of prospective juror Sprinkle who |
|
546
|
1 | was later accepted as a juror. The question was: "Is there |
2 | based on -- is that information -- have you formulated any |
3 | opinion one way or the other about," and Mr. Sprinkle responds, |
4 | can you read his answer? |
5 | A. "No, not really because I know that over the years |
6 | everybody else does, too -- that when you read the paper, you |
7 | really have to really read it because it's always made to look |
8 | bigger than what it actually really is. At least that's the way |
9 | that I look at it. Everybody may not feel that way, but I do, |
10 | and I can look at these two boys now and find it hard to |
11 | believe. I'd have to see the evidence to make me believe that |
12 | they could do that to someone." |
13 | Q. Mr. Price, when a juror responds to your question like |
14 | that, is that beneficial for you to have other jurors back there |
15 | who are exposed to somebody who has thoughts and ideas and |
16 | philosophies like that? |
17 | A. Very beneficial. |
18 | Q. Is it important to you -- does that put the prosecution in |
19 | a relatively difficult situation if they choose to try to excuse |
20 | a person who has made a statement of that sort? |
21 | A. Yes, sir. |
22 | Q. Would that be the case if you were doing the voir dire |
23 | individually where there were no other prospective jurors back |
24 | there? |
25 | A. No, because the other jurors would not know what juror is |
|
547
|
1 | being struck. If you're there listening to the questions and |
2 | answers that that prospective juror gave, many times the jurors |
3 | figure out why this one was struck or why this one wasn't |
4 | struck. |
5 | Q. I believe you were asked yesterday about the comment in the |
6 | voir dire process where Mr. Arnold made the statement that, "I |
7 | think you probably should have had this trial -- you moved it |
8 | here. You probably should have moved it to another state" |
9 | A. Yes, sir, I remember that. |
10 | Q. Is that -- does that kind of comment -- a comment that |
11 | recognizes concerns about a defendant's ability to receive a |
12 | fair trial and things of that nature -- is that the type of |
13 | mentality that you want in a juror that is listening and |
14 | deciding your client's fate? |
15 | A. Yes, sir, because that comment appears to have that person |
16 | be a favorable juror. |
17 | Q. Didn't Mr. Arnold indicate to you that he had even hardly |
18 | followed the Misskelley trial? |
19 | A. Yes, sir. I believe that's in the transcript. |
20 | Q. Let me show you on page 297, line 22, it's a Ms. Stoll, |
21 | S-T-O-L-L. She was a juror that was selected. |
22 | The question was asked: "What about you Ms. Stoll? You |
23 | indicated it was usually office talk. What is the general |
24 | office opinion?" What was her response? |
25 | A. This is on line 24. "Well, because I don't watch the news, |
|
548
|
1 | I mean, there's things that goes on that I never even really |
2 | realize that is going on and I have learned these things that |
3 | everybody has an opinion, but I don't always agree with them" |
4 | Question: "And what's your opinion?" |
5 | Answer: "I think that these gentlemen deserve to have a |
6 | fair trial." |
7 | Q. Is that one of those responses that when that response is |
8 | made by a prospective juror and there's other jurors sitting on |
9 | either side, that that has a positive impact for your client? |
10 | A. Yes, sir. |
11 | Q. Does it kind of thrill you when you're a defense attorney |
12 | and you're trying to select a juror and some prospective juror |
13 | makes a comment like that -- you could have said it a hundred |
14 | times but the impact is ten times greater? |
15 | A. Yes, sir, if it comes from them. Because a lot of times if |
16 | you ask the same question and get them to say yes or no, that is |
17 | certainly not as effective as them coming up with that thought. |
18 | Q. There was questions asked of a prospective juror, Ms. |
19 | French, who was later selected, question was: "What about you, |
20 | Ms. French," on line 7 of page 369, and what was her response? |
21 | A. Her response was: "And from the media and TV and |
22 | newspaper. Of course, my friends have talked about it. Of |
23 | course, they feel like they were guilty. I feel they're |
24 | innocent until they're proven guilty. That was my opinion, too, |
25 | whenever this was brought up." |
|
549
|
1 | Q. Next question. |
2 | A. "You've actually verbalized that to some of your friends? |
3 | Let's don't jump the gun, let's don't make a mistake, let's wait |
4 | and see?" |
5 | Answer: "Well, I just told 'em that was my opinion, that |
6 | they were innocent until proven guilty." |
7 | Q. Is that another example of a statement that's made by a |
8 | juror that is worth a million of your words if they say it in |
9 | the presence of other prospective jurors? |
10 | A. Yes, sir. |
11 | Q. And that was a juror that was selected? |
12 | A. I believe -- I don't specifically recall but if that's what |
13 | the record indicates. |
14 | Q. And I will show you on page 510 at line 10 and Throgmortorn |
15 | was being questioned. It says: "Ms. Throgmorton, what has been |
16 | your general source of that information?" And what is her |
17 | response? |
18 | A. Page 510, line 12. "Just like I said earlier, when it did |
19 | come out, when it happened and stuff, I'm on the go a lot, and I |
20 | really don't get to see TV much, and I rarely pick up a paper. |
21 | So just people's opinions, you know, people talking around." |
22 | Question: "And what is the general opinion?" |
23 | Answer: "Ah, it seems to me the general opinion is that |
24 | everybody thinks they're guilty but, you know, myself -- I feel |
25 | like everyone is innocent until proven guilty, and so I've just |
|
550
|
1 | pretty much taken that -- what everybody else says as a grain of |
2 | salt, really." |
3 | Q. Is that again another example of a comment that is said by |
4 | a prospective juror that is of extreme benefit to you in trying |
5 | to get a jury that will be fair to your client? |
6 | A. Yes, sir. |
7 | Q. Would it have that impact if Ms. Throgmorton had been |
8 | questioned by herself rather than in the presence of two or |
9 | three other jurors? |
10 | A. No, sir, because the next question, "And what about you, |
11 | Mr. Russell?" And he responded the previous answer that Ms. |
12 | Throgmorton had given. |
13 | Q. A prime example of where a positive response by one juror |
14 | allows you to lead in with another and emphasize something that |
15 | you think is important for your client to receive a fair trial? |
16 | A. Yes, sir. |
17 | Q. On page 539, line 25, and the top of 540 of the transcript |
18 | of the voir dire, the question was asked to a prospective juror, |
19 | Ms. Dooley, who was selected: "Ms. Dooley, based on what you've |
20 | read, heard -- what were your general feelings about this?" |
21 | And what was Mr. Dooley's response? |
22 | A. "I really had mixed emotions about it. I was upset, too. |
23 | You know, I felt for everyone involved, the families of everyone |
24 | involved. But, too, then I go back to that law that we have |
25 | that everyone is innocent until proven guilty beyond a |
|
551
|
1 | reasonable doubt and my mind is more at ease." |
2 | Q. Mr. Price, somebody could actually say that and based on |
3 | their appearance -- say things that you would think would be |
4 | positive and beneficial to your client -- but because of the way |
5 | they said it and the way they looked and their mannerisms, you |
6 | wouldn't ever pick 'em for a jury because you wouldn't trust |
7 | 'em, right? |
8 | A. Right. |
9 | Q. But you had an opportunity to observe Ms. Dooley, to see |
10 | how she reacted, how she responded, her physical responses |
11 | toward your client at the time she made that statement, and you |
12 | selected her for the jury, correct? |
13 | A. Yes, sir. |
14 | Q. And you believe that in your selection of the individuals |
15 | for the jury, that you used your experience and through this |
16 | voir dire process made a wise selection as far as your ability |
17 | to get a fair and impartial jury? |
18 | A. Yes, sir. |
19 | Q. Let me switch gears and talk to you a minute about the HBO |
20 | documentary. Were you ever an actor in an HBO documentary? |
21 | A. No, sir. |
22 | Q. Were you ever paid any money to be involved or to assist in |
23 | the production of an HBO documentary? |
24 | A. Val Price was never paid any money to be in an HBO |
25 | documentary. |
|
552
|
1 | Q. Can you tell us how it happened -- the contacts that were |
2 | initially made by the HBO people -- and how you discussed it |
3 | with your client in terms of what they -- HBO is probably wrong |
4 | -- Creative Thinking, Bruce Sinofsky and Joe Berlinger how |
5 | they initially contacted you and what the reaction from your |
6 | client was -- Mr. Echols -- to this idea? |
7 | A. They had contacted us relatively early on after we had been |
8 | appointed, probably sometime in June. We were appointed June |
9 | 5th so sometime thereafter within two or three weeks. |
10 | At first, Mr. Davidson and I were very skeptical. We had |
11 | never been involved in a situation like this before. We talked |
12 | about it several times. We talked about it with Mr. Lax. I'm |
13 | sure we had conversations with Mr. Echols about this, and then |
14 | that's kind of how it developed. |
15 | Q. Did y'all discuss with him, these guys want to come down |
16 | and shoot a documentary about what is going to go on during the |
17 | process of this trial, what do you think? |
18 | A. Yes, sir. |
19 | Q. What was his reaction to it? Was he horrified, was he |
20 | lukewarm about it, or did he seem to be interested in the |
21 | thought that they were gonna make a movie about his -- the trial |
22 | that involved him over these three killings? |
23 | A. Mr. Echols was very receptive about the fact that someone |
24 | was interested in doing some type of favorable project for him. |
25 | Q. Would it be fair to say that at that stage of the game in |
|
553
|
1 | that summer after being locked up for a few weeks, he was happy |
2 | to have somebody show an interest in his case? |
3 | A. Yes, sir. |
4 | Q. And he was 18 at the time he was charged, right? |
5 | A. Yes, sir. |
6 | Q. So he's old enough to enter into a contract at that point |
7 | -- |
8 | A. Correct. |
9 | Q. -- in the State of Arkansas. Did he ever show any |
10 | hesitancy in agreeing to the situation where the documentary |
11 | would be shot? |
12 | A. No, sir. I'm sure we had discussions with him about what |
13 | are they gonna cover, and Mr. Davidson and I had concerns about |
14 | not revealing confidential information and things of that |
15 | nature, but he seemed very receptive toward the idea. |
16 | Q. Did y'all inform him that the downside to this was that you |
17 | would have to be careful not to jeopardize the defense? |
18 | A. Right. We discussed with him there were certain areas that |
19 | we didn't want discussed whenever he was interviewed by them. |
20 | Q. Was there ever a concern on your part that by him agreeing |
21 | to this, it would place you in a potential conflict of interest? |
22 | A. We had thought about that. We wondered is there anything |
23 | immoral about doing this, unethical about doing this, is it |
24 | violating any kind of ethical rules. But we came to the |
25 | conclusion it would not create a conflict of interest. |
|
554
|
1 | Q. A conflict of interest would be you might not do something |
2 | on behalf of your client because you were concerned it would |
3 | affect somebody you were having dealings with, correct? |
4 | A. That's correct. |
5 | Q. Was there ever a situation during your representation of |
6 | Mr. Echols where because of the agreement he had signed with |
7 | HBO, that there was ever a situation where you felt or had even |
8 | concerns that you were not representing Mr. Echols' interest to |
9 | the fullest? |
10 | A. No, sir. |
11 | Q. Did that agreement in any way, shape or form negatively |
12 | affect how you represented Mr. Echols? |
13 | A. In my opinion, no. |
14 | Q. Did you have discussions during the course of representing |
15 | Mr. Echols with members of his family? |
16 | A. Yes, sir. Myself did, Mr. Davidson did, and also his |
17 | family was in greater contact with Mr. Lax and his office. |
18 | Q. When you say, "his family," what were the immediate family |
19 | members of Mr. Echols that were most interested in his case? |
20 | A. His mother, his adopted father and his natural father and |
21 | his sister were the primary family members. |
22 | Q. And did you ever have any discussions, or are you aware of |
23 | any time you talked with them about the HBO documentary? |
24 | A. I'm sure at some point either myself or Mr. Davidson or Mr. |
25 | Lax had conversations with them. They certainly knew that |
|
555
|
1 | Creative Thinking was doing the project and was interested in |
2 | it. |
3 | Q. Did they know that Damien was going to get some money for |
4 | it? |
5 | A. I'm assuming that they did. I don't remember if I had |
6 | detailed discussions with them about that or not. |
7 | Q. Were you aware that they were also at some point providing |
8 | interviews to the HBO people -- members of his family? |
9 | A. Yes. |
10 | Q. Did that cause you to believe one way or another that they |
11 | were supportive of the HBO project -- his family members? |
12 | A. I think the fact that they were cooperating with Bruce and |
13 | Joe that they were very supportive of the idea. |
14 | Q. To your knowledge, was there any privileged information |
15 | that was released during any of the interviews you conducted |
16 | with HBO -- information that was confidences of your client? |
17 | A. When he was not there? |
18 | Q. Correct. |
19 | A. No, sir. |
20 | Q. Is there anything that was released during the filming |
21 | sessions that in the context it was released that you felt in |
22 | any way jeopardized your client's right to a fair trial? |
23 | A. No. And I think some of the material was favorable and |
24 | enhanced his right to a fair trial. |
25 | Q. After the trial was over, do you know if Mr. Echols granted |
|
556
|
1 | interviews to people other than HBO? |
2 | A. Yes, sir. He granted interviews to several TV reporters, |
3 | reporters from other -- ah, from newspapers. There were several |
4 | of these interviews that we learned about after they happened. |
5 | Q. Did you know the details if there was money exchanged for |
6 | those interviews? |
7 | A. I don't know if there was any money exchanged on those or |
8 | not. |
9 | Q. Did he seek your permission or advice before making the |
10 | decision to provide interviews to those sources? |
11 | A. At one time -- and I don't remember the date -- we got wind |
12 | that he was going to grant an interview, and I think Scott and |
13 | drove down to death row and talked to him about it, and at that |
14 | time we tried to talk him out of giving an interview at that |
15 | particular time. |
16 | Q. Did he listen to your advice? |
17 | A. I don't remember. I know he's given several, many we were |
18 | not aware of until after they were given. |
19 | Q. Was it your impression that Damien felt that the HBO |
20 | documentary might benefit him some way other than just |
21 | financially? |
22 | A. Yes. |
23 | Q. Further his -- spread the word about his situation, |
24 | so-to-speak? |
25 | A. Yes, sir. |
|
557
|
1 | Q. Based on what you've seen and viewed, has that happened? |
2 | A. Yes, I think it's happened. |
3 | Q. Do you think as a result of this HBO movie, that he has |
4 | noted defense counsel from the State of Texas? |
5 | A. I think the fact that the movie has been made and counsel |
6 | has seen this movie -- I think that's helped his cause, I think |
7 | the fact that we have several individuals from out of state that |
8 | are here that have gotten interested in his case. I think some |
9 | of them have a "Free the West Memphis Three" Web site that they |
10 | have developed on the Internet. I think that all has been |
11 | favorable to him. |
12 | Q. Are you aware that there's a Damien Echols -- I don't know |
13 | if it is called a defense fund but a fund where you can send |
14 | donations to help support his efforts? |
15 | A. I believe it's phrased, "Support Fund." I have nothing to |
16 | do with that fund. |
17 | Q. But you know that one exists? |
18 | A. Yes. |
19 | Q. Do you attribute the fact that it exists because of the |
20 | notoriety he's received as a result of the HBO documentary? |
21 | A. Yes, sir. |
22 | Q. What downsides or negatives have you seen as a result of |
23 | the HBO documentary -- detrimental impact on Mr. Echols as a |
24 | result of the decision to enter into that agreement? |
25 | A. I'm not aware of any negative things that have happened as |
|
558
|
1 | a result of the agreement and of the project itself. |
2 | The main issue we had was, do we want cameras in the |
3 | courtroom or not in the courtroom. Once we made the decision, |
4 | let's allow cameras in the courtroom, then we wanted -- there |
5 | wasn't any less -- there wasn't any greater harm having the HBO |
6 | filming while the regular television stations were in here |
7 | filming. |
8 | I'm always concerned about even like today where there's |
9 | been a ruling to keep the cameras out of the courtroom, once |
10 | people leave the back entrance to the courtroom and leave the |
11 | entrance to the courthouse itself, individuals that are involved |
12 | are pounced on by the media. |
13 | I think we had a control of the media and also of the HBO |
14 | individuals by having them in the courtroom, allowing the |
15 | reporters in the courtroom, allowing them -- I think everybody |
16 | took off the audio feed and also took the pictures, and by |
17 | having the media in the courtroom as well as HBO during the |
18 | trial, was a benefit to Mr. Echols. |
19 | Q. Was he consulted before the decision was made to agree to |
20 | allow cameras in the courtroom? |
21 | A. Yes, sir. |
22 | Q. Did he agree with it? |
25 | A. Yes, sir. |
24 | Q. Was he advised of the pros and cons? |
25 | A. Yes, sir. We discussed that with him. |
|
559
|
1 | Q. You mentioned -- and we spoke yesterday afternoon - and |
2 | you mentioned that you received daily a videotape of what had |
3 | gone on during that day's trial proceedings? |
4 | A. Yes, sir. |
5 | Q. Somebody provided you a videotape that contained that day's |
6 | proceedings in court? |
7 | A. Sometimes we wouldn't get those until at the end of the |
8 | week. Because the camera was in here filming the entire twenty |
9 | days of the trial at all times -- excluding the voir dire. The |
10 | voir dire was not televised. But as far as all the testimony, |
11 | the motions, the arguments, opening statements, closing, all of |
12 | that was filmed. There was a complete videotaping of the entire |
13 | trial. |
14 | Q. For purposes of the record, in our jurisdiction no matter |
15 | how efficient and hardworking the court reporter is, it still |
16 | may be weeks if not months before we receive a transcript, |
17 | correct? |
18 | A. That's correct. |
19 | Q. As a result of the cameras being in the courtroom, you had |
20 | access to a daily -- a nearly daily -- complete record of what |
21 | had gone on at the trial? |
22 | A. Right. Both of the videotape and being able to go watch |
23 | the five o'clock, six o'clock and ten o'clock news reports to |
24 | see what the reporters said who had covered the trial on that |
25 | day's proceedings. |
|
560
|
1 | There would be things that we thought were real important |
2 | points, and we'd turn on the news, and the reporters would |
3 | report something completely different. Because the reporters |
4 | obviously are looking at it in a different way than we are, |
5 | we're trying to relate to 12 nonlawyers in the jury, there are |
6 | things that because of that we would try to emphasize the next |
7 | day in dealing with particular witnesses or putting on witnesses |
8 | or not asking certain areas because of the fact that it was |
9 | being televised. |
10 | Q. You used those videotapes in preparation for future days in |
11 | the courtroom in that case? |
12 | A. Yes. |
13 | Q. Without cameras in the courtroom, that would have been |
14 | something that wouldn't have been available to you? |
15 | A. That's correct. |
16 | Q. In fact, you took advantage of that when the prosecution |
17 | wasn't even aware of it, correct? |
18 | A. That's correct. |
19 | Q. All the money that was received in the trust account as a |
20 | result of Mr. Echols' contract with Creative Thinking -- that |
21 | money was used to reimburse you and Mr. Davidson for costs |
22 | expended, correct? |
23 | A. Either used to reimburse us or to be paid directly to |
24 | individuals associated with the defense. |
25 | Q. These were all people that had either provided expert |
|
561
|
1 | assistance or some benefit during the course of preparation or |
2 | the trial itself? |
3 | A. That's correct. |
4 | Q. All in behalf of Mr. Echols in his effort to beat the |
5 | charges? |
6 | A. Yes, sir. |
7 | Q. Now, in your preparation for trial in this case, did you -- |
8 | you said that you used some forms that you kind of -- plagarized |
9 | is a bad word but all attorneys do -- you had used a form that |
10 | somebody else had used for a motion that we see in Exhibit 31? |
11 | A. Yes, sir. |
12 | Q. Did you also contact the defense -- the capital defense |
13 | counsel in Little Rock for some assistance? |
14 | A. I had contacted the Death Penalty Resources Center. |
15 | Q. When would that have been? |
16 | A. I initially contacted them sometime June, July or August. |
17 | There's been a set of kind of standard capital murder death |
18 | penalty motions, and I think the ones I had were outdated. So I |
19 | had contacted -- I wanted to get a current, up-to-date set. |
20 | Q. Explain to us what the Death Penalty Resources Center in |
21 | Little Rock is. |
22 | A. Although the funding has been cut down, at the time the |
23 | Death Penalty Resources Center was designed to provide direct |
24 | representation and also consulting with death row inmates on |
25 | Rule 37 petitions like we have here -- the ineffective |
|
562
|
1 | assistance of counsel claims -- and in the federal habeas corpus |
2 | level either at the District Court, the Eighth Circuit level or |
3 | the U.S. Supreme Court |
4 | Q. At this time you were depending on them to give you some |
5 | updated forms so when you filed motions and things, you had the |
6 | most updated forms to go by? |
7 | A. Yes, sir. |
8 | Q. And so you could file the standard motions that most |
9 | attorneys file in a death penalty case? |
10 | A. Yes, sir. |
11 | Q. Who did you contact so you would be able to make these |
12 | filings? |
13 | A. One of the individuals I contacted was A1 Schay. |
14 | Q. The attorney for Mr. Echols here? |
15 | A. Yes, sir. |
16 | Q. He's one of the individuals who provided information and |
17 | forms for you to use in your representation of Mr. Echols? |
18 | A. Yes, sir. |
19 | Q. I guess coming from that source and from the Criminal |
20 | Defense Resource Center in Little Rock, you felt like you could |
21 | rely and depend on those as good forms and proper forms to be |
22 | used in the defense case? |
23 | A. Yes, sir. |
24 | Q. And you filed some of these motions on forms that he sent |
25 | you? |
|
563
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1 | A. Yes, we filed some and didn't file others. |
2 | Q. He was aware that you were handling this case, and he was a |
3 | consultant with that organization at that time? |
4 | A. He was -- and the only reason I'm a little hesitant - at |
5 | some point the funding of the organization was cut. I think at |
6 | the time he was still a salaried employee of the organization at |
7 | that time. |
8 | Q. Back for just a minute to the HBO thing, Sinofsky and |
9 | Berlinger -- the two guys from Creative Thinking who were |
10 | producing the documentary -- you had a lot of personal contact |
11 | with them during the months preceding the trial and during the |
12 | trial, correct? |
13 | A. Yes, sir. |
14 | Q. Did they seem sympathetic toward your position or your |
15 | client's position in this case, or did you have an impression? |
16 | A. I think their opinion changed over the -- from when we |
17 | initially dealt with them throughout the entire project. I |
18 | think initially probably they were looking at this being a cult |
19 | killing, the exploitative nature of that, and I think that they |
20 | were not as concerned about whether or not the defendants were |
21 | guilty. But I think as the project developed, I think that they |
22 | began to have some questions as to their guilt. |
23 | Q. When you viewed the movie for the first time, did you |
24 | perceive it as for the most part favorable to your client? |
25 | A. Overall, yes, sir. |
|
564
|
1 | Q. Did that seem to be the reaction you received from the |
2 | public? |
3 | A. Most -- a majority of the public I think it was favorable. |
4 | There was some negative but -- |
5 | Q. Did that seem to be consistent with how you interpreted Mr. |
6 | Berlinger and Mr. Sinofsky's views and attitudes about your |
7 | client's case? |
8 | MR. MALLETT: Excuse me, your Honor. Is Mr. |
9 | Berlinger or Mr. Sinofsky still here? |
10 | THE COURT: Yes. |
11 | MR. MALLETT: I'm going to have to reinvoke the |
12 | rule as to him because the state's opening up a line |
13 | of inquiry that we were foreclosed from questioning on |
14 | earlier. So I would reinvoke the rule as to this line |
15 | of inquiry. |
16 | (MR. SINOFSKY LEAVING THE COURTROOM) |
17 | THE COURT: Are you getting close to a place |
18 | where we can take a break? |
19 | MR. DAVIS: Yes, sir. |
20 | THE COURT: All right, let s take a ten minute |
21 | recess. |
22 | (RECESS) |
23 | (RETURN TO OPEN COURT) |
24 | BY MR. DAVIS: |
25 | Q. One other question on the HBO slash Creative Thinking deal, |
|
565
|
1 | and I will move on to something else. |
2 | Was there ever an interview conducted by any of the |
3 | representatives of Creative Thinking with your client where |
4 | there was an interview format that you were not present during |
5 | the filming? |
6 | A. No, sir. |
7 | Q. If there were any questions that were asked that you didn't |
8 | think were appropriate or that you thought might be detrimental, |
9 | then you had an opportunity to object or advise your client not |
10 | to answer, correct? |
11 | A. That's correct. |
12 | Q. Let me move over to the topic of change of venue slash |
13 | request for continuance. Did you file a change of venue motion |
14 | in this case? |
15 | A. Originally? |
16 | Q. (Nodding head) |
17 | A. I'm sure we did. |
18 | Q. I'm trying to recall -- and I don't have the transcript |
19 | before me -- but it seemed like somebody filed one and the other |
20 | parties joined in or something of that sort. I was trying to |
21 | remember -- do you know which person filed for change of venues? |
22 | A. Greg Crow and Dan Stidham filed a lengthy, detailed change |
23 | of venue motion. They had demographics I think from the Memphis |
24 | TV stations and the Little Rock TV stations and newspaper |
25 | coverage areas and newspaper clippings similar to the clippings |
|
566
|
1 | that Mr. Mallett introduced earlier. That was all attached to |
2 | his original motion. |
3 | We may have filed a rather -- I know our motion wasn't as |
4 | extensive and detailed as their motion. At the time we had the |
5 | initial arguments concerning change of venue, at that time the |
6 | decision had not been made officially to sever the trials so we |
7 | were all -- Mr. Baldwin's attorneys, Misskelley's attorneys and |
8 | Echols' attorneys -- were all present in court at the same time, |
9 | and many times one of us would make the objection and the other |
10 | one would join in without repeating the detailed information to |
11 | support that objection. |
12 | Q. In terms of when the cases were set for trial -- the dates |
13 | that were selected in January of '94 and February of '94 -- how |
14 | long had your client been incarcerated by that point in time? |
15 | A. By that point -- he was arrested June 3rd or 5th - so he |
16 | had been incarcerated that whole time -- seven months -- January |
17 | 1st he would have been in jail about seven months. |
18 | Q. And under Arkansas law a defendant has a right to be |
19 | released if not tried within nine months of his incarceration, |
20 | correct? |
21 | A. Yes, sir, that's correct. |
22 | Q. Within one year the case can be dismissed for speedy trial, |
23 | but you can't incarcerate someone for more than nine months |
24 | without bringing them to trial, correct? |
25 | A. Unless there's continuances, yes, sir. |
|
567
|
1 | Q. And so to continue this case, you would have had to -- for |
2 | six months or seven months or eight months or whatever -- you |
3 | would have had to leave your client in jail beyond the period |
4 | which is normally required by law, correct? |
5 | A. That's correct. |
6 | Q. So there's a consideration -- do we go to trial at this |
7 | point in time thinking we can attain an acquittal and get him |
8 | out of jail, or do we leave him in jail for an additional time |
9 | period and hope that has a beneficial effect. Is that what |
10 | you're looking at? |
11 | A. Yes, sir. |
12 | Q. In terms of strategy and trial decision, what did you |
13 | ultimately decide to do? |
14 | A. We decided to have the trial and not make any other |
15 | objections or continuance motions when the trial was set. |
16 | Q. What was your client's attitude in terms of getting the |
17 | case to trial and getting it in front of the jury? |
18 | A. I believe his attitude was that he was ready to go ahead |
19 | and go to trial on this. |
20 | Q. Tell me if it came up or if you know of your personal |
21 | knowledge or whatever as to what his receptiveness of the |
22 | thought of remaining in jail for six to eight to ten months -- |
23 | maybe a year -- awaiting trial back in January or February of |
24 | '94 was? |
25 | A. I think he would have opposed remaining in jail pursuant to |
|
568
|
1 | some type of continuance on actually trying his case, |
2 | Q. Do you know if that was ever discussed with him or not? |
3 | A. I think we may have discussed that in general terms. I |
4 | don't specifically remember on a definite date discussing that |
5 | topic with him, but I'm sure that we had because after the |
6 | Misskelley trial, then we kind of regrouped and we discussed -- |
7 | I went to the Misskelley trial every day taking notes and |
8 | preparing for our trial. At some point after that, I'm sure we |
9 | talked with Mr. Echols and kicked around the idea about do we |
10 | want to continue it, or are we ready to go ahead and try it. |
11 | Q. Was it your belief that to delay it would not cause any |
12 | real reduction in any impact made by the media? |
13 | A. I think the media imprint was already there. That by |
14 | continuing it for a month or six months or a year, it wouldn't |
15 | have died down. It may even have increased to a certain extent |
16 | We did have the Misskelley trial that had just been tried, |
17 | but there was evidence that came in in Misskelley's trial that |
18 | was not coming in in our trial. Our nature of our defense was |
19 | different than his. As far as the Misskelley defense witnesses, |
20 | some of them were the same, but a substantial number were not. |
21 | We knew that the state had other witnesses that they were gonna |
22 | put forth at our trial so we were prepared to try it when we |
23 | did. |
24 | Q. And for the benefit of the record, the Misskelley |
25 | prosecution was centered completely around his confession, |
|
569
|
1 | correct? |
2 | A. Yes, sir. |
3 | Q. And that confession was the basis for the cases being |
4 | severed between Misskelley, Baldwin and Echols because that |
5 | confession is not admissible against Echols or Baldwin, correct? |
6 | A. That's correct. |
7 | Q. So you knew going in that that confession which had been |
8 | the centerpiece of the state's case against Misskelley was not |
9 | going to be used against your client? |
10 | A. That's correct. |
11 | Q. Knowing that and knowing other factors, you made a decision |
12 | to proceed at that time that strategically had its advantages? |
13 | A. Yes, sir. |
14 | Q. Admittedly, there were pros and cons to it, correct? |
15 | A. That's correct. |
16 | Q. And was it your client's desire to go ahead and get that |
17 | trial -- get it over with and proceed to trial and have his jury |
18 | trial and get it ever with? |
19 | A. As far as I knew, yes, sir. |
20 | Q. A change of venue was granted out of Crittenden County, |
21 | right? |
22 | A. Yes, sir. |
23 | Q. What was your understanding of the law at the time the |
24 | motion for change of venue was requested and the topic came up |
25 | of changing venue outside the Second Judicial District? |
|
570
|
1 | A. The law at the time was that you could only move a change |
2 | of venue within a judicial district, and there was one exception |
3 | out of Sebastian County where they had, I believe, moved the |
4 | case to a contiguous county, Crawford County Well, it may not |
5 | have been Crawford County. It may have been another county |
6 | right next to Sebastian County, but that's the only case that |
7 | I'm aware of on the books that they've ever allowed a change of |
8 | venue outside a judicial district. |
9 | Q. In that particular setting -- that one exception to the law |
10 | that said that the change of venue occurred within the district |
11 | -- that was in a district that had two counties, right? |
12 | A. Yes, sir. |
13 | Q. And in that situation the Court approved a change of venue |
14 | outside the district but to a county that adjoined one of the |
15 | two counties in the district? |
16 | A. Yes, sir. |
17 | Q. The Second Judicial District is the largest geographical |
18 | district in the State of Arkansas, correct? |
19 | A. That's correct. |
20 | Q. To move it to a county that would be outside this district |
21 | but adjacent to one of the counties, what options would you |
22 | have? |
23 | A. You would have Randolph County – Pocahontas. You would |
24 | have Lawrence County -- Walnut Ridge, county seat. You would |
25 | have Jackson County in Newport. I think Woodruff County may be |
|
571
|
1 | -- Augusta -- may be connected in the middle there. And then |
2 | south of Poinsett you've got Cross County -- Wynne -- and I |
3 | believe some of the counties that are next to Crittenden County |
4 | towards the bottom it may -- Saint Francis may touch there and |
5 | possibly a corner of Phillips County, but that's primarily the |
6 | counties that surround our district. |
7 | Q. And all of those counties would be served by the same media |
8 | sources that were covering and providing news coverage and TV |
9 | coverage in Craighead County and Crittenden County also, |
10 | correct? |
11 | A. Correct. |
12 | Q. Those counties that you've described -- Randolph, Lawrence, |
13 | Woodruff, Saint Francis -- those counties that surround the |
14 | Second Judicial District -- are those for the most part low |
15 | populated, primarily rural areas? |
16 | A. They're all smaller than Craighead County, Mississippi |
17 | County and Crittenden County. |
18 | Q. In terms of your experience with jury panels in the Second |
19 | District and also your experience as a public defender in the |
20 | Third Judicial District, how do jury panels in Craighead County |
21 | usually compare with jury panels outside of Craighead County? |
22 | A. In Craighead County there's a better chance of getting a |
23 | more liberal jury. There are more jurors selected from the |
24 | initial pool. There are even after the first batch that come |
25 | and try to be excused -- the ones left over -- there's generally |
|
572
|
1 | a higher educated group. Because of ASU, the college being |
2 | here, we have a lot of jurors -- five or ten percent with direct |
3 | connections with ASU. So there's a more educated group. |
4 | Because of Jonesboro being larger, you get more jurors coming |
5 | from -- not homegrown jurors -- but moving in from ether states |
6 | and other parts of Arkansas. And there's a lot of advantages |
7 | from a defense standpoint of a jury makeup based on these |
8 | factors. |
9 | Q. Were all those things considered by you in making a |
10 | determination not to move for a second change of venue or raise |
11 | that issue again? |
12 | A. Yes, sir. The initial makeup of the Jonesboro jury is |
13 | something we definitely looked at. |
14 | Q. Was that -- was a decision not to seek a second change of |
15 | venue -- was it also as jury selection wore on and you started |
16 | seeing the people that were selected, did that have an impact on |
17 | your decision? |
18 | A. As far as we did not seek a change of venue during the |
19 | middle of the trial or jury selection? |
20 | Q. Right. |
21 | A. Yeah. We didn't see any reason to make any further |
22 | objection to quash the jury panel and ask for a change of venue |
23 | after we started selecting the jury. |
24 | Q. Did you feel there was an advantage for you as a local |
25 | attorney -- went to school here, grew up here, familiar with the |
|
593
|
1 | people in the community to some extent -- did you feel that that |
2 | provided an advantage to you and your client in selecting a jury |
3 | in this community? |
4 | A. That was certainly one factor that I looked at, but I have |
5 | picked juries in Randolph County. I've picked juries in |
6 | Lawrence County, Jackson County. I've done 'em in Mississippi |
7 | County. I've done 'em in Greene County. I've done 'em in |
8 | Poinsett County. And based on the type of case that we had, I |
9 | thought of the entire district Jonesboro was the best place for |
10 | us to have our trial. |
11 | Q. And all of those were factors that entered into your |
12 | decision not to raise a second change of venue motion? |
13 | A. Yes, sir. |
14 | MR. DAVIS: Pass the witness. |
15 | REDIRECT EXAMINATION |
16 | BY MR. HALLETT: |
17 | Q. Mr. Price, I'm curious to know whether in contemplation of |
18 | your examination continuing in these proceedings from those that |
19 | were on May 5th, as we say in Texas Cinco de Mayo, you had an |
20 | opportunity to confer with Mr. Davis in person or on the |
21 | telephone about the questions he anticipated asking? |
22 | A. I have spoken to Mr. Davis a few times between May 5th and |
23 | yesterday. |
24 | Q. With reference to the testimony you anticipated eliciting |
25 | in the state's examination? |
|
574
|
1 | A. Yes, sir. |
2 | Q. Let me begin then by addressing first the last question |
3 | that you reviewed with Mr. Davis, which has to do with the |
4 | authority of his Honor, Judge Burnett, or any judge presiding in |
5 | a felony trial court when confronted with problems with |
6 | publicity and venue. |
7 | I am looking at a transcript of the hearing that I believe |
8 | occurred in Marion, Arkansas, on August 4, 1993. I'm in the |
9 | record. Now I'm looking at a page Bates stamped 000864 and page |
10 | 88 at the top. |
11 | You were present in these proceedings along with other |
12 | counsel for Mr. Baldwin and Mr. Misskelley, and in this |
13 | proceeding the Court on page 000863 grants a change of venue to |
14 | Craighead County. |
15 | Let me see if we can agree to the substance of what Judge |
16 | Burnett had to say at that time. Did Judge Burnett say as |
17 | follows: "All right, gentlemen. This is a classic balancing |
18 | act of the public's right to know and the freedom of press under |
19 | the First Amendment and the defendant's right to a fair trial |
20 | and due process." Have I got that right? |
21 | A. Yes, sir. |
22 | Q. Let's cut down to the bottom of page 863. "In changing the |
23 | venue to Craighead County I'm specifically ruling that the |
24 | Arkansas Constitution, Article II, Section 10, is |
25 | constitutional. That the provision that provides for a change |
|
575
|
1 | of venue within the judicial circuit or outside the judicial |
2 | circuit is constitutional and that in any event the individual's |
3 | right to a just and fair trial would supersede or prevail over |
4 | any statutory or constitutional provision to the contrary. |
5 | There is case law within Arkansas that justifies and supports |
6 | the moving of the case outside the judicial circuit should it be |
7 | necessary." |
8 | Is that what Judge Burnett told all of you? |
9 | A. Yes, sir. |
10 | Q. Moving on, does Judge Burnett also say, "If we're unable |
11 | for some reason to find an unbiased and unprejudiced jury in |
12 | Craighead County, the largest county in the judicial circuit, |
13 | then I would be inclined to grant a change of venue to wherever |
14 | might be necessary." |
15 | He does say that, does he not? |
16 | A. Yes, sir. |
17 | Q. And at that time he enters the change of venue to Craighead |
18 | County. Have I got it right? |
19 | A. You've got it right. |
20 | Q. And Mr. Fogleman, who is I believe John Fogleman, now the |
21 | Honorable John Fogleman, a Circuit Judge, but at that time |
22 | prosecuting here, said to the judge, "But you're specifically |
23 | ruling as far as their motion to move it outside the district is |
24 | they've not carried their burden." That's what Mr. Fogleman |
25 | says? |
|
576
|
1 | A. That's correct. |
2 | Q. The Court responds, "That's correct. But I'm also ruling |
3 | that the Court has the power and the jurisdiction to do just |
4 | exactly that if it becomes necessary." Correct? |
5 | A. Correct. |
6 | Q. So the judge then goes on to conclude, "I guess the way you |
7 | could sum it up, I'm saying I have the power and the authority |
8 | -- and there is precedent to justify it other than the Swindler |
9 | case and in addition to the Swindler case -- and I'm also ruling |
10 | that a single change of venue, even though the statute says only |
11 | one, doesn't necessarily hold in the interest of due process and |
12 | a just and fair forum." Right? |
13 | A. Right. |
14 | Q. Hypothetically -- hypothetically, if Judge Burnett was |
15 | wrong in making that decision, in making those findings, it |
16 | certainly wouldn't inure to the detriment of the defendant if a |
17 | trial was illegally held in some district outside the circuit. |
18 | If Judge Burnett was wrong in telling you folks that if you had |
19 | some problems, he could move it to another circuit, if he made a |
20 | mistake, that wouldn't injure a defendant, would it? |
21 | A. You mean if he changed the venue outside of the district? |
22 | Q. If the Arkansas Supreme Court got the case on appeal from a |
23 | conviction and said he made a mistake, it certainly wouldn't |
24 | hurt the defendant, would it? |
25 | A. Speaking hypothetically, I don't know. The Arkansas |
|
577
|
1 | Supreme Court may have ruled that is an illegal and improper |
2 | change of venue. |
3 | Q. If they did that after the defendant was convicted, it |
4 | wouldn't hurt the defendant, would it? |
5 | A. It shouldn't. |
6 | Q. So Judge Burnett made it perfectly clear to you that his |
7 | jurisprudence, his knowledge of the law, his review not only of |
8 | one case but of all cases, was that the due process rights of |
9 | the defendant were more important than a technical reading of a |
10 | clause in Arkansas law and that he could move the case where he |
11 | needed to to conduct a fair trial. That's what he said to you |
12 | in those proceedings, right? |
13 | A. Yes, sir. |
14 | Q. But you didn't move for a change of venue in part because |
15 | you thought he didn't have the authority to do it if I |
16 | understood your testimony. |
17 | A. That was one of the reasons. |
18 | Q. I was listening very, very carefully to the conversation |
19 | you were having with Mr. Davis on the subject of the defendant's |
20 | position on whether to start his trial two weeks after Mr. |
21 | Misskelley had been convicted and found guilty of murder. |
22 | And I believe I can quote you directly with this. "As far |
23 | as I know" -- that's the quotation -- "As far as I know" -- I |
24 | believe you added -- "he wanted to go to trial and get it over |
25 | with," or words to that effect. |
|
578
|
1 | The decision whether to go to trial in a potentially |
2 | hostile environment in a situation where there had been |
3 | tremendous publicity about a co-defendant who had been convicted |
4 | at the time when -- as we already have in the record -- everyone |
5 | knew that Mr. Misskelley had made a statement against penal |
6 | interest that the murders had been committed as charged. That |
7 | would be -- the decision whether to rush to trial two weeks |
8 | later -- that would be a real critical decision for a lawyer and |
9 | a defendant to make, would it not? |
10 | A. I would say it would be a critical decision, yes |
11 | Q. Not something to be done casually but done by, I suppose, |
12 | at the end of the day -- a decision made by -- if competent -- |
13 | presuming competency and that's not an issue here - a fully |
14 | informed defendant after being fully advised by his attorney |
15 | what his attorney perceived were the pros and cons of making |
16 | that decision. Don't you think that's a pretty important |
17 | decision? |
18 | A. I think it's an important decision. |
19 | Q. Is it the kind of thing that you believe an attorney would |
20 | counsel carefully with his client so that there would be a |
21 | discussion, a careful discussion about the pros and cons, before |
22 | the client as we had, ah, was allowed to make the call? |
23 | A. I don't think that's the client's call. I think bottom |
24 | line that's the lawyer's call on whether to go to trial on a |
25 | specific day or not. |
|
579
|
1 | Q. Okay. So the decision then whether to go to trial or move |
2 | for a postponement you understand to be a decision that you the |
3 | lawyer makes? |
4 | A. Yes, sir. |
5 | Q. You have to the best of your ability no release signed by |
6 | Mr. Echols, no statement signed by Mr. Echols, or any detailed |
7 | notes of a conversation that you had with Mr. Echols in which |
8 | you gave Mr. Echols all the information about the peril of going |
9 | to trial immediately two weeks after Misskelley and going to |
10 | trial here in Jonesboro right on schedule. You don't have any |
11 | documents to confirm what information Mr. Echols had when you |
12 | made that decision. |
13 | A. No, sir. But by saying I made the decision, that decision |
14 | was made with Mr. Davidson, Mr. Lax and myself as well. |
15 | Q. You were lead counsel? |
16 | A. Yes, sir. |
17 | Q. And you believe it's the lawyer's decision? |
18 | A. Yes, sir. |
19 | Q. And ultimately the responsibility falls on your shoulders? |
20 | A. Yes, sir. |
21 | Q. I had to reinvoke the rule relating to Mr. Sinofsky because |
22 | of what I understood to be questions asked by Mr. Davis. I |
23 | believe in response to his questions I heard you say that as |
24 | time passed, it appeared to you that Mr. Sinofsky and Mr |
25 | Berlinger became concerned that the defendant may well be |
|
580
|
1 | innocent? |
2 | A. Yes, sir. |
3 | Q. Did they ever tell you that they intended in their film to |
4 | manifest, show or portray their opinion or belief that he may |
5 | well be innocent? |
6 | A. I don't believe they ever told me how they were gonna |
7 | portray any of the individuals in their documentary. |
8 | Q. Did they ever express an opinion to you in the film that |
9 | they're now making that it is their intention to show that the |
10 | defendant is innocent and some other person is guilty? |
11 | A. I believe we had some conversations with them about |
12 | questioning the guilt of my client and the involvement of |
13 | individuals kind of in general terms. |
14 | Q. Let me go then to an area that was touched on twice in your |
15 | presentation with Mr. Davis having to do with your preparation |
16 | you made for the case. |
17 | I understand that you called the Death Penalty Resource |
18 | Center in Little Rock to ensure that your motions file was |
19 | up-to-date. Is that correct? |
20 | A. Yes, sir. |
21 | Q. Is that what is found in evidence as Exhibit 31 -- the very |
22 | thorough and proper motion for assistance that was not filed? |
23 | A. I think so. I don't specifically recall exactly where I |
24 | got -- |
25 | MR. DAVIS: If I may make an objection to that |
|
581
|
1 | He referred to it as a "thorough and proper motion." |
2 | MR. MALLETT: I will withdraw that. |
3 | BY MR. MALLETT: |
4 | Q. Is that Exhibit 31? |
5 | A. I think so. I'm not a hundred percent sure. I've been to |
6 | other seminars. I've gotten material from other individuals. |
7 | There's a strong likelihood that I got it from there. |
8 | Q. You turned to what you believed was the best place you |
9 | could go to get professional assistance in being sure that the |
10 | motion practice that you conducted in this death penalty case |
11 | involving a triple homicide was up-to-date, current, thorough, |
12 | proper and professional? |
13 | A. I wouldn't say it was the best place to go. It was one of |
14 | the places to go. |
15 | Q. You went to more than one place. You probably consulted |
16 | lawyers in other cases, lawyers in other law firms? |
17 | A. Yes, sir. |
18 | Q. One of the things that you were provided was a motion that |
19 | became Exhibit 31? |
20 | A. Yes, sir. |
21 | Q. Drafted with the best help you could find using your |
22 | resources? |
23 | A. Yes, sir. |
24 | Q. Whether it was the resources center or some other source. |
25 | A. Yes, sir. |
|
582
|
1 | Q. That's the motion that you decided you would not file -- |
2 | A. Yes, sir. |
3 | Q. -- because you were getting money from HBO? |
4 | A. Yes, sir. |
5 | Q. Did anyone you spoke to at the Death Penalty Resources |
6 | Center tell you, don't file motions. You can get your money |
7 | from making a movie or entering into a movie contract. |
8 | A. I don't believe I discussed anything about the HBO contract |
9 | with anyone from the Death Penalty Resources Center. |
10 | Q. At the beginning of your presentation your credentials were |
11 | reviewed by Mr. Davis, and we learned that you had attended |
12 | seminars conducted for public defenders in Arkansas, correct? |
13 | A. Yes, sir. |
14 | Q. Did you ever attend a seminar where you were taught that |
15 | negotiating for a movie contract was superior to motion practice |
16 | and letting the Court order you relief as needed? |
17 | A. No, sir, |
18 | Q. When you attended the National Criminal Defense College, |
19 | did anyone say, in lieu of motion practice it's good to |
20 | negotiate movie contracts? |
21 | A. No, sir. |
22 | Q. In connection with reading the form you were provided that |
23 | became Exhibit 31, did you become aware that a lawyer is |
24 | constitutionally entitled to make an ex parte application for |
25 | adequate funding to a judge in a capital case? |
|
583
|
1 | A. That's what is contained in the motion. |
2 | Q. And you believe that's true, don't you? |
3 | A. That a lawyer is -- repeat the question. |
4 | Q. That a lawyer may make an application to a judge without |
5 | serving a copy on the state telling the judge what kind of help |
6 | you need when the lawyer is representing a poor person. |
7 | A. A lawyer may make the motion. |
8 | Q. That's correct. And there's nothing in any of the cases |
9 | that you cited in Exhibit 31 to suggest that going to a third |
10 | party commercial enterprise for funding is a superior means of |
11 | preparing a defense, is there? |
12 | A. No, sir, but there was no mechanism to pay any money. |
13 | Q. That is, you believed that you had nowhere to go? |
14 | A. There was no mechanism to get any money. After the case |
15 | was over with, when we asked to be paid a fee and we asked to be |
16 | paid for the expert we used, we didn't get the money. We had to |
17 | wait a year and a half to get money because Crittenden County |
18 | and the State of Arkansas fought about who was to pay us, and we |
19 | had to wait a year and a half. So even if we would have filed |
20 | the motion in November of '93, there was no mechanism to give us |
21 | money at that time. |
22 | Q. That is how you were forced to enter the movie contract? |
23 | A. Yes, sir. Well, I wouldn't say forced, but that was one of |
24 | the reasons. I'm not saying we were forced into a movie |
25 | contract, but that is one of the reasons that we did the movie |
|
584
|
1 | contract. |
2 | Q. It's why you were motivated. |
3 | A. That was one of the reasons we were motivated. |
4 | Q. Did you ever do any sort of work with your co-counsel, Mr. |
5 | Davidson, your investigator, Mr. Lax, in which you tried to put |
6 | a pencil to paper to do an estimate of what it would cost you to |
7 | prepare a full defense for Mr. Echols? |
8 | A. What do you mean by that? |
9 | Q. I mean, did you ever do a tally, an estimate, an |
10 | approximation, any sort of documentation where you in effect |
11 | sought to collect information and added up what it would cost. |
12 | For example -- |
13 | A. Our fees? |
14 | Q. Setting aside fees. Only costs for investigation and |
15 | expert witnesses, the types of people you've testified that you |
16 | wanted at the time you were drafting your motion which is |
17 | Exhibit 31. |
18 | A. We had -- there were times that we had discussions about, |
19 | do we need experts and where we could get experts and how much |
20 | in general certain experts cost. I don't know if we actually |
21 | had a tally or proposed list. |
22 | Q. Can you tell us what figure you came up with? |
23 | A. I don't think we came up with a total figure. |
24 | Q. A figure within some range? |
25 | A. At some point it was determined that Chris Sperry would |
|
585
|
1 | charge around five hundred dollars. |
2 | We did some checking with a Medical Examiner from Dallas, |
3 | Texas, to see if he would be available. I don't recall what |
4 | time in the case preparation -- but we had thought about using |
5 | other experts in that area. |
6 | Q. I guess what I want to know is whether in November when you |
7 | decided that you would not file Exhibit 31, you had a reasonable |
8 | basis to believe that an 18-year-old boy could be adequately |
9 | defended in a triple homicide case for expenses totaling |
10 | seventy-five hundred dollars? |
11 | A. What do you mean by seventy-five hundred? You mean Mr. |
12 | Lax's fee for investigation? |
13 | Q. No, I'm referring to the amount of money you accepted from |
14 | Home Box Office. I'm wondering if you arrived at that figure by |
15 | determining what your needs were. |
16 | A. HBO offered us seventy-five hundred. That's how they came |
17 | up with that figure. |
18 | Q. As we discussed earlier, you just accepted your first |
19 | offer? |
20 | A. Right. Sure did. |
21 | Q. With respect to what you learned from Doctor Sperry, who |
22 | was sent various materials, my understanding is that the core |
23 | interest in sending him materials was to see if he would support |
24 | or dispute Doctor Peretti's estimate as to the time of death, |
25 | correct? |
|
586
|
1 | A. Time of death was one of the factors we asked him to look |
2 | into, but there were other areas. We wanted him to look at the |
3 | autopsy and come up with conclusions. |
4 | Q. As to the time of death -- and his estimate was sometime |
5 | between 6:00 p.m. and 10:00 p.m. Am I characterizing the |
6 | testimony correctly? |
7 | A. Yes, sir. |
8 | Q. That is not a fact that was either consistent or |
9 | inconsistent with any theory of defense for Mr. Echols at that |
10 | time, correct? That was an issue relating to Mr. Baldwin's |
11 | defense. |
12 | A. That was an issue that Mr. Baldwin's lawyers relied on |
13 | heavily. That was not an issue we relied on directly although |
14 | we could gain an advantage from it if the case was -- time of |
15 | death was 2:00 to 4:00 a.m. |
16 | Q. That was really a Baldwin issue, not an Echols issue at |
17 | least in terms of a central point? |
18 | A. That was a central point that they had argued during their |
19 | trial. That was an issue that if they had succeeded with, it |
20 | would have helped us. |
21 | Q. Another issue that might be important to you was whether |
22 | under the facts and circumstances as reviewed by a forensic |
23 | pathologist, it appeared that the motivation for the homicides |
24 | was some sort of aberrant sexual behavior as distinguished from |
25 | some sort of satanic worship behavior. That's a distinction |
|
587
|
1 | that you might be very interested in, right? |
2 | A. Yes, sir. |
3 | Q. And if Mr. Sperry's opinion was that this was not the |
4 | result of some sort of satanic ritual but some sort of gross |
5 | aberrant sexual behavior, that is something that would be very |
6 | important to your theory of the case? |
7 | A. I don't recall what his opinion was concerning that issue. |
8 | Q. You didn't do more with Mr. Sperry than send him materials |
9 | and allow Mr. Lax to have a conference with him to review those |
10 | materials? |
11 | A. I believe that's the extent of it. |
12 | Q. There was a discussion between you and Mr. Davis about the |
13 | subject of trace evidence and whether the defense might benefit |
14 | in some way by a trace evidence expert. Do you recall that |
15 | testimony? |
16 | A. Yes, sir. |
17 | Q. As I recall your comments, there was some indication from |
18 | the prosecution that there were fibers, either green fibers or |
19 | red fibers, found at the scene, correct? |
20 | A. I believe there were both. There were some red cotton |
21 | fibers and some green --- nylon or rayon -- another type of |
22 | fiber. |
23 | Q. Your point was that these fibers didn't seem to be very |
24 | important because they're of a common type that could come from |
25 | any possible article of clothing? |
|
588
|
1 | A. Yes, sir. |
2 | Q. And the state did not offer them -- back up. When the |
3 | state offered them, the state offered testimony that they were |
4 | microscopically similar to articles of clothing associated with |
5 | the defendant, correct? |
6 | A. Yes, sir. |
7 | Q. Did you ever consult with an expert to find out about the |
8 | phrase, "microscopically similar," and whether that has any |
9 | definite meaning? |
10 | A. We went down to the Crime Lab and talked to Lisa |
11 | Sakevicius. We talked with her. She was the one that testified |
12 | to that. I looked at a book on either criminology -- I think |
13 | there's a Richard Saferstein [phonetic] that had written a book |
14 | on trace evidence, and I think I reviewed some of his materials. |
15 | I may have talked to another lawyer about trace evidence. |
16 | Q. So you now recall that you were concerned about this |
17 | concept of fibers being microscopically similar and whether that |
18 | phrase had such a degree of precision that it would give any |
19 | guidance at all to a jury in arriving at a decision at what |
20 | happened. You were concerned about that, weren't you? |
21 | A. At one point I was concerned with it, but we had a good |
22 | explanation for that, I felt. |
23 | Q. So you made a conscious choice that you would not find an |
24 | expert not employed by the prosecution or identified with the |
25 | prosecution to determine whether some testimony might dispute |
|
589
|
1 | the prosecution's witness on that point? |
2 | A. That's correct. |
3 | Q. You, of course, are not an expert in the microscopic |
4 | examination of fibers? |
5 | A. That's correct. |
6 | Q. Were you limited, in your judgment, by lack of funds to |
7 | retain an expert in the microscopic examination of fibers? |
8 | A. I don't think at the time we needed an expert for fiber |
9 | examination, I knew that the state had -- I believe had a |
10 | witness from Alabama, John Kilbourne I think, and he was a state |
11 | witness. And I knew that Mr. Baldwin's lawyers were using the |
12 | gentleman from -- Charlie somebody from Texas -- I think Dallas |
13 | -- who was their fiber expert. We didn't think it was |
14 | necessary. |
15 | Q. Was funding a consideration in the decision that you would |
16 | not seek an expert on trace evidence or fiber analysis? |
17 | A. Was it ever a consideration? |
18 | Q. Was it one of the issues before you when you decided you |
19 | would not retain that kind of expert? |
20 | A. We may have thought about funding at one point. I think |
21 | ultimately funding was not an issue. We didn't feel we needed |
22 | an expert to deal with it. |
23 | Q. On the subject of odontology, as I understand it, you had a |
24 | trial -- I think perhaps Judge Burnett was the presiding judge |
25 | -- |
|
590
|
1 | A. Sure was. |
2 | Q. And Mr. Davis -- ah, did you go to high school with Mr. |
3 | Davis? |
4 | A. Yes, I did. |
5 | Q. Mr. Davis used the testimony of an odontologist, right? |
6 | A. Right. |
7 | Q. Your client was convicted -- |
8 | A. Right. |
9 | Q. -- and the Arkansas Supreme Court confirmed the conviction. |
10 | The client had to go suffer the punishment. |
11 | A. Right. |
12 | Q. It was your opinion after losing that case, that Mr. |
13 | Davis's witness was, I think you said, kind of a quack? |
14 | A. Yes, sir. |
15 | Q. And you later learned that that witness, a Doctor West, had |
16 | had some sort of problems with the American Academy of |
17 | Odontology, or whatever it's called, right? |
18 | A. During the time of the trial, we did a videotaped |
19 | deposition of him a week or two before the trial. During the |
20 | trial itself, we got some information either from Mississippi or |
21 | Louisiana that he was having some type of problems. There was |
22 | nothing final until later after the trial. |
23 | Q. So you knew there was some sort of licensing or regulating |
24 | or professional association for odontologists? |
25 | A. Yes, sir. |
|
591
|
1 | Q. You knew that it was a field of scientific inquiry |
2 | admissible in courts of law? |
3 | A. Yes, sir. |
4 | Q. In the State of Arkansas? |
5 | A. Yes, sir. |
6 | Q. That it could be persuasive to a jury? |
7 | A. Could be. |
8 | Q. Might be persuasive to your friend and colleague -- and in |
9 | this case adversary -- Mr. Brent Davis -- because he had been |
10 | interested in using the testimony of a forensic odontologist in |
11 | an earlier case? |
12 | A. Yes, sir. |
13 | Q. You made the decision that you would not look for a |
14 | forensic odontologist who does not have problems with the |
15 | American Academy of Odontology because the problems with Doctor |
16 | West in the case that you lost left kind of a bad taste in your |
17 | mouth? |
18 | A. I don't recall any bite mark evidence in Mr. Echols' case. |
19 | Q. Did you direct Mr. Lax, Mr. Davidson or anyone to go to a |
20 | forensic pathologist, a dentist, a forensic odontologist and ask |
21 | if they would, review the evidence with specific view to see |
22 | whether there was the kind of bite mark evidence that had been |
23 | used against you in the case that you had where your client was |
24 | convicted? |
25 | A. No, sir. |
|
592
|
1 | Q. Was finances -- were finances one of the considerations in |
2 | not making that inquiry? |
3 | A. On that inquiry, no, because I don't recall any bite mark |
4 | evidence. |
5 | Q. Do you consider that you're qualified to know if there is |
6 | bite mark evidence or not bite mark evidence? |
7 | A. I'm -- as a lawyer, I'm qualified to look at evidence. |
8 | There was one reference in a report that Officer Ridge had sent |
9 | a question to Doctor Griffis about, is there any significance to |
10 | injuries on the -- and I don't know if it was the left side or |
11 | the right side of the face. The purpose that Griffis was being |
12 | asked that question had something to do with whether the right |
13 | side or the left side had some kind of satanic cult meaning, but |
14 | based on that, I don't recall there being any evidence about any |
15 | bite marks. |
16 | Q. What you mean is that no one told you there's bite mark |
17 | evidence. That's one thing you're saying? |
18 | A. Right. |
19 | Q. And that you never saw any evidence that one or more |
20 | victims was bitten in connection with dying, right? |
21 | A. Right. |
22 | Q. And you never sought to go beyond your own expertise and |
23 | the information that you learned during discovery to get a real |
24 | expert to take a look at it. |
25 | A. That's correct. In the Verdict case that I had bite mark |
|
593
|
1 | evidence in, I believe there was a reference on the autopsy |
2 | about a bite mark. In our case I don't recall any findings or |
3 | any suggestions from the pathologist about there being any bite |
4 | marks. |
5 | Q. You have testified that you have never used anyone to do -- |
6 | it's been referred to here as criminal profiling. Do you recall |
7 | that testimony? |
8 | A. Yes, sir. |
9 | Q. Have you ever used a person who by their experience and |
10 | training believes they can attempt to reconstruct -- or at least |
11 | do a hypothetical reconstruction of a crime scene? |
12 | A. No, sir. I have never used a crime scene |
13 | reconstructionist. |
14 | Q. Are you generally aware that there are people out there who |
15 | as part of their occupation and professional activities do crime |
16 | scene reconstruction? |
17 | A. I have some vague recollection. I probably have read an |
18 | article or two about crime scene reconstruction. |
19 | Q. On the related subject of profiling, as I understand your |
20 | testimony, you know of no case where a presiding judge in an |
21 | Arkansas court has allowed a person to come and testify and say, |
22 | I am a profiler. Let me tell you my opinions. |
23 | A. Yes, sir, that's correct. |
24 | Q. Was there conversation about seeking the assistance of a |
25 | profiler during the investigation before the trial? |
|
594
|
1 | A. During one of the conversations that we had concerning |
2 | preparation for the trial, we may have had -- have thrown out |
3 | idea about a profiler, but there's certainly nothing we |
4 | discussed at any length at all. I'm not even sure if we |
5 | discussed a profiler. |
6 | Q. And your judgment on the matter was restricted to whether a |
7 | person could testify or not. Is that correct? |
8 | A. Well, I mean, that was one factor. During our trial, |
9 | during the middle of the trial, we received information about an |
10 | FBI profiler that I think had sent information to the West |
11 | Memphis Police Department concerning, you need to ask a certain |
12 | set of questions -- I believe it was 22 or 25 questions -- to |
13 | all possible suspects. My number may be way off, but there were |
14 | three or four hundred people that the West Memphis Police |
15 | Department interviewed, and they were asked a set of questions |
16 | that were developed by the FBI profiler. |
17 | I have known of cases where an FBI profiler was not used at |
18 | trial and his purported testimony was proffered, and that |
19 | proffer went back to a jury, and that tainted the jury, and they |
20 | had a mistrial and reversal. |
21 | Q. The defendant got a new trial? |
22 | A. The defendant got a new trial. |
23 | Q. It wasn't held against the defendant that the Court |
24 | admitted a profiler's testimony or proffers |
25 | A. Right. It was a different judge, different court reporter. |
|
595
|
1 | There was a mix-up between the court reporter and the bailiff |
2 | about it. |
3 | Q. Oh, it was one of those clerical things where something not |
4 | in evidence got into the jury room. |
5 | A. It didn't involve anybody in this courtroom. |
6 | Q. Did you understand that many times the preparation of a |
7 | case can be assisted by a person like Mr. Lax who doesn't |
8 | testify but helps lawyers to decide where to go and investigate? |
9 | A. Yes, sir. |
10 | Q. Your efforts to find someone to help you decide where to go |
11 | and investigate pretty much ended when you retained Mr. Lax or |
12 | agreed ho have Mr. Lax cooperate and help you on the case. You |
13 | didn't go beyond Mr. Lax to crime scene reconstruction, to |
14 | profilers, to any other persons he may have suggested? |
15 | A. We didn't go to any crime scene reconstructionists or |
16 | profilers. There may be some witnesses -- I know in the area of |
17 | mitigation we were discussing with his office -- I don't think |
18 | they were aware of Doctor Moneypenny. So I sought some outside |
19 | assistance in some witnesses, but primarily we relied on Mr. |
20 | Lax. |
21 | Q. Was it Mr. Lax that you relied on to help you decide how to |
22 | develop evidence that there were other persons that may have |
23 | committed this offense? |
24 | A. Mr. Lax and Mr. Davidson and myself. |
25 | Q. Was that the purpose of calling Mr. Byers to the witness |
|
596
|
1 | stand – Mr. Mark Byers -- the purpose in calling him was to in |
2 | some way insinuate to the jury that he may have committed the |
3 | offense? |
4 | A. Yes, sir. |
5 | Q. Did you know when you called him to the stand that he had a |
6 | prior finding of guilty for committing the offense of |
7 | terroristic threatening? Is that a fact that you knew? |
8 | A. I knew quite a bit of background about Mr. Byers. I |
9 | believe I was aware of a terroristic threatening charge. |
10 | Q. It was not a question that you brought up when you examined |
11 | him, however, was it? |
12 | A. You will have to look at the transcripts |
13 | MR. DAVIS: Your Honor, is this redirect or is |
14 | this -- |
15 | THE COURT: I don't know. |
16 | MR. MALLETT: I was on the subject of developing |
17 | evidence for alternate killers which is a subject that |
18 | was brought up on the state's -- |
19 | THE COURT: Go ahead. |
20 | BY MR. MALLETT: |
21 | Q. Did you feel that -- withdraw that. In connection with the |
22 | testimony by Doctor Moneypenny, did you sit down with him and |
23 | review with him the records he had been shown before his |
24 | testimony so that you would knew the basis for his opinions? |
25 | A. We had a copy of those records. During the preparation |
|
597
|
1 | with Doctor Moneypenny, we reviewed them with him some. I |
2 | believe we had a copy that we looked at and reviewed. |
3 | Q. Did you review those records? |
4 | A. Yes. |
5 | Q. Did you review all of those records? |
6 | A. Yes, sir. |
7 | Q. So that when he was approaching the witness stand to |
8 | testify, carrying the records, you well knew the materials in |
9 | there including the statements attributed to the defendant in |
10 | the various reports? |
11 | A. Yes, sir. |
12 | Q. Did the state have access to those materials under your |
13 | Arkansas Rules of Discovery before his testimony? |
14 | A. I don't believe the state had access to those prior to his |
15 | testimony. |
16 | Q. Did you discuss with the defendant the possible effect of |
17 | Doctor Moneypenny testifying and then being questioned by the |
18 | prosecution about the materials on which he was basing his |
19 | opinion including references to Ted Bundy and Charles Manson? |
20 | Did you discuss with the defendant the possible consequences of |
21 | putting that information before the jury? |
22 | A. I'm sure we had general discussions with him about the |
23 | purpose of mitigation and the facts that those records - that |
24 | Doctor Moneypenny relied on those records -- and why those |
25 | records were gonna be introduced at trial. |
|
598
|
1 | Q. Are you now sort of telling us what your reason -- probably |
2 | did, should have done, hope you did. Is that what you mean, or |
3 | are you telling me you have a specific recollection? Did you |
4 | say, Mr. Echols, I want you to know if we put Moneypenny on the |
5 | stand, the state's gonna ask him if you ever compared yourself |
6 | to Charles Manson and Ted Bundy. Do you have a specific |
7 | recollection? |
8 | A. Specifically, that topic -- I know that we talked to Mr. |
9 | Echols about the purpose of mitigation and the purpose of |
10 | mitigation being this is the one time at a trial where a lawyer |
11 | purposely puts on bad sounding information in order to get a |
12 | mitigating factor, and that's why we did it. |
13 | Q. And the mitigating factor which you were putting in |
14 | evidence was? |
15 | A. His mental health state at the time of the offenses. |
16 | Q. What was his mental health state at the time of the |
17 | offenses according to Doctor Moneypenny? |
18 | A. The exact -- I don't specifically recall -- you're asking |
19 | what his testimony was? |
20 | Q. I'm really wanting to know how it was mitigating for the |
21 | jury to have the materials available to them where the defendant |
22 | has allegedly compared himself to persons accused of multiple |
23 | homicides? |
24 | A. There's two mitigating circumstances under Arkansas law of |
25 | which both those mitigating circumstances the jury found in our |
|
599
|
1 | favor, and that's the reason we introduced those records, and |
2 | that's the reason Doctor Moneypenny testified. |
3 | Q. What is the mitigating circumstance to Which Doctor |
4 | Moneypenny's testimony was essential? |
5 | A. The mental health of the defendant at the time of the |
6 | homicides. |
7 | Q. Do you recall what he said about the mental health of the |
8 | defendant at the time of the homicides? |
9 | A. I don't specifically recall his exact conclusion, but I do |
10 | know by him testifying -- and the jury checked that off on the |
11 | verdict form. So we got what we wanted. |
12 | Q. I believe your testimony has been that you, Val Price, |
13 | never got any money -- not a penny from HBO from the movie. Is |
14 | that your testimony? |
15 | A. Personally, that's correct. |
16 | Q. What you got was a reimbursement for your personal expenses |
17 | from the money held in trust by Mr. Davidson? |
18 | A. Personal expenses or business expenses, yes, sir. |
19 | Q. So you didn't get personal, money. You got a reimbursement |
20 | for business expenses from the money held in trust? |
21 | A. Yes, sir. |
22 | Q. You know that immediately after Mr. Echols was assessed the |
23 | death penalty, he was taken away to death row at the |
24 | penitentiary, correct? |
25 | A. Yes, sir. |
|
600
|
1 | Q. On the 25th of March of 1994 when the money arrived and you |
2 | and Mr. Davidson reimbursed yourself for business expenses, you |
3 | were separated from Mr. Echols by some hundred plus miles and |
4 | several hours, correct? |
5 | A. Yes, sir. |
6 | Q. So when the money came from Mr. Davidson to be held in |
7 | trust and was divided between Mr. Price and Mr. Davidson to |
8 | reimburse themselves for business expenses, there was no |
9 | communication whatsoever with Mr. Echols at that time? |
10 | A. That's correct. |
11 | Q. In the brief you filed in the Arkansas Supreme Court in |
12 | Number 94-928, in the last paragraph printed on page 64, which |
13 | is also the last argument paragraph in the brief, it says, |
14 | "Representation for over two years at the trial level without |
15 | pay has resulted in a constitutional violation of Echols' right |
16 | to counsel, due process and equal protection. Echols' capital |
17 | murder conviction and death sentence should be reversed and |
18 | remanded or dismissed." |
19 | That's the argument you made to the Arkansas Supreme Court? |
20 | A. Yes, sir. |
21 | Q. You signed that brief? |
22 | A. Yes, sir. |
23 | Q. You believed that argument when you submitted it? |
24 | A. Yes, sir. |
25 | MR. MALLETT: Thank you. |
|
601
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1 | MR. DAVIS: No further questions. |
2 | (WITNESS EXCUSED) |
3 | MR. MALLETT: Your Honor, can I address some |
4 | housekeeping matters at the bench? |
5 | THE COURT: Yes, sir. |
6 | (THE FOLLOWING CONFERENCE TOOK PLACE AT THE |
7 | BENCH) |
8 | MR. MALLETT: I had a conversation with a lawyer |
9 | who knows more than I do, and I want to ask the state |
10 | if they'll agree to a stipulation and if the Court |
11 | would join me in a brief stipulation or accept a brief |
12 | stipulation? |
13 | THE COURT: Yes. |
14 | MR. MALLETT: The stipulation is the Court has |
15 | accepted the exhibit which is the video movie, |
16 | "Paradise Lost" now sealed in a box and accepts it as |
17 | evidence in the case just as if the entire movie was |
18 | played in the courtroom for the reason that the Court |
19 | has seen the movie and if reference is made to the |
20 | movie in briefs or arguments of counsel, counsel may |
21 | direct the Court to certain parts of the movie, and |
22 | the Court will then have the opportunity to review |
23 | those parts of the movie that may be in dispute. If |
24 | we may have that stipulation, then it will not be |
25 | necessary in my judgment to play the movie in order |
|
602
|
1 | for the evidence to be received in court. |
2 | THE COURT: I'm the trier of fact in this thing |
3 | as well, and I have seen the movie, and I have a copy |
4 | of it. |
5 | MR. MALLETT: I thank you, and that's our |
6 | stipulation so that I'll not be waiving -- |
7 | THE COURT: All right. It may be so stipulated. |
8 | MR. DAVIS: There is one other thing, your Honor. |
9 | If I remember correctly, their third amended Rule 37 |
10 | petition that was filed yesterday morning -- I kind of |
11 | got the impression from some of the Court's ruling |
12 | yesterday afternoon that that amendment wasn't going |
13 | to be allowed, but the Court did say yesterday morning |
14 | that it would make a decision on that sometime after |
15 | lunch yesterday and -- |
16 | THE COURT: We never did bring it back up. Mr. |
17 | Mallett was gonna bring it back up at 1:30, and it was |
18 | never mentioned further so I haven't done anything on |
19 | it. I'm assuming you've had an opportunity to review |
20 | it and file a counter pleading if you care to. |
21 | MR. MALLETT: I would like to ask the Court to |
22 | reserve its decision. I understand that the Court, as |
23 | I read Rule 37, for good cause may allow an amendment |
24 | of the petition until the Court makes a decision on |
25 | the merits. So I would like the Court to carry that |
|
603
|
1 | at this time -- |
2 | THE COURT: I'm more concerned about the |
3 | timeliness of it and the lack of opportunity for the |
4 | state to respond -- |
5 | MR. DAVIS: Your Honor, there's also -- |
6 | THE COURT: -- not the contents of it, really. |
7 | MR. DAVIS: If we may have the opportunity to |
8 | provide a very brief brief to the Court on the issue, |
9 | there's some case law which is directly on point where |
10 | people keep amending their Rule 37 once the hearing |
11 | starts. And in this case since there's been a year to |
12 | file the Rule 37 and it's been amended -- this would |
13 | be the third amendment -- and this one is occurring |
14 | after the hearing is already well into the meat of the |
15 | hearing. We would object to it, and I think we can |
16 | show the Court some case law to base that on, and it |
17 | doesn't deny the defendant his due process rights. |
18 | THE COURT: I'll give you an opportunity to give |
19 | me a brief on that subject, and I will reserve my |
20 | ruling on it. |
21 | MR. MALLETT: Thank you very much, your Honor. |
22 | THE COURT: It's twenty minutes to four, and I've |
23 | got to drive to Hot Springs. Do you have a witness |
24 | you can put on in -- |
25 | MR. MALLETT: I do not have a short witness. |
|
604
|
1 | I've already told my expert he's gonna have to come |
2 | back. I'm not sure what the Court's pleasure is. If |
3 | the Court insists, of course, we can push ahead and |
4 | begin his qualifications -- |
5 | THE COURT: I've got two days I can give you |
6 | later -- |
7 | MR. MALLETT: Should we retrieve our calendars, |
8 | or should we go in chambers and talk about it briefly? |
9 | THE COURT: All right. We can just step in the |
10 | back. |
11 | The record should reflect that the Court is |
12 | conducting a scheduling conference with the attorneys, |
13 | and the defendant Damien Echols waived his presence at |
14 | this hearing. |
15 | (COURT AND COUNSEL CONFERRING OFF THE RECORD, AT |
16 | WHICH TIME THE HEARING IS CONTINUED UNTIL SEPTEMBER 2, 1998, AT |
17 | MARION, ARKANSAS) |
18 | (ADJOURNMENT) |
I, Barbara J. Fisher, Official Court Reporter within and
when the above-entitled cause was heard.
3rd day of August, 1998.
BARBARA J. FISHER
BARBARA J. FISHER