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JUNE 10, 1998


VS. NO. CR-93-450A


JUNE 10, 1998

               P.O. BOX 491
               JONESBORO, AR 72403
               TODD NEWTON
               STATE CAPITOL
               LITTLE ROCK, AR 72201

                   ATTORNEY AT LAW
                   217 WEST SECOND ST.
                   LITTLE ROCK, AR 72201
                   EDWARD MALLETT
                   MELISSA MARTIN
                   ATTORNEYS AT LAW
                   55 WAUGH DRIVE, SUITE 900
                   HOUSTON, TX 77007


P.O. BOX 521
PARAGOULD, AR 72451-0521


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.
20 having been first duly sworn to speak the truth, the whole truth
21 and nothing but the truth then testified as follows:
24 Q. Please introduce yourself to Judge Burnett.
25 A. My name is Bruce Sinofsky.


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?


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.


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


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


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


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


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


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


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.
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


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,
25 Q. You have a copy of it?


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


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?"


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


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


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?


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.


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
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.


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.


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


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


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.
25 Q. Well in advance of shooting, were you paying money and


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.


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


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


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


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.


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.
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


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.


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.


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.
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


1 interviewing them in the presence of other media. !
2 think that's uncontested.
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.


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


1 another tack if you want to. You've been pretty good
2 at that
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?


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.
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
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.


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.
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.


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.
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


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.


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.


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.
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.


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.
25 THE COURT: All right, it's your turn


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


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?
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.


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.
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


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?


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


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.
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?


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


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?


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


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


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.
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


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.


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.
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


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


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?


1 A. No.
2 MR. DAVIS: Pass the witness, your Honor.
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


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.


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


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.
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.
25 A. Again I have to say that the money that was given to the


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


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


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.
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


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)
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


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


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


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.
17 having been previously duly sworn to speak the truth, the whole
18 truth and nothing but the truth, then testified as follows:
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.


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


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?


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


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.


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


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?


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


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.


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.


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


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.


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


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?


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


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


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


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


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


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'


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.


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.


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


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


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


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


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.


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.
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


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.


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


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


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


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


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


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


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?


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.


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


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.


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?


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


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?


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


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


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,


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."


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


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


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.


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


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.


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


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


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.


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


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.


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.


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


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


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?


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.


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.
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.
25 Q. One other question on the HBO slash Creative Thinking deal,


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


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.


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


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,


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?


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


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


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


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.
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?


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


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?


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


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.


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.


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


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


1 He referred to it as a "thorough and proper motion."
2 MR. MALLETT: I will withdraw that.
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.


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?


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


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


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?


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


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?


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


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 --


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.


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.


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


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?


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.


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


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.
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


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.


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


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.


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.


1 MR. DAVIS: No further questions.
3 MR. MALLETT: Your Honor, can I address some
4 housekeeping matters at the bench?
5 THE COURT: Yes, sir.
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


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


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.


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.

I, Barbara J. Fisher, Official Court Reporter within and
for the Second Judicial Circuit of the State of Arkansas, duly
qualified, appointed and acting, do hereby certify that the
foregoing pages of printed matter contain a true, correct and
complete transcript of my stenographic notes taken in this cause
in the Circuit Court of Craighead County, Arkansas,
when the above-entitled cause was heard.
IN WITNESS WHEREOF, I have hereunto set my hand on this
3rd day of August, 1998.

May 1998

June 1998

October 1998

March 1999

May 5, 1998 June 9, 1998 October 26, 1998 March 18, 1999
  June 10, 1998 October 27, 1998 March 19, 1999
    October 28, 1998