IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
STATE OF ARKANSAS PLAINTIFF
VS. NO. CR-93-450A
DAMIEN ECHOLS DEFENDANT
HEARING ON RULE 37 PETITION
JUNE 9, 1998
FOR THE STATE: BRENT DAVIS
P.O. BOX 491
JONESBORO, AR 72403
ASST. ATTORNEY GENERAL
LITTLE ROCK, AR 72201
FOR THE DEFENDANT: ALVIN SCHAY
ATTORNEY AT LAW
217 WEST SECOND ST.
LITTLE ROCK, AR 72201
ATTORNEYS AT LAW
55 WAUGH DRIVE, SUITE 900
HOUSTON, TX 77007
BEFORE THE HONORABLE: DAVID BURNETT, CIRCUIT JUDGE
BARBARA J. FISHER, C.C.R.
OFFICIAL COURT REPORTER
P.O. BOX 521
PARAGOULD, AR 72451-0521
INDEX (VOLUME II AND III)
MOTION AND RULING 221-239
WITNESS FOR PETITIONER
Examination by Mr. Mallett 239-426
ARGUMENT AND RULING 426-435
WITNESSES FOR PETITIONER
Examination by Mr. Mallett 437-478
Examination by Mr. Davis 478-493
Examination by Mr. Mallett 493-503
Examination by Mr. Davis 503-573
Examination by Mr. Mallett 573-600
COLLOQUY BETWEEN COURT AND COUNSEL 601-604
REPORTER CERTIFICATE 634
31 320, 331
1 JONESBORO, ARKANSAS, JUNE 9, 1998, AT 9:30 A.M.
2 THE COURT: All right call your next witness.
3 MR. MALLETT: Before we proceed with testimony,
4 can I start with some preliminary matters?
5 THE COURT: Yes, sir.
6 MR. MALLETT: Housekeeping. We have two
7 witnesses who we had some problems with. They're
8 doctors -- one a Ph.D type doctor and one an
9 odontologist doctor whose affidavits we have
10 submitted. They were not available for cross
11 examination and confrontation in the previous
13 My-- Mr. Neal Haskell, the entomologist can be
14 here tomorrow at tremendous personal inconvenience
15 and expense. The forensic odontologist is still
16 determining whether he can rearrange his schedule to
17 be here and has not committed to that. I have had a
18 discussion about this problem with the state.
19 understand that Rule 37 proceedings are to some
20 extent civil in nature as well as criminal in nature.
21 And in a civil case the Court can entertain -- for
22 what weight the Court wishes to give it -- an
23 evidentiary deposition.
24 I have discussed with Mr. Davis the possibility
25 of -- at a time convenient to him at an early time so
1 that this matter not be delayed -- taking an
2 evidentiary deposition in a place convenient to the
3 state in Jonesboro or if he should find himself in an
4 airport city such as Little Rock or Memphis, one of
5 those places would be somewhat more convenient for
7 MR. DAVIS can speak for himself, of course, but
8 I think that in short he has indicated that it's
9 possible that he might have witness problems or at
10 least witnesses that are not just sitting around all
11 day wondering when their time will come. And I think
12 that Mr. Davis will not disagree real vigorously with
13 the suggestion that we allow the Court to let us
14 close the testimonial evidence today and I think
15 tomorrow morning probably as to our side and then
16 augment the record with video depositions of the two
17 witnesses that we would take at a time and place on
18 which we could agree and I would like to know if the
19 Court would consider --
20 THE COURT: I don't have any problem with that.
21 Is the state withdrawing its objection to -- to -- to
22 the so-called experts' testimony?
23 MR. DAVIS: Your Honor, there are a number of
24 things that the experts may testify to that the state
25 will object to on the same grounds that it has
1 objected previously in terms of the relevance of that
2 testimony in a Rule 37 hearing. And there are some
3 things that experts of that nature the state feels
4 can testify to in order -- that would be appropriate
5 for a Rule 37 -- and if they desire to take the
6 depositions of those persons we'll be -- make
7 ourselves available and object to those portions we
8 don't think are relevant.
9 It is also the state’s position -- depending
10 upon what evidence they put on today -- and they've
11 indicated that their expert on profiling from
12 California or Connecticut is here to testify today --
13 depending upon what evidence comes in here and in
14 these depositions, we may need to call in other experts
16 THE COURT: I don't nave any problem with you
17 all taking an evidentiary deposition if that's what
18 you're telling you each want to do. That'll be fine.
19 I don't have any problem with it.
20 MR. MALLETT: So, with that in mind --
21 THE COURT: I do have a problem though, however,
22 with -- with this hearing being turned into a hearing
23 on newly discovered evidence. That's a subject
24 matter for a Writ of Error Coram Nobis and not Rule
1 MR. MALLETT: I understand it's a part of our
2 burden to show that the evidence that we propose was
3 in existence and available and also to successfully
4 argue to the fact finder that reasonably diligent
5 attorneys would have conducted an investigation --
6 THE COURT: That’s a subject matter that is
7 appropriate to this hearing.
8 MR. MALLETT: And I believe that we have to --
9 that there are really two prongs. One is any
10 inadequacy on the part of the lawyers -- whether
11 arising from interest or conflict or some other
12 source -- and the second is harm. The contents of a
13 deposition, of course, would go to the harm prong --
14 THE COURT: All right.
15 MR. MALLETT: -- and we would want both to be
16 submitted at the same time.
17 THE COURT: I'll certainly listen to it for
18 those purposes.
19 MR. MALLETT: Remaining and unresolved is
20 whether the Court will assist us by directing the
21 authorities who manage the penitentiary to allow us
22 to have bite impressions of the three defendants who
23 are incarcerated. And it's my impression that we are
24 to use this deposition to try to carry that argument
25 also. That is, we would be having the odontologist
1 deposed without the benefit of the bite impressions
2 to make the case for why in his judgment they should
3 have been taken in 1993. So that's -- and I say that
4 now so that if later when you get the deposition and
5 you say, well, you didn't go into the whole thing.
6 I'll say, well, we were making our case with the bite
7 impressions because the state had resisted us.
8 If the state withdraws that resistance, then we
9 wouldn't be in the danger of doing it piecemeal.
10 MR. DAVIS: Your Honor, one thing that's come up
11 in regard to that. I asked -- I asked Dan Stidham
12 yesterday, I said, "Out of curiosity, why -- why
13 didn't you just -- why don't you send somebody down
14 to the Department of Corrections and take bite mark
15 impressions if you want ‘em?”
16 And Dan's response was, "Well, we can do that,
17 but we would rather that the state person -- that
18 under state authority that this be done."
19 MR. MALLETT: Well, that's Mr. Stidham. I wish
20 -- I wasn't asked. My answer would be that I have
21 reason to believe -- and my belief may be in error ---
22 but I have reason to believe that if a civilian
23 lawyer showed up with a non-attorney, non-paralegal
24 civilian who wanted to take a bite impression, that
25 we would be resisted at the gate, but I'm happy to
1 take a look at it and get turned down.
2 THE COURT: Yeah, if you're not objecting to it,
3 I'll enter an Order to have it done. If you're
4 objecting to it then --
5 MR. DAVIS: No, your Honor. What I'm saying is
6 that they have never tried to do it on their own and
7 they're asking for the Court's approval of something
8 that they've never even attempted to, and Dan
9 indicated he didn't think it would be a problem
10 getting it done. He just wanted some sort of
11 official state stamp put on it before they did it.
12 And I don't know why the state is required to do
13 something that they've never even made an effort to
15 MR. MALLETT: Well, that--
16 MR. DAVIS: Number one --
17 MR. MALLETT: That may have translated in my
18 mind into prison officials don't let criminal defense
19 lawyers tell 'em how to run their prisons. They're
20 not --- in my experience --
21 THE COURT: They don't let judges tell 'em how
22 to run it either.
23 MR. MALLETT: That was why I believed -- a
24 reasonable belief based on the limited experience I
25 have in other places that we would be --
1 THE COURT: Are you objecting to -- to the bite
2 mark impressions being given?
3 MR. DAVIS: Yes, your Honor, at this time
4 because I -- and the basis is still the same in terms
5 of the results of any bite mark impressions tend to
6 -- would only be relevant if you looked at the
7 quality of the representation of counsel back in 1993
8 in hindsight with what we know now. And that's not
9 the test to be used.
10 The only relevance of that will be to determine
11 if there is newly discovered evidence that would
12 affect the right of the defendant to have a new trial
13 which is not a proper subject for this particular
14 proceeding. The forensic odontologist may testify
15 that this looks like a bite mark to me. Based on my
16 experience, a competent attorney would investigate
17 this and would look into this and have experts do
18 comparisons on it. That's fine and dandy but for him
19 to get into the area of making comparisons and saying
20 this is a certain result, then you're talking about
21 getting into subject matter which is not the proper
22 -- proper subject matter £or a Rule 37 hearing.
23 MR. MALLETT: Is the state's position really
24 consistent? That on one hand we can have the test,
25 and on the other hand, he objects to us having the
1 assistance of the Court just in case there is
2 resistance at the front door --
3 THE COURT: I'm gonna allow you to take the bite
4 mark impressions.
5 What degree of attention I'll pay to that
6 evidence, again, might be limited based upon their
7 objection to relevancy for this particular hearing,
8 all right?
9 MR. MALLETT: I’m on notice that the Court would
10 have to see a very good argument for the Court to --
11 THE COURT: Well, I mean, I don't know. You
12 could prepare an Order to -- for assistance or
13 directing that the prison officials cooperate in --
14 in obtaining the -- the bite impressions -- I guess
15 a dentist would do it. I don’t know who would do it.
16 MR. SCHAY: Your Honor, I've spoke with John
17 Bias (phonetic) who's the medical director with the
18 Department of Corrections and he said that all he
19 would need is an order from the Court saying do this,
20 and a dentist can do it.
21 THE COURT: All right.
22 MR. MALLETT: And I think we may have a proposed
23 order --
24 THE COURT: All right.
25 MR. MALLETT: -- here today. If not, we can
1 certainly get one.
2 THE COURT: All right.
3 MR. MALLETT: Out of an abundance of caution and
4 not trying to test the Court's patience, but out of
5 an abundance of caution -- after reading the
6 transcript that Ms. Fisher was so kind to prepare
7 from our previous hearing -- and comparing the
8 testimony being developed to our pleadings and our
9 anticipated evidence, I was very concerned that the
10 -- that there are at least three arguments that we
11 may not have stated with sufficient specificity to
12 really call it to the Court's attention. I believe
13 that these are embraced within the pleadings, but I
14 wouldn't want some reviewing court to criticize me
15 for failure to raise relevant issues in a Rule 37
16 proceeding. As I read the new law, this is our bite
17 at the apple -- at least that seems to be the intent
18 of Congress and the Legislature. So I have drafted a
19 short pleading titled "Motion to Clarify Amended
20 Rule 37 Petition." I've served the state. I know
21 the Court hasn't seen it. I ask leave to file it,
22 and we can take it up at lunch on at some later time
23 after the Court has had a chance to look at it.
24 MR. DAVIS: Your Honor, this is an important
25 matter. When he says he's served the state, I got
1 copies of it maybe twenty minutes ago -- fair?
2 MR. MALLETT: Maybe less.
3 MR. DAVIS: Maybe less. Your Honor, and it
4 raises new allegations in the Rule 37 petition and
5 this -- this is not just a clarification. These are
6 new allegations that they are saying are the basis
7 for Rule 37 relief. We are now one full day into the
8 hearing on this matter, testimony has been taken, and
9 it's like, oh, by the way, we're going to add three
10 more bases for Rule 37 relief twenty minutes before
11 the second day of the hearing is started. It's no
12 big deal, but this way in case we happen to touch on
13 evidence that is important on these three topics,
14 they're included in our petition.
15 Your Honor, they can’t amend their petition and
16 continue to do so and do so with no notice to the
17 state and then expect to be able to put on testimony
18 and evidence regarding these matters for -- and I'm
19 sure their response might be, we won't put on
20 testimony regarding these matters until a later date
21 to give the state time to prepare. But that doesn’t
22 discount the fact that we've already had a day’s
23 worth of testimony in this case in which the state
24 didn't even know these allegations were a part of
25 their contention for Rule 37 relief. That -- he
1 can't amend at this point and serve notice the
2 morning of the second day of hearing and say there's
3 no harm done and that they're acting properly and
5 MR. MALLETT: I think I can show the Court that
6 these issues are incorporated by reference in our
7 petition. I asked the Court to be allowed to do this
8 after the lunch break so the Court would have a
9 chance to look at the document and I would not be
10 getting into any questions on these subjects this
12 THE COURT: All right. We'll do it then. Let
13 me see --- let me see it and see what you're talking
15 MR. MALLETT: (HANDING TO THE COURT) If I may
16 serve it by filing it with Ms. Fisher or to the
18 THE COURT: I have to file it. I'll have the
19 Clerk stamp it. Have you already given -- delivered
20 it to the Clerk?
21 MR. MALLETT: No, your Honor, I have an extra
22 copy of it.
23 THE COURT: All right.
24 MR. MALLETT: Do I give that to the Court or
25 hold it until --
1 THE COURT: Well, when we get a Clerk up here,
2 we'll just file it.
3 MR. DAVIS: Is it my understanding that the
4 Court is still going to determine whether or not
5 these -- these three additional points that they
6 bring up at this point are going to be considered as
7 a part of the Rule 37?
8 THE COURT: Yes, sir. You have a right to
9 respond to it and I -- all I'm doing is allowing him
10 to file it. He could have done that with the Clerk.
11 MR. DAVIS: Your Honor, one other thing is we
12 have a right to have notice prior to them putting on
13 testimony so we can be prepared to address questions
14 and information to potential witnesses -- two of
15 which have already testified and others are expected
16 to be here -- which we were unable to prepare for
17 these allegations today.
18 THE COURT: Well, I -- I understand that. He
19 says he's not gonna bring anything up until we
20 discuss it at 1:30.
21 MR. DAVIS: Well, we spent the last day having o
22 hearing on the Jessie Misskelley Rule 37 so I
23 seriously doubt if he doesn't go into it today.
24 THE COURT: All right, call your first witness.
25 MR. MALLETT: I'm sorry. I have one more thing.
1 This is an issue that makes me most uncomfortable,
2 but again I just have to say something or else may be
3 accused of some abandonment or waiver.
4 For the record -- for the record only and asking
5 the Court not to take this personally. We do want
6 the record to reflect that we're renewing our request
7 that the Judge disqualify and recuse himself --
8 THE COURT: Well --
9 MR. MALLETT: -- for the grounds previously
10 stated in our motion and because we believe that the
11 Arkansas custom and practice as applied prevents due
12 process of law and equal protection under the law
13 because it imposes upon the Court -- who may have
14 appointed lawyers, that did observe the trial, that
15 in compensating the lawyers approved their
16 performance -- the duty of retroactively judging
17 whether they provided an effective assistance of
18 counsel. We think that burdens the Court with an
19 intolerable conflict. It is not a rule the Court
20 created but a practice and custom that the
21 Legislature created. Also --
22 THE COURT: Mr. Mallett, that's been the way
23 it's been for the sixteen years -- or fifteen or so
24 years that I've been a judge: and I've been doing it
25 consistently for that period of time, and I don't
1 have any problem with it.
2 MR. MALLETT: And I know the Court won't take it
4 THE COURT: Well, I'm not taking it personally.
5 I also feel that the presiding judge is the proper
6 authority and person to consider matters involving a
7 Rule 37 petition. And for the record, I did not make
8 the appointment of the attorneys involved in the case.
9 That was done, I believe, by Judge Goodson. But the
10 -- and the way I became involved in the case was with
11 a conference of all judges that had jurisdiction over
12 this matter, and I think we put that in the record
13 previously. But an Order was entered signed by all
14 of the judges assigning that case to me by agreement
15 of all for several reasons.
16 One was the residency of Judge Turner being in
17 West Memphis, and I can't remember what the others
18 were. But it seemed that I was the only one that
19 didn't have any apparent or obvious conflicts to --
20 to try the case at that time. Believe me, it would
21 have suited me fine if someone else had done it, but
22 I'm in it, and I’m on the horse, and I'm gonna ride
23 it. So that issue is dead at this point.
24 MR. MALLETT: We're only renewing an issue
25 presented earlier. We do observe that because the
1 Court has personal recollections, the Court has from
2 time to time made comments stating for the record the
3 Court's recollections of how things happened. For
4 example, how the Court came to be appointed. How
5 it's not true -- as was related through hearsay when
6 Mr. Stidham testified -- that another judge said you
7 wanted the case. And you said, "That's clearly not
9 Or there was a statement that a lawyer was told
10 that he would make -- be paid Forty Dollars per hour
11 and I believe the Court make a statement, "I never
12 said anything like that."
13 There is --
14 THE COURT: What's that got to do --
15 MR. MALLETT: -- a statement that you --
16 THE COURT: What do those have to do with
17 anything though?
18 MR. MALLETT: -- discounted the claims of the
19 lawyers by the amount they got from Home Box Office.
20 When you deliberately set the execution date for May
21 the fifth -- a conscious choice that you made.
22 THE COURT: Yes, sir. What's that got to do
23 with any issue that could be raised legitimately in a
24 Rule 37 petition?
25 MR. MALLETT: Well, as I say, I'm -- I’m walking
1 on eggshells because -- and I hope the Court will
2 understand this is a legal argument and not addressed
3 to you personally and --
4 THE COURT: I understand. From a legal
5 standpoint, what does the fact that I set the
6 execution date on the date that was the anniversary
7 date of the homicides? I've done that in other
8 cases. What -- what is the legal aspect of that
10 MR. MALLETT: Well, since a defendant at the
11 time he's sentenced has a right to not be considered
12 a person subject to a final adjudication until he has
13 had his appeal, it might --
14 THE COURT: Well, all I do is set a date and
15 that date is invariably in as far as I know, in
16 every case been a date that hadn't -- hadn't come
17 about -- hadn't had any significance other than it
18 was set.
19 MR. MALLETT: Some would say that for an elected
20 official to choose the anniversary date as a matter
21 of conscious decision to highlight the date of the
22 offense and the date of execution indicates some
23 personal bias against the defendant or interest in
24 drawing attention to the case and to his judicial
1 While I'm speaking of that in the abstract, I’m
2 only saying that because of the very important office
3 which you hold and which I respect, we are not able
4 to question you about the comments that you make
5 during the course of the proceedings because you are
6 sitting as the presiding judge.
7 You said, for example, that you cut down the
8 hours that the attorneys asked to be paid for. I
9 don't think that means you think they were untrue or
11 THE COURT: Mr. Mallett, what does that have to
12 do with any subject matter of a Rule 37 petition --
13 what I chose to pay the attorneys? You asked me
14 questions and I answered you. I told you, "Yes, I
15 set the amount of compensation.”
16 I think Mr. Stidham testified that he was
17 dissatisfied with his payment. That is solely within
18 the discretion of the Court what compensation is paid
19 to attorneys. I've got a reputation of paying 'em
20 better than they've ever been paid. I'm the one that
21 heard the cases in this state that set the levels of
22 compensation based upon hourly work and not some
23 statutory amount which used to be capped at, I
24 believe, a thousand dollars or three thousand
25 dollars. I don't remember exactly what it was now.
1 But whatever I chose to pay the attorneys doesn't
2 have anything to do with a Rule 37 petition. It has
3 nothing to do with their competence. It has nothing
4 to do with any legitimate subject matter of this
6 MR. MALLETT: Well, if --
7 THE COURT: Now, I mean --
8 MR. MALLETT: -- you're cutting the hours down
9 for which they invoiced the Court; that is, paying
10 them for fewer hours than they said they worked, then
11 I am at a loss for lack of opportunity to understand
12 whether that indicates some dissatisfaction with the
13 truthfulness of the hours, with the quality of the
14 work they did during those hours, and I'm not wanting
15 to examine the Court because you’re the Court and I’m
16 the lawyer. And I'm -- but I'm most important not
17 wanting to abandon the motion so that it could be
18 looked at some proper time by another judge. That's
19 why I say I'm --
20 THE COURT: Well, you know, I'm assuming that
21 you'll appeal this and after the appeal that there'll
22 then be a Writ of Habeas in federal court -- and we
23 all know these things. This is -- we're playing
24 semantic word games here. I'm ready to get on with
1 MR. MALLETT: Of course, it’s always sorry for
2 a lawyer to hear a judge say, he's sure a defense
3 lawyer is going to appeal his decision before the
4 decision is reached.
5 THE COURT: Well, somebody's gonna appeal it,
6 I'm quite confident of that -- whatever the decision
8 MR. MALLETT: I take it the Motion's denied?
9 THE COURT: It was previously.
10 MR. MALLETT: And the ruling is the same?
11 THE COURT: Yes, sir. Until the law of Arkansas
12 changes, I'm gonna stick with what I've been doing.
13 You might be able to change it. I don't know.
14 MR. MALLETT: I believe that when we recessed at
15 the previous hearing, Mr. Val Price was on the stand,
16 and I suppose we should continue with him.
17 THE COURT: Yes, sir, if that's what you're
18 wanting to do.
19 VAL PRICE
20 having been previously duly sworn to speak the truth, the
21 whole truth, and nothing but the truth, further testified
22 as follows:
23 CONTINUED DIRECT EXAMINATION
24 BY MR. MALLETT:
25 Q. I indicated earlier when you were here that Ms. Fisher has.
1 been kind enough to prepare us a transcript of the testimony of
2 the previous hearing. May I inquire whether anyone was
3 courteous enough to make you a copy of it and provide you with
4 a copy?
5 A. Yes, I got a copy yesterday and read it last night.
6 Q. Oh. I'm not trying to trap you here but as -- as we go
7 through this, if you remembered when you were reading it there
8 was something that you misspoke and would like to change, would
9 you please call that to my attention -- that is --
10 A. Sure. I mean -- okay. I don't recall anything offhand.
11 Q. I want to start, if I may, by touching on quickly a few
12 points that you testified to that I'd like to clarify and then
13 we'll go back in the area we were discussing -- which had to do
14 with jury selection -- at the time of our break.
15 We discussed briefly your previous experience in capital
16 murder cases, and we learned that in one case where you had
17 been a court appointed lawyer in a came where the state sought
18 the death penalty and, after some period of trial – some three
19 or four days -- something like that -- the state changed their
20 position and said that --- as I understand it -- if the
21 defendant would acknowledge his guilt, they would abandon their
22 efforts to obtain the death penalty, and I presume the
23 defendant got a life sentence. Is that correct?
24 A. It was two life sentences without parole.
25 Q. Two life sentences without parole?
1 A. There were two deaths --
2 Q. They abandoned the death penalty?
3 A. Yes, sir.
4 Q. Then there was a second case in which you were called in
5 or invited to assist by the public defender in another county
6 and the two of you together tried this case.
7 A. Yes, sir.
8 Q. And I believe that case was tried to a verdict. Is that
10 A. Yeah, that's correct.
11 Q. And the jury heard the evidence both on guilt and on
12 punishment and determined a sentence of life was appropriate.
13 A. Life without parole.
14 Q. And in that case -- I don't have a copy of it here -- I
15 want you to know I've looked at it. It appears to me that
16 after the case was over, you applied for compensation for the
17 time you had invested defending the gentleman, and you were
18 awarded a modest sum. I think it was five thousand dollars,
19 something like that. Does that ring a bell?
20 A. Yeah, it was a modest sum: yes, sir. I was dissatisfied
21 with the amount.
22 Q. And you, in fact, took a -- sought to appeal the payment
23 you were awarded and were first told that you didn't have
24 standing to appeal.
25 A. Right.
1 Q. And then you complained to the Arkansas Supreme Court and
2 said -- and these are all public citations -- the Arkansas
3 Supreme Court on your request for reconsideration said, well,
4 this would leave Mr. Price allegedly wronged without a remedy
5 if he had no standing to appeal and so they reviewed your
7 A. Yes, sir, that's correct.
8 Q. And after reviewing the complaint and giving you standing,
9 they agreed with what the judge had done the first time and
10 didn't give you any more money.
11 A. That's correct.
12 Q. Okay. And, also, you did not appeal the case. You were
13 taken off for purposes of appeal.
14 A. Right. Ramey Hall was the name of the defendant.
15 Q. The Ramey Hall case.
16 A. And then the two appeals -- the two citations dealing with
17 my fee was Price versus State.
18 Q. And, uh --
19 A. It was a Randolph County case.
20 Q. And the Ramey Hall case that you tried in Randolph County,
21 how many murders did that involve? Was that a double murder or
22 double homicide?
23 A. It was a single murder.
24 Q. A single murder. Was that in the course of a robbery, a
25 course of kidnapping or what was the --
1 A. In the course of a robbery. It was a cowboy who allegedly
2 killed somebody and then stole his horse and trailer, and tack
3 and other equestrian type stuff.
4 Q. So when you were contacted by the judge in West Memphis
5 and asked if you could be available for appointment in this
6 case, it was made known to you this had to do with multiple
7 murders and serial murders, and the murders of three eight-
8 year-old boys.
9 A. Yes, sir.
10 Q. That was a murder -- because of the number of victims and
11 age of the victims, and I presume the extent of injuries on the
12 victims -- was a far more horrible, profound significant type
13 of criminal activity than the two cases you had previously been
14 involved with?
15 A. Yes, sir. It was.
16 Q. It was a bad deal. I mean, everybody was upset about it,
18 A. Right.
19 Q. And probably you were upset about it as well as a citizen
20 and a lawyer?
21 A. I would say so, sure.
22 Q. Okay. And it was the sort of case that would call upon
23 you to consider a set of facts unlike any factual situation
24 that had previously been presented to you in your previous two
25 capital murder cases?
1 A. Yes.
2 Q. Tell us how Mr. Davidson came to be your co-counsel on
3 this case.
4 A. I believe when I had a conversation With Judge Goodson
5 about myself getting involved, he had asked me if I knew of
6 any other attorneys. I believe I checked with another attorney
7 who wasn't interested or couldn't make a decision, and somehow
8 I suggested Mr. Davidson. I think the judge had me contact
9 him, and he agreed to be co-counsel with me.
10 Q. Mr. Davidson is here today, I presume, was and had been
11 through the time a professional colleague of yours?
12 A. Yes, sir.
13 Q. And probably a social friend as well?
14 A. Yes, sir.
15 Q. And a well respected lawyer in this district?
16 A. Yes, sir.
17 Q. Was his area of expertise the defense of persons charged
18 in capital murder cases or murder cases?
19 A. I don't believe he'd ever represented anybody on a death
20 penalty case.
21 Q. Would it be fair to say that you knew Mr. Davidson to be
22 a person who would represent persons charged with criminal
23 offenses but that most of his time was as a civil lawyer?
24 A. Uh --
25 Q. As you understood it.
1 A. At that time, that's probably correct. At one time there
2 was probably about a three year period in the late eighties and
3 early nineties where Mr. Davidson and myself and a third
4 lawyer, Bill Howard, were the only three court appointed
5 lawyers accepting court appointed cases in Jonesboro. So he'd
6 had extensive experience during that time.
7 Q. Do you mean to indicate to me that the representation of
8 persons charged with crimes is at a place in legal interest and
9 respectability in your community that there were only three
10 attorneys who would take appointments in criminal cases at one
12 A. During that particular gap, that's correct. There was a
13 time period when -- I guess from nineteen -- I think it was --
14 I believe it was eighty-five or eighty-six when prior to that
15 date, Any lawyer under a certain age -- I think fifty-five --
16 had to be -- accept court appointed cases in Jonesboro. We
17 didn't have any designated people or specific lists or public
18 defender office or anything.
19 And then in eighty-five or eighty-six, we had a voluntary
20 list and from then until, I think, it was ninety-two, that list
21 fluctuated anywhere from ten people to three people back and
23 Q. And from roughly eighty-eight or ninety -- ninety-two, how
24 many lawyers would you estimate, within a fair area -- you
25 know, margin of error -- would you estimate were full time
1 attorneys in the Jonesboro and Craighead County area?
2 A. At that time there was about a hundred.
3 Q. In your view as a professional who speaks to other
4 professionals and who did take on these cases, what was your
5 impression of the reasons that only three lawyers or five
6 lawyers would handle criminal cases?
7 A. Uh, in part --
8 MR. DAVIS: Your Honor -- your Honor, if I may.
9 What Mr. Price's opinion is as to why there were few
10 attorneys representing criminal defendants back in
11 1989 or ninety, seems to me to be going awfully far
12 afield in a Rule 37 petition regarding Mr. Echols.
13 That appointment occurred in 1993.
14 THE COURT: I don't really see any --
15 MR. MALLETT: I need to hear the answer before I
16 could --
17 THE COURT: Go ahead and answer the question.
18 BY THE WITNESS:
19 A. Okay now, there's a difference between lawyers wanting to
20 take appointed cases and lawyers wanting to be hired on a
21 criminal case.
22 Q. There's a lot more lawyers who'd do this case for the
24 A. Right.
25 Q. If the money's right?
1 A. Right.
2 Q. Right. Well, what would be a reason they would not want
3 to be appointed to cases?
4 A. Some -- some didn't like the work itself. Some didn't
5 like the fees that were being paid at that time.
6 Q. So the adequacy of the compensation, to your understanding
7 and belief, would be an issue?
8 A. Right.
9 Q. And you're a person who would know what you --
10 A. Right.
11 MR. DAVIS: Your Honor, is this question in
12 regard to 1989 or 1993?
13 MR. MALLETT: 1992.
14 MR. DAVIS: What relevance does 1992 have?
15 THE COURT: I don’t know.
16 BY MR. MALLETT:
17 Q. How about 1993?
18 A. Well, I mean --
19 MR. DAVIS: I just asked that the question be
20 couched showing a time frame because it's 1989 that
21 I objected to--
22 THE COURT: I'm gonna sustain the objection to
23 1989. It wouldn't have any relevance.
24 MR. MALLETT: Okay.
25 BY MR. MALLETT:
1 Q. Was there an extreme enthusiasm of the bar of the
2 Jonesboro lawyers -- the private bar -- that they were rushing,
3 down to the courthouse in the spring of 1993 saying, all one
4 hundred of us are just begging you, Judge, to give us more of
5 these appointed cases?
6 A. No, because by 1993 is when the -- our public defender
7 system was in place.
8 Q. So --
9 A. And there was -- and there was four of us. They were the
10 designated individuals accepting appointments.
11 Q. And you were the chief public defender at one time?
12 A. Right.
13 Q. And the reason for the establishment of a public defender
14 office is something that you as a public defender would be
15 interested in?
16 A. Yes.
17 Q. And one reason for the establishment of a public defender
18 office would be the lack of lawyers interested in handling the
19 appointed cases. Fair statement?
20 A. That's a fair statement.
21 Q. Arising from the lack of compensation for attorneys?
22 A. Right.
23 Q. And the lack of state payment for expenses for preparing
24 cases for trial?
25 A. Uh, correct.
1 Q. Right. And so they established the public defender
2 office which you had ten thousand dollars for expenses to
3 spread around hundreds of cases, right?
4 A. It may not be hundreds of cases, but whatever the case
5 load we had at that time.
6 Q. Which is what you testified to at the previous hearing?
7 A. Right.
8 Q. In this case, as I understand it, after you took the
9 appointment sometime in 1993, one of the things that concerned
10 you was whether because of the extreme and unusual facts of
11 this case, the defendant might benefit -- the defense might
12 benefit -- from the use of forensic experts, that is, people
13 who are not lawyers to assist the lawyers in planning and
14 presenting a defense, correct?
15 A. Correct. That's one of the factors we looked at.
16 Q. And I believe you said that you thought about it long and
17 hard and you thought about whether you could make an ex parte
18 motion to the judge.
19 A. Right, we considered that.
20 Q. You considered that with a view as to whether you could
21 conduct your investigation without having the district attorney
22 in effect looking down on your investigation in the event
23 developed information that might help the prosecution, seizing
24 it and using it against you. That's the reason for the ex
25 parte --
1 A. Sure.
2 Q. -- the ex parte application. You were concerned about the
3 state's supervision and involvement and really exploitation of
4 anything happen -- happening that you didn't like.
5 A. Yes, sir.
6 Q. Okay. So you considered it. And you drafted a motion
7 seeking compensation for expenses?
8 A. Yes, sir.
9 Q. I spoke to you this morning. We spoke about what in the
10 files you might need, and I said one thing that I was very
11 interested in is whether you have a copy of the motion that you
12 drafted. Have you had an opportunity to look and see if you
13 have that?
14 A. I talked to Mr. Davidson this morning after we talked, and
15 he thinks he can find it easier that I can. He's looking for
17 MR. MALLETT: If it's not too disruptive so
18 that we can move through the evidence, would the
19 Court be upset if I asked Nr. Davidson to quietly see
20 if he can retrieve that motion while we go on to
21 something else?
22 THE COURT: All right, fine.
23 MR. DAVIDSON: I can look for it.
24 BY MR. MALLETT:
25 Q. In your testimony in a previous hearing -- a different
1 subject that we discussed briefly -- was the agreement that you
2 had with Home Box Office whereby Mr. Echols would give certain
3 interviews and they would pay some money. Do you recall
4 talking about that?
5 A. The agreement that Mr. Echols had with Home Box Office,
7 Q. And I read the transcript of the statement by you stating
8 they still owe twenty-five hundred dollars?
9 A. Yes, sir.
10 Q. And why is it that they owe you twenty-five hundred
12 A. They had agreed to do three interviews at twenty-five
13 hundred dollars apiece, and I believe Mr. Echols has given two
14 of those interviews. He was made available to them to do
15 additional interviews and, in my opinion, I think they owed the
16 other twenty-five hundred.
17 Q. So you've done your part of the contract, and they've lost
18 interest for some reason. You wouldn't have given the first
19 two interviews except that you thought that you were also
20 get the third twenty-five hundred dollars, right?
21 A. I wouldn't necessarily agree with that. But --
22 Q. It was a package contract?
23 A. It was a package contract, yes, sir.
24 Q. Most people that want to buy three cows don't feel like
25 the contract's been complied with if they buy two cows. It was
1 a three interview contract. And you didn't get the last
2 twenty-five hundred dollars.
3 A. Right. Mr. Echols didn't get the last twenty-five
5 Q. We have attached to our pleadings the letter of agreement
6 that you signed and Mr. Davidson signed and Mr. Echols has
7 signed agreeing to give these interviews. Attached to --
8 incorporated by reference on the last page of that is a
9 reference to an attached personal release. I have to confess
10 to you that when I was looking at the materials that we
11 collected in anticipation for this hearing, I could not find
12 the attached personal release which is incorporated on the last
13 page of your agreement. I take it it's something that Mr.
14 Echols signed and by the language of the agreement, what they
15 say is something like, if we can't keep this whole thing a
16 secret and their movie gets out earlier than we're promising to
17 try to have it released, you know, we don't owe you any more
18 money and we have an attached personal release which is --
19 language like that.
20 Do you think it's possible in those file cabinets you
21 could find us a copy of that attached personal release 'cause
22 I can't find it and I'm just curious.
23 A. We --
24 Q. Do you think you have a copy of it?
25 A. I mean, I should. You want me to look through eight
1 drawers now?
2 A. Well, no, I don't want to do that to Judge Burnett whose
3 patience is over-taxed already. But since Mr. Davidson --
4 BY MR. MALLETT: Mr. Davidson, are you still here?
5 THE WITNESS: His files were down in his car.
6 He went to go get 'em.
7 BY MR. MALLETT:
8 Q. All right, when he comes back, if it's okay, I'll ask him
9 if he can help us find the attached personal release that's
10 made a part of that contract.
11 A. Okay.
12 Q. Another thing that we learned when we were meeting
13 previously is that, you have some twelve note pads reflecting
14 the notes that you took during the time of this -- your
15 representation of Mr. Echols, and that you have actually
16 preserved those note pads?
17 A. Yes, sir.
18 Q. Are you pretty much a regular note taker when you're
19 working with the -- when you were working on this case? Was it
20 your practice to try to keep a -- a record of those important
21 things that were being said or discussed at the time it's going
23 A. Yes, sir.
24 Q. And you generally would indicate on those -- an
25 appropriate place on the page of the note pad when you're
1 writing notes what dates you were writing those notes?
2 A. I mean, some -- sometimes I'd put dates in and sometimes I
4 Q. You referred to the note pads while you were, for example,
5 preparing your application for attorney's fees.
6 A. Yes, sir.
7 Q. And so if we have some problems in which we want to
8 refresh your memory, one place we could go look is your note
9 pads --
10 A. Sure.
11 Q. -- to see if that helps you remember what happened. And
12 are those note pads in those file cabinets, too?
13 A. Yes, sir.
14 Q. I made a -- I found a reference to a Doctor Chris Sperry
15 who is a pathologist working in the area of Atlanta, Fulton
16 County, Georgia. I noticed that Mr. Sperry charged you for his
17 time and charged you for expenses. Do you recall working with
18 and talking to Mr. Sperry?
19 A. I recall -- Ron Lax, our investigator, put us in touch --
20 or he may have even done most or all of the contacts with Mr.
22 Do you want me to elaborate on --
23 Q. Well, tell me -- tell me about your relationship with --
24 I guess I should ask it in question and answer form.
25 Did Mr. Sperry write you a report of his findings?
1 A. I don't know if he wrote us a report or not. He may have
2 just told Mr. Lax some information over the telephone which he
3 would have related to me.
4 Q. And the information Mr. Lax about what Mr. -- Mr. Sperry
5 was to consider and look at was based on communications, as you
6 understand it, between Mr. Lax and Mr. Sperry?
7 A. Yes, sir.
8 Q. Mr. Lax is our best source of information?
9 A. Probably. That would probably be correct.
10 Q. I think Mr. Lax was placed under the rule in the previous
11 proceeding; is that correct?
12 A. Yeah. Yes, he was here earlier.
13 Q. Okay. Would it kind of jog your memory a little bit for
14 me to relate to you that Doctor Sperry was asked to read the
15 autopsy and the coroner's report to see if he could make any
16 findings about the time of the death, or do you just have no
18 A. No. I think that's exactly correct.
19 Q. Okay. And to the best of your recollection -- we'll have
20 Mr. Lax -- but to the best of you= recollection, Mr. Sperry
21 would have then been provided an autopsy, a coroner's report,
22 an inquiry -- either verbally or in writing -- and would have
23 communicated back to Mr. Lax by telephone?
24 A. I believe that's how that went, yes, sir.
25 Q. You don't know of any other materials that he was sent or
1 any other work that he did beyond reading those reports --
2 yourself ?
3 A. Myself, no. He may have been sent other crime lab reports
4 or any -- both from the crime lab -- any physical evidence that
5 was found or not found at the scene, and he may have -- we may
6 have also sent him some of the police -- the report ---
7 investigation reports of the crime scene. And he may have also
8 seen either police photographs of the crime scene and maybe
9 even autopsy photos.
10 Q. Now, you're speculating. You really don't know.
11 A. That's correct.
12 Q. We'd have to ask Mr. Lax about that?
13 A . Sure.
14 Q. We were in the area about jury selection and now, I take
15 it, we're starting to move closer to some fresh material.
16 I read to you from the American Bar Associa -- American
17 Bar Association Standards for Criminal Justice.
18 MR. MALLETT: Your Honor, I apologize for
19 stepping over here.
20 THE COURT: That's all right.
21 MR. MALLETT: Would the Court prefer if I ask
22 the Court when I leave the podium?
23 THE COURT: No, that's fine.
24 MR. MALLETT: May I ask that this be marked as
25 defense's next -- I think, it's fourteen, but I'm not
2 (PETITIONER'S EXHIBIT NUMBER FOURT@.EN IS
3 MARKED. )
4 BY MR. MALLETT:
5 Q. You'll recall in the previous proceedings I represented
6 here that I was holding a print-out of certain of the American
7 Bar Association Standards for Criminal Justice on Fair Trial
8 and Free Press, and the selections that I read to you related
9 to questioning jurors in cases where there were extensive
10 publicity. Do you recall that area?
11 A. Yes, sir.
12 Q. You read that when you read the transcript yesterday?
13 A. Right. I read -- read reference to that.
14 Q. Yeah, and I -- I expressed to you my interest in whether
15 you had asked the jurors not only the question, one, have you
16 heard about the case. We were interested in that, right?
17 A. Right.
18 Q. And we were interested in their answer, yes, I have heard
19 about the case.
20 A. Right.
21 Q. And then I was interested whether you asked, what did you
22 hear about the case. Do you recall we talked about that?
23 A. Yes, sir.
24 MR. MALLETT: Your Honor, for this record --
25 not for the Court to read at this minute but for us
1 to utilize and quote from at a later time -- I would
2 like to supplement the portions of the ABA Standards
3 which I read to Mr. Price at the previous hearing
4 with a copy of those Standards. And let the record
5 -- I'm not seeking to publish the whole contents
6 right now but if the record could contain a copy and
7 I could quote from it and the Court would have one to
8 refer to.
9 THE COURT: All right.
10 MR. MALLETT: May I do that as Defense (sic)
11 Exhibit Fourteen?
12 BY THE WITNESS:
13 A. Which Standard is that?
14 Q. This is the American Bar Association Standards for
15 Criminal Justice --
16 A. Is it all of 'em?
17 Q. -- Fair Trial and Free Press, third edition, and this is
18 the full set as to that topic --
19 A. Okay.
20 THE COURT: All right, they may be received.
21 (PETITIONER'S EXHIBIT NUMBER FOURTEEN IS
22 RECEIVED IN EVIDENCE.)
23 BY MR. MALLETT:
24 Q. When we were discussing these Standards, we went through a
25 little series where Mr. Ford was gonna ask a prospective juror
1 what she heard at church and the Judge said, "well, you're not
2 going to ask her that in the presence of these other jurors,
3 are you? I think that could be prejudicial. We don't know
4 what she's going to say."
5 And the Court quite properly -- at least in conformity
6 with these standards -- excused the other Jurors for that
7 portion of voir dire. Do you remember that -- that occurring?
8 A. Do I --
9 Q. It was sort of toward the end --
10 A. Do I remember that occurring at the past hearing to thell trial itself?
12 Q. Past -- past hearing.
13 A. Yeah.
14 Q. Yeah. One of the questions that I asked you along that
15 line was, did you ask jurors what they had read or what they
16 had seen. And you answered, yes, we asked it in the
17 questionnaire. Do you recall that?
18 A. I recall giving that answer, yes, sir.
19 Q. And you gave that answer in the hearing that we had last
21 A. Right.
22 MR. MALLETT: If I could have this marked as
23 Defendant's (sic) Fifteen. It's a piece of paper
24 titled "Jury Questionnaire."
25 (PETITIONER'S EXBIBIT NUMBER FIFTEEN IS MARKED.)
1 THE COURT: Is the one that was used in this
3 THE WITNESS: Yes, sir, it was.
4 MR. MALLETT: I am going to ask him to
5 authenticate it for me but I believe it is.
6 THE COURT: All right.
7 BY MR. MALLETT:
8 Q. Mr. Price, I want to--
9 MR. DAVIS: Your Honor, the state would
10 stipulate that that's the questionnaire used in this
12 THE COURT: All right.
13 MR. MALLETT: Move the admission of Defendant's
14 (sic) Fifteen.
15 THE COURT: All right, it may be received.
16 (PETITIONER'S EXHIBIT NUMBER FIFTEEN IS RECEIVED
17 IN EVIDENCE. )
18 BY MR. MALLETT:
19 Q. Mr. Price, Just so we can correct your previous testimony
20 if it's appropriate, would you look at Defense Fifteen and tell
21 us how those Defense Fifteen reflects the question to the
22 Jurors in which they're asked, what did you read.
23 A. Okay. Is it in here?
24 Q. No, sir.
25 A. Okay, then it's -- it is not in the questionnaire.
1 Q. What did you hear? What did you read? What did you see?
2 The contents of the information -- the actual contents of the
3 information are not within the questions asked in this thirty-
4 three question questionnaire.
5 A. All right.
6 Q. So it didn't come out in the questionnaire?
7 A. Didn't -- that's right. I was mistaken when I testift6d
9 Q. That's fine. We all make mistakes, and that's why we have
10 these documents in order to refresh our memories.
11 THE COURT: Mr. Mallett.
12 MR. MALLETT: Your Honor.
13 THE COURT. You failed to sign a copy of the
14 Motion that I've given to the Clerk to file. She did
15 stamp it filed but --
16 MR. SCHAY: I have a signed copy.
17 THE COURT: All right. ! think the Clerk needs
18 a signed copy.
19 MR. MALLETT: Your Honor, this is a little bit
20 out of order. In fact, I'll come back to it later.
21 What I'm holding are what I -- is the most
22 complete set of publicity about the case that we were
23 able to collect from newspapers in Memphis and in
24 Jonesboro and in Little Rock. And for purposes of
25 the record, I'm gonna ask that the newspaper
1 publicity become a part of the record. But what I
2 think I'll do is give a copy to the state now and
3 they can indicate to me later on after they've had a
4 chance to look at it if they have any reservations
5 about admitting this as an exhibit to the hearing on
6 the issue of how much publicity occurred.
7 THE COURT: I'm sure it was at least what you've
8 got in your hand or more.
9 MR. MALLETT: I -- I think so, too. I didn't
10 want us to sneak up on 'em and be accused of
11 surprising them --
12 THE COURT: Well, if you're asking -- Mr. Davis,
13 do you have any objection to what he's tendered being
14 received into evidence as an example of publicity in
15 the trial?
16 MR. MALLETTS: About -- about the offenses and
17 interest in it until the total.
18 MR. DAVIS: Well --
19 THE COURT: I mean, prior to trial. Is that
20 what you're saying?
21 MR. MALLETT: Yeah. I think the last date is
22 immediately before the commencement of the Echols
23 trial, your Honor --
24 THE COURT: I wonder --
25 MR. MALLETT: -- including publicity of the
1 Misskelley trial over in the other county.
2 THE COURT: Did you have a clipping service do
3 that for you or what? I mean, who prepared it?
4 MR. MALLETT: Uh, actually, we spoke to various
5 people and said, send us everything you could, and
6 tried to eliminate duplicates. We did not pay a
7 commercial clipping service.
8 MR. DAVIS: Your Honor, may I? I think what he
9 indicated was he was gonna provide it to us and let
10 us have an opportunity to peruse it and then see if
11 there is anything in here that's inaccurate or
12 incorrect. I would assume it's all accurate, but I'd
13 like to have an opportunity to look at it.
14 THE COURT: That's fine with me.
15 MR. MALLETT: I just got to it because it was
16 the next thing in the pile of papers on the desk and
17 suddenly I realized it's really out of order with Mr.
18 Price. So we'll let the state have a copy, and we'll
19 come back to it.
20 THE COURT: All right.
21 BY MR. MALLETT:
22 Q. The questioning of the panels from which the jury was
23 ultimately selected took place generally in groups of three or
24 four. We'll call 'em sets of jurors. I'm sure you'll remember
25 that process?
1 A. Yes, sir.
2 Q. And you'll recall we had a little testimony about it in --
3 towards the end of the previous proceeding. One second -- I
4 had a little outline -- here we go.
5 MR. MALLETT: We want to mark these selections
6 from the jury selection in order as separate
8 THE COURT: I'm not sure I understand what
9 you're trying to do, Mr. Mallett.
10 MR. MALLETT: Uh--
1 THE COURT: What is it you're offering?
12 MR. MALLETT: I was -- we know or we believe
13 that issues relating to the conduct of voir dire were
14 not urged on the direct appeal, and that the
15 transcript of the Jury selection portion was not in
16 --- incorporated in the abstract of the trial, but --
17 THE WITNESS: That's correct, yes, sir.
18 MR. MALLETT: And I believe the Court commented
19 last week that a reason for that may be that if all
20 peremptories are not exhausted, then complaints about
21 the Court's rulings are not reviewable because
22 they're not appealable.
23 THE COURT: Well, that -- I think that's a
24 correct statement. ! might be wrong on it. I'm
25 certainly not --
1 THE WITNESS: That's -- that's correct.
2 MR. MALLETT: Okay.
3 THE COURT: I don't think that they exercised
4 all of their peremptories and generally when you
5 don't exercise all of your peremptories you waive
6 exceptions. And I -- I think that was what occurred
7 here. I don't know.
8 THE WITNESS: That's exactly what occurred.
9 MR. MALLETT: In our Rule 37 ---
10 THE COURT: Are you raising that as
11 ineffectiveness? Is that what your -- the issue is?
12 MR. MALLETT: Not just the failure to include
13 the transcripts on appeal although I do believe that
14 was not the best of lawyering. I know that a Court
15 can find error on its own motion when it's
16 sufficiently egregious, but that if there is nothing
17 presented, the Court can't find it. But getting
18 beyond that for a minute --
19 THE COURT: All right.
20 MR. MALLETT: -- we want the entire jury
21 selection to be a part of the record in this case.
22 From --
23 MR. DAVIS: We have no objections to it.
24 THE COURT: You're not objecting?
25 MR. DAVIS: No.
1 THE COURT: All right.
2 MR. HALLETT: And we'll figure out mechanically
3 how to be sure the Clerk --
4 THE COURT: But I'm trying to see -- I don't
5 have any problem with it myself. But I'm trying to
6 see where it's relevant to any issue that the Court
7 can consider other than ineffectiveness.
8 MR. MALLETT: Yes, your Honor, it does relate to
9 ineffectiveness and I'm talking --
10 THE COURT: I understand. I'm saying that
11 that's the only way I see it would even be relevant
12 for this hearing.
13 MR. MALLETT: Other than waiver -- other than
14 waiver of fundamental error by not having it
15 available for the Court to see.
16 THE COURT: Well I think that -- that's not a
17 subject matter of this hearing. If it wasn't
18 available for the reviewing Court to consider, how
19 can they now come back and consider it? I don't
20 think they can. I don't think I can. I'm certainly
21 not an appeal judge.
22 MR. MALLETT: Well, I' m not --
23 THE COURT: But now I will consider it as going
24 to whether or not it was an element of the
25 effectiveness of appointed counsel.
1 MR. MALLETT: Thank you, your Honor. And I
2 believe that that is specifically pled in our
3 pleadings -- failure to ask questions --
4 THE COURT: Well, I --
5 MR. MALLETT: -- relevant to jury selection in a
6 capital murder trial, and it' s one of our allegations
8 THE COURT: All right.
9 MR. MALLETT: -- in our Rule 37 petition. So we
10 don't want to be in a position where it appears that
11 we've taken something out of context, and it seems to
12 me the best way to assure that the record is clean is
13 to have all of the jury selection a part of the
14 record. Mr. Davis has no objection to that.
15 THE COURT: All right. That's fine.
16 MR. MALLETT: We'll work that out.
17 THE COURT: All right. Now, you want to point
18 out some specifics.
19 MR. MALLETT: Yes.
20 THE COURT: Is that what you're trying to do?
21 MR. MALLETT: And to assist the Court and to
22 simplify, what we have done is selected specific
23 pages from that record which I would like to have
24 marked as Exhibits for purposes of -- with Mr. Price
25 as the lawyer who was there present -- illustrating
1 to the Court how these ABA Standards were ignored
2 or violated, how jurors were seated when they knew
3 that other jurors had been exposed to publicity that
4 was so prejudicial, that their minds were made up in
5 favor of conviction, how the lawyers had an
6 opportunity to follow the Court's lead, which the
7 Court gave them, and inquire of the individual jurors
8 the content of the information the jurors had
9 received so the jurors -- so the lawyers could make
10 an independent assessment of whether that information
11 might be prejudicial and, also, so they could make
12 intelligent use of their peremptory challenges, and
13 that instead of following the Court's lead and asking
14 for a sequestered voir dire of each juror who had
15 been exposed to publicity as to the content of the
16 prejudicial publicity, the lawyers abandoned the
17 questions entirely in violation of the ABA Standards
18 and frankly, in violation of the guidance given to us
19 in the
case which we cited in the previous
21 And that is the reason for which I have these
22 exhibits separated and ready to be marked and made a
23 part of the record.
24 MR. DAVIS: Your Honor, I do have an objection.
25 If we're going to introduce the entire voir dire
1 proceedings as a part of the record, then I would
2 object to these being marked as separate exhibits for
3 the purposes of the record.
4 If he wants to provide a copy to counsel and the
5 Court, to the witness for purposes of this
6 examination and refer to page number in the record --
7 in the voir dire transcript, I have no objection to
8 that. But I think it's unfair that specific exhibits
9 of a much larger portion of the record introduced as
10 an exhibit in this case. I don't think that's proper
12 MR. MALLETT: May I respond?
13 THE COURT: Yes, sir.
14 MR. MALLETT: What's unfair and to whom is it
15 Hypothetically, I'm writing a brief.
16 Hypothetically, I'm making an argument. I'm saying,
17 hypothetically, Judge Burnett. Hypothetically, Judge
18 Rehnquist. Uh -- although he always denies my
19 petitions. Maybe some day.
20 Hypothetically, I would like you to look at what
21 happened on page seventeen of the jury selection
22 portion of the trial. You can find it most
23 expeditiously by looking at Defense (sic} Exhibit
24 Sixteen which is a five page exhibit. You don't need
25 to have your law clerk go back and dig out the whole
1 record and get to Volume III and find that page
3 Now, what prejudice possibly falls on the
4 administration of justice if we simplify by striking
5 all the pages knowing that the entire record is
6 there and if the state thinks we're out of context,
7 twisting, incomplete, overstating -- they can correct
8 us and I'm sure they will. How could it possibly be
9 unfair to the state to take selected pages to assist
10 the Court and to assist us in our briefing. I don't
11 think a little redundancy does injury to anyone. I
12 think it might assist the Court in reviewing the
13 case, and certainly let me do this today in thirty
14 minutes instead of three hours if I have to have the
15 whole big book up here.
16 THE COURT: I don't have any problems with you
17 using that to give to Mr. Price and a copy to Mr.
18 Davis and to ask your questions from it. I don't
19 have any problem with that at all.
20 MR. DAVIS: I don't either. I'm just objecting
21 to it as a separate exhibit -- that I have an
22 objection to it and I'll be glad to respond if he
23 wants to know why I think it's unfair.
24 MR. MALLETT: Well, yes, I would like --- well, I
25 don't mean to question the --
1 THE COURT: Let's -- let's -- I mean, let's move
2 along and then -- I mean, just go on and ask your
3 questions from it and supply him with a copy of it
4 and let's proceed.
5 MR. MALLETT: All right.
6 THE COURT: I mean, I've -- I've received
7 without objection the entire transcript of the voir
8 dire so it certainly would cover your extracts.
9 MR. MALLETT: Yes, sir.
10 THE COURT: Okay.
11 MR. MALLETT: So can we number these extracts
12 in sequence as Defendant's Sixteen through the end.
13 MR. DAVIS: That's what I have an objection to,
14 your Honor.
15 THE COURT: I'll receive 'em for identification
17 MR. MALLETT: Well, mark 'em for identification
18 as --
19 THE COURT: Okay.
20 MR. MALLETT: -- Sixteen to end.
21 THE COURT: Let's take a ten minute recess while
22 she marks 'em.
23 (PLAINTIFF'S EXHIBITS SIXTEEN THROUGH TWENTY-
24 NINE ARE MARKED FOR IDENTIFICATION. )