JUNE 9, 1998 (Page 2)

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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
16  then.
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. )
25  (RECESS.)

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1   (RETURN TO OPEN COURT.)
2   MR. MALLETT: Shall I continue, your Honor?
3   THE COURT: Yes.
4   MR. MALLETT: Marked for identification Exhibit
5   Sixteen is a selection of papers taken from the
6   official transcript of the jury selection portion of
7   the trial.
8   If I may, your Honor, I think the government --
9   the state would have no objection. Can we ask that
10  Mrs. Fisher reserve as Exhibit Thirty a full
11  transcript of the jury selection in the trial, and
12  MR. DAVIS and I will confer about -- by agreement
13  authenticating the exhibit to be filed in that slot
14  and we'll hold that as Exhibit Thirty.
15  THE COURT: Well, I understood that both of you
16  agreed that the entire transcript of the voir dire
17  would be received as Exhibit Number Thirty.  The
18  problem is that neither of you have it here today to
19  give to the Court Reporter. So I will reserve slot
20  number thirty as the proper location for the voir
21  dire record to be made a part of the evidence in
22  this hearing.
23  MR. DAVIS: Your Honor, we do have it here and
24  it's available. I would like to keep that copy.
25  THE COURT: Somebody's got to provide the Court

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1   Reporter with a copy for the transcript of this
2   proceeding.
3   MR. MALLETT: I'm selfish about my copy, too,
4   but I think we can probably take care of it by
5   tomorrow.
6   THE WITNESS: I've got a copy machine at the
7   office that we can -- I'll make --
8   MR. MALLETT: I think we can probably take care
9   of it.
10  I want to refer to it as Exhibit Thirty in these
11  proceedings understanding that the actual paperwork
12  will be filed today.
13  THE COURT: Exhibit Thirty is -- as far as the
14  Court's concerned -- the entire record of the voit
15  dire.  All right?
16  MR. MALLETT: Marked for purposes of
17  identification as Exhibit Thirteen are pages taken
18  from Exhibit Thirty beginning with page number
19  sixteen and ending with page number sixty-eight, and
20  these are not pages in sequence. It's actually pages
21  sixteen, seventeen, eighteen, nineteen, and then it
22  jumps to thirty-five and there's probably some other
23  jumps.
24  I represent to you that when the entire Exhibit
25  Thirty is presented, you will see that this is the

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1   seating of the first group of jurors who were
2   interrogated about jury selection as a jury.
3   You will notice then that the first juror under
4   interrogation -- it seems to be a juror number --
5   Sharp. And I say that because if you'll turn to page
6   eighteen and see the notation "Juror Sharp Leaving
7   the Courtroom."
8   If you'll read up from that you'll see that all
9   of the question and answer appears to be the same
10  person -- the lawyer asking the questions. And I
11  believe when Exhibit Thirty is examined, you'll see
12  it's the state asking questions. And the prospective
13  juror answering about pretrial publicity.
14  Also, within Exhibit Number Sixteen you will see
15  that potential prospective jurors Sharp, Anderson and
16  Hartshorn are present.
17  THE COURT: They were both excused according to
18  this record.
19  MR. MALLETT: That's -- that's correct. Sharp
20  and Hartshorn and Tate were excused for bias
21  according to --
22  THE COURT: By the Court.
23  MR. MALLETT: By the Court. That's correct.
24  MR. DAVIS: Your Honor, on the exhibit that I've
25  been given to be identified --- for identification

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1   only -- it notes on the -- and I don't know if the
2   Court's copy has this. (INDICATING.)
3   MR. MALLETT: No, that's right. I'll get to
4   that.
5   MR. DAVIS: It says, "Questioning by
6   Prosecutor."
7   MR. MALLETT: That's correct.
8   MR. DAVIS: I think if you'll 1ook at the
9   record, that's questioning by the Court.
10  THE COURT: I'm -- from what I'm reading on
11  page sixteen, seventeen, and eighteen, it looks like
12  those are all questions the Court asked of the
13  prospective 3urors and apparently I excused two or
14  three of 'em for cause.
15  MR. MALLETT: Well, I'll certainly ask the Court
16  to disregard the handwritten notations as erroneous
17  and that's I suppose that's why it's good we have
18  exhibit --- one reason it's good we have Exhibit
19  Thirty is that any errors in our handwritten
20  notations are going to be corrected in the light of
21  -- and look at the full transcript of Exhibit Thirty.
22  THE COURT: Well, I think if you review it
23  you're gonna find that on line fifteen --- strike that
24  -- line fourteen on page sixteen is -- the response
25  is, "Your Honor, I have a very strong opinion

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1   formed."
2   MR. MALLETT: I see it, and I certainly agree
3   with the Court.
4   MR. DAVIS: Your Honor, and that's -- this is
5   another reason for my objection to these separate
6   exhibits being introduced because they --- I had no
7   idea at the time but, gosh, they've got underlining
8   and stars beside them, notes on it that are
9   inaccurate by evidence of the first one. And I think
10  it would be improper for them to be made a part of
11  the record as a separate exhibit number if they're
12  basically -- have notations written on them by
13  defense counsel outside of the presence -- outside
14  the courtroom.
15  MR. MALLETT:  Well, they're not in evidence
16  right now. They're only marked for purposes of
17  identification.
18  MR. DAVIS: Well, they were marked, weren't
19  they?
20  MR. MALLETT: They were proffered, and the Court
21  said it wasn't receiving them as exhibits. He was
22  letting me mark 'em for purposes of identification as
23  I understand the Court's ruling.
24  MR. DAVIS: I just wanted to let the Court be
25  aware that at the time they were proffered we didn't

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1   know that they had handwritten notes on all of them
2   either.
3   MR. MALLETT: And I do acknowledge that --
4   THE COURT: well, I haven't received 'em in
5   evidence. I think you can utilize 'em to question
6   the witness, however, so let's proceed.
7   MR. MALLETT: So looking at what is marked for
8   identification as sixteen, which are pages excerpted
9   from Exhibit Thirty, we find questioning and
10  answering indicating that in the presence of one
11  another there are these indications of exposure to
12  information about the case.
13  On page sixteen the Court speaks, beginning with
14  line nineteen, "...we don't expect you to be ignorant
15  of what's taking place in your community and in the
16  areas that you live in."
17  On page seventeen, line five, "I take it that
18  each of you have some information from--"
19  "No Audible Response."
20  On page twenty (sic), a prospective juror
21  answers, "The confidence that he made his statement
22  with pretty well has been rooted in my memory."
23  THE COURT:  Where -- where are you referring to?
24  MR. MALLETT: I am now on page seventeen, line
25  twenty.

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1   THE COURT: All right.
2   MR. MALLETT: Speaking of the detective in West
3   Memphis who made the announcement to the press -- I
4   believe about the arrests -- and that's reported on
5   line seventeen.
6   Juror Sharp is excused on page eighteen at line
7   six. The statements are made in the presence of the
8   remaining jurors--Hartshorn, Tate, and Roebuck.
9   Juror Hart -- Hartshorn on page eighteen, lines
10  eight to twelve indicates that juror Hartshorn says,
11  "I don't feel I can set it aside. I have some strong
12  convictions."
13  And then juror Hartshorn is excused, thus
14  leaving Tate and Roebuck.
15  There is questioning of the two remaining
16  jurors. The Court addresses a comment on page
17  thirty-five of Ms. Roebuck. The Court announces,
18  "There's been all sorts of pre-trial publicity. Ms.
19  Roebuck, where have you heard about this case from
20  what sources."
21  Ms. Roebuck answers, "Jonesboro Sun, Arkansas
22  Democrat, and television."
23  The Court asks on page thirty-five, line twenty-
24  four, "Do you think you're in as good a position as
25  anybody else to do that, and do you think you can do

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1   that If asked to serve..."
2   She answers, "Yes."
3   There is no objection by defense counsel to the
4   phrasing of the question, "Do you think you're in as
5   good a position as anybody else..."
6   Later on page thirty-six the Court asks, "Have
7   you formulated any opinions that are so fixed that
8   you couldn't listen objectively to the evidence and
9   make a determination based on what you hear in the
10  courtroom?"1l  The answer is, "I don't think it's that fixed."
12  No interruption by counsel to questioning
13  further about the meaning that Ms. Roebuck attaches
14  to, "I don't think it's that fixed."
15  MR. DAVIS:  Your Honor, I -- I would like to
16  clarify for the Court what he's -- what defense
17  counsel referred to as questions asked by the Court.
18  I think if you'll consult the record, those are
19  questions asked by me at that time during voir dire.
20  MR. MALLETT: Very well The record -- Exhibit
21  Thirty -- will speak for itself. What Ms. Roebuck
22  says is clearly recorded in Ms. Fisher's official
23  transcript -- "I don't think it's that fixed."
24  That's Ms. Roebuck who has an opinion, however
25  fixed, who is as good a position as anybody else in a

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1   trial that is scheduled to commence in two weeks
2   after the Misskelley trial.
3   THE COURT: Are you trying to -- I'm -- so far,
4   you've asked about what the Court asked of
5   prospective jurors and what the prosecutor asked of
6   prospective jurors and nothing at all about what
7   defense counsel asked. And the only reason it's even
8   admissible would be going to the issue of whether or
9   not defense counsel failed to properly voir dire, or
10  failed in some particular to question the jurors.
11  MR. MALLETT: That's right.
12  THE COURT: So -- and I think backhandedly
13  you're arguing that the jury panel by the nature of
14  these questions was educated about some aspect of the
15  case? Is that --
16  MR. MALLETT: Are you -- are you -- is the Court
17  asking me a question?
18  THE COURT: Yes, sir. Is that what you're
19  alleging that by these questions -- whoever asked 'em
20  -- the Court or defense counsel or prosecutor -- that
21  the jury was informed of some aspect of the case, is
22  that -- potential jurors were?
23  MR. MALLETT: I'm alleging that in this capital
24  murder case in this portion of the jury selection the
25  defense lawyers --

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1   THE COURT: Well, I don't think you've touched
2   on anything --
3   MR. MALLETT: --knew that the juror had an
4   opinion which was to some extent fixed --
5   THE COURT: Okay.
6   MR. MALLETT: -- knew that the juror didn't
7   think that she -- her position as to being able to
8   set aside this nasty publicity was any different
9   than anyone else, that the jury had been exposed to
10  extensive pre-trial publicity, that three jurors --
11  Sharp, Hartshorn and Tate -- were excused for bias
12  in the presence of the juror Roebuck. And
13  notwithstanding all of that on the mind and in the
14  presence of Ms. Roebuck, the defense counsel did not
15  ask Ms. Roebuck -- when she's finally there alone
16  because everyone had been excused .... well, what is it
17  that you have heard, so that they could make an
18  independent determination of how to intelligently use
19  their peremptory challenges and whether further
20  interrogation would support a challenge for cause.
21  THE COURT: All right.
22  MR. MALLETT: Instead of doing that, they seated
23  her without objection.
24  THE COURT: I think we were taking the jurors
25  three and four at a time. Is that what we were

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1   doing?
2   MR. MALLETT: That is correct, your Honor.
3   THE WITNESS: Yes sir, that's correct, in the
4   back room.
5   THE COURT: And the reason for that was -- was
6   to prevent the entire pool from hearing questions of
7   that nature. That's why we did it.
8   MR. MALLETT: I appreciate the Court's comment
9   and I understand the Court is adjudicating now the
10  Court's conduct of the Court's voir dire.
11  THE COURT: No. I mean, it was requested that
12  we have a partially sequestered voir dire and that's
13  what I'm commenting on. That -- that -- we did have
14  a -- the defense counsel and the state asked that we
15  voir dire the jury three or four at a time --
16  sequestered -- and that's what was done.
17  MR. MALLETT: And -- and -- and I'm inferring
18  one reason that you did that was that you would not
19  want a juror tainted by the answer of another juror.
20  THE COURT: Well, that's correct.  That's the
21  only reason to do it.
22  MR. MALLETT: When I write my brief, or when the
23  defense submits its brief to the Court, we will make
24  an argument that sounds something like this: There
25  is no difference between allowing a juror to be

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1   tainted by the comments of another juror in a group
2   of two. When they are not individually voir dired
3   but voir dired in a group of two, or three, or four.
4   There is no difference --
5   THE COURT: All right.
6     MR. MALLETT: -- between that. And allowing a
7   juror to be tainted by the comment of another juror
8   when they're sitting in a group of thirty -- which
9   is what the ABA Standards refer to.
10  And I really think that the Court manifested a
11  sensitivity to this problem on the one occasion that
12  was brought up in the previous hearing when Mr. Ford
13  said to a prospective juror -- I have the page over
14  here and I can get it. If the Court wants to see it,
15  I'll get it -- Mr. Ford said to a prospective juror,
16  "Tell us what you heard in church."
17  MR. DAVIS: Your Honor, we would object to that.
18  MR. MALLETT: And the Judge said --
19  MR. DAVIS: Your Honor, may I intervene? I
20  appreciate the argument but if -- if we go on arguing
21  on record on all the points that they plan to write
22  their brief on, and we don't take testimony in this
23  proceeding --
24  MR. MALLETT: I thought someone was objecting to
25  why this was relevant information, and I was trying

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1   to explain to the Court why I think it's extremely
2   relevant.
3   THE COURT: Well I might have brought it on,
4   too, by --
5   MR. DAVIS: But the question I have, your Honor,
6   is we seem to be reading from the -- from the
7   excerpts of the transcript and since all of that
8   transcript is agreed by stipulation into evidence, I
9   mean, I don't understand the proper procedure if Mr.
10  Price is here to be questioned regarding this ....
11  THE COURT: All right. I'm gonna sustain your
12  objection, Let's -- let's proceed to question Mr.
13  Price on his conduct of the voir dire.
14  BY MR. MALLETT:
15  Q. Do you acknowledge that in questioning the first set of
16  jurors you did not on the record pr off the record ask the
17  prospective juror Roebuck what was the content of the
18  information that you read -- the information that you received
19  about the case?
20  A. If that's not in the transcript, we didn't ask it.
21  Q. Did you believe that not asking juror Roebuck what juror
22  Roebuck had heard at the point in time that the other
23  prospective jurors -- Sharp, Hartshorn and Tate -- had been
24  excused and were no longer in the room, that not asking that
25  question was a decision you made because it would advance some

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1   interest of Mr. Echols?
2   A. I think my entire representation of Mr. Echols was to
3   advance his interest, and there were questions that I asked,
4   and the questions I asked were to help him, and the questions
5   that I didn't ask were to help him.
6   Q. And how did it help Nr. Echols for you to decide
7   respecting juror Roebuck after three had been excused for
8   cause, when juror Roebuck had told you that juror Roebuck had
9   an opinion that was fixed to some extent and was no better able
10  than anyone else to set aside that opinion. After three people
11  were excused for cause, how did it help Damien Echols for you
12  to decline to ask juror Roebuck, what is it you've heard about
13  this case?
14  A. We decided not to ask that question.
15  Q. Did you discuss that with Damien Echols?
16  A. I don't know if I specifically discussed every question I
17  asked with him.
18  Q. In all fairness you don't believe you discussed that with
19  Damien Echols.
20  A. That specific question, probably not.  mean, there were
21  --
22  Q. There's no indication of a recess in the proceedings £or
23  you to talk to your client.
24  A. Again, I don't have the entire transcript. We had
25  recesses during .... during the entire voir dire process.

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1   Q. And when there are recesses in the transcript, as you
2   know, they're indicated by the Court Reporter?
3   A. Yes, sir.
4   Q. So if there's no recess indicated in the transcript, then
5   in all probability you didn't discuss that with Damien?
6   A. Probably not. I mean --
7   Q. We can rely on the transcript, can't we?
8   A. Right.
9   Q. How did it help Damien Echols for you to decide to seat a
10  person who had an opinion that was already fixed, had seen
11  three people disqualified, who believed that they -- Ms.
12  Roebuck believed she was no better able than anyone else to set
13  aside prejudices and yet she is just sitting there because the
14  Judge has asked her, "Are you any more able than anyone else to
15  set aside prejudices?"
16  She was there. How does it help you to not ask juror
17  Roebuck what information she had received?
18  A. In this case every juror we talked to other than one had
19  heard about the case and what they'd heard about were different
20  -- different amounts. And it wasn't a case of -- of defending
21  somebody that -- of which you appear in court and the jurors
22  don't know anything about the case.
23  Q. Mr. Price, did you ever -- you or Mr. Davidson -- ask any
24  juror, what did you hear about this case? Now, we know you
25  didn't do it by questionnaire like you thought you did. Did

287


1   you ever on the record ask any juror, what did you hear about
2   this case?
3   A. I can't answer that question. I haven't reviewed the voir
4   dire. We didn't use our strikes. We couldn't argue that on
5   appeal with the Arkansas Supreme Court. As a matter of fact,
6   we were limited in what we could argue with the Supreme Court
7   to sixty-five pages. I mean look in the transcript. If it's
8   not in the transcript, we didn't ask it.
9   THE COURT: Did you consult with the
10  psychologist, psychiatrist -- whatever he was -- that
11  was assisting in jury selection on each choice you
12  made and each strike you made?
13  THE WITNESS: Yes, sir. When the: Court made the
14  ruling that we had to share our strikes --
15  THE COURT:  Yes.
16  THE WITNESS: -- then we -- as a strategy and
17  trial tactical decision, we decided to confer with
18  that-- the jury selection person that had actually
19  been retained or was primarily assisting Mr. Ford and
20  Mr. Wadley. But we -- many times we went with what
21  -- what his feeling was on whether or not to exercise
22  a strike or not.
23  THE COURT: Did he draft the jury questionnaire
24  or did you?
25  WITNESS:  I think we all did.  He may have

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1   done it initially. I know we all had input and I
2   think Mr. Davis had input as well.
3   THE COURT: Okay.
4   MR. MALLETT: Well, I think the Court taking
5   over the questioning has perhaps gone into a slightly
6   different but relevant topic.
7   BY MR. MALLETT:
8   Q. Did the Jury questionnaire reflect the questions that you
9   collectively thought were appropriate to ask the prospective
10  jurors?
11  A. The questions that all the lawyers thought were
12  collectively important to ask the jurors.
13  Q. Yes. If you wanted a question asked, then they put it on
14  the questionnaire?
15  A. Not necessarily. I believe -- and I may be mistaken -- I
16  think there may be some questions that certain ones wanted
17  asked that we decided for whatever reason not to put on the
18  questionnaire.
19  THE COURT: Well, my question is, and I may be
20  wrong, but I assume that the psychologist drafted
21  this instrument to bring out potential biases by the
22  answers or responses of the potential jurors. Did --
23  did he not have a -- a scientifically prepared
24  instrument? Was that not the intent and purpose of
25  it?

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1   THE WITNESS: I think that was the intent and
2   purpose. We all had feedback on what was put in that
3   questionnaire.
4   THE COURT: Okay. Go ahead.
5   BY MR. MALLETT:
6   Q. When you wrote that questionnaire, did you read the ABA
7   Standards on Fair Trial and Free Press?
8   A. No, sir. They've never been adopted as a law in Arkansas.
9   Q. And you knew that as you were going through the process of
10  voir dire that jurors were hearing other jurors say, from what
11  I have heard, my mind is made up. And those jurors were being
12  excused.
13  A. Yes, sir.
14  Q. And jurors who have heard those comments in turn were
15  seated like Ms. Roebuck?
16  A. Yes, sir.
17  Q. Without any inquiry into what it was as to the content of
18  the information that the seated jurors had been exposed to?
19  A. Yes, sir.
20  Q. So they -- you seated a jury who's all been exposed to
21  publicity, right?
22  A. Right. Well, almost all of 'em.
23  Q. Everybody knew that Misskelley had made a statement
24  against interest?
25  A. I don't know if everybody knew that specific fact of the

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1   case. I mean, a lot of people did.
2   Q. Well, you heard the Court's comment last time. Everybody
3   in Arkansas knew Misskelley made an incriminating statement.
4   A. Right. I remember the Court making that statement at
5   trial when we objected. Yes, sir.
6   Q. And you knew you were starting the trial two weeks after
7   the trial of Mr. Misskelley, right?
8   A. Yes, sir.
9   Q. I cannot find in the record a motion for a continuance of
10  your trial for Mr. Echols and Mr. Baldwin to a later date then
11  it was actually started which was two weeks after the
12  Misskelley trial.
13  A. If it was not in the record, we didn't make it.
14  Q. And you seated jurors without asking them what they had
15  heard about the trial which means you exercised those
16  peremptory challenges that you did exercise without knowing
17  what publicity they have been exposed to?
18  A. Yes, sir.
19  Q. Now, the Court has supplemented the record here by
20  pointing out that there was a jury selection person hired.
21  That's a Jury selection person hired by Mr. Ford, I recall. Is
22  that right?
23  A. Yes, sir, that's correct.
24  Q. Now, in this case, as I read the transcript, there were
25  persistent requests for a continuance -- excuse me -- for a

291


1   severance of the defendants, correct?
2   A. Correct.
3   Q. And did -- were you asking for a severance?
4   A. Yes, sir.
5   Q. And Mr. Ford was asking for a severance?
6   A. Yes, sir.
7   Q. And one of the bases for severance was the probability of
8   conflicting defenses?
9   A. Yes, sir.
10  Q. Evidence as to one might spill over and tend to
11  incriminate another in a joint trial?
12  A. Yes, sir.
13  Q. And in a separate trial that wouldn't occur?
14  A. Correct.
15  Q. So you had conflicting interests between you and Mr. Ford?
16  A. Yes, sir.
17  Q. And he was the person that hired the jury selection
18  expert?
19  A. Yes, sir.
20  Q. And you were the person who decided not to ask prospective
21  juror Roebuck, who can be no more fair than any other person,
22  in a group in which three people were excused for cause, who
23  said she had a fixed opinion -- or he had a fixed opinion --
24  what information you have that fixes that opinion -- you just
25  didn't do it.

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1   A. If it's not in the record, I didn't do it.
2   Q. Now, can you tell the Arkansas Supreme Court and Judge
3   Burnett how that helps Damien Echols as a matter of trial
4   strategy?
5   A. There are questions that we don't ask in voir dire for
6   certain reasons.
7   Q. What about this question?
8   A. I don't specifically know -- can answer at this time why I
9   didn't ask that -- that specific question. But we had a voir
10  dire that lasted for a week, approximately thirty to forty
11  hours. I'm sure there are other questions I didn't ask.
12  Q. This question -- if the record reflects it was not asked
13  of any juror --
14  A. Then I didn't ask it.
15  Q. -- no matter what level of prejudice was manifested in
16  their presence by others if the record shows this question was
17  never asked, you never asked it?
18  A. That's correct.
19  MR. MALLETT: I'm sorry, I think I heard Mr.
20  Davis say something.
21  MR. DAVIS: I keep hearing a reference to
22  juror with a fixed opinion. Where is that? was that
23  Ms. Tate?
24  MR. MALLETT: If I may have a minute, your
25  Honor, I'm seeing how I can short circuit this.

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1   BY MR. MALLETT:
2   Q. Would you please turn to what is circled for purposes of
3   identification as Exhibit Twenty-one which is an excerpt from
4   Exhibit Thirty?
5   A. (WITNESS COMPLIES.)
6   MR. DAVIS: What's the first page number?
7   MR. MALLETT: The first page is two ninety-two.
8   BY THE WITNESS:
9   A. All right.
10  Q. In handwriting it has been noted here on the top on the
11  left, "Questioning by prosecutor," that's obviously not the
12  Court Reporter but someone who was reviewing these documents
13  and on the middle in handwriting, it says, "The two jurors
14  responding in this section Arnold/Stoll were both seated to
15  sit on the jury." That's also in handwriting and that's not
16  the Court Reporter.
17  This is purported to be beginning on page two ninety-two
18  and is seven pages relating to the sixth set of jurors, and
19  purportedly Arnold and Stoll were chosen. Were those names of
20  people on your jury?
21  A. I know the first one was. I don't specifically recall the
22  name of the second one or not.
23  Q. You see it begins on page two ninety-two --
24  A. Right.
25  Q. -- line two is the question -- we think it's by Mr.

294


1   Fogleman or Mr. Davis, "You've seen the pre-trial publicity.
2   Mr. Arnold, what source have you seen or heard (sic) about this
3   case?"
4   The answer is, "I get three newspapers."
5   Do you see that answer on line four?
6   A. Yes, sir.
7   Q. Ms. Stoll then continues -- jumping down for brevity to
8   line nine, "You probably should have moved it to another state
9   if you wanted to -- I mean this is still too close."
10  Do you see Ms. Stoll's -- that answer?
11  A. Look on what?
12  Q. On line eleven on page two ninety-two.
13  A. Yes, sir.
14  Q. Go down then to page two ninety-three -- the following
15  page -- I'll tell you from scanning the page that there is a
16  discussion about the pre-trial publicity. The question was
17  asked, "Would each of you do your best to kind of shut that
18  aspect out of it and do what jurors are supposed to do?"
19  And there's an answer, "Are they gonna say something about
20  not photographing the jury?" on line twenty-one.
21  On line twenty-three the Court assures her they're not
22  gonna be permitted to photograph. I think the Court -- if
23  permitted to answer -- would have said, they're not gonna be
24  permitted to photograph the jury. That is certainly one
25  indication. The juror says, "They're taking names. They're

295


1   taking names," -- turning the page -- "these photographers are
2   -- I'm a little concerned about it -- you know, the anonymity
3   of it. I don't want to be."
4   "We want to try to stop that, too."
5   Mr. Stoll then -- Mr. Arnold then is indicating that he is
6   concerned about anonymity and the possibility of publicity on
7   the case in which he says, "You probably should have moved it
8   to another state if you wanted to yet -- I mean this is still
9   too close," from page two ninety-two.
10  Did you after hearing that response request the Court to
11  reconsider the setting of venue in Craighead County and renew
12  your motion for a change of venue?
13  A. No, sir.
14  Q. At any time after the commencement of jury selection, did
15  you ask the Court to reconsider having venue in Jonesboro?
16  A. I don't believe so. If it's not in the record, it's not
17  there.
18  Q. Was it a specific tactical decision to help the defendant
19  when you decided to accept as a juror, Mr. Arnold, who is of
20  the opinion that the case should have been moved to another
21  part of the state?
22  A. Yes, sir.
23  Q. How did that help Mr. Echols?
24  A. Well, we weren't able to -- we were limited on the number
25  of strikes. We had to make judgment calls on who we struck and

296


1   who we didn't strike. We had a chance to listen to what the
2   other jurors were saying, and in a trial, you make a decision
3   and you go with it, and that's what we did with Mr. Arnold.
4   Q. Well, you made a decision that you would not ask for a
5   change of venue?
6   A. You mean -- you mean a second --
7   Q. Another change of venue.
8   A. Another change of venue, yes, sir.
9   Q. All right. You recall that the Judge had said that if
10  there was any problem with jury selection, he would consider
11  changing the venue again. Do you recall the Judge saying that?
12  A. I -- yes, sir.
13  Q. Okay. And you did not ask the Judge to continue this
14  proceeding to a later date -- than a date two weeks after the
15  Misskelley trial?
16  A. That's correct.
17  Q. Even though Mr. Arnold told you that it was still too
18  close?
19  A. Yes, sir.
20  Q. Are you able to articulate a reason beyond a reason that
21  you just had to make decisions that it helped Damien Echols get
22  a fair trial?
23  A. Well, I don't think that if we would have continued it for
24  a month later, six months later, a year later, the publicity
25  would have still been -- died down there. I don't think

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1   there's any prejudice, and I don't necessarily believe that
2   there was any prejudice on seatin9 this particular juror
3   Q. Are you familiar with any body of case law that suggests
4   that whenever there is a tremendous amount of publicity a
5   change of venue is one way to go to a place where there's less
6   effective publicity? You're generally aware of such a body of
7   law, aren't you?
8   A. Yes, sir.
9   Q. I mean, that's why we have changes of venue, right?
10  A. But Arkansas is specific about what the limitations are on
11  a change of venue.
12  Q. And that is in your belief to another county within the
13  circuit?
14  A. Right. And there's -- there's one exception. There's one
15  case that where they -- as we discussed in the -- in the last
16  hearing -- where they moved the case from Sebastian County to a
17  contiguous county which was not in the judicial district.
18  Q. If I understand your testimony then, that notwithstanding
19  that case, your decision to allow the case to proceed in
20  Jonesboro without objection was because of your belief that
21  Arkansas law prohibit -- prohibited moving the case outside of
22  the circuit?
23  A. Yes, sir.
24  Q. Are you aware of a body of law that says a way to allow
25  prejudicial publicity about a case to dissipate is to continue

298


1   the case for some period of time? Are you generally aware --
2   A. Yes.
3   Q. -- that's one reason a continuance is requested?
4   A. That's correct.
5   Q. How is it to the advantage of Damien Echols for you to
6   decide that you would not ask for a continuance from the date
7   two weeks after the Misskelley trial to some later date?
8   A. Because as I just stated, I don't think the publicity
9   would have died down, and there's a good chance publicity would
10  have increased if -- if we would have continued it for, you
11  know, a month's time of period, or two months, or six months,
12  or whenever.
13  Q. Did you employ some sort of business or person who
14  conducts surveys to determine how much publicity this had in
15  Jonesboro?
16  A. No, sir.
17  Q. Did you have anyone perform any studies in any cases at
18  all to determine the duration of time it takes for publicity
19  about a well-publicized case to be reduced over time?
20  A. No, sir.
21  Q. Is there some law in the state of Arkansas that you felt
22  prohibited you from asking the Court for a continuance?
23  A. No, sir.
24  Q. Did you have a conference with Damien Echols in which you
25  said, well, I'm about to make an important tactical decision

299


1   here. The newspapers are flooded with publicity. Everybody
2   knows that Misskelley confessed and was convicted and you're e
3   co-defendant, and we're about to start this trial. Do you
4   consent to starting the trial and not have a continuance?
5   A. We may have discussed it with him. I don't specifically
6   recall whether or not we discussed that specific issue with
7   him.
8   Q. If you discussed that issue with him, would it appear in
9   your notes on the twelve or more legal pads that you've
10  preserved about this case?
11  A. Not necessarily, no, sir.
12  Q. Do you really in your heart think you talked to Mr. Echols
13  about this -- about moving for a continuance from two weeks
14  after the Misskelley trial?
15  A. Do I really in my heart?
16  Q. Do you believe that?
17  A. I mean, I really in my heart think I talked with Mr.
18  Echols about every major decision made in this case.
19  Q. Do you think you talked to him about moving for a
20  continuance?
21  A. I don't -- as I said, I don't specifically recall if I
22  talked to him about that particular decision.
23  Q. Do you think you talked to him after you heard Mr. Arnold
24  say, you should have moved it somewhere else?
25  A. You mean immediately after that?

300


1   Q. Yes, sir.
2   A. No, if it's not in the record, it's not in the record.
3   Q. Did you tell Mr. Echols, the problem is we have this law
4   in the State of Arkansas. We can't move out of our circuit?
5   Did you tell him that?
6   A. I don't know if I specifically told him that at that time.
7   I think I would have discussed it with him at some point during
8   my representation but I'm not -- I don't specifically recall.
9   Q. That's intuitive thinking about what seems to be logically
10  you ought to have done?
11  A. Right.
12  Q. Do you believe that there's a law in the State of Arkansas
13  that prohibits the Court from continuing a case in order to
14  allow the effects of publicity to dissipate?
15  A. don't think there's a law that prohibits it. Now I
16  think --
17  Q. Is it -- is it your experience as the Judge's -- you know,
18  a motion is a request for an order, right?
19  A. That's correct.
20  Q. And generally, it is true that in certain circumstances a
21  Judge can just enter an order on his own. That's called a sua
22  sponte order, right? A Judge can do something 'cause he thinks
23  it's the right thing to do, correct?
24  A. It happens very seldom, but, yes, sir.
25  Q. Yeah. Most of the time what Judges do is let lawyers make

301


1   requests for orders and hear the other side respond and then
2   the Judge decides what would be a proper exercise of
3   discretion, right?
4   A. Right.
5   Q. No motion, no order, right?
6   A. Generally, that's correct, yes, sir.
7   Q. The lawyers' job is to make the motion?
8   A. Yes, sir.
9   Q. No motion, no order, nothing to preserve for review,
10  right?
11  A. Yes, sir.
12  Q. If you would, please, Mr. Price, turn to the piece of
13  paper that has page three ninety-nine on the upper right
14  corner.
15  A. (WITNESS COMPLIES.} Number twenty-four?
16  Q. It's marked for -- it's marked for purposes of
17  identification as twenty-four, and in handwriting it says,
18  "Questioning by prosecutor," and this time we might have it
19  right, because it starts out with on line three, "Mr. Davis."
20  And that would be Mr. Brent Davis, the prosecutor?
21  A. Yes, sir.
22  Q. In -- in this group of people which included a man who I
23  believe was on active duty in basic training in Florida --
24  A. Right.
25  Q. -- received his Jury Summons. Did you know that person?

302


1   You didn't know him, did you?
2   A. Prior to trial, no, sir.
3   Q. Yes, sir. On -- we'll turn over to -- starting on line --
4   on the first page, three ninety-nine, line four, Mr. Davis
5   says, "Has each of you read about this case? Mr. Billingsley,
6   have you had a chance down in Florida to read about or hear
7   about this case?"
8   Mr. Billingsley answered, "No. When I filled out the
9   questionnaire, at that time I was in basic training. I had no
10  idea it was this serious as far as what was going on really. I
11  got little bits and pieces in the few days that I've been here.
12  I really don't know what's going on. I don't know the facts."
13  You -- you recall that Mr. Billingsley came here from
14  Florida in response to his Jury Summons?
15  A. Yes, sir.
16  Q. Then with Mr. Billingsley present, I believe -- we have
17  pages three ninety-nine and four hundred and then we skip to
18  page four hundred and eleven -- I believe there is a question
19  by Mr. Ford or Mr. Wadley on behalf of Mr. Baldwin and you're
20  present, and the question is asked --
21  A. Which page are you on?
22  Q. I'm on page four eleven.
23  A. All right.
24  Q. Beginning with line nine, I believe this was one of Mr.
25  Baldwin's attorneys who asked in Mr. Billingsley's -- the

3

O3
1   military man's presence -- "...Ms. Childers, tell me again
2   where you heard about this case before."
3   Answer: "First time?"
4   Question: "Yeah."
5   Answer: "Radio and television, heard people talk."
6   Question: "Tell me what you can recall -- relate to me
7   what you heard other people say?"
8   When you read lines fourteen and fifteen of page four
9   eleven with the questions we think were Mr. Baldwin's
10  attorneys, "Tell me what you heard other people say," we do not
11  see a sua sponte objection by the Court interrupting the
12  interrogation, correct?
13  A. Correct.
14  Q. And we do not see any objection by you or Mr. Davidson on
15  behalf of Mr. Echols, right?
16  A. Correct.
17  Q. We see the answer, "Ah, that there were sexual mutilations
18  involved, witchcraft was involved."
19  Question: "Anything about who did it?"
20  Answer: "As far as the names?"
21  Question: "Anything. Tell me what has been discussed --
22  what you remember."
23  Now, the attorney for Mr. Baldwin, we think is asking,
24  what did you hear and what do you remember, in the presence of
25  Mr. Billingsley and other Jurors, right?

304


1   A. Right.
2   Q. As far as we can tell.
3   "They thought it was some young boys that had committed
4   it. As far as names or anything, that didn't stick in my
5   mind."
6   Question: "Mr. Bennett, what about you? Tell me what ---
7   relate to me if you can what your knowledge is."
8   And then Mr. Billingsley on four twelve begins to answer
9   and jumping down to line thirteen of four twelve, "Okay. Since
10  the arrest, have you continued to follow this, keep up with
11  it?"
12  Answer: "Not real close. I mean, you can't help but --
13  like you say, when you pick up the paper and it's on the front
14  page or you turn to Channel Eight and there it is."
15  So he's telling us not exactly what he heard, but who he
16  heard it from -- what the media were that he was listening to,
17  correct?
18  A. Right.
19  Q. Mr. Billingsley is still present -- as nearly as we can
20  tell from the transcript?
21  A. Yes, sir.
22  Q. But Mr. Billingsley who came here in response to his Jury
23  Summons, not knowing anything about the case, is present when
24  the other jurors are asked, what are the media that you listen
25  to, Mr. or Mrs. Prospective Juror? And, apparently, if you

3

O5
1   look at page four twelve, by Baldwin's lawyer, what did you
2   hear?
3   Four eleven -- page four eleven, what did you hear? Now,
4   you have already heard the Judge say in response to a question
5   of a parishioner, what did you hear at church? You've heard
6   the Judge say, I don't think you should do that in the presence
7   of the other jurors.
8   Is there some tactical reason, some -- some strategic
9   reason that you're gonna help Mr. Echols by letting one
10  prospective juror blurt out what they've heard in the presence
11  of another prospective juror?
12  A. Yes, sir.
13  Q. Why did it help Mr. Echols for you to invite, or be
14  presented when others invite, without your objection, one juror
15  to blurt out what they said in the presence of others.
16  A. The fact that some of the jurors had heard things from the
17  media about the case, and the fact that the prospective jurors
18  had heard things about Mr. Misskelley's case, our case was
19  different. There was some -- several different factors that
20  were different in our trial than Mr. Misskelley's trial.
21  Q. You don't know what a prospective juror is going to say
22  when the question is asked, what did you hear, right?
23  A. When I asked it -- the question -- that's correct.
24  Q. When a prospective juror is asked, you don't know the
25  answer.

306


1   A. Sure. Right.
2   Q. When a prospective juror is asked, what is the content of
3   the information you got from the television, you don't know
4   what the answer's gonna be, right?
5   A. That's correct.
6   Q. When a prospective juror is asked, what did you hear from
7   your neighbors or friends, people at school and church, what is
8   the information -- the content of the information you got about
9   the case, you don't know what the answer's gonna be, right?
10  A. That's correct.
11  Q. And you want to have jury selection in little groups of
12  three and four -- as I've heard the discussion today with the
13  Court -- and you agreed to a system of doing it in little
14  groups of three and four -- in order to prevent the answers of
15  one juror from contaminating another juror who doesn't have
16  that same information, right?
17  A. Right.
18  Q. Can you explain then for the record, what is the
19  difference between having six people present and a juror
20  answers, I'll tell you what I've heard, and three people
21  present or thirty people present? What is the difference?
22  A. What's the difference in what?
23  Q. In the risk of contaminating the other jurors present?
24  A. I'm still -- I don't understand the question.
25  Q. You were concerned about contamination?

307


1   A. Yes.
2   Q. You didn't want jurors asked about the content of their
3   knowledge of the case in the presence of other jurors?
4   A. That's correct.
5   Q. You fear a juror blurting out an answer that would
6   contaminate other jurors?
7   A. Yes, sir.
8   Q. By contaminate I mean giving information they don't
9   already have, right? Is that -- is that what you would do?
10  A. That's one of the things of contamination, yes, sir.
11  Q. Okay. Contamination might mean that you've given them
12  facts they don't already have, right?
13  A. Informa -- you're saying facts. I don't agree that what
14  -- what the people have heard about the case were necessarily
15  facts in the case.
16  Q. All right. Would contamination include making statements
17  that might tend to give them an opinion about whether the
18  defendants are guilty or not guilty of what they stand accused
19  of?
20  A. Yeah, it could be a factor. Yes, sir.
21  Q. And that's why you wanted to do the jury selection in
22  small groups, right?
23  A. Yes, it was.
24  Q. How do you square that with your failure to object when a
25  question's asked, what is the content of what you've read, even

308


1   in small groups? How is that a tactical decision that helps
2   Mr. Echols?
3   A. Because the jurors are told the information that they know
4   about the case -- or that they've heard about the case --
5   they're supposed to put that out of their mind and not consider
6   that and base their decision on the facts and the evidence that
7   are introduced at the trial.
8   Q. Of course, they would be told that if you did the jury
9   selection in one big group, wouldn't they?
10  A. That's correct.
11  Q. To intelligently exercise a peremptory -- a peremptory
12  challenge -- I'll go back. A peremptory challenge is a strike
13  you make because you've decided you don't want the juror
14  seated, right?
15  A. Yes, sir.
16  Q. Now, you're -- as I understand it -- you're not to make a
17  peremptory challenge against a person because of your opinion
18  about some characteristic of their race, correct?
19  A. That's the current status of law.
20  Q. Was that the law in 1993?
21  A. Well, I don't -- there's the Weatherspoon and Batson
22  cases and I don't recall exactly what they were.
23  Q. Do you remember when Batson was decided?
24  A. Not specifically the date.
25  Q. Would it jog your memory a little bit to say it was

309


1   decided before 1993 --
2   A. That's -- that's fine. I mean, race wasn't a factor here.
3   Q. Ah, all right, race wasn't a factor. So other than some
4   constitutionally forbidden reason, you can use a peremptory
5   challenge on anybody, right?
6   A. Yes, sir.
7   Q. And you try to make intelligent use of your peremptory
8   challenges?
9   A. Yes, sir.
10  Q. Would you want to know what a person already knew or had
11  heard or seen about a case in order to help you make peremptory
12  challenges?
13  A. Sometimes you would and sometimes you don't.
14  Q. Why would you not be interested in knowing what a person
15  already knew about a case? How would that help you make a
16  peremptory --
17  A. But sometimes a juror knows something but says they don't
18  know anything about it, and you've got to exercise your strikes
19  anyway.
20  Q. So the reason that you don't want to ask a juror -- as I
21  understand your theory of how to try a case -- the reason you
22  don't want to ask a juror, what do you know, is you think the
23  juror would just lie to you anyway?
24  A. I wouldn't -- that's one possible reason. I mean --
25  Q. Is that the reason you didn't ask the question in this

310


1   one?
2   A. I'm not -- that may be one of the reasons. There are
3   probably other reasons why we didn't ask jurors specific
4   questions.
5   Q. Well, in addition to your belief that the jurors will just
6   lie to you about what they already know, what were the other
7   reasons you didn't ask the jurors, what do you know?
8   A. Because even if the jurors know stuff about what --- have
9   heard information about the case, our case is different than
10  what had been in the media prior to the trial. And our case
11  was different than Mr. Misskelley's case. We had different
12  witnesses than were used in the Misskelley case. The state had
13  different evidence that they were putting forth in our case --
14  some of it was similar -- some of it was different. And the
15  fact that jurors had heard some o@ the things about the case
16  prior to the trial -- I mean, our case would be different. And
17  I don't think that the fact that they had heard several things
18  prior to the trial would necessarily -- it once -- once they
19  hear the information in our trial, things are different. And I
20  think they would change their mind. And I think they would
21  change their mind and not necessarily go with what they had
22  heard as opposed to what the evidence came out.
23  Q. So as I understand it, you made a strategic decision that
24  you would not ask the jurors what they knew, first, because
25  they'd lie to you. Second, because the evidence they would

311


1   hear could potentially be different than the evidence they
2   already heard?
3   A. Yes, sir.
4   Q For example, a juror could say, well, what I heard was
5   that Misskelley confessed that these three boys committed this
6   murder together and --
7   A. And the confession was not admissible at our trial.
8   Q. -- the confession wouldn't come into evidence. And so
9   you'd get a not guilty because they'd be disappointed about
10  not hearing the confession and they'd probably come out and
11  say, we found him not guilty because we didn't hear the
12  Misskelley confession. That was your thinking?
13  A. I mean about being disappointed about not hearing -- I
14  wouldn't assert --
15  Q. And your -- your thinking was that -- that -- that
16  whatever they had heard and you didn't know what it was, your
17  evidence might be different?
18  A. And it was different.
19  Q. And besides that, they're potentially all liars anyway?
20  A. I'm not saying that all of the jurors are potential liars.
21  Q. Did you ever conduct some sort of study or read any
22  literature or do anything to make a determination about what
23  percentage of the prospective jurors in Jonesboro are liars?
24  A. I'm not saying any percentage of Jonesboro people are
25  liars. I did read books about voir dire.

312


1   Q. What books did you read about voir dire?
2   A. The Kat Bennett books.
3   Q. And -- and if we refer to the books by the person that you
4   call Kat Bennett --
5   A. Or Kathy Bennett.
6   Q. Kathy Bennett. If we refer to Kathy Bennett's books about
7   the subject of jury selection, can we then find a guide for how
8   you believe voir dire should be conducted in a murder case
9   involving a triple homicide of eight-year-old boys in a trial
10  commencing two weeks after the trial of a co-defendant who had
11  confessed, is that -- is that a good place for me to go?
12  A. That's a good place for you to go to look to see what I
13  looked at in preparing for the trial. I mean, there were
14  certain things in that book I -- that I didn't follow probably,
15  as with anything.
16  You know, I based my voir dire on sixteen -- well, at the
17  time, three years ago -- thirteen years of trials. I based my
18  -- my voir dire preparation on what I learned at the National
19  Criminal Defense College in Macon, Georgia, for two weeks. I
20  also based it on going to at least two different N. A. C. D. L.
21  seminars in the past. And I know one of them that I went to
22  jury selection has been topics that I've heard at several
23  different seminars.
24  Q. Did Kathy Bennett say, don't ask the jurors the contents
25  of the publicity that they've read?

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1   A. I don't know if she specifically said that.
2   Q. Did she say that not specifically but generally?
3   A. I mean, I don't -- you asked what I used to prepare for
4   the voir dire. I looked and I referred to that book.
5   Q. Did Kathy Bennett say, don't ask people what they know
6   about the case. They'll just lie to you anyway?
7   A. I don't specifically know. Yeah, you're welcome to -- to
8   look at the book and see what it says and see what it doesn't
9   say.
10  Q. Do you have the book available?
11  A. It's at my office, yes, sir.
12  THE COURT: Is the author from Texas?
13  THE WITNESS: Yes, sir, from Houston. Well,
14  she's now deceased, but she's from Houston, Texas --
15  was from Houston, Texas.
16  MR. MALLETT: Actually Galveston, Texas, would
17  be more correct.
18  Is the Court holding that against her?
19  THE COURT: I just wanted to be sure that, you
20  know, that we had it in the record that she was a
21  Texan.
22  MR. MALLETT: I'm trying to remember if she's
23  from Texas, your Honor. I know that she had an
24  office in Texas.
25  THE WITNESS: She had relatives in Arkansas at

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1   one point.
2   MR. MALLETT: Let me go on to something else.
3   For the record, your Honor, and -- and only as a
4   demonstrative aid, we would move the exhibit -- the
5   admission of Exhibits marked Sixteen through Twenty-
6   nine, not in place of or to be given weight in
7   preference to the real evidence which is Exhibit
8   Thirty -- but as a demonstrative aid to assist us in
9   our argument and briefing at a later time.
10  MR. DAVIS: Your Honor, the question I have and
11  this came up when we introduced it for identification
12  purposes only, if these portions become a part of the
13  record and they go up on appeal and it's being
14  reviewed by an appellate court, what difference does
15  it make if they're introduced as Exhibits for
16  demonstrative purposes only or if they're introduced
17  as good, wholesome one hundred percent regular old
18  exhibits for purposes of this hearing, they're still
19  gonna be reviewed. And these are all items that have
20  his notes and handwritten comments along the sides,
21  and that would clearly be inappropriate for any of
22  that to go up and be considered by an appellate
23  court. He might as well testify.
24  MR. MALLETT: I'm only offering it to
25  demonstrate the information we want to demonstrate.

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1   If our notes are in error, then they're in error.
2   We'll concede that. I'm just seeking to enter it for
3   demonstrative purposes because I think it'll help --
4   THE COURT: Well, you can use 'em for whatever
5   purposes you want, but I'm not receiving 'em in
6   evidence for this hearing. I've received Exhibit
7   Thirty, the entire record. So for your briefing
8   purposes, you can point out whatever you want. You
9   can use those as your own aid or guide.
10  MR. MALLETT: Can I ask if these that have been
11  offered for admission for demonstrative purposes be
12  kept by the Court Reporter with the papers of the
13  case.
14  THE COURT: Well, they've been received for
15  identification so you could use them to question
16  witnesses in this proceeding.
17  MR. MALLETT: Okay.
18  THE COURT: But they're not received as evidence
19  per se.
20  BY MR. MALLETT:
21  Q. Let's talk about Home Box Office. Tell me how it came
22  about that you were contacted by someone wanting to make a
23  movie.
24  A. They had either contacted myself or Mr. Davidson at some
25  point.

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1   Q. Do you have a -- and I'm not asking you that question
2   now, but we'll have a lunch break in a few minutes -- do you
3   have available to you in these twelve note pads that you've
4   preserved a way that you could refer and find the date that the
5   first contact was made?
6   A. I mean, I'll be glad to look on the note pads. I don't
7   know if I specifically -- if it's on there or not.
8   Q. And I can't remember -- who contacted you, if you can
9   recall -- you can't recall when you were contacted. Can you
10  recall who contacted you? Was it Mr. Davidson who called you
11  and said, I've got this call from these movie people? Do you
12  remember how it all started in your mind?
13  A. I don't -- I don't recall. I either -- I assume I either
14  got the phone calls or Mr. Davidson got the phone calls. We
15  conversed. We started talking about it at that point.
16  Q. And was this was as early as June -- which I think is the
17  month that you got the appointment?
18  A. I don't recall the specific date. Do you know the date
19  the contract was signed? Do you have that?
20  Q. Yes. The date the contract was signed was the third week
21  of the trial. You had been in trial some two weeks, I think,
22  when you signed the contract. So that doesn't help me very
23  much.
24  A. I mean, it was some point -- I mean, I'd be glad to -- to
25  look -- to look at my files. I'd be glad to talk to Mr.

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1   Davidson, and Mr. Lax was involved some in the discussions back
2   and forth.
3   Q. If the contract shows that it was signed on March 15,
4   1994, we're talking about a date that you're well into the
5   trial.
6   A. Right.
7   Q. The trial began in February?
8   A. Late February. The twenty-second, maybe.
9   MR. MALLETT: Excuse me, your Honor.
10  THE COURT: All right.
11  BY THE WITNESS:
12  A. I'm assuming we've got some letters, correspondence back
13  and forth between them. And I know at one point we had a --
14  I think it was a hearing of some kind at the Federal Building
15  -- 'cause this courthouse was cleared -- was busy -- dealing
16  with I believe the HBO attorney. They had some attorneys that
17  came up from Little Rock on an aspect of the case.
18  Q. Well, I'm interested in the -- your dates of contact. And
19  you said you'd like to look when the contract was signed, and
20  it appears to me that the contract I've seen was signed on
21  March the fifteenth.
22  A. Okay. I mean, I'd be glad to look it -- I think I've got
23  a file or two of correspondence.
24  THE COURT: Well, the contact -- the original
25  contact, is that what you're asking about now?

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1   MR. MALLETT: Yes, sir.
2   THE COURT: It had to be way before even the
3   first trial --
4   THE WITNESS: Yeah, I'm sure it was.
5   THE COURT: -- because there was an agreement
6   between the prosecution and the defense to allow the
7   Home Box Office camera in the courtroom. So that --
8   the initial contact had to be way before even the
9   first trial.
10  BY MR. MALLETT:
11  Q. All right, so looking at the date of the contract doesn't
12  tell us very much.
13  A. No, sir.
14  Q. So you'll look in your files. And I'm just interested in
15  getting the chronology of the arrangement. If you'll during
16  the break perhaps find a few minutes to look at your notes.
17  Did you have -- let me think -- I know you were never an
18  insurance defense lawyer, you've been a public defender for
19  most of your career, did you ever have a job with a law firm at
20  all?
21  A. I had a -- I was a -- associated with a law firm for two
22  or three years.
23  Q. Any special training there in the field of entertainment
24  law?
25  A. Not a bit.

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1   Q. Have you attended seminars educating you about the
2   customary arrangements between people who want to make movies
3   and people that --
4   A. No, sir.
5   Q. -- would like to have money for being in the movies?
6   A. No.
7   Q. Okay. Is it fair to say that this is your experi -- first
8   experience of being involved in negotiations over a contract to
9   make a movie?
10  A. Yes, sir.
11  Q. Have you ever been in a movie --
12  A. No, sir.
13  Q. -- before this?
14  A. No.
15  Q. Probably had -- probably had some occasions where the
16  cameras attacked you as you left the courtroom, but you've
17  never gone out and negotiated to be in a motion picture before?
18  A. And I -- and I didn't negotiate to be in a motion picture
19  this time either.
20  Q. Okay. Okay. You were appointed to be Damien Echols'
21  lawyer and to look out for Damien Echols' interest?
22  A. Yes, sir.
23  Q. And one of the things that was of concern to you in the
24  fall of the 1990 -- in 1993, was what could be done to assist
25  you in preparing a full and complete defense for Damien Echols?

320


1   A. Yes, sir.
2   Q. And you have provided me today a document that is a draft
3   of a Motion for Appropriation of Funds for Expert Witness in
4   the Guilt/Innocence and Mitigation Phase?
5   A. Yes, sir.
6   MR. MALLETT: Can I have this marked, please,
7   as Exhibit Thirty-one?
8   (EXHIBIT NUMBER THIRTY-ONE IS MARKED BY THE
9   COURT REPORTER.)
10  THE COURT: Is that a Motion that was filed with
11  the Court?
12  THE WITNESS: No, sir. It was a rough draft of
13  one that we had prepared and talked about, but
14  decided not to file.
15  BY MR. MALLETT:
16  Q. You and I spoke -- and you had two or three drafts that
17  appears to be that this is probably the latest and most
18  complete draft? Is that correct?
19  A. Yes. I've got one here that had a lot of writing on it.
20  And then I've got one similar to the one you have which I think
21  the second page the paragraph is -- one's double spaced and
22  one's single spaced. I think that's the only difference.
23  Q. I'm just trying to be sure that we have for the Court's
24  edification the Motion that is the most advanced, most
25  developed, most thorough and complete of the draft motion that

321


1   you didn't file.
2   A. That -- yes, sir, I believe that's the correct one. There
3   was a stamp mark at the top November fourth, received -- I
4   don't know if -- that may have been -- I don't know if that was
5   a stamp that Mr. Davidson had put on there or Mr. Lax put on
6   there, but --
7   Q. Maybe received in his office?
8   A. Yes. Around November.
9   Q. And does this motion fairly and accurately reflect your
10  state of mind about the sorts of assistance that Damien Echols
11  was entitled to to have a full and fair defense of his trial?
12  A. That motion indicated to the -- the types of individuals
13  that we had thought about.
14  Q. Well, you prepared the motion with the thought of filing
15  it?
16  A. Yes, sir. We -- we -- this was a fairly inclusive motion.
17  Q. In fact, I think you testified at the previous proceeding
18  that you did a lot of thought about expert witnesses?
19  A. Yes, sir.
20  Q. That in connection with doing your thought about expert
21  witnesses you were concerned about preparing the best defense
22  you could for Damien Echols?
23  A. Yes, sir.
24  Q. That in connection with thinking about experts and
25  preparing the best defense for Damien Echols, you prepared a

322


1   draft of a motion?
2   A. Yes, sir.
3   Q. That this Home Box Office situation came along and after
4   that you had the hope of using Home Box Office as your cushion
5   as your basis for your expenses for trial, and therefore, you
6   didn't file the motion?
7   A. Yes, sir.
8   Q. So beginning sometime at least as early as November the
9   fourth, you had in mind that Mr. Echols would benefit from the
10  things in this motion, and then Home Box Office came along,
11  you didn't pursue the matter further?
12  A. Yes, sir. Now, it may have been before November.
13  Q. And with -- and as to Home Box Office we have attached to
14  our pleadings as Mr. Price -- Mr. Davis has reminded me -- the
15  Home Box Office contract was executed on March the fifteenth of
16  1994, right?
17  A. I mean, I haven't seen your pleadings. I'm assuming.
18  Q. Well, there is only one contract from Home Box Office?
19  A. Yes, sir. One signed contract.
20  Q. One signed contract -- well, I mean --
21  A. Well, there may have been a draft back and forth.
22  Q. Right. But a signed contract indicates a meeting of the
23  minds --
24  A. Yes, sir.
25  Q. -- and both people consent to the contents of what is

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1   signed?
2   A. Yes, sir.
3   Q. So if we have a signed contract attached to our Rule 37
4   Motion and it's dated March 15, 1994, then you would take that
5   as the date that you ratified your meeting of the minds and
6   signed the contract?
7   A. That's the date that we signed the contract, yes, sir. I
8   think we orally agreed with them prior to that date.
9   Q. Do you think that Home Box Office contacted you about
10  working on a contract for a movie -- it would not be a movie of
11  you, but it would be a movie of the case? Is that -- is that
12  -- is that my understanding of what it says?
13  A. Yes, sir.
14  Q. Okay. Home Box Office wanted to make a movie about the
15  episode in which there was a tragic and horrible and violent
16  killing of three eight-year-old boys in West Memphis, Arkansas.
17  A. Yes, sir.
18  Q. In which three teen-age boys had been accused and charged
19  with capital murder.
20  A. Yes, sir.
21  Q. And they wanted to tell the story of the offense -- the
22  triple murder, right?
23  A. That is one of the things they wanted to do. Yes, sir.
24  Q. The arrests and accusations against the three teenaged
25  boys.

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1   A. Yes, sir.
2   Q. The trial that would someday -- or trials as it turned out
3   to be -- that would someday occur?
4   A. Yes, sir.
5   Q. And whatever else occurred from then until they put the
6   movie in the can and sent it to their producers to see if it
7   could be sold?
8   A. Yes, sir.
9   Q. And you knew that this wasn't like NBC News doing a news
10  report. This was gonna be a motion picture.
11  A. It was -- yes, sir -- a documentary motion picture.
12  Q. A motion picture?
13  A. Yes, sir.
14  Q. It's gonna be sold on television?
15  A. Yes, sir.
16  Q. Probably on a cable station?
17  A. HBO, yes, sir.
18  Q. With advertising?
19  A. Yes, sir.
20  Q. And you knew that HBO movies are routinely also sold and
21  re-sold to retain outlets like Blockbuster Video --
22  A. Sure.
23  Q. -- or Hollywood Video and all these other companies?
24  A. Yes, sir.
25  Q. So there was gonna be a movie that was made about the case

325


1   that would be commercially available throughout the United
2   States of America?
3   A. Yes, sir.
4   Q. And knowing that you -- you -- you withdrew from your
5   plans to communicate with the Honorable David Burnett, Circuit
6   Judge, about what Damien Echols needed for his defense, and
7   instead you would rely on Home Box Office to fund the things
8   that you had in your proposed motion?
9   A. You said about what Damien Echols needed for his -- I'm
10  confused on that part of it.
11  Q. You decided you'd go to Home Box Office instead of Judge
12  Burnett at pretrial for help getting the case ready.
13  A. Yes, sir.
14  Q. Well --
15  MR. MALLETT: May I have an indication when the
16  Court customarily takes its break?
17  THE COURT: In about two minutes. You ready to
18  break now?
19  MR. MALLETT: Yes, your Honor.
20  THE COURT: All right. All right, court will be
21  in recess until one-thirty.
22  (RECESS.)
23  (RETURN TO OPEN COURT. )
24  (THE FOLLOWING CONVERSATION WAS HELD AT THE
25  BENCH.)

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