JUNE 9, 1998 (Page 3)

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1   MR. MALLETT: With reference to the Court's
2   schedule, I understand the Court has a busy docket
3   and lots of people need judicial attention. I feel
4   that in order to fully examine Mr. Price and also to
5   fully present our expert, I need for the record to
6   contain the contents of the motion picture. I know
7   this is something the Court wouldn't look on with a
8   great deal of excitement, but that's the reason we
9   have this VCR and television that we requested be
10  brought --
11  THE COURT: Play the whole thing?
12  MR. MALLETT: Yes, sir. And I think that the
13  evidence needs to be received in the courtroom and I
14  tell you that because if we play it then that'll take
15  up right up to close to four o'clock.
16  I have a movie in the box unsealed in the
17  commercial format. I've marked it to be an exhibit
18  and shown it to Mr. Davis. It has not been -- the
19  seal has not been broken. It's in the form it's in
20  when you buy it across the shelf -- twenty-nine,
21  ninety-five. And -- and so I indicate to the Court
22  for purposes of scheduling and also understanding --
23  THE COURT: What is the purpose of playing the
24  thing?
25  MR. MALLETT: For the Court can see the evidence

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1   of the contents of the movie.
2   THE COURT: Well, I'll just receive the -- the
3   -- the tape into evidence.
4   MR. MALLETT: I -- I expected as I was
5   contemplating my need to make my record that the
6   state -- state or Court may have some reluctance to
7   let the movie played in the courtroom if only for
8   reasons of economy of time.
9   THE COURT: Well, I don't have any reluctance to
10  let it be played. I just don't care to see it. I
11  don't see any need to see it.
12  MR. MALLETT: Well, I'm gonna need a ruling
13  because I believe that I am doing the duty imposed on
14  me by law when I ask the Court to let me publish the
15  contents of the movie by playing the movie in the
16  courtroom so that the information on the movie will
17  be received in the courtroom as evidence in the case.
18  THE COURT: I'm gonna receive everything
19  contained on the tape in -- in the case.
20  MR. MALLETT: May I play it?
21  THE COURT REPORTER: Can I -- you're not
22  expecting me to take down what's said in the movie?
23  MR. MALLETT: No, I -- I would say for the
24  record that I have been in more than one trial in
25  which the prosecution had tape recordings of -- most

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1   often in cases involving narcotics trafficking and
2   they have consensual recordings, and I'm sure Mr.
3   Davis has prosecuted such cases.
4   I also have been in cases where a defendant was
5   charged with the offense of driving while
6   intoxicated. Ah, I --
7   THE COURT: We have videotapes of that on
8   occasion, too, particularly the breathalyzer portion
9   if that's what you're talking about.
10  MR. MALLETT: And, of course, obscenity cases.
11  THE COURT: But it's a little different than
12  this. This is a commercial tape that's been Home Box
13  Office and I guess half the world saw it if they
14  wanted to look at it. I don't see any purpose in
15  playing it. I've seen it.
16  MR. DAVIS: The only question I -- the thing
17  that I was concerned about is if they put their
18  expert on and we're rushed in cross examining him, I
19  don't want that to happen this afternoon. I could
20  care less if they want to play the movie and take
21  part of their time to do that.
22  MR. MALLETT: My expert will be here tomorrow.
23  He's available tomorrow. The scheduling of my expert
24  --
25  THE COURT: All right, that's fine. That takes

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1   care of that, but what is the purpose of playing the
2   tape?
3   MR. MALLETT: To be able to question Mr. Price
4   and any subsequent --
5   THE COURT: About the content of the tape? I
6   don't think he had any editorial license on it.
7   MR. MALLETT: Well, no, but he is a speaker on
8   the tape. He is portrayed on the tape. It is not
9   just --
10  THE COURT: Of course, you --
11  MR. MALLETT: -- interviews of the defendant,
12  Damien Echols. It is Mr. Price, Mr. Lax and others
13  sitting around making strategic decisions about how
14  to conduct the defense of the case. That's a portion
15  --
16  THE COURT: Yeah, I recall that stuff.
17  Particularly the session with Mr. Ford and Mr. Wadley
18  and Dan Stidham. I think there was one of Val in it,
19  also.
20  MR. MALLETT: I think that I have to have a
21  ruling forbidding me from playing the tape or else I
22  have erred in failing to offer the evidence that is
23  on the tape.
24  THE COURT: I'll receive what's on the tape.
25  MR. MALLETT: May I play the tape?

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1   THE COURT: I guess so. It's a total waste of
2   time but I -- I mean, I don't understand why it needs
3   to be played. But if you want to go ahead and do it
4   -- I suppose you're gonna ask him --
5   MR. MALLETT: If I understand the rules of
6   making a record and offering all the evidence, I
7   think the contents have to be played.
8   THE COURT: All right.
9   All right, let's proceed.
10  MR. MALLETT: Thank you, your Honor.
11  BY MR. MALLETT:
12  Q. Mr. Price, I am holding what is marked as Petitioner's
13  Exhibit Thirty-one, Motion for Appropriation of Funds for
14  Expert Witness in the Guilt/Innocence and Mitigation Phase. We
15  were talking about this when we took the lunch recess.
16  As nearly as you can tell, this is the most complete,
17  latest and last copy of the motion for funds for expert
18  witnesses that you had prepared?
19  A. Yes, sir.
20  Q. And it was a document that you had under consideration --
21  ah, the level of completion that was under consideration --
22  when you determined that you would turn to the alternative of
23  Home Box Office and not file the motion?
24  A. Yes, sir.
25  MR. MALLETT: I move for the admission of

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1   Exhibit Thirty-one, your Honor.
2   MR. DAVIS: No objection.
3   THE COURT: All right, it may be received.
4   (PETITIONER'S EXHIBIT NUMBER THIRTY-ONE IS
5   RECEIVED IN EVIDENCE.)
6   BY MR. MALLETT:
7   Q. Mr. Price, I indicate to you that the motion runs --
8   including the signature pages -- a some thirteen pages that has
9   signature lines for you and Mr. Davidson, and it is
10  substantially a complete form and could have been filed in its
11  present form. Does that seem accurate to you?
12  A. Yes, sir.
13  Q. And there's a stamp on it "Received November 4" which
14  means it was available on or before November the fourth,
15  correct?
16  A. That's correct.
17  Q. This stamp may be a stamp of Mr. Davidson's office?
18  A. Correct.
19  Q. Could it be a stamp of your office?
20  A. No, I don't believe I would stamp -- had a stamp.
21  Q. But it's not a stamp from the District Court's office?
22  A. No, it's not a file mark.
23  Q. It's not a filed copy. And you prepared this motion in
24  the good faith and belief that the statements you were making
25  in the motion were accurate as matters of fact?

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1   A. Yes, sir.
2   Q. And in the good faith and belief that the statements that
3   you were making were accurate as matters of law?
4   A. Yes, sir.
5   Q. You state in this motion in paragraph three, "The state
6   has used the services of numerous experts, including
7   pathologists, criminologists, criminal investigators, medical
8   experts, fluid analysis experts, trace evidence experts and
9   others, in the investigation and preparation of this case for
10  trial."
11  That's a true statement, isn't it?
12  A. Yes, sir.
13  Q. We have talked about the pathologist that was sent the
14  autopsy and coroner's report over in Atlanta. Do you recall we
15  talked about that a little earlier?
16  A. Yes, sir.
17  Q. Did the defense employ a criminologist in this case?
18  A. No, sir.
19  Q. You did employ a criminal investigator which was Mr. Lax?
20  A. Yes, sir.
21  Q. Did the defense employ a medical expert in the case?
22  A. No, sir.
23  Q. Did the defense employ a fluid analysis expert?
24  A. No.
25  Q. Did the defense employ a trace evidence expert with

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1   respect to comparisons involving hair?
2   A. By defense, are you referring to Mr. Echols' defense or --
3   Q. Yes, sir.
4   A. -- Mr. Baldwin's defense?
5   Q. Mr. Echols' defense.
6   A. No, sir, we did not.
7   Q. And did Mr. Baldwin?
8   A. Yes, sir.
9   Q. Who was that?
10  A. A gentleman out of Dallas, Texas.
11  Q. Did he prepare a report that you have read?
12  A. At some point, yes, sir. He testified at the trial.
13  Q. And did you employ a trace evidence expert with regard to
14  fiber evidence?
15  A. No, sir. Again, this gentleman, I think, was a hair and
16  fiber expert that Mr. Baldwin --
17  Q. You didn't present him?
18  A. That's correct.
19  Q. You did not -- you did not ask him to conduct any analysis
20  of evidence that you supplied to him?
21  A. That's correct.
22  Q. In your motion you quote some very important interesting
23  law, and I'm not gonna read it all, but I want to be sure that
24  you agree with the substance of it. For example, in paragraph
25  five, you say, "It is now well established that an indigent

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1   defendant in a capital case is entitled to such appointment
2   when the expert witness can provide insight on some significant
3   issues at trial."
4   You believe that, don't you?
5   A. Yes, sir.
6   Q. You say that, "Failure of this Court to order the funds
7   for expert witnesses be provided the defendant," -- this is on
8   page five -- "Failure of this Court to order that funds for
9   expert witnesses be provided the defendant will violate his
10  Sixth and Fourteenth Amendment rights to effective assistance
11  of counsel and due process of law."
12  You believed that when you wrote that, didn't you?
13  A. Yes, sir. Did you say on page five?
14  Q. I'm on page five at paragraph eleven.
15  A. Apparently --
16  Q. If I may approach.
17  A. -- the copy I have may be different.
18  Q. Do you agree that failure of this Court to order the funds
19  for expert witnesses be provided the defendant will violate his
20  Sixth and Fourteenth Amendment rights to effective assistance
21  of counsel and due process of law?
22  A. That's what's stated in the document here.
23  Q. And you wrote that document?
24  A. Yes, sir.
25  Q. And you believe that's true?

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1   A. Yes, sir.
2   Q. Believed it when you wrote it?
3   A, Yes, sir.
4   Q. You state in your motion under paragraph twelve (a) at
5   page five, "Examination of blood samples, hair samples, fiber
6   samples, saliva samples, DNA samples, semen samples, and
7   fingerprints. Forensic experts that the defense has contacted
8   require $1,000.00 up front to evaluate the physical evidence
9   and decide what additional tests, if any, are necessary. The
10  defense attorneys do not have the expertise to determine this
11  up front."
12  You wrote that?
13  A. Yes, sir.
14  Q. And you believed that when you wrote it?
15  A. Yes, sir.
16  Q. 'Cause it was true?
17  A. I believe that's correct.
18  Q. Under twelve (b) page five, "Investigator, mitigation
19  specialist, jury consultant, psychologist for mitigation and
20  Satanic cult expert, trace evidence and forensic science
21  expert."
22  Those are all things that you wanted to have and some of
23  which you did have, correct?
24  A. Correct.
25  Q. The statement, "The defense attorneys do not have the

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1   expertise to determine this up front," that refers to determine
2   whether these experts would be helpful or not helpful?
3   A. Yes, sir.
4   Q. In paragraph thirteen on page six, you say, "The defense
5   requests an ex partehearing on this motion under the
6   authority of Ake v. Oklahoma," -- citation -- "The ex parte
7   request is made because defense counsel does not wish to
8   unnecessarily disclose the defense mitigation case. The
9   defense requests that both the motion and the Court's judgment
10  be kept under seal until final disposition of this trial."
11  You wrote that?
12  A. Yes, sir.
13  Q. That was the request you were contemplating?
14  A. Yes, sir.
15  Q. Now, you heard Mr. Stidham say that he was concerned that
16  if he did an investigation, the state would sort of follow him
17  around and know what he was doing every step of the way. You
18  heard testimony like that, didn't you?
19  A. Yes, sir.
20  Q. And you knew when you wrote this motion on or before
21  November the fourth that on authority of the Supreme Court of
22  the United States you could file this request ex parte,
23  right?
24  A. Yes, sir.
25  Q. And ex partemeans the state does not get a copy?

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1   A. Yes, sir.
2   Q. You did not file this motion?
3   A. That's correct.
4   Q. You state on page eleven of your motion at the bottom,
5   "The state has paid already Genetic Design Laboratory in N. C.
6   $4,550.00 for DNA tests. The state has hired members of the
7   Alabama State Crime Lab to perform additional tests on physical
8   evidence that was previously tested by the Arkansas State Crime
9   Lab. All these tests have not been completed and the defendant
10  estimates they charge $100.00 per hour."
11  That was a truthful statement of what you knew about what
12  the state was doing over on their side?
13  A. Yes, sir.
14  Q. You say in the last page, "The defense is making a
15  meaningful attempt to cut down the costs of litigation keeping
16  in mind state and county budgeting concerns. However, in
17  reviewing the over 4,000 pages of discovery generated by the
18  state so far it is obvious that the state's investigation
19  primarily by the West Memphis police department and other
20  agencies has been supported by unlimited financial resources."
21  You wrote that?
22  A. Yes, sir.
23  Q. You wrote it because you believed it was true?
24  A. Yes, sir.
25  Q. And it was true so far as you know?

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1   A. Yes, sir.
2   Q. "The fact that at least 2 criminologists from the State
3   Crime Laboratory Trace Evidence Section were present at the
4   time of the execution of the search warrants on the defendants
5   homes looking for hair and fiber evidence is very unprecedented
6   and costly."
7   You wrote that?
8   A. Yes, sir.
9   Q. And believed it was true?
10  A. Yes, sir.
11  Q. Was true so far as you know?
12  A. Yes, sir.
13  Q. Still think it's true?
14  A. Yes, sir.
15  Q. So you were confronted at the time that you were holding
16  this motion with an unprecedented offense, correct?
17  A. Yes, sir.
18  Q. Unprecedented investigation by state authorities, correct?
19  A. Yes, sir.
20  Q. With apparently unlimited resources -- or at least no
21  limitation of the resources that the state had that you could
22  see?
23  A. Yes, sir.
24  Q. Doing anything they could think of and everything they
25  could think of, right?

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1   A. Right.
2   Q. And you were the public defender here in Craighead County
3   taking this out-of-county case by court appointment?
4   A. Yes, sir.
5   Q. Preparing a motion to ask the Court to give you an
6   assurance that you would have some help?
7   A. Yes.
8   Q. Didn't want to go broke on the case, right?
9   A. Yes, sir.
10  Q. In fact, you could go broke on this case and still spend a
11  lot less money than the prosecution was spending to gather up
12  evidence, right?
13  A. Yes, sir.
14  Q. And wanted to have, if you could, all those sorts of
15  evidence that you listed in the motion, all the -- excuse me --
16  all the sorts of experts that you listed in the motion as the
17  type of experts the state was using, correct?
18  A. Correct.
19  Q. You also had interest in having someone knowledgeable
20  about serology -- I think that was a topic -- blood typing. Is
21  that true?
22  A. Yes, sir.
23  Q. You knew from a previous case you had that the science of
24  odontology was admissible in Arkansas, was it not?
25  A. Yes, sir.

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1   Q. So as you say in your motion, you're not qualified --
2   standing alone -- to decide precisely what experts might be
3   helpful or relevant to proving Mr. Echols' denial of guilt?
4   A. Yes, sir.
5   Q. All right. You wanted experts to help you make the
6   decision about where to take the investigation?
7   A. Yes, sir.
8   Q. That's why, for example, as you were drafting the motion,
9   you talked about forensic science expert and criminologists --
10  people who are familiar with extraordinary and unprecedented
11  crimes in which a defendant was denying his guilt and could
12  tell you where to take your investigation. That's what you
13  wanted?
14  A. Yes, sir.
15  Q. And these people cost a lot of money?
16  A. Yes, sir.
17  Q. Which you did not have?
18  A. That's correct.
19  Q. Incidentally, I just -- don't mean to embarrass you -- but
20  for the record -- are you an independently wealthy man?
21  A. No, sir.
22  Q. And so a time came when a conversation started -- and
23  you're not sure how it started -- between you and Mr. Davidson
24  on the one hand and Creative Thinking, Incorporated on the
25  other hand about making the movie of the case?

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1   A. Yes, sir.
2   Q. And there was -- and you had no prior experience
3   negotiating a movie contract for yourself or any other person,
4   correct?
5   A. I've already testified to that. Yes, sir.
6   Q. And you took it upon yourself -- you and Mr. Davidson --
7   to negotiate this contract on behalf -- with Creative Thinking
8   International?
9   A. Yes, sir.
10  Q. On behalf of Mr. Echols?
11  A. Yes, sir.
12  Q. Which resulted ultimately at the end of the day in a
13  written contract being signed on March 15, 1994?
14  A. Yes, sir.
15  Q. At the time that that written contract was signed on March
16  15, 1994, Mr. Echols had already been interviewed by Home Box
17  Office at least once?
18  A. Yes, sir.
19  Q. So -- and at the time that contract was signed, you have
20  allowed Home Box Office to videotape yourself and Mr. Davidson
21  and others meeting to discuss the strategic decision in the
22  case of calling Mr. Mark Byers as a witness, correct?
23  A. Yes, sir.
24  Q. Now, that bit of tape -- that conversation, you gentlemen
25  deciding whether to call the step-father of a murder victim as

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1   a defense witness. That discussion was videotaped in absence
2   of the defendant, right?
3   A. A particular discussion about that was.
4   Q. Were you paid for that?
5   A. No, sir.
6   Q. Did you do that to help make the movie better?
7   A. That conversation -- actually the reality occurred earlier
8   in time. That was the only part of the movie itself that would
9   be classified as staged. We were kind of recreating the fact
10  that we'd had discussions about that and made the determination
11  prior to that time to call Mr. Byers as a witness as part of
12  our theory of the case.
13  Q. So you gentlemen agreed to a staged interview?
14  A. Yes, sir.
15  Q. To help make the movie more entertaining?
16  A. Perhaps.
17  Q. You knew that the more entertaining the movie the better
18  reviewed it might be by movie critics, right?
19  A. Perhaps.
20  Q. In fact it's in the agreement that you signed that the
21  producers reserved the right to show the movie at film
22  festivals, right?
23  A. Yes, sir.
24  Q. And film festivals are where movie critics and movie
25  producers gather to see movies that are not yet commercially

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1   available?
2   A. I believe that's correct.
3   Q. And you know as a reader of the newspaper, that you get
4   the previews in the spring of the movies that are coming out
5   this summer because the critics have gone to the movie festival
6   at Cannes in France or Telluride in Colorado, and they've seen
7   these movies, and they tell us what's coming up. You know
8   that's what happens at movie film festivals, right?
9   A. Sure.
10  Q. Okay. So you guys were gonna help this movie along by
11  having this staged interview. Were there other times that you
12  were filmed and footage was shot of you by the movie and the
13  footage did not find itself into the film -- as the movie
14  makers shot footage -- as they say, the footage must have been
15  lost in the cutting room floor?
16  A. I believe that was the only time that we actually had a --
17  were recreating a strategy decision in which we had them film.
18  Of course, all of -- even that particular interview wasn't --
19  didn't make it to the movie. Now, I think the -- Mr. Echols
20  had an earlier interview with them, and not all of that
21  interview was shown on the movie itself.
22  Q. As -- as I understand your answer, you're telling me
23  several things. You're telling me that there was only one time
24  that you became an actor and you staged an interview, right?
25  A. Yes, sir.

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1   Q. And portions of the performance that was staged to make
2   the movie better were lost in the cutting room floor?
3   A. Yes, sir.
4   Q. You didn't have any control whatsoever about what the
5   motion picture people did with footage that was shot as regards
6   to what part was put in the movie and what part was left out?
7   A. That's correct.
8   Q. You surrendered total editorial control and production
9   control to them, right?
10  A. Yes, sir.
11  Q. In addition to this staged interview, there were other
12  occasions when you agreed to talk to a Creative Thinking
13  International film makers and footage was shot of you talking?
14  A. Yes, sir.
15  Q. The contract did not call for these interviews, right?
16  A. I don't believe it did. If you've got a -- you're welcome
17  to check the contract and see what it says.
18  Q. Well, we're gonna go over it in just a minute.
19  A. Okay.
20  Q. Before we do -- rely on your remembrance. Haven't you
21  already agreed that the contract called for three interviews
22  with Damien Echols paying him a seventy-five hundred dollars
23  apiece ?
24  A. Yes, sir.
25  Q. The contract did not call for Val Price to help make the

345


1   movie more successful at film festivals?
2   A. Yes, sir, that's correct.
3   Q. Did not call for Val Price to help the movie be more
4   successful when produced for the American people on Home Box
5   Office?
6   A. That's correct.
7   Q. And the contract did not call for Val Price and Scott
8   Davidson to make the movie more successful when it was sold or
9   offered for rental at Blockbuster Video?
10  A. That's correct.
11  Q. Do you have Blockbuster Video in Jonesboro, Arkansas?
12  A. There is one here, yes.
13  Q. Hollywood Video, have you got one of those?
14  A. They've got one of those.
15  Q. Okay. So you were acting on your own desire to help the
16  movie succeed when you agreed to be an actor in a staged
17  meeting discussing trial strategy? You acted on your own, not
18  pursuant to a contractual obligation?
19  A. That's correct.
20  Q. You wanted the movie to succeed, didn't you?
21  A. Yes, sir.
22  Q. Do you have any -- do you know what a demand letter is? I
23  know that you've had a civil practice on the side during part
24  of the time you were public defender -- underpaid and
25  overworked is part of the way you -- earlier in your career

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1   like in 1992 or thereabouts -- you were able to have a civil
2   practice on the side. I think you talked about that last time.
3   A. Yes, sir.
4   Q. So you know what a demand letter is when a lawyer writes a
5   letter and says, pay me the money or me and my client won't do
6   what you want. You know about that, don't you?
7   A. Right.
8   Q. Do you have any files or correspondence to help document
9   the negotiations between you and Mr. Davidson on the one hand
10  on behalf of your client, Mr. Echols, and yourselves, perhaps,
11  and Creative Thinking International, a contractee with Home Box
12  Office on the other hand -- do you have any documentation of
13  those negotiations?
14  A. You asked me this morning to -- to see what information I
15  had concerning HBO. I've looked some. I can't seem to find
16  any -- any other direct letters back and forth --
17  correspondence.
18  Q. Just to shorten things up, did you have an opportunity to
19  ask Mr. Davidson if he had any documents that can tell us
20  about these negotiations?
21  A. Yeah, at one of the recesses I mentioned it to him.
22  Q. And he -- you don't believe -- your belief is he doesn't
23  have anything?
24  A. I don't think so. I mean, he's here in the audience if
25  you want to ask him.

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1   Q. I think that everybody in America knows that a famous
2   football player was put on trial in California not so many
3   years ago and was acquitted after that trial. And his name was
4   O. J. Simpson. Are you generally familiar with that trial?
5   A. Yes, sir.
6   Q. In that trial he was defended by a former assistant
7   district attorney for Los Angeles by the name of Johnny
8   Cochran, and I think he'd been a police officer at one time.
9   And a then not so well known adjunct professor at Cardoza Law
10  School -- School of Law in New York named Barry Scheck. Now
11  before O. J. Simpson was ever tried, had you ever heard of
12  Johnny Cochran?
13  A. No, sir.
14  Q. Before O. J. Simpson was ever tried, had you ever heard of
15  Barry Scheck?
16  A. Yes, sir.
17  Q. All right. You knew Barry -- how did you know Barry
18  Scheck?
19  A. At one of the N. A. C. D. L. meetings.
20  Q. All right, so you knew him as an active criminal defense
21  lawyer in the organized criminal defense bar?
22  A. Yes, sir.
23  Q. But his name was hardly a household word, right?
24  A. At that time?
25  Q. Yes.

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1   A. Probably not.
2   Q. Do you think it's fair to say that these gentlemen -- Mr.
3   Cochran and Mr. Scheck -- became household words or at least
4   courthouse words -- names well known -- to those who follow
5   prosecutions and defense of criminal cases throughout America
6   in large part because of the televising of the O. J. Simpson
7   trial?
8   A. Yes, sir.
9   Q. So you need all of this -- you're interested in getting
10  experts to help you decide what experts would be of assistance
11  to Damien Echols. Home Box Office comes to you and says, we're
12  gonna make a movie. You don't file the motion asking the Judge
13  ex parteas you're entitled to do to give you what you show
14  you reasonably need to advance your defense -- summarizing now
15  -- you decide Home Box Office can be the foundation for
16  for Damien Echols' defense, right?
17  A. Part -- part of it, yes.
18  Q. You did not hire an entertainment law expert or lawyer
19  knowledgeable about entertainment law to tell you what's a
20  fair compensation for an attorney becoming an actor in re-
21  staging the events -- something like events that did transpire
22  -- to help the movie be better. You don't hire -- you don't
23  contact any person who's knowledgeable about entertainment law
24  to help you with those negotiations, right?
25  A. That's right. Yes, sir.

349


1   Q. You did not contact anyone who's knowledgeable about
2   entertainment law to advise the defendant that he might benefit
3   from these commercial negotiations if an attorney who is
4   knowledgeable about the motion picture industry cuts the deal
5   for him -- negotiate the contract. You don't send him to
6   another lawyer?
7   A. No.
8   Q. You take it upon yourself to all the -- to do all of the
9   negotiations?
10  A. Yes, sir.
11  Q. You agree without outside consultation to the written
12  agreement for a contract, right?
13  A. Right.
14  Q. And you are the lawyers who are advising Damien Echols who
15  you know does not have a high school diploma, right?
16  A. Right.
17  Q. And you lawyers, knowledgeable about his level of
18  education, knowledgeable about your own lack of training and
19  experience in motion picture law consult and advise with him
20  about whether he should join in with this commercial endeavor?
21  A. Yes, sir.
22  Q. And he followed your advice?
23  A. Yes, air.
24  Q. Signs off on the agreement?
25  A. Yes, sir.

350


1   Q. Let me show you what I think actually was in your files --
2   first, just for identification, we have Exhibit A attached to
3   our Rule 37 pleadings. The document is dated March the fourth.
4   Then I have a transmittal letter dated March fourth and two
5   copies of an instrument dated March fourth.
6   I would like for you to take a quick look and see if you
7   can assure me that the photocopy of the original instrument is
8   the same as the unsigned copy. (HANDING TO WITNESS.)
9   A. (EXAMINING.) It surely appears to be.
10  Q. All right. Now the signed copies have dates of the
11  signatures. Does that look like your handwriting on that?
12  A. (EXAMINING.) Right.
13  Q. You recognize your own handwriting?
14  A. Sure.
15  Q. And your handwriting has a date which is March 15, 1994?
16  A. That's right.
17  Q. And do you believe that you signed that on March 15, 1994?
18  A. Yes, sir.
19  Q. So and -- and do you believe now looking at it all, since
20  you signed it on March 15, 1994, Mr. Echols and Mr. Sinofsky
21  and Mr. Berlinger and Mr. Davidson also signed it on March 15,
22  1994?
23  A. I think Mr. Echols and Mr. Davidson did. I don't know
24  specifically when Mr. Berlinger and Mr. Sinofsky -- they may
25  have --

351


1   Q. Well, that's true, there's no dates by that.
2   A. They may have done it a day or two earlier.
3   Q. Okay. But they mailed -- it is apparent they mailed you
4   something on -- on March the fourth which is some eleven days
5   before March the fifteenth when you guys executed it?
6   A. It was mailed -- but I think it was also -- I believe it
7   was hand delivered as well.
8   Q. All right. So if I'm gonna question you from the unsigned
9   copy, am I looking at the same text to the contract as on the
10  executed contract that's attached to our Rule 37 Petition?
11  A. I believe so. I haven't compared 'em, but I believe
12  that's correct.
13  Q. All right.
14  MR. MALLETT: Your Honor, for purposes of
15  demonstration, I'm gonna ask that this unsigned copy
16  be executed -- be marked as an exhibit and I ask the
17  Court's leave to substitute a copy of the signed copy
18  of the exhibit at the next break at the same time.
19  THE COURT: All right, it may be received.
20  MR. MALLETT: This would be thirty-two?
21  THE COURT REPORTER: Thirty-three.
22  (PETITIONER'S EXHIBIT NUMBER THIRTY-THREE IS
23  RECEIVED FOR PURPOSES OF DEMONSTRATION.)
24  THE WITNESS: Do you want the letter here, too?
25  You don't want that?

352


1   MR. MALLETT: Your Honor, let's just substitute.
2   I've got -- may I offer in substitute for the
3   original a clean photocopy of the signed original?
4   We can do that now. And withdraw thirty-three and
5   replace it with the signed thirty-three.
6   THE COURT: All right.
7   MR. MALLETT: And I'll give you a signed thirty-
8   three so we'll know we've got complete copies.
9   BY MR. MALLETT:
10  Q. So can we look then at the cover sheet of Petitioner's
11  Exhibit Thirty-three which is dated March 4, 1994. Have you
12  got your -- got your eyes on that with me, please?
13  A. (EXAMINING.) The cover sheet or the first page of the
14  agreement?
15  Q. First page of the agreement.
16  A. Okay.
17  Q. And it's titled, "Creative Thinking International,"
18  address, left side, March 4, 1994, Michael Wayne Echols care
19  of Scott Davidson and Val Price?
20  A. Right.
21  Q. All right. Let me review some of the contents of what is
22  in evidence as Petitioner's Thirty-three.
23  "This letter will confirm the understanding and agreement
24  between Michael Wayne Echols ("Echols"), Echols' legal counsel
25  Scott Davidson and Val Price ("Counsel") and Creative Thinking

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1   International, Ltd. ("CTI") with regard to the documentary film
2   production about the deaths of three eight-year-old boys
3   (Michael Moore, Steven Branch and Christopher Byers),
4   tentatively entitled "West Memphis Documentary Project" (the
5   "Picture")."
6   This is the agreement you reached with Creative Thinking
7   International, right?
8   A. Yes, sir.
9   Q. Who you understood had a contract with a larger
10  corporation called Home Box Office?
11  A. Yes, sir.
12  Q. You understood that the gentlemen you were negotiating
13  with had their own business. It was incorporated -- Creative
14  Thinking International, Ltd. It sounds like a limited
15  partnership, doesn't it?
16  A. Yes.
17  Q. It wasn't Home Box Office. They just had an agreement
18  with Home Box Office?
19  A. Right.
20  Q. Okay. And they signed it on the back with Joe Berlinger,
21  President and Bruce Sinofsky, Vice-President, right?
22  A. Right.
23  Q. Okay. Going down to the bottom of the cover sheet, "All
24  checks are to be made payable to Scott Davidson attorney trust
25  account."

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1   Is that language there?
2   A. Yes, sir.
3   Q. Now, in the State of Arkansas I take it an attorney is
4   entitled to have a trust account where he puts funds the title
5   to which may be disputed such as a settlement of an insurance
6   check or prepayment for work not yet done, right?
7   A. Right.
8   Q. So it is in trust because it's not the attorney's money?
9   A. Yes, sir.
10  Q. "Echols and his Counsel understand and agree that CTI may
11  record and/or document the interviews in any medium and in
12  any manner which CTI, in its sole discretion, shall deem
13  appropriate, and that Echols' reasonable cooperation with such
14  recordation and/or documentation is a condition of CTI's
15  obligations hereunder, including, without limitation, the
16  payment of any outstanding sums due to Echols or any other
17  Payee legally designated by Echols."
18  That's what it says?
19  A. Yes, sir.
20  Q. Okay. So they can record and/or document interviews in
21  any medium -- I guess that means television, right?
22  A. I guess.
23  Q. Radio?
24  A. I guess.
25  Q. Motion picture?

355


1   A. Sure.
2   Q. Show it at the art gallery?
3   A. Right.
4   Q. Make posters and sell 'em at a poster shop?
5   A. Yes, sir.
6   Q. Without limitation?
7   A. Yes, sir.
8   Q. All right. And in any manner so they could show it in a
9   way which some might deem offensive, right?
10  A. Right.
11  Q. They could show it in one manner which some might deem
12  perhaps disrespectful, right?
13  A. Right.
14  Q. They could have a big headline that says, people of
15  Jonesboro are the most wonderful people on earth, with a
16  picture of Damien Echols, and that would be a permissible use
17  Of the photograph?
18  A. Sure.
19  Q. And they could have a poster that they'd sell at the
20  corner shop that sold cigarette rolling papers and have a
21  person that says, the people of Jonesboro are all idiots, and
22  have Damien Echols' photograph, and that would be okay, too?
23  A. Yes, sir.
24  Q. Anything they want to do you sold it?
25  A. Yes, sir.

356


1   Q. Advised your client to sell it?
2   A. Yes, sir.
3   Q. And Echols' reasonable cooperation with such recordation
4   or documentation is a condition of CTI's obligations. Didn't
5   like the way it was going, he doesn't get the rest of his
6   money. They cut him off, right?
7   A. Right.
8   Q. "If requested, CTI agrees to supply to Echols and his
9   Counsel, no letter -- no later than two days prior to each
10  interview, the questions that Echols will be asked during the
11  interviews and Echols shall have the right to refuse to answer
12  any questions, which right shall not be exercised
13  unreasonably."
14  Do you have any writings showing a written request by you
15  for the questions that your client, the defendant in a triple
16  capital murder case, will be asked pursuant to this contract?
17  A. I don't know.
18  Q. If you have a written request for the questions, will they
19  be in those files?
20  A. They should be.
21  Q. We can look for those at the next break, can't we?
22  A. Yes, sir.
23  Q. And I guess your answer to my question then is, do you
24  have a record of the questions they presented to you in
25  writing, do you know if you have those in the file cabinet?

357


1   A. Same answer -- I don't know.
2   Q. Is it possible that you just ignored your right to know
3   the questions in advance and just sent this young man out to be
4   interviewed without knowing the questions in advance?
5   A. No, sir. We were present during the interviews.
6   Q. I wonder if that was -- I'll ask this questions: Is it
7   possible that you ignored your right to know the questions two
8   days in advance as provided by this contract?
9   A. It's -- it's possible.
10  Q. You have no knowledge to the contrary?
11  A. Not -- I don't recall. I'll be glad to check the records
12  and converse with Mr. Davidson. We were present during the
13  interviews of Mr. Echols.
14  Q. Well I didn't ask if you were present -- well, I don't
15  mean to argue.
16  "CTI agrees that it will not publicly broadcast or
17  otherwise exhibit, or license for broadcast or other public
18  exhibition, any portion of the recorded interviews before
19  October 30, 1994."
20  You agreed to that?
21  A. Yes, sir.
22  Q. And recommended that your client agree to that?
23  A. Yes, sir.
24  Q. The reason that you would want the publication of any
25  portion of the recorded interviews delayed until October

358


1   thirtieth from your standpoint was you wouldn't want to
2   infringe on his right to a trial in which the jury was not
3   influenced by the contents of these interviews?
4   A. And also we were concerned about the effect on the appeal.
5   That's why we requested releasing a year and a half later.
6   Q. So you wanted -- well --
7   A. I mean, in six months.
8   Q. Six months later. So you wanted to delay it until after
9   the trial was scheduled to start two weeks after -- that had
10  started two weeks after the Misskelley trial. You wanted that
11  trial over with?
12  A. Yes, sir. We wanted the trial over before the film was
13  shown.
14  Q. In your experience -- okay. What were some other reasons
15  that you wanted this trial over before the film was shown?
16  'Cause it might have an impact on the jury -- that would be one
17  reason, right?
18  A. Yes, sir.
19  Q. It might be that your client would say something or you
20  would say something that would have an impact on the Judge that
21  presided over the proceedings. That might be a problem, right?
22  A. Yes, sir.
23  Q. It might be that something that you would say or your
24  client would say would have an impact over the Arkansas Supreme
25  Court in the event your client was convicted?

359


1   A. I think that was a factor we -- we thought about at the
2   time but based on -- the appeal actually took longer than we
3   thought it would.
4   Q. And you thought this October date was a safe date to let
5   the Arkansas Supreme Court get the case decided without
6   prejudice by what you did in the movie?
7   A. That would have -- I think we had -- we considered that.
8   I mean, that obviously was -- was wrong because, you know, on a
9   typical appeal it takes at least a year and that wouldn't --
10  this appeal wouldn't have been over -- I mean, it would have
11  been several months later.
12  Q. You were in some delusive notion that you could lose a
13  capital murder case, have it appealed, get the appeal decided
14  before October of ninety-four, and you now know that that was
15  a delusive notion and a mistake?
16  A. I think -- I wouldn't call it a delusive notion. I knew
17  at the time that a capital murder appeal couldn't have been
18  decided within six months.
19  Q. Well, were there any other considerations about why you
20  wanted to wait until October of 1994?
21  A. The main reason was waiting until the trial was over.
22  Q. Did you consider -- and you wanted to wait until the trial
23  was over because what?
24  A. We didn't want it to potentially adversely affect the
25  trial.

360


1   Q. Because if they used this material in any manner as your
2   client permitted under the agreement you encouraged him to
3   sign, these people who were in the business of selling their
4   movies or advertising them could make some use of him or you
5   that would be adverse to his penal interest in the long run?
6   A. Perhaps.
7   Q. I mean, that's the reason that you would want some delay,
8   right?
9   A. Right.
10  Q. Mr. Price, I've done some looking and I want to tell you
11  that Westlawsays that you have appealed more than ten cases
12  in your years of good service as a public defender. Have you
13  ever done a download to see how many times Southwest Second
14  carries Val Price as the attorney on appeal?
15  A. It's probably more -- well, in Arkansas you have reported
16  and non-reported. I've probably done all total about thirty
17  appeals.
18  Q. And some have been appealed successfully for the state and
19  have any been appealed successfully for the defense?
20  A. Yes, sir.
21  Q. All right. So you know what it's like to lose a trial,
22  have an appeal, have a Court of Appeals decide if there's been
23  some error or defect in the trial court, and have the case
24  remanded for another trial?
25  A. Have the Supreme Court reverse and remand for a new trial.

361


1   Q. Um-hum. Where in this contract does it say, the film will
2   not be shown until all proceedings in this case are over?
3   A. It's not in there.
4   Q. Have you ever had a case in which a trial commenced and
5   during the course of the trial something happened as a result
6   of which a judge declared a mistrial?
7   A. I don't recall if I've had -- a mistrial has been declared
8   in the middle of it.
9   Q. Have you ever heard in your years as a trial lawyer judges
10  declaring a mistrial?
11  A. Yes, it happens.
12  Q. And when mistrial is declared, the judge who has the case
13  may start the trial again the next day, or he may put it on the
14  court's calendar at some other date that would be more
15  convenient, depending on how busy the judge is, right?
16  A. Yes, sir.
17  Q. Is it anywhere in this contract that Mr. Echols is
18  protected in the event that in the course of your trial there
19  is a mistrial and the case is re-calendared for sometime after
20  October?
21  A. No, sir.
22  Q. Actually, if you go to the second sentence in the second
23  paragraph on page two, we've been a little bit deficient in our
24  interest in protecting Mr. Echols because the second sentence
25  reads, "However, between August 1, 1994, and October 30, 1994,

362


1   CTI may privately screen any portion of the recorded interviews
2   for professional purpose including, but not limited to, rough-
3   cut approvals and film festival/award competition qualification
4   screenings."
5   Now, the last part is limited. The first part is pretty
6   wide open. Tell me if I'm reading this phrase correctly:
7   "Between August 1, 1994, CTI may privately screen any portion
8   of the recorded interviews for professional purposes including,
9   but not limited to..." Have I got that right?
10  A. Yes, sir.
11  Q. So they're permitted for professional purposes -- whatever
12  that means -- to screen any portion of the recorded interviews
13  beginning August 1, 1994, right?
14  A. Right.
15  Q. Of course: if -- if -- hypothetically -- you had asked his
16  Honor, Judge Burnett, to continue this case from its scheduled
17  trial date -- hypothetically -- and said, Mr. Misskelley just
18  got convicted and everybody in Arkansas today is aware of the
19  statement against penal interest that Mr. Misskelley made,
20  like a continuance. And out of an abundance of wisdom and
21  judicial caution the Judge had agreed to give you a four month
22  scheduling of the case, you lawyers by virtue of this agreement
23  could be the cause of four-walling all of this footage that you
24  agreed to. You're shaking your head no.
25  A. (SHAKING HEAD.) The contract wasn't signed until after

363


1   the trial had started.
2   Q. What if there had been a mistrial?
3   A. And what is the question?
4   Q. What if there had been a mistrial and you had said
5   continue the case to a later date?
6   A. And what's the question?
7   Q. Would you have become a person responsible for substantial
8   publicity or potential publicity about the case commencing
9   August fourth?
10  A. I don't think so.
11  Q. What if the Arkansas Supreme Court gives Mr. Echols a new
12  trial as a result of these proceedings? Does the burden of the
13  contamination of the prospective jury pool fall on your
14  client's shoulders because of the agreement you encouraged him
15  to sign?
16  A. I don't think the movie contaminates Mr. Echols. I don't
17  think the movie prejudices Mr. Echols. As a matter of fact, I
18  think the movie actually helped Mr. Echols.
19  Q. Did you know that -- you had --
20  A. I hadn't seen the movie at the time. No, sir.
21  Q. The -- that statement may -- may serve to vindicate your
22  decision made now, but when you made the decision and agreed to
23  let these people from New York City use their footage for any
24  purpose they wanted and in any way they wanted, you did not
25  have any certain knowledge then or now of what future use they

364


1   might make of it.
2   A. That's correct
3   Q. And you did this in lieu of asking Judge Burnett ex parte
4   for some help with the case?
5   A. Yes, sir.
6   Q. And you agreed to participate in being an actor: that is,
7   in staging a portion of the movie without any direct
8   compensation to you whatsoever?
9   A. Yes, sir.
10  Q. In the third paragraph on page two, we read, "CTI further
11  agrees to make all reasonable and lawful efforts within its
12  power to resist any attempt to prosecutor's subpoena of the
13  interviews or the contents thereof until October 30, 1994."
14  Do you see that sentence?
15  A. (EXAMINING.) Yes, sir.
16  Q. Now it is true actually that at one point the prosecution
17  team -- Mr. Davis and Mr. Fogleman -- did attempt to subpoena
18  some footage of Mr. Baldwin, right?
19  A. Um, Mr. Bald -- yeah -- some of the -- somebody in the
20  movie, yes, sir.
21  Q. And you left it up to the discretion of this good Judge
22  whether -- or you lawyers left it up to the discretion of the
23  Judge whether to allow or not allow the state to obtain this
24  footage before the conclusion of the trial.
25  A. That we left it up to their discretion?

365


1   Q. You left it up to the Judge to decide.
2   A. There was -- I recall there was a hearing --
3   Q. They'd issued a subpoena. There was a hearing. The state
4   took one point of view, and you took another point of view, and
5   the Judge ruled for you, right?
6   A. I believe -- I don't recall exactly how he -- he ruled on
7   it.
8   Q. Well, they didn't get the Baldwin interview?
9   A. Yes -- I --- yes, sir, that's correct.
10  Q. Did you have any pre-trial or pre-contract order from
11  Judge Burnett assuring you that you were insulated and you
12  could open up your client to be interviewed by the gentlemen
13  from New York?
14  A. No, sir. I don't think Judge Burnett knew about the
15  contract.
16  THE COURT: He didn't.
17  BY MR. MALLETT:
18  Q. As a matter of fact, going to the third full paragraph
19  beginning on page two, I think there's some indication that
20  Judge Burnett didn't know about the contract, and I'll read you
21  why.
22  "Echols and his counsel and CTI agree that they will not
23  disclose or release in any form, or permit others to disclose
24  or release, information relating to the terms of this agreement
25  ("the Confidential Information") except that CTI may disclose

366


1   the Confidential Information to its licensees or potential
2   licensees and any other person or persons to whom, in CTI's
3   sole discretion, such Confidential Information should be
4   disclosed in connection with such potential licensing
5   arrangements. Echols and his Counsel agree that their
6   cooperation with regard to confidentiality is a condition of
7   CTI's obligations hereunder, including, without limitation, the
8   payment of any outstanding sums due to Echols or any other
9   Payee legally designated by Echols."
10  To review, you promised these gentlemen from New York in
11  writing that your client and you, his lawyers, would not tell
12  Judge Burnett the terms of this contract.
13  A. Yes, sir.
14  Q. Didn't that bother you just a little bit as a court
15  appointed counsel who had drafted a motion for ex parte
16  consideration for the experts that you believed you needed --
17  that you would cut some side deal with a business in New York
18  City so that they could pay you some money? Did that bother
19  you a little bit --
20  A. No, sir.
21  Q. -- to keep it a secret from Judge Burnett?
22  A. No, sir.
23  Q. Did you think for even one minute about how some lawyers
24  that were become public figures because they were prominently
25  displayed in big trials in big movies in big cases, people like

367


1   F. Lee Bailey, Johnny Cochran -- people like that. Did you
2   ever think for one minute about how performance in a nationwide
3   media event impacts on the practice of an attorney in the
4   business of law?
5   A. I'm sure I've thought about it.
6   Q. And so up until at some point there's some conversation in
7   the transcript where we see Judge Burnett making some inquiry
8   about what's in this contract, you obeyed your contract and
9   kept it secret from Judge Burnett and others?
10  A. Well, I don't think he was -- became aware of it until
11  after we had the hearing after the trial about our fees.
12  THE COURT: Mr. Mallett, I think you need to
13  clarify for the record -- you're talking about two
14  different things. The -- everybody involved in the
15  trial was aware that the Creative Thinking people
16  would be there in court filming the trial for
17  purposes of a documentary.
18  This contract we're referring to had to do with
19  compensation or payment. I was never aware of that
20  until sometime way into the trial and made inquiry.
21  I was certainly aware that the camera was gonna be
22  there. We all were aware of that, and that was by
23  consent and agreement early on.
24  MR. MALLETT: I -- I didn't mean that the record
25  was unclear about that --

368


1   THE COURT: Well, I want to make sure that the
2   record is certainly clear that there wasn't anybody
3   that was involved in it that didn't know that the
4   trial would be recorded from beginning to end.
5   MR. MALLETT: My impression from reading these
6   news accounts we're gonna put into evidence a little
7   bit later is that you'd have to be blind, deaf and
8   dumb and living in another state.
9   THE COURT: Well, that's exactly right.
10  MR. MALLETT: But as --
11  THE COURT: As far as somebody being paid, I
12  wasn't aware of that until well after it had already
13  happened, and then I made an inquiry, and you pointed
14  it out in the last hearing.
15  MR. MALLETT: Um-hum. You're --
16  THE COURT: And I'm still curious about the
17  funds that are being raised in this case now.
18  MR. MALLETT: Your comments conform exactly with
19  the record, your Honor, and I'm not quarreling with
20  the Court about this although I --
21  THE COURT: Well, I just want to be sure that
22  that's clear. I mean, we all had to know it -- that
23  the camera was gonna be there 'cause it -- in fact
24  the record should even reflect that. I think it
25  does.

369


1   MR. MALLETT: And I -- I suppose what the Court
2   is saying is the Court did not receive any ex parte
3   applications from Mr. Price and Mr. Davidson for help
4   planning their defense and that the Court understood
5   there were gonna be cameras in the courtroom, and the
6   Court had no idea how much money they had sold the
7   defendant's participation for.
8   THE COURT: Well, that's exactly right. I
9   didn't know that it was gonna be a commercial venture
10  of that nature.
11  BY MR. MALLETT:
12  Q. In the event of -- going to the next to last article on
13  page two, "In the event that Arkansas law prevents Echols, or
14  any other Payee legally designated by Echols, from collecting
15  any or all funds that are due under the terms of this agreement
16  (including the $10 consideration payment due under the attached
17  personal release), and provided that CTI has abided by all
18  other terms of this agreement, Echols and his Counsel agree
19  that Echols will be nonetheless bound by the terms of the
20  attached personal release."
21  Now, there's an attached piece of paper called a "Personal
22  Release." But the gist of it as I am reading this is this: If
23  the law of Arkansas says that Echols can't collect the money
24  that he's been promised, they can still make complete use of
25  all of the footage, and you agreed to that?

370


1   A. Yes, sir.
2   Q. Now, your negotiations -- such as they were -- with Home
3   Box Office began sometime in November of ninety-three or before
4   and apparently culminated in the agreement signed on March 15,
5   1994 -- according to the date on the agreement.
6   On March 15, 1994, you were in trial. Did you have any
7   -- withdraw that. Did it occur to you as you were nearing the
8   trial, we've been talking to these boys from New York but we
9   don't have a contract with them, what we have is a negotiation,
10  and we never did apply to Judge Burnett for some help in
11  preparing the defense. Did that bother you a little bit?
12  A. Perhaps.
13  Q. Did you ever talk to the gentlemen from New York and say,
14  looks to me like this is a pretty exciting story, and you guys
15  are certainly putting a lot into it. We think that what we
16  need for Mr. Echols is seventy-five thousand dollars?
17  A. No, sir.
18  Q. A hundred and fifty thousand dollars?
19  A. No, sir.
20  Q. A quarter million dollars?
21  A. No, sir.
22  Q. Did you ever ask them for some sort of indication of how
23  -- of how much a Home Box Office production was worth to Home
24  Box Office, Blockbuster Video, Hollywood Video, these
25  producers?

371


1   A. No, sir.
2   Q. What was your -- your rule of thumb to know that all that
3   this --- that Damien Echols' participation and yours would be
4   worth to them was a max of seventy-five hundred dollars. How
5   did you get to that figure without any training in
6   entertainment law or entertainment contracts?
7   A. That's the amount of money that they offered and we
8   accepted it.
9   Q. Do you practice law that way? Do you go to the courthouse
10  and the state makes an offer and you accept it?
11  A. Quite often I'll -- if they make an offer, I'll accept it.
12  Q. Do you buy houses that way? Look at a nice house, ask
13  what it sells for and they give you a price and you buy it at
14  that price?
15  A. I mean, sometimes there's a counter-offer.
16  Q. Do you buy cars that way? You walk into a show room and
17  say, what's the sticker price on that car? That's what I want
18  to pay.
19  A. Sometimes you do that. Sometimes you come back with a
20  counter-offer.
21  Q. Did it occur to you that in this country of some two
22  hundred and fifty million plus persons with thousands of
23  outlets for movies and a nationwide Home Box Office channel
24  that people pay money to watch that for a really world class,
25  horrible trial, access to the teenagers accused of a triple

372


1   murder so that there will be a commercially successful movie
2   might be worth tremendous amount of money -- a tremendous
3   amount of money in excess of seventy-five hundred dollars?
4   A. No, sir.
5   Q. You never thought of that?
6   A. Never thought about it.
7   Q. So your interest then was in getting money in lieu of the
8   money that you would have gotten if the Judge had granted this
9   motion which you never presented, right?
10  A. Right. I mean, if we would have gotten the money from the
11  Judge.
12  Q. And you had no certain idea in the fall of ninety-three or
13  the spring of ninety-four when you did not have a contract with
14  Home Box Office of -- no certain idea or commitment of what
15  Judge Burnett would allow if you went to him ex parte and
16  said, let us show you what we need on this case. The boy says
17  he didn't do it, and we tend to believe him. We -- we hear the
18  ring of truth in his voice, and we want to put on a full
19  defense.
20  You have no idea how far Judge Burnett would have gone,
21  right?
22  A. That's correct.
23  THE COURT: Have you checked the record, Mr.
24  Mallett, to see if there was any -- in any of the
25  hearings any discussion about fees for experts? It

373


1   seems like I recall some. I don't -- but I might be
2   wrong now. Were there any?
3   MR. MALLETT: I'm -- I'm looking at attorney at
4   law, Melissa Martin, who has combed the record and
5   she is turning to look at the record, but I think I
6   represent, your Honor, that while we'll re-search it
7   as the Court has invited us to, we think it was short
8   and little and woefully inadequate to let this judge
9   make an informed decision about the needs of this
10  case. That is our contention -- or any judge -- you
11  or any judge.
12  THE COURT: Well, I've awarded fees and allowed
13  compensation for experts in a number of other cases.
14  I don't know why I wouldn't have in this one.
15  MR. MALLETT: The state --
16  THE COURT: In fact, they were paid for. Mr. --
17  some of Mr. Lax's services and some of these other
18  services in the end.
19  MR. MALLETT: The state of this record, if the
20  Court please, I believe at the previous hearing Mr.
21  Stidham was testifying. You said something to the
22  effect of, well, if you'd just asked me, I assure you
23  I would have considered it.
24  THE COURT: Yeah.
25  MR. MALLETT: I think that that's the statement

374


1   made.
2   THE COURT: Well, I think that's accurate.
3   MR. MALLETT: Now, I know we're all here
4   together, and this is a colloquy of mutual respect,
5   but the Court must have in mind our Rule 37
6   pleadings. There is nothing in our Rule 37
7   pleadings about the Court erring on this matter.
8   THE COURT: Well, I'm not concerned about that.
9   I just want the -- all of it brought out. And that's
10  why I'm asking. And I don't remember now whether or
11  not there was ever a request for expert fees in
12  either case.
13  MR. MALLETT: I think Mr. Price has been very
14  thorough, very candid and very honest about what his
15  perception of his needs were as indicated in the
16  draft motion, which is Petitioner's Thirty-one, about
17  the decision that he made that he would rely on Home
18  Box Office, about the date that he finally had an
19  agreement with Home Box Office -- which was March the
20  fifteenth -- and about the amount of money he
21  discussed with Home Box Office which was a max of
22  seventy-five hundred dollars, and then there seems to
23  be some latent civil dispute here about whether he
24  owes them an interview or they owe him twenty-five
25  hundred dollars 'cause all they got was five grand.

375


1   That -- that, I think, is his statement, your
2   Honor.
3   THE COURT: Okay.
4   Is this a good place for a break?
5   MR. MALLETT: Yes, sir.
6   THE COURT: All right, let's take a recess.
7   (RECESS.)
8   (RETURN TO OPEN COURT.)
9   BY MR. MALLETT:
10  Q. Mr. Price, could you -- do you still have in front of you
11  the Petitioner's Exhibit that is the multipage agreement of
12  March 15, 1994?
13  A. Yes, Sir.
14  Q. Would you please turn to the front page of that, I want
15  to bring out one thing that I overlooked.
16  A. (COMPLIES.)
17  Q. Are you on the front page?
18  A. Sure.
19  Q. On the front page in numbered paragraphs -- they're
20  numbered one, two, three, and four -- is a recitation of the
21  means by which Mr. Echols would receive seventy-five hundred
22  dollars for three separate interviews. Do you see that?
23  A. Yes, sir.
24  Q. The date of the letter is March fourth. The contract was
25  executed on March the fifteenth. Let me read to you what I see

376


1   as paragraph two. well, I'll start at the top.
2   Paragraph one, "In consideration for Echols'
3   participation, according to the terms hereof, in the Picture
4   and Echols' execution of a personal release in form
5   satisfactory to CTI (attached), CTI agrees to pay Echols, or
6   his legally designated Payee, the sum of seven thousand, five
7   hundred dollars ($7,500) for three separate interviews, as
8   follows:
9   1) $1,250 upon CTI's receipt of a fully executed copy of
10  this agreement;"
11  Now he then would be entitled to the twelve hundred and
12  fifty when they received the contract that you signed on March
13  the fifteenth, right?
14  A. That's what it says, yes, sir.
15  Q. Okay. "2) $2,500 upon the completion of a first interview
16  with Echols, to be completed before the start of the Trial.
17  CTI acknowledges that Echols satisfactorily completed this
18  interview on 1/25/94."
19  Have I got that right?
20  A. Yes, sir.
21  Q. So before you had a written contract with the matters set
22  forth in this written contract which is in evidence, you had
23  allowed Mr. Echols to be interviewed by CTI without the
24  prepayment of any money and without any written protection?
25  A. Yes, sir.

377


1   Q. Let me then go to what is marked as Petitioner's Exhibit
2   Thirty-four. It's a document over the letterhead of Creative
3   Thinking International titled, "Release/Grant of Rights.' Do
4   you recognize that? (HANDING TO WITNESS.)
5   A. (EXAMINING.) Yes, sir.
6   Q. And in the primary contract there is a reference to this
7   agreement and the release/grant of rights which is attached,
8   correct?
9   A. Yes, sir.
10  Q. And that then is incorporated by reference in what is
11  marked for identification as Petitioner's Exhibit Thirty-four,
12  the instrument called "Release/Grant of Rights," correct?
13  A. Yes, sir.
14  Q. So to understand the documentary arrangements between Mr.
15  Echols and you and Mr. Davidson as the trustees of Mr. Echols'
16  money on the one hand and Creative Thinking International, Ltd.
17  on the other hand, a contractee of Home Box Office, we really
18  need to look at both pieces of paper?
19  A. Yes, sir.
20  Q. Okay.
21  MR. MALLETT: Move for the admission of
22  Petitioner's Exhibit Thirty-four, your Honor, the
23  "Release/Grant of Rights."
24  MR. DAVIS: No objection, your Honor.
25  THE COURT: All right, it may be received

378


1   without objection.
2   (PETITIONER'S EXHIBIT NUMBER THIRTY-FOUR IS
3   RECEIVED IN EVIDENCE.)
4   BY MR. MALLETT:
5   Q. Reviewing then the contents of "Release/Grant of Rights,"
6   the first paragraph -- briefly summarized -- states that Mr.
7   Echols is willingly participating in this venture understanding
8   that a documentary film will be released theatrically or non-
9   theatrically for broadcast on cable television and/or home
10  video. That's the first paragraph, right?
11  A. Yes, sir.
12  Q. The second paragraph sets forth the consideration.
13  "For Ten Dollars and other good and valuable
14  consideration, the receipt and sufficiency of which are hereby
15  acknowledged, I, the undersigned, hereby irrevocably grant to
16  Creative Thinking International, Ltd. ("Producer"), its
17  licensees, successors and assigns," et cetera.
18  So Mr. Echols gave an irrevocable agreement to the
19  gentlemen from New York for ten dollars and other
20  consideration?
21  A. Yes, sir.
22  Q. And what he granted to them for ten dollars and other
23  consideration was the unrestricted right -- reading now from
24  line four of the second paragraph -- "...the unrestricted
25  right to copyright, publish and use my voice and likeness" --

379


1   stop.
2   A likeness is like a drawing, isn't it?
3   A. I suppose so.
4   Q. It could be a picture?
5   A. It could be.
6   O. It could be a cartoon?
7   A. Could be.
8   Q. Continuing, beginning again with line four, "...the
9   unrestricted right to copyright, publish and use my voice and
10  likeness (as filmed by the Producer) and name, including any
11  supplied materials such as photos, letters or documents" --
12  stop.
13  In your negotiations over giving access to Mr. Echols, for
14  whom you and Mr. Davidson were the trustees, I take it there
15  was conversation about Home Box Office's contractee, Creative
16  Thinking, being supplied photos, letters and documents,
17  correct?
18  A. I don't know if we had detailed discussions concerning
19  that line you just referred to.
20  Q. Do you -- is it just a mystery to you why this language is
21  in here?
22  A. I mean, it's probably put -- obviously, it's something
23  that they wanted in there. They prepared this document and we
24  signed it.
25  Q. You read and understood it before you signed it?

380


1   A. Yes, sir.
2   Q. Continuing on, "...as well as any events and experiences
3   in my life in a documentary film about the above-referenced
4   murders."
5   So your client who is not a high school graduate was
6   informed by you, his trustees, that he was assigning
7   irrevocably the information they would contain -- they would
8   learn about his life as well as what they received in terms of
9   photos, letters, or documents. He would get all of those
10  things and -- give all of those things to them for irrevocable
11  and permanent use, correct?
12  A. Correct.
13  Q. "...including trailers and advertising therefor (hereafter
14  collectively referred to as the "Picture") and published
15  accounts about the making of said film. Without limiting the
16  foregoing, Producer shall have the right to produce,
17  distribute, exhibit, publicize and otherwise promote and
18  exploit the Picture throughout the universe, in perpetuity, by
19  any device and in any media now or hereafter known -- now or
20  hereafter known" -- I was reading it twice -- "including
21  theatrically, non-theatrically, as well as broadcast the
22  Picture on network, local, or cable television and to
23  its distribution on home video and other devices. I hereby
24  grant the exclusive documentary film rights to Producer."
25  So the film right producer -- these guys put up the

381


1   promise to pay seventy-five hundred dollars plus ten dollars
2   for this document -- got exclusive rights and the rights they
3   got were throughout the universe, right?
4   A. Yes, sir.
5   Q. In perpetuity?
6   A. Yes, sir.
7   Q. By any device?
8   A. Yes, sir.
9   Q. In any media now or hereafter known?
10  A. Yes, sir.
11  Q. Pretty much gave it all away, right?
12  A. Yes, sir.
13  Q. Can you think of anything about the case that might be
14  known to Damien Echols or anything that they might acquire
15  through their association with Damien Echols on which he had
16  any particular protection for its use at all whatsoever? Was
17  there -- was there any restriction to his benefit in this?
18  A. Was there any restriction to Damien's bene -- I don't
19  believe so.
20  Q. The next paragraph goes on, "I hereby waive and release
21  Producer and its employees, agents, licensees, successors and
22  assigns ("the Licensed Parties") from any claim or obligation
23  of any kind or nature arising out of or in connection with the
24  exercise of the foregoing rights and my participation in the
25  Picture, including claims of infringement of any personal or

382


1   proprietary rights which I might otherwise have, including by
2   reason of defamation, invasion of privacy, rights of publicity
3   or any so-called "dramatic license" taken in the omission or
4   rearrangement of certain events and/or reporting errors."
5   Have I got that right?
6   A. Yes, sir.
7   Q. So he released them from any injury that he sustained by
8   reason of defamation, invasion of privacy, or any so-called
9   dramatic license, taken in the rearrangement of certain
10  events, right?
11  A. Yes, sir.
12  Q. I mean, they didn't even have to tell the truth, right?
13  A. Right.
14  Q. I mean, they could take the words, I am innocent and I am
15  not guilty, and rearrange them so he says, I am guilty and not
16  innocent, and he's released them, and they can publish those
17  on a billboard over his picture with quotation marks around it,
18  and they're released. They can do whatever they want to do.
19  This is the kind of protect --
20  A. But they didn't do that.
21  Q. All, they didn't do that -- haven't done that. Have I got
22  it right?
23  A. Haven't done it.
24  Q. To your knowledge?
25  A. Yes, sir.

383


1   Q. Okay. This is the ten dollar document that goes with the
2   seventy-five hundred document, right?
3   A. Yes, sir.
4   Q. And it was through these documents that you were in a
5   position to participate as an actor in the movie that was made
6   and has been shown across the country, and it's for rent today
7   in video stores across the country, right? These are the
8   instruments that they required him to execute and you to
9   execute?
10  A. Yes, sir.
11  Q. Did you have any concerns as the trial was going on and as
12  you did not have any of those experts that you had indicated
13  Petitioner's Thirty-one, with the sorts of experts that you
14  needed, many of experts listed in thirty-one not having been
15  contacted or employed by you, did you have some concerns that
16  you might wind up at the end of the day with Creative Thinking
17  International just not paying you anything? That's always
18  possible -- a possibility in negotiations, isn't it?
19  A. At what stage in the proceeding are you referring to?
20  Q. At any -- at any stage prior to your execution of the
21  agreement.
22  A. I mean, I felt fairly confident that they would pay us
23  what they agreed to under the agreement.
24  Q. These guys are pretty smart, right? You liked them?
25  They were sociable?

384


1   A. Yeah.
2   Q. Pretty sharp, seemed to know their business, right?
3   A. Right.
4   Q. Pretty interested -- came here from New York, right?
5   A. Right.
6   Q. Told you they'd done a movie before, right?
7   A. Right.
8   Q. Kind of -- in a way -- had a way of sitting down and
9   ingratiating themselves with you where you became friends,
10  right?
11  A. I wouldn't say we became friends, but acquaintances.
12  Q. But it was -- it was a project you all were working on
13  together. They wanted something and you wanted something,
14  right?
15  A. I mean, I was not -- I wouldn't classify myself as working
16  on the project with them. They were working on the project.
17  Q. They wanted to make a movie?
18  A. Right.
19  Q. And you wanted to get some money to help you with this
20  case ?
21  A. Yes, sir.
22  Q. And you were also .... in addition to wanting some money
23  help with the case -- willing to help the movie to be as good
24  as it could be, right?
25  A. Perhaps.

385


1   Q. The movie in which you were an actor?
2   A. In -- in one portion.
3   Q. Let me show you something about this -- do you have an
4   extra copy of your time records?
5   A. I don't know. Let me check.
6   THE COURT: Why don't you just point out to him
7   what it is you're wanting and then it will avoid
8   having to look for it.
9   MR. MALLETT: Well, we can -- we can --
10  THE WITNESS: I've got it right here.
11  MR. MALLETT: We'll clean this up later.
12  THE WITNESS: Sure. I think I've got it right
13  here.
14  BY MR. MALLETT:
15  Q. Is this an instrument titled "Damien Echols Billing" --
16  MR. MALLETT: Could we have this marked as the
17  next exhibit, please, thirty-five?
18  (PETITIONER'S EXBIBIT NUMBER THIRTY-FIVE IS
19  MARKED BY THE COURT REPORTER.)
20  BY MR. MALLETT:
21  Q. That's something that you created in-house.
22  THE COURT: Wait a minute. Wait a minute.
23  TBE COURT REPORTER: I've got to do one or the
24  other.
25  THE COURT: She can't mark it and transcribe.

386


1   BY MR. MALLETT:
2   Q. In what's marked as Petitioner's Thirty-five an instrument
3   that you would have submitted with your fee request to Judge
4   Burnett, or is that just something that you created in your
5   office in-house? (HANDING TO WITNESS.)
6   A. (EXAMINING.) I would have created this in connection with
7   the fee petition.
8   Q. It would have been available to Judge Burnett if he had
9   questions about whether you really worked the number of hours
10  for which you were receiving compensation?
11  A. I mean, I think it was available. I think we turned it in
12  to Judge Burnett.
13  Q. Okay. It may be a part of the record in that other case
14  that went up, correct?
15  A. The fee case, yes, sir.
16  MR. MALLETT: Move for the admission of
17  Petitioner's Thirty-five.
18  THE COURT: All right, it may be received.
19  (PETITIONER'S EXHIBIT NUMBER THIRTY-FIVE IS
20  RECEIVED IN EVIDENCE.)
21  BY MR. MALLETT:
22  Q. One of the things that we see when we look at thirty-five
23  is the activities for your attendance and preparation for the
24  trial if you look down at the third page from the back. The
25  top at the left is 2-17-94.

387


1   A. (EXAMINING.) Right.
2   Q. Have you got that?
3   A. Sure.
4   Q. Okay. According to this there was trial preparation and
5   trial on 2-22-94, correct?
6   A. Yes, sir.
7   Q. The contract was signed on March fifteen, ninety-four,
8   correct?
9   A. Yes, sir.
10  Q. And that was the day that you had twelve hours of trial
11  preparation and attendance?
12  A. Yes, sir.
13  Q. I'm -- respectfully not as old as Judge Burnett -- but I
14  have been in a jury trial more than once, and I know what it
15  means to bill twelve hours to be in trial. It means that when
16  you get up in the morning at six thirty, all you can think
17  about is your case. In my case, maybe get thrown out of the
18  house because I'm not much fun to be with and another part of
19  that twelve hours is driving home and going back to the office
20  after court. So I -- I don't dispute you can put in twelve
21  hours preparation for and attendance of trial.
22  Do you remember whether you signed this agreement on March
23  the fifteenth at the beginning of the day, before court, or is
24  it more likely you signed it after court?
25  A. I don't recall when we signed it.

388


1   Q. In the custom and practice of your relationship with the
2   gentlemen from New York did you tend to have your meetings with
3   them like over breakfast, or would it more likely to have been
4   after court?
5   A. I think that we signed the contract here in court.
6   Q. Probably in the courtroom during court hours?
7   A. In the courtroom -- right.
8   Q. Maybe during a ten minute break?
9   A. Here or in the backroom there.
10  Q. How many days were you in trial preparation and attendance
11  from February twenty-second when you had your first day --
12  first twelve hour day in attendance of the trial -- until the
13  fifteenth when you signed the contract -- including the
14  fifteenth?
15  A. (EXAMINING.) Once the trial started, I was in trial every
16  day for twenty days.
17  Q. Well --
18  A. Excluding week-ends other than the last day which was a
19  Saturday.
20  Q. Well, I --
21  A. We ----
22  Q. I'm not testing your ability to add here, and I'll be glad
23  to do it. As I read it, it was sometime during your fifteenth
24  day of the twenty day trial when you signed that contract,
25  which is a court day because those are the days that you had

389


1   trial preparation and attendance. Does that sound about right
2   to you?
3   A. Sounds about right.
4   Q. That would be on the fifteenth, and then there's
5   apparently no court on the sixteenth. There's court on the
6   seventeenth and the eighteenth, and I'm -- I'm thinking that
7   you may have had a jury deliberation on the sixteenth --
8   something like that. Did you get your sent -- your punishment
9   verdict on a Saturday?
10  A. Punishment verdict was on a Saturday. It was -- it was a
11  day in the middle of the trial during the last week where we
12  had a recess. I don't --
13  Q. Would that have been over a dispute about DNA testing?
14  A. Yeah. Yeah -- it was somewhere --
15  THE COURT: It had to do with the necklace --
16  THE WITNESS: The necklace and DNA testing.
17  MR. MALLETT: You had short recess over some DNA
18  testing of the necklace.
19  THE COURT: -- and a continuance -- yes.
20  THE WITNESS: We just --
21  BY MR. MALLETT:
22  Q. So really, if we look at what is in evidence as
23  Petitioner's Exhibit Thirty-five, we see that you signed the
24  contract on March the fifteenth when you had twelve hours of
25  trial preparation and attendance, and then you only had two

390


1   more days of trial after that. I mean, you were at the end of
2   it almost?
3   A. Right.
4   Q. Your client had already been interviewed once pre-trial in
5   January?
6   A. Yes, sir.
7   Q. The client had already given an interview during trial,
8   right?
9   A. I believe that's correct.
10  Q. And the staged interview of the lawyers sitting around as
11  actors pretending to reenact something like something that
12  might have happened on the calling of a witness, and that also
13  occurred?
14  A. I believe that was on a -- I think it was on a Sunday
15  evening prior to -- it was while we were in our case on
16  deciding whether or not -- we had made the decision to call Mr.
17  Byers.
18  Q. So you then had done all of this work assisting the movie
19  makers in preparing their movie, but you didn't have a binding
20  written --
21  A. Right.
22  Q. -- commitment with them until sort of the end of the day,
23  right?
24  A. Yes, sir, that's right.
25  Q. In times of relative leverage in the process of

391


1   negotiations, they had obtained in large part what they could
2   use to make the movie up until the receipt of the punishment
3   verdict by the time you had a written contract, right?
4   A. (WITNESS NODS HEAD.)
5   Q. And you didn't have anything?
6   A. Yes, sir.
7   THE COURT: Did you have your money?
8   THE WITNESS: Uh, I think we got the money the
9   day we signed the contract. Our records will
10  indicate the day that they paid it to us.
11  MR. MALLETT: That's the next thing I want to
12  go to, your Honor. Thank you very much.
13  BY MR. MALLETT:
14  Q. Mr. Price, I believe that you previously furnished us with
15  copies of your expense records and Mr. Davidson's expense
16  ledger sheet. I have three individual sheets and then three
17  sheets stuck together.
18  Can I show you what I have --
19  A. Sure.
20  Q. -- and you tell me if I have a complete set and then we'll
21  mark 'em. (HANDING TO WITNESS.)
22  A. (EXAMINING.) I believe this is correct.
23  Q. Well, do you have there where you're sitting or easily
24  available to you, copies of these and I ask you that in good
25  faith because I think that when you were here before you said,

392


1   "I made copies of my expense statement on the Echols trust
2   account and I made extra copies." That's why I think you
3   probably have them.
4   A. (EXAMINING.) I thought I made copies. I don't see 'em --
5   see --
6   Q. Well, the state found copies so I'm gonna impose on you
7   and ask you to look again because I think you probably do have
8   'em. Is there any chance it's in that file? (INDICATING.)
9   A. (EXAMINING.) Well, it could be. There's some of these
10  that are copies that Mr. Davidson had.
11  Q. Well, I think -- I think -- if the Judge will let me stand
12  here with you but the regrettable thing is that he won't have
13  'em to look at, but he can review them later.
14  THE COURT: I remember looking at 'em the other
15  day when we were here and weren't they submitted
16  then?
17  MR. MALLETT: I think they were submitted but
18  not marked or admitted. That is possible that the
19  Clerk has your copies.
20  THE COURT REPORTER: No.
21  MR. MALLETT: Let's mark these as the next
22  exhibits.
23  (PETITIONER'S EXHIBITS NUMBER THIRTY-SIX,
24  THIRTY-SEVEN, THIRTY-EIGHT, AND THIRTY-NINE ARE
25  MARKED BY THE COURT REPORTER.)

392


1   MR. MALLETT: And if the Court please, I
2   propose that I stand with Mr. Price and let you look
3   at the copies that we're entering as evidence.
4   THE COURT: All right.
5   BY MR. MALLETT:
6   Q. Did you find your copies?
7   A. No, I can't find 'em.
8   THE COURT: Just use these. That's all right.
9   MR. MALLETT: Mr. Davis has copies and I'm sure l0  he'll be quick to correct me if I'm mis --- misreading
11  what's on there. I apologize for not having multiple
12  copies. We'll try to get more made this evening.
13  THE COURT: Do you need these to ask from?
14  MR. MALLETT: Well, we need -- need one set.
15  MR. PRICE: Do you want me have somebody go make
16  a copy right now for you?
17  MR. MALLETT: I don't want to interrupt the
18  proceedings. I know the Judge wants to move along.
19  Let's see if I can do this without confusion.
20  BY MR. MALLETT:
21  Q. What is Exhibit Thirty-six?
22  A. (EXAMINING.) Thirty-six -- this appears to be how we
23  distributed the five thousand and ten dollars from Creative
24  Thinking.
25  Q. Is that any of your handwriting on there?

394


1   A. (EXAMINING.) I think all of this is Mr. Davidson's. I --
2   we -- if I remember, I think we put this amount in Mr.
3   Davidson's trust account, and this appears to either be his or
4   his secretary's.
5   Q. So if I want to really ask any detailed questions about
6   the flow of this money, I really need to talk to Mr. Davidson?
7   A. Or you could ask me. I mean, I was aware of what was
8   going on.
9   MR. MALLETT: May I ask if the state has any
10  objection to our offering for admission Petitioner's
11  Thirty-six with this somewhat inadequate foundation?
12  MR. DAVIS: Is this the one with the handwritten
13  "Echols" at the top left corner?
14  MR. MALLETT: Yes. Yes, sir.
15  MR. DAVIS: And it goes down to 11-21-94?
16  MR. MALLETT: That's correct, sir.
17  MR. DAYIS: Okay. I have no objection.
18  BY MR. MALLETT:
19  Q. Does that instrument kind of jog your memory about when
20  you first got money?
21  A. Yes, sir.
22  Q. When did you first get money?
23  A. We deposited the Creative Thinking check on March 25,
24  1994.
25  Q. And the trial was over when you first got money?

395


1   A. Yes, sir.
2   Q. Didn't get any money when you signed the contract on the
3   fifteenth according to this ledger sheet?
4   A. As far as -- we didn't deposit the money until -- until
5   that day.
6   Q. And then that money was to be deposited in Mr. Davidson's
7   trust account?
8   A. Yes, sir.
9   Q. In trust for Mr. Echols?
10  A. Yes, sir.
11  Q. And on that very same day it appears that an extra ten
12  dollars was deposited, right?
13  A. Yes, sir.
14  Q. And that's the ten dollars for the perpetual universal
15  release of the -- for use of the material no matter how
16  disorganized or dishonestly it may be reproduced and utilized,
17  right?
18  A. Yes, sir.
19  Q. Right. So that came out to five thousand and ten dollars
20  on three, twenty-five, right?
21  A. Right.
22  Q. And on that day, Val Price was written a check for one
23  thousand, nine hundred seventeen dollars and sixteen cents?
24  A. Yes, sir.
25  Q. Do you have a piece of paper that Damien Echols had signed

396


1   saying, I authorize Val Price to have one thousand, nine
2   hundred seventeen dollars and sixteen cents from the money held
3   in trust for me by Scott Davidson?
4   A. No, sir.
5   Q. On that same day, March 25, 1994, a hundred and seventy-
6   five dollars appears to have been paid by check to a person,
7   The Inquisitor, and the reference in parentheses indicates it's
8   for Doctor Kris Sperry. Is that correct?
9   A. Yes, sir.
10  Q. Is that the pathologist in Atlanta that you asked to look
11  at the issue of time and death on reading the autopsy report?
12  A. Yes, sir. Kris Sperry is the pathologist. The Inquisitor
13  was Ron Lax, the investigator.
14  Q. Right. And Kris Sperry is the pathologist who's concerned
15  about the time of death --
16  A. Right.
17  Q. -- over in Atlanta?
18  A. Yes, sir.
19  Q. Incidentally, Mr. Sperry didn't ever come to Jonesboro,
20  did he?
21  A. That's correct.
22  Q. Yes, it's correct, he did not come?
23  A. He did not come to Jonesboro.
24  Q. And on that same day, March 25, 1994, -- trial already
25  over -- it says, "James Moneypenny (partial payment)," one

397


1   thousand -- no, is it -- one thousand, two Hundred and fifty
2   dollars -- I think it is -- or is that seventeen hundred and
3   fifty? To do the math, I think it's closer to two fifty --
4   says twelve hundred and fifty.
5   A. (EXAMINING.)
6   Q. No, I think --
7   A. I think it's seven --
8   Q. -- seventeen hundred and fifty.
9   A. Seventeen fifty.
10  Q. Right. So do you have a piece of paper whereby Damien
11  Echols says, I authorize that seventeen hundred and fifty
12  dollars held in trust for me in Scott Davidson's trust account
13  be paid to Doctor Moneypenny?
14  A. No, sir.
15  Q. And on that same day it says, "Scott Davidson," five
16  hundred and eighty-two dollars and thirty-four cents. Would
17  that at least indicate in the absence of any evidence to the
18  contrary, that a check was written to Scott Davidson on March
19  25, 1994 ---
20  A. Yes, sir.
21  Q. -- for five hundred and eighty-two dollars and thirty-four
22  cents?
23  A. Yes, sir.
24  Q. And do you have any document from Mr. Echols saying, I
25  agree to the disbursement from this -- from Mr. Davidson's

398


1   trust account of five hundred and eighty-two dollars to Mr.
2   Davidson?
3   A. No, sir.
4   Q. Petitioner's Thirty-seven appears to be a photocopy of a
5   ledger sheet. There's some printing on the upper left -- it's
6   an address in West Memphis, Arkansas -- and in the middle, the
7   words "Val's Expenses," do you know what that is?
8   A. I believe this is the expenses that I initially began
9   incurring in connection with this case. l0  Q. Sort of a running total beginning back on 6-17-93?
11  A. Right.
12  Q. And -- and if I just look at this -- what appears to be
13  the case is that you are incurring expenses; that is, a deficit
14  in account, and not receiving any money as a deposit for the
15  account until March 25, 1995.
16  A. That's correct.
17  Q. So you had built up a -- excuse me --
18  MR. MALLETT: Move for the admission of
19  Petitioner's Thirty-seven.
20  MR. DAVIS: No objection.
21  THE COURT: All right, it may be received
22  without objection.
23  (PETITIONER'S EXHIBIT NUMBER THIRTY-SEVEN IS
24  RECEIVED IN EVIDENCE.)
25  BY MR. MALLETT:

399


1   Q. So you were running along with no motion filed to the
2   Judge asking for interim payments or an assurance of payment.
3   You were negotiating with Home Box Office. Your client had
4   been interviewed. The trial was over. You agreed on the
5   fifteenth to the -- up to seventy-five hundred dollars. You
6   got the money on the twenty-fifth, and you immediately wrote
7   yourself a check reimbursing yourself from Scott Davidson's
8   trust account for one thousand, nine hundred sixteen dollars --
9   nine hundred -- one thousand, nine hundred seventeen dollars
10  and sixteen cents?
11  A. Yes, sir.
12  Q. Which is the check referenced on Petitioner's Thirty-six?
13  A. That's correct. Which were the expenses that I incurred
14  up to that point.
15  Q. And you paid yourself back --
16  A. Right.
17  Q. -- for what you had in the case without any written
18  authorization from the client for the use of the money held in
19  trust for him by Scott Davidson.
20  A. Yes, sir, that's right.
21  Q. What is Petitioner's Thirty-eight? (HANDING TO WITNESS.)
22  A. (EXAMINING.) I believe this is another one of Mr. -- I
23  think this is Mr. Davidson's document in which he included the
24  money that he fronted on the case. This is expenses that he
25  had incurred.

400


1   Q. And if we -- and if we look at the numbers on thirty-eight
2   and compare them to the numbers on thirty-six and thirty-seven,
3   the numbers at least are all consistent and suggest that on the
4   twenty-fifth there was a payment to Mr. Davidson for
5   accumulated expenses?
6   A. Yes, sir.
7   Q. Do you believe that that's Mr. Scott Davidson's expenses?
8   A. Yes, sir.
9   Q. All right.
10  MR. MALLETT: Move the exhibit -- move for
11  admission of Petitioner's Thirty-eight.
12  MR. DAVIS: No objection.
13  THE COURT: All right, it may be received
14  without objection.
15  (PETITIONER'S EXHIBIT NUMBER THIRTY-EIGHT IS
16  RECEIVED IN EVIDENCE. )
17  BY MR. MALLETT:
18  Q. So Mr. Davidson on March 25, 1994 -- according to
19  Petitioner's Thirty-eight -- paid himself back for what he
20  already had in the case -- five hundred and eighty-two dollars
21  and thirty-four cents?
22  A. Yes, sir.
23  Q. You got the money from Home Box Office on the twenty-
24  fifth, you immediately paid yourself back what you had invested
25  in the case?

401


1   A. Yes, sir.
2   Q. You did not have any written document at least to assure
3   us that the client for whom you were trustees, Mr. Damien
4   Echols, who at that point was sitting under sentence of death,
5   consented to the disbursement of the money that you were
6   holding in trust for him as his trustees?
7   A. That's correct.
8   Q. What is Petitioner's Thirty-nine? (HANDING TO WITNESS.)
9   A. (EXAMINING.) This was a bill after we finally received
10  a fee -- award of a fee from the Arkansas Supreme Court and --
11  for the appeal they had awarded us a fee of ten thousand
12  dollars for the -- to be divided by the four lawyers -- Price,
13  Davidson, Ford and Wadley representing Mr. Baldwin -- and we
14  had seven hundred and forty-five dollars and seventy-seven
15  dollars (sic) expenses. And so the Supreme Court would have
16  sent a fee award, and they designated me to do this invoice
17  in triplicate to be -- to divide the money to us.
18  Q. Well, that's just an indication of your expenses on
19  appeal.
20  A. Yes, sir, and the -- and the second page of that document
21  shows how Mr. Davidson and I divvied up -- divided the money up
22  amongst ourselves.
23  Q. And that was money from the Supreme Court?
24  A. From the Supreme Court. Now, there -- yeah.
25  Q. What is the third page?

4

O2
1   A. The third page actually -- um -- this is a -- the third
2   page appears to be -- a part of it appears to be the same as
3   Exhibit Number Thirty-seven. Several of the entries appear the
4   same although the last entry on thirty-seven is 11-21-94.
5   There is several other -- these appear to be fees that -- you
6   know, other expenses that we had. A lot of them -- some are
7   related to the appeal. Some of 'em are related -- there's
8   Kinko's cost of the appeal on the brief.
9   Q. Let me make a suggestion to you and see if it jogs your
10  memory or conforms to what you believe most likely happened.
11  That after 11-21-94, you no longer had money in the Damien
12  Echols trust account for which you were trustees, and you made
13  a photocopy of the ledger sheet on that date, and future
14  expenses were entered on the copy of the ledger sheet or on the
15  original ledger sheet and you maintained a copy of the ledger
16  sheet as it existed on November twenty-first?
17  A. That's -- I don't know if that's entirely correct because
18  there appears to be some entries that are different.
19  Q. We're not sure exactly why we had two ledger sheets for
20  expenses through 11-21-94.
21  A. Right.
22  Q. I don't want to dwell on this too long 'cause it's not
23  terribly important. This is a set of expenses which you have
24  prepared for the -- to meet the needs of the Arkansas Supreme
25  Court. That's what thirty-nine is?

403


1   A. Thirty-nine is -- once they set the fee --
2   Q. Um-hum.
3   A. -- thirty-nine is the document I sent back to the Supreme
4   Court.
5   Q. Is there any reason that page three of thirty-nine
6   shouldn't be there?
7   A. That's the problem -- well, I mean -- I mean, part of it's
8   right and part of it's not. This includes the fee that we
9   received when the entire case was over with after -- at the
10  trial level once the Supreme Court ruled on our fees, we
11  received a payment on December fourth, ninety-five.
12  Q. I'm going to withhold thirty-nine until I've had a chance
13  to study it more.
14  Let me go back and look thirty-seven and -- excuse me --
15  go back and look at thirty-six and thirty-seven. (HANDING TO
16  WITNESS.)
17  Does it appear to you that entries were made on November
18  21, 1994, on both the Val's Expenses and the ledger for the
19  Echols trust account?
20  A. (EXAMINING.) Yes, sir.
21  Q. And does it appear that from the Echols trust account on
22  November 21, 1994, a check was written to Val Price for four
23  hundred sixty-seven dollars and fifty cents?
24  A. Yes, sir.
25  Q. And does it appear to you that on the same day pursuant

404


1   to what we see on Exhibit Thirty -- on -- check written to Val
2   Price on November 21, 1994, the result of which was to leave
3   zero money in the Echols account?
4   A. Yes, sir, in the Echols trust account.
5   Q. In the Echols trust account?
6   A. Right.
7   Q. So the money that was held in trust by Scott Davidson for
8   the trust beneficiary, Damien Echols, according to what we see
9   on Exhibit Thirty-six, was totally and fully withdrawn down to
10  zero on eleven, twenty-one, ninety-four?
11  A. Yes, sir.
12  Q. And to be redundant, do you have any document providing
13  that the trust beneficiary, Damien Echols, consents to you
14  taking all of his money held in trust for him by Mr. Davidson
15  on November 21, 1994?
16  A. No, sir.
17  Q. And that four hundred and sixty-seven dollars and fifty
18  cents, is it fair to say that that money is less than the money
19  that the case owed you on that date? That is, you had more
20  money in the case --
21  A. Right.
22  Q. -- than four sixty-seven fifty? You had not applied to
23  Judge Burnett for any assurance or guarantee of any money,
24  right?
25  A. At what point? By that day?

405


1   Q. By that day.
2   A. No.
3   Q. You didn't know how much money you were gonna get paid or
4   approved by Judge Burnett or the Arkansas Supreme Court, right?
5   A. No, sir. I did -- Judge Burnett had already approved our
6   -- our fee by that time.
7   Q. And had you collected it?
8   A. No, sir. There was a fight between the state and
9   Crittenden County as to who would pay us.
10  Q. And that litigation was still taking place?
11  A. Was still going on.
12  Q. And I don't mean to ask you this in a way that sounds
13  unkind -- it was your belief on November twenty-first that it
14  was proper for you to take the rest of the money that was in
15  the trust account?
16  A. Yes, sir. To apply toward expenses.
17  Q. You know, there's a part of this agreement that you signed
18  off on that you will keep the terms of the agreement secret
19  from everyone, right?
20  A. Right.
21  Q. How did you square that with the interest the Court may
22  have in asking you to reveal the deal?
23  A. We revealed the deal at the time that it -- that this
24  issue arose during our hearing on our fees in either April or
25  March -- March -- it wasn't March -- probably April or May of

406


1   ninety-four.
2   Q. So you would have an interest in complying with the
3   contract which you entered into with HBO as you would any
4   written contract that you entered into, right? I mean, you're
5   a person that believes in following contracts?
6   A. Yes, sir.
7   Q. So you believe that a lawyer who enters into a contract
8   ought to keep the contract that he enters into, right?
9   A. Well, I mean, to a certain extent.
10  Q. I mean -- I mean -- gosh, when a lawyer's honesty is a
11  handshake, that's his stock-in-trade, right?
12  A. Yes, sir.
13  Q. And that's how we do business at the courthouse. If you
14  can't trust a lawyer once, you'll never trust him again -- or
15  it takes a long time, right?
16  A. Right.
17  Q. All right. So you believe in the importance of contracts,
18  right?
19  A. Yes, sir.
20  Q. In law school one of the first courses you took was
21  contracts, right?
22  A. Yes, sir.
23  Q. You learned that a contract to be performed over a period
24  of more than a year generally has to be reduced to writing?
25  A. Yes, sir.

407


1   Q. Statute of frauds -- first year of law school. You're
2   familiar with that?
3   A. Vaguely. It's --
4   Q. It's been a long time.
5   A. It's been a long time.
6   Q. Okay. You also learned that the terms of a written
7   agreement generally are not to be modified by some oral
8   understanding, generally speaking -- parol evidence rule ---
9   first year contract law? l0  A. Correct.
11  Q. You understood that, too, okay. So you had a written
12  contract with Home Box Office, trustees, Damien Echols, make
13  the movie, perpetuity, do anything they want to do --
14  slandering, humiliating, play all over the world before his
15  next trial. You consented to all of that for this money that
16  you didn't ask the Judge for that they discussed with you and
17  which finally boiled down two days before the trial was over,
18  to a promise to pay Seventy-five Hundred Dollars if you did
19  certain things for which they paid you five thousand dollars?
20  A. Correct.
21  Q. Okay. There was a part of that agreement that you'd keep
22  the terms and payment secret?
23  A. Yes, sir.
24  Q. Now, you have an interest in being faithful to the
25  contract you entered into, right?

4

O8
1   A. Yes, sir.
2   Q. And how do you square that with the interest of the Court
3   and the prompt and just administration of its business and in
4   perhaps wanting to ask you, the court appointed lawyer -- the
5   public defender -- reveal the deal. What are the terms of the
6   contract. How could you serve both interests?
7   A. When the Judge asked me about was there a contract with
8   HBO money, we told him about it.
9   Q. Well, did you tell him that that put you --- that to answer
10  would put you in breach of the contract and that Damien Echols
11  and you would owe seventy-five hundred dollars to Home Box
12  Office?
13  A. No, sir.
14  Q. Do you really feel -- have -- have you ever read the
15  transcript of the proceeding in which the Judge indicates his
16  first awareness that this is some kind of commercial agreement
17  that you gentlemen had entered into parlaying access to Damien
18  Echols and the others --
19  A. The transcript --
20  Q. -- have you ever read that transcript?
21  A. ---- is that during the fee hearings?
22  Q. No, it would have been during the time you were discussing
23  cameras in the courtroom when you were his attorney in charge,
24  he was contemplating having a trial with a death penalty. He
25  had an absolute right to exclude those cameras, and the Judge

409


1   was talking to you all about, you know, what's the agreement
2   here? I understand you're under some contractual duty. Have
3   you ever -- you know, you were the lawyer on appeal, did you
4   read that part of the transcript?
5   A. I'm sure I read it in the past.
6   Q. Is it your perception that you gentlemen really told the
7   Judge the complete terms of your agreement with HBO in
8   violation of your agreement with HBO, or did you kind of skate
9   around it a little bit and satisfy --
10  A. At -- at --
11  Q. -- the Judge and also not be in breach of the contract?
12  A. I'll have to look at the transcript.
13  Q. Let's take a look at it and see. I'll let you have a
14  copy. Let's go on to a different topic. Now, I'm sorry, I
15  don't mean to belabor the point, but I do need to make my
16  record.
17  A. Sure.
18  Q. As an attorney at law practicing in Arkansas, pursuant to
19  the Per Curiam Order of the Supreme Court of Arkansas, December
20  16, 1985, you were made subject to the Model Rules of
21  Professional Conduct as adopted by the Arkansas Supreme Court?
22  A. Yes, sir.
23  Q. All right. So you are governed in your professional
24  conduct, for example, by Rule Point One Four. It says, "A, a
25  lawyer shall keep a client reasonably informed about the status

410


1   of the matter and promptly comply with reasonable requests for
2   information."
3   You're subject to that rule, aren't you?
4   A. Yes, sir.
5   Q. "B, lawyer shall explain a matter to the extent reasonably
6   necessary to permit the client to make informed decisions
7   regarding the representation."
8   A. Yes, sir.
9   Q. You're subject to that?
10  A. Yes, sir.
11  Q. Rule One point One Seven --
12  A. What's the title of that one?
13  Q. "Conflict of Interest - General Rule - provides: A lawyer
14  will not represent a client if the representation of that
15  client will be directly adverse to another client unless (1)
16  the lawyer reasonably believes the representation will not
17  adversely affect the relationship with the other client, and
18  (2) each client consents after consultation."
19  And One point Seven B, "A lawyer shall not represent a
20  client if the representation of that client may be materially
21  limited by the lawyer's responsibilities to another client or
22  to a third person, or by the lawyer's own interests unless (1)
23  the lawyer reasonably believes the representation will not be
24  adversely affected, and (2) the client consents after
25  consultation."

411


1   Correct?
2   A. Correct.
3   Q. Now, you gentlemen are representing this person. He's a
4   man in the eyes of the laws of the State of Arkansas who you
5   knew was not a high school graduate, he's charged with triple
6   capital murder he allegedly committed when he was eighteen
7   years old. You're taking money in trust for him. You're
8   spending that money the day you get it. You get no
9   documentation of his assent to how you're going to spend the
10  money that you hold in trust for him.
11  Who are the witnesses to the consultation between you and
12  Mr. Davidson and Mr. Echols in which Mr. Echols consents to
13  division of this money all to the lawyers and none to him? Is
14  there any witness to that?
15  A. None of the money went to all of the lawyers. The money
16  was put --
17  Q. You paid --
18  A. The money was --
19  Q. You paid --
20  A. --- given to us to pay for expenses.
21  Q. The money was used out of a trust account --
22  A. Yes, sir.
23  Q. -- to pay some of the expenses incurred by you and Mr.
24  Davidson, right?
25  A. Yes, sir, that's correct.

412


1   Q. The money was paid to Mr. Echols to be held in trust for
2   Mr. Echols, right?
3   A. Right.
4   Q. You have no piece of paper whereby Mr. Echols says, my
5   trustees may spend this money to pay their expenses.
6   A. That's correct.
7   Q. Right?
8   A. Right.
9   Q. And is there any witness to the decision you made to
10  appropriate that money to help yourselves?
11  A. That money was not used to help ourselves.
12  Q. Well --
13  A. That money was used to help Mr. Echols.
14  Q. If you -- the work was already done, right? The money was
15  on March twenty-fifth, right?
16  A. Right.
17  Q. He already was -- he was on his way to death row?
18  A. Right.
19  Q. You -- the trial was lost, right?
20  A. Right.
21  Q. He'd been sentenced?
22  A. Right.
23  Q. The money that you were paid were for expenses you
24  incurred before he was found guilty.
25  A. On behalf of Mr. Echols, yes, sir.

413


1   Q. Expenses you incurred before he was found guilty?
2   A. Yes, sir.
3   Q. Right. You have no document indicating that he made an
4   informed decision when he signed the contract that the money
5   would be appropriated to reimburse you or Mr. Davidson at the
6   time he signed the contract, right?
7   A. That's correct.
8   Q. You have no piece of paper indicating that at the time you
9   paid yourselves back as he was on route to death row that he
10  thought it was -- that he agreed -- that he agreed and
11  consented intelligently and knowingly for you gentlemen using
12  this money to reimburse yourself for expenses you had already
13  incurred -- no piece of paper?
14  A. No piece of paper.
15  Q. And no witness to any conversations which you had?
16  A. I'm not saying that. I think Mr. -- Mr. Lax may have been
17  involved. We had conversations with Mr. Echols about if we can
18  get the money, that this would be a way to use the money for
19  expenses. I'm sure we had conversations with him. I don't
20  specifically recall when. I'm sure Mr. Lax was involved in
21  some of the conversations.
22  Q. Mr. Lax was the person that you had employed as an
23  investigator --
24  A. Yes, sir.
25  Q. -- all right. So is there anyone other than Mr. Lax that

414


1   I can consult who would be a disinterested observer to Mr.
2   Echols making an informed decision about how his trustees would
3   spend his money?
4   A. What do you mean by disinterested?
5   Q. Anyone at all?
6   A. I think Mr. Lax --
7   Q. Anyone that --
8   A. Mr. Lax had some other people in his office that was
9   involved in working the case with us. One or two of those l0  individuals may be aware of that.
11  Q. You're talking about staff coming and going?
12  A. Right.
13  Q. But not -- not an independent lawyer?
14  A. No. No. No. Not an independent --
15  Q. Not someone without a financial stake in the outcome? I
16  mean, at this point --
17  A. I didn't have a financial stake in the outcome and neither
18  did Mr. Lax.
19  Q. Well, if you didn't have a financial stake in the outcome,
20  why did you pay yourself back some money?
21  A. Because that was expenses that we had incurred, and that
22  money did not go to Val Price. That money went for --
23  Q. It went --
24  A. -- expenses that I had incurred.
25  Q. -- to Val Price's bank account.

415


1   A. Right. For the benefit of Mr. Echols.
2   Q. If Val Price had not done that, he would have either not
3   had the money, or he would have had to ask Judge Burnett for
4   the money?
5   A. Right.
6   Q. You mean you could have contracted with Home Box Office
7   and said, we the lawyers ask that Home Box Office pay for a
8   full and fair defense for Damien Echols, and in trade of that
9   we'll let you make a movie about our work. You could have done
10  that and had a direct contract, right?
11  A. I guess.
12  Q. But you became the trustees for Damien Echols?
13  A. Right.
14  Q. You are familiar with Rule One point One Five regarding
15  the safekeeping of property?
16  A. Yes, sir.
17  Q. At one point one five C, for example, we read, "When in
18  the course of representation a lawyer is in possession of
19  property in which both the lawyer and the other person claim
20  interests, the property shall be kept separate by the lawyer
21  until there is an accounting and severance of their interest."
22  You're under responsibility to obey that rule?
23  A. Yes, sir.
24  Q. Can you furnish me a copy of an accounting of Mr. Echols'
25  trust account that he was ever provided?

416


1   A. The accounting you've introduced as Exhibits Thirty-six,
2   Thirty-seven, Thirty-eight and, I think, Thirty-nine.
3   Q. Well, that's the exhibit you brought to the Court?
4   A. That's -- that's our accounting.
5   Q. Do you have a transmittal letter showing how you mailed
6   that to Mr. Echols and said, here's how we're distributing the
7   money?
8   A. I don't believe so.
9   Q. You know from your time in private practice commonly in a
10  personal injury case, there's a settlement sheet. The lawyer
11  gets a check from the insurance company and puts down for the
12  client how they're dividing up the money, and on the day the
13  money is divided, the client signs off on that settlement sheet
14  acknowledging his approval of how his money is spent. You're
15  familiar with that, right?
16  A. Vague -- I mean, my personal injury practice is very
17  limited.
18  Q. You're not generally familiar with that as part of --
19  A. I mean, I'm familiar that that exists. I don't do it.
20  Q. So you don't have a settlement sheet or settlement
21  statement or anything of that kind with Damien Echols?
22  A. No, sir.
23  Q. And I'm gonna ask a question and if Mr. Davidson is really
24  the better person for it, but I'll ask in case you know.
25  Do you know if this account is what they call an interest

417


1   on lawyers' trust account if in ninety-four, you had an
2   interest bearing account to put the money in approved by the
3   State Bar of Arkansas and the State of Arkansas or if it was a
4   non-interest bearing account, or do you know anything about it?
5   A. Mine -- mine was not. I don't know if his -- I think it
6   was.
7   THE COURT: Mr. Mallett, doesn't the contract
8   that you introduced as Exhibit Thirty-three provide
9   for the method of payment?
10  MR. MALLETT: Uh --
11  THE COURT: Doesn't it provide that it be paid
12  to Echols or his legally designated payee and stated
13  on the contract made payable to Scott Davidson
14  attorney trust account?
15  MR. MALLETT: It says it's payable to Scott
16  Davidson trust account.
17  THE COURT: And is it not signed by Mr. Echols
18  designating that that's his payee?
19  MR. MALLETT: There's not a complaint about the
20  money being paid and deposited into a trust account.
21  That appears to be what is on the face of the
22  document.
23  I am asking whether having become the trustees
24  for Mr. Echols' money in the trust account because
25  Mr. Echols is the principal in the contract --

418


1   whether they obtained his assent to the distribution
2   of the money and the assurance that he agreed that
3   the money should be spent as the lawyers chose to
4   spend it -- which was to reimburse themselves.
5   THE COURT: Well, I don't recall you having
6   asked him specifically, did Mr. Echols consent and
7   agree to the expenditures of these monies for his
8   defense purposes.
9   MR. MALLETT: Well, I have kind of asked around
10  it because I --
11  THE COURT: Well, I know. I want you to ask
12  direct.
13  MR. MALLETT: -- I've asked, is there a
14  document? Is there a witness?
15  THE COURT: Um-hum.
16  MR. MALLETT: I've tried to see if we can
17  eliminate the risks that we have a dispute between on
18  the one hand a prominent lawyer who is conducting
19  himself as best he can under the difficult
20  circumstances, and a person who has been given a
21  conviction by a jury. I do not -- I'm seeking to
22  avoid that kind of a swearing match by circling
23  around it.
24  THE COURT: Well, apparently, there's no
25  document.

419


1   Did he consent to it and agree to it?
2   THE WITNESS: I'm sure we discussed it with him,
3   your Honor.
4   THE COURT: All right.
5   BY MR. MALLETT:
6   Q. Is that your best answer -- you're sure you discussed it
7   with him?
8   A. My best answer?
9   Q. Can you remember anything else -- when, under what
10  circumstances, what words were spoken, how was it presented to
11  him, what did he say in response?
12  A. He agreed with it.
13  Q. Well, you believe he agreed with it?
14  A. That's my best answer.
15  Q. And on the twenty-fifth of March, of course, he was not
16  even there when you were dividing this money. He was in jail.
17  A. I believe that's correct.
18  Q. All right. So he didn't agree with it on the twenty-fifth
19  of March when you divided the money up. You believed he would
20  agree with it -- fair statement?
21  A. Fair statement.
22  Q. We may -- we may need to come back to this after you've
23  had a chance to review that transcript where Judge Burnett
24  indicated his keen interest in terms of the contract, but for
25  now, I know the day's getting short, let's go to a slightly

420


1   different topic.
2   In the preparation and presentation of a defense in a
3   criminal case where there is more than one defendant, there is
4   a concept often referred to as the joint defense theory, or the
5   pooled defense theory whereby if a lawyer for a co-defendant
6   acquires a defendant's knowledge, the attorney/client privilege
7   is not waived because lawyers may consult together and the
8   defendants may consult together to the extent they have a
9   common interest. Are you generally familiar with that
10  proposition?
11  A. Generally.
12  Q. Joint defense theory and pooled defense theory?
13  A. Right.
14  Q. For example, just to illustrate in a very simple term --
15  you have a conversation with Mr. Stidham and Mr. Stidham says,
16  let me tell you where Mr. Misskelley was when this happened.
17  You hear that. He tells you. You then get a subpoena from Mr.
18  Davis -- Mr. Davis did not do this, I'm just doing this for
19  purposes of illustration. You get a subpoena from Mr. Davis
20  and Mr. Davis says, I want Val Price to come before the grand
21  jury and tell the grand jury where Misskelley claims he was.
22  The grand jury can consider hearsay.
23  You would say, oh, no, no. I heard that in the context
24  of a joint defense. That's privileged information. I got that
25  because to represent Damien Echols, I have to be able to

421


1   communicate with counsel for co-defendants who were commonly
2   charged.
3   That would be your answer, not Mr. Davis but from some
4   other place.
5   A. That would be a good answer.
6   Q. It would still be considered privileged communication,
7   right?
8   A. Yes, sir.
9   Q. So lawyers can work together and share information when
10  they have a joint defense in a common cause, right?
11  A. Yes, sir.
12  Q. Okay. It is also the case that when a lawyer represents
13  a defendant and because of prior representation in some other
14  case -- even an unrelated case -- there might be some
15  appearance of a conflict between the interest of the
16  prospective case and some old case that the client is to be
17  fully informed about the potential for an appearance of a
18  conflict of interest?
19  A. Yes, sir.
20  Q. Okay. And you believe -- and you think that's a good
21  rule. that's a part of the model rules, isn't it?
22  A. That's a good rule.
23  Q. Okay. There was a time in about 1991 when an allegation
24  was made in a civil case by Beverly Smith. You're familiar
25  with that case?

422


1   A. Yes, sir.
2   Q. Have you spoken to Martha Gilpatrick, attorney at law, in
3   the last week?
4   A. Two or three weeks ago.
5   Q. Haven't talked to her in the last week?
6   A. It may -- well --
7   Q. Did she tell you she spoke to me?
8   A. She told me -- right.
9   Q. All right. So if I spoke to her in the last week or ten
10  days --
11  A. It was after you spoke to her.
12  Q. Okay. So it's no surprise to you then that I'm gonna ask
13  a few questions about the Beverly Smith matter?
14  A. Not a bit.
15  Q. Okay. It was alleged as I understand it by Beverly Smith
16  who invested in this 2001 Jewelers that a time came when four
17  people unlawfully entered her business. Those four people were
18  Bruce Barnes and Linda Barnes --
19  A. Yes, sir.
20  Q. -- on the one hand.
21  A. My clients.
22  Q. And John Mark Byers and Melissa Byers on the other hand.
23  A. Who were not my clients.
24  Q. Right. In fact, Bruce Barnes and Linda Barnes paid you
25  money to represent them?

423


1   A. Yes, sir.
2   Q. And Mark Byers -- and John Mark Byers and Melissa Byers
3   hired other counsel?
4   A. C.B. Nance of West Memphis.
5   Q. Who is a well known lawyer in West Memphis?
6   A. Well, now deceased.
7   Q. Okay. And the allegation that Beverly Smith made, briefly
8   abbreviate, was that at the time her business was closed to
9   the public Mr. and Mrs. Barnes joined by Mr. and Mrs. Byers
10  entered her place of business at a time when it was not open to
11  the public, right?
12  A. Right.
13  Q. They used keys, I believe, they say they had acquired in
14  connection with doing business with her. Is that her
15  allegation?
16  A. Mr. Barnes was a part owner of the business.
17  Q. All right. And Beverly Smith's contention was that Mr.
18  and Mrs. Byers entered the business with Mr. Barnes and
19  retrieved or took property of their own away -- and probably of
20  hers -- away with them, right?
21  A. Yes, sir.
22  Q. Now this is a civil case, right?
23  A. Right. It started out as a replevin case.
24  Q. The claim as you read through the pleadings -- will you
25  agree -- by Beverly Smith was in part that John Mark Byers

424


1   stole property from her?
2   A. Yes, sir.
3   Q. Right. She accused him of being a thief and stealing
4   property from her in connection with a lawsuit called civil
5   action 94-88 in the Circuit Court of Craighead County,
6   Arkansas, right?
7   A. Yes, sir.
8   Q. You represented the Barnes' and the other attorney
9   represented Mr. and Mrs. Byers and the case rocked along until
10  1995?
11  A. Yes.
12  Q. Is there ever a court proceeding in which you make an on-
13  the-record disclosure to any Judge that you have had a case --
14  that you have a case -- did have a case pending where the step-
15  father of the alleged murder victim is a co-defendant of a
16  client that's paying you money? Is that -- was that ever
17  ventilated on the record in any court proceeding?
18  A. No, sir. The reason why is because at some point Mr.
19  Byers was terminated from that particular lawsuit. He had
20  filed for bankruptcy and was dismissed as a defendant. I don't
21  recall the exact dates on that. And I -- there was a different
22  judge -- well, Judge Goodson was the presiding Judge in that
23  case and there was a little bit of -- rather lengthy time
24  period between the final hearing on the case and a decision in
25  that case which overlapped these murders.

425


1   Q. Yes, it overlapped the murders, exactly. That case wasn't
2   tried until 1995.
3   A. No, sir. That case was tried prior to the murders. A
4   ruling by the Judge came out in -- after the murders.
5   Q. You were still filing pleadings in 1995?
6   A. There was a -- the last hearing was prior to the murders.
7   There was a time delay between the Judge making his decision.
8   Q. So there was a pending civil case --
9   A. But Mr. Byers was already out of the case.
10  Q. -- pending civil case --
11  A. Yes, sir.
12  Q. -- and in the pending civil case Mr. Byers was accused of
13  committing a theft?
14  A. Yes, sir.
15  Q. And you represented the co-defendants?
16  A. Yes, sir.
17  Q. Actually the -- actually the Barnes had a trial and Mr.
18  Byers testified for the Barnes?
19  A. Yes, sir.
20  Q. He testified on behalf of your clients, right?
21  A. Yes, sir.
22  Q. And this is before the time of the alleged murders?
23  A. Yes, sir.
24  Q. So Mr. Barnes (sic) had talked to you and seeked to obtain
25  a favorable verdict in the case where you were getting paid in

426


1   a trial occurring before the death of his step-son?
2   A. Well, you said Mr. Barnes. You mean Mr. Byers?
3   Q. Mr. Byers.
4   A. Yeah, Mr. Byers. Yes, sir.
5   Q. Okay.
6   MR. DAVIS: Your Honor, before we go any
7   further, may I inquire which particular element in
8   the Rule 37 Petition this is -- this proof is
9   relevant to?
10  MR. MALLETT: Conflict of interest.
11  MR. DAVIS: Which element is that?
12  MR. MALLETT: We -- I think he asked a good
13  question. He caught me off balance. I'm not clear
14  whether this is in the proposed amendment that we
15  filed this morning or by construction of the
16  pleadings that are now on file.
17  We do allege that the lawyers were burdened by a
18  conflict of interest, and I think that this goes to
19  the performance of the lawyers because it is a part
20  of the conflict of interest that not only did they
21  not seek to obtain adequate support from the court
22  but they also failed to fully exploit evidence
23  available to them through investigation arising from
24  the prior representation of the Barnes family and if
25  I can continue on, I think I can make it more clear.

427


1   MR. DAVIS: Well, your Honor, that's the reason
2   I asked that question. The only conflict of interest
3   that's alleged in the Rule 37 Petition -- which is,
4   of course, what puts us on notice to respond and be
5   prepared for this hearing -- is in paragraph three
6   under the constitutionally ineffective counsel in the
7   guilt phase, they allege among all of these
8   allegations about an HBO contract that that created a
9   conflict of interest.
10  But then you peruse the rest of their entire
11  Amended Petition -- which by the way, this was the
12  second Amended Petition that defense counsel has
13  filed and they've had over a year to do it -- and
14  there is absolutely nothing in here about any sort of
15  alleged involvement with Mr. Price in a prior case of
16  conflict of interest. Obviously they've known about
17  it for at least thirty days according to the
18  testimony that's already been entered. There's been
19  absolutely nothing filed, and this is the type of
20  surprise and the type of allegations -- it's the
21  reason they make Rule 37 Petitions so the other side
22  has a fair warning of what's coming.
23  THE COURT: Your objection is sustained.
24  MR. MALLETT: But I -- I want to ask the Court
25  to reconsider, if I may, briefly.

428


1   THE COURT: All right.
2   MR. MALLETT: First, there's an assertion of
3   fact that is not accurate, and I don't accuse Mr.
4   Davis of being more than erroneous.
5   As I was indicating to Mr. Price a few minutes
6   ago, we learned about this within the last ten days
7   -- twelve days -- something of that nature, so when
8   he asserts to the Court that we knew of it at least
9   thirty days to be a fact, he is not accurate.
10  THE COURT: Ten days then.
11  MR. MALLETT: Okay. So we --
12  THE COURT: Did I understand Mr. Price to say
13  that Mr. Bowers (sic) is no longer -- Byers was no
14  longer in the case at the time of the decision --
15  that he had been discharged in bankruptcy and
16  released from the case although he might have
17  testified as a witness?
18  MR. MALLETT: He testified -- he was a common
19  defendant in the case. He testified on behalf of Mr.
20  Price's client, and Mr. Price did not disclose the
21  prior joint defense in the civil case at any time or
22  in any way to the Court or to Damien Echols -- I
23  think we're going to establish before this hearing is
24  over.
25  Now we do plead -- and it's that simply a matter

429


1   of construction -- trial counsel failed to disclose
2   -- ad -- disclose adequately potential conflicts of
3   interest to Echols or counsel him adequately in
4   respect to the contract with HBO producers. So
5   there's two ways to construct the pleading.
6   I think out of an abundance of caution, the
7   Court should hear this evidence so the Court can make
8   its own determination whether Mr. --
9   THE COURT: Well, what I've heard so far it
10  doesn't sound like a great huge conflict to me but go
11  ahead.
12  THE WITNESS: Your Honor, I need to correct one
13  comment here in a minute.
14  THE COURT: All right.
15  MR. DAVIS: I -- I object strenuously. This is
16  -- this is exactly what we're doing at this -- if
17  these hearings proceed and if they put on proof, it's
18  like a fishing expedition and the Rule 37 just keeps
19  growing like a loaf of bread and rising --
20  THE COURT: I'm gonna sustain your objection on
21  this issue. Let's move along to another subject.
22  MR. MALLETT: Well --
23  THE COURT: And it wasn't in the pleadings.
24  Your pleadings on conflict -- as I recall it -- went
25  strictly to the contacts with Home Box Office as not

43

O
1   adequately explaining to Mr. Echols.
2   MR. MALLETT: Well, I'm -- I'm reading from the
3   pleadings. Trial counsel failed to disclose
4   adequately potential conflicts of interest to Echols
5   or counsel him adequately with respect to the
6   contract with the HBO producers, the undisclosed
7   strategy sessions and work product of HBO.
8   We have been very concerned about Mr. Price and
9   Mr. Davidson being burdened by what appears to be a
10  need to serve more than one interest at the same
11  time. We've been concerned about that.
12  THE WITNESS: If I can clarify something I said
13  earlier if I may?
14  Judge Goodson was aware of that potential
15  conflict. The Judge that appointed me on this case
16  -- on this case was the Judge that handled the Smith/
17  McNamara/Barnes/Byers case. You --
18  MR. MALLETT: Now may I go into it?
19  MR. DAVIS: Your Honor, I still say that
20  paragraph three deals exclusively with this HBO
21  contract.
22  THE COURT: Well, I think it does, too, and I'm
23  gonna sustain the objection. Let's move along.
24  MR. MALLETT: Can I ask Mr. Price limited
25  questions about the declaration he just made?

431


1   MR. DAVIS: Your Honor, we've done this for two
2   days now. I object, the Court rules and then it's
3   kind of like despite your ruling we're gonna go ahead
4   and do what we want to do. I object.
5   THE COURT: I agree with what you're saying, Mr.
6   Davis. At some point we've got to narrow the lines
7   here, and I'm narrowing 'em at this point. So let's
8   move along.
9   MR. MALLETT: I have this whole line of
10  questioning that I think I'm entitled to, and I'm
11  forced to reorganize.
12  Well, let's do some housekeeping now. We have
13  marked for exhibit for identification what is
14  thirty-two which I represent is the movie, Paradise
15  Lost , in VHS format produced by HBO. This is in
16  the characteristic way of a movie that is available
17  across the shelf. The seal is not broken, and it is
18  the motion picture about which we have heard so much
19  testimony today. So I move the admission of
20  Petitioner's Thirty-two.
21  THE COURT: All right, it may be received.
22  (PETITIONER'S EXHIBIT NUMBER THIRTY-TWO IS
23  RECEIVED IN EVIDENCE. )
24  MR. MALLETT: Continuing with housekeeping, may
25  I inquire whether the state's attorney has had an

432


1   opportunity to review our tender of news clips about
2   the investigation and prosecution of Damien Echols
3   and others in connection with the case which we have
4   as an exhibit?
5   MR. DAVIS: Your Honor, I have a copy of it. I
6   haven't had an opportunity to review it completely.
7   I doubt if I have any objections to it but if I
8   could have this evening to review it?
9   THE COURT: Well, I'll receive it at this time
10  and if you want to add any additional articles to it
11  that you'll be permitted to do so after you've
12  reviewed it.
13  MR. DAVIS: If I find anything that's
14  objectionable, may I object to it at that point?
15  THE COURT: Well, that'll be all right, too.
16  What he's offering it for is pre-trial publicity,
17  now, is that what --
18  MR. MALLETT: Up until the beginning of the
19  trial in relations to our concern about the conduct
20  of jury selection, failure to ask for a continuance,
21  failure to individually voir dire the jurors about
22  their exposure to publicity.
23  THE COURT: All right.
24  MR. MALLETT: These issues discussed earlier.
25  This --

433


1   THE COURT: I'm gonna receive it as your
2   compilation while it might not be the entire
3   clippings that were available or information that was
4   available. It at least represents some of the pre-
5   trial publicity.
6   MR. MALLETT: I represent it's the best we could
7   do under the circumstances.
8   THE COURT: All right.
9   MR. MALLETT: I don't say it's a hundred
10  percent.
11  THE COURT: Well, if Mr. Davis or the state
12  wants to add to it or objects specifically, they'll
13  be permitted to do so after they've had an
14  opportunity to review it.
15  MR. MALLETT: So this is thirty--six?
16  THE COURT: No, it's thirty-eight or --
17  THE COURT REPORTER: Forty. It's forty.
18  (PETITIONER'S EXHIBIT NUMBER FORTY IS RECEIVED
19  IN EVIDENCE.)
20  MR. MALLETT: At this time, subject to recall,
21  we would excuse Mr. Price and go to our next witness,
22  Mr. Brent Turvey. May we do that, your Honor? May
23  we excuse Mr. Price subject to recall?
24  THE COURT: Well, the state might have a few
25  questions.

434


1   MR. MALLETT: They might.
2   MR. DAVIS: Well--
3   MR. MALLETT: Well, if we recall him it would be
4   for new subjects about which he has not testified.
5   MR. DAVIS: Your Honor, I have an extensive
6   cross examination.
7   THE COURT: I was afraid of that.
8   MR. DAVIS: And would ask that we recess and --
9   I understand we're only going to 4:30 anyway.
10  THE COURT: I have to be in Hot Springs tomorrow
11  evening at some time. So I have a three hour drive
12  from here. So I'm gonna quit early tomorrow
13  afternoon. So you all just make best use of the
14  time.
15  MR. DAVIS: I'm talking about probably a couple
16  -- an hour and a half or two hours at a minimum with
17  Val on cross.
18  THE COURT: Well, we're not gonna do that today.
19  Have you got a short witness you can put on?
20  MR. MALLETT. No, sir. My expert is gonna be
21  long.
22  THE WITNESS: What time are we gonna start back
23  tomorrow -- earlier than 9:30 -- 9:00?
24  THE COURT: No, 9:30. We just have to find some
25  additional time, I guess, to finish it, I guess. The

435


1   Court Reporter can't hold up to all of this.
2   MR. MALLETT: We lawyers know that Court
3   Reporters work much harder than we do.
4   THE COURT: I'll recess for the afternoon, and
5   we'll start back at 9:30 in the morning. Now, are
6   you gonna want cross examine at this time?
7   MR. DAVIS: At 9:30 in the morning?
8   THE COURT: At 9:30 in the morning. All right,
9   and then you'll be prepared to call your expert after
10  that?
11  MR. MALLETT: Yes, sir.
12  THE COURT: All right.
13  All right, court will be in recess until in the
14  morning at 9:30.
15  (ADJOURNMENT.)

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