MAY 5, 1998
IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
STATE OF ARKANSAS PLAINTIFF
VS. NO. CR-93-450A
DAMIEN ECHOLS DEFENDANT
HEARING ON RULE 37 PETITION
MAY 5, 1998
FOR THE STATE: BRENT DAVIS
P.O. BOX 491
JONESBORO, AR 72403
ASST. ATTORNEYS GENERAL
LITTLE ROCK, AR 72201
FOR THE DEFENDANT: ALVIN SCHAY
ATTORNEY AT LAW
217 WEST SECOND ST.
LITTLE ROCK, AR 72201
ATTORNEYS AT LAW
WAUGH DRIVE, SUITE 900
HOUSTON, TX 77007
BEFORE THE HONORABLE: DAVID BURNETT, CIRCUIT
BARBARA J. FISHER, C.C.R.
OFFICIAL COURT REPORTER
P. O. BOX 521
PARAGOULD, AE 72451-0521
M0TION AND RULING 3-49
WITNESSES FOR PETITIONER Direct Cross Redirect Recross
Dan Stidham 49-122
Bruce Sinofsky 122-126
Dan Stidham (Cont.) 126 130 146 150
Val Price 151-206
REPORTER CERTIFICATE 420
1 through 5 26 Attached
6 (Not Offered)
7 49 Attached
8 80 Attached
9 115,118,179 Attached
10 through 12 118 Attached Under Seal
13 118 Attached Under Seal
1 JONESBORO, ARKANSAS, MAY 5, 1998, AT 9:30 A.M.
2 THE COURT: Let the record reflect that this is a
3 hearing before the Court in CR-93-450A for purposes of
4 a Rule 37 hearing.
5 I'm gonna have to let you introduce yourself to
6 the court reporter and get your appearances here.
7 MR. MALLETT: I'm Edward Mallett. I'm appearing
8 with Mr. Echols today with the Court's permission. We
9 have filed the requisite notice pursuant to the
10 Arkansas rules. I'm with Mr. Al Schay, who was
11 appointed by the Court. I am joined here in the room
12 by Melissa Martin, who is a member of the State Bar of
13 Texas. I would not anticipate Ms. Martin would ask
14 any questions, but she is associated with my office
15 and if the Court would allow, I'd like her to sit
16 nearby because she might help us retrieve papers and
18 THE COURT: That's fine.
19 MR. MALLETT: May I give the court reporter cards
20 so she can get the spellings?
21 THE COURT: Sure. All right. Are we ready to
23 MR. MALLETT: I believe we're ready to proceed.
24 THE COURT: I don't remember what the first
25 motion was. Was it a motion to continue? There are a
1 number that have been filed.
2 MR. DAVIS: Judge, if we could refer to them by
3 title or something so that we know which ones because
4 there are three or four that were kind of filed
5 rapid-fire fashion in the last two or three days.
6 MR. MALLETT: Mr. Davis is absolutely right, and
7 I apologize for not addressing the motions by name.
8 Out of an abundance of caution and hoping the
9 Court would not take offense and would understand our
10 need to protect our record, we have filed a motion
11 requesting the Court transfer the case and allow the
12 case to be heard by another judge. I regret to say
13 that the motion was filed late. It was filed late in
14 part for reasons outlined in our motion to continue,
15 but I feel I should not err by --
16 THE COURT: We'll take up that motion first. For
17 the record, I received it about ten minutes ago and
18 just barely read it. So I guess what you're doing is
19 asking me to recuse from the case?
20 MR. MALLETT: Yes, your Honor.
21 THE COURT: I guess the first point in your
22 motion raises -- I'm not really sure what you're
23 saying -- but you're alleging basically that I have
24 personal knowledge of the proceedings, and obviously I
25 do. I presided on all the cases. And you're
1 suggesting that there were confidential contacts with
2 HBO that I have knowledge of and that were not
3 recorded in the trial and, frankly, I don't know what
4 you're making reference to there. So you are going to
5 have to elaborate for me because I'm not aware of any
6 confidential contacts.
7 MR. MALLETT: I'm going to start again by
8 apologizing to the Court for the reason that we
9 arrived later than we intended to and are not
10 organized at the level we should have been. Our
11 exhibits are not marked as they ought to be. If the
12 Court would allow us about five minutes, I think we
13 might save time in the long run by not finding me
14 running back and forth between podium and counsel
16 THE COURT: All right. That's fine.
17 (BRIEF RECESS)
18 (RETURN TO OPEN COURT)
19 MR. MALLETT: May it please this honorable Court?
20 THE COURT: Yes, sir.
21 MR. MALLETT: In our motion for transfer of case,
22 there are a number of paragraphs. The first
23 paragraph, numbered one, makes this statement:
24 "Circuit Judge David Burnett may be called as a
25 material witness in the case." In the remaining body
1 of the paragraph we assert based on information and
2 belief that there may be occasions when there were
3 conferences to which this Court was a party to which
4 no court reporter was present and consequently no
5 record. We're only gleaning that from reading the
6 record in the case. When there are from time to time
7 comments by the Court or by the attorneys suggesting
8 that there may have been conversations had -- as often
9 happens in litigation -- off the record and informally
10 for which a court reporter was not present and were
11 not then transcribed.
12 In the paragraph we use as a particular example
13 what the Court knows or may not know about the
14 so-called contracts between Home Box Office or its
15 subsidiary, Creative Entertainment, Incorporated -- or
16 something like that -- whereby money was paid in trade
17 for various individuals surrendering certain rights in
18 the case.
19 Can I ask if there is anyone here from HBO in the
21 (MR. SINOFSKY AND MR. BERLINGER RAISING HANDS)
22 MR. MALLETT: I think we're going to be issuing a
23 subpoena for the two gentlemen from HBO and would
24 inform the Court of that intention and ask if we can
25 invoke the rule as to them.
1 THE COURT: All right, you'll have to go back to
2 the witness room.
3 (MR. SINOFSKY AND MR. BERLINGER LEAVING THE
5 THE COURT: Are there any other witnesses in the
7 MR. PRICE: Judge, I've been subpoenaed. Am I
8 being asked to --
9 MR. MALLETT: It is a custom in my state -- and I
10 anticipate in many states and in many federal courts
11 -- that lawyers are excused from the rule when the
12 questions relate to their professional performance --
13 THE COURT: I don't have any problem with them
14 remaining in the courtroom.
15 MR. STIDHAM: Your Honor, I have been subpoenaed
16 as well. I don't know if I was --
17 MR. MALLETT: We'd excuse Mr. Stidham --
18 THE COURT: I think you were a lawyer, weren't
20 MR. STIDHAM: Yes, sir, but not for this
21 particular defendant.
22 THE COURT: I understand. The same rule would
23 apply to you, Dan.
24 MR. DAVIDSON: Could I ask if you're going to
25 call Ron Lax?
1 MR. MALLETT: I do not anticipate calling Mr. Lax
2 as a witness.
3 MR. DAVIDSON: Okay.
4 MR. MALLETT: We believe that Home Box Office
5 paid money through Creative Entertainment,
6 Incorporated. We know that they paid seventy-five
7 hundred dollars to the trust account of Mr. Davidson
8 on behalf of Mr. Echols.
9 We know from interviewing Mr. Stidham that money
10 was paid to the Misskelley family. We believe money
11 was paid to the Baldwin family. We likewise believe
12 that the families of the victims of these murders also
13 in all probability were paid money in trade for
14 agreeing to surrender their right to personal privacy
15 -- remain silent -- and give interviews.
16 We think that this raises or introduces into the
17 case issues of serious conflicts of interest about
18 which a neutral and detached magistrate will properly
19 make rulings.
20 We don't know what the Court knows. We don't
21 know what the Court knows. We know, for example, that
22 on page 459 of the transcript prepared for the
23 Arkansas Supreme Court, there's a proceeding taking
24 place relating to motions to quash subpoenas directed
25 to Home Box Office. The Court quite correctly
1 convened these proceedings on the motion to quash.
2 The Court quite correctly was hearing from counsel
3 about the enforceability of the subpoenas and seeking
4 to determine what was the just resolution of the issue
6 The Court asked the question: "Did you say there
7 was a written contract?" At the top of page 459.
8 Mr. Ford answers: "There are written documents
9 entered into and signed by the client."
10 The Court: "Was there consideration given for
11 the statement? Was payment made?"
12 Mr. Ford: "No, he has received no financial
14 The Court: "What is the consideration in the
15 contract for the giving of the statement? Where is
16 your contract if there is no consideration?"
17 Mr. Ford: "Consideration is not all financial,
18 your Honor."
19 The Court: "What is the consideration?"
20 Mr. Ford: "I don't have the contract with me.
21 The contract does indicate future compensation in the
22 event a film is made."
23 It goes on and on. The Court was not presented
24 copies of these contracts, which we respectfully
25 represent we're gonna show a judge in these
1 proceedings, provided that the contents of the
2 contracts be kept confidential.
3 I don't know how a judge could fully perform --
4 adequately perform -- the duty that the Court knows
5 the Court has to inquire into apparent or potential
6 conflicts of interest that come to the Court's
7 attention when the parties to the lawsuit have entered
8 into a written contract to keep secrets from the
9 Court. We don't know what if anything the Court may
10 have heard about this --
11 THE COURT: It should be obvious from what you've
12 read, Mr. Mallett, that I didn't know anything at that
13 time. That's probably the point in the trial that I
14 discovered that some remuneration was being given --
15 or contemplated -- to the attorneys involved in the
16 case, and I made the first inquiry at that point.
17 I have had no private conversations with anyone
18 concerning contracts before they were entered into or
19 after they were entered into.
20 It was also in the transcript -- at least it
21 should have been in the portion of it where I awarded
22 attorneys fees -- that I took into consideration the
23 fact that the attorneys had received seventy-five
24 hundred dollars a piece, as I understood it, and
25 reduced their compensation by that amount. To that
1 extent, that's all I know about it. I know that it
2 occurred, and that became obvious to -- frankly, I
3 thought everyone involved. I think it was even
4 reported in the papers, but it may not have been. I
5 don't know. But it was certainly obvious to everybody
6 involved in the trials that some kind of arrangement
7 had been made.
8 There was one meeting where counsel and I think
9 the defendants all were present. I don't recall
10 whether it was recorded -- it may have been or may not
11 have been -- where procedures were outlined as to how
12 the Home Box Office people could record the trial and
13 how the media could pool from one additional camera.
14 That was carefully gone into with the state and all
15 counsel involved, and other than that, that's all I
16 know about it. It was very unusual. I have never had
17 a trial videotaped from beginning to end. It was
19 But other than that, I don't know what you're
20 talking about. If you want to be specific about
21 something -- if you're making some specific allegation
22 that I know of facts or circumstances or conducted
23 private conversations -- confidential conversations
24 concerning the terms of the contract, you're just way
25 off base on that. It didn't happen.
1 MR. MALLETT: I don't believe that's stated in
2 paragraph one, nor did I intend the Court to
3 understand that we were making that statement. I
4 accept with all respect and deference the
5 representations the Court has made.
6 Some say -- some say -- in the courts of the
7 United States that an appearance of a problem occurs
8 when the state conveys upon the judge who presided in
9 the trial the responsibility for making a
10 determination under a Rule 37 or similar
11 post-conviction pleading.
12 THE COURT: You're saying some other judge should
13 do it? Is that what you're saying?
14 MR. MALLETT: Yes, your Honor, and that's what
15 we're asking for in the motion.
16 THE COURT: That hasn't been the custom in the
17 State of Arkansas. In fact, I think it's probably
18 been traditional that the presiding judge because of
19 the superior knowledge he might have of the facts and
20 the conduct of the trial have been expected to do
21 their own Rule 37 petitions, and that's the course I'm
22 gonna follow.
23 MR. MALLETT: We're making this motion, as I've
24 indicated, out of an abundance of caution.
25 THE COURT: Yes, sir, I understand that. I don't
1 have any problem with it. I'm not even offended by
2 it. I'm just kind of shocked by some of the angles
3 that you're taking. But go ahead.
4 MR. MALLETT: Well, with respect to the content
5 of the paragraph -- and we certainly didn't consider
6 it a particular angle -- we gave one illustration. As
7 we were discussing that with the Court at this very
8 moment, the Court did recall that there had been an
9 informal meeting which might or might not have been on
10 the record about how there would be one camera making
11 a feed of the information out of the courtroom and
12 into the public --
13 THE COURT: That really wasn't a part of the
14 trial. That was just a meeting of the lawyers and
15 parties involved in the case to discuss what would be
16 done at the trial, and it was not a part of the
17 proceedings at all. It took place prior to the
18 proceedings in order to avoid conflict and confusion.
19 At that time, I was aware that both the
20 prosecution and the defense had agreed to allow
21 cameras in the courtroom. I was not a party to that
22 decision whatsoever. I followed the rule of this
23 state and our Supreme Court that will allow cameras in
24 the courtroom where both the plaintiff and the
25 defendant agree, and other circumstances and
1 safeguards are met, and part of that is the method and
2 manner of how those are employed in the courtroom.
3 And it was my duty, as I saw it, to lay the
4 groundwork for how those cameras would be placed and
5 who could be exhibited or shown, and we laid the
6 groundwork for it, and I thought I was required to do
7 it. Maybe I was wrong in that, but anyway that's what
8 I did.
9 And I certainly don't see my actions on that --
10 what's contained in paragraph one -- any reasons or
11 basis for me to recuse from hearing the case.
12 Let me ask you a question, Mr. Mallett. Are you
13 being paid or compensated in this case?
14 MR. MALLETT: No, sir.
15 THE COURT: You're purely pro se.
16 MR. MALLETT: Yes, sir.
17 THE COURT: Are you aware of full page ads in the
18 Arkansas Times soliciting money for the defense?
19 MR. MALLETT: That came to my attention --
20 THE COURT: Are you aware of matters on Web sites
21 soliciting money from individuals for court expenses?
22 MR. MALLETT: I'm trying to remember. I have
23 looked at the Web sites. I am not recalling -- in
24 response to the Court's inquiry -- that I have seen
25 any solicitation, but it would seem from the tone of
1 the information that I have observed when I've dialed
2 it up on the Internet -- it wouldn't be surprising to
3 me that there was such content.
4 THE COURT: The Court has appointed Mr. Schay and
5 paying him with state money, and I don't know whether
6 anything has been raised from this, but it seems to me
7 that the Court ought to be given that information.
8 The Court ought to have available to it what funds, if
9 any, have been raised and how they're being expended.
10 Is that not a conflict of interest? I don't know.
11 MR. MALLETT: If the Court is entering an order
13 THE COURT: I'm not entering an order. I'm just
14 making that as a -- this whole case is very unusual.
15 MR. MALLETT: It is, your Honor.
16 THE COURT: I'm trying to deal with it as fair
17 and appropriately as I know how, but that's a matter
18 that gives me some concern about whether the public is
19 being conned by a fund raising thing. If it's not
20 being used for defense purposes, what is it being used
22 MR. MALLETT: Let me be sure that I'm not
23 misleading the Court. I have been informed and
24 promised that money has been raised which could be
25 used to reimburse expenses and not for attorneys fees.
1 THE COURT: And that's why I asked that. You
2 told me that on the phone when we had our conference
3 setting this case for trial several months ago -- I'm
4 not exactly sure when it was. But you informed me
5 that you had money available for scientific
6 investigation and so forth, and I'm assuming that that
7 is coming from this fund.
8 MR. MALLETT: If the Court wants to have a
9 hearing on the Court's own motion, we can do that. I
10 am not getting paid any legal fees. I am appearing
11 strictly pro se. I wanted to make sure that I wasn't
12 misleading the Court.
13 THE COURT: The point I'm trying to make is I
14 haven't been a party to any of those conversations
15 either. I don't have any knowledge of that either.
16 So should the Court be informed about those matters?
17 MR. MALLETT: If a party wants to make a motion,
18 then I think we should deal with it at that time.
19 THE COURT: I guess it's up to the state. I'm
20 not making the motion. I just pointed out that those
21 are other matters about how funds are being
22 distributed that the Court -- when I'm made aware of
23 it -- I'm making an inquiry about it. That's what I
24 did, as you pointed out, in the trial transcript. So
25 let's go on to the next motion -- I mean the next
1 point. That's not gonna --
2 MR. MALLETT: May it please the Court, I'm still
3 on the first paragraph if I could complete my record.
4 THE COURT: All right.
5 MR. MALLETT: The Court commented a minute ago --
6 the Court remembered there was a conversation about
7 the feed from the cameras, and the Court didn't
8 remember if that was on the record or off the record.
9 And all we're saying in paragraph one is there that
10 may be occasions from time to time where if the
11 presiding judge is forced to call upon his memory as
12 to what happened in matters relating to the handling
13 of the case, then he is obviously immune and exempt by
14 law from being examined -- acting in the role of a
15 witness. So out of an abundance of caution, we
16 thought we should raise this issue at the earliest
17 time that we could get it into writing and get it into
18 the Court's possession.
19 On that point, the Court was speaking a minute
20 ago about this issue of the cameras in the courtroom.
21 It's a long trial, complicated trial, hard-fought
22 trial, hard to read this transcript. When you read
23 it, it's so long that you sometimes forget things you
24 read previously.
25 When I was preparing this motion I found at page
1 507 -- and it is Bates stamped 1285 -- a proceeding in
2 which Mr. Ford is vigorously objecting to cameras in
3 the courtroom. Mr. Ford is informing the Court that
4 his client's secret contract with HBO does not require
5 that there be cameras in the courtroom. Mr. Price is
6 taking the position that there should be cameras in
7 the courtroom.
8 I did not find the page in this transcript in
9 which the Court on the record after consultation with
10 the parties resolved that disagreement. I don't know
11 if on the record Mr. Ford withdrew his objection or
12 how it was resolved. And when we were drafting the
13 motion, one of the things that we were distressed
14 about was the possibility that just as there -- as we
15 know now -- was an informal conversation about the
16 feed of the information that could have been
17 untranscribed -- that there may have been some
18 resolution of this very critical question of the
19 potential for a conflict of interest from Mr. Echols
20 taking money to be held in trust by Mr. Davidson in
21 trade for agreeing to interviews on the one hand --
22 and the Court's legitimate and appropriate concern
23 about it -- and then it's resolved. Mr. Ford's
25 We couldn't find in the transcript where it was
1 resolved on the record. We're a little distressed
2 about that. We thought, well, the person that
3 resolves that then is the best witness, which would be
4 Judge Burnett, but he is the judge.
5 So maybe it would be better if the determination
6 of how that was resolved was presented to a different
7 judge so that we would have the benefit of Judge
8 Burnett's testimony. So we make that -- that is a
9 part of the first paragraph of the motion.
10 THE COURT: I understand that. Can you tell me
11 how at this point the fact that cameras were in the
12 courtroom is even the subject matter of this hearing?
13 Are you suggesting -- and is it a part of your
14 contention -- that the mere fact that cameras were in
15 the courtroom and the entire proceedings or the
16 majority of 'em were recorded -- that that caused some
17 reversible error in the trial and caused circumstances
18 that would warrant a new trial? Is that what you're
20 MR. MALLETT: It is alleged in our petition that
21 Mr. Echols' lawyers were burdened by a conflict of
22 interest which affected their performance in the case.
23 THE COURT: I'll be happy to hear that. That's a
24 legitimate reason. That goes to their competency.
25 MR. MALLETT: That is within the pleadings that
1 we're getting to today. We believe that their
2 resolution of Mr. Ford's objection to cameras in the
3 courtroom and Mr. Price's, Mr. Davidson's desire that
4 there be cameras -- wherever it was resolved -- was
5 resolved adversely to Mr. Echols, and that the
6 decision the lawyers made which was adverse to him was
7 because their performance was affected by this whole
8 contract with HBO and being in a movie that was going
9 to be sold across the country and so forth. That is
10 within our pleadings. So this is one of the building
11 blocks in the case that we're coming here to present.
12 THE COURT: All right. I understand that. But
13 the reference you're making to what point that
14 occurred in the trial I don't know, and apparently
15 neither side asked me for a ruling. I didn't just
16 volunteer one. If they had asked for a ruling, they
17 would have gotten one.
18 MR. MALLETT: It may be that the Attorney General
19 or Mr. Davis can help us find a page reference. We
20 couldn't find it, and we're thinking suddenly we've
21 got a Court ruling on a really important --
22 THE COURT: I didn't make a ruling apparently.
23 MR. MALLETT: -- we have a consequence on an
24 important issue -- a consequence -- and we have not
25 found the page where it got worked out.
1 THE COURT: Did you find where I was asked to
2 make a ruling?
3 MR. MALLETT: No, sir.
4 THE COURT: I probably didn't then.
5 MR. MALLETT: We only found Mr. Ford's objection
6 and then in our transcript it didn't get back to it,
7 but perhaps they can enlighten us.
8 THE COURT: Okay.
9 MR. MALLETT: We have a motion for continuance.
10 We're here today on a very important day in my state
11 -- Cinco de Mayo -- which is a celebration. My little
12 boy's school will have a party -- Mexican Independence
13 Day. It's also tragically the day of these terrible
14 murders. It's the day this Court set an execution
15 date. We have a motion for continuance pending on
16 which we have not received a formal or written ruling,
17 although we've certainly received an indication that
18 the Court's not inclined to grant a continuance.
19 We're here.
20 We say in paragraph two that a question we'd like
21 to ask the Court -- and I guess we can clear it up now
22 -- is whether Home Box Office or Court TV or anyone
23 have attempted to make some contact or arrangement
24 whereby the Court would receive some -- permit the
25 Court to be interviewed in any way and whether that
1 would have any impact on the Court's decision to not
2 grant our request for a continuance and to hold this
3 magic day of May the 5th for the hearing.
4 THE COURT: I have been contacted by Channel 8,
5 by one of the Memphis channels, and Bruce Sinofsky of
6 Creative whatever called me about four or five days
7 ago and wanted to know if the case was going to be
8 continued. And I told him that it was set for this
9 date, and I expected all the parties to be here.
10 They each asked if cameras or recording devices
11 would be permitted in the courtroom, and I told them
12 that you had objected to it, and according to our
13 rules, if the plaintiff or defendant object, then I
14 don't permit it. And that's what they were told.
15 As far as the date or influencing -- you don't
16 know me very well. My wife can't influence my
17 decisions. I do what I think's right. I don't care
18 who's offended by it or who's involved. And they
19 certainly didn't influence my decision to continue
20 with this hearing today.
21 I think you should recall -- and I don't know if
22 we recorded or transcribed a lengthy telephone
23 conference several months ago -- where this date was
24 arrived at. I made several potential dates available
25 and as I recall, according to your scheduling and Mr.
1 Davis' scheduling, this was the day that it fell on.
2 I wasn't even aware at that time that that was the
3 anniversary date. I will concede and admit when I set
4 the execution date, I did so with deliberate purpose.
5 But as far as this date was concerned, that was
6 to accommodate you as I recall.
7 MR. MALLETT: I want to stipulate to the Court's
8 recollection of that conversation. I did agree to it.
9 I was not attentive to this being the third time that
10 this would be a prominent date --
11 THE COURT: Nor was I.
12 MR. MALLETT: -- in the disposition of the case.
13 THE COURT: In fact there were other dates that
14 were more convenient to me. But that's the date we
15 ended up with and at that particular time, it didn't
16 register with me. It might have with someone else.
17 MR. MALLETT: I'm absolutely confident that the
18 record can reflect that Home Box Office has not
19 obtained any agreement to interview you on this day or
20 tomorrow in connection with these proceedings.
21 THE COURT: No, they asked me whether or not they
22 could interview me. I told them that it wouldn't be
23 appropriate until this proceeding was over.
24 MR. MALLETT: We will abandon paragraph two.
25 THE COURT: All right. I think Mr. Sinofsky will
1 tell you that I have -- during the trial, I refused to
2 be interviewed. They did not interview me until the
3 trial was over, nor will they until this matter is
5 MR. MALLETT: Paragraphs three and four of our
6 motion raise a slightly more sensitive issue that I
7 was at first reluctant to raise, and then I thought
8 out of an abundance of caution I really had a duty to
9 raise on behalf of Mr. Echols so that any lawyer or
10 judge reviewing these proceedings did not think that
11 we made some strategic decision when we did not.
12 From the time I was invited to take an interest
13 in the case and took an interest in the case, I have
14 wanted to be certain that we had available to us a
15 transcription of all official court proceedings
16 including pretrial matters and jury selection.
17 It appeared to me that when we examined the
18 abstract of the trial and the materials made available
19 to the Arkansas Supreme Court on the first direct
20 appeal, that there were not issues raised relating to
21 jury selection -- to the Court's voir dire portion of
22 the case. Erroneously, that gave me the impression
23 that it had never even been requested, and in a
24 capital case this is often an area where there is very
25 close scrutiny by reviewing courts as this Court well
1 knows. So we set about attempting to be sure that we
2 had available to us the complete record of the
4 For the record, I would like to put into the
5 record what we have numbered here as Petitioner's
6 Exhibits 1, 2, 3 -- which is a two-page exhibit -- 4
7 and 5 which are correspondence either between Mr.
8 Schay and the court reporter, Mr. Schay and the Court,
9 myself and the court reporter or myself and the Court.
10 If and to the extent these were not copied to the
11 state, I want to apologize to the state and make them
12 available now. The sum and substance of it is that
13 when I -- perhaps I should refer to the exhibits -- if
14 we can wait just a moment and let Mr. Davis take a
16 I guess before I argue from the documents, I
17 guess I should move them into evidence. Would the
18 Court like to examine them?
19 THE COURT: Are they letters --
20 MR. MALLETT: Yes, your Honor. There's one that
21 says, "FYI/Ed." That's my handwriting. That's
22 surplus. There's a rubber stamp indicating a receipt
23 at a business. I think the Court and any reviewing
24 person could easily take a look at these and see what
25 was added later.
1 THE COURT: That's fine. They may be received.
2 (PETITIONER'S EXHIBITS 1 THROUGH 5 ARE RECEIVED
3 IN EVIDENCE)
4 MR. MALLETT: Thank you, your Honor. And on May
5 the 13th, the Court wrote Mr. Schay respecting his
6 appointment of counsel and denying it because other
7 attorneys had indicated that they would be
8 representing Mr. Echols, and the letter is signed by
9 David Burnett, Senior Circuit Judge.
10 THE COURT: And that "Senior Circuit Judge"
11 shouldn't have been on there. All that refers to is
12 me being the oldest one around. It has no meaning
13 whatsoever, and it's kind of a joke really. So it
14 shouldn't have been on the letter, and I apologize for
15 that. It has no significance other than I have been
16 here longer than the rest of 'em.
17 MR. MALLETT: There's certainly nothing senior
18 about your appearance, your Honor.
19 THE COURT: I'm older than I look.
20 MR. MALLETT: Then at my request, a woman named
21 Glori Shettles, who was employed by Mr. Lax's office,
22 sought to obtain a copy of the transcription of the
23 jury selection, and Ms. Fisher wrote back saying in
24 pertinent part, "I'm under no obligation to provide
25 any further transcript in this matter."
1 My experience is not in Arkansas -- I freely
2 confess that -- and in the State of Texas court
3 reporters are happy to be paid to work and to the
4 extent they have time after performing their other
5 duties, will accept employment to provide
6 transcriptions of official proceedings.
7 THE COURT: I think you touched on a problem with
8 performing their other duties. We have a busy court
9 schedule, and she did inquire of me whether she was
10 required by law to provide an additional transcript,
11 and I told her no, she didn't have to.
12 MR. MALLETT: I certainly think the letter --
13 THE COURT: The transcript and all matters that
14 were requested by counsel were submitted to the
15 Supreme Court, and that is available to you and any
16 other counsel. So she wasn't obligated, to use the
17 term, to provide an additional transcript. Now, she
18 may have done so if she wished.
19 MR. MALLETT: She did show a copy of the letter
20 to you, and I think that was entirely appropriate as
21 the judge that supervises her work and have no quarrel
22 with it. But I was surprised. And she did make no
23 mention of her schedule being the reason, only that
24 her duties had been completed in the matter.
25 So I wrote her a somewhat more lengthy letter on
1 January 27, 1997, attempting as best I could to lay
2 out my position that I wasn't accusing anybody of
3 anything but was wanting to look at the transcript
4 because as a lawyer I should have it so that I could
5 know and asking again if she would be so kind as to
6 look at her notes and give me an estimate of the cost
7 of a transcript at her customary rates, whether she
8 wants prepayment and so forth. Then I received a
9 letter from the Court.
10 THE COURT: She asked me to reply to it.
11 MR. MALLETT: Again, this is an administrative
12 matter. I can understand why the State of Arkansas
13 wasn't involved by getting a copy, and the Court
14 explains to me that the trial court no longer has
15 jurisdiction in the matter. "I am ordering my court
16 reporter not to provide any additions to the official
17 transcript unless and until the Arkansas Supreme Court
18 reconveys jurisdiction to me for that purpose."
19 Of course, there was nothing in my letter asking
20 for an addition to the official transcript. There's
21 only a request that she allow me to purchase a
23 THE COURT: My thought on it, Mr. Mallett, was I
24 didn't want any record prepared that was not a part of
25 the official record, particularly at a stage in the
1 trial where I no longer had jurisdiction. I didn't
2 want to have to come back and see some record that was
3 allegedly a part of the official transcript that never
4 was. So that's what I attempted to tell you in the
5 letter that if you wanted to, you could request the
6 Court to order that transcript to be prepared. I
7 thought portions of it were done.
8 Did you do 'em?
9 THE REPORTER: Yes.
10 THE COURT: I think she actually did 'em. I
11 don't know who got 'em but --
12 MR. MALLETT: Actually, we subsequently recovered
13 the jury selection portion --
14 THE COURT: Okay.
15 MR. MALLETT: -- and found out that it had been
17 THE COURT: Did you get a copy?
18 MR. MALLETT: Yes, sir.
19 THE COURT: Okay, well, what's the problem?
20 MR. MALLETT: But at the time I didn't know it
21 had been transcribed. Nobody said, it's been
22 transcribed. You don't need to pay for it. Here's
23 where you go look for it. It was Judge Burnett
24 ordered me not to do it, was my impression, from
25 reading her correspondence.
1 THE COURT: She objected to having to do an
2 additional transcript and, further, I was afraid that
3 you were asking for something that wasn't a part of
4 the official transcript, and I suggested to you that
5 you could ask the Supreme Court to reconvey
6 jurisdiction. I thought that we resolved this and
7 that you or Mr. Schay were provided a transcript of
8 the voir dire. That was my recollection -- that it
9 was made and done and that you got it.
10 MR. MALLETT: Eventually we were able to recover
11 it. That's correct.
12 THE COURT: Okay. All right.
13 MR. MALLETT: And then finally on June 10th of
14 '97, which is Exhibit 5 for the record of these
15 proceedings, I wrote again asking for her "best
16 estimate of the costs and indicate whether you will
17 accept a deposit or will require full prepayment," for
18 a transcript of all proceedings not previously
19 transcribed. That was on June 10th. And I cannot
20 find any record of my receiving a response to that
22 What these letters do -- we think -- is show at
23 least a diligent effort working up through June of
24 last summer to be sure that we had a complete
25 transcript. That the judge -- and you say humorously
1 transferring the case, these are matters about which
2 we would not properly be interrogating a sitting judge
3 who is hearing our proceedings.
4 THE COURT: I don't see any point to do so. You
5 have the transcript.
6 MR. MALLETT: I think we've covered this title of
7 senior circuit judge --
8 THE COURT: That's something that's been bandied
9 about around here as long as I have been a judge, and
10 the judges prior to me that predated me in tenure
11 jokingly referred to themselves as senior judge. I've
12 also been referred to as a "super" judge because I was
13 the one that pushed for joinder of probate and equity
14 and law, and that was accomplished by the legislature
15 sometime ago. So -- that's a joke, too.
16 MR. MALLETT: Your Honor, in a death penalty case
17 if you had signed a letter "Super Judge," you may be
18 sure someone would have complained about it.
19 THE COURT: I don't think I would have done that.
20 Again, that has no significance.
21 MR. MALLETT: In paragraph five of the motion we
22 refer to a page in the transcript. I don't have the
23 page here, but I represent to the Court that we'll
24 supplement the record -- and hopefully by the end of
25 the day and certainly before we want these proceeding
1 closed -- with the page in the record referred to in
2 paragraph five of this motion.
3 There was a time in the proceedings when an
4 officer was on the stand and there had already been
5 some -- we'll say hassle -- between the lawyers
6 bringing to the Court's attention concern that
7 something about the Misskelley so-called confession
8 would be blurted out in the presence of the jury.
9 THE COURT: I don't remember that. You're gonna
10 have to find in the transcript where that occurred.
11 MR. MALLETT: We'll wait on paragraph five and
12 find the page to show the Court.
13 THE COURT: And when you do, it is going to show
14 that it was an out-of-the-presence-of-the-jury
15 conference where I made reference, "Well, everybody
16 already knows it anyway." I think that's what you're
17 gonna find to be the facts. That somebody mentioned
18 something about it, and there was an objection. The
19 jury was excused. Then it was a comment I made out of
20 the presence of the jury. I think that's what you're
21 going to find to be the facts because I don't recall
22 ever blurting out or saying anything in the presence
23 of the jury, and I frankly don't think I would have
24 ever done that. But if you find where I did it, I'll
25 certainly pay attention to it. I don't think it
2 MR. MALLETT: Let's assume -- and I am certainly
3 willing to assume at this time until I'm proven wrong
4 -- and I think likely the Court's memory is correct --
5 we'll find it. Assuming that the Court's absolutely
6 right -- that that is what happened --
7 THE COURT: I'm not sure that's what happened,
8 but I think it is.
9 MR. MALLETT: The Court's statement, "Everybody
10 knows Misskelley made a statement." Let's accept that
11 as accurate because it probably is. What that tells
12 us is that in the view of an experienced public
13 official, particularly sensitive to the context of
14 this case within the counties in which it may be
15 tried, everybody from which the jury would be selected
16 knew that a co-defendant had confessed to the murders.
17 It is a part of -- it is a part of our complaint
18 on Rule 37 that venue should not have been moved to
19 this county but should have been moved further away
20 and/or the case continued to a later date. We think
21 that the --
22 THE COURT: Was that not a matter addressed to
23 the Supreme Court and that they ruled on it -- the
24 question of the change of venue -- is that not one of
25 the 93 points that they ruled on? I think it was.
1 MR. MALLETT: I don't have it in my mind that an
2 adequate second motion for change of venue nor an
3 adequate record in support of a second motion for
4 change of venue was made in this case.
5 There is the Pruett case -- that I'm sure the
6 Court has heard of -- which came out of a Federal
7 District Court in Arkansas -- on the issue of a second
8 change of venue.
9 THE COURT: There was a second change of venue.
10 I changed the venue from West Memphis because of the
11 pretrial publicity and the fact that generous portions
12 of the so-called statement of Misskelley had been
13 reported in every newspaper around. I moved it as far
14 as I was capable of moving it.
15 There was discussion in the record, I think, as
16 to whether or not this Court had the capability of
17 removing the case outside of the Second Judicial
18 Circuit. I think maybe later they found some cases
19 that might support that, but to my knowledge there
20 weren't any at that time, and I moved it as far as
21 physically possible from West Memphis.
22 Now, to try the next two cases in the same
23 courthouse, which was a rural county of some
24 twenty-five thousand people, I felt it was appropriate
25 to move it elsewhere. And because of our facilities
1 here in Jonesboro, I thought that that would be the
2 most appropriate place. So it was moved the second
4 MR. DAVIS: Your Honor, one thing I wanted to
5 clarify. In their amended Rule 37 petition that they
6 filed, there's nothing mentioned about a failure to
7 request a second change of venue. It just says,
8 "failed to request a change of venue to a county
9 outside of the Second Judicial District," and I think
10 the record will be clear that in fact that request for
11 a change of venue outside the district was made.
12 THE COURT: It was made and a ruling given on it.
13 So in that connection --
14 MR. MALLETT: May it please the Court --
15 THE COURT: Yes, sir.
16 MR. MALLETT: On pages 427, 428 and thereafter --
17 Bates stamped 001204 and pages thereafter -- there is
18 a discussion about moving the case from Jonesboro. It
19 appears to me that what the Court does is indicate
20 that the Court will carry the motion and not make a
21 ruling at that time.
22 I don't find the motion reurged by defense
23 counsel. Perhaps the State of Arkansas will later be
24 able to correct me, but I don't find it renewed or
1 Back here where we started, where we started was
2 our motion for disqualification. That's the motion on
3 the table. We are focusing on the Court's knowledge
4 that everybody's heard that the co-defendant made a
5 confession. We think that's testimony in support of
6 what should have been a fully developed effort to make
7 a record on a change of venue from Jonesboro to a
8 further place or a continuance to allow the effects of
9 publicity to dissipate. Can't call the judge as a
10 witness on our Rule 37 motion if it is the judge
11 that's presiding on the Rule 37 motion. So that's in
12 our pleading.
13 THE COURT: You can point out in the pleading
14 [sic] if I made such a statement in the presence of
15 the jury if you want to. I'll certainly, I mean, I
16 don't think -- I think your -- this case if you lived
17 in Hong Kong, you probably were aware that a statement
18 was made in a previous trial.
19 MR. MALLETT: And in Arkansas in the parlance of
20 the courthouse the word "statement" generally
21 translates to incriminating statement. Is that a fair
23 THE COURT: Not always, but I'd say generally so
24 when you're referring to a defendant having made a
25 statement, the assumption would be that he made a
1 statement that was against his interest.
2 MR. MALLETT: Certainly in the context of Jessie
3 Misskelley, it would be a statement against interest.
4 THE COURT: Well, frankly, Jessie Misskelley's
5 statement was full of a lot of points that were
6 pointed out by the defense, adequately I thought, that
7 might suggest that he didn't know what he was saying
8 or whatever.
9 MR. MALLETT: So in our complaint about conflicts
10 of interest and in our complaint about ineffective
11 assistance of counsel, we do complain that an effect
12 of the conflicts and the effect of the conduct of
13 counsel was the failure to make an adequate record on
14 the need to move the case or delay the case, and on
15 that point we thought your comment was very probative
16 -- that everybody knows he made a confession.
17 THE COURT: I would make that comment again, Mr.
18 Mallett. There isn't anybody in the State of Arkansas
19 -- if you had transferred it to Fort Smith -- that
20 wouldn't have been aware that a statement had been
21 made. I suggest even Texas, although you probably
22 don't pay much attention to what we do in Arkansas
23 there. Even the folks in Texas were probably aware of
24 it that kept up with the trial.
25 MR. MALLETT: You know, in Houston, Texas, we do
1 such terrible things to each other that if the case is
2 a hot button case and there's a lot of publicity, they
3 continue it 30 or 60 days and everybody forgets
4 because of all the intervening bad things that occur
5 I'm ashamed to say.
6 THE COURT: I think there was a good lapse of
7 time between the event and the trial if that's what
8 your point is.
9 MR. MALLETT: My point here only is that the
10 judge himself has put it in the record -- and I
11 appreciate it -- that everybody knew the co-defendant
12 had confessed.
13 THE COURT: If you want to use that as a point to
14 argue ineffectiveness, certainly you will be permitted
15 to do so, but as far as -- I don't think that makes me
16 a witness in the case.
17 MR. MALLETT: I'm happy to have the Court's
18 finding. We don't need you as a witness if it's an
19 uncontested fact.
20 THE COURT: No, you certainly don't because, yes,
21 I'm telling you that was a considered matter.
22 MR. MALLETT: Paragraph six is just a general
23 anticipatory or declaratory claim that things may come
24 up, and we didn't want to fail to raise the issue
1 And paragraph number 7 is a request that the
2 Court indicate whether the Court would know of any
3 reasons that it would be appropriate for another judge
4 to sit because Mr. Echols can't be assumed to know
5 everything that the Court knows that might be
7 THE COURT: I don't know of any reason why
8 another judge should hear this matter. As I pointed
9 out, I think I'm the one that would be in the better
10 position to hear it, having knowledge of what took
11 place, having observed counsel in their efforts. I
12 think I'm the one that should hear it, frankly.
13 MR. MALLETT: That's my presentation on the first
14 motion, your Honor.
15 THE COURT: Your first motion is denied.
16 MR. DAVIS: Your Honor, may we make a small
17 response for the record?
18 THE COURT: All right.
19 MR. DAVIS: Your Honor, for the record, we would
20 like to state that in Rule 37.5, Section E -- it may
21 be subsection E -- time for filing post-conviction
23 Rule 37.5 states, "A petition for relief under
24 this rule shall be filed in the circuit court that
25 imposed the sentence of death within 90 days after the
1 entry of the order."
2 Obviously, Rule 37.5 envisions that the Rule 37
3 relief is filed in the same court that heard the case
4 initially. In addition to that Travis versus State,
5 283 Ark. 478, 678 Southwest 2d 341 states that, "The
6 same judge who presides over a defendant's trial may
7 also preside over a post-conviction proceeding.
8 Disqualification is discretionary and will not justify
9 reversal absent an abuse of discretion."
10 And it is the state's position that obviously
11 Rule 37 envisions that the judge who sat and heard the
12 case and was the circuit judge in the case in the
13 lower court again hears the Rule 37 proceedings, and
14 Arkansas law provides that such procedure is within
15 the sound discretion of the trial court, and it is the
16 state's position that that is what should occur here.
17 THE COURT: All right. Motion denied.
18 MR. MALLETT: May it please the Court, the next
19 motion -- taking two motions at once -- the first and
20 second motions for continuance of hearing.
21 As I have indicated, we are here. So while we've
22 not received any formal or official notification, we
23 certainly understand and expect the Court will be --
24 is inclined to continue on with the proceedings today.
25 THE COURT: As I recall your first motion, it was
1 in general terms just saying that you needed more
2 time, and you didn't really specify as to what you
3 needed more time to do.
4 As you've pointed out, you've been involved in
5 this case since shortly after the appeal, I guess, or
6 maybe after the original trial. Certainly at least
7 over a year and a half now you've been involved in it.
8 We had a lengthy telephone conversation to where I
9 suggested to both the prosecutor and the defense that
10 I wanted to move it along and have a hearing on it,
11 and we agreed on the day being today to at least
12 commence the hearing.
13 So I instructed my case coordinator to inform you
14 gentlemen -- and I think she called both of your
15 offices or certainly Mr. Schay's -- and let it be
16 known that I wasn't going to continue the case on your
17 first motion.
18 The second motion was filed -- and I believe it's
19 the one where you had a good friend that passed away
20 -- and I'm certainly sorry for that, and I would
21 understand your desire to go to and attend the funeral
22 and visit the family, and I think you did.
23 MR. MALLETT: (Nodding head)
24 THE COURT: So without denying your motion, I
25 told my case coordinator to inform the prosecutor and
1 the defendants that I was going to be here today and
2 that you could present your motion for continuance
4 So if you want to add to it and let me hear it,
5 we'll consider it, but like you suggested, you
6 apparently have your files here and are ready to
7 proceed. If that's not the case, let me hear your
8 continuance motion. Your first one was certainly
9 denied. The second one -- I didn't rule I guess.
10 MR. MALLETT: Let me make this suggestion --
11 THE COURT: I don't think we can finish today if
12 that's what you're gettin’ at.
13 MR. MALLETT: No, sir. And I think it would be
14 -- certainly seeking judicial economy and the good use
15 of the public's money -- I would suggest that we
16 continue onward and see how much we can accomplish,
17 reserving the right, if the Court please, to
18 supplement the record or offer additional testimony at
19 a later time.
20 THE COURT: That's what I would hope we could do
21 is get as much done as we can and depending on what my
22 schedule is in Osceola, we may go on tomorrow or the
23 next day.
24 MR. MALLETT: We'll talk about that if we get
1 What I'm asking the Court to take into
2 consideration is the possibility that we work through
3 the day, and then depending on where we are, pick a
4 future day -- two weeks, three weeks or a month.
5 THE COURT: That's certainly possible, too. I
6 may not be able to be here tomorrow either.
7 MR. MALLETT: I would like to indicate that some
8 severe burdens on other people and judges would be
9 created if we go past today.
10 THE COURT: I used to practice law years ago,
11 too, and I know scheduling is difficult, but that's
12 something you have to work out.
13 MR. MALLETT: I appreciate that. With that in
14 mind --
15 THE COURT: So you are waiving your motion to
16 continue -- whatever part of it was left.
17 MR. MALLETT: I'm willing to proceed today and go
18 as far as we can go expecting that we will not be able
19 to complete all of our evidence.
20 THE COURT: I don't have any problem with that at
22 MR. MALLETT: Very well.
23 THE COURT: So what's the next motion?
24 MR. MALLETT: In connection with all motions and
25 expecting the Court to hear testimony by a witness and
1 consider it at a later time as applicable to one or
2 more motions, I think we would like to start if we
3 could with Mr. Stidham, and he will testify on our
4 Rule 37 motion. He will give testimony that relates
5 to our motion for dental impressions, motion for
6 additional DNA testing, motion to continue or recess
7 the proceedings while we complete our factual
8 investigation and other related matters that I think
9 are relevant.
10 MR. DAVIS: Your Honor, is this for -- I missed
11 something here. Is this for purposes of the Rule 37
12 petition itself, or is this some other motion?
13 THE COURT: It sounded to me like it was on his
14 motion for additional evidence or to have scientific
15 tests done.
16 MR. MALLETT: We had asked for a continuance to
17 complete scientific testing. So this is relevant to
18 that. That was one ground for wanting a continuance.
19 I don't mind putting on the evidence on that and the
20 Court will have heard the evidence as it relates to
21 the Rule 37 matters as well.
22 MR. DAVIS: That's where the crux of this issue
23 is. That new evidence that they're talking about
24 asking for a continuance to acquire, that evidence is
25 not relevant nor appropriate for a Rule 37 proceeding.
1 And that's why once we cross the threshold into
2 putting on testimony and evidence regarding it, then
3 it gets jumbled and mixed with what may be appropriate
4 and relevant information for the Court to consider in
5 regard to a Rule 37.
6 New evidence is not a collateral attack on the
7 ultimate judgment in this case. It's a direct attack
8 which is not appropriate for Rule 37 relief. There
9 are a number of cases under Arkansas state law that
10 basically say that the introduction of new evidence,
11 should it exist, is not appropriate nor relevant for
12 consideration under a Rule 37 proceeding.
13 Therefore, if it is not appropriate for
14 consideration, then using it as a basis to seek a
15 continuance or additional delays would not be
16 appropriate either. And to put Mr. Stidham on the
17 stand as an attorney to testify as to possible new
18 evidence that may exist or possible tests that could
19 be done, would be totally irrelevant. Since we're
20 talking about a proceeding that's gonna take days, I
21 think we need to narrow it down and focus in on what
22 actually are relevant issues for a Rule 37 proceeding.
23 THE COURT: Do you want to respond to that, Mr.
24 Mallett? It sounds to me like a motion for a writ of
25 error coram nobis.
1 MR. MALLETT: Your Honor, we believe that failure
2 to investigate may be an event or fact which allows
3 the Court to find ineffective assistance of counsel.
4 THE COURT: Can you show at what point this issue
5 or subject became known to trial counsel? It seems to
6 me if they were not aware of it and didn't know about
7 it, they didn't have any duty to investigate. Are you
8 suggesting that they knew or should have known that
9 potential evidence existed and they failed to pursue
11 MR. MALLETT: Yes, sir. Furthermore, that the
12 conflict of interest relating back to the secret
13 contracts that were not shown to the Court --
14 THE COURT: I'm going to let you call the
16 MR. MALLETT: Thank you.
17 THE COURT: But I'm only going to consider it as
18 going to the effectiveness of counsel. I'm not going
19 to consider any newly discovered evidence as the basis
20 for a new trial. You're going to have to petition the
21 Supreme Court for that. I don't have jurisdiction.
22 It's not covered under Rule 37.
23 MR. MALLETT: It's going to be offered in support
24 of the reasons under Rule 37 that the Court could
25 grant a new trial. I'm not asking the Court to exceed
1 its jurisdiction.
2 THE COURT: All right. If it's being offered and
3 the thrust of your proof is that trial counsel either
4 knew or should have known of potentially exculpatory
5 evidence and as a result of their contract with Home
6 Box Office failed to pursue it --
7 MR. MALLETT: Or for other reasons.
8 THE COURT: I'm interested in it in that context
9 only. All right?
10 MR. MALLETT: Yes, sir.
11 MR. DAVIS: Your Honor -- and I apologize if I
12 missed something. We're now starting with testimony
13 regarding the Rule 37 petition itself?
14 THE COURT: That's what I hope we're doing.
15 Let's take a short recess.
17 (RETURN TO OPEN COURT)
18 MR. MALLETT: May I approach the court reporter
19 and get this marked?
20 THE COURT: Yes. Is that that other letter?
21 MR. MALLETT: That's the exhibit we discussed
22 informally at recess.
23 THE COURT: I'm not sure which one it is. Is
24 that the one I handed to you?
25 MR. MALLETT: That's correct, your Honor.
1 THE COURT: Okay, and that's the letter that
2 explains how you did get a copy of the transcript?
3 MR. MALLETT: That's correct, your Honor. For
4 the record, what is marked as Petitioner Exhibit 7 is
5 a Motion for Court Order to Pay Court Reporter signed
6 by Mr. Schay on August 29, 1997, and then the third
7 page is a letter from Ms. Fisher to Mr. Price
8 attaching her invoice, indicating that she is
9 forwarding an original and a copy of the jury
10 selection proceedings to Mr. Schay, and it's dated
11 August 19.
12 THE COURT: It may be received.
13 (PETITIONER'S EXHIBIT 7 IS RECEIVED IN EVIDENCE)
14 DAN STIDHAM
15 having been first duly sworn to speak the truth, the whole truth
16 and nothing but the truth, then testified as follows:
17 DIRECT EXAMINATION
18 BY MR. MALLETT:
19 Q. Mr. Stidham, I am confident that you are well known to
20 Judge Burnett, but a time may come when some reviewing court who
21 does not know you would use this. So I'm going to develop a
22 little bit of personal information if the Court will permit.
23 Please introduce yourself to the court reporter and Judge
25 A. My name is Dan Stidham.
1 Q. How are you employed?
2 A. I'm a private attorney, and I have a practice in Paragould,
4 Q. What county is Paragould located in?
5 A. Greene County.
6 Q. Would you give us the benefit of a brief narrative of your
7 educational background?
8 A. Well, I attended college here in Jonesboro at Arkansas
9 State University. I received a Bachelor of Arts Degree in
10 sociology, with a minor in psychology, and I attended law school
11 at the University of Arkansas Law School in Fayetteville.
12 Q. About what time were you licensed to practice law in the
13 State of Arkansas?
14 A. I was licensed in March of 1988.
15 Q. Did a time come when you became a parttime defender --
16 receiving public money for representing poor people in your
18 A. Yes. I can't specifically recall the exact date, but I
19 became a parttime public defender in Greene County -- I believe
20 it was in 1992.
21 Q. And were you a parttime public defender in Greene County
22 throughout the year of 1993?
23 A. That's correct.
24 Q. Likewise, were you a parttime public defender in Greene
25 County throughout the year of 1994?
1 A. That's also correct.
2 Q. Does the State of Arkansas require a parttime public
3 defender, as you were, to keep some sort of records indicating
4 the average caseload or the number of cases disposed of over
6 A. Yes. We were required to make an annual report to the
7 Administrative Office of the Courts indicating how many juvenile
8 cases, how many felony cases, and how many misdemeanor cases we
9 handled on an annual basis.
10 Q. On an annual basis within some reasonable range of error,
11 would you give me an estimate of the number of cases that you
12 handled in 1993 and 1994?
13 A. Approximately 200 to 250 cases a year.
14 Q. In addition to handling those 200 to 250 cases a year, were
15 you permitted to maintain a private practice?
16 A. Yes, I was.
17 Q. When I say private practice, I mean a private practice in
18 the sense that people who are citizens pay you for your time and
20 A. That's correct.
21 Q. Or allow you to have some contingent interest as in an
22 insurance claim?
23 A. That's correct also.
24 Q. So your income is both the handling of an average 200 to
25 250 cases as a public defender and such other income as you
1 might generate through your parttime private practice?
2 A. That's correct.
3 Q. How much did the State of Arkansas and Greene County pay
4 you for your work in handling 200 to 250 cases in a year?
5 A. I haven't been public defender for a number of years. My
6 recollection is that it was somewhere in the range of twenty to
7 twenty-five thousand a year, plus there was some amount of money
8 available for expenses. We could hire secretaries or
9 administrative staff, investigators and so forth.
10 Q. What percentage of the 200 to 250 cases were felony cases?
11 By that I mean cases by which a defendant could go to the
12 penitentiary if adjudged guilty.
13 A. Probably about a third.
14 Q. And the remaining two-thirds? How would that break down?
15 A. Mostly misdemeanors and several juvenile cases as well.
16 Q. Did the compensation scheme that you were under as a
17 parttime public defender in 1993 and 1994 contemplate that you
18 would be paid additional money for the trial of noncapital
20 MR. DAVIS: Your Honor, I'm just gonna ask at
21 this point so we don't get too long-winded here -- I
22 have an objection to relevance. What relevance at all
23 does Dan Stidham's salary and compensation as public
24 defender in Greene County have to do with the Rule 37
25 petition of Damien Echols?
1 THE COURT: I think he's probably leading to the
2 point that he was an overworked public defender. Is
3 that what you're --
4 MR. DAVIS: He didn't represent Damien Echols.
5 THE COURT: That's true. What is the relevancy?
6 BY MR. MALLETT:
7 Q. The same laws that applied to you would apply to public
8 defenders in other Arkansas counties. Is that true?
9 THE COURT: Not necessarily at that time. In
10 fact it was a huge hodge-podge of different
11 relationships and different circumstances. Just
12 recently did we have a statewide public defender that
13 was -- for the record -- unfunded appropriately. Go
14 ahead. I'll allow you a limited latitude in this.
15 BY MR. MALLETT:
16 Q. In this case I'll jump ahead and then come back. You were
17 the lawyer for the defendant, Jessie Misskelley?
18 A. Yes.
19 Q. To some extent, you worked in cooperation and in
20 collaboration with the attorneys appointed to represent the
21 co-defendants Echols and Baldwin?
22 A. That is correct. Mr. Price, Mr. Davidson and I and my law
23 partner, Mr. Crow, worked together extensively.
24 Q. In addition to the twenty-five thousand dollars that you
25 were paid for handling the 200 to 250 cases during those years,
1 was there provision made to underwrite the expenses of your
2 practice for secretary, gasoline, car repairs, postage, delivery
3 service, law library, bar dues, long distance calls, telephone
4 service and all the other expenses of the business of law?
5 A. A portion of the compensation paid by the county was
6 directed or earmarked for administrative expenses. However, the
7 salary was so low and the expenses were so low that we didn't
8 have -- there was never an opportunity for us to use that to
9 hire additional staff or hire an investigator or anything of
10 that nature.
11 Q. How much were you allowed for expenses in addition to the
12 twenty-five thousand annual salary?
13 A. Zero.
14 Q. A time came then when you became the attorney responsible
15 for the defense of Jessie Misskelley, correct?
16 A. That's correct.
17 Q. Taking the day as May 5th, 1993 -- have I got the right
18 date here for the date of the offense?
19 A. That's one theory.
20 Q. Or fourth, fifth or sixth -- fifth or sixth, along in there
21 -- whatever theory we adopt -- it was within that narrow frame
22 of time?
23 A. That's correct.
24 Q. How did it come about that you were appointed on a case or
25 a murder occurring in West Memphis?
1 A. It is my understanding that the Crittenden County public
2 defender's office declared a conflict of interest. I didn't
3 know what the conflict was, but I received a phone call from the
4 presiding judge who was presiding over the initial appearance
5 for all three co-defendants in this matter, and Judge David
6 Goodson called and asked me if my law partner and I would be
7 willing to represent Mr. Misskelley.
8 Q. Judge David --
9 A. Goodson.
10 Q. G-O-O-D-S-O-N?
11 A. That's correct.
12 Q. Is he a judge with felony court jurisdiction, circuit court
13 jurisdiction or lower court jurisdiction?
14 A. He has jurisdiction in all courts in our state.
15 THE COURT: He's a juvenile judge with chancery
16 and circuit powers -- a "super" judge.
17 BY MR. MALLETT:
18 Q. How many counties are in the circuit in which West Memphis
19 is located?
20 A. Six.
21 Q. As best you can remember in 1993, how many circuit court
22 judges were in that circuit?
23 A. Five is my recollection.
24 Q. We call that circuit number -- how do you --
25 A. Second Judicial Circuit.
1 Q. So in the Second Judicial Circuit there were five judges.
2 Is Judge David Goodson one of those, or is he a slightly
3 different kind of judge?
4 A. He is -- at that particular time, new judges that were
5 coming into office were assigned jurisdiction in chancery,
6 probate, juvenile, and they heard basically all types of cases.
7 And he was one of the new -- as Judge Burnett referred to
8 earlier -- a "super" judge. We lawyers laughingly joked that
9 that particular type of judge can take your kids away from you,
10 give you a divorce and send you to the penitentiary all at the
11 same time.
12 Q. Did Judge Goodson tell you that the Misskelley case was a
13 case in his court?
14 A. The reason that he had the case before him on his docket
15 that morning was because he was the judge that was assigned to
16 Crittenden County on that particular morning. It was just luck
17 of the draw.
18 THE COURT: It was an arraignment.
19 BY THE WITNESS:
20 A. I believe that he had a juvenile setting in Crittenden
21 County on that particular morning. Because he was there, he was
22 assigned the task of arraigning the defendants.
23 Q. How long a drive is it from Paragould -- your office is in
25 A. Yes.
1 Q. I take it you were in Paragould when you got the call from
2 Judge Goodson.
3 A. Yes, I was home that morning --
4 Q. So you had to drive over to West Memphis?
5 A. Not on that particular day. Judge Goodson called and asked
6 if I would be willing to take the appointment. He did tell me
7 that if I whined real loud and didn't want to take the task on,
8 that he would grant me the opportunity to not do it. I called
9 my law partner, Mr. Crow, and we decided that it was a task that
10 we were going to undertake.
11 Q. You agreed to take the case?
12 A. Yes.
13 Q. How long a drive is it from Paragould to West Memphis?
14 A. It's approximately 85 to 90 miles, I guess.
15 Q. Take an average of a couple hours, more or less?
16 A. Yes. Hour and a half.
17 Q. In the Second Judicial Circuit is there a procedure whereby
18 the assignment of a judge to preside over a case is by some sort
19 of random assignment? Are cases distributed evenly by the
20 clerk? Does every judge get each fifth case, or how does that
21 work -- according to your experience in 1993?
22 A. In 1993 there was no procedure deployed or involved that I
23 was aware of that judges were assigned a particular case.
24 Basically, at that particular time, we had criminal pretrials,
25 and terms were assigned in each county of the Second Judicial
1 District, and the judges basically rotated from one county to
2 the next. Criminal cases were heard during that particular term
3 based on what cases the prosecuting attorney wanted to set for
4 trial during that term.
5 Q. This was a very serious case. That is, the offense was an
6 extraordinarily serious case -- offense, correct?
7 A. That's correct.
8 Q. Pursuant to Arkansas law, the possible punishment for the
9 offenders if proved guilty beyond a reasonable doubt would be
10 the death penalty?
11 A. That's correct.
12 Q. That would be the most serious of criminal cases?
13 A. That's correct.
14 Q. And you knew that from your first conversation with Judge
16 A. I wasn't sure at that particular moment that the
17 prosecuting attorney would be seeking the death penalty, but I
18 assumed that he would.
19 Q. And as it turned out, he ultimately did seek the death
21 A. That's correct.
22 Q. Had you previously tried as lead counsel a death penalty
23 case before this case was tried in January of 19947
24 A. No, I had not.
25 Q. Had you tried a case in which the state was seeking the
1 death penalty as a second chair prior to the trial of the
2 Misskelley case in 1994?
3 A. No, I had not.
4 Q. You had tried a murder case to a jury as lead counsel by
5 January of 1994 --
6 MR. DAVIS: Your Honor, may I again enter an
7 objection? We're talking about Mr. Stidham's
8 qualifications, and in a Rule 37 hearing on Jessie
9 Misskelley, I could understand it, but we're not on
10 Jessie Misskelley.
11 THE COURT: What is the relevancy as far as Mr.
13 MR. MALLETT: I think we already have testimony
14 that the lawyers collaborated with one another and
15 assisted one another in working together on the case.
16 I'm simply laying a foundation to the extent to which
17 he was prepared to assist in the mutual efforts and
19 MR. DAVIS: Your Honor, I don't think that the
20 law requires that -- I think if they show Mr.
21 Stidham's the most ineffective -- and pardon me, Dan
22 -- if they showed Mr. Stidham is the most ineffective
23 attorney in the world, he's not the attorney for
24 Damien Echols, and there's no relevance to that
25 testimony, period.
1 THE COURT: You're right about that, but I guess
2 what you're saying is he was a part of the overall
3 defense team --
4 MR. MALLETT: Yes, your Honor.
5 THE COURT: -- and in that connection I'll --
6 MR. DAVIS: Your Honor, that's the very reason
7 we're objecting. Because there wasn't an overall
8 defense team. There were two attorneys assigned to
9 each defendant, and it's their conduct and their
10 actions and their representation that is at issue
11 here, and that's why I object to these -- -
12 THE COURT: Mr. Crow was also appointed, was he
14 MR. STIDHAM: Yes, sir.
15 THE COURT: Let's move along.
16 BY MR. MALLETT:
17 Q. If I can have my last question answered and then I'll move
18 along. Had you previously tried a murder case as lead counsel?
19 A. No, I had not.
20 Q. Tell me what you understand to be the circumstances --
21 well, did the defense lawyers -- yourself and the attorneys for
22 Mr. Baldwin and Mr. Echols on the one hand and the attorneys for
23 the State of Arkansas, which I believe to be Mr. Davis and Mr.
24 Fogleman and perhaps some others -- was there some collaboration
25 and communication about the selection of the judge who would
1 preside over the case?
2 A. There was a discussion among the defense lawyers and the
4 Q. Tell me about it.
5 A. The first hearing we had was over the issue of discovery,
6 and I don't recall specifically the date. It was probably
7 within two or three weeks after the appointments were handed
9 Judge Olan Parker, who is now deceased, was presiding in
10 Crittenden County that day. And the defense -- we were
11 presenting an oral motion to ask for discovery materials. We
12 hadn't received any discovery materials yet. And an informal
13 discussion was had between Mr. Price, Mr. Davidson, Mr. Ford,
14 Mr. Wadley, Mr. Crow, Mr. Fogleman and Mr. Davis about – we all
15 felt and concurred that it would be nice to have one judge hear
16 the case from its inception and hear all the motions and then
17 ultimately try the case.
18 Q. Let's stop right there. As you were having these
19 conversations in which all the lawyers -- prosecution and
20 defense -- were agreeing it would be good to have one judge to
21 hear all the motions and the trial of the case, were you acting
22 in conformity with the customs and practices of the courts in
23 your circuit as you understood it?
24 A. I was not aware of any custom or practice regarding this
25 particular type of situation because, frankly, a case of this
1 magnitude involving this many homicides is pretty rare in our
2 judicial district, and I wasn't aware of any procedure available
3 to decide which judge would preside.
4 Q. Did the state tell you there was anything improper about
5 having these conversations?
6 A. No. We had it all together.
7 Q. You're all lawyers in good standing working with the best
8 of intentions to figure out an appropriate way to move the case
9 to a fair disposition?
10 A. That would be a fair statement, yes.
11 Q. What agreement did you reach?
12 A. There really wasn't an agreement other than the fact that
13 judges' names were mentioned, and we all basically agreed that
14 Judge Parker -- we would ask Judge Parker if he would take the
15 case and hear it from its inception and hear it through its
17 Q. Was there an agreement that you would go as a committee to
18 Judge Parker, or would someone speak for the group?
19 A. We all went into his chambers where he was sitting and
20 asked him if he would take the case.
21 Q. What did you learn?
22 A. Judge Parker was ill at that time with cancer, and he
23 indicated to us that he didn't want to take the case because he
24 wasn't sure how his treatment was progressing. He also told us
25 that Judge Burnett had indicated that he wanted the case.
1 Q. You knew from that time on that Judge Burnett would be the
2 presiding judge on the case?
3 A. Well, it was a few days later I believe that we received an
4 order that was signed by all the judges in the Second Judicial
5 District basically appointing Judge Burnett to --
6 THE COURT: Let me discuss that order. The three
7 circuit judges in consultation with the two juvenile
8 judges with circuit court powers had a meeting and
9 agreed that I would hear the case because Judge Parker
10 was ill and didn't feel up to it.
11 Secondly, Judge Turner was a resident and citizen
12 of West Memphis, Arkansas, and Crittenden County which
13 left me the logical person for the job. The two
14 juvenile judges simply didn't have time because of the
15 juvenile docket.
16 So an order was entered assigning the case to me
17 to avoid this very kind of controversy and conflict,
18 and that's how I ended up with the case. I would have
19 -- in hindsight I would have been tickled to death for
20 somebody else to have it. I'm too old for all this.
21 Let's move along.
22 MR. MALLETT: I'll pass the opportunity for
23 levity and move ahead, your Honor.
24 BY MR. MALLETT:
25 Q. And so as the attorneys had discussed, one judge did hear
1 all the proceedings in the case?
2 A. From the point where the scheduling order or order signed
3 by all judges was entered, Judge Burnett heard the entire case
4 -- both cases.
5 Q. So a lesser case -- a case without as much tragedy and
6 perhaps not as serious a crime, fewer people involved, fewer
7 victims -- as a case -- some other case -- a different judge
8 might hear different motions, as I understand the procedures,
9 participate in different proceedings. But in this case because
10 of the considerations we discussed, you had Judge Burnett at all
12 A. That's correct.
13 Q. Okay. If you were gonna file a motion, you knew where to
14 send it and you knew who would rule on it?
15 A. That's correct.
16 THE COURT: I don't know if it is relevant, but
17 our rules have since changed. Cases are now assigned
18 to individual judges.
19 MR. MALLETT: On a random basis?
20 THE COURT: Yes, sir. That's a recent change,
21 however, in the last year, six months.
22 BY MR. MALLETT:
23 Q. At the time of your appointment, were you assured by any
24 sort of written order of what sort of expenses would be made
25 available to the defense to investigate the facts and prepare
1 possible evidence for trial?
2 A. Obviously, the morning that Judge Goodson called me and
3 asked me about the possibility of taking the case, I was very
4 curious to know exactly what would happen as far as compensation
5 -- attorneys fees and expenses. There was a discussion about
6 it, and my recollection was that Judge Goodson said Crittenden
7 County would be paying the cost of the defense because the
8 public defender office had declared a conflict.
9 Later on a dispute arose between the county and the State
10 of Arkansas about who would pay those expenses.
11 Q. Is that a dispute that would apply to not only your
12 situation regarding Mr. Misskelley but also to Mr. Price's and
13 Mr. Davidson's position in representing Mr. Echols?
14 A. It's the same exact dispute.
15 THE COURT: Again, for the record, a reviewing
16 court will be aware this was at a point in time where
17 we were changing systems to an overall public defender
18 system, and the law was in a strange flux there
19 whether the county was obligated or the state.
20 And as I recall, there was an amount of a hundred
21 thousand dollars that had been deposited to a state
22 account to pay attorneys where conflicts arose. Then
23 there was some issue whether or not that money had
24 been expended and whether or not it would be the
25 counties. We had a hearing on it. I presided on
1 that, and there was an order entered by the Supreme
2 Court -- frankly, I think it directed the counties to
3 pay it at that point.
4 You gentlemen can probably help me. What was the
5 final result of that?
6 MR. STIDHAM: Ultimately, the state was
7 responsible for the costs and the attorneys fees that
8 you set at the hearing.
9 THE COURT: I think that's what I ruled, but I
10 thought I lost on that. Well, okay. They got paid.
11 Just a question of whether it was going to be the
12 state or the county.
13 BY MR. MALLETT:
14 Q. Did you get paid all you asked for?
15 A. Not hardly.
16 Q. There was some uncertainty then as the case moved along in
17 progression toward a trial and through the appeal about how much
18 the compensation would be --
19 MR. DAVIS: Your Honor, at this time -- if we
20 keep referring to the "case" -- and we're talking
21 about apples and oranges. The case which Mr. Stidham
22 represented was Jessie Misskelley as the defendant.
23 The case we're here on is Damien Echols, and when we
24 refer to the "case," what Dan did and the client he
25 represented was a separate and distinct trial. I
1 think that's important --
2 THE COURT: Your point is well taken, and the
3 record may so reflect. All right, Mr. Mallett.
4 BY MR. MALLETT:
5 Q. Was there communication among the lawyers about the
6 situation involving attorneys fees and expenses?
7 A. There was a great deal of discussion among the defense
8 lawyers, and I had a conversation with Judge Burnett regarding
9 that issue because there was the uncertainty that the judge.
10 mentioned a moment ago about who was going to be responsible,
11 and I knew that I had been accumulating these hours, and I had
12 basically set aside my law practice to work on this case, and I
13 was very concerned about how I was going to meet expenses and
14 take care of things. Judge Burnett assured me that the
15 compensation would be at a level of 60 dollars an hour in court
16 and 40 dollars an hour for out-of-court time.
17 Q. Was that an informal, off-the-record conference?
18 A. Yes, it was.
19 Q. At the time that conference happened, I suppose this issue
20 involving a hearing and a dispute between the state and county
21 -- had all that taken place yet?
22 A. No. All that happened subsequent to both trials -- the
23 Misskelley trial and the Echols and Baldwin trial.
24 Q. This conference with Judge Burnett on this professional
25 matter of how can I get paid and keep my household together, my
1 office together -- this was an informal, off-the-record
3 A. That's correct.
4 THE COURT: It was after the trial, as I recall,
5 and prior to appeal or during appeal.
6 THE WITNESS: Actually, your Honor, it was
7 before, during and after the trial.
8 BY MR. MALLETT:
9 Q. Before trial, during trial and after trial?
10 A. I was very concerned throughout the entire process because
11 from about October of 1993 until February 4th, 1994, I didn't
12 work on anything other than this murder case.
13 Q. From October of '93 on?
14 A. Mr. Crow basically handled the office matters, but I worked
15 exclusively on the murder case. I did not meet with any other
16 clients or have any other practice.
17 Q. I'm going to jump ahead and come back. At the end of the
18 day, did you get your 60 dollars an hour for your time in court
19 and your 40 dollars an hour for your time out of court?
20 A. No, I did not.
21 Q. Did you ever do the math on what the compensation turned
22 out to be that was approved and paid by the public to you for
23 your efforts?
24 A. Nineteen dollars an hour.
25 THE COURT: The record should reflect what was
1 paid to Mr. Stidham and Mr. Crow, and I thought it was
2 a considerable amount. They submitted hours, and I
3 went through and paid 'em on the basis of less hours
4 than they submitted, but I paid each of them and I
5 don't remember what it was. I think they got
6 collectively more than the others -- about fifty
7 thousand as I recall.
8 THE WITNESS: Mr. Crow and I each received twenty
9 thousand dollars, which was the lowest amount of
10 compensation paid to any of the defense teams.
11 THE COURT: But collectively, it being one law
12 firm, it was more than the others. But that's beside
13 the point. Whatever was paid was paid.
14 BY MR. MALLETT:
15 Q. I presume that there was not an evidentiary hearing at
16 which you were challenged to offer proof about the time you put
17 in and justify your bill?
18 A. There was a hearing.
19 Q. Did you fail to prove that you had worked the hours that
20 you billed for?
21 A. Apparently my proof fell short somehow. That issue was
22 never fully explored at the time of the hearing.
23 Q. But that was not an issue at the hearing --
24 THE COURT: There was a hearing for compensation.
25 Each attorney as I recall made -- in fact, it took
1 almost a full day, maybe even parts of a second day -
2 and after the end of the hearing, I awarded fees based
3 upon what I thought was appropriate for the services
5 I did take into consideration, and so stated,
6 that they had received seventy-five hundred dollars
7 each from Home Box Office or whatever the other outfit
8 was, and that was taken into consideration. I know
9 that each of the attorneys would have liked more. I
10 understand that. But in my judgment I paid them on
11 the basis of 40 dollars an hour, is I believe what it
12 worked out on the hours that --
13 MR. MALLETT: Do I understand then -- the state
14 of the record -- my --
15 THE COURT: I was interested in the lawyers being
16 paid, too, and I think Dan will tell you I made every
17 effort to attempt to get it done. But the change in
18 the law and the dispute between the counties came into
19 play, and it took some time for them to be paid. And,
20 frankly, they were abused during that time. I
21 certainly would be the one to tell you that they were
22 abused because the system did not allow prompt payment
23 for their services.
24 Now, I'm not going to argue with you or anyone
25 else about what I awarded. I awarded what I thought
1 to be just and fair. So that's another issue. That
2 was not appealed, and it is not a subject matter of
3 this inquiry.
4 THE WITNESS: I would like to state for the
5 record that I never received a penny from HBO or
6 Creative Thinking, International -- ever -- nor would
7 I have ever agreed to accept any compensation.
8 MR. MALLETT: We're going to go into that because
9 I think it's good for the Court to know what you did
11 May I understand, your Honor -- may the record
12 reflect that the Court considered the money paid by
13 contract to Mr. Echols, Mr. Baldwin and Mr. Misskelley
14 to be money the Court could and did treat as and for
15 attorneys fees or expenses on these persons who said
16 they were indigent?
17 THE COURT: Yes, sir, I considered that as money
18 that could be made available for their defense or for
19 payment of their attorneys. Yes, sir, I certainly
21 MR. MALLETT: And again -- and I'm very reluctant
22 because I do not mean to be questioning the Court --
23 I'm only wanting the record to be clear.
24 THE COURT: I think in that hearing that I so
25 stated and it is a matter of record -- yes, I felt
1 like as you pointed out that there were some secret
2 agreements that the Court didn't know the content of.
3 And, yes, I penalized them to that extent in awarding
4 their attorneys fees. Yes, sir, I did. So if that's
5 got anything to do with the issue before it, yes, sir,
6 I did it.
7 MR. MALLETT: To close that off before I go back
8 to the HBO contracts, the Court's state of mind and
9 understanding from what the lawyers did tell you --
10 what was not secret but what was revealed and not
11 concealed -- was that HBO was underwriting the defense
12 of these defendants in three capital murder cases.
13 THE COURT: Well, they didn't tell it to me in --
14 in varying degrees depending on which lawyer
15 testified, one -- Mr. Ford said he didn't get
16 anything, but I think he later indicated that there
17 was some money received for expenses.
18 I also paid expenses to psychiatrists, to
19 investigators and to others. I don't know what
20 expenses I didn't pay, but that order was fairly
21 detailed and is a matter of record. So what was paid
22 was paid.
23 I know that Dan didn't feel like he got
24 compensated. I know that Val didn't. None of 'em
25 did. But I paid 'em in line with what other attorneys
1 have been paid for similar services. And that's not
2 really a matter that's before us right now. But, yes,
3 I did consider they told me Home Box Office had made
4 money available either to them as defense attorneys or
5 to individuals, yes, sir.
6 MR. DAVIS: Again, we keep referring to things
7 that are not a matter before us, and again I would
8 object and ask that they streamline this a little bit
9 because going into what Dan may have been paid or what
10 he may have applied for, how many hours he worked,
11 whether he's undercompensated or overcompensated
12 doesn't mean a hill of beans in regard to the Damien
13 Echols Rule 37 petition which is what this evidence is
14 designed to get to.
15 THE COURT: If that's an objection, I'll sustain
16 your objection.
17 MR. MALLETT: I then will go -- as I indicated I
18 was ready to go after the last question -- into the
19 negotiations with HBO. And I think the Court will see
20 as we develop this that this is material in terms of
21 the Court's ability to perform the judicial role of
22 making appropriate inquiries when there is an
23 appearance of a conflict of interest.
24 BY MR. MALLETT:
25 Q. Did a time come when you were contacted by either Creative
1 Thinking, International or Home Box Office or some entity about
2 purchasing access to Mr. Misskelley?
3 A. That request was made to us -- Mr. Crow and myself -- along
4 with every other media outlet in the world.
5 Q. Were you offered money?
6 A. We were never offered money personally by anyone. Creative
7 Thinking approached us about the concept of helping out the
8 Misskelley family because of the misfortune that had become
9 [sic] upon them because of this matter. The gentlemen at
10 Creative Thinking indicated that they were making this overture
11 to not only the defendants' families but also the victims'
12 families. I advised Mr. Sinofsky and Mr. Berlinger that I did
13 not feel that I should take part in any form or fashion in
14 anything regarding negotiations or compensation paid to the
15 Misskelley family.
16 Q. Let's break that down a little bit. First, did you
17 understand that Home Box Office is a national media company and
18 cable television station, shows movies on television, you can
19 watch them anywhere in the country and many places in the world.
20 You understood that?
21 A. Yes.
22 Q. You understood that Creative Thinking, International or
22 whatever the correct name is, is a movie making company that has
24 a contract with Home Box Office?
25 MR. DAVIS: Your Honor, excuse me. Again, I
1 object to any relevance this has to these proceedings.
2 The only possible relevance -- and I think I
3 understood what Mr. Mallett -- is it Mallett? Am I
4 pronouncing --
5 MR. MALLETT: Mallett.
6 MR. DAVIS: The only thing I can understand the
7 relevance is that if Dan says, this is how I dealt
8 with them, then that establishes some standard in
9 which to measure Mr. Price and Mr. Davidson by.
10 If that is the way of thinking, then that would
11 be inappropriate. I mean, how they dealt in their
12 case or what they did and what he thinks is
13 appropriate is not any standard for this Court to
14 accept or judge Mr. Price and Mr. Davidson's conduct
15 by. Therefore, what he says is not relevant and not
17 THE COURT: What is the relevancy?
18 MR. MALLETT: This is foundation, your Honor, for
19 the relationship between on the one hand the media,
20 who were purchasing access to the defendants, and on
21 the other hand the behavior of the lawyers. And I
22 want the Court to know what was permitted by HBO and,
23 therefore, possible for all the lawyers. To do that,
24 I would like to have Mr. Stidham inform the Court of
25 how he handled this question.
1 There's no question here about Mr. Stidham
2 withholding information from the Court or being
3 incomplete in his statements on the record about what
4 were the contents of the contract -- none at all. So
5 I want the Court to have a clear picture --
6 THE COURT: I think he testified to the Court
7 that the family was getting the money, not him
8 directly. I think that's what he said from the
9 original trial if that's what you're gettin' at.
10 MR. MALLETT: Your Honor, if I could ask just
11 about three more questions --
12 MR. DAVIS: Your Honor, my objection is the
13 foundation he's laying deals with a case that doesn't
14 have anything to do with this Rule 37 hearing.
15 THE COURT: You're correct, Mr. Davis. It
16 doesn't have anything to do with what Mr. Price or Mr.
17 Davidson did. That's true. But if he wants to lay an
18 overall picture as a foundation of how Home Box Office
19 or Creative Thinking approached the various attorneys,
20 I'm going to allow him to do it to a limited extent
21 but just a few more questions, and let's move it
23 MR. MALLETT: I'll try to move quickly, your
25 THE COURT: All right.
1 BY MR. MALLETT:
2 Q. What did you do?
3 A. I advised Mr. Misskelley Junior and Senior that I felt like
4 the best thing they could do would be to consult independent
6 Q. Why did you think they should consult with independent
8 A. I seen a conflict of interest approaching, and the conflict
9 of interest that I seen was that I didn't want there to be even
10 the appearance of impropriety with regard to my involvement with
11 the media, and I didn't want anyone to even suggest or think
12 that I received any type of compensation for allowing my client
13 to be interviewed.
14 Q. Did you refer them to a lawyer?
15 A. Yes.
16 Q. Who did you refer them to?
17 A. I referred them to another attorney in Paragould by the
18 name of Brad Broadaway.
19 Q. How do you spell that last name, please?
20 A. B-R-O-A-D-A-W-A-Y.
21 Q. Is that a civil practitioner with general knowledge about
22 contracts and business negotiations?
23 A. Yes. Mr. Broadaway and I were acquainted in law school and
24 ended up practicing in the same town. He's a member of the
25 largest firm in Paragould.
1 Q. And it's your understanding that he worked out some
2 contingent fee arrangement whereby he would represent the family
3 in these negotiations?
4 A. That is what was reported to me. Yes, sir.
5 Q. After that, you were out of it. You didn't have anything
6 to do with contracts with HBO?
7 A. I didn't have anything to do with the contractual
8 relationship. However, the family and I discussed later using a
9 portion of the money for expenses for experts.
10 Q. Was that for a particular expert or experts in general?
11 A. Our expert that we had for refuting the confession was
12 Doctor Richard Ofshe, who is from the University of California
13 at Berkeley.
14 Q. And that's a person -- to try to abbreviate it and cut it
15 short -- who testified to his opinion about the truthfulness or
16 probativeness of the so-called confession of Jessie Misskelley?
17 A. That's correct. Because of the length of the geographics
18 of the situation, he had to make several trips to Arkansas --
19 one to meet with Mr. Misskelley and myself, another to testify
20 at the suppression hearing and another to testify at trial --
21 and there was a lot of money involved and expenses.
22 At that point, I wasn't sure what was going to happen with
23 regard to expenses that we were incurring. I wasn't sure what
24 the Court's posture would be with regard to the payment of those
25 expenses. My experience in the past was that, basically, no
1 money was made available in my past experience in criminal
2 cases. So, basically, I found myself in the position of needing
3 to use that money to defer some of Doctor Ofshe's travel
5 Q. Did you have a right -- pursuant to the agreement which the
6 civil lawyer worked out with the Misskelley family -- did you
7 have a right to spend that money as you saw fit?
8 A. I didn't spend the money as I saw fit. I spoke to my
9 client and Mr. Misskelley Senior, and it was agreed upon that
10 the money would be used for that purpose.
11 Q. Was Mr. Ofshe fully reimbursed for his fees and expenses?
12 A. Not even close.
13 Q. Did I ask if you could obtain a current statement of your
14 account with Mr. Ofshe, indicating the amount of his expenses,
15 the amount that he charged for his time and the amount of his
16 payments and reimbursements?
17 A. Yes, you did.
18 Q. Did you have that faxed over here from your law firm today?
19 A. Yes, I did.
20 THE COURT: Is that the same bill that was
21 submitted in your petition for payment?
22 THE WITNESS: Yes, your Honor.
23 THE COURT: That's already a matter of record.
24 MR. MALLETT: If the Court then has no objection
1 THE COURT: I don't have any objection. Of
2 course not. The state might.
3 MR. DAVIS: The state has an objection. Again,
4 we're introducing an exhibit to a Rule 37 petition
5 hearing in Damien Echols' case that regards an expert
6 witness that testified only in the case of Jessie
7 Misskelley and was not even consulted nor used by the
8 defense in this particular case, and we object to
10 THE COURT: To that extent your objection is
11 sustained, but I will receive it as an offer of proof.
12 (PETITIONER'S EXHIBIT 8 IS RECEIVED AS AN OFFER
13 OF PROOF)
14 MR. MALLETT: I'm not going to ask more questions
15 about it because I understand the weight that the
16 Court wishes to give it is not extraordinary. I hope
17 the Court will reconsider if we submit a persuasive
18 brief at a later time, your Honor.
19 THE COURT: Sure. That's fine.
20 BY MR. MALLETT:
21 Q. Did you file any motions -- and this would be of record --
22 but so far as you can remember, do you recall filing any motions
23 asking for assurance from Judge Burnett that any expert
24 witnesses would be available for your defense of Mr. Misskelley?
25 A. I did file a motion for assistance of experts in the case,
1 and Judge Burnett advised me -- and I believe there was an order
2 or a ruling if not a written order -- the one that was on the
3 record -- that was a hearing for all three defendants -- a
4 suppression hearing or a preliminary hearing -- whereby he
5 advised that he would consider that on a case-by-case basis.
6 Q. Did you then make written motions for assurance that on a
7 case-by-case, defendant-by-defendant and expert-by-expert basis,
8 you could hire an expert with confidence that the Court would
9 reimburse you for fees and expenses?
10 A. Counselor, I gotta be honest with you. My experience in
11 dealing with criminal cases at that time -- and it's still true
12 today -- that the Courts have never been receptive to the idea
13 of indigent counsel receiving assistance from the state for
14 experts. And I was caught between a rock and a hard place of
15 trying to come up with money to retain experts to defend Mr.
17 Keep in mind that we're competing against the State of
18 Arkansas who has a legion of investigators and vast resources to
19 retain whatever experts they deem necessary. And I was faced
20 with the dilemma if I have to go and ask Judge Burnett every
21 time I want to hire a psychologist or if I want to hire a person
22 to refute the polygraph or refute the confession, I have got to
23 lay my cards on the table every time I do so.
24 My experience in the past was that I didn't get much help
25 in that regard so I didn't make a specific request in advance
1 for the payment of experts. I made that request with full
2 knowledge of the Court after the trials were concluded in the
3 form of a written motion asking that the Court reimburse my
4 experts for their expenses.
5 THE COURT: I think we had a statute, Mr.
6 Mallett, that limited the amount of expense money that
7 the Court could award in 1993 at one thousand dollars.
8 However, I had exceeded that amount and ordered the
9 counties to pay in excess of that in other cases and
10 did so in this case.
11 Since then, I think our law has changed -- and I
12 may be incorrect in that -- but there was a limitation
13 on the amount of money that could be provided for
14 investigative type matters.
15 But I don't recall being presented a motion or a
16 petition for expenses for Mr. Misskelley's case until
17 the end of the case, and I awarded them -- I don't
18 remember what I paid -- but I did award payment to
19 some extent, and it was greater than what the statute
21 BY THE WITNESS:
22 A. I hope I made myself clear, Mr. Mallett, regarding that
24 Q. I'll lead you -- and you can correct me -- the Court will
25 correct me if I'm unfairly leading -- I think what I'm hearing
1 you say is that you relied on your experience. And in reliance
2 on your experience across the board as a public defender dealing
3 with Arkansas cases, you felt it was fruitless and would be
4 frustrating and ineffective to step-by-step ask for help because
5 the assistance wouldn't be made available and, furthermore, the
6 prosecution would know about the work being produced as you were
7 preparing for trial. I think that's what I heard you say.
8 A. That's correct. And also I think it's worthy to point out
9 that in the State of Arkansas the State Crime Lab, the State
10 Medical Examiner's Office and the State Hospital are controlled
11 by the prosecutor's office. Those folks will not and cannot
12 talk to me unless I get permission from the prosecuting
13 attorney's office.
14 If I were to have gone to Judge Burnett and said I need a
15 forensic evaluation, he would have sent Mr. Misskelley to the
16 State Hospital, at which time the state's expert would be
17 conducting a forensic examination on my client.
18 I seen a blatant conflict of interest there which forced me
19 into the position of -- not having money to retain experts -- so
20 it placed me in a position of having to beg, borrow and steal
21 from my client's trust fund to pay expenses for Doctor Ofshe.
22 Q. So the system that you have described that you were working
23 in in Arkansas applied to every case including this case?
24 A. That's correct.
25 Q. No matter who the defense lawyer was?
1 A. Those rules still apply today unfortunately.
2 Q. No matter who the defendant was?
3 A. No matter.
4 MR. MALLETT: Your Honor, I want to clear up one
5 thing in the record. I'd like the Court's leadership
6 on how to accomplish this. I want the record to be
7 clear that I heard the Court say that there was a law
8 in the State of Arkansas in 1993 which put a limit on
9 what a judge could reimburse for expenses, and that
10 acting faithfully to the law, the judge could not pay
11 more than a thousand dollars for reimbursement for
12 expenses, but that the Court had found some way to do
13 that without breaking the law. I was just kind of
14 confused, and I don't mean to be questioning the
16 THE COURT: At some point in there the law
17 changed, and I am not sure exactly when it was. I
18 know prior to that time there was a limitation -- in
19 fact, it was less than a thousand dollars. The
20 thousand dollar limit was the threshold limit in
21 capital cases.
22 At some point in there the law changed. It never
23 became an issue in this case until after the trial was
24 over, until after the monies had been placed into the
25 defense fund for that purpose, and it allowed me at
1 that time in my evaluation of it to pay expenses
2 greater than the amount that the statute heretofore
3 would allow. And I have done it consistently since
4 then, and I think I've even ordered the county to pay
5 monies in excess of the statutory amount prior to
6 that, and it was never contested. But I think I
7 exceeded what the limits were in several cases prior
8 to that, and it was never contested. Mr. Davis may be
9 able to tell you. I'm not sure what the limit was in
10 1993 or whether there was one.
11 THE WITNESS: I can tell you what the limit was,
12 your Honor. If the Court will recall, the case that
13 came out of Batesville which your Honor heard --
14 THE COURT: Yeah, I heard that case.
15 THE WITNESS: -- that changed and basically ruled
16 as unconstitutional the previous limits of one
17 thousand dollars in capital cases. At that time, the
18 legislature was prompted to address that issue, and
19 they --
20 THE COURT: That's when they created that hundred
21 thousand dollar fund, and that's the reason why I
22 awarded more than the thousand dollars. I'm the one
23 that ruled originally in Arkansas. It was a
24 Batesville case, and I can't remember the caption, but
25 I paid the lawyers way more than what the statutory
1 limitations were and expenses, as well, in that case,
2 and that was affirmed by the Supreme Court.
3 But the statute as far as I know had never been
4 repealed, but a new one had been created putting this
5 hundred thousand dollar fund, and I think that's the
6 basis finally why the state had to pay the fees
7 instead of the counties.
8 BY MR. MALLETT:
9 Q. Mr. Stidham, there was certainly no way that you or Mr.
10 Price could foresee that this state cap would be declared
11 unconstitutional, was there?
12 A. That happened prior to the homicides. Basically what had
13 happened was in response to Judge Burnett's ruling which
14 basically set the new standard for attorney compensation in
15 indigent cases, the legislature as they often do in their
16 infinite wisdom creates a monster and creates this vehicle
17 that's gonna solve the problem and then they don't fund it.
18 So we had a capital conflicts office which was scheduled to
19 open July 1st, 1993, and there was a staff of lawyers who were
20 there, but there was no money made available to fund it. There
21 was no money available. Every time we attorneys who got
22 appointed prior to the new statute taking effect July 1st called
23 for assistance, they basically said we can't help you because
24 there's no state money available. So the legislature responded,
25 but they didn't do it appropriately.
1 THE COURT: In my ruling when I awarded fees, I
2 referred to that matter and made comments by way of
3 dicta that that agency never did anything to assist
4 anyone in a capital case.
5 BY MR. MALLETT:
6 Q. You were dealing then with this extraordinarily frustrating
7 situation believing that you would be funding your client's
8 defense out of your own pocket in the fall of 1993?
9 A. That's basically what happened.
10 Q. Because of the system you were working in and the same
11 system that Val Price and Mr. Davidson were working in?
12 A. The same exact system.
13 Q. And so did you make any motions to the Court for guarantee
14 in advance of compensation for any experts?
15 A. Again, I didn't feel like I could because of what I
16 perceived as an inherent conflict of interest with the State
17 Crime Lab, the State Hospital and the Medical Examiner's Office.
18 I didn't want to tip the prosecution my hand. I didn't feel
19 like it was appropriate to let them know what my defense was
20 gonna be until I knew what it was gonna be and, basically, I was
21 able to beg, borrow and steal experts from both coasts who came
22 in on the chance and hope that Judge Burnett would compensate
23 them after the trials were concluded.
24 Q. You've seen Mr. Ofshe's statement. Did you ever talk to a
25 man named Park Dietz?
1 A. I spoke to Park Dietz, who is a well thought of forensic
2 psychologist or maybe even a psychiatrist. I asked him about
3 helping us out in evaluating the crime scene evidence, the
4 photographs, the autopsy photographs. He told me he couldn't
5 even discuss it with me until I paid him a fifteen thousand
6 dollar retainer fee.
7 Q. And did you pay him fifteen thousand dollars?
8 A. I didn't have fifteen thousand dollars to pay him.
9 Q. As a consequence of not having money for Mr. Dietz, what
10 efforts -- what did you do about determining if a psychologist
11 would be of assistance to your defense?
12 A. I basically had to find a psychologist or psychiatrist who
13 was willing to take a chance that he might get paid.
14 Q. Did you find one?
15 A. I found one here in Jonesboro.
16 Q. What were the consequences?
17 A. They were disastrous.
18 Q. In what way?
19 A. I didn't realize it at the time but --
20 MR. DAVIS: Your Honor, again, what relevance
21 does this have?
22 THE COURT: It doesn't have any as I can see as
23 to Echols.
24 MR. DAVIS: What I understand is there was a
25 motion at one point to consolidate all these for one
1 hearing, and I think that's what we're doing kindly
2 without the Court's permission. I object to it.
3 THE COURT: I'm not considering the Misskelley
4 matter at this time.
5 MR. MALLETT: Well, I believe as we will argue in
6 our briefs that we hope the Court will allow us to
7 present, that we're establishing that the system in
8 place in Arkansas -- a system imposed on Mr. Stidham,
9 imposed on Mr. Price, imposed on your Honor, Judge
10 Burnett -- is a system in which the lawyers were
11 frustrated in their efforts to provide the assistance
12 of counsel that they wanted to provide. That is one
13 of the things that we're establishing, among others.
14 We're also developing how it is that
15 well-intentioned lawyers could become burdened by a
16 conflict of interest that would affect their
17 performance at trial.
18 And finally, we're laying our record, making a
19 record that will be pertinent to our discussion of the
20 Court's efforts to be sure that the trial was
21 conducted conflict free.
22 Finally, the fourth thing, we're laying a record
23 on which this Court or a reviewing Court could make a
24 determination as to what a reasonably diligent and
25 effective counsel would do in preparing for and 9O
1 presenting evidence at trial and why it was done in
2 this particular case.
3 So those are at least four reasons why I believe
4 a full and fair hearing allows us to develop this
6 THE COURT: All right. Go ahead.
7 MR. DAVIS: Your Honor, may I point out at page
8 547 of the Echols decision, the Supreme Court said,
9 "Here there was no showing that Echols was prejudiced
10 in any manner by the state's failure to pay his
11 attorneys fees by the time he filed his brief in
12 court," and the Court stated that in fact that that
13 would not be the basis for any relief. That issue was
15 Rule 37 does not address issues that were
16 previously heard on appeal. That's one of the bases
17 for contending that this is all irrelevant. All this
18 stuff about foundation, we're still back at the point
19 that Mr. Stidham is talking about a case that is not
20 the basis for this Rule 37 hearing.
21 And I wouldn't stand up and continue to object if
22 it wasn't obvious that the road to the Echols Rule 37
23 hearing is here, and we're heading off out this way
24 toward Jessie Misskelley. I know I'm going to have to
25 run that route again sometime in the near future, and
1 I just hate to do it two times when the decision in
2 this case isn't going to be based on that evidence.
3 THE COURT: I understand your objection. On the
4 other hand, I'm trying to allow Mr. Mallett ample
5 opportunity to develop his theories of the case.
6 While I understand and certainly am not gonna consider
7 a matter that our Supreme Court has already ruled on
8 -- it's the law of the case -- and I am not reconveyed
9 with jurisdiction to go back and address a subject
10 matter that the Court took up in the direct appeal.
11 So in that connection your motion again is sustained.
12 MR. DAVIS: Your Honor, one other concern I have
13 is what we're basically doing is if I can't get my
14 continuance granted one way, I'll tap-dance and put on
15 evidence that doesn't have anything to do with this
16 hearing for four or five hours and then at the end of
17 the day, we won't have gotten to where we were
18 concerned about gettin' to, and I can wait three weeks
19 and deal with it later.
20 And I know the Court keeps saying, "I sustain
21 your objection," but then after my objection is
22 sustained, he does everything I just objected to.
23 THE COURT: Well, defense lawyers always do that,
24 Mr. Davis. So go ahead.
25 MR. MALLETT: I would like to say that I am just
1 as anxious to get home to my wife and my six-year-old
2 boy and my family as Mr. Davis is to return to his
4 THE COURT: All right, let's move it along then.
5 You may proceed.
6 BY MR. MALLETT:
7 Q. Why were the results disastrous?
8 A. The results were disastrous because the forensic
9 psychologist that we used in our case, unbeknownst to us at the
10 time, had trouble with his license. He was actually suspended
11 for misconduct. That came out during the course of our trial,
12 and that had some effect unfortunately on the case.
13 Q. Since the time of the trial, have you been representing Mr.
14 Misskelley by any court appointment that assured that you would
15 be compensated?
16 A. Other than the compensation that I received from the
17 Arkansas Supreme Court for my work on the direct appeal, I have
18 received no compensation from any source.
19 Q. After the appeal was finally submitted, have you been
20 carrying any authority by which you could apply for an
21 appointment? Are you still appointed to be his lawyer at this
23 A. I suppose that there's no jurisdiction. I'm not operating
24 under any court appointment. I represent Mr. Misskelley because
25 that's what he likes for me to do.
1 Q. Have you continued to give of your time and seek to find
2 persons who would be available and provide positive assistance
3 against the state's case with respect to whether Mr. Misskelley
4 committed the offense of which he's been convicted?
5 A. Yes, I have. Since 1994 and subsequent to the appeals, I
6 have finally made arrangements to seek the experts that I so
7 desperately wanted in 1993 and 1994. I have been able to
8 consult with these experts, and I have received reports from
9 them which I believe are very important in this matter.
10 Q. Are these the sorts of reports about subjects that you
11 would have ordinarily expected to share with co-counsel?
12 A. Yes.
13 Q. Are these reports about subjects that you wanted to
14 investigate before the trial?
15 A. They certainly are.
16 Q. For example, did you want to consult -- withdraw that. Let
17 me start again.
18 You have experience in civil proceedings as well as
19 criminal proceedings?
20 A. Yes.
21 Q. In Arkansas do you ever use the term "consulting expert" in
22 the context of a civil case?
23 A. Sure.
24 Q. For example -- this is for the record, your Honor, I know
25 that you know all of this -- in a personal injury case you might
1 send a person who says that he's injured to a consulting expert?
2 A. That's right.
3 Q. The consulting expert might then write you a report and say
4 he's really hurt or he's malingering?
5 A. Sure.
6 Q. You hire the consulting expert, right?
7 A. Are you talking specifically --
8 Q. In a civil case you may hire a consulting expert.
9 A. Sure.
10 Q. And truth to tell, if the consulting expert says he's
11 malingering, then that work by the expert that you hired is
12 protected by the attorney-client privilege?
13 A. That's correct.
14 Q. So that while the other side may have a right to have your
15 client examined to see if he's injured or not, your own
16 consulting expert's opinion -- so long as you're not listing him
17 as an expert to testify at trial -- remains protected by the
18 attorney-client privilege and the work product privilege?
19 A. That's entirely correct, yes, sir.
20 Q. As I understand your testimony, in the State of Arkansas as
21 you understood it on the case that you and Mr. Price were
22 working together, motions for assistance to develop expert
23 testimony would have been -- would have resulted in all
24 reasonable professional probability in the work product of those
25 experts being revealed to the state?
1 A. That's exactly correct, and that's why I didn't do it.
2 MR. MALLETT: Your Honor, if we could take a
3 recess at this time, I'll try to shorten up a little
4 this afternoon.
5 THE COURT: We'll stand in recess until one
8 (RETURN TO OPEN COURT)
9 CONTINUED DIRECT EXAMINATION
10 BY MR. MALLETT:
11 Q. Your Honor, before the lunch recess, Mr. Stidham was
12 testifying to his continuing efforts to find free assistance in
13 his investigation which went on after the time of the jury
15 Do you have that point in time in your mind, Mr. Stidham?
16 A. Yes, sir, I do.
17 Q. I'm going to jump back briefly if I may to one area that I
18 overlooked. Pre-trial -- before there was a trial -- did you
19 make yourself any sort of expert -- to the extent a lay person
20 can be an expert -- on the subject of what is referred to as DNA
22 A. There was some evidence that was taken from my client's
23 trailer after his arrest and was submitted to the Crime Lab, and
24 there was some potential for some DNA analysis, and at that time
25 I filed a motion asking the Court to grant me an independent
1 expert to review the results.
2 Later I was advised by John Fogleman that the state was not
3 going to use that because the results came back inconclusive;
4 therefore, there was no need for me to have that analyzed.
5 Q. And you withdrew your motion --
6 A. That's correct.
7 Q. -- in relation to the testing of the tee shirt?
8 A. That's correct.
9 Q. Is it fair to say then in Arkansas in 1993 and 1994,
10 lawyers were generally aware of a developing science referred to
11 generically as DNA testing that is used to associate body fluids
12 with known people?
13 A. Yes, sir, that's correct.
14 Q. Insofar as the evidence in the Misskelley case was
15 concerned, you have a motion, you withdraw it. You determine
16 that DNA testing would be of no revelance in the innocence or
17 guilt of Mr. Misskelley so far as you were concerned?
18 A. That's correct.
19 Q. Pre-trial in connection with your attempting to use some
20 degree of due diligence, did you ever see the subject of
21 criminal profiling raised in the evidence in the case?
22 A. Yes, sir. That was of interest to me in preparing Mr.
23 Misskelley's defense because in the discovery material we
24 received from the prosecutor's office, it indicated that the
25 West Memphis Police Department began canvassing the neighborhood
1 soon after the homicides, and they were asking very specific
2 questions of neighbors and people on the street, and it occurred
3 to me that what they were doing was probably using information
4 from a profiler probably from the Behavioral Sciences Unit in
5 Quantico, Virginia, at the FBI.
6 Q. So in 1993 you knew in terms of general knowledge and
7 experience, that law enforcement used criminal profiling
8 particularly in the context of multiple murders or mass murders
9 or other crimes of a particularly bizarre and unusual nature?
10 A. That's correct.
11 Q. As a consequence of seeing any -- I'll start again.
12 Did you see this suggestion that law enforcement was using
13 profiling in the Misskelley-Echols-Baldwin investigation as a
14 result of evidence revealed to you through discovery?
15 A. That's correct. And also I found a newspaper article where
16 Inspector Gitchell of the West Memphis Police Department told a
17 reporter that they had received information from Quantico. So
18 that confirmed my suspicion that they were using profiling
19 information, and I asked Inspector Gitchell to give me a copy of
20 what he received from Quantico.
21 Q. Did Officer Gitchell give you a copy of what he received
22 from Quantico as reported in the local newspaper?
23 A. He denied that he had ever received anything from Quantico,
24 and he told me that the newspaper reporter had misquoted him on
25 that particular issue.
1 Q. At a later time did you determine that Officer Gitchell was
2 truthful and complete when he told you there was no information
3 supplied him from Quantico about criminal profiling in this
5 A. During the Echols-Baldwin trial here in Jonesboro, Val
6 Price gave me some discovery that had been provided to him
7 subsequent to my trial being concluded which basically was a fax
8 transmission from Quantico. And I was very upset at the time
9 because I don't know whether Inspector Gitchell was lying to me
10 or whether he just forgot, but I wanted that information for
11 obvious reasons, and I was very upset that I didn't get the
12 information when I requested it.
13 Q. So the reference to profiling -- or information from
14 Quantico about criminal profiling -- came to your attention as a
15 result of some information Mr. Price provided you?
16 A. That's correct.
17 Q. Which in turn had been provided to him by the State of
19 A. That's correct.
20 Q. And that was in his possession at the time of Mr. Echols'
22 A. That's also correct.
23 Q. Did you then set about to seek to discover whether
24 investigation through criminal profiling would be of assistance
25 to you in your continued investigation?
1 A. Actually, Counselor, I did that prior to obtaining that
2 information from Val Price. Prior to Misskelley's trial in
3 Corning, I contacted Quantico myself and asked for their
4 assistance which they refused because they had offered some
5 assistance to the West Memphis P.D., and they felt like they
6 couldn't assist me.
7 I did obtain a phone number of a couple of retired FBI
8 experts who had worked in the Behavioral Sciences Division. I
9 contacted them about consulting with them in my case, and I
10 could not afford their retainer fees.
11 Q. By the way, when we say "Quantico," we're talking about a
12 national law enforcement training center where special agents
13 from many federal agencies obtain their professional training
14 before going into the field?
15 A. That's correct, and the Behavioral Sciences Division is
16 housed at the academy at Quantico.
17 Q. And that's an agency of the Department of Justice --
18 A. That's correct.
19 Q. -- United States Government?
20 A. That's correct.
21 Q. Subsequent to the trial, acting now without an appointment,
22 without any assurance of reimbursement or compensation, did you
23 obtain the assistance of any sort of criminal law profiler?
24 A. I did make an attempt post-trial to talk to someone at
25 Quantico, and I was in Washington in September of 1994, and I
1 took my case file with me and called Quantico to see if I could
2 get them to meet with me, and they refused to meet with me.
3 They kept telling me that someone would contact me, and that
4 never occurred.
5 Q. Did you ever find somebody to help you?
6 A. Yes, I did.
7 Q. What were the terms or arrangements by which you got help,
8 and who did you get help from?
9 A. I initially tried to obtain the services of John Douglas,
10 who is a retired FBI criminal profiler, who is well known and
11 was a consultant in the "Silence of the Lambs" movie and things
12 of that nature.
13 I couldn't make contact with him, and I learned of a fellow
14 whose name is Brent Turvey, who does criminal profiling, and I
15 contacted him, and he agreed to look into the case for me.
16 Q. What sort of financial arrangements did you work out with
17 Mr. Turvey?
18 A. Well, ironically, at the time that he agreed to look into
19 the case, Mr. Turvey was a candidate for a position with the
20 State of Arkansas with the Criminal Justice Institute in Little
22 Q. What branch of Arkansas government does that relate to?
23 A. CJI is a part of the University of Arkansas, and it was set
24 up by the legislature to provide training for prosecutors and
25 law enforcement in the area of forensic sciences.
1 Q. What was Mr. Turvey's relationship with the CJI?
2 A. He was in line to become the chief forensic scientist of
3 the CJI, and he was very Concerned about a conflict of interest,
4 and he didn't want it to appear that because -- there was a good
5 possibility he felt he was gonna take the job -- he didn't want
6 there to be any appearance of impropriety or conflict -- so he
7 graciously agreed to not charge a fee for the consultation.
8 Q. Did you understand Mr. Turvey was within his understanding
9 of his job or future job in meeting with a private attorney on a
10 private matter, not a state matter?
11 A. At the time I consulted with him in 1997, I wasn't fully
12 aware at that time what the ramifications were, but subsequent
13 to that time I have learned that the reason he didn't come to
14 Arkansas was because the CJI would not allow him to do
15 consulting for the defense.
16 Q. Did Mr. Turvey then agree to assist you for his customary
17 fee, a low fee or no fee?
18 A. He agreed to waive his fee in order to avoid any appearance
19 of impropriety.
20 Q. Did Mr. Turvey in turn determine or develop that there were
21 areas of investigation that he would recommend to you?
22 A. Yes, he did. I forwarded to him -- his office was in
23 Connecticut. I forwarded to him all the copies of the autopsy
24 photographs that I had in my possession which were contained in
25 the court file in Little Rock. I forwarded to him copies of the
1 coroner report, the supplemental report of the coroner and the
2 autopsy photographs. Also --
3 MR. DAVIS: Your Honor, may I ask what this has
4 to do with the Damien Echols Rule 37 petition?
5 THE COURT: I'm at a loss.
6 MR. MALLETT: Pending before the Court is a
7 motion asking the Court leave to obtain dental
8 impressions -- bite mark impressions -- from Mr.
9 Echols, Mr. Baldwin and Mr. Misskelley. I am laying
10 the foundation for our motion to obtain those so that
11 before the evidence on this hearing is concluded, we
12 can offer the testimony of an expert witness, and this
13 particular point -- part of it is to lay the
14 foundation by indicating how at the time of trial,
15 this type of evidence was admissible in Arkansas and
16 was known to be admissible and probative in Arkansas
17 criminal cases.
18 And the argument in our Rule 37 pleading is that
19 the lawyers knew about this and should have explored
20 this type of evidence because they --
21 THE COURT: I understood his testimony to be
22 sometime in 1997 -- well after the trial -- he was
23 still searching for new evidence. That's what I
24 understood Mr. Stidham to say.
25 MR. MALLETT: Well, what he said was that -- ah,
1 he did say that -- but he also said at time of trial
2 he was interested in obtaining profile evidence, and
3 he just couldn't afford it. This evidence doesn't
4 change over time.
5 MR. DAVIS: But, your Honor, the point I'm trying
6 to make is at the time of trial is not the trial of
7 Damien Echols. It's the trial of Jessie Misskelley.
8 What I just heard was that we're combining this Rule
9 37 hearing with this other motion that's outstanding
10 out there regarding testing, and I thought that in
11 terms of that request for all these additional tests
12 and this stuff regarding new evidence -- it's my
13 understanding -- or maybe the Court didn't rule -- but
14 that new evidence is not relevant to a Rule 37
15 proceeding, and that motion regarding testing for new
16 evidence is not something the Court had granted or was
17 going to hear evidence on at this hearing.
18 MR. MALLETT: It relates to failure to
19 investigate. I'm making my record and developing
20 evidence --
21 THE COURT: On the part of Mr. Price and Mr.
23 MR. MALLETT: Yes, sir.
24 THE COURT: Go ahead if you can stretch that --
25 MR. DAVIS: Your Honor, our objection is that
1 what Mr. Stidham did has nothing to do with whether
2 Mr. Price or Mr. Davidson failed to investigate.
3 THE COURT: Well, it doesn't at this point,
4 that's for sure. Go ahead.
5 BY MR. MALLETT:
6 Q. As a consequence of meeting with Mr. Turvey, did you have
7 conversations with me?
8 A. Yes, I did.
9 Q. And did you have a meeting with a forensic odontologist, a
10 Doctor Thomas David?
11 A. Yes. I met with Doctor Thomas David in San Francisco.
12 THE COURT: When?
13 BY MR. MALLETT:
14 Q. As a result of talking with me and Doctor Tom David, did
15 you also have a conversation with a forensic entomologist, a
16 Doctor Neal Haskell?
17 A. Yes, I did. That was also in San Francisco, and that was
18 in February of this year.
19 Q. And did Mr. Turvey provide you a report of his
21 A. Yes.
22 Q. Have you reviewed an affidavit by Doctor Thomas David of
23 his odontological review of the evidence that he has been
25 A. Yes, I have.
1 Q. Have you reviewed an affidavit by Doctor Neal Haskell of
2 his review of the entomological; that is, insect bite evidence,
3 that he has seen in the materials provided?
4 A. I have reviewed his affidavit as well, and in addition I
5 spoke with them at length in San Francisco with regard to the
6 exact information that appears in their affidavits.
7 Q. Was this evidence the sort of evidence that was available
8 to you in 1993 if you had the advantages of being able to obtain
9 the services of a profiler or a pathologist, odontologist and an
11 A. Yes. It's the same exact evidence. This evidence has not
12 changed since the time of the homicides. These experts that I
13 consulted with in San Francisco were reviewing the same autopsy
14 photographs, the same autopsy records -- everything that was
15 available in 1993. The only difference is I had no capability
16 to obtain those type services in 1993 and 1994.
17 THE COURT: What allowed you to do it in 1997?
18 THE WITNESS: (No Response)
19 THE COURT: Did your capability to obtain that
20 information increase in 1997 or change?
21 THE WITNESS: I believe that it did, your Honor.
22 THE COURT: In what way and how?
23 THE WITNESS: Primarily because of the film that
24 HBO produced. The documentary has brought widespread
25 attention to this case, and people are willing now to
1 take a look at this situation, whereas they wouldn't
2 do that in 1993 when I talked to their colleagues.
3 Some of these experts are now willing to waive their
4 fees in order to take a look at this because they feel
5 it's a miscarriage of justice case.
6 THE COURT: Go ahead.
7 MR. MALLETT: Can we have these next two exhibits
8 marked, please?
9 MR. DAVIS: Your Honor, if these are affidavits
10 from these individuals --
11 MR. MALLETT: Yes.
12 MR. DAVIS: -- I assume they are because I saw
13 them earlier. We would object to the introduction of
14 any affidavits, particularly through this witness, but
15 in general because the affidavits state conclusions
16 from witnesses that we don't have the opportunity to
17 cross examine. And the only relative evidence is that
18 these were -- this is information that was uncovered
19 by Mr. Stidham in a post-trial investigation of the
20 Jessie Misskelley case, and in terms of whether these
21 attorneys were effective or not, that is not relevant
22 evidence -- what the ultimate opinion of any expert
23 might be.
24 MR. MALLETT: I believe the state of the record
25 is that Mr. Stidham said that he lacked resources
1 because of the system used for compensating and
2 reimbursing lawyers in 1993 and, therefore, as a
3 consequence of that, failed to investigate in these
4 areas. That since that time, he has found volunteers.
5 MR. DAVIS: Whether Mr. Stidham failed to
6 investigate or not is not an issue of a Rule 37
7 hearing in which Mr. Stidham wasn't the attorney for
8 the defendant.
9 THE COURT: Mr. Stidham didn't file any petition
10 to the Court for assistance. I believe he has so
11 stated. Never asked, never sought assistance in that
12 vein. And, apparently from what I gather from his
13 testimony, this whole line of inquiry and the
14 investigation didn't even occur to him until well
15 after the trial and the appeal.
16 THE WITNESS: That's not a correct --
17 BY MR. MALLETT:
18 Q. I think we can ask him that. Did this line of
19 investigation occur to you before the trial?
20 A. This line of investigation occurred to me in 1993 when I
21 was first appointed to represent Mr. Misskelley.
22 THE COURT: Be specific. What occurred to you,
23 and why didn't you petition the Court for assistance?
24 THE WITNESS: I attempted to retain these type of
25 experts --
1 THE COURT: To do what?
2 THE WITNESS: To consult with me just like I
3 would if I was handling a personal injury case, if I
4 was hiring an accident reconstructionist or something
5 of that nature.
6 I did not petition the Court specifically because
7 I did not want the prosecution to know that I was
8 going down this particular path in my defense because
9 I would have had to lay my cards on the table and ask
10 your Honor for permission to get funds and with
11 history as --
12 THE COURT: Believe me, if you had ever broached
13 the subject -- you or any other attorney -- that any
14 evidence that was known to you or the state at the
15 time of the trial contained unidentifiable [sic] bite
16 marks, I would have provided funds for someone to look
17 into that matter. Nobody ever asked me. As far as I
18 know, the first time I ever heard about any bite mark
19 was in February of this year, and I still don't know
20 what evidence even suggests that.
21 When we had our telephone conference sometime
22 ago, I think I told you then that that newly
23 discovered evidence was not a subject matter of a Rule
24 37 petition. It's properly addressed by laying out
25 the evidence, requesting the Supreme Court by Writ of
1 Error Coram Nobis to reconvey the trial court with
2 jurisdiction to consider those matters. This is not
3 the proper forum for that.
4 You assured me at that time that you would be
5 able to provide me witnesses and evidence that there
6 was a bite mark, and I said that would be the very
7 minimum before I would consider it. I don't think I
8 have jurisdiction to consider newly discovered
9 evidence of quote, "bite marks," if that's what we're
10 getting at, and I assume that's what this is.
11 MR. DAVIS: Your Honor --
12 MR. MALLETT: May it please the Court?
13 THE COURT: Yes.
14 MR. MALLETT: In connection with discovery in the
15 case we have found a police offense report stating --
16 or police correspondence -- by Detective B. Ridge of
17 the West Memphis Police Department about his
18 investigation conducted during the time the case was
19 under investigation and before there was a trial.
20 He was sent questions by another witness -- D.W.
21 Griffis dated 1-27-94 -- which would have been before
22 Mr. Echols' trial. And in that Mr. Ridge raises --
23 ah, answers questions of Mr. Griffis -- asked
24 questions of Mr. Griffis and asked, "Sir, it is also
25 of interest to us if you have any information as to
1 whether the injuries to the left side of the Branch
2 victim's face could have any significance."
3 So pre-trial we have marks that are of interest
4 to law enforcement worthy of further investigation.
5 We have an affidavit of a forensic odontologist that
6 he has reviewed the evidence in the case, and he says
7 within a reasonable degree of medical probability he
8 could compare the marks he has seen in the voluminous
9 autopsy photographs with known dental impressions.
10 We have a motion pending asking this judge to
11 allow us to take dental impressions of the defendants.
12 The Court hasn't ruled on that motion. We have a
13 hearing. We can at a proper time adjourn the hearing
14 to take the evidence, but first I have got to have the
15 evidence. And I'm asking in order to have a full and
16 fair hearing, that the Court consider Doctor David's
17 affidavit, consider Detective Ridge's letter and
18 consider this testimony and allow us to develop the
20 MR. DAVIS: Your Honor, this is ground we've
21 plowed before, and what they are saying is we have to
22 have results of an investigation, a search for new
23 evidence. We have to have these results in. We have
24 to have the Court's approval to do all these tests
25 before we can proceed.
1 And that's just not so, and that's why we had the
2 telephone -- we discussed in the telephone
3 conversation and they said, we're gonna put somebody
4 on. Mr. Mallett said, we're not familiar with
5 Arkansas law, but we'll research that. I have seen
6 absolutely no law that's been provided that says
7 anything different other than the fact that newly
8 discovered evidence, or a claim for it, is not the
9 basis for Rule 37 relief. Whether it exists, whether
10 it may exist, whether it doesn't exist at all is of no
11 consequence to a Rule 37 proceeding.
12 The only question is, was an attorney diligent,
13 did an attorney properly represent his client in not
14 seeking that type of evidence. And in regard to that
15 whether it exists or not is of no consequence because
16 the question is were they diligent, did they exercise
17 proper care in representing him by attempting to seek
18 it. That's the issue. Not whether it exists out
19 there or not.
20 Therefore, the affidavits are improper. Whether
21 Mr. Stidham sought it or not or testifies whatever he
22 found out, that's improper because he's not even
23 involved in this case. And this talk about the
24 affidavits themselves is improper and irrelevant and
25 not admissible for purposes of this hearing.
1 THE COURT: Do you want to respond?
2 MR. MALLETT: Failure to investigate. 1-24-97 --
3 before Mr. Echols' trial -- the evidence is there.
4 Mr. Price, in all due respect, knew at that time that
5 bite mark evidence was probative in the State of
6 Arkansas. You knew it, Judge. You knew it. You knew
7 it because you had presided over a case defended by
8 Mr. Price reported on December 20, 1993 --
9 THE COURT: Yeah. A man from Mississippi
10 testified in it. Some -- whatever his name --
11 MR. DAVIS: Sure.
12 MR. MALLETT: Yeah. Admissible. No question.
13 THE COURT: That's not the issue. I don't have
14 any question about that. They may have known that
15 bullets were admissible or knives were admissible or
16 chemical evidence was admissible. The question is
17 whether or not they knew at the time of the trial that
18 such evidence was even remotely relevant or available.
19 Are you saying that Mr. Price and Mr. Davidson
20 knew that evidence was developed that bite marks did
21 in fact exist and then ignored it?
22 MR. MALLETT: Yes, your Honor, they knew that
23 there were --
24 THE COURT: They knew there were injuries to the
25 right side of the face --
1 MR. MALLETT: Left side --
2 THE COURT: Left side, right side.
3 MR. MALLETT: -- of the Branch victim's face
4 which might have significance to law enforcement
5 officers that they were investigating, and these
6 lawyers -- respectfully, please -- did nothing, for
7 whatever reasons, to investigate based on the lead
8 provided in the state's voluntary discovery.
9 We've taken that to the next step. We've gone to
10 an expert, and we've shown him the evidence and said
11 what was available in the terms of your science and
12 your knowledge in 1993 had the investigation been
13 conducted, and we have his affidavit.
14 Now, it doesn't do any good to bring the man here
15 from Atlanta if he doesn't have dental impressions
16 with which to do the comparisons. That is the current
17 state of the record.
18 MR. DAVIS: Your Honor, that letter that they're
19 referring to -- injuries to the left side of the face
20 -- was a letter sent to Doctor Griffis, the fellow
21 that testified, the gray-haired guy that testified as
22 an expert in the area of occult and the question as to
23 the significance of injury to the left side of the
24 face. The left side of Stevie Branch's face was --
25 was -- hundreds, I would estimate -- cuts, scratches
1 -- it was just a bloody pulp, actually
2 through-and-through injuries to the left side of the
4 That question was asked if there's any
5 significance from an occult standpoint to extensive
6 injuries to the left side of the face versus the right
7 side. There's not even a reference to bite marks.
8 And if what Mr. Stidham told me was accurate,
9 it's somewhere up here (INDICATING) where they think
10 there's a bite mark, not over here on the left side of
11 the face. So that letter which is under the guise of
12 trying to say that shows that they were on notice and,
13 therefore, that ties in to an ineffective assistance
14 of counsel is just hogwash.
15 THE COURT: I think it might be relevant if they
16 can demonstrate that counsel knew or should have known
17 that such and such condition existed and could have
18 been further investigated. That is probably relevant
19 as to their effectiveness as trial counsel. But short
20 of that, none of this is admissible and the affidavits
21 aren't admissible, as you pointed out, because they're
22 not subject to cross examination.
23 I will allow you to introduce the affidavits as
24 an offer of proof.
25 MR. MALLETT: And also in support of our motion
1 for the comparisons.
2 THE COURT: Yes. I'll allow that, too. Hand
3 them up here after she marks them.
4 (PETITIONER'S EXHIBITS 9 THROUGH 12 ARE RECEIVED
5 AS AN OFFER OF PROOF)
6 MR. MALLETT: Excuse me, your Honor. The
7 gentleman from HBO is in the courtroom. The rule was
9 THE COURT: (To Mr. Berlinger) You're under the
10 rule. You're going to have to remain outside.
11 MR. BERLINGER: My partner had been subpoenaed
12 and not me. That's why I thought I could be in here.
13 THE COURT: Well, I think they indicated this
14 morning that both of you would be called.
15 MR. MALLETT: Would you instruct him as to the
16 rule, your Honor? Being a civilian, he may not be
17 familiar --
18 THE COURT: The rule of court provides that you
19 are not to discuss your testimony either before or
20 after you testify. You may discuss your testimony
21 with the lawyers if you choose to do so. Any
22 violation of the rule could subject you to contempt
23 and could disqualify you as a witness. So you'll need
24 to remain outside the courtroom.
25 (MR. BERLINGER LEAVING THE COURTROOM)
1 THE COURT: These are being received not as
2 evidence but as an offer of proof at this point, and
3 later when we address your motions, then I'll consider
4 at that point what weight they should be given in
5 support of that motion.
6 MR. MALLETT: And I ask if we could approach the
7 bench or go on the record in chambers, whichever would
8 make the Court more comfortable, for a moment.
9 Because these are the Court's records and not in
10 evidence at the moment, I would ask that we either
11 adjourn to chambers or approach the bench because I
12 don't want what is not evidence before the Court to be
13 treated as evidence for reasons that will become more
14 apparent if I can approach the bench.
15 THE COURT: We'll step to the back for a minute
17 (THE COURT AND COUNSEL CONFERRING IN CHAMBERS OFF
18 THE RECORD)
19 (RETURN TO OPEN COURT)
20 THE COURT: Do you want to step up to the
21 reporter and put the substance of our conference in
22 the record?
23 MR. DAVIS: Your Honor, it may not be necessary
24 based on the Court's ruling.
25 THE COURT: Well, he may want to put it in the
1 record. Go ahead.
2 MR. MALLETT: For the record, Petitioner Exhibit
3 identified as Petitioner Exhibit 9 is a cover sheet
4 from the Inquisitor, Incorporated. And attached to it
5 are three pages, Bates stamped 08, 09 and 10. These
6 appear to be the last three pages of a letter
7 entitled, "Responses to Questions of Doctor D.W.
8 Griffis dated 1-27-94." It appears to be signed by
9 Detective B. Ridge of the West Memphis Police
10 Department. The Court's attention was directed to the
11 next to the last full paragraph wherein Detective
12 Ridge inquires about injuries on the left side of the
13 Branch victim's face.
14 This is offered to show the Court that there were
15 injuries on the left side of the Branch victim's face
16 in which law enforcement took an interest.
17 Petitioner's Exhibit 10 is the resume of Brent E.
18 Turvey, M.S., who has a Master's of Science in
19 Forensic Science, who conducted an investigation at
20 the request or invitation of Mr. Stidham. It contains
21 his resume and report.
22 Marked for identification as Petitioner's Exhibit
23 11 is the Affidavit of Neal H. Haskell, Ph.D. And we
24 will supplement the record at the first opportunity --
25 his vitae is missing here -- so the Court will see
1 what his background is -- as to his findings under the
3 And what is marked as Petitioner's Exhibit 12 is
4 the Affidavit of Thomas J. David, D.D.S., forensic
6 We are offering Exhibit 12 in support of our
7 claims that the victims were injured and that there
8 was not an adequate investigation of the marks shown
9 on the Branch victim's face and in support of our
10 request that the Court permit us to take dental bite
11 impressions of the three defendants for purposes of
12 comparison and for such other reasons as may be
14 THE COURT: They may be received as an offer of
15 proof, and I am sustaining the state's objection, and
16 these exhibits will be received under seal.
17 (PETITIONER'S EXHIBITS 9 THROUGH 12 ARE RECEIVED
18 AS AN OFFER OF PROOF AND ARE PLACED UNDER SEAL)
19 MR. MALLETT: Your Honor, I would like to offer
20 this as Petitioner's Exhibit 13, the vitae of Doctor
21 Haskell, to be placed under seal also.
22 THE COURT: All right. It may be received for
23 that purpose.
24 (PETITIONER'S EXHIBIT 13 IS RECEIVED AS AN OFFER
25 OF PROOF AND IS PLACED UNDER SEAL)
1 (THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH)
2 MR. MALLETT: Your Honor, I want to call this to
3 the Court's attention. I believe that contrary to the
4 Court's express instructions that there is a mike
5 broadcasting these proceedings outside the courtroom.
6 I object to it and I would ask Mr. Lax to explain the
7 basis for my complaint.
8 MR. LAX: I was outside the courtroom --
9 downstairs. Joe or one of them was listening on
11 I said, "What are you doing?" They said, "The
12 courtroom's wired." I said, "What?" They said, "The
13 courtroom's wired."
14 They first said “The judge told us we could do
15 it if we could do it unabtrusively.”
16 After lunch I noticed that Bruce was downstairs
17 listening again. I said, "Are you still listening?"
18 He said yes. I picked up the earphones, and you could
20 I just saw Joe and he come up, and I said, "Are
21 you not listening anymore?"
22 "No. It's hard to hear."
23 And I -- he said, "Don't tell." I said, "I don't
24 have a choice."
25 THE COURT: All right. Where are they? Get one
1 or both of them up here.
2 MR. LAX: There was one other thing. It was
3 wired through Mark Byers, but they said they had taken
4 it off.
5 THE COURT: They asked me if they could record.
6 I told them if there was an objection to it, they
7 could not. That's been a long-standing rule. People
8 have brought recording devices many times, but any
9 time -- in fact, the bailiff asked me this morning,
10 and I instructed the bailiff to tell whoever was
11 recording that they couldn't. So that's about all I
12 know. Get 'em up here. We'll see what they're doing.
13 (MR. SINOFSKY AND MR. BERLINGER ENTERING THE
15 THE COURT: It's been called to the Court's
16 attention, and an objection has been made about some
17 effort to record or listen to the testimony.
18 Did you have any kind of device you were using
19 through a third party?
20 MR. SINOFSKY: We had a microphone on Mark Byers
21 earlier today.
22 MR. MALLETT: Could we have the witness
23 identified for the record?
24 MR. SINOFSKY: Bruce Sinofsky.
25 THE REPORTER: Judge, could we have him come
1 around here so I can hear him?
2 THE COURT: Yes, come on around.
3 MR. SINOFSKY: Bruce Sinofsky -- S-I-N-O-F-S-K-Y.
4 THE COURT: Do you have any other recording
5 device in the courtroom?
6 MR. SINOFSKY: It was not a recording device.
7 THE COURT: If you will recall, when you asked me
8 on the phone, I told you that if an objection was
9 made, that no one could use recording devices. You've
10 been identified as a potential witness in the case.
11 The rule requires that you not listen to the testimony
12 or discuss the testimony. So I don't know if I
13 advised you this morning. Frankly, I don't think I
15 THE COURT: I did advise you after lunch --
16 MR. BERLINGER: Just now, yes.
17 THE COURT: So now that you've been advised of
18 the rule, you're not to attempt in any way to obtain
19 testimony prior to your testimony.
20 MR. SINOFSKY: Okay.
21 THE COURT: Okay. 22. MR. MALLETT: I'm sorry, your Honor. I'm not
23 satisfied. I apologize. I know the Court is doing
24 the best it can in difficult circumstances --
25 THE COURT: They're your witnesses. Do you want
1 me to exclude 'em?
2 MR. MALLETT: I would like to exclude Joe and
3 question Bruce if I may have him sworn.
4 (THE COURT GIVING OATH TO MR. SINOFSKY. MR.
5 BERLINGER LEAVING THE COURTROOM)
6 BRUCE SINOFSKY
7 having been first duly sworn to speak the truth, the whole truth
8 and nothing but the truth, then testified as follows:
10 BY MR. MALLETT:
11 Q. Please state your name and spell it?
12 A. Bruce Sinofsky. S-I-N-O-F-S-K-Y.
13 Q. You are one of the two film producers who are attending
14 this session?
15 A. Yes.
16 Q. You work with Mr. Joe Berlinger?
17 A. Yes.
18 Q. How do you spell that?
19 A. B-E-R-L-I-N-G-E-R.
20 Q. You are the producers of the HBO distributed motion
22 A. Yes.
23 Q. Titled?
24 A. "Paradise Lost."
25 Q. You're seeking to make a second HBO movie?
1 A. Yes.
2 Q. You were here throughout the first trial of this case?
3 A. Every day.
4 Q. Filmed the trial?
5 A. Videotaped the trial, yes.
6 Q. Saw many witnesses sworn to tell the truth to God?
7 A. Yes.
8 Q. And you heard the rule invoked?
9 A. Yes.
10 Q. You heard the judge tell witnesses the rule -- in substance
11 -- the rule has been invoked. That means you're excused from
12 the courtroom. You're not to discuss your testimony with other
14 A. It's been four years since I've been in the courtroom. I
15 don't remember everything specifically like that. Yeah.
16 Q. Do you remember anything like that happening in the
17 multiple days that you were filming the trial?
18 A. Possibly, yes. I didn't listen to every direction that the
19 Court gave witnesses.
20 Q. I'm going to try one more time to pin you down, sir. Do
21 you know what it means for the rule to be invoked?
22 A. No.
23 Q. Were you in the courtroom this morning when the judge
24 commented that I had objected to having the proceedings tape
1 A. No. I was not in the courtroom.
2 Q. Before these proceedings commenced today, were arrangements
3 made to put a microphone and a transmitting device on Mr. Mark
5 A. No. That was a decision today when we were filming
6 throughout the morning, not knowing that we were gonna be called
7 as witnesses. That was quite a surprise to us.
8 MR. MALLETT: (Addressing the Audience) is Mr.
9 Byers in the courtroom?
10 (NO AUDIBLE RESPONSE)
11 BY MR. MALLETT:
12 Q. When did you put a transmitter on Mr. Byers?
13 A. This morning.
14 Q. About what time?
15 A. Probably 8:30, 9:00 o'clock in the morning.
16 Q. Before the proceedings commenced?
17 A. Yes.
18 Q. Before you knew you would be witnesses?
19 A. Yes.
20 Q. Why would you want Mr. Byers to have a transmitting device
21 on him before you knew you were to be witnesses?
22 A. Because Mark Byers is somebody we knew we would be filming
23 in the morning, interacting with people from the West Memphis
24 Three Defense Fund, as well as being interviewed. And to have
25 better quality sound, we put a microphone on him. It's not
1 unusual --
2 Q. To have better quality sound of the words spoken in this
4 A. No. For interviews outside of this courtroom.
5 Q. But you did know this morning he was in the courtroom?
6 A. We knew he went into the courtroom, and quite honestly our
7 sound person discovered that he could hear very, very thinly
8 what was going on, and a couple of times we put the headphones
9 on, and we listened.
10 Q. Over the recording device that Mr. Byers was wearing?
11 A. Through the wireless mike.
12 Q. Were you making any recordings of that?
13 A. Absolutely not. If you would like to have our sound person
14 come in, he can bring in the recording device, and you can
15 listen yourself.
16 Q. And this -- did you consider that when you put the
17 recording device on Mr. Byers, that he would be in the courtroom
18 during the proceedings?
19 A. No. We did not put it with that in mind.
20 Q. That was a complete shock to you?
21 A. What -- that he went into the courtroom?
22 Q. Yes. It was a mystery to you why he would come into the
23 courtroom today?
24 A. No, it was not a mystery that he went into the courtroom.
25 Q. Totally unexpected?
1 A. No, it was not totally unexpected.
2 Q. Would you say it was consistent with a reasonable person's
4 A. Yes.
5 Q. Now, did you put this recording device on him with the
6 prior knowledge of the judge?
7 A. No.
8 MR. MALLETT: Thank you very much.
9 (WITNESS EXCUSED)
10 THE COURT: Anything else?
11 MR. MALLETT: Only that I would ask the Court to
12 instruct the people present to not record these
13 proceedings. We have an official court reporter --
14 THE COURT: If there is anybody with a handheld
15 tape recorder or any other device that is attempting
16 to record these proceedings -- there's only one
17 official record and that is being made by the court
18 reporter -- and you're admonished and instructed not
19 to attempt to record or in any way receive the
20 testimony of this hearing.
21 MR. SINOFSKY: If you would like us to remove the
22 mike from Mr. Byers, we would be happy to do that.
23 THE COURT: Yeah, I would. I sure would.
24 CONTINUING DIRECT EXAMINATION
25 DAN STIDHAM
1 BY MR. MALLETT:
2 Q. Mr. Stidham, when we recessed the proceeding -- evidence in
3 the case -- I think you had just testified to what you did after
4 the trial to continue with the investigation that began from the
5 time you were appointed, and we had gotten to your description
6 of what you did and who you talked to after the trial including
7 -- and you correct me if I'm wrong -- did you tell us about your
8 trip to San Francisco and meeting with these experts out there?
9 A. I mentioned that I spoke to Doctor Neal Haskell and also to
10 Doctor Thomas David in San Francisco, yes.
11 Q. What sort of reason, as you can recall, were these people
12 brought together in San Francisco?
13 A. They were having a convention for forensic scientists --
14 and I have forgotten the exact name of their organization --
15 something like the National Academy of Forensic Scientists,
16 something of that nature. And I had learned that all the
17 experts that we had been consulting with were going to be in the
18 same room at the same time, and I seen it as a golden
19 opportunity to sort of have a pow-wow with all of them at the
20 same time and bounce ideas off of them and each other, and I
21 found that it was very enlightening in that respect.
22 Q. You understood this was an annual event just like a
23 lawyers' convention or a plumbers' convention?
24 A. Exactly.
25 Q. People working in the same industry or profession meeting
1 together on an annual basis --
2 A. That's correct.
3 Q. -- allowed you to have visits with numerous experts if they
4 would give of their time without your having to make trips to
5 various parts of the country?
6 A. That's correct. And over the past five years I learned how
7 to beg real good.
8 Q. When you're talking about learning how to beg, you're
9 thinking in connection of trying to get help in investigating
10 the facts of this case in a system that you're not assured that
11 the expenses will be paid or reimbursed?
12 A. I had assumed since 1994 when the direct appeal was
13 completed, that I would never be compensated for my work.
14 Q. Did you have occasion to talk to a pathologist before the
16 A. The only pathologist that I spoke with before the trial was
17 Doctor Peretti at the State Medical Examiner's Office.
18 Q. What about an independent consulting expert? Did you talk
19 with an independent pathologist who does defense consulting
20 before trial?
21 A. I did attempt to retain a profiler from the FBI, and I did
22 obtain -- attempt to obtain the services of a forensic
23 psychiatrist as I testified earlier.
24 Also Mr. Ron Lax, who is a private investigator in Memphis,
25 was assisting the defense team -- and when I speak of the
1 defense team, I mean myself Mr. Crow, Scott Davidson and Val
2 Price. We were collaborating quite a bit, and Mr. Lax reported
3 to me that he had consulted the Medical Examiner's Office in I
4 believe Atlanta. I don't remember the county that Atlanta is
5 in, but he had talked to the particular county's M.E. and had
6 received some information.
7 So, yes, we did attempt to obtain the services and consult
8 with a forensic pathologist.
9 Q. Do you have any independent recollection of what the cost
10 of that consultation would be?
11 A. I believe that Mr. Lax knew this particular gentleman --
12 MR. DAVIS: Your Honor, we're getting into
13 hearsay. I'm going to object.
14 THE COURT: Sustained.
15 BY MR. MALLETT:
16 Q. I'm going to try to avoid replowing ground, but I'm almost
17 done, and I want to be sure that I didn't leave this out.
18 Do you recall that there was a hearing after the trials and
19 appeals on reimbursement for your expenses?
20 A. After completion of both of the trials -- the one in
21 Corning and the one in Jonesboro -- there was a hearing held in
22 Paragould -- I believe it was in April of '94.
23 Q. Were there any what we call fact findings provided to you
24 explaining to you the reasons why the reimbursement was not for
25 every dollar you requested?
1 A. I believe that I asked his Honor to explain, and the Court
2 declined to explain.
3 Q. When you speak about the defense team, do I correctly
4 understand that although Mr. Misskelley was tried separately
5 from Mr. Echols and Mr. Baldwin, there were common interests and
6 common issues relevant to all three defendants?
7 A. That's correct.
8 Q. Accused of the same offense on the same day in a common
9 episode according to the state's theory?
10 A. Mr. Mallett, we were appointed to represent three indigent
11 kids who were charged with horrendous crimes that we didn't have
12 any resources, and we felt the best way that we could help solve
13 that problem was to help each other, which we did. We shared
14 information, and we did research for each other and helped out
15 all that we could.
16 MR. MALLETT: That's all I have at this time,
17 your Honor.
18 CROSS EXAMINATION
19 BY MR. DAVIS:
20 Q. For purposes of the record so we're sure that for later
21 review everyone understands this, Dan, you represented Jessie
22 Misskelley, correct?
23 A. That's correct.
24 Q. You were not appointed to represent Damien Echols?
25 A. Never was appointed to represent Mr. Echols.
1 Q. There were two separate trials. Jessie Misskelley had a
2 separate trial, and Damien Echols and Jason Baldwin had a
3 separate trial?
4 A. That's correct.
5 Q. You were not even actively involved in terms of
6 participation whatsoever in the trial of Damien Echols?
7 A. I had a very minor role. I did help with motions, helped
8 with research and with witnesses and things of that nature after
9 my trial was completed.
10 Q. Did you sit at counsel table, or were you actively involved
11 in any way in the defense of Damien Echols?
12 A. Other than those indirect things that I just spoke of, no,
13 I didn't sit at counsel table and, no, I was not recognized
14 officially as counsel for Mr. Echols.
15 Q. In representing Jessie Misskelley, you were appointed along
16 with Mr. Crow?
17 A. That's correct.
18 Q. And so there were two defense attorneys for Jessie
19 Misskelley. What two defense attorneys were appointed for
20 Damien Echols?
21 A. Scott Davidson and Val Price.
22 Q. And what two for Jason Baldwin?
23 A. That would be Robin Wadley and Paul Ford.
24 Q. Wouldn't you agree that out of the six attorneys appointed
25 to represent these three defendants, that Val Price had by far
1 and away the most experience as a criminal defense attorney?
2 A. That's a fair assertion, yes.
3 Q. In fact, Val Price had probably defended more murder trials
4 than all the other attorneys put together. Is that correct?
5 A. I don't know the exact figures, but I think it's safe to
6 state unequivocally that Val Price had more trial experience
7 than any of the six lawyers who were appointed.
8 Q. Would you say that the work and effort you put into
9 defending Jessie Misskelley was much greater than the work and
10 effort put in by the other attorneys that were representing
11 other defendants in these cases?
12 A. I don't think that's for me to decide, nor would I even
13 want to go down that road. We collaborated and shared
14 information. They were kind enough to let me use their
15 investigator, and we shared research and helped each other
16 prepare witnesses and things of that nature that were common,
17 but there was never any violation of confidentiality, and I
18 never considered myself Mr. Echols' attorney. I don't know what
19 efforts he put in beyond what we collaborated on from a general
20 sense. I really don't know that I'm qualified to answer that
22 Q. Okay. I guess I ought to quit beatin' around the bush. I
23 think you indicated that you started in October of '93, set all
24 your private practice aside. As of October '93, you did nothing
25 but prepare for the defense of Jessie Misskelley from then until
1 the day of the trial?
2 A. That's correct.
3 Q. To your knowledge, did Val and Scott put out similar
4 efforts in defense of their client, or do you know?
5 A. I have no idea.
6 Q. As far as how you handled the HBO matter, your main concern
7 was you didn't want anybody to think you had taken money for --
8 from a movie company that was making a movie about this, right?
9 A. No. My main concern was that I not violate any ethical
10 considerations or rules associated with that transaction --
11 which I felt it was unethical for me to participate in that.
12 Q. You're saying it would be unethical for you to consult with
13 them and consult with your client and give him advice as to
14 whether or not it would be beneficial to allow them to film
15 portions of what went on during the trial?
16 A. I think -- that's a good question -- and I think the proper
17 way to analyze that would be, yes, I felt like it was a conflict
18 of interest because Mr. Misskelley -- had I handled the
19 transaction, I felt like that I would have been advising my
20 client to reveal possible confidential information or trial
21 strategy, and I didn't feel like that he should be getting that
22 type of information from me. He needed to be getting that type
23 of information -- or to make his decision as to whether he
24 wanted to cooperate with HBO and grant the interviews -- that
25 should be something that an independent attorney should address
1 with him, not just me.
2 Q. Since an independent attorney told him to go ahead and do
3 it, has there been anything detrimental come out of that?
4 A. Honestly, I can't see any.
5 Q. In fact, as you yourself said, up until the HBO movie
6 aired, you couldn't get your foot in the door with some of these
7 experts, and since the HBO movie, you've got 'em at your
8 doorstep, right?
9 A. They haven't been sittin' on my doorstep. I've had to
10 travel a long ways to get their attention, but yes -- again, in
11 the situation that I was in, I felt like I was being compelled
12 to bastardize my profession, and I didn't want to do that and
13 violate any ethical considerations.
14 We needed to have money for experts because we didn't have
15 any to do that, but I didn't feel like ethically I could
16 participate in the negotiations with HBO or Creative Thinking.
17 THE COURT: But you didn't, did you? You had
18 Broadaway do that.
19 THE WITNESS: That's exactly correct, your Honor.
20 THE COURT: Once he did that, that money was made
21 available for those experts and was so used.
22 THE WITNESS: Yes, sir.
23 BY MR. DAVIS:
24 Q. Did your client pay a third off the top to Mr. Broadaway?
25 A. That's my understanding, but I don't know that for certain.
1 Q. So the tradeoff was he received independent legal advice on
2 that transaction, but he also lost a third of his money to the
3 attorney who advised him?
4 A. I felt like that was between him and his attorney. I don't
5 know. I didn't participate in that.
6 Q. In your trial in the defense of Jessie Misskelley, you
7 employed a psychologist to testify as an expert?
8 A. That's correct.
9 Q. Who paid for that?
10 A. There's two ways of looking at that.
11 Q. Let me rephrase. Did the state pay a portion of that?
12 A. Yes, that's correct.
13 Q. Were you able to obtain those funds and obtain that expert
14 as a result of requesting that you receive funds and that you be
15 allowed to hire that expert?
16 A. I obtained the services of that particular expert, Doctor
17 Wilkins, by asking him to donate his time and services on the
18 hope that the Court might reimburse him for his expenses and his
19 fees. I told him I couldn't guarantee him that, and that's the
20 basis of our relationship. That is how he was able to be
22 Q. Did you request funds before that and the Court turned you
24 A. No.
25 Q. So you basically went to him and then after you had
1 retained him, at some later point submitted his fees to the
2 Court and the Court paid a portion of that -- ordered them paid?
3 A. Yes.
4 Q. You had a psychologist as an expert. Did the state use an
5 expert psychologist in your trial?
6 A. Yes, sir.
7 Q. Do you know whether that was from the State Crime Lab or
8 from the Medical Examiner's Office?
9 A. In all honesty, Mr. Davis, I can't remember where he was
10 from. He was called real briefly to rebut a particular test
11 that was conducted by Doctor Wilkins. He was from Little Rock,
12 but I don't recall where he was from.
13 Q. Did you also employ a polygraph expert out of the State of
15 A. Yes.
16 Q. Renowned, does lectures all over the country?
17 A. That's correct.
18 Q. You were able to contact him, and he was available for you
19 and in fact did testify at the trial to a portion of what was
20 allowed of his testimony?
21 A. He testified in Corning, yes.
22 Q. Did the state have a polygraph expert that testified at
24 A. He was an employee of the West Memphis Police Department.
25 Q. Did he testify at the trial or a hearing regarding his
1 expertise in polygraph examinations?
2 A. He testified about his expertise with regard to the
3 polygraph machine at the suppression hearing in December of '93
4 or January of '94.
5 Q. Do you know of a better polygraph expert in the country
6 than the one you were able to obtain?
7 A. I don't know of a better one in the world.
8 Q. So you got the best?
9 A. I was lucky. And I think that's why Mr. Misskelley's not
10 on death row today.
11 Q. Doctor Ofshe -- he came and testified as an expert on
12 behalf of the defense, correct?
13 A. That's correct.
14 Q. You were able to secure his testimony?
15 A. In the same fashion that I was able to secure Doctor
17 Q. And Doctor Ofshe's area of claimed expertise is in
18 determining if people give false confessions?
19 A. That's correct.
20 Q. Would you say he is the world's foremost authority
21 regarding that particular topic?
22 A. One of the best in the world.
23 Q. You were able to secure his services, correct?
24 A. In the same fashion I was able to secure Doctor Wilkins and
25 Mr. Holmes, yes.
1 Q. Once they get there to trial, it doesn't matter whether
2 they were secured by begging, borrowing or stealing. Once
3 they're there -- as far as the defense attorney -- it's as much
4 use to you to have them testifying whether they're there for
5 free or whether you've got an unlimited expense account,
7 A. I guess I really couldn't argue with that.
8 Q. Did I understand you to say that one of the hindrances in
9 applying for funds from the Court or getting Court approval is
10 that if you file those motions, then the state knows -- you've
11 laid all your cards on the table for the state to see?
12 A. That's correct.
13 Q. Isn't it true that if you request funds for, say, Doctor
14 Smith to do -- as a forensic pathologist to review certain
15 findings -- isn't it true that all the state knows at that point
16 is that you're requesting a forensic pathologist to review
17 certain evidence?
18 A. But if I had funds other than state funds and I didn't have
19 to go to the Court to ask for them, then the prosecution would
20 never have known that I consulted doctor so and so for that
21 consultation. And had I chose not to use that consultation and
22 I was not provided with a written report from that expert, I
23 would not have had to disclose it to the prosecution.
24 Q. So if it reveals something beneficial, you're gonna have to
25 give that report to the prosecution, give that witness' name and
1 also address, telephone number, qualifications -- you're gonna
2 have to give that to the prosecution anyway, right?
3 A. True.
4 Q. So the only way that this having to file documents with the
5 Court would negatively impact you would be if that person has
6 nothing good to say to benefit your client or has things that
7 are negative against your client, correct?
8 A. There's one other avenue that I had to consider because of
9 the magnitude of this case, and that was the media. Every time
10 I filed a motion, the media reported on it. And maybe I didn't
11 have to advise the prosecution what the nature of the
12 consultation revealed, but every motion that was filed was
13 public record, and the media was free to report on it. That was
14 another consideration.
15 Q. If you get good things back from the expert, you're gonna
16 have to tell the prosecution anyway, right?
17 A. True.
18 Q. If you get bad things or neutral things from the expert,
19 then you don't have to tell the prosecutor, correct?
20 A. But if I had to file a motion to ask for permission on the
21 front end, then the prosecution would be free to subpoena that
22 expert and maybe even conduct an examination pursuant to a
23 prosecutor's subpoena.
24 Q. Would that not be a part of your work product when you
25 request for him to review that?
1 A. I would have fought you tooth and nail.
2 Q. So in terms of losing anything that would be of benefit to
3 your client, you don't sacrifice by having to file a request
4 with the Court, right?
5 A. I respectfully disagree.
6 Q. What -- for brevity -- you're saying you -- the media might
7 know about it. That's one downside. And if it comes back
8 negative, then the prosecutor may be tipped off because you
9 hadn't listed the person as a witness, and the prosecutor may
10 then seek them out and find out something bad about your client?
11 A. The other consideration that I mentioned earlier in my
12 testimony was the fact that had I asked for a forensic
13 evaluation, Judge Burnett would have sent Mr. Misskelley to the
14 State Hospital for forensic evaluation pursuant to the statute,
15 and I would have had to submit my client to in my opinion a
16 biased and a potential conflict of interest with regard to that
17 examination. That is something I wasn't prepared to do.
18 Q. Are you aware -- you talked a little bit about trying to
19 obtain an expert for profiling purposes?
20 A. Yes.
21 Q. Are you talking about somebody like Jodie Foster's boss in
22 "Silence of the Lambs" that looks at a crime and says, this must
23 be the kind of guy who would stick moth larvae down the throat
24 when he committed the murder?
25 A. There's actually two schools of thought with regard to
1 criminal profiling; one based on statistics, which is the one
2 promulgated by Quantico, and the other which is based on
3 analysis of crime scene evidence and victimology.
4 Q. Are you aware of any cases in the State of Arkansas where a
5 criminal profile was admitted into evidence to indicate either
6 the guilt or the innocence of the defendant?
7 A. I'm not aware of a case in the State of Arkansas where a
8 profiler actually gave testimony, but I'm aware of profiling
9 being used by law enforcement in North Little Rock. Mr. Turvey
10 has consulted with the North Little Rock police on a serial rape
11 case, and also Mr. Turvey did a profile on the blue light rapist
12 case which was used by law enforcement.
13 As far as actual testimony, no, I'm not aware of any in the
14 State of Arkansas.
15 Q. Right. So that we're clear, when you said that you didn't
16 have access to a profiler because of various restrictions, it
17 wasn't that you intended to get anything from the person that
18 you intended to use at trial -- it would just help you in your
19 case preparation?
20 A. It would have depended. The Court has ruled that Mr.
21 Turvey's report is not in evidence so I could give you an
22 example by demonstrating that, but the profiling was very
23 important to me in 1993 and 1994 because that what the police
24 were using to develop a suspect. And it was important in the
25 sense that if that profile was different than my client, then I
1 felt like it was relevant evidence.
2 And, also, the profiling can send you down different paths.
3 For example, a profiler in this case referred us to a forensic
4 odontologist, Doctor David, which in turn led to a referral of a
5 forensic entomologist with regard to time of death estimates as
6 well as a referral to a Doctor Michael Bodden, who is a forensic
7 pathologist and world renowned in this field.
8 So the profile, while it may not be something that you put
9 the profiler on the witness stand in the trial itself, it leads
10 you to other experts because a profiler basically looks at the
11 crime scene and makes recommendations on which avenues you
12 should go down.
13 I felt like that was very important in 1993, and I felt
14 like it's very important right now.
15 Q. You were aware that profilers existed back then, right?
16 A. Yes.
17 Q. You had the names of a few, right?
18 A. I contacted a profiler, and I was not able to meet his
19 retainer demands.
20 Q. And the extent of how that would have changed things -- it
21 might have affected your preparation, but you don't even contend
22 that they would have been admissible as witnesses in the case.
23 A. I could not have known that without the profiling expert.
24 Q. But even as you sit here now, you wouldn't expect to call a
25 profiler as a witness in a case and say this is the profile of
1 the person that committed this crime.
2 A. To be honest with you, Mr. Davis, I really haven't set down
3 and scoped out that avenue. I suppose there would probably be
4 some -- there would have to be some qualification analysis done
5 there with regard to what his expertise would be, but the
6 profiling is important because it gets you into other areas of
7 forensics that are important.
8 In this case there was very little forensic evidence. In
9 fact there was no real forensic evidence in the case at all, and
10 that forensic evidence would obviously be very important. It
11 bad relevance in '93 and it certainly has relevance today.
12 You know, using Mr. Turvey as an example -- and the Court
13 can cut me off if I get out of bounds here -- had I known what I
14 know now from Mr. Turvey's profiling report, I would have been
15 able to go down the path of a forensic odontologist before
16 trial. I would have known to go down the path of a board
17 certified pathologist to get a second opinion with regard to the
18 marks on some of the victims and whether or not they were
19 inflicted by the perpetrator or whether or not they were
20 inflicted by predation at the crime scene.
21 So those things would certainly have been relevant to me in
22 our investigation in 1993 before the trial.
23 Q. Were you privy to the decisions that were being made by Mr.
24 Price and Mr. Davidson regarding securing experts?
25 A. I think I was, but they may have had experts that they
1 didn't discuss with me, but we -- in fact, Doctor Richard 0fshe
2 was referred to me by Val Price and Scott Davidson's
3 investigator, Mr. Lax.
4 Q. Was Mr. Lax primarily employed to do investigation for Val
5 and Scott's client, Mr. Echols?
6 A. Initially, he was. However, he agreed to assist Mr. Crow
7 and I as well, and that's when we began to pool our resources
8 and help each other out.
9 Q. How would you rate Mr. Lax in terms of his ability as an
11 A. I think he's -- well, he's certainly the best investigator
12 that I have ever worked with.
13 Q. Prepared to as great an extent as possible when he comes
14 into the courtroom?
15 A. That's correct.
16 Q. In fact you're aware that in his preparation in assisting
17 Val and Scott that he would march in files of indexed notebooks
18 every morning during the trial, correct?
19 A. I have seen him do that, yes. As far as their indexes and
20 their filing system, we never shared confidential information.
21 We just simply strategized and talked about things that we had
22 common goals for.
23 Q. Were you ever aware of Mr. Lax limiting his investigation
24 because of funds?
25 A. He, I believe, sent -- I just don't really know that I can
1 answer that question because I believe that Mr. Lax did send me
2 a bill which I submitted to his Honor at the time the attorneys
3 fees and costs were set, but I don't recall ever having a
4 discussion with regard to he couldn't perform his job because of
5 lack of funds. I just don't recall ever having that
7 Q. Seeing his investigation prior to trial, was there anything
8 you saw that you thought had he had more resources Mr. Lax could
9 have done better in terms of the amount of time and effort he
10 spent in helping Val and Scott prepare?
11 A. Other than the fact that I know that he put in a great deal
12 of his own time and money in the case and had to conduct his own
13 business and he has offices in Nashville and Memphis. He's like
14 the rest of us. He had to make sacrifices to be able to do it.
15 But to answer your question specifically, I really can't point
16 to an episode of something that would have been different. I
17 don't know.
18 Q. You would describe him as being as good a private
19 investigator as you've ever been associated with?
20 A. Sure.
21 Q. And Val and Scott as part of their defense team as
22 appointed attorneys for Damien Echols had access to the best
23 private criminal investigator you had ever seen, correct?
24 A. Sure. I mean, yeah.
25 Q. And to the best you could tell, he did a thorough
1 investigation of this case, correct?
2 A. I think he did outstanding work.
3 MR. DAVIS: No further questions.
4 THE COURT: Do you still consider yourself to be
5 Mr. Misskelley's attorney?
6 THE WITNESS: As long as he says I am, your
7 Honor, yes.
8 THE COURT: Did you prepare a pro se petition for
9 him for Rule 37 relief alleging your own incompetence?
10 THE WITNESS: Actually, Mr. Rozensweig in Little
11 Rock sent the forms for that.
12 THE COURT: But you got it to him and had him
13 sign it pro se?
14 THE WITNESS: I physically carried it to the
15 penitentiary, at which point he signed it and it was
16 notarized, and I physically carried it to Corning to
17 be filed.
18 THE COURT: Even after that you continued in
19 efforts on his behalf and are today?
20 THE WITNESS: Yes, your Honor.
21 THE COURT: Anything else?
22 REDIRECT EXAMINATION
23 BY MR. MALLETT:
24 Q. One subject you testified about was the testimony of Doctor
25 Wilkins. Is that the psychologist --
1 A. That's correct.
2 Q. -- that you turned to when you could not afford the more
3 expensive psychologist?
4 A. That's correct.
5 Q. That's the psychologist who you had to identify as a
6 witness on your witness list because you were gonna use him in
7 the trial?
8 A. My only other alternative would have been to submit my
9 client to the State Hospital.
10 Q. As it turned out by using the less expensive psychologist,
11 you were using someone who wasn't a licensed psychologist at
13 A. He had a license, but his license had been suspended to
14 some extent. I believe he was ordered to be supervised by
15 another doctor, and there were some questions about whether or
16 not he was actually being supervised.
17 Q. Those questions and facts were the facts that were
18 developed by the State of Arkansas in disputing the weight to be
19 given his testimony?
20 A. Certainly. It did affect his credibility at trial.
21 Q. You testified about a Mr. Holmes. Was that your polygraph
23 A. That's correct.
24 Q. Mr. Echols, as we all know, got the death penalty. For
25 those who were not in the previous proceedings, what were the
1 verdicts on Mr. Misskelley for whom the State of Texas -- the
2 State of Arkansas was seeking the death penalty?
3 A. He was convicted on two counts of second degree murder and
4 one count of first degree murder.
5 Q. His sentence was life plus forty?
6 A. That's correct.
7 Q. Is that life with parole plus forty if he should live that
9 A. My understanding of the sentencing law in Arkansas is that
10 life without parole is no different than life with parole except
11 if you get life, your sentence can be commuted by the governor
12 -- if I'm stating that correctly --
13 THE COURT: Life without parole can be commuted
14 by the governor, too. It just has to be reduced to a
15 term of years first.
16 THE WITNESS: I stand corrected.
17 BY MR. MALLETT:
18 Q. And when you said you believed he got the sentence he got
19 and did not get the death penalty because of Doctor Holmes'
20 testimony, what did you mean?
21 A. What I meant by that is that had Doctor Ofshe and Mr.
22 Holmes not basically volunteered their services to assist in
23 this defense, I would have been severely crippled in being able
24 to present any meaningful defense without the assistance of
25 experts at trial in Corning. I believe their testimony, as much
1 as the Court would permit it, had a significant impact on the
2 jury's decision.
3 Q. You said as much as the Court would permit because there
4 were apparently some restrictions? He didn't get to say
5 everything you would have liked the jury to hear?
6 A. That's correct.
7 Q. Mr. Davis made much about whether a profile -- testimony
8 about a profile is directly admissible as evidence in the State
9 of Arkansas.
10 Did I understand you to be saying that just like any other
11 investigator, homicide officer, robbery detective, profile
12 evidence is evidence that provides the investigator with leads
13 toward more conventional testimony?
14 A. That's probably what I meant to say but didn't say it quite
15 so eloquently.
16 Q. And that's what you found to be true in this case?
17 A. Exactly.
18 Q. You were told the state had used profiling in its
20 A. That is correct. I suspicioned that, and it was later
21 confirmed during the second trial.
22 Q. Have you ever heard that a trial is supposed to be a search
23 for the truth?
24 A. I have heard that many times.
25 Q. Did you feel like the Misskelley trial was a search for the
2 A. I don't feel the jury had all the information before it.
3 MR. MALLETT: Thank you very much.
4 RECROSS EXAMINATION
5 BY MR. DAVIS:
6 Q. You were asked if Misskelley -- the result of Misskelley's
7 trial was better than the other two in terms of the outcome for
8 the defendant. You said he got life plus forty, whereas Jason
9 Baldwin got life without parole and Damien got the death
10 penalty. So your client came out better than the rest, correct?
11 A. I guess if you wanted to set down and put a measuring stick
12 to it, I guess you could say yeah.
13 Q. But your client's trial was completely different in that
14 the focus of your client's trial was his confession that he gave
15 the police officers, correct?
16 A. Correct.
17 Q. Whereas that confession was not used in the trial of Echols
18 and Baldwin?
19 A. It wasn't introduced, but as his Honor pointed out earlier,
20 everybody knew about it.
21 Q. But we're talking about a different scenario, and that's
22 why the trials were separated, correct?
23 A. That's correct.
24 Q. Under your client's confession -- the version that was
25 introduced -- I understand you dispute whether it's valid or not
1 -- but under his confession, he had the minimal involvement of
2 all three, correct -- in the killings?
3 A. If you take his confession at face value, yes.
4 Q. That Mr. Echols and Mr. Baldwin did the worst deeds and
5 were the most heavily involved and that Jessie Misskelley just
6 was kind of there observing and had some role in bringing
7 somebody back to the scene but wasn't the main perpetrator of
8 these dastardly deeds?
9 A. That's certainly an interpretation that the jury was free
10 to take.
11 Q. And that may explain why the jury cut your guy some slack
12 versus what they gave to the other two, correct?
13 A. Sure.
14 (WITNESS EXCUSED)
15 THE COURT: We'll take a ten minute recess.
17 (RETURN TO OPEN COURT)
18 VAL PRICE
19 having been first duly sworn to speak the truth, the whole truth
20 and nothing but the truth, then testified as follows:
21 DIRECT EXAMINATION
22 BY MR. MALLETT:
23 Q. Would you introduce yourself -- not to Judge Burnett who
24 knows you well -- but to the ladies and gentlemen of the
1 A. Val P. Price.
2 Q. And you were the court-appointed lawyer for Damien Echols
3 in his capital murder trial?
4 A. Yes, sir, that's correct.
5 Q. Would you please give us all the benefit of a brief summary
6 of your educational background?
7 A. I graduated from Jonesboro High School in 1974. I
8 graduated from the University of Arkansas majoring in history in
9 1978 at Fayetteville, graduated from law school at the
10 University of Arkansas at Fayetteville in 1981, passed the bar
11 in March of 1982 and have been practicing law in Jonesboro since
12 that time.
13 Q. Are you a family man?
14 A. Yes, sir.
15 Q. Have children?
16 A. Yes, sir.
17 Q. Belong to a church?
18 A. Yes, sir.
19 Q. Family lives in Jonesboro, Arkansas, as well?
20 A. That's correct.
21 Q. Notwithstanding all of that established background, you
22 have accepted employment as the public defender for this area?
23 A. Yes, sir.
24 Q. How long have you been the public defender?
25 A. I've been the public defender for the Second Judicial
1 District, which is a state position for the six counties in
2 Northeast Arkansas, as of January one of this year.
3 Prior to that in January of 1992, I was the chief public
4 defender for Craighead County and then in 1994 I also took on
5 Lawrence County. In '95 I took on Jackson County as well.
6 Prior to that, I was on the court-appointed list accepting
7 court appointments. I could also be hired. They were all
8 parttime positions. I didn't become a fulltime public defender
9 until the first of this year.
10 Q. Did you ever have a job as a lawyer for a big corporation?
11 A. Never.
12 Q. Were you ever an associate with a big law firm?
13 A. Never.
14 Q. You say you were first licensed when?
15 A. In 1992 -- excuse me, '82.
16 Q. About what date?
17 A. March.
18 Q. How soon after that did you have your first opportunity to
19 represent someone charged with a crime?
20 A. Within a few months probably.
21 Q. As far as the year 1993 goes, you were a parttime public
22 defender in Craighead County?
23 A. That's correct.
24 Q. What was the salary?
25 A. The salary was thirty-six thousand dollars.
1 Q. What additional money did you get for expenses or overhead?
2 A. There was approximately ten thousand dollars that could be
3 divided between myself and three other parttime lawyers.
4 Q. Those three other parttime lawyers were assistants to you
5 as the chief public defender?
6 A. That's correct.
7 Q. Did you have additional duties as chief public defender?
8 A. Primarily assigning cases and then keeping track of them
9 and keeping a tally when the cases were over with.
10 Q. The four of you would divide that ten thousand dollar
11 supplement for expenses?
12 A. That's correct.
13 Q. Can you hire one fulltime secretary for one year in
14 Jonesboro, Arkansas -- a legal secretary for ten thousand
16 A. No, sir.
17 Q. You were here for Mr. Stidham's testimony?
18 A. That's correct.
19 Q. So an attorney in practice in Arkansas I presume worries
20 about his bar dues, his library, continuing legal education,
21 secretary, legal pads, his gasoline, his rent or mortgage on his
22 home, his kids' school supplies, food, medical care,
23 transportation -- everything that every other working American
24 worries about?
25 A. Yes, sir.
1 Q. As a parttime public defender, you did that on your share
2 of ten thousand in expenses plus thirty-six thousand dollars?
3 A. That's correct.
4 Q. Throughout 1993?
5 A. Right.
6 Q. You also maintained a private practice on the side?
7 A. Right.
8 Q. To try to keep it together somehow?
9 A. Right.
10 Q. About how many cases -- ah, we heard Mr. Stidham testify
11 that some record keeping is customarily done in Arkansas -- I
12 think that was his testimony. Can you estimate for me within a
13 reasonable range of error the average number of cases you had
14 for disposition in 1993?
15 A. I don't recall exactly how many we did. One of my jobs was
16 to keep track of all the cases for the office. We did both
17 juvenile cases, municipal court cases and felonies for
19 Probably felonywise at that time -- all total may have been
20 five hundred or six hundred felonies of which I would have had a
21 fourth of those, the juvenile cases -- we probably average
22 twenty juvenile cases a week times fifty weeks a year -- and I
23 would do at least a third or half of those and then a smaller
24 percentage of misdemeanor cases in municipal court.
25 Q. Fifty times twenty would be two thousand a year?
1 A. That's too much. Maybe six hundred juvenile cases all
2 totaled. So a third or a fourth of those.
3 Q. So in Craighead County the four public defenders had
4 something on the range of twelve hundred to fifteen hundred
5 cases, and you were the chief guy, and you were responsible for
6 at least one-fourth of your cases?
7 A. Yes, sir.
8 Q. And the administrative responsibilities?
9 A. Yes, sir.
10 Q. I suspect as the chief public defender, you would tend to
11 take on the more serious cases that carried the heavier weight?
12 A. Right. That's correct.
13 Q. The ones more likely to be tried?
14 A. Right.
15 Q. Higher penalties?
16 A. Right.
17 Q. Require more preparation?
18 A. Yes, sir.
19 Q. And also maintain a private practice on the side?
20 A. Yes, sir.
21 Q. That's the institution into which you offered your time in
23 A. Yes, sir.
24 Q. In 1994 your practice as a public defender grew. You took
25 on another county?
1 A. Yes, sir.
2 Q. So when Damien Echols was tried in 1994, in addition to
3 Craighead County, you were also the public defender for Lawrence
5 A. Yes, sir.
6 Q. What's the caseload like in Lawrence County?
7 A. The caseload -- the felony caseload is smaller -- probably
8 80 cases a year. The municipal court meets usually twice a
9 week, and the judge wanted me there in one of the municipal
10 courts, generally, at least three times a month and the other
11 one maybe two times a month. So five appearances per month in
12 municipal court, and then the juvenile court was one appearance
13 per month over there.
14 Q. Did you have assistance in Lawrence County?
15 A. No, sir.
16 Q. Did you increase your staff in Craighead County when you
17 took on the public defender job in Lawrence County?
18 A. No, sir.
19 Q. When did you become the public defender in Jackson County
20 as well?
21 A. That was in 1995.
22 Q. What was the public defender paid in '94 in Lawrence
24 A. In Lawrence County it was approximately twenty-five
25 thousand with no expenses.
1 Q. And it is only marginally relevant, but when your practice
2 expanded by fifty percent when you took on Jackson County in
3 '95, how much more gross income did that get?
4 A. It was also -- they paid right at twenty-five thousand.
5 Q. Did you ever do a check in '93 and '94 to see how many
6 miles you were putting on your car?
7 A. Quite a bit.
8 Q. For tax reasons perhaps you would make an estimate of a
9 number of miles you were driving?
10 A. It's properly listed on my tax return, but I don't recall
11 how much that is.
12 Q. I would guess maybe 40 thousand miles a year -- something
13 like that -- some big number?
14 A. May not be that. It was at least a thousand miles per
16 Q. So you are not only spending time disposing of hundreds of
17 cases a year, you're spending time in a car getting from one
18 place to another?
19 A. Yes, sir.
20 Q. You're trying to be a dad, husband, citizen -- take care of
21 your civil practice?
22 A. Right. By that time the civil practice had pretty much
24 Q. By '95.
25 A. Right.
1 Q. But in '93 you were trying to do it all with one county.
2 A. Right.
3 Q. In '94 you took on a second county and as you were
4 contemplating the Echols case -- getting ready for trial in the
5 Echols case -- you were also contemplating the new burdens that
6 you were taking on by being the only public defender for
7 Lawrence County?
8 A. Right.
9 Q. So a day came sometime in the summer of '93 when you were
10 called upon to determine your availability to handle a case in
11 Crittenden County?
12 A. Yes, sir.
13 Q. Which was West Memphis?
14 A. Yes.
15 Q. Tell us how that started.
16 A. I had heard that Mr. Echols and the other defendants had
17 been arrested. I had talked with some other attorneys in West
18 Memphis. I knew that the Crittenden County public defender's
19 office had a conflict of interest, and because of that, they
20 were not gonna represent any of the three defendants.
21 Q. What was their conflict of interest as you knew it?
22 A. I don't recall exactly what that was. It may have had
23 something to do with one of their individuals may have
24 previously represented Mr. Echols, and I don't know the exact
25 gist of that, but due to some conflict -- and that was a
1 conflict that they for whatever reason decided to disqualify not
2 only their head public defender but I think at that time he had
3 either two or three deputies, and they all recused and would not
4 take any of the appointments of the three defendants in this
6 Q. Did you get a call from the judge?
7 A. Yes, sir.
8 Q. Did you get a chance to opt in or opt out?
9 A. Yes, sir.
10 THE COURT: Wait a minute. When you say, "the
11 judge," let's clarify who it was because it wasn't me.
12 BY THE WITNESS:
13 A. That would have been Judge Goodson.
14 Q. Same judge that called Mr. Stidham?
15 A. Yes. And I knew that -- I believe it was on a Friday that
16 they were temporarily appointed three lawyers in West Memphis --
17 primarily civil practitioners -- that didn't want to have
18 anything to do with the case at all. I don't know if he called
19 me that Friday or called me on Monday, but at the time of that
20 conversation, I told him I would accept the appointment.
21 Q. I think Mr. Echols was not arrested on the date the state
22 believes this happened -- which was May 5th or 6th -- but some
23 weeks after?
24 A. About a month later, approximately.
25 Q. Early June probably?
1 A. Right.
2 Q. Could have been late but probably early June?
3 A. Right.
4 Q. And you got a call on a Friday. When did you go see Mr.
6 A. Probably on Monday.
7 Q. Did you agree to take the case before you met Mr. Echols?
8 A. Yes, sir.
9 Q. That's one of the -- doing public defense work, we don't
10 necessarily pick our clients. We yield to the call from the
12 A. That's correct.
13 Q. At that time, you had previously tried cases in which the
14 state sought the death penalty?
15 A. Yes, sir. At that time I had tried two previous cases in
16 which the state had sought the death penalty.
17 Q. Was the state successful in those cases?
18 A. Neither time.
19 Q. Good for you. Excuse the editorializing.
20 And when you spoke to the judge who was appointing you, did
21 you even need to ask what resources would be available to you to
22 determine if the defendant you were being requested to represent
23 would be assisted with guarantees of money for any kind of
24 investigation or experts or anything of that nature?
25 A. No, sir. I accepted the appointment based on my duty and
1 obligation as an attorney.
2 Q. Would you expect in a case like that the resources
3 available to the law enforcement side of the lawsuit would be
4 virtually unlimited? That they could have just about anything
5 they wanted?
6 A. Yes, sir.
7 Q. As you were getting appointed in '93 and beginning to
8 undertake this representation, what did you understand would be
9 the resources available to you in this triple murder case?
10 A. As far as fees or --
11 Q. As far as expenses. Not your own compensation -- just
13 A. I don't recall if initially we had any kind of clear
14 understanding on what money would be available for expenses.
15 There was as Mr. Stidham had testified to earlier -- there was a
16 flux at that time in Arkansas law -- there were limits on
17 expenses and what were the source of expenses and when could it
18 be paid and how much would be authorized and how to get that
19 money and when you could get that money.
20 Q. Was it the custom and practice as you knew it that the
21 rules that would apply to a case filed in Crittenden County
22 would be consistent with your experience in Craighead County;
23 that is, the rules about compensating and reimbursing a lawyer
24 for expenses would be the same in an appointed case whether it
25 was Craighead County or Crittenden County?
1 A. No. I mean, in Craighead County we had ten thousand
2 dollars which since I was chief public defender over here, I
3 could pretty much control how it was spent, and if I decided it
4 needed to be spent, I could access those funds. As far as what
5 funds Crittenden County had available for expenses, I don't
6 recall exactly what those were.
7 Q. Well, your -- your capital cases had previously been in
8 Craighead County?
9 A. One had been in Randolph County. One had been in Craighead
11 Q. In your Craighead County case with the state seeking the
12 death penalty, if you paid expenses in preparing for trial where
13 you successfully avoided the death penalty, did you pay for
14 those from within your ten thousand dollar budget?
15 A. What expenses -- are you talking about expert witnesses?
16 Q. That kind of thing.
17 A. I don't recall that we had an expert in that particular
18 case. The case of Brian Miller, which was tried over in the
19 Eastern District, we had four days of testimony and then on the
20 fourth day the defendant entered a plea of guilty.
21 Q. Pursuant to a plea bargain?
22 A. Right.
23 Q. For life?
24 A. Ah, life without parole -- two of 'em -- two consecutive --
25 Q. So in that case you didn't require public funds for any
1 experts or investigators?
2 A. That's correct.
3 Q. What about your other case?
4 A. The other case was in Randolph County. Murrey Grider, the
5 regular public defender over there, didn't have experience in
6 death cases and wanted me to be appointed to assist him to
7 handle primarily the death type issues related to voir dire and
8 mitigation. So I was appointed to assist him in that case.
9 There was also a problem in me being paid in that
10 particular case, which that resulted in an appeal to the Supreme
11 Court concerning my fee in that case as well.
12 Q. So in that case there were no funds for experts or
14 A. That's correct.
15 Q. In this case did you file any motions with Judge Burnett
16 requesting assurance that if you hired investigators or experts,
17 they would be paid?
18 A. In this case Mr. Davidson and I thought long and hard about
19 the issue of do we need experts, what should we do about the
20 money, is it possible to file anything under seal, or is there
21 another source to get money from.
22 In this case we decided not to go to Judge Burnett to seek
23 funds. As a matter of fact, I think we prepared a rough draft
24 of a motion for funds, but we decided not to file that.
25 Q. What was the reason for that?
1 A. Somewhere along the same period is when we were approached
2 by the producers from Creative Thinking, the HBO producers, Mr.
3 Berlinger and Mr. Sinofsky -- one of those who earlier testified
5 Q. They approached you about whether they could do something
6 for you by way of providing money?
7 A. Right.
8 Q. For the benefit of Mr. Echols?
9 A. Yes, sir.
10 Q. In trade you would do something for them?
11 A. Yes, sir.
12 Q. Which is, the defendant Mr. Echols and you would cooperate
13 with them in their movie making effort?
14 A. Yes, sir.
15 Q. And you negotiated an agreement?
16 A. Yes, sir.
17 Q. For three interviews?
18 A. Yes, sir.
19 Q. For twenty-five hundred dollars per interview?
20 A. I think that was the amount. The total was seventy-five
21 hundred dollars.
22 Q. Did you get all your money?
23 A. No, sir. We've only received five thousand. They owe us
24 twenty-five hundred.
25 Q. It was because you were going to rely on that money to
1 defend Damien Echols in part that you decided you would not
2 petition Judge Burnett for money?
3 A. Yes, sir.
4 Q. And that actually empowered you in one way. It meant that
5 you could file a mot -- that you could have a consulting expert
6 -- do you recall Mr. Stidham's testimony about consulting
8 A. Yes.
9 Q. It would empower you to explore the idea about consulting
10 experts without making a record for the state to know of what
11 you were doing to prepare your case?
12 A. Yes, sir.
13 Q. And you know as a lawyer -- not only as a criminal lawyer
14 but as a lawyer who had a parttime civil practice -- that it is
15 sometimes helpful to be able to hold some of your cards where
16 the other side of the lawsuit doesn't look at 'em?
17 A. In general, yes.
18 Q. The state does that all the time, right? Confidential
19 informant provided me such and such information. They keep the
20 identity of the confidential informant secret, right?
21 A. Right.
22 Q. They act on the information. You can't find out who the
23 informant is, right?
24 A. Until a later date, right.
25 Q. Or maybe never if he's not a witness in the trial?
1 A. Right.
2 Q. So because Home Box Office purchased Damien Echols'
3 cooperation in your trial, you had some money to defend him
4 with, and you could use that money confidentially and without
5 full disclosure to the prosecution as would happen if you were
6 petitioning the Court for that?
7 A. Yes, sir.
8 Q. The only consideration you would be seeking from Judge
9 Burnett would be reimbursement for your time; that is, he would
10 pay you for your time on an hourly basis?
11 A. At the end of the case?
12 Q. Yes.
13 A. No, sir. There were -- the sum of money that we received
14 did not pay for all the expert witnesses and the other expenses
15 that we had. We had additional expenses that were not covered
16 by that, and we sought reimbursement from Judge Burnett at the
17 end of the trial.
18 Q. You did that at the end of the case?
19 A. Yes, sir.
20 Q. So what happened was the HBO money -- I'm gonna call it the
21 HBO money -- you and I know what we're talking about --
22 A. Sure.
23 Q. -- the HBO money was in effect a substantial down payment
24 on case expenses?
25 A. Right.
1 Q. And was a cushion that you could keep in mind as you were
2 deciding what additional expenses you might incur?
3 A. Right.
4 Q. Who is the better source of information about your
5 additional expenses? You or Mr. Davidson?
6 A. Either one of us. I know that when we received the five
7 thousand dollars, we placed that in Mr. Davidson's trust
8 account, and we used it to pay expenses from different
9 witnesses. Some of 'em -- I have looked at the ledger cards
10 even today -- he brought them with him and I have got a copy as
11 well -- there were some witnesses that we paid their expenses
12 directly out of that. There were some that Mr. Davidson had
13 already paid out of his own pocket, and he reimbursed himself
14 for those, and there were some that I had paid out of my own
15 pocket that I -- we reimbursed myself for as well.
16 Q. How did you -- did you do anything to police these invoices
17 that you had received to be sure that you were paying only the
18 amount of money that you had to pay in order to get the
19 assistance that you wanted?
20 A. I don't follow.
21 Q. I'll ask that in a different way. Did you just pay as you
23 A. Depending upon what the invoice was. There was Doctor
24 Moneypenny, who was the expert we used -- a psychologist -- in
25 mitigation. We paid him with some of the money, but he still
1 had a bill when the case was over with, and he had to wait like
2 we did for our fees for a year and a half after the trial was
4 Q. Do you have records showing the amount of money and the
5 dates that you spent it out of Mr. Echols' money?
6 A. Yes, sir. That should be -- I think my file is right over
7 here -- the manila envelope. If I could step down --
8 MR. MALLETT: Can he step down and retrieve that,
9 your Honor?
10 THE COURT: Sure.
11 (WITNESS RETRIEVING DOCUMENTS)
12 BY MR. MALLETT:
13 Q. If you don't mind, Mr. Price, I'd like to take thirty
14 seconds and get a feel of how much material we're looking at
16 A. Sure. (Handing) Mr. Davis, if you want a copy, I've got
17 one, and I've got one for the judge. Do you want the judge to
18 look at --
19 Q. I'm not sure if I want to go into this as a subject until
20 after I make a determination of how much material we have.
21 A. Okay.
22 Q. I'm assuming in all probability for most of the items we
23 see on the lines on this three set of pages, you've probably got
24 invoices for most of them -- the kind of backup that a
25 bookkeeper would want?
1 A. Sure.
2 Q. With your permission, I'm going to hold off on this subject
3 until we have a chance to review the records and go on to
4 something else.
5 A. Sure. That's fine.
6 Q. Basically what you've provided me are three sheets of
7 paper. The top page has the words, "Val's Expenses" written on
8 it. There's a number of line items, dates for each item and
9 amounts of money showing a declining balance. Is that correct?
10 A. Right. There should be one dated March 25th, 1994,
11 "Creative Thinking International, receipted in trust, five
12 thousand dollars," and then it kind of works down from that.
13 Q. On the page that has the words, "Val's Expenses" on it,
14 we're talking about expenses that you incurred --
15 A. Right.
16 Q. And on the page that says, "Scott's Expenses" are the
17 expenses that Scott Davidson, your co-counsel incurred?
18 A. Right.
19 Q. And I notice on the one that says "Val's Expenses" there
20 seems to be some lines on the photocopy. Can you tell me the
21 last time this was corrected or audited or updated?
22 A. Mr. Davidson brought these to court today. The only one
23 that is the blur at the top is I believe for 75 dollars, and I
24 am not sure exactly what that -- are you talking about --
25 Q. (Pointing) Do you have the original there? It may be just
1 the gray paper photocopies in a bad way.
2 A. This particular one is the slick paper. That may be the
3 original. I think the one I gave you was a copy. Wait a
4 minute. Which one are you looking at?
5 Q. (Indicating)
6 A. (Indicating) That document is this document.
7 Q. You're holding the original?
8 A. I believe it's the original.
9 Q. Would you keep that, please?
10 A. Sure.
11 Q. When were these records prepared?
12 A. Contemporaneously. They should have the dates when
13 expenses incurred.
14 Q. And the entries made?
15 A. Right.
16 Q. Okay.
17 A. These were the records that Mr. Davidson kept. I have some
18 additional records of money throughout the entire case that
19 didn't pertain to HBO money.
20 Q. Oh, I see. This is how you spent the HBO money?
21 A. Right.
22 Q. And then you had other expenses that you have recorded on
23 different pages?
24 A. Right.
25 Q. Are these the expenses for which you applied for
2 A. My entire expenses throughout the entire case including
3 attorney fees at the trial court level, the attorney fees at the
4 appeal level with the direct appeal to the Supreme Court and
5 also the costs -- the out-of-pocket costs when we filed a
6 Petition for Writ of Cert from the U.S. Supreme Court of which
7 we weren't paid a fee.
8 Q. Did you also make multiple copies of those expenses?
9 A. I did.
10 Q. So the Court will understand, you brought these pursuant to
12 A. Yes.
13 Q. We asked you for them.
14 A. Sure.
15 Q. Again, so I could review them at the first opportunity,
16 could you furnish myself and Mr. Davis copies now?
17 A. Yes. (Handing) The documents I just handed you are the
18 ones I kept. The first three are the ones Mr. Davidson kept.
19 MR. MALLETT: I am going to look at these at the
20 next recess except that I see the state is real
21 interested in it now so I think I'll hesitate just a
23 THE COURT: I think you brought up a subject --
24 I'm kind of curious as to what his total costs were
25 from beginning to end and what compensation he
1 received from both the trial court and the appeal
2 court. I'm interested in what it broke down to per
3 hour based upon his time figures.
4 BY MR. MALLETT:
5 Q. Can you look at your records and summarize that for us?
6 A. Sure. My fee -- and I also pursuant to subpoena brought a
7 copy -- I just have one copy of the detailed hourly computations
8 that I kept and submitted to the judge at the end of the trial.
9 I spent approximately 922 hours myself on the trial portion
10 of this case, and I received a fee in that part by Judge Burnett
11 of thirty thousand five hundred dollars, which I think works out
12 to about thirty-three dollars per hour.
13 At the appeal in the Arkansas Supreme Court, all four
14 lawyers -- Mr. Ford and Mr. Wadley representing Baldwin and
15 myself and Mr. Davidson -- because our trial was together, our
16 appeal was sort of together. We worked together on the
17 abstract. We did a joint abstract, and then we did a separate
18 brief, and Mr. Baldwin [sic] did a separate brief. The oral
19 argument was heard at the same time by the Arkansas Supreme
20 Court. At the conclusion of that, the Supreme Court made an
21 award of a fee of ten thousand dollars to be split by four
22 lawyers, of which Mr. Ford and Mr. Wadley split half of that
23 five thousand. I got four thousand. Mr. Davidson got a
25 Then I filed a Petition for Writ of Cert to the U.S.
1 Supreme Court pro bono.
2 Q. I assume that Mr. Davidson and you remain friends and that
3 the division of the five thousand dollars on a four-to-one basis
4 was a division based on relative contribution?
5 A. I believe that's correct.
6 THE COURT: I had attempted to pay forty dollars
7 an hour. I might have disallowed some of your hours
8 on there for some reason or another.
9 BY MR. MALLETT:
10 Q. You did understand when you got the appointment that you
11 would get forty dollars an hour out of court?
12 A. No, sir.
13 THE COURT: No. I never made that statement to
15 BY THE WITNESS:
16 Q. At the hearing we argued what the federal rates in Arkansas
17 were at that time which was sixty dollars in court and forty
18 dollars out of court. And also the death penalty rate was 125
19 dollars an hour in federal court, but we were not paid that.
20 Q. What expert witnesses did you employ to assist you in this
22 A. We employed Doctor James Moneypenny, a psychologist in
23 Little Rock who was used during the mitigation phase, as to Mr.
24 Echols' mental history and the other mitigating factors
25 concerning that issue.
1 We used Robert Hicks, who was the anti-cult expert from
2 Richmond, Virginia. We hired him to come in. He had written a
3 book, The Pursuit of Satan. A lot of his book was attacking
4 Doctor Griffis, the state's expert. And those are two that we
5 used and testified in court.
6 There was a consulting -- I believe he was a forensic
7 pathologist -- a Doctor Chris Sperry that we had sent some
8 records and he looked at 'em, but he didn't testify for us.
9 THE COURT: Is that the man who sat through the
10 whole trial and the jury selection?
11 BY THE WITNESS:
12 A. No. That was James Ranscoe, who was I guess hired by Mr.
13 Baldwin as their jury consultant. When the Court made its
14 ruling that we had to share our strikes, we used part of his
15 knowledge in exercising strikes pursuant to the Court's ruling.
16 But I believe those were the only experts we had actually used
17 in this case.
18 Q. You did not retain as a consulting expert a profiler?
19 A. That's correct.
20 Q. That holds himself out as an expert in criminal profiling?
21 A. That's right.
22 Q. You did not retain a polygraph expert?
23 A. That's correct.
24 Q. You did not retain a bloodstain pattern expert?
25 A. No, sir.
1 Q. You did retain Ron Lax?
2 A. That's correct.
3 Q. What was the arrangement or agreement with respect to Mr.
4 Lax's participation?
5 A. The arrangement was if we were ever paid, that we would
6 submit his bills and try to get reimbursed for his time and
7 expenses. If we never received a fee or never received a fee
8 for his expenses, then he wouldn't be paid anything.
9 I believe he submitted hours of -- a bill of approximately
10 fifty to sixty thousand dollars. It ended up -- I believe the
11 judge awarded him a fee of seventy-five hundred dollars.
12 Q. And you were the Val Price who represented Danny Verdict on
14 A. On appeal and at trial.
15 Q. That was a case in which part of the state's case leading
16 to the conviction was the testimony of a dentist, a forensic
18 A. Yes.
19 Q. And one of the complaints you had on appeal was the
20 evidence was not probative or should not be admissible?
21 A. That's right.
22 Q. On December 20th, 1993, the Arkansas Supreme Court ruled
23 against you?
24 A. That's correct.
25 Q. So you knew when the trial was about to begin that the
1 testimony of an odontologist was admissible in an Arkansas
2 criminal case?
3 A. Yes.
4 Q. You also reviewed all the evidence in the case, didn't you?
5 A. Yes, sir.
6 Q. You've seen this letter in which there's an inquiry made.
7 It's under seal, but there's been some testimony about the
8 contents of it, in which a letter is written by a police officer
9 to Doctor Griffis about the mark on the Branch boy's face. You
10 saw that, didn't you?
11 A. Yes.
12 MR. DAVIS: Your Honor, I object. That's not
13 what was stated in the letter. I realize we're
14 speeding this up, but that was inaccurate.
15 THE COURT: That letter -- Ridge's letter in
16 response to questions by Griffis -- I believe -- or
17 either him writing Griffis to respond to certain
18 questions. There's no reason for that to be under
19 seal. It's the next to the last paragraph where he
20 made some reference to injuries on the left side of
21 the head. Is there any significance that the state
22 would want discussed in the context of -- I suppose of
23 his testimony.
24 MR. MALLETT: I think it's undisputed. The state
25 hasn't disputed that such a letter was written. While
1 the document's hearsay --
2 THE COURT: Go ahead and ask him about it.
3 BY MR. MALLETT:
4 Q. You were aware that the police officers thought there were
5 some odd marks and asked a question about 'em.
6 A. Right.
7 MR. DAVIS: Your Honor, again, that's why I'm
8 objecting to it. Characterizing it as the police
9 officer thought there were some odd marks. I think
10 the letter says, "Is there any significance to the
11 injuries to the left side of the face?" Which is
13 THE COURT: The letter will speak for itself.
14 MR. MALLETT: Can we unseal it and put it in
15 evidence so I'll get it right?
16 THE COURT: Sure. That particular letter doesn't
17 need to be sealed that I can see.
18 MR. MALLETT: I don't know if it's yet been
19 sealed. I'll extract that.
20 I am withdrawing, with the Court's permission --
21 THE COURT: Yes.
22 MR. MALLETT: -- from the sealed package, what is
23 marked as Petitioner's 9. It is a four-page document,
24 the last three pages are Bates stamped 08, 09 and 10.
25 It is the last three pages of a set of responses to
1 questions to Doctor D.W. Griffis dated 1-27-94. Move
2 the admission of Petitioner's Exhibit 9.
3 MR. DAVIS: I have no objection.
4 THE COURT: It may be received.
5 (PETITIONER'S EXHIBIT 9 IS REMOVED FROM UNDER
6 SEAL AND RECEIVED IN EVIDENCE)
7 BY MR. MALLETT:
8 Q. Mr. Price, you were aware as early as January of '94 that
9 Officer Ridge was interested in injuries to the left side of the
10 Branch victim's face?
11 A. Yes, sir.
12 Q. It did not occur to you, I take it, that the -- an
13 evaluation by a dentist or odontologist or even a pathologist
14 focused on that particular issue might be of assistance to Mr.
16 A. That's correct.
17 Q. I'm going to go to a slightly different subject. In an
18 appeal in Arkansas there's a part of the materials provided to
19 the Arkansas Supreme Court on appeal which is referred to as the
20 abstract. Is that correct?
21 A. Yes, sir.
22 Q. And the abstract is the appellant's factual rendition or
23 statement of what is shown in the record, sort of a shorthand
24 summary of what is in the record?
25 A. That's correct.
1 Q. If the appellant files an abstract that the state thinks is
2 either incorrect or incomplete, the state can file a
3 supplemental abstract --
4 A. Yes, sir.
5 Q. -- and if the state agrees with the appellant's view of the
6 facts, then the state can simply write their brief in response
7 to the appellant's brief or the defendant's brief on appeal?
8 A. Yes, sir.
9 Q. So it is the responsibility of a criminal defendant or a
10 defendant in a criminal case seeking to appeal that he prepare
11 not only a brief on appeal, which is a written argument, but he
12 must also prepare an abstract.
13 A. Right.
14 Q. And that's sort of what I would call an idiosyncrasy -- a
15 unique characteristic of appellate practice in the state courts
16 of Arkansas, right?
17 A. I don't know if it is an idiosyncrasy. I mean, that's a
18 requirement of the law.
19 Q. You don't do it in federal court.
20 A. Right. In federal court it's different.
21 Q. Who prepared the abstracts on Damien Echols on appeal?
22 A. All four lawyers. The transcript is approximately four
23 thousand pages, and we each one took a thousand pages.
24 Q. In your office when you prepare an abstract, do you do
25 that, or do you have a paralegal do it for you?
1 A. I do it.
2 Q. You sit down and work through the summary and try to figure
3 out what the important facts are that would be important on
5 A. Right.
6 Q. And in this case you read 25 percent of the record?
7 A. Yes, sir.
8 Q. That division of labor was necessitated by practical
10 A. Right.
11 Q. The size of the record among other things and the other
12 cases on your busy docket?
13 A. Right.
14 Q. Did you write Mr. Echols' brief on appeal?
15 A. Yes, sir.
16 Q. And you wrote that?
17 A. With Mr. Davidson.
18 Q. In reliance on the abstract that the four lawyers prepared
20 A. That's right. Once we all completed the abstract, we had a
21 chance to review each other's abstract because there were some
22 parts -- I can't remember if I did the third batch or the fourth
23 batch. So the first half of the trial was done by Baldwin's
24 lawyers, and there were some points in there that really didn't
25 pertain to Mr. Baldwin [sic] that I went back to make sure --
1 didn't pertain to Mr. Echols that I went back to make sure that
2 it was included in there.
3 Q. You are ready to furnish us today pursuant to our subpoena
4 your time records that show how you allocated your time in
5 representing Mr. Echols at trial and on appeal?
6 A. At trial, I have a specific Damien Echols billing where I
7 did a description listing the entire time I spent. As far as
8 the appeal, I believe I just stated approximate hours that I
9 thought I spent on it.
10 Q. The records that you have of the time you spent in the case
11 -- were those like these expense records created
12 contemporaneously with the activity?
13 A. Pretty much. We went back -- you know, since I'm not an
14 insurance defense corporate lawyer, I don't do this on a regular
15 basis. I went back and checked -- you know, every time I did
16 something I wrote dates on there. I think I had 10 or 12 legal
17 pads. So I would go back, look at the calendar, see when I
18 appeared for hearings, when I filed motions, when I did
19 research, when I appeared for trial and phone calls and went
20 back, and that's how we did the billing description at the trial
22 On the appeal, I filed a motion and put the approximate
23 hours that I spent on the case. The Supreme Court set a fee.
24 Q. I certainly respect your statement about not being an
25 insurance defense lawyer, not having ever been an insurance
1 defense lawyer myself, and I am taking it from that that your
2 time records are somewhat general and not extremely specific.
3 For example, if I want to know when you first met with
4 Doctor Moneypenny and the length of your meeting with Doctor
5 Moneypenny, do I have your records to refer to, or do I need to
6 rely on your notes and memory?
7 A. I'm looking right now -- to answer that question, I believe
8 the first time we met with Doctor Moneypenny was by a phone
9 call. He came up and saw Mr. Echols, I believe on two or three
10 occasions. But as far as being able to tell you right now when
11 the first time was I met with Doctor Moneypenny, I don't know if
12 I can do that.
13 Q. I'm not really challenging whether you met with him. I'm
14 only concerned about whether you can tell me that when I look at
15 your records, I will know when you met with Doctor Moneypenny
16 and the duration of your meetings with Doctor Moneypenny in
17 connection with his testimony.
18 A. I'm looking at the records right now. I can't tell offhand
19 specifically when the first date was I met with Doctor
21 Q. Or if I wanted to know how much -- do you recall when
22 Doctor Moneypenny testified he had this big stack of historical
23 information about Damien Echols in his possession when he took
24 the stand, right?
25 A. Yes.
1 Q. We've all seen that on film?
2 A. Yes.
3 Q. If I want to know how much time you spent familiarizing
4 yourself with those materials before Doctor Moneypenny testified
5 as a witness, will I find the answer by looking at your time
7 A. Well, you're welcome to take a look. I don't think that
8 answer is in here. You're certainly welcome to look at the time
9 sheets and ask me any questions that you want to about that.
10 Q. Do you have other records that you can refer to that would
11 answer the question how long did you meet with Doctor
12 Moneypenny, how many times did you meet with Doctor Moneypenny
13 and how much time did you spend reviewing the records that
14 Doctor Moneypenny reviewed before he testified? Do you have any
15 other records that we can refer to?
16 A. Like I said before, I've got ten or twelve legal pads, and
17 I tried to write down as I went along when I did certain things
18 with that, but I don't know specifically how detailed those
19 would be.
20 Q. And those legal pads I guess are in those two big file
21 drawers you brought in?
22 A. Yes, sir. Pursuant to subpoena.
23 Q. Because we asked you to --
24 A. Bring my files.
25 Q. We've got two file boxes, four drawers and a box, and
1 without walking over there, I bet they're pretty full, aren't
3 A. Right. My files are the two red ones. Mr. Davidson's are
4 the boxes.
5 Q. And of course you've been willing to cooperate with us and
6 make those available to us at any time, and we know that Mr.
7 Schay spent a day in your office going through those before this
9 A. Yes, sir.
10 Q. And you will continue to be cooperative?
11 A. Sure.
12 Q. Let me ask about the subject of change of venue. When
13 venue was changed, it changed from West Memphis to Jonesboro
14 which means it was removed from a remote place to the county of
15 your residence?
16 A. Yes, sir.
17 Q. Why did you move for a change of venue?
18 A. We thought that because of pretrial publicity, that Mr.
19 Echols could not get a fair trial in Crittenden County.
20 Q. Was that contested by the state?
21 A. I think they contested it to a certain extent. I have some
22 cases where they have a pretty good idea that a case ought to be
23 moved, and they've had other cases where they hotly contested
24 it. I think they made some objections, but I think we kind of
25 all had an idea that it needed to be moved.
1 Q. Was that based on a written motion for change of venue
2 A. Yes, sir. There was a written motion for change of venue.
3 I think at that time we were all -- the motions by all three
4 defendants and all their attorneys were being held at the same
5 time since they were all interrelated, and I think we appeared
6 someplace and argued for that.
7 Q. And of course from your standpoint at least in terms of
8 personal convenience, it was favorable to move the case to
9 Jonesboro. You'd have a chance to be home every night.
10 A. Sure. That was one factor.
11 Q. What about the media markets? Is Jonesboro a town that
12 receives different television stations than West Memphis?
13 A. West Memphis is saturated with the -- at that time -- three
14 TV stations from Memphis and the Memphis newspaper. They got
15 some coverage from Little Rock. They may not get as much --
16 actually, Jonesboro is covered pretty much equally between the
17 Memphis stations and the Little Rock stations, plus the state
18 paper in Little Rock, plus the Memphis newspaper, plus Jonesboro
19 has a newspaper and TV station as well.
20 Q. So when you moved to Jonesboro, you moved to an area well
21 within the reach of the prominent publicity that had previously
22 been in West Memphis?
23 A. Yes, sir.
24 Q. In my review of the record I have not located a second
25 motion for change of venue -- any kind of written motion
1 requesting a change away from Jonesboro to another part of the
2 state or objecting to the scheduling of the case in Jonesboro.
3 Do you recall ever making a second motion for a change of venue?
4 A. Second -- I know we made the motion for change of venue
5 from West Memphis or from Crittenden County, and interrelated to
6 that was the decision to sever the cases. The judge granted
7 that. And then Mr. Davis had the option to choose which case
8 was tried first. He made the decision to try Mr. Misskelley
9 first so I think the next decision was where the Misskelley
10 trial was going to be held, which was when it was moved to Clay
12 I thought we had some discussions about an additional
13 change of venue, but if it does not appear to be in the record,
14 then we may not have actually argued that in court.
15 Q. Did you notice as you were in Jonesboro and Mr. Misskelley
16 was being tried in Clay County, that there was publicity in
17 Jonesboro about the Misskelley trial?
18 A. Yes, sir.
19 Q. There was considerable publicity, was there not?
20 A. Yes, sir.
21 Q. The Echols trial began sometime in February -- around
22 February 22nd of '94?
23 A. I believe that's correct.
24 Q. And began some approximately two weeks after the Misskelley
25 trial was over?
1 A. Yes, sir.
2 Q. When I reviewed the record, I am unable to find a written
3 motion for a continuance of the Echols trial to a later date
4 filed after the Misskelley verdict. Did I miss something, or
5 did you not move for a continuance after the Misskelley trial?
6 A. If there is not a written motion filed, then I don't think
7 we filed it.
8 Q. Sitting there today, you don't have an independent
9 recollection of a motion for a continuance?
10 A. As far as filing one, no. We may have discussed it -- Mr.
11 Davis and I may have discussed it after the Misskelley trial --
12 but if there is not one filed of record, then we did not file
14 Q. As an experienced criminal lawyer, you do what you can as
15 far as your professional obligations to stay reasonably current
16 on the laws of the State of Arkansas and the United States
17 relating to a change of venue I presume?
18 A. Yes, sir.
19 Q. So you're aware when there is a great deal of publicity
20 such that it might be difficult to select a fair jury, that
21 venue may be changed as one of the remedies for a high degree of
22 publicity, right?
23 A. Yes, sir.
24 Q. Another possible remedy for a great deal of publicity is
25 for a continuance to allow the effects of the publicity to
1 dissipate -- fair statement?
2 A. That's a possibility.
3 Q. In this case can we agree then that you neither complained
4 about keeping the case in the same media market, nor sought to
5 persuade Judge Burnett to postpone the case to another time to
6 allow the publicity in the Misskelley trial to dissipate?
7 A. Yes, sir.
8 Q. Any particular reason for that? Was that some strategy
9 that would help Mr. Echols?
10 A. Personally, I don't think the media interest would have
11 waned at all by continuing the case for a month or two months or
12 five months or a year later.
13 As far as the law at the time in the State of Arkansas, you
14 could only change the venue within a judicial district. I think
15 there's been one case -- I think it was out of Sebastian County
16 where they may have moved it to a county outside the district
17 because Sebastian I think just has one or two counties, but it's
18 right next door to it.
19 And the other counties in our district were actually
20 smaller and less liberal than Jonesboro was, and that would have
21 affected the jury makeup.
22 Q. Let me see if I can jog your memory a little bit. Turning
23 to the transcript of a pretrial proceeding -- I don't want to
24 trick you. If I could approach the witness.
25 On page 79 you were speaking, and then you're followed by
1 Mr. Ford speaking, and I think if you will look at this, you
2 will see that Mr. Ford reserves the right to argue that the
3 venue should be changed outside the district.
4 A. (Examining) Yes, sir. It appears to say this is the
5 testimony [sic] of Mr. Ford concerning that issue that the
6 second trial may also be prejudiced by the first trial that it
7 makes it more difficult for whoever goes second. I know that's
8 been a concern of Mr. Price and Mr. Davidson. I want to state
9 on the record that the Court has ruled that he will allow more
10 than one change of venue in the event the first one is granted.
11 In the event that circumstances were to allow, we would be
12 allowed to put on additional evidence. He specifically reserved
13 the opportunity on behalf of Baldwin as the trial progresses to
14 move for an additional change of venue.
15 Q. So the subject of moving again was discussed. Then if you
16 will read along with me, on page 00086 according to the Bates
17 stamp or page 86 at the top of this particular conference within
18 the transcript, the Court is discussing -- doing the Court's
19 very important job of balancing the public's right to know,
20 freedom of the press and so forth.
21 And then he goes back to venue. He's says he's going to
22 change the venue to Craighead County. Then he says, "In
23 changing the venue to Craighead County, I'm specifically ruling
24 that Arkansas Constitution, Article 2, Section 10 is
1 A. Yes, sir. That's what it says.
2 Q. You were there. You've seen the previous pages. And then
3 the judge goes on to say, "There is case law within Arkansas
4 that justifies and supports the moving of the case outside the
5 judicial circuit should it be necessary," and you were there?
6 A. Yes, sir.
7 Q. So whatever expression you may have expressed a few minutes
8 ago about it had to be within the circuit, in fact, Judge
9 Burnett told you as you were discussing venue, that he could
10 move it outside the circuit according to case law.
11 A. That's what it says on the transcript.
12 Q. Do you have any reason to believe that Judge Burnett was
14 A. Was wrong in --
15 Q. Saying there was case law supporting him moving it?
16 A. Like I said earlier, I think there's one case that says
17 that can be done.
18 Q. Again if I could --
19 MR. MALLETT: Does the Court want these pages?
20 THE COURT: That's all right.
21 BY MR. MALLETT:
22 Q. Would you need to refresh your memory by looking at the
23 transcript in order to determine if you made a second motion for
24 a change of venue, or can we assume you did not?
25 A. If you can't find --
1 Q. I'm not trying to trick you --
2 A. -- it in the transcript, then we didn't do it. We didn't
3 actually argue it.
4 THE COURT: You're getting me confused now. Is
5 that not a discussion after the Misskelley trial and
6 prior to the second trial where I did grant a second
7 change of venue from Clay County to Craighead County?
8 MR. MALLETT: Yes, and I think that that's where
9 I have confused the record. I apologize to the Court.
10 A change of venue being West Memphis to Jonesboro. I
11 think the case actually traveled to Clay County and
12 then to Jonesboro.
13 THE COURT: That's right. The whole case --
14 every bit of it -- was originally changed to Clay
15 County, and then after the severance motion --
16 whenever that was -- it was kind of left void as to
17 where the second trial would be but was understood --
18 at least I thought -- that it would be somewhere else
19 and ultimately was.
20 MR. DAVIS: Your Honor, if I recall correctly,
21 the original change of venue was to Craighead County
22 when all three cases were still together at that point
23 when that discussion is taking place. Then it's at a
24 later point in the record where the severance becomes
25 obvious and it's at that point the question becomes,
1 do we have the first trial here, and there's a
2 discussion on the record about the need for -- the
3 nine month rule is getting ready to expire and if we
4 don't get the other trial in at some point earlier --
5 and that's when Clay County was picked as the location
6 for the Misskelley trial.
7 THE COURT: It might be the way Mr. Davis
8 recalls. It might have been transferred to Jonesboro,
9 and then when the severance was granted, that a second
10 change of venue was granted moving that trial. It may
11 have been that way. I'm not sure.
12 But I know that originally it all went to the
13 same place -- wherever that was -- and then there was
14 subsequent discussion and motion and a second change
15 of venue -- and frankly, we couldn't have tried the
16 case unless I entered an order, and I'm assuming that
17 there's an order transferring the venue to Clay
19 MR. MALLETT: I apologize. As we've complained,
20 we've put less time into this than we would have liked
91 to and so I'm limited to the Court's comments, and I
22 believe that the Court's comments are adequate to
23 assure me that the Court moved the case to Jonesboro
24 based on the conference that's reported in this
25 transcript. And that in that transcript the Court
1 made it abundantly clear to the lawyers that based on
2 this case law as Mr. Price has recognized, the Court
3 could move it out of the circuit.
4 THE COURT: I was aware of one case -- the one
5 that Mr. Davis makes reference to -- that the Court
6 could move it, and I think in that case they moved it
7 to an adjoining county. And for our purposes this is
8 the largest geographical judicial district in the
9 state and for moving the case from Crittenden County
10 to Clay County, that's 150 miles.
11 So the first case was tried at a considerable
12 distance and much further than it would have been had
13 I moved it outside of the judicial district to some
14 other county that was contiguous.
15 We really didn't go into that in great detail,
16 but there was definitely a motion made and a hearing
17 held. Whatever the record says we did is what we did.
18 BY MR. MALLETT:
19 Q. What I'm establishing, if I may, is that there was no
20 motion to move the case again once it was taken to Jonesboro --
21 to another place.
22 A. That's correct.
23 Q. One advantage in trying a case in Jonesboro is you would be
24 home. You would be in your home community, the place you grew
25 up, had your office, lived with your family. That would be a
1 possible asset in jury selection.
2 A. Yes, sir.
3 Q. As well as a possible way to control your personal case
4 expenses, although perhaps not some of the witnesses and the
5 parties. Fair statement?
6 A. No. That was never a factor in us agreeing for the case to
7 be tried in Jonesboro.
8 Q. You never thought about the conveniences of the parties or
9 your own convenience?
10 A. No, sir.
11 Q. Did you think about whether the people available for jury
12 service might be impacted adversely to Mr. Echols by the
13 publicity that had surrounded this case since its origin?
14 A. We certainly thought about the publicity and how that would
15 affect the jury if it was held anywhere in Arkansas.
16 Q. And so what was your approach to jury selection -- what we
17 call in Texas voir dire. Do we say voir dire or voir dire in
19 A. Both.
20 Q. All right. What was your approach to voir dire -- jury
21 selection -- philosophically, as you were approaching the case
22 in terms of the publicity issue?
23 A. Well, the most important decision is we had asked the judge
24 to give us more than twelve strikes, and the judge ruled we had
25 to share the twelve strikes with Mr. Baldwin.
1 Q. He denied giving you additional strikes?
2 A. Right.
3 Q. How did you approach the -- did you have any concern about
4 contamination by publicity?
5 A. Certainly.
6 Q. What did you do to try to persuade the judge to deal with
7 that in the most effective way?
8 A. We had the jury questionnaire that the prospective jurors
9 filled out.
10 Q. The 68 page questionnaire?
11 A. I believe that's what it was.
12 Q. That was largely intended, as I recall from the record, to
13 help your jury selection specialist assist you in determining
14 who might be good jurors. Is that correct?
15 A. The jury selection specialist was retained by Mr. Baldwin.
16 We used him to a certain extent once the judge made the ruling
17 about sharing the strikes.
18 Q. Did the jury questionnaire ask each person on the panel,
19 what did you read about this case, what did you see on
20 television about this case, what did you hear from other people
21 about this case?
22 A. I believe it did. If you've got a copy of it, I'm sure it
23 speaks for itself.
24 Q. Actually, I don't, and I'm not sure that that's public.
25 MR. MALLETT: May I inquire of the Court whether
1 that would be available to us, if you know?
2 THE COURT: It's perfectly agreeable with me. I
3 don't know who has a copy of it. Was one not left in
4 the file? I don't know. I know we had a hearing over
5 an objection by the state whether or not they could
6 even submit the jury questionnaires, and there was a
7 review of the questionnaires by the prosecuting
8 attorney and then an independent review by the Court,
9 and certain questions that the psychologist drafted
10 were then changed and made more neutral sounding so it
11 couldn't identify whether it came from the state or
12 the defendant. And then it was given to each of the
13 prospective jurors, and they completed it, and then we
14 did an individual -- or three at a time, in-camera
15 voir dire -- and they were asked extensive questions
16 which I can't remember now.
17 BY MR. MALLETT:
18 Q. If we want to find out if the questionnaire said, what did
19 you hear, what you did read, what did you see, we'd look at the
20 questionnaire, right?
21 A. Right.
22 Q. If we want to find out if you asked them, what did you
23 hear, what did you see, what did you read in the actual voir
24 dire portion of the jury, we would just look at the transcript
25 of the jury selection process?
1 A. Yes, sir.
2 Q. Well, I've done that. One thing I noticed as I was seeking
3 to study the law of Arkansas is that the legal system in
4 Arkansas in some significant ways pays some deference to the
5 writings promulgated by the group of lawyers in the United
6 States called the American Bar Association.
7 For example, the Model Rules for Professional Conduct for
8 the State of Arkansas were adopted by a Per Curiam Order by the
9 Supreme Court which adopts the Model Rules for Professional
10 Conduct promulgated by the American Bar Association. You know
11 that, don't you?
12 A. Yes, sir.
13 Q. Likewise, the Arkansas Code of Judicial Canons of Judicial
14 Conduct has a publishing note stating that by Per Curiam Order
15 the Code of Judicial Conduct promulgated by the American Bar
16 Association constitutes proper standards for the conduct of the
17 judiciary in this state.
18 So it's fair to say that your Supreme Court has shown
19 significant deference to the standards promulgated by the
20 American Bar Association, at least with respect to attorney
21 conduct and judicial conduct?
22 A. Yes, sir.
23 Q. Have you ever studied the standards of the American Bar
24 Association relating to a fair trial and free press?
25 A. I believe I have looked at those in the past.
1 Q. Let me see if this language is language that you're
2 familiar with and language that you agree with.
3 I'm looking at the American Bar Association Standards for
4 Criminal Justice, Chapter 8, Fair Trial and Free Press. What I
5 have is a West Law publication copyrighted by West Law, standard
6 8-3.5 in selecting the jury.
7 In pertinent part it says, "The questioning should be
8 conducted for the purpose of determining what the prospective
9 juror has read and heard about the case and how any exposure has
10 affected that person's attitudes toward the trial, not to
11 convince the prospective juror that an inability to cast aside
12 any preconceptions would be a dereliction of duty. The Court
13 should consider not only the juror's subjective nature of the
14 material and degree of exposure but also" -- excuse me.
15 Starting again, "The Court should consider not only the
16 juror's subjective self-evaluation of their ability to remain
17 impartial, but also the objective nature of the material and the
18 degree of exposure. The Court should exercise extreme caution
19 in qualifying a prospective juror who has either been exposed to
20 highly prejudicial material or retained a recollection of any
21 prejudicial material."
22 Do you agree with that?
23 A. In principle, yes.
24 Q. The American Bar Association standards on page 70 under the
25 same section, Standard 8-3.5 has a commentary on page 70 of the
1 West Law copyrighted edition and they include, "With respect to
2 what has happened when jurors have been exposed to publicity,
3 the recommended procedure is to conduct a segregated void dire
4 in which each potential juror is examined outside the presence
5 of the others. The purpose of this is two-fold: To encourage
6 candor, and to contain further spread of the prejudicial news
7 accounts." Do you agree with that?
8 A. I agree with what it says. I don't necessarily agree
9 that's the best way to select a jury in Arkansas.
10 Q. Do you believe that if jurors have been exposed to
11 substantial prejudicial material, it is helpful to the
12 defendant's obtaining a fair trial to ask a juror, what did you
13 see, what did you read, what did you hear?
14 A. Yes, I agree with that statement.
15 Q. And do you agree that the question, what did you see, what
16 did you read, what did you hear is a question that should be
17 asked outside the presence and hearing of the other jurors?
18 A. If that question is going to be asked.
19 Q. Because if it is asked in the presence of a juror, then you
20 may immediately have contamination by the jurors who have not
21 been exposed to the publicity --
22 A. Yes.
23 Q. -- who may then hear what the bad publicity was, right?
24 A. Sure.
25 Q. Have you read the Federal District Court Opinion entitled,
1 Pruett versus Arkansas?
2 A. I don't -- when was that?
3 Q. March 24, 1997.
4 A. I may have looked at it. I don't specifically recall
5 reading that Federal Court opinion.
6 Q. Well, Pruett is a United States Court decision for the
7 Eastern District of Arkansas, Pine Bluff Division, and in Pruett
8 -- I represent to you -- the District Court grants a petition
9 for habeas corpus relief in a case in which relief was denied by
10 the Arkansas Supreme Court.
11 In this case -- the Pruett case -- the federal judge is
12 very, very concerned about conducting the voir dire of the jury
13 so that the jurors were asked if they could set aside any
14 impressions or opinions they had from publicity without asking
15 them what they had heard.
16 Let me read this to you and see if you agree with me.
17 A. Who was the federal judge?
18 Q. Judge George Howard, District Judge.
19 MR. MALLETT: Everybody smiles. Is this some
20 sort of judge whose opinions generally provoke smiles
21 across the State of Arkansas?
22 THE COURT: You want somebody to answer that
24 MR. MALLETT: Well, I saw everybody smile. Since
25 I'm from farther south, I don't quite understand it.
1 MR. DAVIS: (Unintelligible)
2 MR. MALLETT: The district attorney says to ask
4 THE COURT: I'm not going to require the witness
5 to answer that question. He may have to practice in
6 his court.
7 THE WITNESS: Thank you, your Honor.
8 MR. MALLETT: I wouldn't think you would.
9 THE COURT: I'm certainly not going to.
10 BY MR. MALLETT:
11 Q. Judge Howard says in a footnote, "Many potential jurors,
12 whose views may be substantially affected by pretrial publicity,
13 may not know they're incapable of sitting as fair and impartial
14 jurors." Do you agree with that?
15 A. Yes, sir.
16 Q. Judge Howard writes, "The trial judge further erred in
17 accepting at face value the belief of the jurors impaneled that
18 they could ignore what they had seen in newspapers, seen on
19 television and heard and give Marion Albert the fair trial that
20 was his right."
21 To repeat: "The judge erred in accepting at face value the
22 belief of the jurors that they could ignore what they had read
23 in newspapers."
24 Do you believe that a trial lawyer representing a defendant
25 in a capital case should accept at face value the belief of
1 jurors that they can ignore what they have read?
2 A. That concept has always given me trouble. I have had cases
3 before when the judge will not allow me to ask -- let me
4 rephrase it.
5 Usually the question is, Don't tell me what you've heard or
6 know, but can you put that out of your mind and be a fair and
7 impartial juror in this case. That's typically how that
8 question is answered [sic].
9 Q. Well, I don't know -- you know, if typical is a standard by
10 which -- typical behavior is a standard by which we'll judge our
12 Let me tell you what I think Judge Burnett thinks. I have
13 a transcript here of jury selection in the trial of Damien
14 Echols and Jason Baldwin. And in the trial of Damien Echols and
15 Jason Baldwin, Mr. Ford is asking questions of a prospective
17 MR. DAVIS: Could we have a page number?
18 MR. MALLETT: Page 234.
19 BY MR. MALLETT:
20 Q. You were there throughout the jury selection?
21 A. Yes, sir.
22 Q. Same Judge Burnett?
23 A. Same Judge Burnett.
24 Q. Mr. Ford says, "I'd like to know what it is that you know
25 from word of mouth -- I think from church -- I'd like to know
1 what that is."
2 I'll show you this so that you can read along with me.
3 Judge Burnett says, "Wait a minute. You're gonna ask her
4 to recite that information in the presence of the other two
5 potential jurors?"
6 A. That's what it says.
7 Q. Mr. Ford says, "If you want to ask them to leave, that's
8 fine, but I do feel like --"
9 Judge Burnett says, "Well, if it's anything that might be
10 prejudicial or anything that might be unknown by anyone, I think
11 certainly that would be appropriate."
12 So what Judge Burnett tells Mr. Ford in your presence,
13 selecting Mr. Echols' jury is, you can ask 'em what they've
14 heard, what they've seen, what they've read, but Judge Burnett
15 tells you and Mr. Ford that it would be appropriate to do it
16 outside the presence of the other jurors. Isn't that what
17 happens on page 234 of this transcript?
18 A. I believe that's what it says. Yes, sir.
19 Q. And Judge Burnett says, "Let me ask the other two to step
20 outside the door for just a minute..."
21 A. Yes, sir.
22 Q. So Judge Burnett was certainly acting in accordance with
23 the ABA standards when a lawyer asks what did you hear, what did
24 you see, what did you say, what did you read, Judge Burnett
25 says, don't do it in the presence of the other jurors.
1 THE COURT: You're losing me on your whole train
2 here. Are you suggesting that the voir dire was
3 conducted in an improper manner and below the
4 standards of conduct acceptable?
5 MR. MALLETT: It is alleged in our Rule 37
6 petition that the conduct of the voir dire and the
7 questioning of the jurors was ineffective, and I'm now
8 laying the foundation for what I hope will persuade
9 the jury -- the Court to grant us relief.
10 THE COURT: Go ahead. I think that probably
11 happened more than one time during the course of the
12 voir dire where of the three that one or more might
13 have been excluded temporarily.
14 Is that the only incident in which you found that
15 to happen?
16 MR. MALLETT: Since the Court is questioning me,
17 I will answer understanding that because our motion
18 for continuance was denied, I am not on the same solid
19 ground I would like to be on.
20 THE COURT: I'm asking if you found that to occur
21 more than once.
22 MR. MALLETT: I found it to occur once. I found
23 no other occasion -- no other occasion in which Mr.
24 Price, Mr. Ford, asked the prospective jurors -- once
25 the juror said I have been exposed to publicity --
1 what did you see, what did you read, what did you
3 I found no other occasion in which they asked,
4 could we excuse those who are present for the reason
5 that this juror has been exposed to publicity.
6 Is that a full answer?
7 THE COURT: Did you find any other occasions
8 where the juror said, I have heard something about it
9 that affects my thinking?
10 MR. MALLETT: Yes, sir. Absolutely.
11 THE COURT: Let's take a short recess. The court
12 reporter is getting tired. We'll take a five to ten
13 minute recess.
15 (COURT AND COUNSEL CONFERRING OFF THE RECORD)
16 (RETURN TO OPEN COURT)
17 THE COURT: We're going to set the continuation
18 of this matter for the 9th and 10th of June. I'm
19 going to recess at this time and continue this matter
20 until June the 9th and 10th to commence at 9:30 on the
PETITIONER EXHIBIT 1 - LETTER TO ALVIN SCHAY
PETITIONER EXHIBIT 2 - LETTER TO INQUISITOR, INC.
PETITIONER EXHIBIT 3 - LETTER TO BARBARA FISHER
PETITIONER EXHIBIT 4 - LETTER TO EDWARD MALLETT
PETITIONER EXHIBIT 5 - LETTER TO BARBARA FISHER
PETITIONER EXHIBIT 6 - NOT OFFERED
PETITIONER EXHIBIT 7 - MOTION FOR ORDER TO PAY COURT REPORTER
PETITIONER EXHIBIT 8 - STATE OF SERVICES OF RICHARD 0FSHE
PETITIONER EXHIBIT 9 - LETTER TO D.W. GRIFFIS FROM B. RIDGE
PETITIONER EXHIBIT 10 (OFFER OF PROOF) BRENT TURVEY REPORT
PETITIONER EXHIBIT 11 - (OFFER OF PROOF) AFFIDAVIT OF NEAL H. HASKELL
PETITIONER EXHIBIT 12 (OFFER OF PROOF) AFFIDAVIT OF THOMAS DAVID
PETITIONER EXHIBIT 13 (OFFER OF PROOF) VITAE OF NEAL HASKELL
STATE OF ARKANSAS REPORTER'S CERTIFICATE SECOND JUDICIAL CIRCUIT I, Barbara J. Fisher, Official Court Reporter within and for the Second Judicial Circuit of the State of Arkansas, duly qualified, appointed and acting, do hereby certify that the foregoing pages of printed matter contain a true, correct and complete transcript of my stenographic notes taken in this cause in the Circuit Court of Craighead County, Arkansas, when the above-entitled cause was heard. IN WITNESS WHEREOF, I have hereunto set my hand on this 29th day of May, 1998. BARBARA J. FISHER CERTIFIED COURT REPORTER BARBARA J. FISHER ARKANSAS SUPREME COURT CERTIFIED COURT REPORTER CERT. # 49 Reporter's Costs: $682.00