MAY 5, 1998
IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
WESTERN DISTRICT STATE OF ARKANSAS PLAINTIFF VS. NO. CR-93-450A DAMIEN ECHOLS DEFENDANT HEARING ON RULE 37 PETITION JONESBORO, ARKANSAS MAY 5, 1998 APPEARANCES FOR THE STATE: BRENT DAVIS PROSECUTING ATTORNEY P.O. BOX 491 JONESBORO, AR 72403 DAVID ROBB TODD NEWTON ASST. ATTORNEYS GENERAL STATE CAPITOL LITTLE ROCK, AR 72201 FOR THE DEFENDANT: ALVIN SCHAY ATTORNEY AT LAW 217 WEST SECOND ST. LITTLE ROCK, AR 72201 EDWARD MALLETT MELISSA MARTIN ATTORNEYS AT LAW WAUGH DRIVE, SUITE 900 HOUSTON, TX 77007 BEFORE THE HONORABLE: DAVID BURNETT, CIRCUIT JUDGE BARBARA J. FISHER, C.C.R. OFFICIAL COURT REPORTER P. O. BOX 521 PARAGOULD, AE 72451-0521 (870)236-8034 INDEX 5/5/98 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 PETITIONER EXHIBITS PP. 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 3 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 17 stuff. 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 22 proceed? 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 4 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 5 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 15 table. 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 6 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 20 courtroom? 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. 7 1 THE COURT: All right, you'll have to go back to 2 the witness room. 3 (MR. SINOFSKY AND MR. BERLINGER LEAVING THE 4 COURTROOM) 5 THE COURT: Are there any other witnesses in the 6 courtroom? 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 19 you? 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? 8 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 9 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 5 presented. 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 13 consideration." 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 10 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 11 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 18 different. 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. 12 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 13 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 14 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 15 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 12 -- 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 21 for? 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. 16 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 17 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 18 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 24 objecting. 25 We couldn't find in the transcript where it was 19 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 19 saying? 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 20 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. 21 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 22 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. 23 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 24 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 4 concluded. 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 25 1 knows. So we set about attempting to be sure that we 2 had available to us the complete record of the 3 proceedings. 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 15 look. 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. 26 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." 27 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 28 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 22 transcript. 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 29 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 16 transcribed. 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. 30 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 21 request. 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 32 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 33 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 34 1 happened. 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. 35 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 36 1 here in Jonesboro, I thought that that would be the 2 most appropriate place. So it was moved the second 3 time. 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 25 reurged. 37 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 22 understanding? 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 38 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 39 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 25 pre-hearing. 40 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 6 probative. 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 22 petition. 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 41 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 42 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 43 1 the defendants that I was going to be here today and 2 that you could present your motion for continuance 3 today. 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 25 there. 44 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 21 all. 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 45 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. 46 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. 47 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 10 it? 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 15 witness. 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 48 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. 16 (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. 49 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 24 Burnett. 25 A. My name is Dan Stidham. 50 1 Q. How are you employed? 2 A. I'm a private attorney, and I have a practice in Paragould, 3 Arkansas. 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 17 county? 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? 51 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 5 time? 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 19 advice. 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 52 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 19 cases? 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? 53 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, 54 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? 55 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. 56 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 24 Paragould? 25 A. Yes. 57 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 58 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 15 Goodson? 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 20 penalty. 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 59 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. 12 Echols? 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 18 activity. 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. 60 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 13 not? 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 61 1 preside over the case? 2 A. There was a discussion among the defense lawyers and the 3 prosecutors. 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 8 down. 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 62 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 16 conclusion. 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. 63 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 64 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 11 times? 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 65 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 66 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 67 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 68 1 office together -- this was an informal, off-the-record 2 conference? 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 69 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 70 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 4 rendered. 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 71 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 10 do. 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 20 did. 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 72 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 73 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 74 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 75 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 16 admissible. 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. 76 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 22 along. 23 MR. MALLETT: I'll try to move quickly, your 24 Honor. 25 THE COURT: All right. 77 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 5 counsel. 6 Q. Why did you think they should consult with independent 7 counsel? 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. 78 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 79 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 4 expenses. 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 25 -- 80 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 9 relevance. 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, 81 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. 16 Misskelley. 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 82 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 20 provided. 21 BY THE WITNESS: 22 A. I hope I made myself clear, Mr. Mallett, regarding that 23 issue. 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 83 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? 84 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 15 Court. 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 85 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 86 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. 87 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? 88 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 89 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 5 evidence. 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 14 addressed. 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 91 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 92 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 3 family. 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 22 time? 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. 93 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 94 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? 95 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 6 o'clock. 7 (RECESS) 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 14 verdict. 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 21 testing? 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 96 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 97 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. 98 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 4 investigation? 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 18 Arkansas? 19 A. That's correct. 20 Q. And that was in his possession at the time of Mr. Echols' 21 trial? 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? 99 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 100 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 21 Rock. 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. 101 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 102 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, 103 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. 22 Davidson? 23 MR. MALLETT: Yes, sir. 24 THE COURT: Go ahead if you can stretch that -- 25 MR. DAVIS: Your Honor, our objection is that 104 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 20 investigation? 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 24 provided? 25 A. Yes, I have. 105 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 10 entomologist? 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 106 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 107 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 -- 108 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 109 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 110 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 19 evidence. 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. 111 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. 112 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 -- 113 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 114 1 -- it was just a bloody pulp, actually 2 through-and-through injuries to the left side of the 3 cheek. 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 115 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 8 invoked. 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) 116 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 16 then. 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 117 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 118 1 what his background is -- as to his findings under the 2 evidence. 3 And what is marked as Petitioner's Exhibit 12 is 4 the Affidavit of Thomas J. David, D.D.S., forensic 5 odontologist. 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 13 apparent. 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) 119 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 10 headphones. 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 19 hear. 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 120 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 14 COURTROOM) 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 121 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 14 did. 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 122 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: 9 EXAMINATION 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 21 picture? 22 A. Yes. 23 Q. Titled? 24 A. "Paradise Lost." 25 Q. You're seeking to make a second HBO movie? 123 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 13 witnesses. 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 25 recorded? 124 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 4 Byers? 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 125 1 unusual -- 2 Q. To have better quality sound of the words spoken in this 3 courtroom? 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? 126 1 A. No, it was not totally unexpected. 2 Q. Would you say it was consistent with a reasonable person's 3 expectations? 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 127 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 128 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 15 trial? 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 129 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? 130 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. 131 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 132 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 21 question. 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 133 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 134 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. 135 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 21 retained. 22 Q. Did you request funds before that and the Court turned you 23 down? 24 A. No. 25 Q. So you basically went to him and then after you had 136 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 14 Florida? 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 23 trial? 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 137 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 16 Wilkins. 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. 138 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, 6 correct? 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 139 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? 140 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 141 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 142 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 143 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 144 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 10 investigator? 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 145 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 6 conversation. 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 146 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 -- 147 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 12 all? 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 22 examiner? 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 148 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 8 long? 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 149 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 19 investigation? 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 150 1 truth? 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 151 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. 16 (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 25 audience? 152 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 153 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. 154 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 15 dollars? 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. 155 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 18 indigents. 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? 156 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 22 1993? 23 A. Yes, sir. 24 Q. In 1994 your practice as a public defender grew. You took 25 on another county? 157 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 4 County? 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 23 County? 24 A. In Lawrence County it was approximately twenty-five 25 thousand with no expenses. 158 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 15 month. 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 23 diminished. 24 Q. By '95. 25 A. Right. 159 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 160 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 5 case. 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? 161 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. 5 Echols? 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 11 judge? 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 162 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 12 expenses. 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? 163 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 10 County. 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 164 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 13 investigators? 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? 165 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 4 today. 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 166 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 7 experts? 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? 167 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. 168 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 22 go? 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 169 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 3 over. 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 15 here. 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? 170 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 171 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 172 1 reimbursement? 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 11 subpoena? 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 22 minute. 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 173 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 24 thousand. 25 Then I filed a Petition for Writ of Cert to the U.S. 174 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 14 anybody. 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 21 case? 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. 175 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. 176 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 13 appeal? 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 17 odontologist? 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 177 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 178 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 12 different. 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 179 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. 15 Echols? 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. 180 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? 181 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 4 appeal? 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 9 considerations? 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 19 together? 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 -- 182 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 21 level. 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 183 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 20 Moneypenny. 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. 184 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 6 sheets? 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 185 1 without walking over there, I bet they're pretty full, aren't 2 they. 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 8 hearing. 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. 186 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 187 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 11 County. 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? 188 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 13 one. 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 189 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 190 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 25 constitutional." 191 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 13 wrong? 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 -- 192 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, 193 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 18 County. 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 194 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 195 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 18 Arkansas? 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. 196 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 197 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? 198 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. 199 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 200 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, 201 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 23 question? 24 MR. MALLETT: Well, I saw everybody smile. Since 25 I'm from farther south, I don't quite understand it. 202 1 MR. DAVIS: (Unintelligible) 2 MR. MALLETT: The district attorney says to ask 3 around. 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 203 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 11 Constitution. 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 16 juror. 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 204 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. 205 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 -- 206 1 what did you see, what did you read, what did you 2 hear. 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. 14 (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 21 9th. 22 (ADJOURNMENT) 23 24 25 207 PETITIONER EXHIBIT 1 - LETTER TO ALVIN SCHAY 208 PETITIONER EXHIBIT 2 - LETTER TO INQUISITOR, INC. 209 PETITIONER EXHIBIT 3 - LETTER TO BARBARA FISHER 210 PETITIONER EXHIBIT 4 - LETTER TO EDWARD MALLETT 211 PETITIONER EXHIBIT 5 - LETTER TO BARBARA FISHER 212 PETITIONER EXHIBIT 6 - NOT OFFERED 213 PETITIONER EXHIBIT 7 - MOTION FOR ORDER TO PAY COURT REPORTER 214 PETITIONER EXHIBIT 8 - STATE OF SERVICES OF RICHARD 0FSHE 215 PETITIONER EXHIBIT 9 - LETTER TO D.W. GRIFFIS FROM B. RIDGE 216 PETITIONER EXHIBIT 10 (OFFER OF PROOF) BRENT TURVEY REPORT 217 PETITIONER EXHIBIT 11 - (OFFER OF PROOF) AFFIDAVIT OF NEAL H. HASKELL 218 PETITIONER EXHIBIT 12 (OFFER OF PROOF) AFFIDAVIT OF THOMAS DAVID 219 PETITIONER EXHIBIT 13 (OFFER OF PROOF) VITAE OF NEAL HASKELL 220 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
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