THE COURT: This is the State of Arkansas versus Jessie Lloyd Misskelley, Junior, Charles Jason Baldwin and Michael Damien Wayne Echols.

The cameras and still photography will have to


cease at this point. There's been an objection to the presence of the TV cameras and cameras in the courtroom so I'm going to have to ask you to leave. That may change at the time of the trial, but in the preliminary stages there's been an objection so you will have to move outside. That also means there's not going to be any tape recording of the proceedings.

For the record, the Court allowed the TV cameras into the courtroom prior to beginning any proceedings in order for them to obtain file footage and that the photography of the defendants and any objection to that was explicitly waived by the defendants.

MR. FORD: That's correct.

MR. FOGLEMAN: And over the State's objection.

THE COURT: The State objected to any. The Court felt that to allow them to obtain file footage and then be gone would benefit everyone.

The first motion the Court is going to take up is the motion with regard to payment of attorneys' fees. At least the issue as to where the responsibility for those payments lie. The Attorney General's Office is appearing, the County government is appearing, and I guess the defendant's attorneys aren't particularly interested other than you want to be paid. You're not here pro bono.


MR. FORD: That's correct, your Honor.

MR. PRICE: That's correct, your Honor.

MR. STIDHAM: The only comment I would like to make for the record is that this is the least of my concerns. My concern is for my client.

THE COURT: I certainly understand that. But it is of interest to the County and to the State. The way I understand it the issue is fairly simple. The general rule of law is that the counties are responsible for payment of indigent's attorney's fees up to a limit prior to July or June of 1993, and there was new legislation passed after State versus Independence County and your position from the State -- at least the A.G.'s Office -- is that you accept responsibility for payments of attorney's fees up to June 30th.

MS. HARBERG: June 30th. We will be glad to go first or second.

THE COURT: Go ahead then if you're ready.

MS. HARBERG: May it please the Court, the Attorney General has entered limited entry of appearance for the State. We come forward because the deputy prosecuting attorney had expressed a conflict in representing Crittenden County. The State concedes that it's responsible for attorney's fess that are


awarded by the Circuit Court that were for services rendered from the date of the appointments were made -- I believe that was sometime in June -- until July first, 1993. The State believes that services rendered after June 30th are the responsibility of the County and that is based on Act 1193 which contained an emergency clause which became effective as of that date.

The County may argue that the date of appointment rather than the date that the services were rendered may be the controlling factor, but the State is relying on Simmons versus Lockhart where a defense attorney had performed services both under an old federal statute and a new federal statute. Justice Arnold determined that from the time the attorney rendered services during the old act the attorney would get paid that way which was -- contained an hourly ceiling. When the new act became effective, the new attorney would get paid under that act which just said it had to be reasonable.

THE COURT: Can you tell me whether or not the new act explicitly repealed the act that was in effect in that Batesville case?

MS. HARBERG: Yes, sir, it is Section 1692 something. It was specifically repealed except for


the fund for trial expense assistance other than attorney's fees. That is still on the books.

THE COURT: Is there still that hundred thousand dollar limitation on it or the amount that they are appropriated?

MS. HARBERG: There was an appropriation made for this biennium that we are in now, and as of August 1st there was less than fifty-five thousand dollars in the fund for the entire state to cover both fees and --

THE COURT: What is the State's position on the extraordinary costs of the trial of this nature? Do you have a position on it any different than that that was expressed in the Independence County case?

MS. HARBERG: We believe that the Supreme Court has stated in State versus Campbell -- and I don't have the cite with me -- that it's an appropriate consideration for the circuit judge to look at the amount of government funds that are available in defense of indigents along with other usual factors to consider for the reasonableness of the attorney's fee. We are prepared to present evidence and testimony today if you would like on what would be a reasonable hourly rate.

I have brought the Executive Director of the Public Defender Commission with me today, and we can


present evidence if you would like that.

THE COURT: I hate to take up all my time on that, but limited testimony would be all right.


having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:



Q: Ms. Sallings, could you please state your name for the record?

A: Dee Dee Sallings.

Q: Is that S-A-L-L --

A: Yes. S-A-L-L-I-N-G-S.

Q: Where do you reside?

A: Little Rock, Arkansas.

Q: Give me a little bit about your education. Your degree in college was in what?

A: I have a Bachelor in Arts degree from Hendrix College. My degree was in psychology.

Q: You obtained your law degree in what year?

A: 1986. I obtained my law degree from the University of Arkansas Law School at Little Rock. I passed the bar exam that summer.

Q: While you were in law school, did you clerk anywhere?

A: I worked for Wilson and Engstrom, now Wilson, Engstrom, and


Dudley in Little Rock. Bill Wilson and Steve Engstrom.

Q: That was primarily your second and third year of law school?

A: That was for three years. All through law school.

Q: After law school, where did you work?

A: I worked for Wilson and Engstrom until September of 1986 when I began working at the public defender's office in Pulaski County.

Q: What type of work did you do?

A: When I was with the Pulaski County Public Defender's Office, I was in charge of all the capital murder cases for Pulaski County. I was also in charge of supervising all of the appellate work, and I had cases other than capital cases. But every capital case that came through was my responsibility.

Q: In approximately how many capital cases did you work on?

A: When I was in the public defender's office, I tried -- well, actual trials for death cases I tried eleven. After I left the public defender's office, I had a brief time at the A.G.'s Office. Then I went to the new Federal Resource Center that assists in capital murder cases, and I tried four there. So I have tried fifteen or sixteen.

Those are actual trials with death cases. As far as preparation for cases that did not go to trial -- that ended in something short of a death trial, I have done probably twenty of those.


Q: So you have done actually twenty cases where the death penalty was sought originally and then later wasn't?

A: Right. In addition to the others.

Q: Did you assist in cases outside of Pulaski County?

A: At the Arkansas Death Penalty Resource Center I assisted in death cases throughout the State.

Q: Would those include trials --

THE COURT: That's enough on her experience.


Q: Tell me what type of involvement, preparation, investigation it takes for a capital case?

A: A lot of it depends on the complexity, obviously, of the case. I would say a person like myself who has tried a lot of cases would require perhaps less time to prepare for a case. A person who has never tried a case is going to have to do a lot of research and background in investigation and that sort of thing just on issues, just to narrow down their issues. In my experience the cases I tried -- the more complex cases in Pulaski County -- I would say I spent eight hundred to a thousand hours working up the case, and that's including all the way through trial.

In a local case -- it's my understanding in this case the witnesses are local. The victims are local. You're not going to have as much travel time finding your witnesses so I would say your hours might be less.


But if you have never tried a capital case, then your hours are going to be more extensive in that there's a lot of things you don't know that you have got to learn.

Q: Based on your knowledge of criminal law and your experience in participating in almost twenty capital cases, how much would you charge if you were retained in the private sector as a defense attorney?

A: Again, a lot of that goes along with my experience. If I personally were retained in a private case, I would say a reasonable fee would be 70, 75 dollars an hour because of the number of hours you're going to be billing. It's not going to be like you work thirty hours and you are through. The number of hours times seventy-five dollars an hour would be significant. When I first started, I don't think I would have been worth that much because I would waste a lot of time doing things that didn't lead anywhere.

Q: If you didn't have the education you have with your psychology degree and you didn't have the background in criminal law and your experience in trying capital cases, what would you charge then?

A: I would say thirty to forty dollars an hour, something like that.

Q: When you first started working in the public defender's office in Pulaski County, were you making thirty dollars an hour?


A: No. We were paid a flat salary, and I think based upon a forty hour week were were paid something like eighteen dollars an hour. I don't know exactly, but it was somewhere around there.



Q: Miss Sallings, is the federal habeas corpus rate for death penalty cases a hundred and twenty-five dollars an hour?

A: I do not know because I have not been appointed in federal court. I only worked at the resource center.

Q: You're familiar with the CJA, the act that pays for federal appointed lawyers?

A: Yes.

Q: Normally in Arkansas that pays forty dollars out of court and sixty dollars in court?

A: Yes.

Q: You are not aware if it is a hundred and twenty-five dollars an hour for death cases?

A: I'm not aware.

Q: Has Crittenden County been certified by the Public Defender Commission yet?

A: We have just come in existence so we have not done so yet. I would, if I may add, that our office is available for resources and assistance, but I just started September first. So we're fledgling at this time.

Q: Is part of your office -- if your office would have been in


place back in June, are some of your lawyers in your office actually appointed to defend defendants in capital murder cases throughout Arkansas?

A: Our office is set up to do that. At this point my office is me and one other lawyer. So at this point we're not set up to do that. Ultimately and very soon, hopefully, we will be.



Q: In these number of hours that you indicated that you worked preparing a case for trial, did you have someone in your -- who worked at the public defender office or the other organizations you mentioned that did investigative work and background work?

A: At the Death Penalty Resource Center we had an investigator. At the public defender's office we had an investigator who was essentially a subpoena server. In a death case I would not feel comfortable delegating the responsibility of investigating and working at mitigation to anyone else. So no, I did it all myself, and I think that's essential, personally.



Q: You said that your office would be available to serve as a resource. Could you expand on what you mean by that?

A: As far as my knowledge, doing research, helping with motions, helping work up mitigation, helping work up


instructions -- short of coming and actually trying it we can help in any way.

Q: Would that include help in preparing motions?

A: Right.

THE COURT: I don't think they need any help on motions.


A: As far as working out voir dire questions and making sure the record was preserved for purposes of appeal, if it gets to that, we would be available for that.



having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:



Q: Will you please state your name?

A: Tom Montgomery.

Q: I know you have been with the public defender's office in Crittenden County for a long time. Could you tell me how long?

A: Almost seventeen years.

Q: Did you have anybody call and volunteer to represent --

A: Sixteen years. I'm sorry.

Q: Okay. Did you have anybody call you and volunteer to represent any of the three defendants in this case?


A: I talked to Mr. Ford and I talked to Mr. Price.

Q: Did you call them?

A: No. They called me.

Q: Did they indicate they wanted to take the case?

A: They indicated they would be willing to be appointed if there was a conflict.

Q: And you have stated that you have a conflict for representing all three defendants?

A: That's correct.

THE COURT: Did you have a conflict to anyone individually or three of them specifically?

THE WITNESS: I have had a conflict on probably one more than the others.

THE COURT: Is there any reason why you couldn't have represented one or two?

MR. MONTGOMERY: I don't know. I made that information known to the municipal judge and had assumed when we went to the bond hearing that we would probably be appointed to one of them, but the judge just felt that the conflict I had would carry over to the others and didn't feel that I should be appointed on any of them.

When I talked to Mr. Ford and Mr. Price, I assumed that my office would be appointed to represent one of the defendants and only one.


THE COURT: Are you saying that you had a personal conflict with one of those defendants?

THE WITNESS: Yes, your Honor.

THE COURT: Was there any reason why members of your office could not have represented one or more of them? The reason I ask this is because the issue is whether or not Crittenden County is going to bear the burden of appointed counsel outside of the public defender's office, and that is the reason the question is pertinent.

MR. MONTGOMERY: I understand, your Honor. Judge, it wasn't my call. The way I saw the case when it first came to the public, was that they were all going to need court appointed lawyers and the question was can my office handle all three. The nature of the offense -- I didn't see any plausible way -- the appearance of conflict was going to be there. My office could probably represent no more than one defendant out of the three anyway. So two lawyers were going to have to be appointed.

The question became which one could we represent if any, and I made that information all known to the municipal judge, and he felt that I shouldn't -- or my office shouldn't represent any of them.

THE COURT: All right.



Q: Did you reach any kind of agreement with these defense attorneys as t how they would get paid or what the amount would be?

A: I discussed with Mr. Ford and Mr. Price the -- I wasn't certain. Of course, I had no authority to contract necessarily with them either, but speaking on behalf of the County I told them if the County was going to have pay for this, if we could try to reach an agreement on a fee cap that they might be agreeable to accept. And as best I remember the agreement was a seventy-five dollar fee cap to be billed out. And I don't remember -- fifty dollars an hour sticks in my mind, but I may be wrong on that. I'll defer to the other attorneys on the amounts on that.

But they were going to bill out seventy-five hundred dollars worth of fees. That would be the cap. Then if their time exceeded fifteen thousand dollars worth of services, that they would have the right to reapply to the judge for additional compensation.

So it was a little unusual. I have got no experience in doing this so that seemed to be what we had agreed upon -- the two attorneys -- Mr. Price and Mr. Ford and myself.

Q: That was if the County was responsible for payment. Now, what if the State was responsible? Did y'all discuss that?

A: We discussed that and I told them I had no authority to


negotiate on behalf of the State. I didn't do that for the State and I think they understood that, that my agreement was not on behalf of the State.

Q: What is the normal procedure -- does Crittenden County have a list of volunteers for people in conflict type situations?

A: I really can't tell you. The Circuit Court Clerk keeps some type of list of persons that actively participate or handle criminal cases and if we don't have attorneys willing to take cases, then they are assigned usually out of the pool of lawyers that handle criminal cases. We haven't done the -- effective July one like the law indicates that you maintain some list of people. It hasn't been that formal as far as I know.

Q: Do you know if Crittenden County has passed an ordinance to raise court costs yet pursuant to Act 1193?

A: Yes. They just did that last week.

Q: Were you acting with Crittenden County's authority when you made this fee cap agreement?

A: I had discussed it with Brian Williams and with Joe Rogers, the County attorney, and they had approved it. In my opinion they had given me authority to enter that agreement with these attorneys.



Q: Did you ever talk to Mr. Crow or myself about this issue?

A: No, sir.




Q: Don't you recall that it was the terms of our agreement that the seventy-five hundred fee cap was if it was to be paid by the public defender budget as opposed to the county at large?

A: Ah, to be honest with you I didn't recall that specifically. It was my understanding that it was going to be paid out of the public defender budget.

Q: Were you aware of the current status of the law on June 4th when these appointments were made that it was the State of Arkansas who was responsible for paying them based upon the decisions of the Supreme Court?

A: That was my opinion at that time.

Q: So at the time we entered into this agreement it was the understanding that the State of Arkansas would be responsible but if for one reason or another the County was, this was a back-up agreement?

A: That's correct.

Q: And there was no fee cap discussed when the State was responsible as of the date of that appointment. Is that correct?

A: To make sure my answer is correct, no fee cap with regard to the State. The fee cap was only discussed with regard to the County.

Q: Didn't you and I discuss that in the event the State was


responsible to pay, which we felt that they were, that we -- it was your opinion we could get whatever the Court would tell us was reasonable?

A: We discussed that I had no authority, and we were not making any agreement on behalf of the State. That's correct.



Q: Prior to the murders, do you recall having another conversation with myself concerning conflicts in general in the Crittenden County office and also the Craighead County office?

A: Yes, sir, I believe so.

Q: As a matter of fact, I'm also parttime public defender over in Jonesboro.

A: That's correct.

Q: Do you recall at that time we discussed -- we didn't know how our office would operate under conflicts that would arise if the new act -- when the new act came into effect?

A: That's correct.

Q: Are you aware that the new act states that in the event of a conflict that public defenders from other counties or private attorneys should be appointed?

A: Yes, I understand that.

Q: Are you also aware that the act does not have any caps on any fees on lawyers that are appointed?

A: You're talking about Act 1193?


Q: Right.

A: That's my understanding.



Q: Mr. Montgomery, I'm Scott Davidson. Have we ever discussed this matter?

A: Not to my knowledge.

Q: In fact we've probably never talked, have we?

A: I don't believe so. Nice to meet you.

Q: Nice to meet you.

THE COURT: Was Judge Goodson made aware of these discussions? Was Judge Goodson made aware of it at the time he made the appointments that there had been some negotiation or conversation, at minimum, with regard to compensation for appointed counsel?

THE WITNESS: I wasn't there so I don't know.



Q: Mr. Montgomery, you have served as public defender for seventeen years?

A: Sixteen years. I corrected it.

Q: The public defender's office prior to Act 1193 was funded by various court costs collected through our court systems. Is that correct?

A: That's correct.


Q: And I believe at the time we recently -- within the last week or so the Quorum Court passed an ordinance pursuant to state statute to collect fourteen dollars maximum costs per case?

A: Depending on the type of case.

Q: Ten dollars maximum costs on all cases and four dollars costs on criminal cases?

A: I believe so.

Q: Prior to that time, the County had actually been collecting -- under the old statutes -- had been collecting sixteen dollars, had they not, for the operation of the public defender's office on court costs?

A: Again, depending on the type of case. I'm not sure, but I think it was something like that.

Q: For instance, this year what was the budget for your office?

A: I'm going to say it was approximately a hundred and eighty thousand dollars.

Q: How much -- well, let's go back to last year. Do you recall how much the County raised in costs through the enactment of these various court costs that they were authorized to enact?

A: I don't know. The reason I say that -- I don't handle the revenue side of it. It is generated and not touched by my office. These funds are dedicated so I don't have any reason to be concerned unless I'm notified that there is a shortage.


Q: Do you know how much was actually paid by the County for court appointed attorneys other than the public defender office?

A: No. I don't know that.

THE COURT: Do you have those figures, Mr. Rogers?

MR. ROGERS: No, sir. I can get them through Judge Williams. I don't have them with me.

THE COURT: Do you know whether or not the amount collected exceeded the budget for the public defender's office?

MR. ROGERS: I do not know that, your Honor.


Q: You don't know how much was spent for court appointed attorneys in 1992?

A: No. Let me tell you why. Throughout the history of the public defender we have had a budgetary item -- a line item -- appropriated for court appointed attorneys. It's been in the neighborhood of twenty-five hundred dollars. It has never been used. Apparently the County was paying for court appointed attorneys out of the Circuit Court budget until this year or maybe even last year and I think this year they had already exceeded the twenty-five hundred dollars.

BY MR. ROGERS: Mr. Montgomery doesn't appear to have those figures available. I think they should be made available for the record if I might.


THE COURT: You can add them as an affidavit of the County Judge or Treasurer.


THE COURT: Does anyone else have anything to say on this issue?

MR. ROGERS: Yes, your Honor. I'd like to respond to the legal argument.

THE COURT: All right. Y'all be brief because I'm going to ask you to each file a detailed brief, and I recognize the imposition of the new law of the last legislature might be a thorny issue for all of you to deal with.

MR. ROGERS: Your Honor, I'll be brief. The Court is more aware than probably any of us here the status of the law prior to the enactment of Act 1193. There are a series of cases that made their way through the lower courts into the State Supreme Court. There's the State versus Post case. Dillon versus State, State versus Independence County.

THE COURT: I'm familiar with that one.

MR. ROGERS: You're familiar with all those cases. Your Honor, basically as the Court is very well aware, there was a void created in the law because of the ruling that the fee cap was unconstitutional, and it is my understanding that


under these series of cases we've talked about the responsibility was primarily on the State in view of the void that had been created. I think it has been established by statements of counsel, but I do want to make it clear that the appointment date of these gentlemen who were appointed to represent these various defendants was June 4th. Am I correct about that?

MR. PRICE: Correct. So stipulated.

MR. FORD: I was appointed on 6-4. I think the other attorneys were not appointed until the following Monday morning, June 7th.

MR. PRICE: That's correct.

MR. FORD: I was the only attorney still on board that was appointed at the municipal court hearing.

MR. STIDHAM: I believe that's correct.

MR. ROGERS: Is there any objection to that stipulation for the record?

MS. HARBERG: No objection.

MR. ROGERS: In view of that stipulation there's no dispute but that all of these attorneys were appointed prior to the effective date of Act 1193 which I am advised was July the first of this year since it did have an emergency clause.

Your Honor, the Court is well aware that the law


does not apply retroactively unless it specifically so states and if it does so state, there may be some constitutional implications to that. I have a series of cases that I will cite in my brief, but I would want to bring them to the attention of the Court.

There's a Court of Appeals case, 777 Southwest 2d 620; Arkansas State Police versus Welch. Reading from the headnotes, "Changes in statutes relating to vested rights are characterized as substantive and require application of the law as it existed at the time" -- this was a comp case -- "at the time the individual sustained a compensable injury."

Union National Bank versus Barnhart, 823 Southwest 2d 878. "All statutes are to be construed as having only a prospective operation unless it is the purpose and intent of the legislation is to give them a retroactive effect and it is expressly declared or necessarily implied by the language used."

Your Honor, I would make that point because under the act obviously these gentlemen had already been appointed prior to the effective date of the act, and the act itself they have cited -- from the two sections that I hurriedly looking through it -- there's one in Section Six, Subparagraph (f) it says, "Appointed" -- I emphasize appointed -- "private


attorneys shall be paid reasonable fees and compensation for expenses by the County where the crime was committed."

Section Eight, "When private attorneys from another area are appointed to represent an indigent person, the attorney or trial public defender shall be paid by the County where the crime was committed." The emphasis is on appointed, your Honor.

These gentlemen were all appointed prior to the effective date of this act. It is just like the legislature passing a law July first, '93. Therefore, the county was not responsible. That was not the state of the law at that time. It was the responsibility of the State, and we will make that point in our brief.

THE COURT: Do you want to respond?

MS. HARBERG: Short reply, your Honor. First of all, the State is not asking that the law be applied retroactively at all. We're only asking that the statute be applied at its effective date which was


July first. The emergency clause is very clear. The General Assembly of this state said in its emergency clause that State versus Post has created a great uncertainty regarding the payment of legal fees and expenses, and delay -- that delay -- that uncertainty should not go on, basically is what they are saying.

It is true that the sections say "appoint" but I believe that this act is mandatory in that this Circuit Court needs to reappoint these attorneys pursuant to Act 1193 in order for them to be official, and at that time they would be appointed under the new act and the Eighth Circuit Court of Appeals case that I cited in my memorandum specifically states that the Court did this nunc pro tunc. Justice Arnold reappointed them under the new act so they would benefit from everything it has to offer which is resources from the Public Defender Commission. There's benefits that go with this new act also.

THE COURT: Again, tell me the status of those extraordinary funds. You say there's still fifty-five thousand dollars available?

MS. HARBERG: No, your Honor. The extraordinary funds have been spent. That extra two hundred thousand dollars that the legislature appropriated this last session. It's gone.


THE COURT: That was used to pay the Independence County bill.

MS. HARBERG: That and some other counties, your Honor, but it is gone.

THE COURT: There's no state funds available to cases of extreme expense to individual counties.

MS. HARBERG: The legislature would have to go back into session --

THE COURT: Is the act still --

MS. HARBERG: The act --

THE COURT: That portion of the act was not repealed by the new act?

MS. HARBERG: It was.

THE COURT: It was repealed.

MS. HARBERG: There was a portion of the act dealing with trial expense assistance other than attorneys fees. That portion from the way it looks like it is interpreted in the repeal clause -- that fund is still available.

THE COURT: Is there anything in that fund?

MS. HARBERG: It's the -- it's -- no. It is the fifty thousand dollars. It is all lumped together.

THE COURT: The counties still have to apply for that after the conclusion of the case by certifying their expenses and so forth.


MS. HARBERG: Act 1193 does allow for interim attorney's fees. I don't know about interim expenses. I don't know about that.

THE COURT: Mr. Rogers, you want to file a brief and would the A.G.'s Office or any of the involved attorneys be interested in filing a brief on this matter because I'm going to take it under advisement. Obviously, the attorneys are going to be paid reasonable fees. I'm not prepared at this time and may not be prepared until the end of the case to decide how it should be divided. But I would like detailed briefs, particularly on if there is any corollary position from other states where this might have come up.

The Simmons case that you mentioned on that drug fund is kind of a close parallel. Mr. Rogers, you have not done your brief?

MR. ROGERS: No, your Honor.

THE COURT: I'll give you thirty days to brief it, and if y'all want to file briefs, you can, too. I'll reserve any ruling on that at this time. You're free to go.

MR. ROGERS: Thank you, your Honor.

MS. HARBERG: Thank you, your Honor.

MR. FOGLEMAN: The State had two motions that it


filed --

THE COURT: Let me make one other point on that. I'm going to direct the appointed attorneys to prepare their expense records, their statement for services rendered including detailed explanation of your hours from the day of your appointment through today with specific emphasis on the date of appointment through July one, and you can attach that to your brief or file that with the Court just as soon as possible.

MS. HARBERG: Your Honor, if the State is going to be made responsible for the entire amount, we request that time sheets be submitted weekly.

THE COURT: I'm asking them to submit time sheets through today and if I -- I don't want to dwell on how the lawyers are going to be paid until the case is over with. If I decide that earlier and I put the burden totally on the State, I will require weekly time sheets.

MR. STIDHAM: Your Honor, you're asking us to file time sheets up to --

THE COURT: Up until today with the Court.

MR. STIDHAM: In the court file?

THE COURT: With the Court. With the Court. That's me.

MR. FOGLEMAN: The first was a motion by the


State. One additional motion for discovery with regard to Damien Echols, asking for specimens of his handwriting. We did not have that in our original motion for discovery.

MR. DAVIDSON: We have talked to Mr. Fogleman about this, and if he wants to prepare a stipulation, I think I know the writings that he's talking about. We won't have any problems with stipulating that those are Mr. Echols' writing, and I see no reason to get a handwriting sample if it's those specific things that we talked about.

THE COURT: I have no idea. I don't know what you're talking about.

MR. DAVIDSON: That would save the State time and money with a handwriting expert.

MR. FOGLEMAN: If we are talking about the same thing, that will be fine.

THE COURT: I don't know whether y'all are or not.

MR. DAVIDSON: We will get together on that.

MR. FOGLEMAN: If for some reason we're not talking about the same thing, we would ask for an order just in case we are not.

THE COURT: Show him what you want to stipulate to. If it's what you agreed to stipulate to as being


Mr. Echols' writings, then it will be stipulated. If it is something in addition to that or greater than that, you're going to have to bring it up to me again. I probably would be inclined to grant that order because that is in the nature of discoverable information so I probably would grant it anyway.

MR. DAVIDSON: Your Honor, we are certainly not agreeing or stipulating that these items could be introduced. We are just saying we will stipulate to the fact that these are his handwritings.

THE COURT: I understand that.

MR. DAVIDSON: Those things will come up --

THE COURT: Subject to a suppression hearing or something. You are just stipulating that they are his writings, not their admissibility.

MR. FOGLEMAN: I hate to delay it. If the issue is before the Court -- and I think we'll be able to agree to it -- but if there's some reason we're not able to, I hate to have to come back again.

THE COURT: I grant the motion.

MR. FOGLEMAN: Do you have any problem with him granting the motion in case we can't agree?

MR. PRICE: No. We don't have any objection.

MR. DAVIDSON: I don't have any problems with it. I just think it's a waste of time and money.


MR. FOGLEMAN: I have the paper signed -- well, not signed --

THE COURT: The motion will be granted. Whether or not you actually employ someone to compare handwriting will depend upon your stipulation.

MR. PRICE: That's fine.

MR. FOGLEMAN: Your Honor, the second motion that I don't think will take any time is the motion for joinder of offenses as opposed to a motion for joinder of defendants. As the Court is aware, it's got the three case files before him.

Each victim is in a separate case file and we are asking that all three victims' cases be tried in one trial, whether it is one trial for one defendant or one trial for each defendant or one trial for all defendants, we are asking that all the offenses be joined.

MR. FORD: We have no objection.

MR. STIDHAM: No objection.

MR. PRICE: No objection.

THE COURT: All right. It will be granted without objection.


THE COURT: All right, what do you want to take up next -- the change of venue?


MR. PRICE: Your Honor, if the Court grants our motion to sever the cases, then whichever case is tried first, the second or third attorneys may be requesting a change of venue maybe to some other place other than where the first trial is held.

THE COURT: Well, I don't think there's -- even though the statute seems to imply that you can only have one change of venue, I don't think that is the law. I think you can have more than one. So if the issue arose and was necessary, I would be inclined to change the venue the second time -- if it's necessary and if I change it the first time. Let's take it up first. I'm ready.

MR. PRICE: One preliminary matter I'd like to bring up at this time. On behalf of Mr. Echols we would ask that any arguments made by the attorneys for Mr. Baldwin or the attorneys for Mr. Misskelley that we adopt those by reference so that we don't have to stand up every time co-counsel make an argument and agree with that. Obviously, if there's anything specific we object to what they say -- I think that way it might cut down on the record.

THE COURT: You have all three filed motions for change of venue.

MR. PRICE: I mean as far as every issue that


will be taken up today, Judge.

THE COURT: Yes. That makes sense to me. Who wants to go first?

MR. CROW: May it please the Court, I'm the counsel for Jessie Lloyd Misskelley, Junior. As the Court is well aware, Mr. Misskelley has been charged with three counts of capital murder. We have filed a motion for change of venue and an amended motion for change of venue.

In our original motion we simply asked for it to be changed outside of Crittenden County, and in our amended motion we asked for it to not only be outside of Crittenden County but also outside the judicial district. In that motion we also asked the Court to rule the Arkansas change of venue law unconstitutional.

First, your Honor, I will address simply moving out of Crittenden County. First and foremost, this is absolutely necessary due to the mass attention being paid by the media to this case. Crittenden County is extremely close to Memphis, Tennessee. The Memphis media market is pervasive in this area. In the attachments to our brief we have coverage areas from two TV stations and also the Memphis Commercial Appeal and in every one of those Crittenden County is in the


-- is either in the metro section -- considered metro to Memphis, Tennessee, or is in the area of dominant influence. Some of the maps include Crittenden County as metro Memphis.

The amount of coverage produced by the TV stations the Court is aware of, and we also have attached a sample of the newspaper articles to our motion.

The Memphis Commercial Appeal has gone as far as to print the alleged confession -- alleged statement -- of Mr. Misskelley. That was published out all through Crittenden County, and we will later argue was also published all through the Second Judicial District.

The amount of coverage by all accounts is the most of any of the parties in this case has ever seen. It is also very similar to the amount of coverage in the type of coverage that was in the Swindler case. That case dealt with not only moving the change of venue but changing outside the judicial district, and I'll refer back to these arguments when I get to that point, your Honor.

In the Swindler case alone the type of coverage that was discussed was almost -- it could have been coming from this case. Headline news from the


beginning covered the victim's family's history, the victims' history, the defendants' families, the defendants' family history. There were -- reading from the Chief Justice who wrote the concurring opinion in Swindler 1 opinion it almost felt like I was reading an opinion that was going to be held down in this case, your Honor.

There's also extensive coverage by radio. As the Court can see this morning when it walked into Court there was the issue of whether or not to let the press in. TV stations were here from all the Memphis stations. The radio stations are here. Newspapers are here. In addition to the Memphis Commercial Appeal there is the local West Memphis paper which has given extensive, extensive, extensive coverage to this case. There's absolutely, I would venture to say, there's not a person in Crittenden County who hasn't heard about this case and not a person in Crittenden County who hasn't formed an opinion on this case.

In addition we attached affidavits from several individuals from Crittenden County who stated there was no way that the defendant could receive a fair trial in Crittenden County.

THE COURT: I have read your brief in detail.

MR. CROW: I won't repeat, your Honor. Next I


would turn to moving outside the district itself. I would point out to the Court again the similarities in the Swindler case and this case. The concurring opinion by the Chief Justice struck the nail on the head exactly. In lieu of repeating that, your Honor, I would point out some of his statements that are so similar to this case.

THE COURT: I think that was a two county judicial district, Crawford County and Sebastian County, and they moved it to an adjoining county. I don't remember. Was it --

MR. CROW: In Swindler 1 they moved it outside.

THE COURT: I think it was Stone County.

MR. PRICE: Scott County.

MR. CROW: It is Scott County. Certainly that district is a two county district. I used to practice there. The connection between Memphis and all of the Second Judicial District and Fort Smith and Van Buren is very similar. The TV stations are the only stations the people receive.

THE COURT: I have read all the affidavits that were submitted with your brief including your brief on both points.

MR. CROW: Thank you, your Honor. As far as the judicial district is concerned, in addition to what


we've already talked about in Crittenden County there's also coverage from Channel Eight in Jonesboro. The Jonesboro Sun has given extensive play to this. The Paragould Daily Press -- all the other papers in this district have given this extensive press.

As we were searching the county trying to obtain signatures for people on the affidavits, we were constantly confronted with people stating, "They can't get a fair trial but I'm not going to sign them because I want the blankety-blank to fry." That's the kind of attitude we have in this district, your Honor. Even people who didn't think they couldn't get a fair trial would not sign the affidavits. Again, I would defer mostly to the brief and not add anything there.

Finally, as the change of venue being held unconstitutional -- one more point, your Honor. I believe in Swindler 1 the Court not only gave implicit authority for the Court to move it outside the judicial district, it ordered the Court to do so. The Arkansas Supreme Court gave explicit instructions that it could be moved outside the district. I don't feel after Swindler 1 -- I don't feel there can be any issue as to whether this Court has authority to do so.

Finally, as to the change of venue statute being held unconstitutional, first we would argue that the


difference between Swindler 1 and the exact wording of the statute -- there's no choice but to go unconstitutional. Swindler 1 said, "Judge, move it outside." The Court ordered moved it outside. Found it reversible error not to remove it outside. Yet, the statute remains.

Two, we only get one move. The Court has already addressed that issue. I understand the Court's position on that and I'm happy to hear that. If the statute were to be read on its face, you only get one move. If this Court should move venue to, say Greene County, and at then some later point it became unable to get a fair trial, we would not be able to ask to move it again. I realize that the Court from its previous comments takes a different position on that, and I'm happy to hear that, but the statute on its face is unconstitutional in that factor.

THE COURT: The Court held in the Swindler case that the statute and the unconstitutional provision on its face was not unconstitutional.

MR. CROW: Yes, your Honor.

MR. PRICE: Judge, I'd like to make two points. I would ask that anyone connected with the news media please stand up just so the Court can take judicial notice of the amount of coverage. The Court can take


a look and see the amount of people that are here.


THE COURT: You think they'd be in Little Rock, Fort Smith or Texarkana?

MR. PRICE: I think it's certainly more in Critt --

THE COURT: I think the same people would probably be there.

MR. PRICE: That's probably true, Judge.

THE COURT: Or Los Angeles or New York City.

MR. PRICE: Judge, the only other -- I join in the arguments made by Mr. Crow and besides the matters put forth in the attorneys' briefs I would like to remind the Court I think we do have the additional factor since the State of Arkansas -- not the prosecuting attorney's office -- but the State has made the argument that Crittenden County should pay the attorney's fees in this matter, I think that is one other factor that would weigh in the minds of the prospective jurors if this case is held here in Crittenden County and I think that's one other factor that should be considered in changing the venue.

THE COURT: I think that's a good one. Anybody else?

MR. FORD: I just want to make sure that it's


argued specifically on behalf of the defendant in addition to the motion and brief which stands on its face and I assume the Court has read the attached affidavits as required by statute have been submitted on behalf of Mr. Baldwin.

It is of a concern to me what was filed in an accompanying motion and that is the concern I had initially about changing it more than one time and changing -- if you changed it now and you moved us to County "X" and then we were all three to be tried there. We know we are going to have two trials, conceivably three trials. That second trial may be so prejudiced by the first trial that it makes it more difficult for who goes second. I know that's been a concern of Mr. Price and Mr. Davidson.

I want to state on the record that the Court has ruled that he will allow more than one change of venue in the event the first one is granted and in the event circumstances were to allow -- we would be allowed to present additional evidence.

By doing that, your Honor, arguing for a change of venue outside of Crittenden County -- I want to specifically reserve the opportunity on behalf of Mr. Baldwin as trial approaches and even up and through the voir dire process as is contemplated by the


statute -- reserve the opportunity to move for an additional change of venue. I'm assuming at this time the Court will grant out motion. If the Court moves it to Craighead County and then we were to for one reason or another find that that would be unavailable as a fair forum, that we would also be able to reserve our argument to challenge the constitutionality of a move only within side the district and to argue for a move outside the district.

So I by only at this time requesting a change outside of Crittenden County do not want to waive an opportunity to argue for a second change of venue within the district or for a second, third or fourth change outside the district.

THE COURT: I understand what you're saying. The State?

MR. DAVIS: Yes, your Honor. If I may just stand here and address the Court?

THE COURT: That's fine.

MR. DAVIS: Your Honor, what has been argued by defense counsel is that there has been a great deal of media coverage and that people in the Crittenden County area are aware of this case. Certainly, we would not dispute that, and I think their affidavits correctly state that.


However, what is required for this case is to be changed -- and I think the law -- sixteen eighty-eight two oh one is entitled to removal for prejudice, and they have to establish through affidavits that their clients have been prejudiced to the point that they cannot have a fair trial.

The affidavits presented in behalf of Mr. Misskelley are conclusionary in nature in that they state this is the opinion of the individual. They do not list anything as far as the background of the person to know or have a basis for a county-wide opinion as to the state of mind of various individuals.

We have with us affidavits from nineteen individuals in Crittenden County, and it states specifically what their backgrounds are, their employment and in each of those instances although they are aware of the charges against these three defendants, aware that the murders did take place, that they are in a position to know that county wide the state of mind of people of Crittenden County is such that they can give the defendants a fair trial.

It is also the State's position that media coverage alone -- extensive media coverage -- does not prevent the defendants from having a fair trial nor does it


give them a right to a change of venue. I think the Court is aware of the Ward case which was tried in Crittenden County; in fact, tried twice and in both instances this Court presided over those cases, and there was no difficulty whatsoever in picking a jury for either of those two cases. And those were cases which Mr. Fogleman advises me received press from coast to coast because of the age of the defendant.

It is a situation where there has been a great deal of publicity but strictly for that reason is no reason to change the venue. It's going to be -- there has been nothing listed nor stated in the affidavits presented by the defendants or filed with this Court to indicate that these defendants cannot receive a fair trial in Crittenden County.

In fact the affidavits we submit are quite to the contrary. It is the State's position -- and frankly the State doesn't want to argue changing this matter outside the district because it's the State's position at this point that the proper place for this trial is Crittenden County, and there's been no showing that the venue should be changed elsewhere.

MR. FOGLEMAN: Your Honor, I have one case I want to submit, MacArthur versus State, about burden of proof is on the defendants, and they must be able to


show that the witnesses have general knowledge as to the state of mind of the entire county.

MR. STIDHAM: Your Honor, I would like to point out to the Court that in the attachments to our motion and our brief there's been numerous articles that have been reported in newspapers, and I would also point out to the Court that there have been numerous TV reports from some members of the media who have basically preyed upon my client and his family and went out and dug up stuff that is completely and totally irrelevant to the case and that in and of itself would seem to me to point out to the Court that this matter cannot be tried to Crittenden County.

I think it probably would be appropriate for the Court to rule specifically on each aspect of our motion in that we are asking the Court to declare the statute unconstitutional because it only allows for a change of venue within the district and that it only allows for one change of venue.

If the Court would address that issue and then give counsel the right to ask for a change of venue. If we end up in Greene County, Clay County, Mississippi County -- wherever -- if we get over there and during voir dire or during any process we discover that it is going to be impossible for a fair trial to


be granted there, we'd like to reserve that right to ask that again. For the prosecutor to stand up and say, well, we've got nineteen affidavits --

THE COURT: Gentlemen, I'm not going to count affidavits. I understand the motion the State made, and I understand your motion, and counting affidavits is not going to be something I'm going to do so there's no need to dwell on that.

MR. CROW: For the record, too, I'd like to -- Mr. Misskelley would join in the motions of the other defendants and any affidavits they have filed will stand for our case, too.

MR. DAVIS: If I might point out one other thing I forgot to mention. It's my understanding -- and I haven't seen the affidavits filed by Mr. Baldwin's attorneys -- but those affidavits are all from the Marion, West Memphis vicinity, and part of the proof -- it is their motion, it is their burden of proof to show that their client can't get a fair trial --

THE COURT: I think Mr. Crow and Mr. Stidham and Mr. Price's motions also included affidavits of at least one person from all nine courthouse areas, all six counties. One or two of them were defense lawyers.

MR. DAVIS: We certainly have affidavits in


regard to that. I wasn't going to address outside of the Second Judicial District until a later time, but I don't think their affidavits cover a true cross section or cover the total communities located in Crittenden County which is something that may not be required under statute but if they're going to meet their burden of showing that the defendant is prejudiced, then just Marion and West Memphis aren't representative of what the entire community or the minds of the people are in Crittenden County, Arkansas.

THE COURT: All right. I understand. Anybody else?

MR. STIDHAM: Judge, I would like to point out that my client and his family have received death threats in Crittenden County, and some of the people I have met on the street in other counties say, "We don't need to have a trial. We just need a lynching." Those are the types of attitudes that are so pervasive throughout the entire district.

MR. DAVIS: That's why you put on proof and evidence of those attitudes, not an attorney's statements.

THE COURT: All right, gentlemen, this is an classic balancing of the public's right to know and


the freedom of the press under the First Amendment and the defendant's right to a fair trial and due process.

Certainly a defendant is not entitled to have a jury that is totally ignorant and unaware of things that are happening in the community. However, the defendant is entitled to a fair trial by a jury that is unbiased. While I agree with certain statements made by the State and particularly the MacArthur case that you've cited me that the burden is on the defendants to show that a jury within the county where the alleged event took place is biased and prejudiced against the defendant, I think from the record and from my personal knowledge of this area and the circumstances that a change of venue is appropriate.

I'm going to grant a change of venue to Craighead County. I'm going to set the date of the first trial to be February 21st and for three weeks continuing. That courthouse will be made available. I have made arrangements to utilize the federal courthouse in Jonesboro. It is an excellent facility, very good accommodations and security arrangements, and it is an ample size courtroom.

In changing the venue to Craighead County, I'm specifically ruling that the Arkansas Constitution, Article Two, Section Ten is constitutional. That the


provision that provides for change of venue within the judicial circuit or outside the judicial circuit is constitutional and that in any event the individual's rights to a just and fair trial would supersede or prevail over any statutory or constitutional provision to the contrary.

There is case law within Arkansas that justifies and supports the moving of a case outside the judicial circuit should it be necessary. Y'all failed to cite Cockrell versus Dobbs, 238 Arkansas 348; 381 Southwest 2d 756, a 1964 case. Perry versus State, 277 Arkansas 357, a 1982 case and there's one additional, Anderson versus State, 278 Arkansas 171, a 1983 case.

All three of these cases held that changes of venue outside the judicial circuit were constitutional in an effort to provide the defendant a just and fair forum. One or more of those cases also held that Arkansas Statute sixteen eighty-eight two oh three where it specifically by statute indicates that only one change of venue may be granted, that that statute on its face is in fact constitutional.

However, it also implied -- or stated rather than implied -- that where additional changes of venue might be necessary in order to provide a person with a just, fair forum without bias, that additional changes


of venue beyond the one could occur and that would be my holding, specifically.

If we are unable for some reason to find an unbiased and unprejudiced jury in Craighead County, the largest county in this judicial circuit, then I would be inclined to grant a change of venue to wherever might be necessary. I would suggest to each of you that we've got Corning, Piggott, Paragould, Jonesboro, Blytheville, Harrisburg, Osceola that are certainly available for trials if necessary so I'm going to reserve any ruling on a second change of venue and will determine whether or not we can find a jury, which I am absolutely confident that we could do, and I am also confident that we probably could have found a jury here in Crittenden County.

But in view of the mass media coverage and the prospect for additional coverage, I am going to change the venue to Craighead County. And I have also given you the date for trial, gentlemen.

MR. FOGLEMAN: Your Honor, two things. First about the date for the trial. If there is more than one trial, the nine months will expire prior to completing the first trial.

THE COURT: I'm willing to give you a date prior to that if you want one.


MR. FOGLEMAN: I think we are going to need one. If there are multiple trials, we need to be able to complete them by March the fourth.

THE COURT: Unless they waive the time issue, I'll be prepared to give you another trial date right now. You gentlemen want to talk that over real quick?

MR. PRICE: Could we take up the argument about severance of the defendants?

THE COURT: That might solve the problem.

MR. FOGLEMAN: The second thing I want to ask, is it my understanding -- or my understanding of the Court's ruling at this point is that the defendants have not carried their burden to show that they could not get a fair trial anywhere except form Crittenden County as far as in this judicial district.

THE COURT: Yes. That's correct. I'm saying in view of the circumstances and the magnitude of this case and the magnitude of the press coverage and all the affidavits and everything I know about having lived in this area for twenty years or more, that it's appropriate that the venue be changed.

MR. FOGLEMAN: But you're specifically ruling that as far as their motion to move it outside the district, is they have not carried their burden.

THE COURT: That's correct, but I'm also ruling


that the Court has the power and the jurisdiction to do just exactly that if it becomes necessary.

MR. FOGLEMAN: I understand that.

MR. WADLEY: Your Honor, I just want the record to reflect on behalf of Jason Baldwin that we've not asked at this time for a change of venue outside the district as explained by Mr. Ford -- we are reserving it.

THE COURT: I think it already reflects that. You indicated that earlier.

MR. STIDHAM: Your Honor is saying if it became necessary, the Court would consider moving it outside the district, but it is not appropriate to do it right now.

THE COURT: I guess that's the way you could sum it up. I'm saying I have the power and authority and there is precedent to justify it other than the Swindler case and in addition to the Swindler case, and I am also ruling that a single change of venue, even though the statute says only one, doesn't necessarily hold in the interest of due process and a fair and just forum.

MR. STIDHAM: I think what confused me the Court indicated that the statute wasn't unconstitutional --

THE COURT: I'm saying it is not unconstitutional


on its face, but the defendant's rights to a fair forum would supersede any provisions of the constitution or any statute to the contrary, and that is what the cases have ruled.

MR. DAVIS: Judge, you kind of jumped to addressing the issue of whether the case was going to be moved outside the district or not.

THE COURT: I'm not planning on doing that at this time. That is what I just said. But if it was necessary, I would be prepared to do so.

MR. DAVIS: We had a number of affidavits from not only Craighead County but also the rest of the district which we would like to include as a part of the record for purposes of whenever this issue may be appealed.

THE COURT: Sure. You can file them in the case. Do you want a minute or two to confer or do you want to take up the motion on severance first? I'll give another trial date in December.

MR. STIDHAM: I'd ask for a brief recess.

THE COURT: All right. About five minutes.


MR. STIDHAM: I believe the motion to sever might be heard before we address the trial date issue.



Based on discussions with Mr. Ford, I expect his defense may be antagonistic to our client's defense.

THE COURT: Y'all are not giving me any reason -- just making that bare assertion -- what is the antagonistic defense?

MR. FORD: Your Honor, there's a witness who has been interviewed by the police department whose statement, if they testify similar to their statement, was that they saw Mr. Echols on the service road near the Blue Beacon truck wash at or near the times of the alleged homicides. That witness also said that he was with Domini Teer. Domini Teer is Mr. Echols' girlfriend.

There has been a dyed hair found by the Crime Lab that is consistent with the color of Mrs. Teer's hair. I do not want to state into the press that I may be trying to allege and defend my client on the basis that there was someone else there and it was not him because those people if they're -- if they're -- if I'm correct, then I feel at risk.

MR. FOGLEMAN: The only thing I can say in response to that is the report about the dyed hairs is dyed brown hair. Domini -- every time I have seen her she's got red as red can be hair. Now whether it is dyed or what I don't know, but I have never seen her


with brown hair, and it said, "dyed brown hair."

THE COURT: I'm going to deny the motion to hear it in-camera.


THE COURT: The motion for an in-camera hearing has been denied and I feel like that would be a semi-gag order if I did so I'm going to proceed in an open forum.

MR. FORD: On behalf of Mr. Baldwin, we would move for a severance of the defendants pursuant to Rule twenty-two point three and Rule twenty-two point two of the Arkansas Rules of Criminal Procedure.

Your Honor, the case before this Court obviously is one of very serious magnitude. The rules set out a number of criteria that the Court can look at in determining whether or not a motion for severance should be granted. Initially, the matter against Mr. Misskelley was severed by virtue of an out-of-court statement that he made which would be inadmissible as to Mr. Baldwin and Mr. Echols. Your Honor, at this time we are merely addressing the issue of a severance from Mr. Echols in an effort to obtain a separate trial from Mr. Baldwin in and of himself.

Your Honor, I feel the Court took into account the ability to fairly select an impartial jury in the


Court's decision to grant a change of venue. At this time if we were to proceed jointly with a trial with Mr. Echols, the two defendants would be given twelve peremptory challenges in a capital case. Having twelve peremptory challenges to be divided between two defendants and four lawyers -- it is very difficult to exercise those peremptory challenges effectively. The interest of Mr. Baldwin and the interest of Mr. Echols are not identical. Although they are charged with identical crimes and are charged with being accomplices, one to the other, their interests are not the same in the selection of impartial jurors. A juror that Mr. Price may feel is fair for Mr. Echols may not be a juror which would be appropriate for Mr. Baldwin. Likewise, vice versa.

The only fair way, if the Court were to put us into that box, would be to allow them to have six and us to have six. I don't think they are going to let us have eight and only take four. If this is such a case that the pretrial publicity and the notoriety of this case is such that warrants a change of venue and the Court has held open the right to hear again change of venues, having six peremptory challenges defeats the entire purpose of that. If you're going to limit Mr. Baldwin and Mr. Echols to six peremptory


challenges, we feel that would be unfair.

There's also concern regarding the pre-trial publicity received by Mr. Echols versus the pre-trial publicity received by Mr. Baldwin. The Rules of Criminal Procedure allow for severance when pre-trial publicity unfairly prejudices the other defendant.

There has been considerable media coverage of Mr. Echols and particularly his taken nickname of Damien. I say these things without having discussed these things with Mr. Echols. From what I have read in the paper, Damien is a nickname and that nickname has been associated overwhelmingly with a movie by the name of "The Omen" where the main character in that movie, Damien, is the antichrist.

There has been an awful lot of publicity and speculation as to occult activities and whether or not this was a killing that was associated with an occult type ritual. I believe the publicity as to that occultic type activity has been predominantly centered around Mr. Echols as opposed to Mr. Baldwin.

In addition, your Honor, based on the discovery that has been provided to Mr. Baldwin and Mr. Wadley and myself as his attorneys, there's an absence of statements by anyone establishing that Mr. Baldwin is involved in these occultic type activities. However


there are several statements as to witnesses indicating that Mr. Echols is involved in occultic type activities.

I feel that that type of an issue, being associated with occultic type activities versus not, is prejudicial. If you are associated with them and another person is not associated with them, the fact that they may be alleged to have been associated with this crime -- that is very different. People's view on that thing is very sensitive. If the evidence is that one is associated and one is not, due to that sensitive issue and the fact that there may be evidence presented on that, to put those two together necessarily places Mr. Baldwin into activities which there is no evidence he ever participated in.

I feel that that is the type of pre-trial publicity which is envisioned by the drafters in drafting Rule twenty-two of the Arkansas Rules of Criminal Procedure.

The last argument that would be raised by Mr. Baldwin as to that would be antagonistic defenses. Clearly, if the defense of Mr. Baldwin is, "I didn't do it. I wasn't there." And Mr. Echols has the defense, "I didn't do it. I wasn't there." Those are not necessarily antagonistic.


However, Mr. Baldwin making that defense and Mr. Echols maintaining that defense -- they do not necessarily imply the same witnesses and the same strategies. Mr. Baldwin's whereabouts versus Mr. Echols' whereabouts may be totally different. I can't speak for him. I have never spoken with him and never discussed it with his attorneys so I don't know about his whereabouts. I only know about my client's whereabouts.

The strategy that I may lay in order to effectively present that versus their efforts to present that same defense could be different, result in different strategies, different approaches that could be antagonistic. It's very difficult for me, your Honor, to argue to this Court that my defense is antagonistic when I don't know what theirs is. That is the reason we have separate attorneys.

Your Honor, there has been evidence provided to the defendant, Mr. Baldwin, that a witness saw Mr. Echols and saw him with his girlfriend, Domini Teer, walking down the service road near the Blue Beacon truck wash on this evening in question. The exact time I can't recall, nor do I know the exact time alleged by the State of Arkansas as the time of these homicides, but it was within that window of time.


To have a witness identify him as present and to have them also be identified with a third person, Domini Teer, when that person is not mentioned by Mr. Misskelley in his statement which impugns Mr. Baldwin makes it antagonistic. To me, I need to make a very large emphasis of that witness that places Mr. Echols and Miss Teer at the site at or near the scene of the crime at or near the time alleged. To do that is clearly antagonistic to his interests. He doesn't want me bolstering this lady's credibility, doing all the things that can be done to make this witness be believable because that makes it -- that places him there. He does not -- that is antagonistic to his best interest.

But it is definitely in the best interest of my client to place that witness in the best light possible because, number one, it leaves someone else out there who could have been the perpetrator but more importantly it casts considerable doubt upon the reliability of Mr. Misskelley's statement, which is a huge piece of evidence against Mr. Baldwin, if Mr. Misskelley has made a statement implicating Mr. Baldwin. That statement seems to be a very foundational aspect of the prosecution's case. Anything that can be done to establish a witness in


that foundation is appropriate for my client. To cast doubt on the credibility of Mr. Misskelley, I have to place someone else --

THE COURT: What is your defense?

MR. FORD: My defense will be that, "I did not do it. I was not there." But I don't know what their defense is.

THE COURT: What is your defense? Is it antagonistic to, "I wasn't there. I didn't do it"?

MR. PRICE: I anticipate a part of Mr. Ford's defense is going to be alleging that our client was there, and I think that does make it antagonistic. Our defense at the present time is that our client is not guilty and was not present at the time of the murder. Obviously, there are other potential defenses that may arise. But if Mr. Ford is going to be zealously representing his client and his position will be Mr. Baldwin wasn't there but Mr. Echols was, then we have --

THE COURT: Is that what you are alleging?

MR. FORD: Based upon that witness, I do have to allege that.

MR. PRICE: Then I think it would end up in a case between Mr. Baldwin and Mr. Echols. Obviously the State is the one that has the burden of proof.


Mr. Echols does not have to disprove Mr. Ford's theory about Mr. Baldwin's involvement or disprove -- or Mr. Ford doesn't have to prove or disprove our theory, but obviously that's a key issue here. The fact that that would be an antagonistic defense, and I think we would be entitled to a severance, and we are requesting such.

MR. FORD: Your Honor, although I'm indicating what our defense would be, obviously I don't have to prove anything, but I do intend to offer that witness as a defense which places Mr. Echols and a third party uncharged at the scene of the crime as opposed to my client.

MR. DAVIS: Judge, it is the State's position that what Mr. Ford has just outlined is not an antagonistic situation. It doesn't represent antagonistic defenses. His defense apparently for his client will be his client did not do it which is identical to what Mr. Price indicated their defense would be. What he's saying is, "If we can try to increase a jury's view that one defendant was there and if we can heap more evidence on one defendant, then maybe that will improve our defense."

Your Honor, that is not a defense. It is a trial strategy on their part, and that is something they


have the option to pursue either way. The defense as to whether or not his client did it is every bit as feasible, and it can be pursued, and they can present whatever evidence they have in their defense or make whatever strategic options are available to them whether -- if they are tried with this defendant or separately.

THE COURT: An antagonistic defense would be where one defendant says, "He did it. I didn't." Is that what you're trying to tell me, Mr. Ford? Or are you just trying to say that a witness placed one defendant near the scene of the crime sometime after the crime?

MR. FORD: Your Honor, I know that there will be that witness whose statement indicates that Mr. Echols was there along with his girlfriend.

THE COURT: Was where?

MR. FORD: At or near walking down the service road of the Blue Beacon truck wash which is adjacent to the woods where the crime was --

THE COURT: At what time?

MR. FORD: In that evening. The time that comes to mind is the nine o'clock hour.

MR. FOGLEMAN: It has been a long time since I looked at the statement, but it is something like



THE COURT: All right.

MR. FORD: That is after these boys disappeared, after the search has been initiated. That places him at or near the crime scene.

THE COURT: How is that antagonistic to Mr. Baldwin?

MR. FORD: My defense will be that I may believe that he did it and that he's there --

THE COURT: Do you anticipate putting on testimony that this defendant did it?

MR. FORD: I anticipate allowing the State's evidence that he did it to never be checked but to allow that to be believable and that he was there with some third party and that Mr. Misskelley and Mr. Echols are covering up this third person.

MR. STIDHAM: Judge, I feel like I need to object to him making any allegations about my client.

THE COURT: Your client has been severed. You're out of this case. Your objection will be noted.

MR. FORD: I base that on the statement which has been provided to me.

MR. DAVIS: Exactly what he says indicates his defense is not antagonistic. His strategy may be somewhat different from the other defendant, but


that's a whole different ball game.

MR. FORD: If you place defense and strategy as opposites to one another for the purpose of this motion, then that is no defense at all because it's not an affirmative defense and does not require us to prove it. If that is what a defense is, if there are affirmative defenses as opposed to antagonistic strategies, I think antagonistic strategies are within the terms of that rule, otherwise they would have used the term affirmative defenses which has a specific connotation under the law which requires the defendant to prove something. We are not required to prove anything.

MR. PRICE: Judge, it is important in looking at this issue not just simply as Mr. Baldwin claiming he's not guilty and Mr. Echols claiming he's not guilty, but the theory of the defense of both sides is certainly wrapped up in this issue. The key case, McDaniel versus State, 648 S.W.2d 57, an '83 case, talked about the seven factors to be considered in severing cases and in dealing with specifically the issue of antagonistic defenses, they discuss that, "If there was an evident strategy by the prosecution to permit the two defendants to try each other which in the end tainted the result by leaving the ultimate


issue unanswered."

In that particular case both of the defendants were claiming that they were not guilty, but there was a key issue on who owned the murder weapon and what happened to the murder weapon after the time of the crime, and the facts in that case both the -- the one defendant tried to allege facts dealing with the other defendant and vice versa.

The other factors listed in the McDaniel case, number one, "If the defenses are antagonistic."

Number two, "If it is difficult to segregate the evidence."

I think in this case there is. The State is provided with some physical evidence relating to the defendants. Whether that evidence is reliable, whether that evidence is admissible is another story. But as far as right now, there is some evidence possibly linking each of the different defendants.

"Where there is a lack of substantial evidence implicating one defendant except for the accusation of the defendant," is factor number three.

THE COURT: Let me ask you that -- well, go ahead. I'm reading the same thing you are.

MR. PRICE: Number four, "Where one defendant could have deprived the other of all peremptory


challenges," and that is certainly permissible, and Mr. Ford made that argument correctly earlier, and we certainly adopt that.

Number five, "If one defendant chooses to testify, the other is compelled or chooses to testify." I think that certainly is a factor right here. If one defendant does get up and testify, then it may force the other one to get up and testify even though -- obviously we -- both defendants do have the constitutional right not to testify.

THE COURT: Mr. Price, if that occurred, there's case law on that, and the other defendant would be entitled to an immediate mistrial.

MR. PRICE: Just thinking about judicial economy, your Honor.

Number six, "Where one defendant has no prior criminal record and the other one has." In this case obviously the -- I think not only do you actually look at whether prior convictions could be admissible for impeaching a particular defendant --

THE COURT: Neither of these have any prior convictions, do they?

MR. PRICE: Judge, we also have to look at the mitigating circumstances and the factor in there about no prior significant criminal history would apply and


whether juvenile problems apply to that or not apply to that. I think that's a whole 'nother ball game, and we are not prepared to take up that specific issue at this time although it will be raised prior to trial.

Number seven, "The circumstantial evidence against one defendant appears stronger than against the other defendant."

I think for all these reasons the Court should go ahead and sever our trial from Mr. Baldwin's trial.

MR. DAVIS: Your Honor, the very reason that he outlined, number one, "where defenses are antagonistic." It is the State's contention they aren't.

"Where it is difficult to segregate the evidence." The State anticipates that the same evidence will be used against both these defendants. The evidence is appropriate in both cases, and there are no cross -- there are no statements of either defendant that would unduly prejudice them or give them a right to an automatic severance.

Like the Court says, if one defendant chooses to testify, then at that point one of the defendants can be tried at a later date which is no different than what we are doing now. We'd be making that decision


at a later time.

It is the State's position that under what the defense has outlined, there is no basis or reason or under the rule any cause to sever these two defendants and have an additional trial which will require additional expense when there's no jeopardy to either defendant as to their right to a fair trial.

THE COURT: I'm going to deny the motion for severance and specifically find that there's no reason that either defendant would be unduly jeopardized by a joint trial and that is not necessary to sever them to achieve a fair determination of one or both of the defendants.

The jury, of course, will be instructed that they are to treat each defendant separately in viewing and evaluating the evidence, and their verdicts must be individual as to each of the defendants, and any evidence that might be adduced against one that would not apply to the other, the Court will on request give a cautionary instruction that that evidence is being received as to one defendant and not the other, but apparently you're telling me there's no evidence of that nature, that the evidence basically is so -- well, I'm finding at least at this time there's no reason to sever the cases.


Also, from what you outlined, Mr. Ford, I suppose in every joint case where there are multiple defendants there may be a witness that could place one or multiple defendants at or near the scene and not others. That is not necessarily an antagonistic defense or even antagonistic trial strategy.

I just don't find that is antagonistic enough to the point that it would justify two separate trials, and I am ruling in favor of judicial economy in that regard.

However, I would be the first to rule and sever one of the two remaining joint defendants in the event it became necessary at or during the trial. So I'm going to reserve my right under the rules to grant a severance at any time I think it might be appropriate or justice and fair play dictate it. At this point in time I'm simply not going to find that that is even necessary.

MR. FORD: Will the Court address how the defendants' attorneys are to exercise our peremptory challenges?

THE COURT: The same way they have done it for hundreds of years. You're going to share those strikes, and you will have to confer and make that decision, and that is the way it has always been.


If you exercise all your peremptory challenges, you can always request additional challenges from the Court. I think I have been fairly liberal in allowing additional challenges in the event of dual or multiple defendants where it was necessary. So when you exercise all your peremptory challenges by conferring and discussing it, if you feel it is necessary, then I would -- I'm not saying I will do it. I'm saying I would certainly consider it -- giving you additional peremptories.

MR. PRICE: Based on the Court's ruling, does the State know at this time which defendants they intend to try first?

THE COURT: I don't know what the State knows.

MR. DAVIS: We have not made that decision. We were waiting to find out what happens on this motion for severance.

THE COURT: Now you know.

MR. PRICE: Would the Court give the State a particular time limit --

THE COURT: I'd like to know today because if I'm going to have to set another trial date, I may have to find another location. I have approval for use of the federal courtroom on the dates listed. Beyond that I don't have any approval.


Are you all prepared to make that decision now?

MR. DAVIS: I think we've decided that we'd like to have a few more days to make that decision.

MR. FOGLEMAN: There are a lot of factors that will go in for us to decide whether we try Mr. Misskelley first or whether we try Damien and Mr. Baldwin first. A lot of considerations that we have to take into consideration, a lot of factors, and we are just not prepared at this time to say.

THE COURT: When will you be ready?

MR. FOGLEMAN: I would say probably a --

MR. DAVIS: Probably a week to ten days.

THE COURT: That's all right with me. The problem is if you're going to want another trial date prior to the date I have indicated, then I have got to make some arrangements because I'm not particularly going to tell y'all where it will be or when.

MR. PRICE: Judge, the Court made reference earlier that it might set a December trial date. We object to any trial prior to the first of the year. That's approximately sixty days from now. We certainly couldn't be ready for trial.

MR. STIDHAM: Your Honor, we're still getting discovery in this matter. We have a file that is this thick --


MR. FOGLEMAN: Are they moving for a continuance?

THE COURT: Gentlemen, we have a nine month and a twelve month rule and if you're asking for a continuance, then I will set a date beyond that. Are you asking for a continuance?

MR. STIDHAM: Judge, February 21st is fine with us but if the Court is telling us we have to be ready by December, then that is going to pose a problem.

THE COURT: That's what I'm telling you. If I have to set another trial date, you're going to have to be ready by the first part of December -- early December.

MR. STIDHAM: I'd like to wait and hear what they plan to do before I make any motion to the Court in that regard.

THE COURT: You have got ten days from today's date to pick which one you want to try first.

MR. FOGLEMAN: Are you going to hold us to a more serious deadline than you did the defense on motions?

THE COURT: Well, I mean I'm holding everybody to the deadline as much as I can. Discovery is an ongoing thing, and I understand that if discovery carries on, that discovery may generate an additional motion or two.

MR. FOGLEMAN: Your Honor, I was referring to the


17th deadline for all these motions, and we got about forty motions Friday.

THE COURT: The 17th fell on a Friday, I believe, and I did -- I was consulted and I did tell them they could have until the following Monday to file them.

MR. FOGLEMAN: Right. I had no problem with the fact that -- at least two or three of the attorneys contacted me -- I didn't have any problem with that. I was referring to all the --

MR. PRICE: Judge, I think you ruled we had to file motions for change of venue by the 17th, but today is the date for the filing of all motions.

THE COURT: That's the way I understood it.

MR. FOGLEMAN: Judge, we asked for a deadline before that so we would have a chance to respond to these hundreds of motions.

THE COURT: All right. I'll give everybody ten days. I don't want any more motions after ten days. So file any motion you're going to file within ten days from this date, or I'm not going to consider it.

MR. PRICE: What about continuing discovery?

THE COURT: Continuing discovery is something new. If some new constitutional issue or something that would be necessary to file because of new found evidence, discovery, I certainly don't bar those right


up to the time of trial.

MR. FORD: That does not include limine motions. Previously you said we could do that up to --

THE COURT: Yes. If you're talking about motions in limine, I have decided those the day of the trial many times. I'm talking about substantial motions like venue motions, which we've already heard, severance motions.

I'm going to give you an additional ten days after the State has made their announcement of who is to be tried first. I'm going to immediately when I hear from them -- I'm going to set a time, date and place for the first trial. It may be Craighead County. It may be some other location. And then you have ten days to file a motion for a continuance if you want it.

MR. STIDHAM: So we don't know whether we're going to Craighead County?

THE COURT: You are on the 21st of February. You're going to Craighead County.

MR. STIDHAM: As of today, are we going to Craighead County?

THE COURT: If that's the first case tried, that's where it's going to be. But if I have to set another date earlier than that in order to comply with


the speedy trial provisions, then I might set an additional location because I don't have approval to use the federal courtroom at any time other than the dates I indicated. So it may be necessary for me to set a new date, time and location.

All right. Let's take our noon recess. We'll be in recess until 1:00 P.M.


MR. FORD: Mr. Wadley and I have a motion to present that would be individualistic to our client -- a motion to suppress evidence that was obtained pursuant to a search warrant.

MR. FOGLEMAN: Your Honor, Mr. Davidson and Mr. Price have a similar motion pending -- the same affidavit -- basically the same affidavit except for the names being changed. The same reported testimony, and I think they need to be heard together in order to save time.

THE COURT: All right, I'm ready to hear the motion to suppress.

MR. FORD: We have filed a motion, but it is my understanding the State bears the burden of proof.

MR. FOGLEMAN: Your Honor, not when you have got a search warrant.

THE COURT: I'm going to allow you to go ahead


and introduce the affidavit and go through that portion of it, and then the burden will fall to them.

Mr. Price and Mr. Davidson, I understand you have a similar motion and that the affidavit is essentially the same?

MR. PRICE: Yes, sir, we did file on Friday our motion to suppress. We'd be requesting that we be able to argue ours at a later date, your Honor.

THE COURT: I was planning on doing it today. What is the reason for doing it later?

MR. PRICE: We are ready to take up any of the other twenty-five motions that we have filed if the State wants to take those up.

THE COURT: Well, we'll get to some of those, too.

MR. FOGLEMAN: It is going to require the same affidavit, same search warrant --

THE COURT: I'm ready to proceed.

MR. FOGLEMAN: Are we going to do theirs, too?

THE COURT: As much of it was we can do today, yeah, or all of it.

MR. FOGLEMAN: Your Honor, may we approach the bench?


MR. FOGLEMAN: Judge, it was our understanding --


we've got a search warrant. It's their burden to prove that there's something wrong with it. We don't have the people here to present the affidavit.

THE COURT: Normally, the way I have done those in the past is if it is a search warrant, the State calls the officers that made the affidavit. You introduce the affidavit and then you introduce the search warrant. Normally you call the judge that granted the search warrant, and then that's it.

MR. FOGLEMAN: I haven't ever done it that way.

THE COURT: That's the way I have always done it.

MR. FOGLEMAN: I will call the municipal clerk's office and see if we can get her here with what was filed down there.

THE COURT: Who made the affidavit?

MR. FOGLEMAN: Bryn Ridge. I have to have the affidavit, Judge, and that's in municipal court.

THE COURT: Yes. I have to have the affidavit. Really, the Court only considers the four corners of the Affidavit anyway.

MR. FOGLEMAN: And recorded testimony supporting the Affidavit.

THE COURT: You have got to introduce the Affidavit, the Search Warrant, and any supporting testimony that was taken and then the burden shifts to



MR. DAVIS: I thought that was the way it was when you had a statement to be suppressed. In a search warrant situation I thought it --

THE COURT: You show me a case. I have done search warrants the same way. Maybe I have done something wrong. I don't know.

MR. FOGLEMAN: I'll go call the municipal court.

THE COURT: You would have had to have them here anyway.

MR. FOGLEMAN: If it is from the four corners of the Affidavit --

MR. FORD: You have got to introduce it, John.

MR. FOGLEMAN: You can subpoena them just like I can.

MR. FORD: It is your burden to introduce the Affidavit.


THE COURT: Have you got a case? I think the burden is always on the State.

MR. DAVIS: I think there is one.

MR. STIDHAM: If they are going to start talking about the alleged statement as the basis for the Affidavit, on behalf of Mr. Misskelley we ask that that be done in-camera.


THE COURT: I don't see any reason to do any of this in-camera.

MR. STIDHAM: It's prejudicial, your Honor. We've got to pick jurors at some point in the future and if they all revamp this alleged confession again --

THE COURT: I'm not going to enter a gag order. That's what that would amount to.

MR. STIDHAM: Not for this one particular issue, your Honor.

THE COURT: I assume objection is made a Search Warrant has already been filed, and there is a pleading that is public record.

MR. STIDHAM: You know how the press are. They are going to rehash all that.

THE COURT: I cannot muzzle them.

MR. DAVIS: Judge, I'm going to call the Prosecutor Coordinator's office real quick --

THE COURT: If you've got one, this is the way I've always done it even when there was a search warrant. I could have been wrong. I don't even remember doing it differently as a prosecutor.

MR. WADLEY: Judge, I haven't done that many, but in every case I've had, I've had an opportunity to cross examine the affiant after he introduces the




MR. FOGLEMAN: Well, we've got them coming up if we can take up something else in the meantime.

THE COURT: Let's take up something else then while we're waiting on that.


MR. STIDHAM: Your Honor, I think everyone has filed a motion asking for individual questioning of the jurors for voir dire purposes. I don't know if the Court wants to rule on that or wait until a little closer to the trial date.

THE COURT: You're asking for individual voir dire?

MR. PRICE: Sequestered voir dire, yes, sir.

THE COURT: Now wait a minute. Individual or sequestered?

MR. PRICE: Our motion is both, your Honor. Our motion is both. Part of that is based on the Court's ruling earlier today that our client's trial be joined with Mr. Baldwin. We are concerned that something a particular juror may know about this particular case or --

THE COURT: I will grant your motion allowing for an individual -- one-on-one voir dire -- but I don't


see any need to sequester them or have an in-camera hearing.

MR. PRICE: Judge, in this particular case you have several factors. You have the ages of the victims. You have the allegation of the State that this is some kind of a satanic killing, the issue of pre-trial publicity, you have the fact that the State is seeking the death penalty. Obviously death penalty issues are very important.

In addition you have the age and background of the defendants. Of course, the Court has ruled that my client, an 18-year-old, plus the 16-year-old will be tried at the same time. I think that damage is certainly possible if one potential juror knows of something, that that might taint the entire panel. The whole reason that we're moving the trial to Jonesboro is to have a fair and impartial trial, and I think the Court should grant an individual sequestered voir dire.

THE COURT: On every question you wish to ask you want to have --

MR. PRICE: That's correct. The State is seeking the death penalty against my client on three different murder cases, your Honor. Of course, your Honor knows the age of the victims, and I think in the interest of


justice we're requesting that. Certainly, the federal court has the facilities to do that.

THE COURT: I will grant the individual voir dire, and I will take under advisement whether it should be sequestered.

MR. PRICE: In the event the Court denies that even at a later time, we want the Court to consider even possibly sequestered voir dire of a smaller number of jurors, two or three or four.

THE COURT: I might be inclined to allow it if you want to take them at about three at a time.

MR. FORD: In my past experience with capital cases three at a time has been sufficient in order to get a decent response if you take them to a separate room from the rest of the remaining pool. One at a time we would be there forever. I would have to agree with the Court that that would be -- but I feel that three at a time is sufficient, and I would ask for them to be sequestered in groups of three.

THE COURT: I'm not going to ask all the questions the Court asks in groups of three. I'm going to take them twelve or more.

MR. FORD: I have no objection to the Court questioning the entire panel and then allowing us as defense attorneys to question them three at a time.


THE COURT: What is the State's position? Do you have any preference?

MR. FOGLEMAN: No, sir.

THE COURT: I'll allow --

MR. PRICE: Judge, if I could make one more argument.

THE COURT: All right.

MR. PRICE: Judge, this is again another reason why we previously asked for our trial to be severed from Mr. Baldwin's trial. Mr. Baldwin's attorney is requesting three jurors at a time be questioned. We are suggesting one juror at a time be questioned. I think that's one other factor that the Court --

THE COURT: I think that's purely discretionary with the Court.

MR. PRICE: But it is one other reason why the Court should grant the severance.

THE COURT: I don't think that touches the issue one way or the other. Now, if you were asking questions that were cross implicating or if you were asking questions that indicated you had an antagonistic defense, I would agree with you. But what y'all told me was not an antagonistic defense.

There's been no reason shown this Court for judicial economy and otherwise why it shouldn't be


tried together, and I can see absolutely no reason whatsoever that would jeopardize their having a fair trial by having a joint trial. I simply don't agree on that issue. As far as the three at a time on a sequestered basis, I will allow that.

MR. FORD: We have filed last week a motion to take discovery depositions.

MR. FOGLEMAN: I have never seen that motion, your Honor.

MR. FORD: I filed it Friday and placed it in the mail.

The State has presented us literally mounds of evidence -- paper document, after paper document, after paper document. The greatest confusion that it creates with me has been the fact that despite the fact that it is in the most organized fashion I have seen in Gary Gitchell's office, it comes to me in the most disorganized fashion. It comes to me just divided all around. There's no heads or tails of it. There's no consistent order to it. It's like they were going through their organized files and putting them together one at a time and just taking them and copying them. That confusion has created with us the desire to file two motions.

One, your Honor, is to take the discovery


deposition of Gary Gitchell, Bryn Ridge and Mike Allen. Those were the chief investigative individuals in this case. Gary Gitchell is the head of the investigative division of the West Memphis Police Department. Officer Ridge was the affiant in the case and was clearly involved as was Mike Allen.

In addition we have also filed a request for specific response discovery. I know the State has taken the position that they have an open file. They'll copy everything they have got. Nonetheless, I feel under the rules of discovery we are entitled to both of those things. The State of Arkansas has the right through their subpoena power to force my witnesses, my people that I have information relating to, and force them to come to their offices under threat of being held --

THE COURT: Now wait a minute. There are cases in Arkansas -- and you all ought to be aware of them -- that the State can't abuse its subpoena power to call in and question witnesses that have been designated as "defense witnesses" merely for harassment purposes or for any purpose. What occurred here two weeks ago was totally and completely different. Those were not so-called "defense witnesses."


MR. FORD: Your Honor, we've had those arguments -- discussions -- I shouldn't say arguments -- previously, but if the State can call under subpoena power the parents of my client and make them be questioned under oath, I'd like to be able to have -- what is good for the goose is good for the gander. I'd like to be able to depose Mr. Gitchell and Mr. Ridge and Mr. Allen.

THE COURT: Well, take it up with the legislature.

MR. FORD: I'm asking the Court to give me the authority to do that under the rules of discovery.

THE COURT: Do you have any objection to having a formal discovery deposition taken of those officers?

MR. FOGLEMAN: Your Honor, Mr. Ford wants to argue that somehow there's some disparate treatment because the State has subpoena power. At the same time the defense is entitled to and has gotten every document that we have. We are not entitled to every document or everything they find out through their investigation. So you're not on the same footing. They are not required to give us what they develop, but we're required to give them everything. And there's no authority -- not any -- none cited -- for what Mr. Ford is asking for, and we object to it.


THE COURT: I don't think he's saying there is any authority for it. You're just asking that you be given that permission.

MR. FORD: I'm asking for that not pursuant to the rules of discovery, which do not preclude it, but I'm asking it in the interest of a fundamentally fair trial, the right to due process, that if Jason Baldwin's mother can be questioned under oath by Mr. Fogleman, the least I can do is to be able to question under oath Inspector Gitchell.

Now, I can have a conversation with Inspector Gitchell, but nothing about the conversation is under oath or recorded, and he can lead me astray if he chooses. And I'd like to be able to question him under oath so I can use it for cross examination purposes which is exactly what Mr. Fogleman wants to question my client's mother so if she were to testify differently, he can use that to cross examine her. I'd like to have that same opportunity. That is equal footing and that's what I feel due process and a fundamentally fair trial dictate.

THE COURT: I understand your motion. Of course, the State has burden of proving the case, and that's why the State is given investigative tools that are not normally given to the defendants. You don't have


any burden. You don't have to prove anything. The State has to prove its case. For that reason it is given investigative power. It is given the power to question potential witnesses. It doesn't matter whether it's somebody's mother. If that person could potentially develop evidence that would be necessary in the State's effort to prove its case, then they are given that authority.

I don't mind entering an order that all the witnesses make themselves available to you for questioning. I think that's fair. I think you have the right to talk to those witnesses and that they should be made available to you, and I'll do that, but I'm not prepared to change the law of the state to allow formal discovery of the State's witnesses in a criminal case.

MR. STIDHAM: We'd like to adopt and join in on that motion as well.

MR. PRICE: We would, too.

MR. FORD: Your Honor, likewise, I would like for the Court to order the State to comply with specific response discovery pursuant to the Rules of Criminal Procedure that govern discovery.

I know Mr. Fogleman says, "I have given you everything I have got." Your Honor, the things that


he gave us and the way he gave it to us -- and I've spoken to other counsel and I know they've experienced the same frustration of having the stuff come to us like throwing us the haystack. "There's a few needles in there. Sift through it and find them." And I feel we are entitled to specific response discovery, and I would ask for that.

THE COURT: What are you asking for?

MR. FORD: I will submit to them written questions and ask that they supply written answers.

MR. FOGLEMAN: That is not provided by the rules. He wants me to comply with the Rules of Criminal Procedure -- that's what he said -- but what he really wants me to do is act like this is a civil proceeding and answer discovery. We've got enough things to do. They are getting the information the same way I'm getting it.

THE COURT: All right, gentlemen. You are wasting time. I will grant specific discovery if you item by item ask for what you want under Rule Seventeen.

MR. FORD: I would not ask for anything other than what is provided for under Rule Seventeen, but I would ask for each --

THE COURT: I want you to tell me right now what


it is you have not already gotten.

MR. FORD: I guess it has the same parallel as it does in a civil case where you ask for production of documents. They can't just hand you the documents and say, "Here they are."

THE COURT: What do you want them to do -- go through them and outline them and tag them and tell you, "This is what you look for in this particular situation?"

MR. FORD: No. If they provide for me each and every statement of Jessie Misskelley and have them put those together because I have these pages that are so out of order that I don't know if I've got everything or not.

MR. FOGLEMAN: He's wanting us to organize his file.

MR. WADLEY: No, Judge. We want the file to be presented to us in an orderly manner to go through it. There is literally, your Honor, stacks and stacks of documents, and we go through them. There's stuff that's relevant. There's stuff that's not relevant. You may find two pages in a stack of stuff that's not relevant.

THE COURT: How am I going to order the prosecutor to give you only organized, relevant


material? I don't know how to do it. I'd have to go through it myself, and then I might not know. What is it you are asking for? I believe in -- and I think that every lawyer who knows me knows that I believe in wide-open discovery. I think it ought to go both ways.

MR. FOGLEMAN: That is what we were trying to do, your Honor, by giving them everything.

THE COURT: I will address the issue specifically point by point if you will bring it up. What is it you want specifically under Rule Seventeen?

MR. FORD: Basically, what I would like to be able to do is to have them provide me written answers that go through A and B. In other words, give me any statements of experts made in connection with the particular case including results of physical and mental examination and scientific -- and answer that statement. "Here's the answer to that."

And "Books, papers, documents and tangible objects they intend to use at any hearing." "Here that stack of evidence is."

MR. FOGLEMAN: Your Honor, you have already ordered us within ten days of trial to provide them a list of documents we intend to use at trial. We've provided them all the scientific reports and tests


that we have received to date.

THE COURT: Have you given them names and addresses of all the people you know as witnesses?

MR. FOGLEMAN: We have not given them a list. We will do that. Of course, we won't know that until we've completed our preparation for trial.

THE COURT: Have you given them all written or recorded statements of any defendant or co-defendant?

MR. FOGLEMAN: Yes, sir.

THE COURT: Do you have that?

MR. FORD: I have some. I don't know if I have them all. If they tell me I have them all, I guess I do.

THE COURT: Tell me what you have got so I will know.

MR. FORD: I know I have two statements by Jessie Misskelley.

THE COURT: Are there any more than two?

MR. FOGLEMAN: I don't know what he's talking about when he says two. There is one statement in which part of it is recorded. And then before they started recording, there's officers notes as to what he told them leading up to that. I don't know what he's talking about when he says there are two.

MR. FORD: I have got one that says, "Here's


another statement that was taken to clear up previous inconsistencies."

MR. FOGLEMAN: That is the same time. It's just later in the tape.

THE COURT: Have you given them all the lab reports?

MR. FOGLEMAN: Your Honor, in fact Mr. Ford went down and told them down there that you ordered them to talk to us.

MR. FORD: And he did.

MR. FOGLEMAN: No, he did not.

MR. FORD: Mr. Price was sitting right where Mr. Crow is the last time we were here, and he stood up and asked that the State Crime Lab people be directed to communicate with us and show us those things, and you said, "I'll enter that order."

MR. FOGLEMAN: No. Your Honor, we can go back and look at the record, but what the Court -- we objected because there's no provision for ordering anybody to talk to anybody. We said we didn't have any objection to them doing it. It was up to them whether they talked to them or not.

THE COURT: I said before and I'll say it again. I believe in making all the witnesses available. Now, what they say and -- but they will be available to



MR. FOGLEMAN: Right. And they went and talked and looked at all the stuff and took tape recorded statements and everything.

THE COURT: Anything else?

MR. FORD: I'm not sure I understand the Court's ruling.

THE COURT: I ruled that discovery would be wide open, and I am ruling that if the State has given you the entire police file and given you everything that they have other than their own individual work product, then they have complied with Rule 17.1.

MR. FORD: So the open file policy is in compliance.

THE COURT: Yes. Unless you can specifically show me or have some grievance to where they have withheld evidence from you.

MR. FORD: Your Honor, it is hard to establish if they withheld something from you because you don't know that you have it.

THE COURT: Well, if you do, it won't be any trouble for me to rule.

MR. FORD: Is the Court denying my motion for discovery depositions?

THE COURT: Yes. I'm not going to order formal


discovery depositions -- question and answer, court reporter and all that -- in a criminal case unless the law is changed. If the law is changed, I'll be happy to do it.

I will make all persons available for you to talk to. You have got a right to do that. You can send people from your office around, investigators or yourself.

MR. FORD: I also filed a motion that deals with the right to discover, inspect, examine, and test any and all physical evidence.

There's been a large amount of physical evidence. Although I have been given ample opportunity for discussion with the people at the State Crime Lab who tested these items, we did not view any of the items that were tested. Some of the items are present. Some of the items have been returned to the possession of the authorities here in Crittenden County. Other evidence has been either shipped to Alabama or Georgia for examination by an outside expert that the State of Arkansas intends to call.

THE COURT: What physical items of evidence are there? Is there a great deal of it?


THE COURT: Mr. Gitchell, can you arrange a date


and time for them to view the physical evidence?

MR. GITCHELL: Yes, sir. The last conversation was that if they would tell me exactly -- we had it in a room available to them. They didn't know what they wanted to look at and I told them they could come back later if they wanted to.

MR. FORD: That's not the essence of what I'm asking for. I'm trying to get there. I'm trying to lay a foundation for my request.

My request is that not only we be given an opportunity to look at it but that we be given the opportunity to have it independently tested, examined and that the State of Arkansas or Crittenden County, whoever the Court will order to pay those expenses, that we be provided with expenses for our own independent experts to be retained and have these matters tested.

They have submitted hair samples on all the defendants, some of which they say are going to have a microscopic comparison; others that are not. I feel if they're going to use an outside expert from the State of Alabama for this evidence, we are entitled to have funds made available to us so that we can have independent examination and meaningful cross examination as to that evidence -- hair, blood, those


types of items that are going to be presented by the State -- we should be given an opportunity to test those items independently and the funds be made available for us to do so.

MR. DAVIS: As far as the State is concerned, I think the defense is entitled -- the defendants are entitled to a court-appointed attorney. Whether the Court wants to go beyond that point to actually provide them with the money for every potential expert there is, I guess that is a call within the Court's discretion.

As far as them being able to take physical control to have it examined, it will be within the Court's discretion as to whether the Court determines it's necessary to allow them the funds to seek out additional experts to examine it, but it is our position that we still have some tests that are being conducted on the physical evidence, and until those tests are completed, at that point in time as long as there is a proper chain of custody so that the evidence would be secure and the evidence would not be in any way diminished in its original state, then we have no objection seeing it go to other experts for independent analysis if they are able to retain them.

MR. STIDHAM: Before the Court makes its ruling,


I'd like to point out that we have filed a similar motion. There was one item of physical evidence that we were wanting to independently test. I've been informed that it may not ben an issue anymore. We're not going to be raising that particular issue at this time. But if it comes up in the future, we'd like to reserve the right to approach the Court at that time if that makes any sense.

THE COURT: I know what you're talking about. Were you through, Mr. Ford?

MR. FORD: Other than requesting that the Court make a ruling, I feel I have stated my position.

THE COURT: I'm going to order that all the physical, tangible items are located in one place -- and I assume you're going to receive them back from the labs. Any of the labs have reason to hold those physical items?

MR. DAVIS: I know in regard to trace evidence such as hair evidence, that customarily they hold it at the Crime Lab.

THE COURT: I know that. That's why I'm asking.

MR. FORD: Your Honor, Mrs. Sakevicius is here. She is the criminologist who conducted the tests. She indicated to us earlier that she did retain all hair and Kermit Channell who did the blood and DNA


assessments that he had forwarded all those things out to a lab in North Carolina for testing.

MR. DAVIS: Judge, I don't think it will be a problem to have those transferred to an expert. The truth of the matter is it will be Crime Lab personnel, and the experts that are to receive those that need to get together to make the arrangements to transport those items when that is done -- and there will also need to be some ground rules laid -- just from my past experience in trials where there is hair evidence, there are some experts like to have it remounted, and that changes the quality of it. It changes the configuration of it, and there's going to be disputes like that and once it gets in the hands of experts that the Court is going to have to address --

THE COURT: I understand that. What I was trying to figure out was how long will it be to where all of those items can be in Detective Gitchell's office or your office or somewhere where they can physically view them.

MR. DAVIS: The evidence other than the hair or fiber probably -- I would think that would be within a couple of weeks, maybe even right now. I don't know that there's going to be any need for defense counsel to view the hair. I think what they need is --


MR. FORD: We are looking for --

THE COURT: What are you wanting re-examined? What bothers me is I've got three defendants and a toss-up of whether the State or County pays for it. An expert is supposed to be an expert. They don't testify for the State or for the defendant. They testify to what the scientific evidence is. If you have got some justification for questioning that expert's finding, then I'd be happy to submit it to another expert but --

MR. FORD: I have no basis to have -- I don't know anything about hair or fibers or DNA. I'm an attorney not a scientist. I don't know if there's any basis to question that or not.

THE COURT: What I am going to do is when you have had an opportunity to view the physical evidence, read the report of the expert or experts that have analyzed it, look into finding and securing one expert that can testify for all three defendants, what they would cost and whether or not there's any reasonable likelihood that they could come up with an opinion that differed. If you can tell the Court that you have secured an expert that can tell you facts such and such that you need to know, then I'm going to order it done, and the mechanics of it -- of having it


done -- of course, the chain of custody would have to be stipulated to and the arrangements of transferring it from expert to expert -- those are mechanical things. I don't have any problem with ordering it.

MR. FORD: It is easy to say, "Retain someone to do that -- who can give me reasons to call into question her credibility." But, number one, I don't have money to get these people to talk to me.

THE COURT: I told you I'd take care of that. That's not the issue. The issue is whether or not you need to have fifteen different experts look at it.

MR. FORD: I want one person to look at the hair evidence, and I want someone to look at the fiber evidence. At this time the State has indicated there will not be any DNA or serological evidence to offer against my client. Now that's what they told me the other day. So the only things I know about are hair and fiber evidence. It's those two items that I'm asking -- they can be done by --

THE COURT: Read the reports from the persons that they get. Look at it and if you think you still need to have it retested, bring it up and I'm going to order it done.

MR. FORD: I have already looked at the report. I have already questioned the people that did it, and


I feel I need it done.

THE COURT: Find somebody that can do it. Send me an order that reflects that they can do it and what the circumstances are. You waive the chain of custody, and I'll grant the order and order it paid.

MR. DAVIS: Judge, just for the Court's benefit, I think most of the people who will examine hair will also examine fiber. That would eliminate the necessity of hiring two experts.

MR. FORD: I'll agree that that is correct.

THE COURT: Y'all are going to have to share the expert that the State or County is paying for. I don't think we need three additional experts.

MR. STIDHAM: Your Honor, for the record, the one issue that we had discussed earlier is not an issue at this point?

MR. FOGLEMAN: No. I will let you know. If something changes, I will let you know.

MR. STIDHAM: I would like to reserve the right to argue that further if it comes up later.

MR. FOGLEMAN: We don't have any objection to that.

MR. FORD: I note that the individuals that the State was looking to bring here have arrived if you want to go ahead and do that now.


THE COURT: Did you find any law for me?

MR. DAVIS: Yes, Judge, but it was in agreement with you.

THE COURT: I thought it would be.


having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:



Q: Will you please state your name and occupation?

A: Debbie Austin, Municipal Court Clerk for West Memphis and Crittenden County.

Q: As part of your duties, do you have in your possession all records of Search Warrants and Affidavits for Search Warrants issued by the municipal judge?

A: I do.

Q: At my request have you brought with you the records including the Affidavit for Search Warrant and the Search Warrant in the case involving a request for a Search Warrant of the residence of Damien Echols?

A: Yes, sir.

MR. FOGLEMAN: I would ask that the Affidavit for Search Warrant be marked as State's Exhibit One.

MR. STIDHAM: Your Honor, may I approach the bench?



MR. STIDHAM: I was informed on Monday following the initial hearing in municipal court -- I was under the impression that were certain documents that were under seal. Are these documents under seal?

MR. FOGLEMAN: At that time Judge Rainey issued the order that the Affidavit and Search Warrant were not to be released under the exception to the Freedom of Information Act under Court Order they be sealed, and he did it at that time.

THE COURT: Is that how -- and attached to it was the copy of the statement and someone gave it to the Commercial Appeal? I'd like to know who did that because if Rainey ordered it sealed, I'd like to find out how that happened.

MR. FOGLEMAN: Judge, I think a copy of the same documents that were attached to the Affidavit were attached to the Search Warrant, and it was delivered to the individuals whose places were searched.

THE COURT: That explains it then.

MR. STIDHAM: Judge, I don't want to go through this alleged confession stuff again.

THE COURT: We are not going to go through that again, but I'm going to receive --


MR. PRICE: The confession is the basis of the Affidavit.

MR. STIDHAM: It's already been sealed, and if we're going to argue this, I'd ask that we move in chambers.

THE COURT: How can you seal something that's already been printed in the Commercial Appeal and talked about in the papers? I'm not going to do that.

MR. STIDHAM: We're just going to have another wave of media attention.

THE COURT: No, they're not either. It is going to come to me, and I am going to look at it here, right now.


THE COURT: For that purpose I'm going to receive the Affidavit into evidence and it is to be retained by the court reporter and not for publication other than for the edification of the Court on this particular issue.

MR. FOGLEMAN: Your Honor, as State's Exhibit Two we would offer the Search Warrant Ms. Austin has handed me in regard to Damien Wayne Echols.

THE COURT: All right. State's Exhibits One and Two will be received for the purpose of this hearing and for no other purpose.




Q: Have you also at my request brought with you the Affidavit for Search Warrant and the Search Warrant in regard to Charles Jason Baldwin?

A: Yes, sir.

MR. FOGLEMAN: At this time we would offer the Affidavit for Search Warrant as State's Exhibit Three and the Search Warrant as State's Exhibit Four.

MR. WADLEY: Your Honor, we would object to the introduction of these through this witness. These are police records not subject to admission through this witness. They will be subject to admission through the affiant who prepared them. He's present. We would object to them being admitted through Miss Austin.

THE COURT: Were these received in court and you are the clerk of the municipal court?

THE WITNESS: Yes, sir.

THE COURT: I assume you're going to call Detective Ridge, as well.

MR. FOGLEMAN: Yes, sir.

THE COURT: Subject to that tie-up, I'm going to receive them into evidence. Again, these are not for


publication. They're for the Court's edification on the issue at hand, whether or not the items seized are subject to suppression.


THE COURT: Gentlemen, at some point I assume all of these items, or some of them, would be received into evidence at a trial in chief and you will have a jury there. For right now, they're for my use only.



having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:



Q: Will you please state your name and occupation?

A: Detective Bryn Ridge. Detective for the West Memphis Police Department.

Q: I want to direct your attention to June third of 1993. On that date did you seek to obtain a Search Warrant from Municipal Judge Pal Rainey?

A: Yes, I did.

Q: I want to show you State's Exhibit One and ask if you can identify that?

A: (EXAMINING) It is the Affidavit of Search Warrant.


Q: Did you sign that Affidavit?

A: Yes, I did.

Q: Did you sign it before Judge Rainey?

A: Yes, I did.

Q: Is that as to Damien Echols?

A: Yes.

Q: I'm going to show you State's Exhibit Three and ask if you can identify that?

A: (EXAMINING) Affidavit for Search Warrant.

Q: And how can you identify that?

A: It has my signature at the bottom.

Q: Did you sign that before Judge Rainey also?

A: Yes.

Q: In addition to the Affidavits for Search Warrant, did you provide oral recorded testimony before Judge Rainey?

A: Yes, I did.

MR. FOGLEMAN: Do you all want me to play the tape or use the transcript?

MR. WADLEY: Transcript is fine.


Q: I want to show you State's Exhibit Five and ask if you can identify that?

A: (EXAMINING) It seems to be a transcript of the taped testimony given at the time the Affidavits were being sought.

Q: Did you and Inspector Gitchell provide some testimony under


oath at the time the Affidavits for Search Warrants were presented to Judge Rainey?

A: Yes, sir.

Q: And does -- is State's Exhibit Five a transcription of that tape recorded testimony?

A: Yes, sir.

MR. FOGLEMAN: We would offer State's Exhibit Five.

MR. PRICE: No objection.




Q: I'm looking at State's Exhibit Three. You have identified this. I ask you to refer to that if you would. Would it be fair to say that the items that you relied on to receive this Search Warrant from Judge Rainey was based upon Exhibit A contained in the Search Warrant? Is that correct? You see where I am referring to?

A: The front page of this Affidavit?

Q: Yes.

A: Yes, sir.

Q: You relied on that?

A: Yes.

Q: As a basis for the Search Warrant?


A: Yes.

Q: You relied on Exhibit B, which tell me if I'm wrong, is a statement of Mr. Misskelley and a statement of a gentleman by the name of William Jones?

A: That's correct.

Q: And you also as a basis for the issuance of a finding of reasonable cause to search the residence of Jason Baldwin -- you refer to Exhibit C on the Search Warrant. Is that correct?

A: Yes, sir.

Q: And what does Exhibit C contain?

A: Exhibit C appears to be the body of Charles Jason Baldwin, also some specific items.

Q: Any other evidence -- any other documents -- any other anything -- did you rely on anything else other than these three things contained in your affidavit -- anything else you relied on when you were in front of Judge Pal Rainey to seek this Search Warrant for the trailer of Jason Baldwin?

A: What do you want? What are the items?

Q: Did you rely on anything else -- you say in your Affidavit you rely on Exhibit A, B and C to get the Search Warrant. Is there anything else you relied on when you were in front of the judge to get the Search Warrant to search Jason Baldwin's trailer?

A: The investigation itself.

Q: The investigation itself. What are you referring to?


A: The totality of information that I received during the course of this investigation.

Q: Was that presented to Judge Rainey?

A: No, sir. This information and the taped interview during the course of obtaining this Affidavit.

Q: Other than the statements contained in the statements -- the recorded statements you made to Judge Rainey and Exhibits A, B and c -- there's nothing else you relied on in getting the Search Warrant?

A: That's right.

Q: There's nothing else relied on in Exhibits A, B and C and recorded statements you made to Judge Rainey for the purpose of obtaining a Search Warrant after 8:00 p.m. Is that correct?

A: The information received during this investigation.

Q: Other than these three exhibits and other than the recorded statement you made to Judge Rainey, there's nothing else you relied upon in obtaining a nighttime search of the trailer of Jason Baldwin? Is that right?

A: Yes, sir. The information we received from witnesses.

Q: We will go into that in just a minute. Tell me this, officer. When was the first time that you visited with Jessie Misskelley concerning a statement?

A: The first time would have been June third.

Q: Any other statements taken from him?

A: No.


Q: None after that?

A: No.

Q: So it will be fair to say that there were no other statements other than the first statement you took from Mr. Misskelley and the second statement you took from him -- there was nothing else presented to Judge Rainey as a result of Mr. Misskelley's statements?

A: At that particular time, yes, sir.

Q: When you say, "at that particular time," how many other times --

A: He was interviewed once before but not by me.

Q: You are the one that made application for the search?

A: That's correct.

Q: Anything contained in that interview with Mr. Misskelley -- those items were not
presented to Judge Rainey?

A: That's correct.

Q: Tell me the first time you met with Judge Rainey concerning the issuance
of this Search Warrant.

A: The evening of June third.

Q: What time did you meet with him the first time?

A: I'm not exactly sure. It was in the afternoon hours.

Q: Could you get within 30 minutes?

A: It may be documented somewhere but I don't have it on my mind.

Q: Was it before five o'clock or after?


A: I'm not certain.

Q: You just don't have any idea?

A: I'm not certain of the time. I was up until four o'clock the next morning.

Q: So you -- was it before lunch or after lunch?

A: After lunch.

Q: You met with Judge Rainey. Did you meet with him on a subsequent occasion on the third?

A: On the third.

Q: Yes, sir.

A: Met with him when we were preparing the Affidavit for Search Warrant.

Q: Let me show you what -- I will show you State's Exhibit Four. You have already
identified that. It shows on here the time you were in front of Judge Rainey was at 9:50 p.m. Is that correct?

A: Yes, sir, that is what it shows.

Q: Is that the first time you met with him that day concerning the issuance of this Search Warrant?

A: Maybe met with him prior to that, just a few hours prior to.

Q: Where would that meeting have occurred?

A: It would have been in our office at the police department.

Q: At your office in the police department?

A: At the office in the police department. It could have been


in the Court Clerk's office or in the office at the police department.

Q: Do you recall why you met him earlier in the day?

A: Why I met with him?

Q: Yes, sir.

A: He was assisting in preparing the Search Warrant and Affidavit.

Q: Judge Rainey was assisting in preparing the Search Warrant Affidavit. Is that what you're telling me?

A: Yes, sir.

Q: How was he assisting you in preparing a Search Warrant Affidavit?

A: He was informing us as to the elements that needed to go in this Affidavit in order for it to be a legal document.

Q: So you met with him and then he was telling you how to fill it out?

A: He was telling us what the elements needed to be in order for this to be a legal document.

Q: What did he tell you?

A: He told us what elements needed to be in the document.

Q: What elements are those?

A: Those elements that are there.

Q: Did he tell you, "You need to have this and this and this?"

A: Yes, sir.

Q: And then did you proceed to go out and get this, this and


this -- those items he told you you needed to get?

A: Yes, sir.

Q: So he told you what you needed to get and you went out and came back and met with Judge Rainey?

A: Yes.

Q: Where did you meet at?

A: In the Court Clerk's office.

Q: In West Memphis?

A: Municipal Court.

Q: Who was present?

A: Myself, John Fogleman, Gary Gitchell, Jimbo Hale, and the Court Clerk.

THE COURT: Were you put under oath and did you give testimony before the Court at that time?

THE WITNESS: Yes, I did.


Q: Let me show you -- when you met with Judge Rainey at 9:50 p.m. on the third, it would be fair to say that Judge Rainey had some concerns about some discrepancies in the initial statement of Mr. Misskelley?

A: Yes, sir.

Q: In fact he talked to you about that?

A: Yes, sir.

Q: And in fact Mr. Fogleman asked you some questions about that?


A: Yes, sir.

Q: It is fair to say he talked with you about some corroboration?

A: Yes, sir.

Q: Judge Rainey asked you about his concerns. In his words, "obvious discrepancies?"

A: Yes, sir.

Q: one of those obvious discrepancies was to the time that these homicides occurred?

A: That's correct.

Q: And you had met at another time with Mr. Misskelley?

A: The second interview was not done by me. The second interview to clear up the discrepancies was done by Mr. Gitchell.

Q: Were you present?

A: No.

Q: Do you know the time that was done?

A: I don't have the time with me.

Q: Mr. Fogleman asked you about some corroboration in the Affidavits concerning statements by Mr. Misskelley. Did you tell Mr. Fogleman under oath that the testicles and the penis of one of the boys had been completely removed?

A: I told him they had been removed?

Q: And that is not correct?

A: Excuse me?


Q: You know that not to be correct, don't you.

A: To my knowledge, that is correct.

Q: The penis was completely removed from the body of one of the victims?

A: The penis was removed. Yes, sir.

Q: It is your sworn testimony today that you didn't know that when you were in front of Judge Rainey?

A: Yes, sir, I knew that.

Q: It was your sworn testimony that they were completely removed -- both the testicles and the penis?

A: The penis was removed from one of the boys. I understand that.

Q: That's still your understanding?

A: Yes, sir.

Q: And you also stated that you had -- did you get that information from the State Crime Lab?

A: I saw it myself at the crime scene.

Q: It is your testimony -- and I don't want to belabor this -- that the penis was entirely removed?

A: To my knowledge. A medical term may be different from that. To my knowledge, the penis was removed.

Q: Did the State Crime Lab tell you that had been done?

A: The penis had been removed and the wording is something like, "the scrotum had been scraped," but the penis had been removed. That is to my knowledge.


Q: You would agree with me Judge Rainey had some serious, serious concerns about discrepancies in Mr. Misskelley's statement at the time he was to issue this Search Warrant?

A: Yes, sir.

Q: Isn't it true that you were familiar -- and you had read the statement -- the second statement of Mr. Misskelley when you were in front of Judge Rainey at approximately 9:50 p.m.?

A: No, sir, I hadn't read it yet.

Q: You had not read that?

A: No, sir.

Q: Have you read it subsequent to then?

A: Yes, sir, I have read it.

Q: You're aware then that in the second statement --

MR. FOGLEMAN: Your Honor, Detective Gitchell who Detective Ridge said took that statement is here, and I think he would be the appropriate person to testify about that.

MR. WADLEY: Judge, I can ask him -- I can certainly go --

THE COURT: Ask him if he read it or if he's familiar with the contents of it. Is that what you want to ask him?

MR. WADLEY: I've asked him, and he said he is, Judge.

THE COURT: All right. Go ahead.



Q: You're familiar with it?

A: With the second statement?

Q: Yes, sir.

A: What was told to me at that point. Yes, sir.

Q: Have you read the second statement?

A: Yes.

Q: When did you read it?

A: Sometime after the arrests were made.

Q: Prior to being in front of Judge Rainey, did Mr. Gitchell tell you what was in the second warrant concerning the materials use to tie the boys up -- what Mr. Misskelley said?

A: I don't know that that was specifically covered. No, sir.

Q: Isn't it true that Mr. Gitchell told you that Misskelley stated they were tied up with a brown rope?

A: I'm not certain if that's what Mr. Gitchell told me or not.

Q: He may have told you that?

A: He may have. Yes, sir.

Q: You know, don't you, that that is not in fact what happened, correct?

A: Yes, sir.

Q: You knew that when you were in front of Judge Rainey, didn't you?

A: Yes, sir.

MR. STIDHAM: Judge, may counsel approach the





MR. STIDHAM: We're getting off the course of the Affidavits being merely in the Court's presence. We've got dozens of members of the media out there who are writing all this information down, and I suspect it will be in the papers and on TV tonight and tomorrow. This is highly prejudicial to Mr. Misskelley.

THE COURT: What are you getting at?

MR. WADLEY: This goes to the veracity and the officer's knowledge of what was going on when he was in front of the judge seeking a Search Warrant to go search someone's house. I think it's proper --

MR. STIDHAM: I'm not saying --

MR. FOGLEMAN: If Detective Ridge had lied to the judge or something about something, that's one thing -- but if he --

THE COURT: I think you need to go into it through Detective Gitchell.

MR. STIDHAM: These are sealed documents. I'm not arguing that he shouldn't go into it. I'm arguing that we should do this in camera because these things


we are discussing now are under seal. The Affidavit's been sealed to my understanding, and we're talking about specific allegations, and I know the Commercial Appeal printed it on the front page of the newspaper, but Judge we're going to be going through this again on --

THE COURT: I'm not going to enter a gag order or try this thing in a void. They've got a right to be here.

MR. STIDHAM: On this particular issue, Judge, I think it's prejudicial.

THE COURT: No. Overruled.

MR. FOGLEMAN: Judge, my only objection to what he's doing is is that if there's some fact he says in the Affidavit is a misrepresentation or is just flat out not true, I have no objection to him asking about that, but just asking about stuff that's not misrep -- I mean he's asking about -- the thing about the rope and the shoestring. That's not addressed in the Affidavit for Search Warrant.

MR. WADLEY: All I'm saying is I'm asking questions to this effect is that --

THE COURT: I'm going to view the search warrant from its four corners including the testimony that was given to the judge, and that was the basis for his


issuance of the Search Warrant, and really that's the only thing that is pertinent.

MR. STIDHAM: Judge, this is highly prejudicial --

MR. WADLEY: -- this is certainly a relevant factor in determining whether there was a good faith basis for him to issue the Search Warrant.

THE COURT: Okay. If you want to ask him for that purpose.



Q: Detective Ridge, on the third day of June of this year did you have a conversation with anyone at the State Crime Lab in Little Rock?

MR. FOGLEMAN: What was that date?

MR. WADLEY: The third.


A: I didn't, no.

Q: Do you know anyone that did have conversations with anyone at the Crime Lab?

A: To my knowledge, Detective Gitchell did.

Q: He talked to some folks down there?

A: Yes.

Q: Were you present when he made a phone call to them?

A: I was aware he made a phone call, but I don't think I was



Q: When did you first become aware that he had made a phone call?

A: Sometime after I was preparing this information.

Q: Which would have been when?

A: Sometime in the afternoon hours.

Q: So it would be fair to say that you never talked to anyone with the Crime Lab on the third prior to them coming to Marion?

A: Yes.

THE COURT: Did you obtain information from a fellow investigative officer about results from the Crime Lab?

THE WITNESS: Yes, sir.

THE COURT: Are you maintaining there's something wrong with that?

MR. WADLEY: No, your Honor. I'm laying a foundation for later testimony.

THE COURT: Go ahead.


Q: In Exhibit C would you pull out the items that were taken from Mr. Baldwin's trailer?

A: Yes, sir.

Q: Let me first ask you, Officer, in Exhibit C you refer to on the items that you want to remove from the trailer of Jason Baldwin -- you refer to "cult materials" and then in parentheses


you have "satanic materials?"

A: Yes, sir.

Q: First thing I want to ask you is describe for me what cult materials are.

A: As a definition a cult material as a cult would be a group, and the cult materials would be any kind of groups with symbolism, writings, paraphernalia that would agree with that cult.

Q: Be specific. What are you talking about? You have "cult materials" and then in parentheses you have "satanic materials." Are you talking about specific items?

A: Books, reading materials, drawings, knives, anything of that nature.

Q: Was there anything in the statement of Mr. Misskelley which gave you reasonable cause to believe that satanic materials would be found in the trailer of Jason Baldwin?

A: That it was part of a satanic cult.

Q: I'm talking about Jason Baldwin. I'm not talking about Mr. Misskelley. I am talking about Jason Baldwin.

A: Just what Jessie Misskelley has told us?

Q: In the Affidavit that you have attached for the issuance of a Search Warrant, I want you to tell me what he told you for the issuance of a Search Warrant for cult materials.

A: Just that he had been part of a cult activity.

Q: That Mr. Misskelley had, correct?


A: And that Jason had.

Q: Where in the statement do you ask him that question?

A: Well, I will have to look through it, but it is part of the total investigation.

Q: You have attached exhibits when you to to this judge and say, "I want a Search Warrant to search the house of Jason Baldwin," and you give him information to make a basis to issue that warrant. I'm asking you where in the statement of Misskelley does it talk about Jason Baldwin giving rise to finding materials in his house or trailer?

A: I will have to read the whole statement.

Q: Read it.

MR. FOGLEMAN: My only objection to this question is Mr. Wadley is asking him to look at one part of the Affidavit and not taking into consideration other parts of the Affidavit, and based on that we object to the form of that question.

MR. WADLEY: Your Honor, there are three exhibits attached as a basis for their Affidavit, and there are some questions asked by Judge Rainey and asked by Mr. Fogleman to Detective Ridge, and I am asking him with respect to the Affidavits -- A, B and C -- on the Affidavit for Search Warrant where that language is that Mr. Misskelley stated that Jason Baldwin had cult materials in his house.



A: The taped interview does describe the investigation having pointed to cult activities and Jason Baldwin and Damien Echols being a part of that.

Q: The taped interview?

A: Yes.

Q: Where -- which one are you talking about?

A: The testimony given in front of Rainey that evening.

Q: Did you have a transcript of that tape that you gave to Judge Rainey?

A: Yes, it was done.

Q: I'm saying -- did you give any -- the recordings of Mr. Misskelley that you gave to him that evening?

A: No, sir. The recordings of the investigation what showed that it was a satanic group or a cult.

Q: Do you have that information with you?

A: I think it is in that interview right there.

Q: Did you present those things individually? Do they contain what people had told you?

A: Yes, sir. Contains elements of the investigation up to that point.

Q: Officer, in your statement that you made to Judge Rainey you say you made -- you get that information from somewhere, don't you?

A: Yes, sir.


Q: You get that from what people have told you?

A: Partly what Jessie has told me, yes.

Q: Tell me in either statement -- first of all, show me in Mr. Misskelley's statement where a question was asked of him -- that you asked him -- is Jason Baldwin involved in any cult activity.

A: It's not in the taped interview. It was in the interview before the tape began.

Q: You will agree with me it is not contained in Exhibit B that you presented to Judge Rainey, right?

A: I'm not certain. I would have to read through it.

Q: Read it.


Q: Can you point to anything in the statement of Mr. Misskelley where he said that Jason Baldwin was a member of the cult?

THE COURT: Pages twenty-four, twenty-five and twenty-six.


A: He refers to the cult activities on the pages that the judge pointed out.

Q: He refers to cult activities, doesn't he.

A: Yes, sir.

MR. FOGLEMAN: Your Honor, if Detective Ridge could be given permission to answer the question without Mr. Wadley interrupting him and allow him to


finish the answer.

MR. WADLEY: Judge, I'm not meaning to do that.

THE COURT: All right. Go ahead. Were you through?

THE WITNESS: Yes, sir.

THE COURT: Go ahead.


Q: Fact of the matter is he refers to cult activities, doesn't he.

A: Yes, sir.

Q: But he never makes any reference to Jason Baldwin, does he.

A: In this statement, no, sir.

Q: He does not, does he.

A: No, sir.

Q: In the second statement that you had -- the follow-up statement of Mr. Misskelley -- he makes no reference of anything to do with anything concerning Jason Baldwin and cult activities, does he.

A: I don't have that statement in front of me. I don't know. I didn't take the statement.

Q: Were you present when it was taken?

A: No, sir.

Q: In the Affidavit contained in your Exhibit B to the Search Warrant, more specifically, the statement of a gentleman by the name of William Winfred Jones. Are you familiar with that?


A: Yes, sir.

Q: You took his statement?

A: Yes, sir.

Q: It is also fair to say that he never made a statement that Jason Baldwin was involved in any cult activities, did he?

A: Yes, sir.

Q: You agree with me?

A: Yes, sir, I agree with you.

Q: He never made that reference?

A: No.

Q: And the Affidavits of any other person that you may have talked to in the community -- those Affidavits were not presented to Judge Rainey when he was doing the taped statement, were they?

A: No.

Q: If you will refer to Exhibit C and refer to the items taken from the house, or the trailer, excuse me. Is it fair to say that Mr. Misskelley told you in his statement that when this event occurred that Mr. Baldwin was wearing a black tee shirt. Is that right?

A: Yes, sir.

Q: There was some confusion as to whether or not he was wearing a tee shirt that had a name written on it, either Metallica or Megadeath?

A: Yes, sir.


Q: It was one of those two, right?

A: Yes, sir.

Q: And then as to the pants that Mr. Misskelley says Mr. Baldwin was wearing, he described those pants as being some blue jeans with holes in them. Is that correct?

A: Yes, sir.

Q: It is also fair to say that you never asked Mr. Misskelley if he had ever been in the trailer of Jason Baldwin? Isn't that fair to say?

A: I don't remember asking him that. No, sir.

Q: As a matter of fact, there's nothing contained in any statement that you have taken from Mr. Misskelley that he ever saw any of those items that you took out of Mr. Baldwin's house located in Mr. Baldwin's trailer. Isn't that fair to say?

A: Yes, sir.

Q: Isn't it fair to say that in the statement of Mr. Misskelley he makes reference to a briefcase and some other contents with pictures in it. Is that right?

A: Yes.

Q: He never ever says -- he never makes a statement that these items were ever in the possession of Jason Baldwin, does he?

A: I don't think so. No, sir.

Q: Based upon that statement there was no reason to believe that those photographs would be found in Mr. Baldwin's trailer, is there.


MR. FOGLEMAN: Your Honor --

THE COURT: This question is argumentative and I'll sustain the objection.

MR. WADLEY: Your Honor, I -- I will ask it a different way.

MR. FOGLEMAN: Your Honor, before he continues this, the law is clear that the Search Warrant and Affidavit are to be judged from its four corners and most of the questions go to what is in the Affidavit, and the Court can look at it and see whether or not there is a problem with it. If there is something that is in the Affidavit that Mr. Wadley is saying is incorrect, I won't have any objection to that, but this is just a waste of time.

MR. WADLEY: Your Honor, I'm allowed --

THE COURT: Go ahead.

MR. WADLEY: Are you denying his objection?

THE COURT: Yes. Y'all both are just making statements. Go ahead.


Q: Do you have any factual basis to support when you went to Judge Rainey reasonable cause to believe that a briefcase with photographs would be found in his trailer?

MR. FOGLEMAN: Object to argumentative.

THE COURT: That is a question the Court is going


to have to determine based upon the totality of the Affidavit and information submitted to Judge Rainey at the time.

MR. WADLEY: Judge, he's the one who made application for a warrant. I think I can ask him --

THE COURT: If you're asking him the question, "Did you believe you had probable cause," I think he can probably answer that because that is essentially what you're asking him.

MR. WADLEY: I'll ask it a different way, Judge.

THE COURT: All right.


Q: There's nothing that Mr. Misskelley told you in any of the statements that photographs were ever located or briefcases were ever located in the trailer of Mr. Baldwin?

A: No, sir. He didn't know where they were.

Q: Exhibit C, page two of two, it makes reference to blue green, red, black, purple fibers. Number two makes reference to blue, yellow, read, paint or plastic residue, red waxy type substance. In any of the Affidavits that you presented to Judge Rainey to seek the seizure of these items, what Affidavit did you use to support a request to the municipal judge to seek seizure of these fibers?

A: Just that evidence was collected at the crime scene and we were looking for evidence that matched that evidence at the


crime scene.

Q: You had no reason to believe that any of this stuff was at the crime scene, did you, when you made application for the Search Warrant?

A: Yes, sir, I did.

Q: What was that based upon?

A: The information received by me from Inspector Gitchell.

Q: Did you receive this information from the Crime Lab?

A: He did.

Q: And you never talked to anyone down there, correct?

A: Yes, sir, I have talked with them in the past.

Q: Did you talk to Lisa Sakevicius?

A: Yes, sir.

Q: You didn't talk to her that day?

A: Inspector Gitchell got that information.

Q: Anything in any of the Affidavits that you presented or anything you presented to Judge Rainey that he reviewed for the issuance of this Search Warrant said there was reason to believe these fibers would be found in the trailer of Mr. Baldwin?

A: The black fibers obviously could have come from the tee shirt.

Q: What else?

A: Any of these fibers which are known as trace evidence could have been found on the body as transferred from the residence of Mr. Baldwin.


Q: Is it fair to say that you could find these type of fibers in any house in America?

A: I guess it is possible.

Q: If you own something blue, green, red, black and purple -- most people own colors like that -- something made out of that, would you agree?

A: Yes.

Q: The question was is there anything that you presented Judge Rainey where you had reason to believe that these would be located in the trailer of Mr. Baldwin?

A: I don't understand how you're asking the question.

MR. FOGLEMAN: The Affidavit is there before the Court. The recorded testimony is there before the Court. I'm making an objection based on a waste of time, what we're doing, going through all this. If Mr. Wadley wants to make an argument to the Court that there's no basis in the Affidavit for searching for fibers, fine. He can make that argument.

MR. WADLEY: I've asked him -- I can certainly ask --

THE COURT: You have asked him. Let's move along.

MR. WADLEY: I don't believe he's answered, Judge.



Q: Would it be fair to say that you went in there to get these fibers hoping that you might find something? You didn't know if they might be there or you were hoping you might find something?

A: That also. Yes, sir.

Q: Did you have a conversation with Lisa Sakevicius that evening when you were at the trailer?

A: Which one?

Q: At Mr. Baldwin's trailer.

A: Yes, sir.

Q: Isn't it true that she told you that she didn't expect to find anything?

MR. FOGLEMAN: Your Honor, that's hearsay. She's here and she can testify.

MR. FORD: This is a preliminary matter, too.

THE COURT: Sustained.


Q: In your Exhibit C you asked to take a black tee shirt and blue jeans with holes in the knees?

A: Yes, sir.

Q: Do you know how many blue jeans you took from his residence that had holes in the knees?

A: With holes in the knees, I don't think we found any.

Q: You took a bunch of blue jeans out of there?

A: Ah, I kept two pair of jeans.

Q: Neither of them had holes in the knees, correct?


A: Yes, sir.

Q: The Affidavit you asked for -- you specifically asked for blue jeans with holes in the knees?

A: Yes, sir.

Q: You took items out of the trailer that you didn't even get a Search Warrant to take, didn't you?

A: Took items after getting fiber samples from those items, yes, sir.

Q: Same thing with the tee shirt. You took about 17 tee shirts?

A: Fifteen black tee shirts and one white tee shirt.

Q: And the items that you took shows here a poem on a piece of paper. Is that one of the items you considered to be a cult or satanic items?

A: It was questionable in nature. I left that to somebody more learned in the field.

Q: You didn't know but you went ahead and took it anyway?

A: That's correct.

Q: You also asked Judge Rainey in your Affidavit and also in your sworn testimony in front of Judge Rainey that you were requesting a nighttime search of Mr. Baldwin's trailer?

A: Yes, sir.

Q: What written Affidavits of possible suspects or witnesses that you had interviewed -- what written Affidavit did you provide to the judge -- Judge Rainey that Jason Baldwin was a


member of a close knit cult group?

A: The testimony that I gave him concerning the investigation.

Q: What written Affidavits either from a witness or defendant or suspect did you give to Judge Rainey concerning or supporting your contention that these gentlemen were members of a close knit cult group?

A: Written documents, none.

Q: When you have a case involving homicide and you have got multiple suspects or defendants, would not it be fair to say it is your policy that you want to do a nighttime search in those type situations?

A: That I would want to?

Q: Yes, sir.

A: No, sir.

Q: If the defendants or suspects know one another and it is a homicide case -- any homicide case -- it is your policy that you want a nighttime search in those situations?

A: No, sir.

Q: It is not?

A: No, sir.

Q: You gave two bases to support a search of Mr. Baldwin's trailer after 8:00 p.m.

A: Yes, sir.

Q: One of them was that the boys are close knit cult members?

A: Yes, sir.


Q: You also gave a reason for that is that, "We know they are very close and when they discover the one we have now is missing from the group, they'll very likely destroy any evidence." Is that correct?

A: Yes.

Q: Those are the only two bases, correct?

A: Yes.

Q: There's nothing that you presented to Judge Rainey based upon any Affidavits from any person, other than one, that these defendants even knew each other?

A: That I presented to him?

Q: Yes.

A: To my knowledge, knowing that they were a close knit group of a satanic cult.

Q: I'm not talking about your knowledge. I'm talking about what you presented to the judge.

A: I presented my knowledge.

Q: How did this knowledge come to be? Did you get it in a dream?

A: No, sir. Through the investigation.

Q: Those investigations are based upon talking to people?

A: Yes, sir.

Q: You talked to them and you write down their statement or more importantly you have them write it down and sign it?

A: Yes, sir.


Q: You didn't present evidence about being close friends, did you, that were written down?

A: I presented my testimony knowing that those statements existed.

Q: You didn't present them to the judge?

A: I presented my statement.

Q: Based on what somebody else told you?

A: Yes, sir.

Q: In Exhibit C what was your basis for looking for these particular colors?

A: The Crime Lab had relayed that these items were of interest in the recovered fibers and evidence on the bodies.

Q: The Crime Lab didn't relay to you that they had reason to believe they might be located in Mr. Baldwin's trailer, did they?

A: No, sir.

Q: Was that related to you or Mr. Gitchell?

A: Mr. Gitchell.



Q: Detective Ridge, the statement that was taped which Mr. Misskelley gave -- the first statement -- began at 2:44 p.m.?

A: Yes, sir.

Q: The rights form itself that was preceded by this particular statement -- are you aware that that rights form was signed at


11:00 a.m.?

A: Yes, sir.

Q: Between 11:00 a.m. and 2:44 p.m. did you or Detective Gitchell talk to Mr. Misskelley?

A: Yes, sir.

Q: Is that approximately three hours and forty-five minutes? Do you have written notes concerning that conversation?

A: Yes, sir.

Q: Have those been made available to Mr. Fogleman?

A: Yes.

Q: The discovery process has been on-going. Do you know when those notes were made available to Mr. Fogleman?

A: I don't have the documents with me. I do have them at the office and they are dated.

Q: We got a batch of stuff in July and August and some in September. Do you know approximately when your notes were given to Mr. Fogleman?

A: Should have been the first batch of notes that you received.

Q: I believe you testified earlier the second statement that was conducted was to clarify the previous statement that was done by Detective Gitchell?

A: Yes, sir.

Q: You were not present?

A: No, sir.


Q: Prior to that statement being recorded, did Detective Gitchell talk to Mr. Misskelley in between the previous recorded statement and the second recorded statement?

A: No that I'm aware of. I wasn't there.

Q: I believe the first statement -- the one that started at 2:44 ended at 3:18?

A: I think that sounds right. Yes, sir.

Q: Moving back on the first statement -- the one that you were present at -- at the time approximately around 2:20, 2:44, Mr. Misskelley began to break down and cry?

A: Yes, sir.

Q: I believe there's some references in your notes that you gave Mr. Misskelley some time to compose himself?

A: Yes, sir.

Q: Also at the same time did you being to cry also?

A: Yes, sir, I did.

Q: I believe the notes indicated you also needed some time to compose yourself due to the emotional situation?

A: Yes, sir.

Q: As far as the items you were requesting to be received from Mr. Echols' house -- you did not have reason to believe that any of the objects to be seized were in danger of imminent removal, did you?

A: In my judgment, yes, sir.

Q: The items that you were searching for were black pants of


Mr. Echols?

A: Yes, sir.

Q: And also black boots?

A: Yes, sir.

Q: And I believe there was a briefcase with some material in that?

A: Yes, sir.

Q: And some knives?

A: Yes, sir.

Q: And the items of trace evidence and I think those were as a matter of fact the exact items Mr. Wadley mentioned earlier, fibers and plastics and some red waxy substance?

A: Yes, sir.

Q: As a matter of fact, Exhibit C was attached to both defendants' exhibits?

A: Yes, sir.

Q: Besides that y'all were also searching for cult materials and in parentheses satanic materials and a belt?

A: Yes, sir.

Q: It is your position that those items were in danger of being imminently removed?

A: Yes, sir.

Q: Those are clothing items?

A: Yes, sir.

Q: The location of the Echols' residence -- it was not


difficult to get to that residence, was it?

A: No, sir.

Q: Y'all had been surveying that residence for a certain period of time?

A: I don't know of any surveillance.

Q: Attached to the Search Warrant Affidavit was a photograph of Mr. Echols' house?

A: Yes, sir.

Q: Was that a photograph that you took or another officer took?

A: The copy I have here shows the residence of Domini Teer. If this is the correct Search Warrant, the wrong picture has been attached. There were four Search Warrants. There was one Search Warrant, Damien Wayne Echols, for his residence at -- in West Memphis -- and the second Search Warrant for a place where he was staying in Lakeshore which is Domini Teer's residence.

Q: As far as the location of Mr. Echols' home, would you say that would it be difficult to predict with accuracy how successful you may have been with that Search Warrant?

A: Evidence was found at the scene that was seized.

Q: What y'all go there was rather easy to get?

A: Yes, sir.

Q: As a matter of fact attached on the return are all the items that were recovered at the Echols' house.

A: Yes, sir.




Q: Detective Ridge, when you're talking about first and second taped statements, are you talking about recorded statements?

A: Yes, sir.

Q: Was there a time -- and I think Mr. Price alluded to it -- where you and another detective talked to Mr. Misskelley when you were just interviewing him?

A: Yes, sir, twice.

Q: Who was the other investigator?

A: Mike Allen began the interview in which the general information was gotten and Jessie's statement as to what the flow of events were that day.

Q: Are these your notes from that interview?

A: (EXAMINING) Yes, sir.

Q: Mr. Wadley was asking you some questions about this cult and all that. Did Mr. Misskelley tell you -- give you a list of names of the people that participated in that cult?

A: Yes.

Q: Of the list that he gave you, if you would just -- who were the first three?

A: Jessie, Jason and Damien.

Q: That was prior to the tape recorded statement that's attached to the Affidavit?

A: Yes, sir.


Q: In the tape recorded statement that is attached to the Affidavit, did he talk more about those cult type activities?

A: Yes.

Q: Did he refer to a photograph of the victims that he saw at one of these cult type meetings?

A: Yes, sir.

MR. WADLEY: Object to leading.

THE COURT: Avoid leading.


Q: Is there something to that effect in the Affidavit -- in the recorded testimony?

A: Yes, sir.

Q: In the statement of Mr. Jones that is attached to the Affidavit, if you would refer to that. I will withdraw that. The Court's got that.

THE COURT: The Court is aware of what it says.


Q: In regard to -- in the recorded testimony before Judge Rainey here in the recorded testimony where you said it is a close knit group of cult members and you say verified by other members of the community. Did you have other witness statements in your file that backed you up in what you said there?

A: Yes, sir.

Q: Approximately how many other statements?

A: Six.


Q: At the time you requested this Search Warrant from Judge Rainey, was one of those members in your custody?

A: Yes, sir.

Q: And that was Jessie Misskelley?

A: That's correct.

Q: On the issue of what happened that day, after Mr. Misskelley made the statement that is attached to the Affidavit for Search Warrant, was it at that time when y'all decided to seek a Search Warrant?

A: Yes.

Q: Who did y'all consult in the preparation of the Affidavit?

A: You and Jimbo Hale.

Q: In fact I was down here in a murder trial?

A: Yes, sir.

Q: Where was the Affidavit prepared?

A: In my office at the police department.

Q: In the course of preparing -- had the tape recording already been transcribed when we first started preparing the Affidavit?

A: No, sir, it was still being transcribed.

Q: Do you recall approximately how much time was spent in preparing the Affidavits for Search Warrant?

A: Probably at least two hours.

Q: During the course of the preparation of the Affidavit for Search Warrant, was there other activity going on?


A: Yes, sir.

Q: What was about to happen?

A: We were seeking arrest warrants for the defendants. We were trying to contact the Crime Lab to get representatives from there to help in the collecting of evidence. We were trying to get the wording of the Affidavits in correct and proper order. Just a little bit of everything was going on during that period of time.



Q: You did not obtain permission from Jessie Misskelley, Senior, to talk to Jessie Misskelley, Junior, did you?

A: As far as I know, yes, sir.

Q: Was that done by written permission?

A: Mike Allen would have to answer that question.

Q: As far as -- you're not aware of any written document that you would have had Mr. Misskelley, Senior to sign granting permission for y'all to talk to his son?

A: The document was signed in order for a test to be performed.

Q: A physical test of some type?

A: Excuse me?

Q: Y'all had Mr. Misskelley, Senior, sign a consent to search form?

A: Yes, sir.


Q: Did you obtain written permission from Jessie Misskelley, Senior, to talk to Jessie Misskelley, Junior?

A: I did not.

Q: Do you know of anyone in the department that did?

A: I'm not certain.



Q: How long had Mr. Misskelley been in custody or not free to go his own way before you went to the trailer of Mr. Baldwin?

A: He had been in custody since the conclusion of the interview which would have been 3:18 and whatever time we made it to the trailer of Jason Baldwin.

Q: How long had he been at the police station prior to concluding the statement?

A: I don't have the documentation in front of me, but I think it was mentioned 11:00 that morning.

Q: When did you make a search of the Baldwin trailer?

A: I don't have the documentation with me, but it was later that same night, right at midnight or just before.

Q: So from 11:00 to midnight Mr. Misskelley had been in custody. Is that right?

A: Yes, sir.



having been first duly sworn to speak the truth, the whole truth


and nothing but the truth, then testified as follows:



Q: Will you please state your name?

A: Gary Gitchell.

Q: You're an inspector with the West Memphis Police Department?

A: Yes, sir.

Q: I want to direct your attention to June third, 1993. Did you participate in the questioning of Jessie Misskelley, Junior?

A: Yes, sir, I did.

Q: I believe that the exhibit that is attached to the Affidavit for Search Warrant which is the transcribed portion of that statement indicates that that interview ended at 3:18, something like that, after 3:00 p.m.?

A: 3:18 p.m.

Q: Once that portion of the interview concluded, what steps did y'all take in beginning work on obtaining a Search Warrant?

A: Well, we had to contact our prosecutors, our deputy prosecutors, the municipal court judge. We contacted the court clerk, Debbie, and all the key people in order to properly file the papers and go through the process of getting all the papers together and making copies for the different locations we were going to search.

Q: From the time that the -- this 3:18 p.m. when you began


work on this until the time that the search warrants were issued -- what if anything were you working on? Were you working continuously?

A: Yes, sir. It was actually a madhouse trying to get all the paperwork together.

Q: In the course of the preparation of the Affidavits for Search Warrants, who was present?

A: You mean actually preparing the papers?

Q: Or assisting in the preparation of the papers.

A: It would have been Detective Ridge for the most part. Sudbury participated in that. Myself some and then deputy prosecutors were present.

Q: Myself and --

A: Mr. Hale.

Q: There was some testimony earlier about Judge Rainey participating and telling what needed to be in the Affidavit for Search Warrant. Were you present when Judge Rainey did anything like that?

A: That wouldn't be in the scope of his duties to do anything like that.

MR. WADLEY: I object to this witness saying it wasn't in the scope of his duties. There's testimony that he did do that.


Q: When you were present, did you ever observe him do anything


like that?

A: No, sir.

Q: Did you observe others instructing what needed to be in the Affidavit?

A: Like yourself and Mr. Hale.

MR. WADLEY: Your Honor, by agreement the State has no objection to introducing Defendant's One. It's the transcript of the "Interview of Jessie Misskelley, Junior, Second Interview Conducted to Clarify Previous Statements."

THE COURT: It may be received.


THE COURT: Is that part of the Affidavit for Search Warrant?

MR. WADLEY: No, it's not, your Honor.

THE COURT: What's it being offered for.

MR. WADLEY: Judge, I'm going to tie this into the sworn testimony that was taken by Detective Gitchell and Detective Ridge when they were in front of Judge Rainey.



Q: Detective Gitchell, you were present at approximately 9:06 p.m. on June third, 1993, with Judge Rainey, Mr. Fogleman and


Detective Ridge. Is that correct?

A: On and off I was. Not during the whole time.

Q: You recall being sworn in?

A: Yes, sir.

Q: By the judge?

A: Yes, sir.

Q: Where was that done at?

A: Municipal court chambers.

Q: You would agree with me that at the beginning of the interview with the judge and testimony being taken that Judge Rainey was concerned about some discrepancies in the first statement taken by Mr. Misskelley? Would you agree with that?

A: No. That the judge was -- no, sir.

Q: Have you reviewed the recorded transcript from this?

A: I believe that's mine.

Q: This is yours?

A: If this is -- no, no. I thought you had in reference to conversations I had with Mr. Misskelley.

Q: I'm referring -- I was asking you questions about being at municipal court at 9:03 p.m. on June third. You recall that, right?

A: Okay.

Q: That testimony was recorded?

A: Yes.

Q: You were sworn in as was Detective Ridge?


A: Right.

Q: And do you recall Judge Rainey stating to the two of you that he had some obvious concerns about discrepancies in the statement of Misskelley as to the time that these murders occurred?

A: I would have to read this to --

Q: Read it.


Q: I'm referring to the first paragraph. "I have completed this statement." This is Judge Rainey talking. "I have a question concerning what appeared to be some obvious discrepancy in time based upon the information provided me tonight concerning the investigation."

A: Okay. I guess I don't understand what you're asking.

Q: You were there when the judge was talking?

A: Yes, sir.

Q: You were sworn in at the very beginning of the evening when you were down there?

A: Right.

Q: You were aware that Judge Rainey had some concerns about discrepancies in the statement of Mr. Misskelley, correct?

A: That is what it says here, but what discrepancies are you talking about?

Q: As to time. I believe --

A: What times though?


Q: As the time where his statement stated that his occurred at twelve noon, and you testified to say that you cleared that up, correct?

A: That's when I stated earlier I thought you were regarding to an interview with Mr. Misskelley. That is what I thought you was in reference to.

Q: What I'm referring to is when you are down in Judge Rainey's chambers. You recall this going on, don't you?

A: Sure. It is right there.

Q: He had some concerns about discrepancies?

A: Right.

Q: You have been involved in this investigation from day one?

A: Yes, sir.

Q: As a matter of fact it would be fair to say that you're in charge. You are the person in charge of this investigation?

A: Right.

Q: Prior to June third, 1993, you knew the manner in which these boys were bound. Is that correct?

A: Right.

Q: You also knew the type material that was used to bind them?

A: Right.

Q: What was that?

A: Shoestrings.

Q: What color were they?

A: Different colors. Black, white.


Q: What else?

A: That's all I can recall at this time.

Q: Additionally, you are also the person who conducted the interview with Mr. Misskelley, the second one?

A: First and second.

Q: The one we have introduced as Defendant's one.

A: This is, yes, sir. Exhibit One. This is the second interview.

Q: In the second interview Mr. Misskelley describes the material used to tie these boys up as being a brown rope?

A: Right.

Q: You knew when you were in front of Judge Rainey down at the police department or down at his chambers, you knew he had some concerns about discrepancies?

A: I believe that was a discrepancy on time.

Q: You knew he was looking at those things, correct?

A: No, sir.

Q: And you knew when you were down there that there were statements this man had given concerning rope that were not accurate, didn't you?

A: No, sir.

Q: You didn't know that?

A: I don't understand what the point you're trying to make. Are you trying to indicate that I withheld information?

Q: No, sir. Let me ask you again.


A: That's the appearance I get.

Q: Well, I will ask it again. When you were present at Judge Rainey's chambers and you were there and you were trying to get a Search Warrant to search the trailer of Jason Baldwin, correct?

A: Right.

Q: You know -- and you're a detective and have been in those situations before?

A: Right.

Q: You know that a magistrate is going to look at it to make an informed decision to issue a Search Warrant or not issue a Search Warrant?

A: Right.

Q: You had knowledge at that time based upon taking the statement of Mr. Misskelley, the second statement of Mr. Misskelley, that he described in there that the boys had been bound with a brown rope. Is that correct?

A: That's what he stated.

Q: You knew that not to be true, didn't you?

A: I don't know that all of that's not true. I don't know.

Q: You don't know?

A: That is what he stated, yes.

Q: You are down there and you have presented the Affidavits based on what Mr. Misskelley said, and you know that there are things in his statement that a judge is making decisions on, on


veracity and whether or not there's discrepancies in the statement and you knew there were some things in there that were not correct?

A: Who knows that they are not tied with shoestring and other rope. I don't know that. They could have been previously tied. I do not know that. So you're trying to get me to answer something I do not know.

Q: The only knowledge that you possessed was that the boys were tied up with black and white shoestrings. Is that right?

A: That's what I observed, not how they were previously. I don't know.

Q: Of course. I'm just saying you knew that?

A: I knew what I saw.

Q: It's also fair to say that the person who was applying for the Search Warrant, the person who was presenting that was not yourself but in fact it was Detective Ridge?

A: That's right.

Q: You have been a detective for a long time, haven't you?

A: Yes, sir.

Q: How long have you been serving?

A: In my 20th year.

Q: Would you venture to guess how many search warrants you have been involved in?

A: I couldn't even take a guess.

Q: Some of those warrants involved homicide?


A: Yes, sir.

Q: It's also fair to say that no situation -- it is always a madhouse. Things are always hectic when you're getting a Search Warrant, aren't they?

A: No, not like this case. There's never been another case like this one.

Q: In the issuance of another Search Warrant never has been?

A: No, sir, not like this one.

Q: When you say, "madhouse," what are you referring to?

A: You've got deputy prosecutors there, you've got some 15 police officers there. You have been to my office. You have seen the smallness of it. It is quite congested with a lot going on so I labeled it as a madhouse. It was very busy that night, the morning and the following day and some 30 days after May 6th.

Q: Whenever you're getting a Search Warrant, there's always a lot of activity going on, isn't there? That's a fair statement to make, isn't it?

A: Not as much as it is in this case.

Q: That's a fair statement to make, isn't it?

A: Little overrated, but a fair statement.



Q: When the rights form was signed by Jessie Junior, at 11:00 a.m. did Jessie Senior also sign that rights form?


A: I wasn't present. I don't know.

Q: Approximately how many hours has the West Memphis Police Department spent on this case so far?

A: I couldn't begin to tell you.



Q: When you talked to the defendant Jessie Misskelley and concluded the recorded statement, did he tell you specifically which boy -- without naming him -- was cut in the genital area?

A: Yes, sir.

Q: Was that the same person that you had observed and knew to have been cut?

A: Yes, sir.

Q: How many boys were cut in the genital area?

A: Just one boy.

Q: How many boys did Jessie Misskelley name as being cut in the genital area?

A: One boy.

Q: Did he also give you information about one of the boys being cut in the face?

A: Yes, sir.

Q: How many boys were cut substantially in the face?

A: Just one boy.

Q: How many boys did the defendant Jessie Misskelley say were cut badly in the face?


A: Just one.

Q: And that is in the recorded statement that is attached as an exhibit?

A: Yes, sir.

Q: Had this information about the specific nature of these injuries -- had that been released to the public?

A: No, sir.


MR. FOGLEMAN: Your Honor, we have nothing further. However, we would like -- in view of the statement of Detective Ridge which we had no way to anticipate -- we would like an opportunity to hold the record open for Judge Rainey's testimony.

MR. WADLEY: Judge, there's no basis for holding the record open for additional testimony. They had an opportunity to have him here today.

MR. FORD: They're trying to rehabilitate their own witness.

THE COURT: If you have to get him here, get him here. Is he here in town?

MR. FOGLEMAN: Your Honor, he's at a deposition in Memphis. He says that he can call back if we'll page him. But he's tied up in a deposition.

THE COURT: All right. I'll decide later. If I think you need to call him, I'll let you do it.


MR. FOGLEMAN: Your Honor, if it's necessary for me to testify, I'll do it. I was there.

THE COURT: All right. Call your first witness.


having first been duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:



Q: Will you please state your name?

A: Lisa Sakevicius.

Q: How are you employed?

A: At the Arkansas State Crime Lab.

Q: How long have you been employed there?

A: Five years.

Q: You work in the Trace Evidence Section?

A: That's correct.

Q: You make comparisons for fibers and hair samples that could be used to assist in the investigation of crimes?

A: That's correct.

Q: In you employment at the Arkansas State Crime Lab have you had the opportunity and occasion to be involved in this particular homicide case. Is that correct?

A: That's correct.

Q: You have been assisting the prosecution in obtaining evidence regarding hair samples and fiber samples?


A: That's correct.

Q: Describe to the Court what you did in order to obtain fibers in this case that you thought might have evidentiary value at some time in the future.

A: The items that were collected at the scene were submitted to the lab. I took tape lifts from these and viewed these under the stereoscope.

Q: The clothing of the boys, the victims, you took that and you dried it out?

A: Yes.

Q: Take masking tape or some other sort of tape and pull fibers off of it?

A: Correct.

Q: You lift that fiber off the tape?

A: I left them on the tape and viewed them through the stereoscope.

Q: You leave them on the tape and look at them under the microscope?

A: That's correct.

Q: You do the same -- you did that for any item of evidence they submitted. You looked for some sort of fiber. Is that correct?

A: That's correct.

Q: You did the same thing with a knife and leather scabbard that was submitted to you?


A: There were several knives that I did that to.

Q: In one particular case you found a fiber in a leather scabbard -- you would actually take it apart?

A: I did do that.

Q: You found a fiber. Is that correct?

A: Yes. There were several fibers there.

Q: Did you receive a call on the day of June third, 1993, from someone affiliated with the West Memphis Police Department?

A: Yes, sir, I did.

Q: What time did you receive the phone call?

A: It was about ten to four.

Q: Is it safe for me to say that they wanted you to come and assist them in a search?

A: Correct.

Q: To go to the residence of potential defendants to look for fibers?

A: Correct.

Q: Fibers that might match these fibers you have obtained?

A: Correct.

Q: You recall visiting with me last week at your facility in Little Rock?

A: That's correct.

Q: You remember me asking about going to the residence of Mr. Baldwin looking for fibers?

A: That's correct.


Q: Did you think you would find anything to match?

A: I didn't know.

Q: Didn't you tell me that you would have been surprised to have found something in that residence that would match some of the fibers?

A: Since the clothing was recovered from the water, that is correct.

Q: You told me you would be surprised to find anything that matched.

A: That's correct.

Q: Based on your knowledge and training and experience as a criminologist in doing trace evidence, you had no reason to believe that you would find anything in the residence of Jason Baldwin that would serve as evidentiary value in comparison with those fibers you had already obtained.

A: I said I would be surprised but I would not totally exclude the possibility.

Q: When -- did you relate to the prosecution or police that it would be important to look for red, blue, purple fibers?

A: I indicated colors that they should look for.

Q: Did you also indicate that they might look for waxing or candle or some type of wax material and the color of that also?

A: That's correct.

Q: When you arrived at the residence of Mr. Baldwin, basically what you were doing was going from one room to the other, one


drawer to the next, one closet to the next looking for something in that color range or fiber type of the right type of material, the right color of material, that might match what you had obtained in your lab at Little Rock. Is that correct?

A: That's correct.

Q: Basically a fishing trip, a scavenger hunt. Is that correct?

A: I would not call it a fishing trip.

Q: You didn't know what you were looking for. It was just, "I know it when I see it"?

A: I knew what I was looking for. I knew what color fibers I was looking for.

Q: You did not know where it was?

A: I didn't know where they would be.

Q: And you didn't know whether they would be in there.

A: I didn't know.

Q: So you had to just look from one room to the next, one drawer to the next, one closet to the next until maybe you find something. Is that correct?

A: That's correct.

Q: Was there any scientific reason that this search needed to be conducted at night?

A: Not to my knowledge.

Q: Did you have any reason to know or believe that these fibers were subject to imminent removal?


A: Which fibers? What do you mean?

Q: Any fibers that you would be looking for.

A: That they would be taken in the search?

Q: No. Did you have any reason to believe they might disappear on you?

A: Oh. I don't know.

Q: One of the fibers that you found was from a toilet seat cover?

A: Yes, sir.

Q: The other one was from a red robe?

A: Yes, that's correct.

Q: Was that a man's robe or woman's robe?

A: I believe it was a woman's.



Q: A few minutes ago Mr. Ford was asking you some questions about the process you did when you went to Mr. Baldwin's house looking for certain fibers and certain clothing?

A: Yes.

Q: Did you do the same procedure at Mr. Echols' house?

A: Yes, I did this at all the residences.



Q: You had told the West Memphis Police Department the specific colors and types of fibers that you had found on the


items submitted to you previously?

A: That's correct.

Q: So when you went with the officers in executing the Search Warrant, you were looking for at that time particular colored fibers that might match or be similar to those you previously found. Is that right?

A: That's correct.

Q: As far as what you were able to locate that evening when you accompanied the officers, you were going primarily on the color of the fiber. Is that true?

A: That's true.

Q: Then when you get back to the Crime Lab, you were able to further compare and determine if the fiber you located compared in other fashion other than just color?

A: That's correct.

Q: You had provided that information to the police department prior to your coming here to assist them in the search as far as what fibers you had already located and what colors they were?

A: That's correct.


THE COURT: Call your next witness.

MR. FORD: Mr. Baldwin has no further witnesses to call at this time.

MR. PRICE: Judge, we have no witnesses to call. I think I previously asked both officers about whether


Jessie Misskelley, Senior's name is on the Miranda rights form signed at 11:00 o'clock. I neglected to bring a copy of the rights form with me. I think I've checked with all the other attorneys and we are all missing that, but if the Court was going to hold the record open for Mr. Rainey I would want to be able to double check that.

MR. FOGLEMAN: Judge Rainey -- the reason I left the courtroom -- Judge Rainey was on the phone. He said he could be here in ten minutes. He was in Memphis, but he was on his car phone.

THE COURT: Did you have anything else?

MR. PRICE: Nothing else, Judge.

THE COURT: Well, if he's on his way, I'll wait on him. Is there anything else we can take up?

MR. FORD: One thing I would like to do is follow up on a previous conversation you and I had over the phone and has been mentioned by reference previously this morning. That was that there was a prosecutor subpoena issued requiring the presence of Terry Grinnell, the stepfather, Gayle Grinnell, the mother and Matthew Baldwin, the brother of my client, that we filed a motion to quash that subpoena as well as a brief in support. That is on file. I had a conversation with you while you were in Fayetteville


on other matters to discuss our opinion, that you denied that motion and allowed that to go forth and I wanted that denial of the motion on record.

THE COURT: I had a similar conversation with Mr. Fogleman and Mr. Price and denied that motion as well, and as I understand each of your theories in seeking to suppress the prosecuting attorney's subpoena, in one case there was an allegation that you represented the parties to be questioned. And I questioned whether or not that might be some kind of conflict and then as I thought about it, I thought I don't know why it would necessarily be a conflict.

But the next point you made in seeking to suppress it was that the State had the power to subpoena these witnesses while the defense did not.

MR. FORD: In essence that it circumvented the rules of discovery.

THE COURT: And I ruled that, of course, since the State had the burden of proving its case, it was given that power by statute. It can be abused, and we discussed that, and there is a specific case out of South Arkansas where the Supreme Court had ruled that the prosecuting attorney had in fact abused that power by utilizing the prosecuting attorney's subpoena to subpoena in all witnesses that had been designated


shortly or just immediately prior to a trial to preserve their testimony, and there the Court held that that was abuse of process, and I frankly probably would have, too.

This was a totally different situate and I ruled as such. I ruled that he was still in the throes of an investigative area, that the witnesses didn't belong to anyone and that the State had a perfect right to summons those witnesses in investigative efforts and to take a statement from them and that statement would be like a mini grand jury -- is how I referred to it -- made available to each of the defense attorneys.

I went further than that and went beyond what the law requires and allowed -- rather than have lawyers that are representing criminal defendants in a capital murder stand in and represent potential witnesses, I appointed a member of the local bar to aid and assist and be available to those persons to be questioned and I believe that was done. As far as I know, y'all had no difficulty in that arrangement.

MR. FOGLEMAN: The record should show that that was done, and all of these witnesses -- well, in the case of Mr. Price and Mr. Davidson -- the witnesses they appeared for and said they represented


initially were represented by Jerry Coleman and the witnesses that Mr. Wadley appeared for and said he represented -- they ended up being represented by Davis Loftin.

THE COURT: I specifically ruled that it was not an abuse of discretion and it was in the permissive stages of an investigation.

Gentlemen, I'm concerned with the possibility of a motion to seek mental examinations and the inevitable delay that that causes particularly in view of our State Hospital situation in getting those done in a timely fashion.

I want to know within a very short period of time whether or not you want such an examination conducted. You can do it or you can waive it if you want. If you want it done, I want to know within 30 days. If you don't request it by written motion within 30 days, or the State doesn't request it within 30 days, then I'm considering it waived.

Even then I will order an examination with local facilities. If the local psychiatrist feels it is necessary for a further 30 day examination, then I will enter an order to send them to Rogers Hall for that purpose. I'll ask them to expedite it in view of the nature of this case, but I don't know if they



MR. STIDHAM: Your Honor, you're saying that --

THE COURT: If you don't request it within 30 days, you're waiving it. You're on notice that the Court is drawing a deadline as far as that defense goes. If you want to invoke that defense, you've got 30 days to make that decision so that a proper examination can be conducted.

MR. STIDHAM: What if something arises after that 30 day period?

THE COURT: I'm never drawing a line that finally bars any unforeseen eventuality. Of course, you just raise that as it comes up and I'll rule on it. I want that clear now. If there is any anything unusual or emergency or exigent circumstances that cause you to bring up a particular motion, then I'll consider that, too. But until that happens, my deadlines are going to be effective.

MR. PRICE: There were several motions that we filed dealing with death penalty issues. One in particular dealt with requesting that the State notify us of which of the aggravating circumstances that they are intending to rely on in this case. The State may not be in a position to do that today. I request that since the State has ten days to let us know which


defendant is going to be tried first, if they can also let us know at the same time which of the aggravating circumstances they are either relying on or which ones they are specifically not relying upon.

THE COURT: I don't see why you can't do that at the same time you announce which case you're going to try first.

MR. FOGLEMAN: I don't have any problem with that.

MR. STIDHAM: Will that be available to all defendants?

THE COURT: Yes, sir. It may differ from defendant to defendant, but that would be applicable to each defendant.

MR. FOGLEMAN: Your Honor, Judge Rainey is here.

MR. FORD: Your Honor, before we proceed, this is a matter of formality. Your Honor, we are of the opinion that the State of Arkansas carries the burden. The State of Arkansas went forth, that they rested their presentation, that we then presented our presentation, and now they are attempting to submit additional evidence after they have rested. We don't feel that is appropriate.

Secondly, your Honor, what they are doing is in essence attempting to rehabilitate the witness by use


of extrinsic evidence which is a violation of the Rules of Evidence. We would object to that as well.

THE COURT: Overruled. It is within the sound discretion of the Court as to whether or not to allow either side to call additional witnesses. I also point out that this is a hearing before the Court, not before a jury, where the strict Rules of Evidence are applicable.


having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:



Q: Will you please state your name?

A: William P. Rainey.

Q: What is your occupation?

A: I'm an elected official, Crittenden County. I'm a municipal judge for West Memphis and Crittenden County, and I also have a private law practice.

Q: I want to show you State's Exhibits One and Two which is Affidavit for Search Warrant and Search Warrant and ask if you can identify those documents?

A: (EXAMINING) Exhibit One is the Affidavit for Search Warrant involving Damien Wayne Echols dated June 3, 1993.

Q: Is that a Search Warrant that you issued?


A: Well, I haven't gotten to the Search Warrant yet. The Affidavit is many, many pages in the document, which were attached to this, most of those bearing my initial and date.

Exhibit Two is a Search Warrant which sprang forth from the Affidavit of Search Warrant as I previously described. It is dated --

Q: Did Bryn Ridge sign the Affidavit in your presence?

A: Yes, he did.

Q: Did you acknowledge his signature?

A: Yes, I did on the Affidavit.

Q: I want to show you what has been introduced as State's Exhibits Three and Four and ask if you can identify those documents?

A: (EXAMINING) Exhibit Three is an Affidavit for Search Warrant involving Charles Jason Baldwin dated June 3, 1993.

Exhibit Four is the Search Warrant that sprang forth from that Affidavit. The Affidavit -- Exhibit Three was attested to by Officer B. Ridge and I signed that, and Officer Ridge signed that in front of me, and I acknowledged his signature. And it is also dated on June third of '93.

Q: Referring to June third, do you remember approximately what time you were first contacted with regard to the possibility of the need for your presence to sign either search warrants or arrest warrant?

A: It was late in the afternoon, and it seems like to me it


was four or four-thirty, sometime in that timeframe. I think Officer Ridge had initially called my home. I was still at the office. I received a call from my wife that Officer Ridge was looking for me at about the same time that Officer Ridge called my office and told me they were in the process of preparing Affidavits, that they would need my presence and wanted to know if I was going to be available.

Shortly after that, I went to the police station, went upstairs to Officer Gitchell's office where I think I met you and Mr. Hale, and there were some other law enforcement personnel in the room.

At that time I was advised of the situation, was told that y'all were in the process of putting together the Affidavit for warrant. I made some initial inquiries as to some of the detail at that time that you intended to place in the Affidavit and was told for some reason it was going to be an hour or so before everything would be typed and ready to go in and at that time I announced that it was getting close to dinner time, that I could see that it may take a while, considerable length of time to get this all coordinated and put together and for y'all to call me at home. Otherwise I thought that I would be back around 6:30.

Q: Did you go home and eat dinner?

A: Yes.

Q: Did you return?

A: About 6:30, yeah. I think I went back upstairs to the


office where I had initially saw you and Mr. Hale and placed a call for the clerk that she needed to be available.

I went out of the room. I think I went down to the court offices at that time, and over a period of time I was in and out of the building waiting on y'all to finish up the paper work for presentation.

Q: Did you have any -- or what participation, if any, did you have in the preparation of Affidavit for Search Warrant?

A: I had no participation in the preparation of the Affidavits. I had no participation whatsoever in the preparation. I read the Affidavits as closely as possible. I initialed many of these pages and dated them. I made inquiries that all evidence that had been presented to me was properly bound and marked and attached to the Affidavit and corresponding Search Warrants. I wanted to be sure that everything coincided. There were three, at least two, being prepared and a third one being prepared also pretty much simultaneously, and I was concerned that some evidence -- that all the exhibits were in the proper order under the proper party's name.

Q: Did you at any time give any advice to the police department as to what things they needed to put into the Affidavit?

A: Only advice I gave is that, "You be sure you have got everything you have done on this Affidavit. Are you sure that is everything that is applicable to this case." At that point I


reviewed it. I didn't want to have to review some and stop and review it again.



Q: I'm going to show you a document marked and received for purposes of this hearing only as Defendant's Exhibit One and ask you were you ever shown that document to review prior to the issuance of this warrant?

MR. FOGLEMAN: Your Honor, we will stipulate that that wasn't shown to him because it hadn't been prepared.


Q: So you don't recall seeing it?

A: At that time, no.

Q: Today is the first time you have ever seen it?

A: As far as read this transcript, yeah. As far as this specific transcript, yeah.

Q: Judge Rainey, did anyone involved from the State of Arkansas -- respective police and attorneys, et cetera -- did they ever play you any tape recorded statements prior to the issuance of the warrant?

A: I know that Officer Ridge summarized the statements that were made, and I believe that -- it seems like when we were in the courtroom offices, that the tape was made available.

Q: Did you listen to it?


A: Yes, I listened to it.

Q: When you issued the warrant at 10:00 p.m. that evening -- nine to ten o'clock -- was that the first -- immediately prior to the issuance of that warrant -- was that the first time you ever read the statement of Jessie Misskelley which is attached to all these documents, or did you by chance read it when you were there around four or four-thirty or six-thirty -- at any time did you read that statement?

A: Well, let's, you're talking about this Affidavit?

Q: No, sir, I'm talking about the statement of Mr. Misskelley that would be contained in both the Affidavit and in the Search Warrant which is in all four state's exhibits, Exhibit B of the internal exhibits.

A: You said Exhibit B?

Q: Page nine of Exhibit B. Did you ever have a chance to read that statement at any time prior to the nine o'clock hour when the warrant was issued?

A: Well, it would have been at the time -- I can't say exactly what time I started reading all of this. As far as Exhibit Three is concerned, we finished up at approximately 9:50 and, yes, I read the statement as presented to me -- I think it is page nine through thirty-five. I initialed the front page of that. My initials appear on the right-hand bottom, yeah.

Q: There are some statements -- they also put these fellows under oath and asked them some questions. One of the things you


asked them about was you had some concern about some discrepancies of the time in Mr. Misskelley's statement versus the time that you were made aware that these homicides were to have occurred. Is that correct?

A: Yes, there were some initial discrepancies that I had questions about concerning some times. Yeah, there were.

Q: Did it happen this way -- you read the statement, have some concerns about some of the statements that were made and whether they were accurate or not, or whether you thought everything was in good order and said, "I don't know. Maybe you need to have a few more things." And then this second statement was taken because it is titled, "Second Interview Conducted to Clarify Previous Statements."

My question is: Had you read that first statement, realized there was some concerns --

A: No. That's not the case because when I inquired of this, I was told there was a second statement and it had been cleared up, and that they were in the process of typing up the second statement. But I inquired and it was pointed out to me that there was an additional statement that had cleared up that question.

Q: Judge Rainey, I think probably to cut to the chase, the reason they asked you to come here today was because Officer Ridge came and testified that he had an opportunity to visit with you in the municipal court clerk's office in the afternoon,


and his words were in essence, "He told me what needed to be in there. I went and got it and when it got it I brought it back to him and he issued the warrant."

Did you make any suggestions, any detail, did you tell them what had to be in this Affidavit?

A: No, sir. I never told anyone what had to be in this Affidavit because -- what did you say that Officer Ridge said -- that I met with him that afternoon?

Q: In the afternoon and he said around four o'clock which would coincide with the time you first arrived, and that you told him what needed to be in there and when he went and got it and came back, you issued the warrant. That is what he says occurred, and it's our concern today that that didn't occur.

A: So what is your question?

Q: Did that occur?

A: No. I never met with Officer Ridge and told him, "You must have A, B, C, D, E." Did I speak with Officer Ridge? I probably did, and I wanted him to be sure that all documentation was presented to me in an orderly fashion and that I would be available to review it when it was ready. As far as me telling him, "You need this, this and this," no.

Q: What do you recall being presented to you as the basis for this search being conducted at night?

A: The fact that -- well, I have not reviewed this since June and the situation I have tried to put out of my mind since that


time, but as memory will allow me the close relationship between the alleged perpetrators, the fact that the evidence possibly could be removed or destroyed if it is not attempted to be gathered immediately, that you had three parties who had been in close contact with each other and would be very available to converse with each other and the overall circumstances of the type of crime that this was, the obvious violent nature of it, I felt that there was good cause shown to issue the warrant to be executed at night.

Q: Were you aware at the time that you issued the warrant that Mr. Misskelley had already been in custody approximately twelve hours?

A: I didn't know the number of hours that he had been, but I recall seeing his father at the police station around four o'clock when I was there.

Q: Wasn't it the basis that if the other boys knew that one of their close-knit groups of friends was in custody that they would go and destroy these things?

A: Certainly that was one train of thought, yes.

Q: Did they submit anything to you in writing, did they submit --

A: Who is "they?"

Q: Police department, prosecutor's office -- did they submit anything to you in writing or in tape from anybody to indicate that their investigation had revealed that these boys were


involved in such a close-knit cult group?

A: Yeah, that was discussed with me, that they had close association. The information that Mr. Misskelley gave concerning the event that alleged to have transpired there in the woods were very credible based upon other evidence given that I recall. The totality of the circumstances certainly warranted that. I found it implausible that one person could have carried out such an act on three individuals and, therefore, I felt that there was more than one person involved with it that added credence to this statement that Mr. Misskelley had given.

Q: Because there's more than one person involved, does that necessarily connote that a nighttime search is necessary?

A: Under these circumstances it did, taking into consideration the communication factor that was certainly available to all parties alleged to have been involved.

Q: Was your entire though process for issuance of the warrant contained in the testimony given to you by Officers Gitchell and Ridge and the documents which were submitted to you in the Affidavit -- was that the entirety of it?

A: Yeah, that's what it was based upon. It was based upon the facts presented and not based upon any speculation or conjecture. It was based upon the facts presented to me that night.

THE COURT: You had both a written Affidavit and


prepared documents, which you indicated to be some forty-five pages in length. You took additional oral testimony -- State's Exhibit Five -- and that was preserved?


THE COURT: So it was based upon the oral testimony together with affidavits and attached exhibits?

THE WITNESS: Yes, and as far as these -- the time factor on these Affidavits -- to say that I set down and started -- many of the documents involved in one Affidavit were quite similar to others, and they all coincided, and to say that I read through one batch and signed it and read through the others -- it did not happen that way. I started reading all of information put before me, and I would put it in this stack, and there were be some come in here, and I would put it in that stack. But the times that these warrants were signed, those are accurate times in which I actually signed those particular warrants.



Q: Judge Rainey, according to your knowledge, did Detective Ridge ever tell you if Jessie Misskelley Senior, the father of Jessie Junior, had signed Jessie's Miranda waiver rights form?


A: Did he tell me that?

Q: Right. You might want to refer to pages nine and ten.

A: (EXAMINING) You're asking me did --

Q: On refreshing your recollection on pages nine and ten, it discusses about how Jessie Junior signed a Miranda waiver rights form, correct?

A: Okay.

Q: Is there any reference in the typed up transcript of his father signing the rights form?

A: I don't think there is.

Q: Do you recall independently if any detective ever told you if his father signed a rights form?

A: I recall asking a question about Mr. Misskelley. I commented that I had seen him there, and it seems that I was told that Mr. Misskelley Senior had agreed --

MR. STIDHAM: Your Honor, if he's going to say what I think he's going to say, I'm going to object.

MR. PRICE: I specifically limited it to that question.

THE WITNESS: Well, you asked the question, and I thought I needed to answer it.

THE COURT: Specifically answer with regard to the statement itself -- nothing else -- if you know.

THE WITNESS: I was satisfied that the father was involved. That's as far as my recollection can carry




Q: Besides the documents in front of you, do you keep any other records or notes or anything concerning the Search Warrant?

A: No.

Q: Do you have a municipal court docket book that you may have made an entrance in?

A: I'm sure when the warrants are issued, we have a warrant control system that they were recorded and given numbers and all that but as far as me making any --

Q: Docket entries.

A: No.


THE COURT: Anything else?

MR. FORD: It is the position of Mr. Baldwin -- Mr. Wadley and I would argue to the Court -- that the law in the State of Arkansas requires that there be reasonable cause to believe that items of contraband associated with this case are in fact located within the residence to be searched.

The testimony of Officer Ridge and the testimony of Lisa Sakevicius clearly indicate they didn't know there would be anything in there. They were just hoping to find something.


Miss Sakevicius had obtained these fibers, and she just went in there on a random search to find something. The law in the State of Arkansas is fairly specific that you cannot do that. You must identify with particularity the items to be seized and the places to be searched. "Blue, red, green, purple fibers" is not that specific, particularly when you have no reasonable basis to believe those fibers exist therein.

Jessie Misskelley's statement and the recorded testimony of these officers in no way indicate that the black Megadeath or Metallica shirt allegedly worn by Mr. Baldwin the night these things occurred was in that trailer, that the blue jeans were in that trailer, that the boots were in the trailer, that any knife was in the trailer. There was nothing to indicate any items were located in the trailer. There's nothing to indicate that any of these fibers that we are looking for were in the trailer. There's basically a devoid of any evidence to establish a reasonable cause to believe that there would be an item of contraband or item of evidence located in his residence.

Moreover, your Honor, the Supreme Court has been quite strict on nighttime searched. There have been


cases dealing with drugs to where an affiant said, "I was in there yesterday morning or I was in there this morning and he has got a bunch of dope in that house." And this is at night. And they go get a nighttime Search Warrant. They find it. They take it. The Supreme Court says no because there was no basis to say by that affiant that the drugs were going to disappear prior to the next morning.

What to me has never been argued or mentioned is that this search occurred thirty days after the homicide. An entire month had passed. If anything was in imminent danger of being removed, it would have already been removed.

Moreover, if it was because of these guys being in such close and constant communication, one with the other, they would have already been panicked because he had been in custody for so long. And in fact Jason Baldwin wasn't at his residence at all. He wasn't even there. He had no idea anything was even going on.

You take all those things, your Honor, and you look at that document -- that Affidavit -- and you look at the sworn testimony -- there is nothing to indicate that any of these items which they seized were there, much less the fact that items were seized


which were not listed.

THE COURT: For example, what?

MR. FORD: They took a pair of white blue jeans. The only thing they had authorization to search for was jeans with holes in them. We didn't have any jeans with holes in them.

THE COURT: Did I understand the witness to testify that the jeans were taken because they contained fibers?

MR. FORD: Your Honor, I contend that that whole fiber search should not be upheld because they didn't know anything was in there. That merely was a fishing trip to go in there when Lisa Sakevicius says, "I was going to be surprised if we found anything at all."

That is not what the Supreme Court has said is the type of search that we allow, much less one at night. So, therefore, I believe those items of blue jeans without holes in them, the tennis shoes -- there's nothing in there mentioned about white tennis shoes. Those items should be suppressed. Any evidentiary value that flows therefrom should likewise be suppressed.

MR. PRICE: Judge, the only additional arguments we have at this time -- first of all, it is our position that based on the testimony of Detective


Ridge, that Judge Rainey was not an independent, detached magistrate. Therefore, the Court should suppress the search because of invalid Search Warrant.

Number two, the basis of the nighttime search -- Rules of Criminal Procedure 13.2(C)(i) -- "The place is to be searched is difficult of speedy access." There's been no testimony to that factor.

Number two, "If objects to be seized are of imminent danger of removal." That was covered by Mr. Ford.

Number three, "The warrant can safely be executed only at night or under circumstances of the occurrence of which is difficult to predict with accuracy."

We submit that each of those three factors listed for specific nighttime searches did not apply in this case.

The final point, your Honor, deals with the questions I asked several of the witnesses about Jessie Misskelley Senior not signing Jessie Junior's Miranda rights form.

I'd like to cite your Honor to Arkansas Code Annotated nine, twenty-seven, three seventeen F under the Juvenile Code. "All waivers of right to counsel shall be in writing and signed by the juvenile and his parent, guardian or custodian."


Jessie Misskelley was obviously seventeen, was a juvenile. There's no exception in the Juvenile Code to say if the State later charges a defendant as an adult that this provision does not apply. So it's our position that since Jessie Senior did not sign the rights form, that the confession is invalid, the confession which is the basis of this search is invalid, and the Search Warrant should be suppressed by your Honor.

MR. FOGLEMAN: To take the last point up first, first of all, that provision of the Juvenile Code according to the Boyd versus State decided May 17, 1993, does not apply when a juvenile is charged as an adult, number one.

Number two, Mr. Price has no standing to argue the lack of signature to the waiver of rights.

Number three, all he asked these people was, "Do you know whether or not he signed it or not?" The person who got the waiver of rights didn't have the waiver of rights here to show whether he signed it or not so we don't know whether he signed it or not.

THE COURT: Tell me. Did he?

MR. FOGLEMAN: I don't recall. Probably not. Our file indicates that Detective Allen asked Mr. Misskelley Senior if he could talk to Jessie, and it


is my information Mr. Misskelley Senior brought Jessie Junior to the police department.

THE COURT: Was he present?

MR. FOGLEMAN: I don't believe he was present during the interview.

MR. STIDHAM: Your Honor, we would submit that Mr. Misskelley Senior never participated in any waiver of rights which is required under that specific statute, and we'll be arguing that on --

THE COURT: I'm going to make the same ruling I did in the Ward case when it came down to the fingerprints -- that it doesn't pertain to a juvenile charged with an adult criminal offense. The Supreme Court ruled again in the Boyd case that -- that is the Supreme Court ruling. They ruled that way in the Ward case as well.

MR. STIDHAM: I'd point out in that case there was a strong dissent. Basically it said there was no logic in ruling that way because someone who is seventeen years of age is under the jurisdiction of the Juvenile Code by its very definition.

MR. FOGLEMAN: Your Honor, we can take that up at the appropriate time.

THE COURT: I'm going to follow the Ward and Boyd rulings.


MR. FOGLEMAN: In response to both motions to suppress, and particularly Mr. Ford's, he refers to the question about the fibers and the need for there to be some evidence showing that the -- there's going to be this evidence where you're looking for it.

I direct the Court's attention to Brink versus State where the husband cut up the wife and put her in the ice chest. In that case all that was able to be established by the Affidavits was that the remains of the wife were three weeks old. They had been identified as the wife. He had told several people he wished to kill his wife. That he was telling different stories about her whereabouts during the time she was gone and that he had told somebody else that he wanted to throw his wife over the bridge and made some comment about needing to get her down to a size he could handle.

In that case the Arkansas Supreme Court said that clearly a crime was committed, and it's logical that the fellow killed his wife, cut her up, put her torso in a cooler full of cement and tossed her body into the lake. Evidence of the crime would probably be found where he was living.

In this case you have got the fact that according to Mr. Misskelley we know the address of the two


defendants. We know that a knife was used by both forensic evidence and by Mr. Misskelley. It was a search of the residence. It is logical to conclude that if these two defendants participated in this murder, then evidence of that crime would be found at their home in the nature of the clothing, fibers that transferred from their clothing to the victims, and we submit there's been no basis shown to suppress this search.

THE COURT: Both motions to suppress will be denied. It is the Court's opinion and ruling that Judge Rainey was on very sound ground, that the Affidavit submitted to him was in great detail, much greater detail than what you find in the ordinary case, that all constitutional prerogatives and rights of the defendants were protected, that the search was reasonable under the circumstances, and that the totality of the circumstances -- to use the buzz word Judge Rainey used -- were certainly met and the test was complied with here.

Judge Rainey made a detailed paragraph synopsis of his findings for probable cause. He indicated that Mr. Misskelley's statement was detailed, that based upon the detailed information of that statement, that he identified facts and only facts that only a person


observing or participating in the alleged crime would have known at that time, that he detailed information with particular regard to facial cuts, injuries to the scrotum area and further that there was testimony from both the officers and Mr. Jones, the supporting Affidavit, that these three individuals were close. In fact one specific statement of Mr. Jones has indicated where you find Echols you will find -- well, on page 43 of the affidavit.

The question was, "If there is one person that would have been with Damien during something like this going on who do you think that one person would have been?"

Answer: "I think it would have been Jason Baldwin because you know they are always together."

The judge had ample testimony and ample corroborating exhibits and information before him to make a finding that probable cause existed to search the residence of both Baldwin, Echols and Misskelley.

And I think the argument has already been pointed out by Mr. Fogleman that certainly fibers, hairs, knives, clothing are articles that normally we associate with where a person lives, resides, works. It wouldn't have been unreasonable had they had automobiles to even include automobiles as avenues or


a reasonable place to search.

So as far as the judge's finding that there was reasonable cause to believe that fibers and knives and clothing might be found in homes, I think it is common sense. It goes without even arguing.

The next issue is whether or not he was a detached magistrate. I don't think there is any question but that he was just exactly that -- a detached and independent magistrate -- from his testimony and from all the facts before the Court.

The time of the search. It was ten something in the evening when he executed the Search Warrants. I understand from the testimony before me that there were accompanying warrants for arrest being issued at the same time.

I find no problem whatsoever in view of the nature and type of items to be sought that he authorized a nighttime search. Granted, that thirty days would certainly be enough time for anyone with good sense to get rid of a weapon, but people don't always act in that fashion. So it was certainly reasonable that a weapon could have been found in their residence. It was certainly a proper subject matter for a search.

Further, the fibers and hair -- they are minute,


easy to be lost, misplaced, cleaned up, vacuumed up, and I find that it was certainly reasonable to authorize a nighttime search, probably would have done so myself. So the motion will be denied.