(The following hearing was a joint status hearing for Appellant Charles
Jason Baldwin, Damien Echols (CR 09-60), and Jessie Misskelley, Jr. (CR 08-
1481), conducted as part of the proceedings from which this appeal is taken. The
parties were represented as follows: For the State of Arkansas: Brent Davis, Kent
Holt and David Raupp; for Appellant Baldwin: John Philipsborn and Blake
Hendrix; for Damien Echols: Dennis Riordan, Don Horgan and Deborah Sallings;
and for Jessie Misskelley: Michael Burt and Jeff Rosenzweig. The pages of this
record are designated as ďSHRĒ, Status Hearing Record.
At the time of the status hearing, habeas corpus petitions were pending for
Misskelley, Echols and Baldwin, while Rule 37 petitions were pending for
Misskelley and Baldwin. After the hearing, Judge Burnett denied the habeas
petitions and all three appealed. In 2010 this Court reversed the denial and
remanded the habeas petitions for a hearing. That matter is currently pending
before Judge David Laser. The Rule 37 petitions were heard, several days at a
time, over the course of the following year.
THE COURT: This is billed as a scheduling or as a status hearing. Frankly,
Iím of the opinion that I canít basically do anything without the defendants here.
We can talk about the schedule, we can talk about matters of law, strictly, but as far
as taking testimony, we canít do that. So Iím here to listen to your comments about
the schedule (SHR 1305)
Iím more interested right now; Iíve read most of the pleadings. Good lord,
yíall gave me a box full, so Iím not sure Iíve read everything, but I take it that all
of the pleadings have been filed that are going to be filed?
MR. ROSENZWEIG: We filed by fax yesterday a motion adopting
pleadings that can be filed by some of the co-defendants, and of course, we had to
file in Clay County. The others are filed in Craighead County. In order to avoid
just cluttering up that record, we did not specifically attach the pleadings that we
were adopting. We can do that, but if everyone would agree that we donít
necessarily have to attach them, that might be more efficient. But we are happy to
specifically attach, in the Clay County file, those pleadings if anyone deems it
THE COURT: The Court needs to know exactly what youíre talking about,
Jeff, because your particular client is in a different posture than Echols. Youíre on
a Rule 37 petition, non-capital (SHR 1306). I donít even think the Act 1780 would
apply to your client. Itís not applicable him at this time (SHR 1307).
MR. ROSENZWEIG: To make it clear, the pleadings that we were
adopting [was] Baldwinís initial reply to the Stateís response to the Amended
Rule 37 Petition and the motion to enlarge the Amended Rule 37 Petition. [...] and
then Echolsís reply is for a motion for a new trial in the DNA case (SHR 1307).
THE COURT: First of all, let me say this. Iím going to divide this into
separate hearings: Misskelley and Baldwin will have a separate hearing and
frankly, I believe Iíd rather do that first (SHR 1307).
MR. RAUPP: Your Honor, the Stateís position on what we call the 1780
cases, the DNA testing cases, as to all three defendants, and as I understand the
pleadings Jeff is talking about, Mr. Echols filed on August 13th what he called a
reply, the Stateís position is that reply is essentially an amendment to his petition,
which is a permissible pleading.
To my knowledge, the Court hasnít given him permission under the statute
to file an additional pleading. The statute provides for a petition and response by
the State, which were filed and concluded in May as to the Echols cases and then in
July as to the Misskelley and Baldwin cases.
We resist the filing of any amendment to that under the statute. We think
itís unnecessary and the case to be resolved on the pleadings. If, however, the
Court indulges a permissive amendment, which certainly is discretionary, the State
would request an opportunity to do a permissive amendment to its answer, to its
response, which the statute provides for. So weíd have to resolve that. But
initially, we would resist that filing and agree with the Court that the 1780 cases
can be (SHR 1308) separated out and dealt with separately and together.
And I had forgotten if there are proposed amendments for post amendments
in the Rule 37 cases that are replies, but the replies having been filed there. The
State doesnít resist those, but we do resist in the 1780 and the DNA testing cases
MR. ROSENZWEIG: Your Honor, in that, uh, what I was referring to and I
think Mr. Raupp had referred to as well, uh, we filed, uh, Misskelly filed a, both a
ten-page petition and an expanded petition for motion for permission to file the
expanded petition. So the, uh, we need to obtain a ruling from the Court, uh,
granting, uh, technically granting that, uh, expanded petition and allowing the
expanded petition to be considered. We have a compliant ten-page petition weíve
And so we ask that the Court, uh, grant our motion to file an expanded or
enlarged Rule 37 petition.
THE COURT: What did you add to it?
MR. ROSENZWEIG: It was one that discussed all of the claims, instead of
just listing them, because the strict draconian interpretation of Rule 37: a ten-page
limit, exhibits count against the limit, uh, the only thing that may not count against
the limit is the certificate of service.
So we had to, uh, we had to file, uh, something with intent, you know,
within ten pages, which we did. And that is in compliance with the amended tenpage
petition, but we also filed one that actually has the room to discuss all of the
various claims. The Rule, if you strictly interpret it, says we canít file that without
permission, so we filed contemporaneously a motion seeking the permission, uh,
and we would ask that the Court grant that motion.
THE COURT: You have replied to it?
MR. RAUPP: We have replied and resisted that motion, uh, in the
Misskelley case. That was filed initially with Misskelleyís, uh, Misskelley filed a
ten-page petition, and the additional room was an additional two hundred and
It was rather expansive and i think as the Court knows, the Arkansas
Supreme Court has consistently upheld the ten-page limit, particularly in noncapital
cases, as an appropriate limit on the availability of a pleading to explain to
So we do resist the expanded petition in Misskelley, and then in Baldwin as
well. Baldwin asked for an expanded petition only in early August, uh, and what
we, what our response is to the ten-page, the properly filed ten-page petitions, is in
the pleadings explains that on their faces they can be denied because they are so
conclusory, because they purport to raise upwards of scores of ineffective
But we would anticipate that the Court will permit particular discrete claims
to be raised, and we would anticipate after a hearing that the post-hearing briefing
by both parties will address a few discrete claims.
But we would resist the filing of the two hundred and sixty-six page petition
and instead, ask that the Court simply require counsel in Misskelley and Baldwin
to reduce their claims to something in the nature of those that can be adequately
And ten pages, as the rule requires it, as the Arkansas Supreme Court has
consistently upheld is appropriate.
THE COURT: Jeff, what did you add thatís new, is what I asked earlier?
MR. ROSENZWEIG: Judge, what we did is discussed, we discussed the ...
THE COURT: ... but you didnít any new points, any new claims?
MR. ROSENZWEIG: Well, we, I mean, we added some from the original
pro se Misskelley thing that had been filed back years ago, uh, and that there are
some things that had, in the course of our investigation, we developed.
Now the problem is that as, as you might tell, if we, if we are able to write
two hundred and fifty pages to give the Court appropriate guidance to what some
of the issues are, weíre only going to reduce it to ten pages to reduce it down to a
few syllables, uh, per claim.
And, and thatís what we had to do. And so, you know, we can, we can write
a few syllables to shoe-horn it into ten pages, but if the Court wishes a discussion,
uh, the Arkansas Supreme court has been generally, generally, but not exclusively
restrict, you restrictive to ten pages, bu ton any number of occasions, it hasnít been
an issue because a trial has permitted the expanded petition.
And therefore, thereís, uh, you know, the pendant is an appealing issue.
THE COURT: All right, I think in this case Iím going to allow you to file it
and then you can file a response to it and then weíll have, uh, make sure weíve got
everything that you wnat in the record in the record. All right.
MOTION FOR RECUSAL
MR. ROSENZWEIG: Okay. With some trepidation, I take up another
motion that we had filed, and that was the motion for your, your recusal, Your
THE COURT: Well, thatís denied.
MR. ROSENZWEIG: And, uh, uh, if I could, uh, if I could respectfully
inquire of the Court whether or not, uh, uh, because part of the motion was based
on Your Honorís future political plans after you leave the court.
THE COURT: Well, thatís something thatís two years away. I donít retire
until December and, and anything I might choose to do later is probably up in the
air. I donít know. Speculation. So that has nothing whatsoever to do with this
matter. All right. Yes sir?
MR. RIORDAN: Your Honor, Dennis Riordan, for Echols. Could I address
the Stateís motion on the question of what weíve framed as a reply brief and what
theyíve framed as an amendment to the 1780 petition? Your Honor, my suggestion
would be this. The State, in its opposition to our motion for a new trial under the
DNA and new science statutes, has taken a position (SHR 1313) that the Court can
and should simply deny that petition at this point. That there is nothing, either
dealing directly with DNA or anything else such as new scientific evidence on
animal predation, that the Court need take evidence on because, either if one
assumes all of the evidence is true, it isnít sufficient to grant the petition, or
alternatively, that it is not cognizable within the DNA statute. We all agree that
weíve got issues of first impression before the Court on the scope of the DNA
statute, whatever we consider, what weíve filed are a reply and amendment to the
petition, I think that theyíve discussed that as State authority. We have provided
the Court with State authority and responses to their interpretation of the petition. I
think itís just going to be very helpful in a question of first impression and
important case for the Court to consider that. So if we classify it as an amendment
to our petition, we certainly donít object to the State replying to that, and we think
that it will be very helpful to have all of that before the Court (SHR 1314).
The other thing that I would say, Your Honor, is that, because the State is
taking the position that you neednít hear any evidence as to Echols, and that itís
either unnecessary, because thinking itís true, itís inadequate or itís not cognizable,
I would think that what we may need, want to do is have the State file our answer
and have the Court rule on the scope of the statute before we commence an
evidentiary hearing, simply because if the Court accepts the Stateís position, weíre
done. And any hearing that the Court would hold if it were at the end of that to
conclude that that evidence didnít need to be taken would be a waste of the Courtís
time. So, I would submit that the Court should permit the filling and permit an
answer and then, hopefully, issue an opinion or a ruling, which either, if it takes the
Stateís position, denies the DNA petition, or says, ďIíll hear evidence directly
related to DNA, but nothing else; Iíll hear evidence related to DNA and animal
predation, but not this issue, dealing with new information on juror misconduct by
the foreman,Ē it would, I think, be enormously helpful (SHR 1315) if we had a
ruling before the hearing commenced, Your Honor.
THE COURT: Well, I plan to give you a written order on what Iíll hear and
what I wonít hear. Do you want to respond any further? What my feeling is,
whatever pleadings Iíve got, Iím going to accept. So if you need to file a response,
then how much time do you need?
MR. RAUPP: I would ask for 30 days. We filed our answer to the petition
on May 30 , and this amendment came in last Wednesday, August th 13th, so itís
about seven days.
THE COURT: I donít guess Iíve seen that. Last Wednesday?
MR. RAUPP: I think thatís correct. It was filed August 12th, maybe?
MR. RIORDAN: Thatís correct, Your Honor (SHR 1316).
THE COURT: So Iíve got more? Iíve got two boxes full of pleadings back
MR. RIORDAN: It was file stamped by the court on the 13th (SHR 934).
MR. RAUPP: But given that, it was about 70 days out, and if we could have
about half that much time, and of course, if we could accommodate the Court, it
will be in sooner (SHR 1317). But we would certainly hope to have about 30 days.
THE COURT: The problem is with giving you 30 days - Iíve got two
capital murder cases that Iíve had to sandwich in the docket to finish before
December 31st. It would be almost impossible to schedule. I was thinking about
giving you ten or 15 days, and even that would push the schedule, if itís September
MR. RAUPP: Weíll accommodate the Court.
THE COURT: Well, all right, letís do that and then I donít want any more
pleadings filed, period. Ten days, will that get us to where we can start whatever it
is weíre going to do on September 8th, because after I receive that, I need probably
a week, I guess, or however many days that gives me before the 8th to give you a
letter opinion on what Iíll hear and what I wonít hear, or if I adopt your theories in
the last response that you read, then there wonít be any need for a hearing, period
MR. RAUPP: The State would be happy to provide a precedent to that
THE COURT: I mean, if I do that, then there wonít need to be any further
hearings on Echols. Now in Misskelley, itís a different matter, and Baldwin (SHR
(SHR 1320) THE COURT: All right, that will be all right. I invite all of
you to draft a preliminary order, if you care to, if you want to, because itís always
helpful. Itíll make my time speed up. And I invite each of you to do that.
THE COURT: Is there anything else we need to discuss? (SHR 1320)
MR. HENDRIX: Judge, Blake Hendrix on behalf of petitioner Baldwin, the
same stuff, we donít want to paper up the Court any more. Iíve got here a request
to ask that Baldwin will be able to adopt Echolsís reply, because it has the same
legal issues. Itís a total of two paragraphs of additional reading, but itís
permissive, and we didnít want to be presumptuous.
THE COURT: All right, Iíll let you do that (SHR 1320) You need to
understand whatever ruling I make in Echols probably also applies to those
MR. HENDRIX: Absolutely (SHR 1321).
THE COURT: So the filings would be in either, in Baldwinís case and
Echolsí, in Craighead County, and in Misskelley, in Clay County.
MR. HENDRIX: So we only need to file in one place?
THE COURT: One place (SHR 1321).
MR. HENDRIX: Great (SHR 1321). Judge, on Baldwinís motion to
enlarge, thatís just a simple matter of trying not to get caught in that catch-22 when
youíve got a complicated case and the ten days, so weíll be happy to go either way
the Court wants us to go.
THE COURT: Well, Iím not going to restrict you to the ten pages. Iíve
already told Jeff that, and Iíll, Iíll allow you to amplify your brief.
MR. HENDRIX: And then this is sort of the next to the last thing is on, I
think the State is resisting this. Weíve got all of those exhibits that are filed in the
1780, under the 1780 petition, and to be sure and have a complete record in Rule
37, we can either adopt them by reference, or do we need to just absolutely re-file
all of those exhibits as part of the Rule 37, and I think the State has taken a position
on it, havenít you, David?
MR. RAUPP: Yes, Your Honor. Weíve resisted on the basis that itís an
expanded petition over the ten pages. And I donít have - in light of the Courtís
ruling in Misskelleyís case, I anticipate that you will grant Mr. Hendrixís motion to
essentially have those exhibits be part of his ten-page petition.
THE COURT: Yes, Iíll do that.
MR. RAUPP: And given that, we have the exhibits (SHR 1322) filed in
Craighead County as to the 1780 case. I donít need them filed again. I donít know
if the Court wants to enter an order in the 37 case.
THE COURT: The only reason Iím allowing the expanded petition is so
weíll have all of the issues in the record and all of the matters will be wrapped up
for a higher court to look at whatever we do. So all of it will there.
MR. HENDRIX: Weíre going broke on copying expenses, too (SHR 1323).
THE COURT: Well, yeah, thereís no need to keep duplicating that. That
will be fine. And youíre going to respond to that?
MR. RAUPP: In both Baldwin and Misskelleyís Rule 37, the State will
reserve a response to a post-hearing pleading and the proposed order (SHR 1323).
THE COURT: Right.
MR. RAUPP: And as to the 1780 cases...
THE COURT: ...Iím inviting you to do the same thing in that.
MR. RAUPP: And weíre going to reply in ten days with a proposed order, a
reply and then a proposed order, as to all three cases. (SHR 1324) And I will file a
separate pleading in each of those three cases, because I think their cases are
proceeding under the names of each one.
THE COURT: All right, Mr. Riordan, if you want to submit a proposed
precedent, I need that simultaneously.
MR. RIORDAN: Very good, Your Honor, and I again, to save paper, we
might propose an order that just says that we are incorporating in our 1780 petition
certain exhibits filed by co-defendants. We have copies here, but if we propose an
order and the Court would just say yes, theyíre incorporated by reference, weíve
saved the clerkís office another six inches of file.
THE COURT: Yes, letís do that. Thereís no point in having multiple
filings of the same thing (SHR 1324).
MR. HENDRIX: And Judge, just for the record, Baldwin does need to join
in the recusal motion, understanding the Courtís ruling.
THE COURT: Iím going to deny that motion.
MR. HENDRIX: Iím assuming this argument is not going to persuade you
to go otherwise. THE COURT: Iím going to deny that motion.
MR. HENDRIX: Sure. Understood.
MR. RAUPP: Your Honor, the State would have just one more question.
Anticipating that the losing party in either case, or the person losing might
prosecute an appeal, it does occur to the State that the record will have to be
prepared separately by the Clay County Circuit Court?
THE COURT: Yes.
MR. RAUPP: And the Craighead County Circuit Court, so it would be
useful to have the separate exhibits actually filed and pleadings actually filed. We
donít have a problem with them adopting, in the sense they adopted arguments, but
I think itís appropriate to style pleading and filing.
MR. ROSENZWEIG: That will be fine.
THE COURT: Jeff, that would relate to your client only, because Baldwin
is here anyway (SHR 1325).
MR. ROSENZWEIG: That will be fine. We will do that, Your Honor, and
that wonít be a problem.
MR. PHILIPSBORN: Your Honor, John Philipsborn, Baldwinís co-counsel.
(SHR 1326) Just to clarify something that I may have misunderstood, I thought
when the Court was first discussing what it wanted us to discuss this morning, it
indicated that the 1780 statutes would not reach the non-capital cases, but then we
have been discussing the issues as though it does, and our view is that it does. But
just so the record is clear... (SHR 1327)
THE COURT: ...no, I allowed you to file that and to raise those issues, but I
think Iíve indicated that if I follow the Stateís theory on it, thatís going to
terminate those issues in Baldwin and Misskelley, as well.
MR. PHILIPSBORN: Okay.
THE COURT: Iím not saying that thatís what Iím going to do, because I
havenít digested it all yet, but yíall raise all kinds of stuff that is kind of
interesting. No, it is a part of your pleading at this time.
MR. PHILIPSBORN: I appreciate it. Thank you (SHR 1327)
THE COURT: ... well, I think we can hear it here. Does the State have any
opinion on whether to do Baldwin and Misskelly simultaneously? Thatís kind of
the way I would rather do it...
MR. ROSENZWEIG: ... I didnít mean to interrupt, Your Honor, and my
counsel, Mr. Burt, has some scheduling issues and all of us have scheduling issues,
including the Court. And so as long as we are here, we probably need to get that
Mr. Burt has some, I wasnít here for the April hearing, so Iím second-hand
on a lot of what the Court said, and Mr. Burt was here. And so we need to figure
out so we donít have to file a motion later on.
THE COURT: Well, my thought on it would be to schedule Misskelley and
Baldwin for September the 8th and hopefully, we can finish in a week, because
weíve got a full week; that would be the 8th through the 13th (SHR 1328).
(SHR 1329) MR. BURT: I had planned to be here on October 1st, because
thatís when I was told the day was that the Court was going to take up Misskelley.
And now the Court has indicated September 8th, so there is a scheduling
MR. DAVIS: Judge, when the Court asked did we think it would be
appropriate for the two to go together, itís the Stateís position based on the
responses that have filed that in terms of the Act 1780 petition that are filed by all
three defendants, that the Court can rule as a matter of law, and if, depending upon
what the Courtís decision is in regard to that, if we are then left with Rule 37
hearings regarding the two other co-defendants, because with a ruling of that
nature, that eliminates defendant Echols from any further proceedings.
Then if itís merely Rule 37 hearings regarding the two defendants, I canít
see any benefit to conducting those simultaneously, because, I mean, (SHR 1329)
in a two hundred and sixty-seven page petition, there have been hundreds of issues
I think actually Iím optimistic that the Court will narrow those issues down
when it comes time for the actual proceeding, but in any event, the more pertinent
issues will be the performance or effectiveness of the two defense teams involved
in representing the clients at trial.
And I donít see where combining the two together is going to achieve much
in the way of benefit, because the questions that are pertinent...
THE COURT: ... Iím just raising for economy of time, I mean... (SHR 1330)
THE COURT: All right. Thatís Misskelley. And then Baldwin, any matters
that need to be heard by the Court will be on September the 8th, that week of the
8th through the 12th.
Frankly, gentlemen, the Court can rule as a matter of law on all of the issues.
I can decide that an evidentiary hearing is not even necessary. So you can view it
from that standpoint as well.
Iím not likely to do that, but I could. So when (SHR 1332) you draft your
precedents, consider that as an option that the Court has.
MR. PHILIPSBORN: Your Honor?
THE COURT: Yes, sir?
MR. PHILIPSBORN: On the Baldwin matter, John Philipsborn, on the
scheduling issue, Mr. Burt said he and I are actually both involved in the same
multiple defendant homicide case; I had thought that you had actually talked about
scheduling this sequentially, so I thought the week of September 8th had been
reserved for Echols, if there was going to be an Echols matter.
My question to the Court, because I think our, the evidence in our case, if
the Court grants us a hearing, is going to be pretty compact.
THE COURT: Iím sure of that.
MR. PHILIPSBORN: But I hear the Court in that regard. Would the Court
consider allowing us to be scheduled right after Misskelley?
THE COURT: That would be fine. And I have a problem with, I think Iíve
got a murder case tentatively set for September 15th, that I wasnít aware of, but we
were going to move that anyway. The Paragould case, and Iíve got a pre-trial on
the 15th, but I have, we could start, I guess, on - I can (SHR 1333) give you one
day; the part of the 15th and the 16th and then skip to September the 24th and then
go through the 29th. Thatís the best I can do.
Wednesday, yeah, we can go the 24th and finish that week. That would be
three days, but we might have to do it like that. Weíll tentatively set it for then.
MR. PHILIPSBORN: Thank you. I appreciate it, Your Honor.
THE COURT: The next time court meets, the defendants are going to have
to be here, because Iím uncomfortable in doing anything but scheduling without
them being present.
MR. DAVIS: Judge, one thing that just crossed my mind; Dave kind of
mentioned it. One thing I did think we agreed on was that any 1780 proceedings
on the new scientific evidence would be consolidated, since basically the pleadings
in regard to that are pretty much similar regarding all of the defendants (SHR
THE COURT: Well, theyíre identical (SHR 1335).
MR. DAVIS: And so if when we talk about whether the Court would take
up the issues involving Echols early on, on the 8th of September, and fill in that
first few weeks with that, assuming those issues were still on the table after the
Court makes its ruling. If the Court decides that weíre having hearings on that
issue, then those hearings will not just apply to Echols, theyíll apply to all three
defendants. And so that doesnít cure the problem of having scheduling conflicts
with the 8th through the 24th of September, because itís not just going to be
dealing with defendant Echols, it will be dealing with all three defendants, should
the Court determine that it canít rule as a matter of law (SHR 1335).
THE COURT: Jeff, your conflict was for who? Who had the conflict with
MR. ROSENZWEIG: Any conflicts I have are solvable. Mr. Burt is the one
with the more difficult conflict.
MR. PHILIPSBORN: And I have that same conflict, Your Honor.
THE COURT: Well, I thought we dealt with those.
MR. PHILIPSBORN: We did just now as Mr. Davis is pointing out that if . .
. (SHR 1335)
THE COURT: Well, heís probably right. The issues are identical.
Basically, you all adopted what they have filed. So on the 1780 matters, theyíre
MR. PHILIPSBORN: I agree, Your Honor.
THE COURT: Iím going to block out the dates and those days will be
available and then depending upon everyoneís schedule, letís just see what we can
present at that time. And depending upon how I ultimately decide, too.
There may be issues that will remain that need to be, we need to have
hearings on. So that time is available and weíll do whatever we have to do at that
time. Okay? So you need to keep your schedules flexible (SHR 1336).
THE COURT: (SHR 1337) And again, Iím going to be looking for proposed
precedents on the 1780 rulings and the Rule 37 rulings, too.
MR. ROSENZWEIG: Looking for them before the hearings, or after the
THE COURT: On the Rule 37, after the hearings. But on the 1780, I
thought we were going to schedule that for the next ten days. Anything else?
MR. DAVIS: Well, thereís a couple of things that, and Dave may correct
me if Iím wrong, as I probably will be on the law, but I know the Court had
indicated that there was some concern about any rulings that could be made on the
pleadings if the defendants werenít present. And we have looked at the statutes,
specifically the particular statutory provisions under Rule 37, and under the 16-
112-200, new scientific evidence, and the Court can make rulings and as a matter
of law, enter orders as a matter of law on pleadings without the necessity of the
defendants being present.
THE COURT: I know I can do that, but I canít take testimony.
MR. DAVIS: Correct. I think it would be appropriate in that regard (SHR.
MR. RIORDAN: (SHR 1347:22) Just a final thing for clarification, Your
Honor. As I understand it, the State will be filing an answer to whatís deemed an
amended petition, we called it our reply brief, by the 30th (SHR 1347), and by that
time youíd also like from us essentially a proposed... (SHR 1348)
THE COURT: ...a proposed precedent, for a finding.
MR. RIORDAN: And Your Honor, there is a pending question on sealing a
declaration before the Court, and weíll address that in our proposed order, as well.
THE COURT: Iím sorry. I didnít follow you on that.
MR. RIORDAN: Well, weíre in an unusual situation, Your Honor, in which
a declaration has been filed with this Court that none of the parties has seen, and
has been filed by a Little Rock lawyer on behalf of another lawyer that deals with
arguably privileged conversations between that lawyer and the jury foreman in this
case. And we have addressed the question of privilege. The lawyer filed it under
seal; he did not give it to either of the parties; he wanted the ruling from the (SHR
1348) Court on the question of privilege before any of the parties saw it. So we
will address the question of unsealing that in the proposed order.
THE COURT: Well, where did he file that? I havenít seen it.
MR. RIORDAN: It is filed in this Court, Your Honor. Itís highly unusual;
itís a situation in which a lawyer was retained by the jury foreman in this case.
The jury foreman had conversations...
THE COURT: ...I saw some pleadings to that effect, but I havenít seen any
sealed pleadings. I saw your pleadings.
MR. RIORDAN: Well, our information, the filing actually took place May
30th in the Baldwin case, a sealed envelope was filed by a Little Rock attorney
containing an affidavit from another Little Rock attorney, and it was filed in the
Baldwin case. And as youíve seen, we have sent various things in our pleadings.
THE COURT: Yes.
MR. RIORDAN: Various things about that declaration. But I will work
with the Courtís office and confirm that that sealed declaration is in fact before
(SHR 1349) the Court. And weíll address the unsealing of it in our proposed order
by the 30th.
THE COURT: Okay.
MR. RAUPP: Your Honor, the State hasnít seen that either, and obviously
would like to see it. Mr. Echolsís counsel has taken the position that privilege
doesnít apply, so I presume theyíre going to ask that it be unsealed despite not
seeing it, theyíve gone on at length to explain what it, I guess, what they hope it
THE COURT: Well, then thatís what I read; your pleading.
MR. RAUPP: But it would be helpful to the State before the 30th that that
be unsealed, if weíre to respond to the allegations. And I take it that youíre going
move that it be unsealed?
MR. RIORDAN: Well, thereís actually a motion pending in the Baldwin
case (SHR 1350) that the Court unseal it under a protective order, so that the
parties could at least see it and address it, and according to them, the Court could
unseal it under a protective order before it rules on the question of privilege, so the
State would have a meaningful opportunity to address the privilege question.
THE COURT: (SHR 1350) Well, yeah, I donít have any problem with that.
I mean, Iíd have to look at it to rule whether it was a privilege question or not,
anyway. So yíall might as well get the benefit of it. So itís supposedly in the
MR. RIORDAN: It is filed on May 30th, and that is the ideal thing; both
parties get it under a protective order and they can certainly address the privilege
question as a straight question of law, I think.
MR. RAUPP: Thank you.
THE COURT: All right, weíll do that. Is there anything else?
MR. PHILIPSBORN: Your Honor, the last thing, and I appreciate the
Courtís indulgence and patience. There is pending before the Court and has been
for some period of time, in the context of the 1780 cases, a motion for some
additional testing, and I gather that it would be appropriate to the parties to address
that in the precedent that they offer, because obviously, if the Courtís going to
deny the hearing and basically rule on the pleadings, I think we put the relevant
facts before the Court and the Court could address that issue as well, but I didnít
want it left hanging (SHR 1351).
THE COURT: What additional testing are you referring to? (SHR 1352)
MR. PHILIPSBORN: Your Honor, there were two classes of evidence that
we agree to disagree about. This is in the conversations that I had with Mr. Davis;
the re-testing of some fiber evidence and some testing of some specific hair
evidence. And so that issue was put before the Court and the State has opposed the
re-testing and it has been dealt with in the pleadings.
THE COURT: It seems like I remember yíall raising that the last time we
MR. PHILIPSBORN: Yes, sir.
MR. BURT: Judge, thereís one last issue which is an evidentiary issue, and
weíd be glad to brief this for the Court. But I wanted to go on record as stating an
objection to an exhibit that the State has attached to its response to the petition in
Misskelleyís DNA motion. And that is an exhibit in which the State has
designated as Exhibit ďE,Ē which is a transcript (SHR 1352) of, apparently, a posttrial
interrogation of Mr. Misskelley. I donít know if the Court has that in front of
THE COURT: It doesnít look like I have it here.
MR. BURT: I have it. This is our file, Your Honor. At the outset of this
interview, Mr. Davis informs Mr. Misskelley that the statement that he is about to
give will not be used against him in any proceeding whatsoever, in the future. And
essentially gives him use immunity for the statement he is about to make. And itís
our position that a statement given under those circumstances cannot be used in
any proceeding, including this one, and that the Court ought not to consider that in
making any rulings that it might make in regard to the motions that are before the
THE COURT: Is that objection in your pleadings?
MR. BURT: No, itís not, and thatís why Iím raising it at this point. Weíre
adopting the pleadings of Mr. Echols, and this issue pertains to Mr. Misskelley
(SHR 1353). Weíve not filed a separate pleading, but will be glad to brief the
issue, because there is some law on this. But I just wanted, at this point, to go on
record as stating that objection, and with the Courtís permission, we file a brief as
to the issue.
THE COURT: All right. Do you need to file a reply to that?
MR. RAUPP: I would, just briefly, the Stateís position is with immunity
granted and authorized by the Court in case with consistent to the Arkansas statute
which provides only for the use immunity, and while described in any transaction,
the immunity granted would have to have been consistent with Arkansas law used
in a criminal proceeding. This is no longer a criminal proceeding; itís a civil
THE COURT: Itís a civil proceeding.
MR. ROSENZWEIG: Except, Your Honor, that the courts have also held
that representations made by a prosecutor are equitability enforceable.
THE COURT: Well, brief it for me.
MR. ROSENZWEIG: I will (SHR 1354).
MR. PHILIPSBORN: Your Honor, that same objection would also pertain
to Baldwin, because the same item has been proffered in Baldwinís case.
THE COURT: Okay. All right. Is there anything else? (SHR 1355)