THE COURT: Let the record reflect that this is a hearing out of the presence of the jury.
MR. STIDHAM: We talked about this, I think during voir dire or prior to the voir dire examination, when we expressed our concern that the prosecution was going to attempt to somehow impeach our expert, Doctor Wilkins, on his credibility due to some disciplinary proceeding that had been pending.
I don't know how, but somehow the press learned of this and made a pretty good heyday of it. I haven't spoken to anybody down at the attorney general's office. I talked to Jim Taylor of Channel Eight News yesterday, and he told me he had personally went down and inspected the file and told me he actually had the head honcho, guru, of the psychology board of examiners, whoever he is, on tape saying that Doctor Wilkins was in good standing and could practice psychology and so I thought the issue was pretty much a dead issue.
I'm gravely concerned about how this information got leaked to the press. I'm not going to sit here and even insinuate that Mr. Davis or Mr. Fogleman did it because I have no proof or reason to believe that. But I think it is kind of ironic, to say the least, that the press had to pick up on this. I've never been involved in a case where the press goes down to Little Rock and starts looking into whether someone is on the disciplinary board.
THE COURT: You have never been involved in a case like this before --
MR. DAVIS: Judge, may I for the record?
THE COURT: Yes.
MR. DAVIS: When Mr. Fogleman and I were at the State Crime Lab talking with Doctor Peretti, whenever that was, Channel Four was there. It was days before the trial started -- probably Monday or Tuesday of the week before we started picking the jury -- I get a phone call while I'm there and a newspaper reporter calls me and says, are you are that there is a file that is accessible to the press through the Freedom of Information Act in Little Rock that contains all this stuff on Doctor Wilkins, and that newspaper reporter advised me that they were copying the entire file and gave me the telephone number of who I could contact to get my hands on it and as a result of that, that is where I got my information. They contacted me first.
MR. STIDHAM: Your Honor, we have a kid's life at stake here, and here we are on the day that my witness is supposed to take the stand and testify and I get handed a file from the attorney general's office dated January 28th -- and this is the first of February -- purporting that the Court is now -- in conversations I had with the Court earlier -- you indicated you're going to let the State impeach him with regard to the contents of that file.
THE COURT: That is not exactly what the Court said. The Court was handed the file this morning, because of my previous ruling that should be a matter of record where I disallowed the State, or indicated that I would not allow the State to inquire into the reason for or the purpose for disciplinary action that was scheduled against Doctor Wilkins.
I was led to believe by all of you at that time that he had not been afforded due process, that there had not been a hearing, that there had not been any administrative action taken against him that would jeopardize his practice in any way.
Based upon that, since the man had not been given due process and since there had been no action taken against him, I wasn't going to allow the inquiry. I understand it had something to do with having an eight-year-old, ten-year-old, sixteen year old boy -- whatever the age was -- to expose himself in the presence of the doctor, at least that is one of the allegations that allegedly had been made. I wasn't going to let them inquire into that. I'm not sure that even at this point, that the specific reason for any disciplinary action against him, that that needs to be inquired into.
However, this morning probably five minutes before I handed it to you, Mr. Stidham, I was given a copy of a court order and stipulation of settlement, not only that was before an administrative hearing tribunal which constituted a court of record, but also a document signed by Doctor Wilkins stipulating that the administrative proceedings could be settled based on certain conditions. And then I find that the hearing that he missed last Friday, which there was a bunch of conversation about, and it was following that that an article that I saw, a three-inch column in the Jonesboro Sun on page seven, as I recall, mentioned he was scheduled to appear before the disciplinary board. That's about the extent of it. It didn't go into the purpose or cause.
However, this consent order restricts his ability to take new patients, restricts his ability to render evaluations. It requires that a doctor, and I believe it was one that Doctor Wilkins agreed to named Williamson who practices in Little Rock, to monitor his evaluations, just ordinary evaluations. And it excluded him from doing certain kinds of practice. I think it was neuropsychology.
And that is why we are here right now. I don't know what's fair game and what's not, but certainly it is not the picture that was given to the Court originally about a man not being given due process and thereby being impeached or his credibility challenged where he hadn't been given due process.
I find now that that's just exactly the contrary of what --
MR. CROW: Your Honor, for the record, we certainly didn't purposely mean to mislead the Court.
THE COURT: I'm not saying that. I'm just saying it's a different situation.
MR. STIDHAM: Your Honor, this stipulation that he entered into as I understand it is in lieu of disciplinary proceedings.
THE COURT: Well --
MR. STIDHAM: How can we say that he has been disciplined or on probation for anything when this agreement was in lieu of that? Furthermore, the people I have talked to about this say -- whoever is the governing board of this -- has indicated that he is not on probation. In fact Doctor Wilkins has told me a couple of days ago he's considering legal action against the Jonesboro Sun for printing that false information.
The problem is -- and the big concern, your Honor, is this kid's life is at stake. Here we are on the day my expert is supposed to take the stand and we get this big file that the prosecutor has apparently had since the 28th, and I get to see on the first, and they are going to go in there and impeach our expert witness on his credibility based on this stuff --
THE COURT: What is it you want the witness to testify to, first of all, and then I want to know how you want to go about impeaching him.
MR. DAVIS: I'll tell you how I intend on impeaching him when I find out what his testimony is going to be.
MR. STIDHAM: Your Honor, we intend -- just as we did at the previous hearings with Doctor Wilkins -- to ask Doctor Wilkins to testify about psychological testing that was conducted on the defendant. IQ testing, his MMPI, the tests that he testified to earlier.
THE COURT: What is that?
MR. STIDHAM: The test that he does -- I'm not a psychologist. I've got all my notes.
MR. CROW: He did the ball of clay, the checkers --
MR. STIDHAM: I'm not going to ask Doctor Wilkins to testify about brain damage or stuff of that --
THE COURT: You're going to ask him about all those psychological tests and then what else?
MR. STIDHAM: We had intended to also after he talked about the tests that he had given the defendant and what the results of those tests were, we anticipated asking him whether he had any training and experience with regard to cults. And ask him what his experience, education, training and background is with cults and have him testify whether or not he has an opinion as to whether or not these homicides are cult related.
THE COURT: I wouldn't allow that.
MR. STIDHAM: Why not, your Honor?
THE COURT: I wouldn't allow him to formulate that kind of opinion. That is for the jury to decide.
MR. STIDHAM: Your Honor, that is what an expert is for is to help the jury understand the issues. Basically, the jury has been given a picture --
THE COURT: You're going to qualify him as an expert in cult activity?
MR. CROW: He's given seminars on it, your Honor.
MR. DAVIS: He's given seminars on forensic psychology, too, and they are telling him he doesn't have any background in that.
MR. STIDHAM: Your Honor, he's given, as I understand it, four thousand forensic evaluations. How can be not be learned in that area? That is what the State of Arkansas has asked him to do on over four thousand cases. He gives forensic evaluations.
As I understand the rule, there is no -- just like lawyers can't say I'm a criminal lawyer or I'm a -- you can't set out to be an expert in a certain field or specialize in a certain field. I understand there's no licensing requirement for a forensic psychologist. That's my understanding of the law.
MR. DAVIS: You have to submit a letter of intent indicating the areas of practice which you will be involved in and have that letter of intent approved by the board before you practice in certain areas.
And that is exactly what they go into. In this hearing transcript it says when it comes to forensic psychology that he has never submitted a letter of intent indicating that he's practicing in that area. In the transcript where he was under oath he testifies -- they said, "What training have you received to do forensic examinations?"
And he goes, "Well, I have tried for the last three years to take this course but I just can't get a hold of the guy who teaches it."
And then they go on to say, "We have grave concerns whether he should be allowed to do forensic examinations with no past training or background."
MR. STIDHAM: Your Honor, if the Court is going to allow him to impeach based on this stuff at the very last minute, we would ask for a continuance and allow us to find a psychologist -- and we'll go down to Little Rock this time and we will look in the files and make sure there's not any disciplinary actions pending. This kid's life is at stake, your Honor. If we need to get him evaluated again, that's what I'd like to do. We'd ask for a continuance. This has obviously been a surprise to us. They've had this information. We didn't get it until today.
MR. CROW: Your Honor, I would point out that according to what Mr. Davis just said, he received this information before we started voir dire. He was down in Little Rock --
THE COURT: That was after the jury was picked.
MR. FOGLEMAN: Even if we had, this is rebuttal type information. We don't have to give what we are going to ask them questions about -- what cross examination -- so they can get the experts coached --
THE COURT: Well, it goes to the weight of his testimony anyway. I guess it touches his credibility to some extent.
MR. FOGLEMAN: Your Honor, on the occult thing we'd say that he's not qualified in that area to give an opinion on that.
MR. STIDHAM: Judge, you know why there's no such thing as a cult psychologist? Because there ain't no such thing.
THE COURT: Doctor Jim Richardson at the University of Nevada is a recognized expert in it.
MR. STIDHAM: There's never been a documented case of satanic cult ritualistic homicide anywhere in the country.
MR. FOGLEMAN: You're getting that from Ofshe.
MR. STIDHAM: I got that from the FBI and Doctor Wilkins.
MR. DAVIS: Was it from the FBI through Doctor Ofshe?
MR. STIDHAM: Doctor Park Dietz is one of the most renowned forensic psychologists in the world and he has written a pamphlet. I can show you the pamphlet.
Judge, this is a witch hunt and we should have the right to show that there's never been a documented case of satanic ritualistic homicide anywhere in the country. We ought to be able to have a psychologist who's familiar with that literature and the scientific proof to show that to the jury.
THE COURT: I'm going to allow you to put on Doctor Wilkins and get whatever you can out of him, and I am going to allow them to cross examine him and impeach him.
I'm not going to allow you to go into specific instances of misconduct, however -- unzipping the boy's pants and dropping his trousers -- I'm not going to allow that.
I will allow you to ask him if he has entered into a consent order with the licensing board restricting his practice to certain areas. And the content of his previous sworn testimony can be used to impeach him, not to impeach him but to go against his capability of formulating the opinions he's going to render.
MR. DAVIS: Judge, one other area in there -- as part of that order, they required him to undergo psychological evaluation. The report from Doctor Hazelwood concerning his psychological evaluation indicates that he found substantial evidence that Doctor Wilkins suffers from the same -- basically the same diagnosis that he diagnosed the defendant with. And since his personal perception --
THE COURT: You mean he has an IQ of 72?
MR. DAVIS: They didn't give him an IQ test. Other things in that report indicate -- let me find that and show you.
MR. STIDHAM: Your Honor, we respectfully ask for a continuance and have an opportunity to have this defendant evaluated.
MR. DAVIS: Judge, in regard to the continuance Mr. Stidham or Mr. Crow were the first ones to bring up the matter of Doctor Wilkins' potential problems sometime during jury selection. And they're the first ones that mentioned it, showed concern that it might be a problem at the trial.
MR. STIDHAM: And the Court ordered the prosecution not to impeach the witness based on --
MR. CROW: At that time, your Honor, the prosecution said, the only question I intend to ask is if he is a member in good standing with his board.
MR. DAVIS: I didn't know this.
MR. STIDHAM: This kid's life is at stake here.
THE COURT: I understand that your defendant has got a great stake in this, but you also need to have proper evidence, and the State also has the right to impeach your witnesses when they can. Y'all totally and completely misled the Court when you indicated --
MR. STIDHAM: Your Honor, we didn't --
THE COURT: I'm not saying it was a willing or knowing thing, but you certainly led the Court to come to the conclusion that the man hadn't had due process when I find that he has.
MR. STIDHAM: He told us there was no disciplinary action, that he wasn't on probation, that it was pending.
THE COURT: What does that settlement say? Does it place him on probation?
MR. STIDHAM: Your Honor, we didn't see this until 30 minutes ago.
THE COURT: I'm telling you your witness knows. Did he lie to you? Is that what you're telling me?
MR. STIDHAM: He said he was not on probation, he was a member in good standing and that there was a hearing pending. That's all he told us.
MR. DAVIS: It is not our fault that the witness has short sheeted them on the information.
MR. STIDHAM: This is a capital murder case --
MR. FOGLEMAN: I have got a feeling that Ofshe is going to be relying on some of Doctor Wilkins' tests and just because we come up with some good cross examination material, they shouldn't be allowed to say, wait a minute, now that you have come forward and told us you've got some good cross examination, we want to change so the expert will have something worthwhile to rely on.
THE COURT: I'm not going to continue the case. Y'all don't have to call him. You've got until tomorrow. Maybe you can have somebody conduct an evaluation tonight and tomorrow.
MR. FOGLEMAN: We won't have been given the name of the witness --
THE COURT: That's a decision they'll have to make. I'm not going to allow you to go into sexual perversion or the specific incident of conduct, but I will allow you to inquire into any sworn testimony that he's given to a disciplinary board.
I would prefer that you not necessarily refer to it as a disciplinary action, but you may refer to it as a --
MR. STIDHAM: The prejudice is going to be so great to that jury. They're not going to understand what a disciplinary hearing is or what a settlement in lieu of formal disciplinary action is.
THE COURT: I didn't pick the witness. You can either call him or not call him but if you do call him, I'm going to allow them to cross examine him, but I'm not going to allow them to cross examine him like he's a dirty old man or that he made a little boy drop his pants. I'm not going to allow that. That would be more prejudicial than probative.
MR. CROW: Your Honor, as far as any psychological testing he's undergone, I object to any reference to it, much less the outcome. I think the prejudice there would far outweigh the --
MR. DAVIS: Judge, the reason we are interested in going into that is obviously his perceptions. For example, one of the tests that they conduct is called the house/tree/person test, and he gives nearly three paragraphs of findings based on Jessie Misskelley drawing a house, a tree, and a person and as part of those findings, he says that he makes these findings because he interprets it to represent phallic symbols, which we've got -- I intend to go into that with him.
As far as his personal interpretation and his personal viewpoints and his personal idiosyncrasies, his personal credentials are all very important in determining if he's going to make these judgment calls based on the drawing of a house, a tree and a person, then he's going to have to stand up there and suffer through cross examination.
THE COURT: I'm going to allow it. I'm not going to allow you to refer to that letter where he's been psychoanalyzed or been evaluated by another psychologist. What I will allow you to do is ask him if his competency in those areas has ever been challenged by other professionals and if you lay the proper foundation, I will allow you to confront him with that letter, give him an opportunity to review it without letting that letter be displayed or the contents read to the jury. I will allow you to cross examine him in that regard.
All that business as it first came up to me was a guy had taken a kid in and had him drop pants and hadn't had a hearing on it. I find now that is totally and completely different. How did you come by this guy? Did he volunteer?
MR. STIDHAM: Judge, it is real hard to find someone to --
THE COURT: I just want to know how you came by him.
MR. STIDHAM: We made some phone calls and found someone who was willing to work on the chance that they might get paid. We have an indigent defendant who is facing capital murder charges.
THE COURT: He made no representation to you whatsoever --
MR. STIDHAM: -- absolutely not, your Honor --
THE COURT: -- about having not one but two prior hearings where testimony was taken where he had entered into a consent order?
MR. STIDHAM: When we asked him the other day when this subject came up, he insisted --
THE COURT: Have you asked him about the consent order?
MR. STIDHAM: We have seen this a few minutes ago. This is a complete and total surprise to us --
MR. FOGLEMAN: But y'all knew about it during voir dire --
MR. STIDHAM: If this was going to become an issue, we asked the Court --
MR. CROW: -- what he told us --
MR. STIDHAM: Just a minute. Your Honor, we asked during voir dire if this was going to be allowed and the Court said no. We asked at that point --
THE COURT: What was going to be allowed?
MR. STIDHAM: Whether they were going to be able to impeach him with this disciplinary stuff.
THE COURT: I don't remember the exact words but that's essentially it, whether or not I was going to allow the State to go into whether or not he had been disciplined. Y'all told me -- and I think I asked has he had a hearing, has he been before the board, and I was told no.
MR. STIDHAM: He told us it was pending, your Honor. We also asked for a continuance if this was going to become an issue so we could have Mr. Misskelley evaluated. And here we are on the day that Mr. Wilkins is going to testify and we get shown a pamphlet from the attorney general's office that the prosecution has had for four days.
Judge, that is surprise if I've ever seen it. This man's life is at stake.
MR. FOGLEMAN: Your Honor, I don't think it was even a requirement that we disclose it at all until after the man had testified.
THE COURT: That's not the issue. The only issue is --
MR. STIDHAM: -- justice and fair play.
THE COURT: Justice and fair play would also allow the State to inquire into the competency and credibility of your witness. Justice and fair play wouldn't allow you to put on a witness that has lied to you about his professional standing and has lied to you about ever having appeared before a disciplinary board.
MR. CROW: I'm not so sure he's lying to us.
MR. STIDHAM: I think it's a matter of interpretation, your Honor. This looks to be an agreement in lieu of formal disciplinary proceedings. That's the way I read that. And I think that is the common sense interpretation and logical interpretation of what this information says.
MR. DAVIS: It says, "Probationary stipulation," is what it refers to, which indicates that he's on probationary status.
THE COURT: Isn't there an order in there, too?
MR. STIDHAM: I haven't had an opportunity to properly review it. Judge, if I hadn't heard through the grapevine that this was going to come up, we would have been bushwhacked with it.
THE COURT: I don't want to have to try this case over again because of some nitpicking thing or because of some --
MR. STIDHAM: We're not going to ask him anything about neuropsychology. All we want to do is get the psychological testing in --
THE COURT: What you want to do is put this man on now and allow him to testify to whatever you want and restrict the State from cutting him up if they can. That is exactly what you want to do.
MR. STIDHAM: No, your Honor. I want to reach a compromise if we can reach a compromise. Otherwise, in the interest of justice I feel we need to have a recess in order to have Mr. Misskelley evaluated. We have spent hours and hours and hours with Doctor Wilkins since back in October. No one ever indicated to us --
THE COURT: Why don't you talk to Doctor Wilkins and confront him with it and see what we come up with and see where we stand.
MR. STIDHAM: Your Honor, this is patently unfair to the defendant and is a violation of his due process rights and his right to receive a fair trial.
THE COURT: In what way?
MR. STIDHAM: Today's the first of February and --
THE COURT: I'm not preventing you from putting him on. Put him on.
MR. STIDHAM: Your Honor, we're painted into a corner with regard to this --
THE COURT: You take the witnesses as you find them. I didn't create the man. You didn't either as far as I know.
MR. STIDHAM: We didn't create this problem.
THE COURT: Well, I sure didn't. I just inherited it here at the last minute.
MR. DAVIS: Judge, one thing for the record is Doctor Wilkins has been here continually throughout the trial and has conferred with defense counsel numerous times during the course of the trial so they certainly --
THE COURT: Almost daily.
MR. DAVIS: -- at least since the time they acknowledged to us that they were aware this problem existed have had access to Doctor Wilkins to certainly determine from him what was contained in his file. And all of the documents that we have in our file received from the attorney general's office are documents which either Doctor Wilkins has signed or mailed to him or letters that originated from Doctor Wilkins so he's acutely aware of all this.
THE COURT: My ruling is going to stand. I'm going to allow you to cross examine him. I'm not going to allow reference to exposing the child. I'm not going to allow you to make a direct reference to the letter from the psychologist that did studies on him although you can set him up for that and then confront him with it without telling the jury what it is.
If y'all don't want to put him on under those bases, then you better get busy right now and try to find you another doctor. If it develops that it takes another day or two, then I'll permit that, but you're going to have to get busy.
But to me the interest of justice allows both sides to attack the credibility of any witness. His credibility came with him bag and baggage.
I didn't read all that stuff either. I did read what I thought was an order signed by a hearing administrator and signed by Doctor Wilkins.
MR. STIDHAM: Would the Court call whoever the head guy is and inquire what his official status is with the board? I'm getting conflicting reports from members of the media and what Mr. Davis is telling us.
THE COURT: The media is talking to you about it?
MR. STIDHAM: Yeah, they're coming up and asking me about it. Jim Taylor of Channel Eight News said that he had talked to the person responsible in Little Rock and said he was not on probation and that he was a member in good standing. I thought this issue was dead.
MR. DAVIS: As I understand it, Doctor Wilkins gave a two hour interview to KAIT Sunday afternoon.
THE COURT: Did he?
MR. STIDHAM: I have no knowledge.
THE COURT: That would be something you could use to impeach him, too.
MR. STIDHAM: If monkeys flew around the room right now, I wouldn't be surprised, Judge.
MR. CROW: One thing, your Honor, that concerns me. If we limit his testimony -- I think we can do that -- to take out the thing about the tree, house --
MR. DAVIS: I don't want --
MR. CROW: -- we can limit his testimony -- I realize you don't want that -- but if that is not what he's basing his opinion on when he gives his testimony, how can they impeach him on that?
MR. STIDHAM: Judge, is this about justice and truth and whether or not this kid is innocent or guilty, or is this about trying to get a conviction and confusing the jury --
THE COURT: From the prosecutor's standpoint, they probably want a conviction. From your standpoint, you probably want him off and probably neither one of you care where the truth lies from that standpoint. The Court is interested in what the truth is and what is fair play between the defendant and the State and that is all I'm trying to do.
MR. FOGLEMAN: Your Honor, I would say for the record the State has every conviction that this defendant is guilty or we wouldn't be pursuing it.
THE COURT: I'm sure of that as well. All the platitudes you're making for the record, Mr. Stidham, don't change the circumstances. You've said that enough. You can say it over and over again if you want to.
MR. STIDHAM: Thank you for your consideration.
(RECESS)
(THE FOLLOWING CONFERENCE WAS HELD IN CHAMBERS)
THE COURT: Let the record reflect this is a hearing out of the presence of the jury. The purpose of the hearing is to consider the testimony of Doctor Wilkins.
MR. STIDHAM: We would like to bring up a couple of points that we didn't discuss earlier before lunch.
The Court indicated it would not let Doctor Wilkins testify with regard to cults --
THE COURT: I didn't say that.
MR. STIDHAM: I thought that's what the Court's ruling was.
THE COURT: No, I didn't say that.
MR. STIDHAM: Did I misunderstand?
MR. CROW: That's the way I took it, too.
THE COURT: No. I haven't made any final determination whether or not he testifies about cults. The question is, is whether or not he's competent to testify in that area and that is what the State has raised and that goes to qualifying him as a forensic expert in psychology with special competency in the area of the occult and that is the sole issue.
I think the testimony, or at least the conversation we had earlier was relative to him being cross examined if he testifies on matters involving a disciplinary settlement that was made before the licensing board where he signed and somebody for the board signed. That is the real issue.
You kind of outlined what he was going to testify to with regard to the occult and I might have expressed some question as to whether he was competent in that area, whether or nor he had any expertise, but I haven't ruled on it.
So if that's what you want to get into -- I'm more interested right now in the other matter on cross examination. To me that's more significant.
MR. STIDHAM: Your Honor, we'd like to have Doctor Wilkins sworn and have him tell the Court what the nature of the disciplinary stuff is so the Court can be informed about that. I have spoken to Doctor Wilkins' attorney, Mr. Crego, and he has brought up a few things I want to make the Court aware of, too.
For example, under seventeen -- Arkansas Code Annotated seventeen dash ninety-six dash three ten -- as I understand the statute, it says there is no such thing as probation for a psychologist. You either have a license or you don't. You are either in good standing or you've been suspended.
Furthermore, it's my understanding that Arkansas is a general licensing state so if you're licensed as a psychologist, you are a psychologist. There's no license for a specific type of psychology. As I understand from looking through the file with Mr. Crow, it would appear that this settlement agreement was taken in lieu of a formal hearing before the disciplinary board.
We would submit that because it was in lieu of, that it is not proper for the State to impeach him on that. Also, we would submit that it's hearsay. If the Court determines it is not hearsay, it certainly hasn't been properly authenticated, and it doesn't appear to be the original, nor is it attested.
We would also like to have the opportunity for Doctor Wilkins to explain the nature of the disciplinary action, what if any action or tarnishment there is on his record, whether or not he is in good standing with the board.
THE COURT: All right. Go ahead.
DOCTOR WILKINS
having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:
DIRECT EXAMINATION
BY MR. STIDHAM:
Q. Can you tell the Court what the basis is for this settlement agreement in the disciplinary action? I guess you need to start at the beginning.
A. It began in November of 1990. At that time I was seeing a family with a possibility of some sibling incest. At the time we were dealing obviously with the daughter and son. The son was the perpetrator. Ah, I had contact with the Division of Family Services. I was involved in the normal legal process I had to go through with that.
During the course of the assessment with the -- with the -- with the girl, we discussed a fair amount of ah -- of ah -- of physiological characteristics that her brother had in terms of determining the veracity of her ah -- ah -- ah -- comment.
I checked with the parents about the confirmation of those. They did not know what they were. Ah, so I was in a -- in a -- quandary at that point and the -- and the father noted, well, I'll have him pull his pants down and look and see. So he proceeded to do that.
Nothing happened then after that for about another six months, ah, at which time these two young people's mother was hospitalized at Charter Lakeside Hospital in Memphis. While she was in the hospital at Charter Lakeside, she happened to raise the issue with Doctor Causey in passing. And then also at that time Doctor Causey became very concerned about the young man that was involved and was insisting that he be hospitalized.
At that time -- and depositions are now available for the record -- at that time, ah -- ah -- ah -- both the father and mother signed deposition statements that Doctor Causey told her she could not leave the hospital until she brought her son over there and let them grab him and put him on the unit.
When the parents told me of this, I contacted the prosecuting attorney's office. I contacted the attorney general's office and contacted the psychology board with my questions. Ah, I did not get any response. Nothing happened.
Ah, a few months later this letter from Doctor Causey came to my board. I responded to the letter. Ah, ten months later nothing happened. Having heard no further response from the board or anyone else, then I got a letter saying they were all concerned about this and they needed to have some kind of resolution.
I agreed to do whatever we needed to do to get it resolved. I then asked about my concern involving the kidnapping of the children from Arkansas into the hospital in Memphis. They again chose not to respond.
So finally I was left with no alternative but to contact the Children's Defense Fund and the Center for Mental Health Law and the attorney general's office in Tennessee.
The attorney general's Office in Tennessee is just completing its evaluation and its charges are pending against Doctor Causey and Charter Lakeside Hospital. The Children's Defense Fund, whatever they are doing for the State of Arkansas or wherever else it may be.
We then entered into a settlement agreement. At that time I agreed easier than a whole lot of other complications that I would be supervised for six months, that I would undergo a psychological evaluation. That agreement was formalized. I underwent the evaluation. I met with the supervisor that the board appointed, Doctor Curtis Adkinson. Doctor Adkinson and I met on several occasions. Curtis wrote back to the board saying I didn't need any supervision. He didn't know what to do.
We waited then another seven or eight months, got a notice from the board saying that I hadn't followed the outline of the board. During this time I had employed John Wesley Hall. Mr. Hall had written five letters to the board. I had written four letters to the board requesting, what do we do now because the supervisor has quit. Where do we go now. Nine months later still no response.
We then had a -- I then got a notice of a board hearing. So we went to the board hearing. At that time it was agreed that if I would agree not to practice neuropsychology, all other things would be left aside.
Also at the time we had a discussion that a psychological evaluation would be made of me by Doctor Hazelwood, which by the way, I have sent to five other experts around the country who have made responses that the board now has. I have also pressed malpractice charges against Doctor Hazelwood.
And so we are still involved in that process now. Ah, we once were again deciding then what do we do for a supervisor, and do we still have to go through that system. We are still waiting for the board to decide what it is I need to be supervised for and if we ever get that decided, who is going to do it.
The board has now taken three and a half years to decide that, which we are no closer now to it than we were when we started three and a half years ago.
And that's basically what the process is. At this point there is no such thing as probation. I am not on probation. I have not been told I could not practice forensic psychology. I am licensed to practice in the State of Arkansas as much as anybody else is licensed to practice in the State of Arkansas with the one criteria I do not do neuropsychology and I do not do child sexual abuse cases. Other than that there is absolutely no restrictions to my practice whatsoever.
DIRECT EXAMINATION
BY MR. CROW:
Q. Doctor, is Jessie Misskelley's case a child sexual abuse case?
A. No. the charges are three cases of capital murder I think.
Q. Would you be treating Mr. Misskelley for any kind of child sexual abuse?
A. No.
Q. Have you done any neuropsychology tests on him?
A. No, I have not.
MR. CROW: Your Honor, I --
BY THE WITNESS:
A. May I make one more comment?
Q. Sure.
A. The issue in Doctor Hazelwood's report regarding my intransigence of ah -- of ah -- of not -- in terms of not allowing things to pass had to do with the fact that I had not yet and still refuse to abandon charges of kidnapping and unlawful taking of patients by Charter Lakeside Hospital. And I will not back off on that so, therefore, I've been declared intransigent, making outrageous statements.
Well, I can assure you that the Tennessee attorney general's office and the Children's Defense Fund do not think they are the least bit outrageous. And that's part of the process that we're now involved in.
I don't have any -- at this point have -- have -- have been fairly low key about the process. I have no problems with -- at this point. I will deal with it as I have to.
CROSS EXAMINATION
BY MR. DAVIS:
Q. You referred to Doctor Hazelwood's evaluation; is that correct?
A. Yes.
Q. In Doctor Hazelwood's evaluation the portions of it that tend to question whether or not you may have certain psychiatric disorders -- those are based on his finding that you felt the doctor in Tennessee was blackmailing you; is that correct?
A. Yes.
Q. You are also now indicating that Doctor Hazelwood who performed this examination is also blackmailing you also?
A. No. Heavens, no. He's not blackmailing me at all.
Q. You said that he was attempting to get you to drop the charges in Tennessee --
A. No. I didn't say anything like that at all.
Q. Does he mention in his report anything about the kidnapping charges?
A. Yes. He says they are absolutely outrageous and obviously I -- I -- I have some strange perception of reality because I make these strange outrageous charges.
Q. Did you also indicate in the transcript of the testimony that as far as any training in forensic psychology in the State of Arkansas that you had none?
A. No, I had not.
Q. When have you had training on forensic psychology?
A. In the State of Arkansas?
Q. Right.
A. I don't know what you're asking me.
Q. Have you had any training in the State of Arkansas in the field of forensic psychology?
A. Since I've been in Arkansas I have had training.
Q. Where, when?
A. In ah -- ah -- ah -- ah --Santa Fe, in Dallas, Texas.
Q. Have you had any in-state training in Arkansas?
A. No, I have not.
Q. Have you filed a letter of intent regarding the areas of practice with the Arkansas Board of Psychologists, whatever your governing board is?
A. No, I have not.
Q. Isn't a letter of intent in the areas you intend to practice in -- isn't that a requirement?
A. I did file one. I'm sorry. I filed one when I first came here in 1987, yes.
Q. What does the letter of intent reflect the scope of your practice is?
A. Unrestricted.
Q. In all areas of psychology?
A. Yes.
Q. Did the board request that you file a letter of intent regarding the specific areas that you intend to practice in?
A. Yes. And on that I just listed -- I don't know the exact thing -- I just listed marital, family, individual, productive tests, objective tests.
Q. When was that?
A. In 1987.
Q. Have you filed one since you have been brought before the board?
A. No, I have not.
Q. Are you currently supervised?
A. No. And it's not my fault. I can't get the board to appoint one.
Q. You've indicated that you're complying with the order in that you're not treating sexual abuse cases, you're not doing neuropsychology, and wasn't the other portion of that order that you be supervised?
A. But the problem is I can't get them to appoint anybody to supervise. And until they -- and so as far as I can tell, we are still under negotiations for them to decide who it is going to be. So in the meantime --
Q. If I ask a yes or no, are you currently under supervision, would the answer be no?
A. No.
Q. Is the probationary order which reflects that you're not to treat child sexual abuse and not to do neuropsychology, does it also indicate you are supposed to be supervised?
A. Which order?
Q. The one that is in effect now.
A. There are seven in effect as far as I know, none of which -- I haven't decided which ones are in effect and which ones are not in effect. What you have here is about one-fifth of the file or less, probably. I have a transcript --
Q. Is there an order in effect that requires you to be supervised?
A. I don't know. I don't know what the order is right now.
Q. You don't know if you are supposed to be supervised or not?
A. No.
REDIRECT EXAMINATION
BY MR. CROW:
Q. Have you made an effort to try to get a supervisor?
A. I made an effort to try to get the board to decide who would be appropriate if they still want me to have one.
REDIRECT EXAMINATION
BY MR. STIDHAM:
Q. Does any of this we just talked about in the record -- has that any effect on your ability to evaluate Jessie Misskelley as far as this murder case is concerned?
A. No. My thought about that is -- is -- is -- if the board was so concerned about me being mentally unstable and mentally incompetent -- they have had the Hazelwood report since June of 1992 -- if they were really concerned -- and since that time I've seen hundreds and hundreds and hundreds of patients -- if they were really concerned about my mental stability, they could have revoked my license as soon as they got the Hazelwood report and so they don't take it very seriously apparently or they must not be greatly bothered by it or else they have had a long time to deal with it if they chose to.
Q. It is your testimony all these issues remain unresolved?
A. Yes.
REDIRECT EXAMINATION
BY MR. CROW:
Q. What you agreed in the stipulation was to not do child sexual cases?
A. Yes.
Q. And to not do neuropsychology and be supervised?
A. Yes.
Q. Have you had a supervisor appointed originally?
A. Two.
Q. The first one served for what five months --
A. Um-hum. And he couldn't get a response from the board as to what he was supposed to do. He finally said, I don't think we need to do anything else. I quit.
Q. And you made a continued effort since then to have one appointed?
A. Yes. The second one I chose they said no, he's not appropriate. He was the last chairman of the board so I'm not sure exactly what their issue is they're trying to deal with at this point.
THE COURT: Anything else, gentlemen?
MR. STIDHAM: Your Honor, I would point out that the statute seems to indicate you either have a license or you don't, and it seems to be obvious that Doctor Wilkins does have a license, and all these issues regarding supervision are still out there to be decided.
I have serious reservations as to whether or not due process has been afforded on those issues. I don't think I have a reservation with regard to child sex abuse cases, but that's not what we are talking about.
THE COURT: I don't have any question but what due process was provided. Doctor Wilkins has even indicated that he had John Wesley Hall, and everybody in the room knows John Wesley Hall to be a highly competent attorney that represented him at the hearing wherein the probationary order was entered.
It also seems to refer to the section you have quoted seventeen ninety-six three ten -- refers to seventeen ninety-three four ten of the Medical Practices Act which provides that, "The board may impose probation allowing a licensee to continue practicing under terms and conditions found to be in the best interests of the accused and general public."
Further, seventeen ninety-six three ten provides that, "The Arkansas Board of Examiners in Psychology may refuse to grant a certificate or may recommend suspension of any license for a period to be determined by the board."
And also, seventeen ninety-six three eleven seems to indicate that they may enter any appropriate order or ruling.
As far as I'm concerned, you are just talking about the good doctor did quite a bit in explaining so I'm going to allow him to testify, and I am going to allow them to cross examine, and he may make explanations that he deems appropriate.
I'm not going to let him go into stripping a kid off and exposing his privates, and I'm not going to allow Doctor Hazelwood's letter to be introduced and received in evidence as an exhibit. I will, however, allow them to make reference to it, show it to Doctor Wilkins and cross examine him appropriately without detailing the contents of the letter to the jury.
MR. CROW: Can I get a little further understanding as to -- I'm sorry, your Honor. Maybe I'm being ignorant.
THE COURT: It should be pretty clear by now.
MR. CROW: Maybe it should be. I apologize to the Court. It's what are they going to be allowed to do with this evaluation. That's my big concern at this point.
MR. STIDHAM: Your Honor, may I inquire of the witness a further question about the evaluation?
THE COURT: Sure.
REDIRECT EXAMINATION
BY MR. STIDHAM:
Q. Isn't that evaluation the subject of a pending hearing?
A. Yes.
MR. STIDHAM: Your Honor, that's still pending. To let the prosecution impeach him with that, something that is still pending. I don't think he's had due process with regard to that. That hasn't been resolved by the board yet.
THE COURT: Again, I'm going to allow them to ask him questions that go to his professional qualifications, his credibility, that present themselves. I'm not going to allow them to embarrass Doctor Wilkins. I'm not going to allow them to go into matters that would be prejudicial to your client. But I am going to allow them to cross examine him based upon this set of circumstances.
Do you understand what I'm saying about the letter from Doctor Hazelwood? I don't want that bantered back and forth in front of the jury. There are pertinent matters in it that would be proper subject matter of cross examination.
MR. DAVIS: Judge, one thing I'd like to point out for the record is that letter is the report based on the evaluation that was part of the agreed court order that contained also the terms of not examining sexual abuse victims and also the neuropsychology so that report is tied into the very order we are referring to.
THE COURT: I understand that. To that extent you probably could refer to it. That is a report that is based upon the agreed order that was entered by the Court. That is about as far as you can go. What's pending now -- those type things -- if Doctor Wilkins want to explain it, fine. I frankly don't see what is so disturbing about his testimony. He did a pretty darn good job of explaining what it's all about. But the fact is that all of us have to explain things from time to time.
THE WITNESS: I don't have any problem with having a press conference right now explaining that.
THE COURT: I'm not requiring you to do anything like that.
THE WITNESS: I have no problem in explaining that.
THE COURT: There was some reference made this morning that you gave about an hour or two press conference to some TV station. I don't know whether that's true or not.
THE WITNESS: I talked to people at KAIT about some other issues.
MR. STIDHAM: The only thing I'm not understanding -- he's not going to be allowed to introduce the letter from Doctor Hazelwood but he is going to be allowed to ask the witness to read it to the jury?
THE COURT: He's going to be allowed to refer to that letter as a part of the settlement agreement, ask Doctor Wilkins to refer to it and then ask pertinent questions concerning it. But the letter will not be received in evidence.
THE WITNESS: My one response to that if it is possible since I'm going to respond to that, I have a pile of material I'd like to bring for the Court hearing as I would not have that with me. If I'm going to testify this afternoon, I don't have the responses that I'm going to make to that. I have a nineteen page response to the Hazelwood report.
THE COURT: What is it you want to ask him out of the letter?
MR. DAVIS: Judge, there's a number of items. It depends on how the cross examination goes. They've already seen the portions I've highlighted. I just don't feel like sitting here telling the witness what I intend to cross examine him on.
THE COURT: I understand that.
MR. STIDHAM: What about our objection to hearsay and proper authentication of the document?
MR. FOGLEMAN: We are not introducing the document.
THE COURT: I'm not going to allow them to introduce them.
MR. STIDHAM: Judge, if they're sitting there telling the jury what is in the document, it is the same thing as introducing the document.
MR. CROW: If Doctor Hazelwood is not here to testify, your Honor, that's not an authenticated copy of anything that's in the file in Little Rock --
THE COURT: I'm not going to let Doctor Hazelwood's letter be received anyway so it's not a question of authenticating the document. But you will have a witness on there that can be confronted with it and asked if he recognizes it, if he knows what it is and you can proceed to ask him questions about it.
MR STIDHAM: I anticipate calling Doctor Wilkins then first thing in the morning and give him an opportunity to get the documents he needs to defend himself on cross examination with regard to these issues.
THE COURT: I'm going to let them cross examine him. I didn't create the situation. I don't guess Doctor Wilkins created it, but he lives with it, and we are going to all live with it. He says he didn't have any trouble explaining it, then let him do it.
If it had been a situation where he had been accused of some wrongdoing and had never gone before a hearing tribunal, never had those issues resolved, like I was led to believe, I would have prohibited any inquiry into it at all. But that's far from the case.
The fact of the matter is, is he had an adjudicative hearing for which a record was made and sworn testimony taken and he not only had one lawyer but had two lawyers present, as I recall. And John Wesley Hall, a former prosecutor, a defense lawyer of some renown, representing him. So whatever occurred there is free game.
MR. CROW: I don't have any objection to what occurred in that hearing. My objection is that evaluation that has nothing to do with the issues he's going to testify about.
THE COURT: I'm not going to allow the introduction of that letter into evidence, but I think as it dovetails and ties into the probation order itself, some of the contents of the letter are certainly available for the State to cross examine on, such as competency in the area of forensic psychology and that is one of the issues. But I think that is certainly an issue in this case -- his credibility in that area.
MR. STIDHAM: Your Honor, that is the issue that is coming up for the pending hearing. That hasn't been adjudicated.
MR. CROW: Your Honor, the only thing that has been adjudicated was the stuff that happened in the one order. The other hearing that the transcript is there for, if you will read the transcript carefully, your Honor, you'll see -- they basically talked and talked and finally said, we will meet again. No decision was made. No additional restraints were put upon him. They talked and talked and talked. I ask the Court the review the transcript carefully.
THE WITNESS: I think the transcript I have that I paid three thousand dollars for -- a transcript that is this high (INDICATING) for this hearing. There's another transcript that I'm looking at, too.
MR. STIDHAM: We are concerned about the jury being confused about the issues and what issues have been resolved and what issues haven't been resolved. And I just think it's patently unfair for the State to be allowed to impeach or cross examine him on something that hasn't been adjudicated yet by the board.
THE COURT: I'm going to let him cross examine him on the matters that were raised in the adjudicative hearing for which there was a probationary order entered. I'm finding that a probationary order was completely within the powers and responsibilities of the board to enter, and Doctor Wilkins has conceded that he signed it and agreed to it. That is basically what we're here for.
I have called and if you want another psychologist, the State Hospital in Jonesboro can give an IQ examination. It will take more time to do a forensic study if you want that done. That's an opportunity you can have between now and tomorrow.
But otherwise -- and I have nothing against Doctor Wilkins at all -- but I think he understands better than some of you in this room that he's prepared and capable to explain away the possible cross examination. It is there. It isn't going to go away. I didn't create it and you didn't create it. He didn't either. He's got to live with it. And he got due process. That's the only thing I'm concerned about. I want Mr. Misskelley to have due process. But on the other hand, I'm not going to unduly restrict the State's ability to cross examine the witness.
