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MR. DAVIS: Will we have to go back through this again tomorrow?
THE COURT: Yes.
(RETURN TO OPEN COURT)
(VOIR DIRE PROCEEDINGS BEGUN AT THIS TIME)
(THE FOLLOWING PROCEEDINGS WERE HAD IN CHAMBERS)
MR. STIDHAM: Your Honor, the motion is fairly self-explanatory. It sets forth some things that I'm going to ask the Court for reIief with regard to Mr. Misskelley.
It has come to my attention -- and of course it was brought to the Court's attention last Thursday -- that Mr. Misskelley was brought from the Arkansas Department of Corrections. Mr. Crow and I are attorneys for record for Mr. Misskelley and our representation and the scope of the representation extends beyond his conviction on February the fourth. We are attorneys of record. Everyone involved -- including the prosecutors, the Craighead County Sheriff's office -- everyone has known that Mr. Crow and I represent Mr. Misskelley since we were appointed by the Court on June 7, 1993.
We object -- we never had an opportunity to object because the order was presented to the Court ex parte -- to Mr. Misskelley being transported from the Department of Corrections to Mr. Calvin's office. We understand it is not unusual for a prisoner to be transferred from the Department of Corrections in order to testify at trial, but two circumstances warrant what I believe rises to a level of prosecutorial misconduct in this matter.
The prosecution knew in no uncertain terms that Mr. Misskelley was not going to be testifying against his co-defendants, Mr. Echols and Mr. Baldwin. I notified the prosecutor's office of that. I made two trips to Pine Bluff to talk to my client regarding an offer that had been made by the prosecution. He rejected the offer and instructed me to pursue the appeal and that he would not be testifying against his co-defendants. That brings us back to him being transported from the Arkansas Department of Corrections.
While again in my brief I pointed out and in the motion itself that it is not unusual for a prisoner to be transferred, under Arkansas law the prosecution can't even call Mr. Misskelley once they've been notified that he would assert his Fifth Amendment privilege. They had no right whatsoever to pick him up at the Department of Corrections and transport him anyplace, much less the prosecuting attorney's office in Rector, Arkansas. I'm deeply disturbed by the conversation that took place between the Craighead County Sheriff's deputy, who I only know as Dickie. I don't know his last name. I think it may be Howell.
Mr. Misskelley has informed Mr. Crow and I of the conversation that took place. Basically they strongarmed him into believing it was in his best interests to testify. They even promised to bring his girlfriend to see him at the jail, Judge, and I think that is the most abhorent, ridiculous, flagrant violation of my client's rights that I have ever seen.
Also, I believe, your Honor, that they poisoned his mind against his attorneys and I think that is a flagrant violation of his constitutional rights. As was pointed out in our motion, as was pointed out in our brief -- and I'll be glad to go under oath if that's necessary and I have an affidavit prepared as well. I received a phone call at home at approximately 6:15. Mr. Crow notified me that Mr. Calvin had Mr. Misskelley in his office.
Upon receiving this word, I called Mr. Calvin. Mr. Calvin also told me Mr. Misskelley was in his office -- this was on February 17th. I instructed him that he was not to talk to my client and that I was on my way to Rector. At that point Mr. Crow and I arrived in Rector. We were allowed to talk to Mr. Misskelley in Joe Calvin's conference room. Mr. Misskelley was very reluctant to talk to us. Approximately fifteen minutes into our conference with our client, Mr. Davis and Mr. Calvin burst into the conference room and announced that they were tired of waiting, that they were going to take a statement from our client irregardless of what we thought or believed and irregardless of the situation.
I informed the prosecutors in a very spirited debate that they were violating my client's constitutional rights and I objected to him being there in the first place and them bursting in and demanding to take a statement from my client. They were kind enough to leave momentarily and again they entered the room and demanded in the presence of my client to take his statement and also demanded or stated in the presence of Mr. Misskelley that they were concerned that Mr. Crow and I would talk him out of giving them a statement.
At that point Mr. Misskelley stood up in the conference room and said, I'm giving a statement and walked out and he declined to further discuss the matter with us. At this time your Honor was called and apprised of the situation, and I declared to the Court my opinion as to Mr. Misskelley's mental competency. At that point, your Honor, I demanded -- or requested, I should say, a mental evaluation. That request was denied by the Court and as the Court knows, the Court permitted that an offer of use immunity be granted to Mr. Misskelley, and he was permitted to give a statement despite Mr. Crow and I's adamant objection.
The statement was given. Mr. Misskelley was then transported to Piggott to the county jail and in conversations that I have had with Mr. Misskelley Senior, he traveled from West Memphis to Piggott to talk to his son, and he was denied access to his son, still has been denied access to his son as we speak here today.
Yesterday, Mr. Misskelley contacted Mr. Crow at our office and informed Mr. Crow that he had talked to the prosecutors Sunday. Without our knowledge and consent, the meeting took place. They spoke to Mr. Misskelley without even bothering to inform us that that is what they were doing.
Mr. Crow learned yesterday from Mr. Davis that they had also talked to him on Saturday and also on Friday, and we informed the prosecutor again in no uncertain terms on Friday, February the 18th, that they were not to have any contact whatsoever with our client.
They have refused to obey this request, and they have proceeded to violate both Mr. Misskelley's Fifth Amendment rights and his Sixth Amendment rights.
As I pointed out in my brief, your Honor, this offer of use immunity they're going to -- I anticipate the prosecution will say, now that he's been offered use immunity, we can do whatever the hell we want.
I think it is absolutely abhorent and a monkey of justice for these prosecutors to allege that by the offer of use immunity and the circumstances that it was granted that, therefore, they can do whatever they want to with our client.
Mr. Misskelley informed Mr. Crow, your Honor, that they were at the jail yesterday with trial exhibits, going over trial exhibits with our client without our knowledge and our consent. That highly prejudices our ability to represent our client, interferes with our attorney-client relationship. It also harms irreparably in our opinion our ability to pursue a new trial on a remand if we are successful on appeal.
Mr. Misskelley informed Mr. Crow that he had doubts about his testifying against his co-defendants yesterday, and we object, and we have asked for specific relief in our motion.
My primary concern is that the prosecutor be ordered not to talk to Mr. Misskelley anymore, and I don't think that the Court should condone a violation of his Sixth Amendment rights just so the prosecutor will have an opportunity to formally offer use immunity and, therefore, circumvent his Fifth Amendment rights. I think it is abhorent, and we would ask that the prosecution be held in contempt in addition to them being ordered not to communicate with our client, and we'd also ask that the Court appoint a special prosecutor to investigate this matter.
THE COURT: Do you want to respond?
MR. FOGLEMAN: Your Honor, the only thing I want to respond to that I know about personally is paragraph eight where he alleges that when I talked to Jessie Senior that I asked him to talk his son into testifying and that Jessie Senior told me he would not be testifying. That is not correct. That is not true. Jessie Senior did not tell me that he would not be testifying against his co-defendants. To the contrary, he told me he didn't know whether he was guilty or not at that time. I'm sure that Brent will want to have more specific responses to some of the other things in there. I would like to say this: Number one, his request for a special prosecutor to investigate these acts -- there's nothing in here alleged that is alleged to be criminal so I don't know where he gets off asking for a special prosecutor.
Number two, Jessie has indicated from my information that he wanted to testify and that Mr. Stidham and Mr. Crow despite knowing that he had relevant information that could assist Mr. Misskelley, they have instructed him not to testify despite the fact that he wants to. I think an attorney needs to be appointed to represent Jessie Junior in advising him about testifying. I cannot imagine a situation where a client wants to testify, has told Mr. Stidham that he was involved in this, has told his daddy that he was involved in this in Mr. Stidham's presence, and still Mr. Stidham won't do anything to help his client. He could still have his appeal. Nothing that he does in this trial could affect his right to appeal. I'm sure Mr. Davis wants to respond more specifically to the other allegations.
MR. DAVIS: Judge, I'd like to clarify one thing while we are on the subject. In discussing it -- and we did -- I talked to Jessie Misskelley on Friday afternoon. On that morning I called Greg Crow and told him, "I'm going down there to talk with him. It will be under the same conditions I talked with him Thursday night. If you want to be there, you're welcome to be there, but I'm going to go talk with Jessie Misskelley."
When I arrived at the jail, Greg Crow was not there. I brought two witnesses into the jail cell. I advised Jessie Misskelley that his attorney, Greg Crow, had advised him not to talk with anyone, that if he desired to talk with me, it would be against the wishes of his attorney. And he advised me at that time that he had been the one who told me on Thursday night that he wanted me to come down Friday and talk to me, that he certainly wanted to talk with me and indicated that he did not want to follow the advice of his attorneys and wanted to talk with me on that afternoon.
Again on Saturday when I talked with him -- and I have a copy of the document signed and witnessed by an individual at the sheriff's department. He indicated, I advised him if he talked with us, it would be against the advice of his attorneys, that his attorneys advised him not to talk with me and if he talked with me, it would be against their advice and based on his own personal wishes. He again told me he wanted to speak with me. I talked with him on that day.
Again on Sunday the exact same procedure was followed. Mr. Fogleman was there that time. He was advised that Mr. Crow had said it was their advice not to talk with us. He said he desired to waive their advice, so to speak. I don't remember the exact language -- wanted to talk with us, and he did so on that date.
To clarify some incorrect statements that Mr. Stidham made, originally we went down to the Department of Correction on Tuesday, which would have been the Tuesday after Mr. Misskelley was convicted.
It was our information that on the way down to the Department of Corrections on Friday, that he had spoken, talked continuously for a period of two to three hours, however long it took to get there, describing his involvement and even indicating to the officers that he was not shocked by what the jury did because he basically deserved the punishment he received. He talked constantly about what -- his involvement in the case. The officers advised me of that information and that's when I contacted Dan Stidham to see if we should go down there to discuss his client's options and if he did in fact want to testify.
We then rode down to the Department of Corrections on Tuesday. Mr. Stidham rode with me. Mr. Fogleman and Mr. Gitchell met us at Brinkley, and we went to Pine Bluff. At that time, Mr. Stidham talked with him for approximately ten or fifteen minutes, at which point he came out of the room, grabbed a Bible. went back in and -- this is my personal observation -- but approximately 30 to 45 minutes later Mr. Stidham exited. He was very upset, unnerved, just kept mumbling things -- "I don't know what I'm supposed to do now. I don't know what to do now."
And after thirty minutes of conversation, it became apparent at that point that his client had indicated that he was involved in the murders and had in fact witnessed and played a part in the murders.
Mr. Stidham then went back into the room, at which time he did not allow us, nor did we request or insist on having contact with his client. He went back inside and talked for another hour and came back and to paraphrase indicated that his client's story matched with the facts much better and there were a few things we needed to do to be able to corroborate his statement.
At that point we got in our vehicles, and one of the things to corroborate his client's statement was to determine if there was an Evan Williams whiskey bottle under an overpass in West Memphis.
To quote Mr. Stidham, I believe at that time, "If we can find a bottle like he says, then that will convince me that it happened." At 9:30 or 10:00 at night we drive -- ten o'clock in the evening -- we proceed, the four of us, to roam underneath the overpasses of West Memphis and lo and behold find a broken bottle in the location indicated by his client.
We then take the bottle to a local liquor store where we proceeded to spend the better part of an hour matching the bottle with certain items, and lo and behold it matches with the brand name bottle Mr. Stidham had indicated that we should be looking for in the first place.
At that point Mr. Stidham says that wasn't good enough to convince him. Additional efforts were made. He then -- there was a week hiatus where there was no contact apparently.
On Tuesday evening -- on Tuesday he apparently went with Jessie Senior to the Department of Corrections. They had contact with Jessie down there. I received information through my secretary that Dan had come through town, stopped, played a portion of the tape and said that his client was indicating at this point he was not there and that he would not be testifying.
On Wednesday morning I called Dan's partner, Greg Crow, another defense attorney, talked to Mr. Crow and at that time was somewhat surprised to find out initially when they went in to speak with the defendant, that he indicated that he in fact was there and was present when this happened and that it was after his father made some remark as if, you couldn't be there, you couldn't possibly be there, before there was a change in attitude.
At that point I indicated to Greg that, "I think Dan has lost his objectivity. I think he has lost the best interest of his client."
I said, "If we can make arrangements to get your client up here, would you be agreeable to letting me talk to him and you be present when that occurred."
At that point Greg said, "I would be inclined to do that." Yesterday he informed me that what he recalled saying was, "I need to talk to Dan." My impression was he would be inclined to do it, but he didn't know exactly how he was going to do it without discussing it with Dan.
I make no bones to the Court -- I was dealing with Mr. Crow because I thought Mr. Stidham had lost objectivity as to what was in his client's best interest, what actually to do in order to get to the bottom of the truth.
Mr. Crow was then -- we prepared the order. The Court signed it. I have had witnesses brought back a thousand times and never have asked permission of defense attorneys or counsel for that person or anyone else to bring a person back from the Department of Corrections as a witness.
He was brought back on Thursday. I was called by Joe Calvin. He had just talked to Greg Crow. He then called Greg back and advised Greg that Jessie Misskelley, Junior was on the way back from the Department of Corrections and would he meet us either at the jail or at Joe's office. Greg said he thought it would be better to meet at Joe's office. At that point Greg said he would be there by 4:15 or 4:30 and he would meet us there.
We transmitted that information to the deputy that was bringing him back and told him to bring him straight to Joe's office. I left anticipating we would meet Greg Crow there.
When I arrived at the office, Joe said he had talked with Greg, that Greg said he had talked with Dan and Dan was upset and that Dan would not come down there. That Greg told Joe, "If when he gets there and he wants to give a statement, call us and we will be there."
When Officer Howell arrived with Jessie Misskelley, Junior, he brought him inside the law office. There was one question asked. Did he desire to give a statement. He said yes. We told him to stop. We picked up the telephone, called Greg Crow. Greg was then allowed to listen over the telephone as his client told him that, yes, he wanted to talk to us.
At that point Greg Crow and Dan Stidham started down. No additional questions were asked until they got there. The basic scenario once they arrived was they went in the room with Jessie. We could hear efforts being made to tell him that he didn't -- that he was wrong in the statements that he was making, that he should not talk with us, and at some point I walked in the room.
I said, "I'm here to take a statement. You are here. We called you here. You can advise your client. If you tell your client not to talk and he doesn't not want to talk, then there won't be a statement taken. If you advise your client that he's not to talk and he wants to give me a statement, then I'm here ready, willing and able to take a statement and that's what I intend to do. I didn't bring him back here so that we could spend two hours with you cross examining your client, trying to get him to change his story again."
At that point, I left the room and Jessie Misskelley, Junior walked out of the room behind me and refused to talk to his attorneys any further.
At one point Mr. Stidham did call your Honor, and I think at the point where he asked that -- told the Court that Jessie Misskelley needed a psychiatric evaluation, Mr. Crow, who was sitting next to me at that time, made the comment that someone in the room needed a psychiatric evaluation but he wasn't sure that it was Jessie Misskelley, Junior.
And at that point I was -- since other things had developed in talking with Mr. Misskelley over the weekend, I had concerns because in every conversation I have had with him he indicates insistently that he was present, he did observe these things and he does want to testify and can't understand why his attorneys are not interested in that.
It is surprising and concerning to me that his attorneys even though disagreeing on strategy have now apparently provided the content of the statement that was given that evening to other co-defense counsel, and it was shocking to me to learn from Mr. Misskelley that during the course of preparation for the last trial, that counsel for co-defendants were brought in to provide cross examination training regarding this case.
MR. WADLEY: You need to identify who you're talking about.
MR. DAVIS: Mr. Price. Not counsel for Jason Baldwin.
MR. PRICE: That's correct.
MR. DAVIS: That Mr. Stidham allowed one of the attorneys for the co-defendant to come in and according to Jessie Misskelley, Junior give two to three hours of cross examination in preparation for their testimony which appeared to me to create a significant conflict since the two interests of those defendants are not necessarily in accord, and it seemed to eliminate potential avenues available to Jessie Misskelley should he desire to take them.
It is my concern at this point -- number one, I don't think any of the relief requested in the motion -- one other thing I'd like to indicate -- Saturday morning --
MR. FOGLEMAN: Brent, one other thing while you're back on the Joe Calvin thing, the statement that Joe made before y'all left --
MR. DAVIS: One other thing is and there is a witness that was present the entire time that Mr. Stidham and Mr. Crow were at Joe Calvin's office the night the statement was taken of Jessie Misskelley, Junior and upon leaving, Mr. Stidham made the statement he didn't like what we did. His quote was, "I know there was nothing unethical about it and I would have done the exact same thing were I in your position, but I still don't like it." And that was his exact quote as he left the door that night heading back to Paragould.
On Saturday morning because -- Friday afternoon when I had contact with Jessie Misskelley, Junior -- I didn't receive the fax where Mr. Stidham chewed me out for outrageous conduct until after I had returned, but before I went Saturday, I contacted three who I consider to be very highly reputable defense attorneys, one being Bobby McDaniel, one being Bill Bristow and one being Kent Rubens and -- John talked to Kent personally. I didn't talk to him directly.
But in talking with Bobby and Bill Bristow, I outlined the scenario as it had occurred, the situation under which we had contact with Jessie Misskelley, Junior and asked him at that point based on their experience as a defense attorney, did they feel that it was necessary to have defense counsel present or to make any further contact with defense counsel if the defendant had indicated that he wanted to waive his rights and talk to us regarding this matter. All three of those attorneys advised me it would be a dereliction of my duty as prosecuting attorney to fail to make contact and that they felt that I had gone beyond any ethical requirements or any legal requirements in contacting Mr. Stidham and having him present for the first statement which was done Thursday and there was no additional requirement to make any additional contact with him as long as Mr. Misskelley was advised once again before each statement that this was against his attorney's advice previously and asked him if he independently and individually wanted to give his statement to us. That's what was done each time.
I think there's no merit to the motion. I certainly don't think that there's been any ethical or legal violations. At every discussion or statement Mr. Misskelley was advised that he was talking with us under complete use immunity, and it is my concern and I think it's the concern of Mr. Fogleman also that the biggest problem we have here now is that Jessie Misskelley, Junior is being represented by two attorneys who in spite of their client's wishes and desires are taking action which is not only not consistent but impeding what his intentions and desires are and it will create -- if he continues to take the position that he's going to testify as he has indicated to us on the last three occasions -- it will create a nightmare because there are certain privileged communications which attorneys who represent him will need to claim, and it is difficult for me to envision -- when Mr. Stidham is providing information from his client to defense attorneys of other co-defendants -- how he is going to be in a position to claim and preserve and protect his client's rights when it seems that at this point his wishes and his client's wishes are no longer consistent.
MR. STIDHAM: Your Honor, I would like to respond to that. First of all, I would point out that anything that I say or Mr. Crow says is not anything that Mr. Misskelley says. It shouldn't be used against him. That's privileged communications.
Second of all, I'd like to ask that Mr. Crow's affidavit be admitted for the purpose of this hearing. Mr. Crow has a different version of what happened. Your Honor, again, all this stuff that he says Mr. Misskelley told him Sunday, Saturday and Friday -- how did the prosecution get privy to this information? It's clear they violated his Sixth Amendment rights and once they did that, that gave them the authority which was granted by the Court to grant him use immunity.
THE COURT: You're talking about after Thursday night?
MR. STIDHAM: Yes. What they did is kidnap my client, contrary to what I had told them, that he was not going to testify.
Mr. Misskelley, my client, informed me -- and which I have a tape recorded conversation of that meeting -- that he did not want to testify, that he was not at the crime scene, that he did not want to testify. I made that very, very clear to Mr. Davis.
What Mr. Davis did was attempt to circumvent the attorney-client relationship --
MR. DAVIS: Can I interrupt?
MR. STIDHAM: No, you can't interrupt. When I'm done, you can talk.
THE COURT: Go ahead.
MR. STIDHAM: What he did was kidnap my client through the assistance of the Craighead County Sheriff, poison my client's mind and basically by saying, we will get your girlfriend up here to see you and the judge is going to drop your sentence and it would be the right thing to do to testify.
Basically, what they did is they went in and violated my client's Sixth Amendment rights so they could back him in the corner, offer him use immunity and then violate his Fifth Amendment rights.
THE COURT: You're talking about what happened after Thursday night.
MR. STIDHAM: No, your Honor. I'm talking about what happened when they went and picked him up at Pine Bluff and brought him up to Joe Calvin's office.
Mr. Crow called Mr. Calvin and said, "We are not going to meet you at your office with our client. We are not going to do that." They did it anyway. They did everything they possibly could to violate my client's constitutional rights in contradiction to all established principles of the Sixth Amendment and under this guise of use immunity they could do whatever they want to with my client. It is ludicrous, Judge, and the Court should not condone that.
If Mr. Misskelley wants to testify, he should make that decision based on an intelligent waiver of his rights if he wants to do that and with the prosecutors kidnapping him and bringing him to the prosecutor's offices and busting in the room and interfering with my attorney-client relationship, I think that is absolutely absurd. No court has ever condoned such activity.
MR. FOGLEMAN: Your Honor, Mr. Misskelley did make the statement that he was mad at Mr. Stidham because Mr. Stidham had cussed at him.
THE COURT: Did you record all of that conversation down at the penitentiary or just the last part of it?
MR. STIDHAM: I recorded most of the conversation --
THE COURT: -- Did you disclose that to anybody?
MR. STIDHAM: I played to Mr. Davis' secretary Mr. Misskelley saying that he did not wish to testify.
MR. DAVIS: Did you disclose it to anyone else?
MR. STIDHAM: I told the defense lawyers that he told me on February 15th that he was not going to testify. I think all of them were present in the room. They will confirm that. I informed them. They had a right to know whether he was going to testify or not. The prosecution requested that I go down and ask him that, and I told them that's not what he wanted to do. He did not want to testify. All this stuff, your Honor, that he says Mr. Misskelley told him -- that was after they had violated his rights, and I think it is absolutely improper.
MR. FOGLEMAN: Your Honor, whether he wanted to testify or not, he told Mr. Stidham before we ever had any contact that he was involved. He did tell him that. And he is a witness and if he's given use immunity, it doesn't matter what Mr. Stidham says.
MR. STIDHAM: Look at the way use immunity was granted.
THE COURT: Let me get to that real quick. One, the Court was aware that Mr. Misskelley had made statements to officers. I discussed it with both defense and prosecution, I think you both were present. I also knew that each of you were going down to the penitentiary to visit with him. I'm aware that you went down there. Exactly whether or not he was going to give a statement, I'm not sure of.
From that point on, I received not just one telephone call but at least three, maybe four, originating from Joe Calvin's office on Thursday evening of last week.
MR. PRICE: Can you state the contents of the conversations?
THE COURT: I'm going to do the best I can. I don't remember who called me first. But I talked to you, Mr. Stidham. I talked to Greg. I talked to Joe Calvin, Brent -- I don't remember whether I talked to John Fogleman. I don't think I did. Y'all were asking me to make a ruling from my den where I was watching TV in my underwear. And you popped all this on me where everybody was angry with each other, and essentially what you have outlined here today you outlined to me over the phone.
You asked me what you do. Frankly, I was put back by the whole circumstance and what I told each of you to do was that the only thing that mattered was what Jessie Misskelley wanted to do and that you should advise him that he didn't have to make a statement to anyone and that it was your advice for him as his defense attorney not to make a statement and that it was again your advice if he made such a statement.
Further, I told you if he persisted in it, you should request and demand that the State grant you use immunity for him. That if they were going to take a statement against your desires and over your objection, that the boy should be afforded that protection, that anything he said from that point on could not be used against him in any subsequent legal proceeding.
I also instructed each of you if a statement was going to be taken, if further conversation was going to be carried on, to record it.
MR. DAVIS: Judge, I have got a transcript certified by the transcriptionist that I would make part of this.
THE COURT: I want it made --
MR. STIDHAM: Your Honor, do you recall me also informing you that in my opinion Mr. Misskelley was perjuring himself?
THE COURT: Yes. You indicated that you didn't believe the story that he was involved. I told you if you didn't believe him, you were in a dilemma and that was something that you probably were ethically bound to report to the Court --
MR. STIDHAM: That's why I did it, your Honor.
THE COURT: And I told you if you felt that way and believed that, then you probably should make that statement on the record that I was asking y'all to make since everybody was present and that's -- y'all called me back three or four times -- how many times was it --
MR. DAVIS: I think it was three.
THE COURT: Essentially, I told you do whatever you had to do based upon the circumstances. Make sure you had a recording of what took place and that Mr. Misskelley was advised, that that was your obligation as a lawyer to advise him that it was against your best judgment. That it's Misskelley's decision, not the prosecution, not the Court's, not the defense attorneys as to what he might do.
In that regard I'm going to appoint an independent attorney to question him further and to obtain from him his opinion as to whether or not Mr. Misskelley is willing to testify and I'm going to have him record that conversation with him.
MR. STIDHAM: Your Honor, am I being relieved?
THE COURT: No. You have the obligation to perfect the appeal unless you are relieved by the Supreme Court. I think in view of this that maybe an independent attorney who hasn't had any involvement in it needs to discuss with Mr. Misskelley what his desires are and to report to the Court. Before I'll allow him to testify, if he does testify, I'm going to want to be satisfied that he knows what he's doing and that it is his own voluntary act and not influenced by his father, his lawyers or anyone else.
MR. STIDHAM: Your Honor, I want to respond to a comment Mr. Davis made.
MR. PRICE: Your Honor, we would request that the attorney talk to Mr. Misskelley before we begin the voir dire process. Our voir dire questions will be completely different whether or not Mr. Misskelley is a witness.
MR. FORD: We join in that, your Honor.
MR. PRICE: We are joining in this motion.
THE COURT: You don't have any standing.
MR. PRICE: Judge, we have standing if the conduct by the State is the only way that they can get Mr. Misskelley to testify against Damien Echols, we do have standing. We join in this motion. We also have an identical motion. It is identical to the one filed, an identical brief. We do join in this request.
MR. FOGLEMAN: This is why Jessie Junior needs an independent attorney that is not working with Damien Echols.
MR. STIDHAM: Your Honor, I resent that insinuation, and I would like to make a further comment that on Thursday night at Joe Calvin's office, as the Court well pointed out, that was a shocking situation and it wasn't clear exactly what should happen at that point. Any comments that I made to Mr. Davis after the melee without the benefit or full knowledge of the situation -- at that point I didn't know the Sheriff's Department had promised to bring his girlfriend to the jail. I didn't know the sheriff talked him into testifying on the way from Pine Bluff.
Also, I needed to research this issue. My formal response was done after an investigation and research and all that is set forth in my motion and brief and, furthermore, I think it is prosecutorial misconduct for the Craighead County Sheriff to elicit a statement from him as they did. In that statement, "We cannot use any of this against you, Jessie, so you might as well tell us what's going on," and that basically elicited a response.
Your Honor, at the trial and throughout all the pretrial hearings, we heard testimony about his mental competency, his mental status, his suggestibility, and all these things. And the prosecution knew that and they engaged in conduct which violated his Sixth Amendment rights and his Fifth Amendment rights and they interfered with the attorney-client relationship.
Mr. Misskelley instructed me on tape on Tuesday, February 15th, at Pine Bluff, Arkansas, in the assistant warden's office that he did not want to testify, that he wanted me to pursue this appeal and that is a course of conduct that I undertook, and it was in the best interest of my client.
I informed the prosecutor that he was not going to testify. Under the law, the prosecutor at that point was duty bound to leave Mr. Misskelley alone. They did not do that. They kidnapped him, brought him to the prosecutor's office and elicited a statement from him and then gave him use immunity. And now they're going down to the jail and talking to him without my knowledge and consent or Mr. Crow's knowledge and consent. We'd ask again that Mr. Crow's affidavit be made a part of the record.
THE COURT: I think I accepted his affidavit. Why is he not here?
MR. STIDHAM: We had two court appearances and a deposition today.
THE COURT: I will take it for the purposes of this hearing but I may want to hear him testify. I'm taking you gentlemen's statements as if they were given under oath. You're officers of the court so I'm accepting your statements without having you sworn.
With regard to the relief requested, there's nothing here that I see any reason or cause to appoint a special prosecutor. That'll be denied.
Whether or not the prosecuting attorneys are in the contempt of Court, that'll be denied. There's no conduct that I know of that is directly before the Court that would rise to contempt.
The issue really before the Court and the one that I'm going to take under advisement is whether or not Misskelley will be allowed to testify. That is the only issue. I would have been inclined to appoint Mr. McDaniel who is a criminal defense lawyer of some repute in this area but I'm not sure that -- since he's been consulted, I'm not sure he would be an appropriate person to appoint. Unless y'all can agree.
MR. STIDHAM: I have consulted with him as well.
THE COURT: Do y'all have any objection to Bobby being the one I ask to talk to Mr. Misskelley?
MR. STIDHAM: I think it would be a conflict.
MR. PRICE: Yes, sir, I would if he's talked to both sides.
THE COURT: Anybody got any suggestions?
MR. FORD: How about suggesting -- his name escapes me but he's an associate dean at the University of Arkansas at Little Rock -- Howard Eisenberg. He's reputable in all areas of criminal practice and particularly appellate procedures, who may know some of the import and impact of some of the higher court decisions in this case that we may not have working knowledge of because of our not being so involved in appellate work that he would be truly independent and he sort of has a connection to the State.
MR. FOGLEMAN: Your Honor, first of all, he is not a criminal defense lawyer. He doesn't try cases. What effect it would have on appeal has nothing to do with whether he testifies. Nothing that he says in his testimony can be used against him, can't affect his appeal.
MR. STIDHAM: That is not true, your Honor. If prosecutors are at the jail and going over exhibits and testimony with witnesses, with our client, if we are successful on appeal, it is going to affect a remand.
MR. FOGLEMAN: How?
THE COURT: No. I'm not going to allow anything at all that boy says to anybody, including those officers that talked to him, be used -- if he were successful on appeal, which I have some doubts about, if he were successful, then none of this, not one word said here today or that he's said since his conviction will be used against him by innuendo, implication or any other way.
MR. STIDHAM: Your Honor, I need to ask for a specific ruling.
THE COURT: I'm denying your request for a special prosecutor and find that it's not even applicable to this situation. I'm denying your requested relief to hold the prosecutors in contempt for misconduct. I'm taking under advisement the issues that have been raised as to the method and manner of the statements that have been received from Mr. Misskelley and I am ordering that each of you hold those tapes that have been made of Mr. Misskelley's statements and not make those available to anyone at this time.
I think you are duty bound by attorney-client privilege not to disclose your conversation recorded at the penitentiary to anyone. It is a violation of attorney-client privilege.
Further, I'm telling the State that they are not to release any statements that they may have taken until I make a determination as to whether or not those statements are admissible.
MR. PRICE: Does that include the recorded conversations that the State had with Mr. Misskelley on Friday, Saturday and Sunday as well?
THE COURT: All statements until I make a decision on whether or not they are proper.
MR. STIDHAM: There are two remaining issues. First of all, I object to the Court relieving me. I understand the Court's ruling. I just want to make --
THE COURT: I am not relieving you.
MR. STIDHAM: I'm confused then.
THE COURT: I'm not relieving you. All I'm attempting to do at this time is have an independent attorney that is not involved in the defense of this case or the prosecution determine and question Mr. Misskelley as to whether or not he's willing and voluntarily making a statement. In other words it is an independent determination of whether -- first of all, I'm going to ask the attorney to advise him of his constitutional rights not to testify, advise him --
MR. FOGLEMAN: If he's got use immunity, he doesn't have that right.
MR. STIDHAM: We go back to the issue of how he got the use immunity.
THE COURT: Are you talking about the fact that they brought him back here --
MR. STIDHAM: Under the --
THE COURT: And Mr. Davis says he had some kind of understanding with Mr. Crow --
MR. STIDHAM: He did not have any kind of understanding with Mr. Crow at all.
THE COURT: What was Mr. Crow's statement?
MR. STIDHAM: He received a phone call from Mr. Calvin and that Mr. Calvin asked him --
THE COURT: No, no. I'm talking about before they ever brought him back.
MR. STIDHAM: We had no idea whatever that Mr. Crow [sic] was being brought from the penitentiary -- none.
MR. DAVIS: I didn't talk with you so you didn't have any idea. I talked with Greg Crow.
MR. STIDHAM: Mr. Crow said that he got a phone call from Mr. Davis saying that Mr. Misskelley was already on his way up from Pine Bluff.
MR. DAVIS: No. I'm talking Wednesday morning before the order was ever signed I talked with Greg. In fact once you came back from the Department of Corrections, on the record you'll agree that we never -- you never told me or talked with me about what happened on Tuesday when you took Jessie's dad down there --
MR. STIDHAM: I talked to --
THE COURT: All right, wait a minute. For the record, the affidavit in paragraph four says that, "On Wednesday February 16, 1994, the prosecuting attorney, Brent Davis, telephoned me and requested permission from myself and my co-counsel, Mr. Stidham, to interview Jessie Lloyd Misskelley, Junior. Said permission was never granted."
MR. STIDHAM: That's correct, your Honor.
THE COURT: The way I'm seeing it there's a difference of opinion between Mr. Davis and Mr. Crow as to what was said on Wednesday before the order was obtained bringing him back.
MR. DAVIS: Judge, I can --
MR. STIDHAM: Your Honor, he said under -- I guess he wasn't under oath -- but as an officer of the court, he said a while ago he didn't call us, didn't tell us, didn't have to. He's done it thousands of times.
THE COURT: No, Dan, that is not what he said. He stated that he called Mr. Crow on Wednesday because he wasn't getting anywhere with you, basically, and that Mr. Crow said that it was all right to bring him back and he would consider talking to him but he would have to talk to you --
MR. STIDHAM: That's not the way it happened, your Honor.
THE COURT: I don't know. Do you know what Mr. Crow said?
MR. STIDHAM: Mr. Crow's affidavit speaks for itself. I'll be happy to get him out of the deposition and have him come down here.
MR. DAVIS: Judge, I will agree that it wasn't -- what was said was, I said, "I'm tired of talking with Dan. Dan has lost his objectivity. He no longer is doing what is in his client's best interest. He's on a crusade. If I arrange to bring Jessie back up here, would you go with me and meet with me to talk with him?"
He said, "I'm inclined to do that if you get him back up here." And at that point I went ahead and prepared the order and I made arrangements to get him back up here because, frankly, I felt like until I did and until I got with Greg Crow and could meet with him, that there wasn't going to be anything accomplished.
MR. STIDHAM: Mr. Crow has told me that that did not happen. Furthermore, I resent the fact that the prosecuting attorney has to decide what my duties as defense counsel is and his desire to call my law partner and tell him that I'm off my rocker and I don't know what my client's telling me. My client told me he did not want to testify, and I relayed that to the prosecutor. At that point he had a legal duty and obligation to leave my client alone. He did not follow the law.
MR. DAVIS: The difference is, Judge, it is their client, not his client, and I did talk with the other attorney.
MR. STIDHAM: It did not happen that way --
(MR. DAVIDSON, MR. STIDHAM AND THE COURT REPORTER SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
THE REPORTER: I can't hear you when you're all talking at the same time.
THE COURT: One at a time. I thought you said your motion was identical.
MR. DAVIDSON: It is close to it.
MR. FORD: It tracks the same misconduct, your Honor.
THE COURT: Then it's denied.
(REPORTER'S NOTE: THE SHERIFF AND THE COURT SPEAKING OFF THE RECORD)
THE COURT: The press wants to come in, gentlemen. I told them y'all object.
MR. FORD: That's correct, your Honor.
THE COURT: Gentlemen, the only issue is as I see it from your motion and their motion is whether or not Jessie Misskelley is voluntarily giving a statement and whether or not that statement is admissible and that's the only issue.
MR. FOGLEMAN: His statement is obviously not admissible but his testimony is.
THE COURT: I mean his testimony.
MR. FORD: If we're going to switch to our record, I'd like to make a record in this case, not the record that has been made in Mr. Misskelley's case with respect to similar issues --
MR. STIDHAM: -- your Honor, I would like to designate this hearing as part of the record in the Misskelley case and designate it on the record as for appeal purposes.
THE COURT: It would be my ruling that this is not relevant for appeal purposes. It is not part of the transcript of the trial, and it is not an appealable issue.
THE REPORTER: Is Mr. Ford making a record in this case?
THE COURT: Well, it is apparent that all the defense attorneys are together on this issue.
MR. FORD: Your Honor, I object to that comment. That's not correct, your Honor --
THE COURT: You're not to have any standing here right now --
MR. FORD: You're making a record. You're making an innuendo on the record that defense counsel is in concert together, and that may be an issue at a later point in our trial, and I object to that innuendo by the Court.
THE COURT: All right. Are you through?
MR. STIDHAM: Before you close the record with regard to Mr. Misskelley, for purposes of the record, you're taking part of the motion under advisement as to whether or not there's been a misconduct with the way I'm alleging they violated his Sixth Amendment rights. Are they going to be allowed to communicate further with my client until this issue is resolved? I respectfully request that they not be allowed to communicate with him.
THE COURT: I'm not going to dwell on this for a long time so until I make my final decision on this, yes, I will say that they are not to talk to him.
MR. STIDHAM: Will the State -- we also request that the prosecution not be permitted to sequester my client from his family.
MR. FOGLEMAN: That has not happened, your Honor.
THE COURT: I don't know anything about that and whatever the sheriff's visitation rules are would apply to him as they would anybody else.
MR. STIDHAM: Thank you, your Honor. And the Court will not permit me to attach a transcript of this hearing as a part of our record on appeal?
THE COURT: I don't see where it has anything at all to do with an appeal issue. It's not anything that happened in his trial and I have already ruled anything that involving any statements that he might make from the time he was transported to anytime subsequent based upon police or prosecutor's efforts to obtain the statement, are not admissible against him at all. So there's absolutely no prejudice toward him whatsoever by any of this.
MR. STIDHAM: Note my objections, your Honor.
MR. DAVIDSON: Your Honor, we would ask that this hearing be made a part of record in our case. Rather than going through the same testimony. I guess we would put Mr. Davis and Mr. Stidham on the stand. We would ask that --
MR. STIDHAM: I'll be happy to be put under oath.
THE COURT: I will make it a part of your case -- this hearing --
THE REPORTER: For which defendants?
THE COURT: For Baldwin and Echols.
MR. FORD: Your Honor, if this record is an all-inclusive record, then at this point I would like to make some statements since I now feel I have some standing.
THE COURT: All right. Go ahead.
MR. FORD: Your Honor, it is the allegation of Robin and I on behalf of Jason Baldwin that the prosecuting attorney's office is guilty of misconduct, that they have been informed by defense counsel that Mr. Misskelley --
THE COURT: Meaning Mr. Misskelley's attorneys?
MR. FORD: That's correct. By Mr. Stidham and Mr. Crow. That they advised the prosecuting attorney's office that Mr. Misskelley would not be testifying. At that point in time I concur with Mr. Stidham that they had a duty bound legal obligation to cease any efforts to discuss this matter further with Mr. Misskelley. The Court rulings on appeal discussing these areas have been clear that they cannot even subpoena him.
THE COURT: Are you talking about someone that they know is going to claim their Fifth Amendment --
MR. FORD: That's correct. And Mr. Stidham had advised them that would be the case.
THE COURT: It seemed to me there were kind of mixed signals given.
MR. FORD: Your Honor, that's for the Court's determination. But for my record, my contentions are there were no mixed signals. That they were aware that he would not be testifying and at that point when they proceeded further to obtain a pick-up order pursuant to a subpoena to bring him here to testify, they violated his rights under the Sixth Amendment. They initiated the contact. Once your Sixth Amendment right to counsel attaches and has been invoked, the State or the police may make no contact with the defendant until such time as the defendant initiates the contact. Being picked up by order of the Court, being placed in custody of the Sheriff of Craighead County, being transported back in here and to begin to question him and tell him the things that will be said will not be used against him, they are initiating the contact with a criminal defendant who has previously invoked his Sixth Amendment right to counsel.
At that point in time, they have violated his Sixth Amendment right to counsel and to do it knowingly, that rises to the level of misconduct. Once that prosecutor misconduct has occurred, we are requesting a remedy --
THE COURT: Are you saying there was misconduct when they obtained an order to bring him back as a possible witness in the case?
MR. PRICE: After being told --
MR. FORD: After being told --
MR. PRICE: -- by Mr. Stidham that he would not testify.
MR. FORD: -- that he would not testify. That he was going to invoke his right to counsel.
THE REPORTER: Please don't talk over one another.
MR. FORD: I'm sorry, Barbara.
THE COURT: Are you completely disregarding Mr. Davis' statement that he contacted Mr. Crow and Mr. Crow informed him according to Davis' statement that, "I might be inclined to do that if you get him back here. I need to talk to Dan about it."
MR. FORD: It is a question of fact. It is a question of fact as to whether Jason Baldwin is guilty of a crime in this case. I totally disregard many of the things they say in that contention. It is a question of fact as to whether or not it occurred. Mr. Crow's affidavit --
THE COURT: Mr. Crow's affidavit acknowledges that there was a Wednesday telephone call. I prefer having him here --
(THE COURT AND MR. FORD SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
MR. FORD: His affidavit states that permission was not granted --
THE COURT: To talk to him.
MR. FORD: And they did.
THE COURT: He's not saying that permission was not granted to bring him back with the possibility that they would talk to him. That is what I want to hear from Mr. Crow.
MR. FORD: Then, your Honor, I will move further. I feel that the written motion we have filed speaks for our position.
Also I would state, your Honor, that until this issue has been fully pursued, until this matter has -- there's a determination as to whether this party will be allowed to testify, until the Court is going to fulfill its ruling to appoint an independent counsel -- quote, independent counsel, which I feel is inappropriate to begin with.
But if the Court does that and the Court is going to make these determinations, the voir dire process in this case be indefinitely postponed until the Court has made that ruling. As defense counsel, we are entitled to know that answer.
MR. FOGLEMAN: He's been listed as a witness.
MR. FORD: We are entitled to know whether we should make that a subject of our voir dire examination.
THE COURT: All right, gentlemen, anything else?
MR. DAVIDSON: We would concur in his motion and also set forth the things we put in our written motion.
THE COURT: I understand you don't want a co-defendant to testify. That is rather clear. The thing that is puzzling me -- all of these cases you've cited -- or basically all of them -- there may be one or two that aren't -- involved a situation where a defendant was called or co-defendant was called to the stand to testify when the State knew full well that that person was going to take the Fifth Amendment against self-incrimination and that they called that person in any regard and allowed them to make the statement in the presence of the jury that, I refuse to testify on the grounds that it may incriminate me. Which in and of itself created a prejudicial situation, the fact that the inference to the jury was, I'm not going to testify because it may incriminate me. And that is totally different to the situation before the Court.
Secondly, the issue y'all are making is that his Sixth Amendment rights to an attorney have been abridged by this action. The whole concept and notion of use immunity is one where the State may use it as a tool to obtain testimony that would not have otherwise been available to them by granting that use immunity and only after leave of the Court to do so, and they are totally protected under a situation like that.
In fact in this case before a statement was taken -- other than the one made by the officers -- and that might have been misconduct on the part of the officers -- and clearly none of that would have been allowable in any case, and the only way a person can be given a grant of immunity or use immunity is by action of the Court.
Attorneys were present. The defendant was advised of his rights and that it was their best judgment that he should not make a statement and that he elected to do so anyway.
I suggest, how would a prosecuting attorney go to a defendant who had been convicted and tried before a jury and request his testimony against co-defendants if they didn't have access to him or have the opportunity to offer that grant of immunity to him either through attorneys or directly.
Do you have any cases on this point? Are there any? I don't know.
MR. STIDHAM: I think we are going to make some new law here.
THE COURT: That's what I told you on the telephone. I didn't know. I knew that after a person had been tried and convicted before a jury that they had a right to appeal. It seemed to me that a smart prosecutor would be doing everything they could to obtain that person's testimony in a subsequent trial against co-defendants.
And I'm not sure there's any misconduct on the part of the prosecuting attorney to do his job and that is to try to obtain testimony. The only issue I see of any significance is whether or not Jessie Misskelley is willing voluntarily to make a statement and -- perhaps, too, whether or not -- it has been suggested in the other trial that he was a suggestive type person -- to whether or not that free will has been yanked around either to get him not to testify or to get him to testify. And I can't be sure from the facts that are before the Court.
So for those reasons I'm going to find an independent attorney that does criminal practice to visit with Mr. Misskelley and inquire of him and inform him what use immunity means and whether or not it is his desire and whether or not anyone has overridden his will and I'm going to take that report from the attorney and go from there.
MR. FOGLEMAN: You asked for suggestions earlier. I just thought of something. It is my understanding Tom Montgomery has represented him before. We have not spoken to him about this.
MR. WADLEY: Your Honor, if Tom Montgomery, the public defended in Crittenden County, has a conflict in this case which caused us to be involved in the case, he should not be this person picked as an independent --
THE COURT: What about Bill Ross?
MR. FOGLEMAN: Your Honor, his conflict didn't have anything to do with Jessie.
MR. WADLEY: I don't know what his conflict was.
MR. STIDHAM: I understood his conflict was a religious objection.
THE COURT: No, I don't think that was it.
MR. FORD: Just a point of clarification. Did the Court grant use immunity to Mr. Misskelley at the time the order was signed to pick him up or would that use immunity be granted by the Court until after you had been made --
THE COURT: Nobody asked me to do it until Thursday night and at the point Dan was asking me -- he was frustrated -- "What do I do under these situations?" I said, "You demand use immunity."
MR. FORD: So it hadn't been granted --
THE COURT: It was obvious to the Court -- anybody with a lick of sense that that was what was going to be requested.
MR. DAVIDSON: Has use immunity been granted?
THE COURT: I granted it that night. There wasn't any question about it in my mind, if a statement was going to be made.
I was also under the opinion and belief that Mr. Crow had been informed that the Court was going to enter an order to bring him back.
MR. STIDHAM: Should I have Mr. Crow summoned here, your Honor?
THE COURT: If you want to put it on the record. He didn't deny that a phone call was made.
MR. STIDHAM: No, your Honor. A phone call was made.
THE COURT: It seems to me his statement is kind of in between there. It is not just saying that the permission wasn't given to question him but he's not saying permission wasn't given to bring him back with the prospect of a meeting to have him interviewed.
MR. DAVIS: For clarification on the record, Mr. Crow and I never discussed that morning an order to bring him back. From my recollection, the extent of the discussion was, "If I have him brought back," and I think I said specifically Clay County. "If I have him brought back to Clay County, will you go with me to talk with him," and he said, "I'm inclined to do so if you have him brought back."
I actually don't think he -- I don't recall him saying I'm going to discuss it with Dan but I kind of got the inference when he said, "I'm inclined to do so if you have him brought back," that he was either going to discuss it with Dan or was trying to figure out how to do it without burning bridges with Dan.
MR. STIDHAM: The key word is "if."
MR. WADLEY: Your Honor, it seems to me that the inquiry in this case should not be to appoint an independent attorney to make a determination as to whether or not he wants to testify. It seems to me the inquiry should be whether or not Mr. Stidham is his lawyer or not. If he is his lawyer, he's still the lawyer in this case. That should be the inquiry. If Dan Stidham's his lawyer, then he can act
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