IN THE
CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS WESTERN DISTRICT CRIMINAL DIVISION
STATE OF ARKANSAS PLAINTIFF
vs. No. CR93-450 and
CR93-450A
CHARLES JASON BALDWIN and DEFENDANTS
DAMIEN WAYNE ECHOLS
MOTION
Comes now the Defendants,
Charles Jason Baldwin and Damien Wayne Echols, by and through their Court
appointed attorneys, and for their Motion, hereby state and allege as follows:
1. That a Co-Defendant, Jessie Lloyd Misskelley, Jr.,
was convicted on February 4, 1994, of the offenses of 1 count of first
degree murder and 2 counts of second degree murder and was sentenced by
the Court to life imprisonment on the first degree murder charge and 20
years imprisonment on each count of second degree murder to run consecutively. On
February 4, 1994, the Court and the Prosecution was informed by counsel for
Jessie Lloyd Misskelley, Jr. that said sentences were going to be appealed to
the Arkansas Supreme Court. That the Court and the Prosecution was further
informed by defense counsel that Jessie Lloyd Misskelley, Jr. had no
intention of testifying against his Co-Defendants Damien Wayne Echols and
Charles Jason Baldwin.
2. That Damien Wayne Echols and Charles Jason Baldwin
are each charged with three counts of capital murder and their trial is
set to start in Craighead County on Tuesday, February 22, 1994.
[000452]
3. That the Prosecuting Attorney, his Deputies, the
Clay County, Arkansas Sheriff's Department and the Craighead County, Arkansas Sheriff's
Department have all known that Daniel T. Stidham and Gregory L. Crow were the
duly appointed attorneys for Jessie Lloyd Misskelley, Jr. since June, 1993.
4. That on February 4, 1994, following sentencing of
the Defendant, Jessie Lloyd Misskelley, Jr., as set forth above, officers of
the Clay County, Arkansas Sheriff's Office transported Jessie Lloyd Misskelley,
Jr. to the Arkansas Department of Corrections Diagnostic Unit in Pine Bluff,
Arkansas. That during transport of Jessie Lloyd Misskelley, Jr. the officers,
in violation of Jessie Lloyd Misskelley, Jr.'s Sixth Amendment right to counsel
and his Fifth Amendment Right to Remain Silent, elicited a statement from the
Defendant.
5. That the actions of the Clay County Sheriff's
Department officers on February 4, 1994, were a willful attempt to make
improper contact with the Defendant, Jessie Lloyd Misskelley, Jr., without the
knowledge and consent of his Court appointed attorneys, and that said conduct
on the part of the officers is imputed to the Prosecuting Attorney whether the
Prosecuting Attorney had direct knowledge of said actions or not.
6. This impropriety represents a conscious, calculated
and ongoing attempt by the Prosecution to interfere with the attorney/client
relationship between Jessie Lloyd Misskelley, Jr. and his Court appointed
attorneys and to circumvent Jessie Lloyd Misskelley, Jr's. Fifth and Sixth
Amendment rights as guaranteed him by the U.S. Constitution.
[000453]
7. That on Tuesday, February 8, 1994, and again on
Tuesday, February 15, 1994, the Defendant, Jessie Lloyd Misskelley, Jr's court
appointed attorney, Daniel T. Stidham, visited with the Defendant, Jessie Lloyd
Misskelley, Jr., at the request of the Prosecution.
8. That on Tuesday, February 15, 1994, Daniel T.
Stidham, in person, again, notified the Prosecuting Attorney's Office that
Jessie Lloyd Misskelley, Jr. had no desire to testify against his
Co-Defendants, Damien Wayne Echols and Charles Jason Baldwin, and would not be
testifying against said Co-Defendants.
9. That on Wednesday, February 16, 1994, Deputy
Prosecuting Attorney John Fogleman contacted the Defendant, Jessie Lloyd
Misskelley, Jr.'s father, Jessie Lloyd Misskelley, Sr., and requested that he
talk his son into testifying against his Co-Defendants in exchange for
a 40 year sentence. Mr. Misskelley, Sr., again, informed the Prosecution
that Jessie Lloyd Misskelley, Jr. would not be testifying against his
Co-Defendants in their upcoming trial in Craighead County.
10. That also on Wednesday, February 16, 1994, the
Prosecuting Attorney, Brent Davis, requested permission from Jessie Lloyd
Misskelley, Jr.'s attorneys to interview Jessie Lloyd Misskelley, Jr. Said
permission was not granted.
11. Further, on Wednesday, February 16, 1994, the
Prosecution obtained an ex parte Order from the Court to transport Jessie Lloyd
Misskelley, Jr. to Craighead County to testify against his Co-Defendants. This
Order was obtained without the knowledge and consent of the Defendant, Jessie
Lloyd Misskelley,
[000454]
Jr. and his attorneys despite repeated statements to the Prosecution that
Jessie Lloyd Misskelley, Jr. would not be testifying against his
Co-Defendants. The fact that Jessie Lloyd Misskelley, Jr. was being transported
to Craighead County to testify as a witness was communicated to the media and a
copy of the Order transporting him was even shown on television. To this date,
Jessie Lloyd Misskelley, Jr's attorneys have yet to see said Order.
12. That at approximately 6:15 p.m. on Thursday,
February, 17, 1994, the attorneys for Jessie Lloyd Misskelley, Jr. received a
phone call from C. Joseph Calvin, Deputy Prosecuting Attorney for Clay County,
Arkansas who stated that Jessie Lloyd Misskelley, Jr. was present in his office
and desired to make a statement. Mr. Calvin was informed by both of Jessie
Lloyd Misskelley, Jr.'s attorneys that he was not to take any statement from
their client, Jessie Lloyd Misskelley, Jr.
13. That the co-Defendant, Jessie Lloyd Misskelley,
Jr. was transported to Rector, Arkansas on February 17, 1994, by a member of
the Craighead County Sheriff's Office. That during transport of Jessie Lloyd
Misskelley, Jr. the officer, in violation of Jessie Lloyd Misskelley, Jr.'s
Sixth Amendment right to counsel and his Fifth Amendment Right to remain
silent, elicited statements from the Defendant and encouraged Jessie Lloyd
Misskelley to testify against his Co-Defendants. Said officer even promised to
bring Jessie Lloyd Misskelley Jr.'s girlfriend to the jail to visit him.
[000455]
14. That the actions of the Craighead County Sheriff's
Department officer on February 17, 1994, were a willful attempt to make
improper contact with the Defendant, Jessie Lloyd Misskelley, Jr., without the
knowledge and consent of his Court appointed attorneys, and that said conduct
on the part of the officers is imputed to the Prosecuting Attorney whether the
Prosecuting Attorney had direct knowledge of said actions or not.
15. This impropriety represents a conscious,
calculated and ongoing attempt by the Prosecution to interfere with the
attorney/client relationship between Jessie Lloyd Misskelley, Jr. and his Court
appointed attorneys and to circumvent Jessie Lloyd Misskelley, Jr's. Fifth and
Sixth Amendment rights as guaranteed him by the U.S. Constitution.
16. That Daniel T. Stidham and Gregory L. Crow arrived
in Rector, Arkansas at approximately 7:00 p.m. and discovered that Prosecuting
Attorney Brent Davis was also present at the office of C. Joseph Calvin and
that Prosecutors had already communicated with their client without their
knowledge and consent. That said attorneys were allowed to communicate with
their client, Jessie Lloyd Misskelley, Jr., for only approximately 15
minutes when Prosecutors, Davis and Calvin, burst into the conference room and
demanded to take a statement from Jessie Lloyd Misskelley, Jr. Stidham and Crow
objected to the interference and informed Prosecutors that they wished to visit
with their client uninterrupted. Prosecutors then expressed their fear, in the
presence of Jessie Lloyd Misskelley, Jr., that Defense Attorneys would convince
Jessie Lloyd Misskelley, Jr. to decline to make a
[000456]
statement to them. Jessie Lloyd Misskelley, Jr. then stood up and announced
that he wished to make a statement in spite of the advise and counsel of his
attorneys, and exited the conference room and refused to talk to his attorneys
further.
17. That the Honorable Judge David Burnett was
telephoned at which time Mr. Stidham voiced his objections to his client being
present in the Prosecutors office in the first place, that his presence at the
Prosecutor's office was a violation of his client's constitutional rights, that
Mr. Misskelley had requested psychiatric care on Tuesday, February 15, 1994,
that he questioned Jessie Lloyd Misskelley, Jr.'s current mental competency and
requested a mental evaluation, and that Jessie Lloyd Misskelley, Jr. had
informed him on Tuesday, February 15, 1994 that he did not wish to testify
against his Co-Defendants. The Court denied the objections and request for a
mental evaluation by Mr. Stidham and permitted the Prosecution to offer use
immunity to Jessie Lloyd Misskelley, Jr. and take his statement over said
objections.
18. After taking his statement,
the State transported Jessie Lloyd Misskelley, Jr. to the Clay County
Detention Center. Jessie Lloyd Misskelley, Sr. traveled to Clay County to talk
to his son but was denied access to his son by Clay County Officials.
19. That the Prosecution, the Court and attorneys for
Damien Wayne Echols and Charles Jason Baldwin were notified on February 18,
1994, that the attorneys for Jessie Lloyd Misskelley were "outraged"
at the conduct of the Prosecution and that the
[000457]
Prosecution was to have no further contact with the Defendant, Jessie Lloyd
Misskelley, Jr., as reflected in Defendant's Exhibit "A" attached
hereto.
20. That Prosecutors, again, visited with Jessie Lloyd
Misskelley, Jr. without the knowledge and consent of his attorneys on Friday,
February 18, 1994, Saturday, February 19, 1994 and on Sunday, February 20, 1994
in direct violation of his Fifth and Sixth Amendment Rights as guaranteed him
by the U.S. Constitution.
21. That the above mentioned conduct and actions of
the Prosecution are a willful and deliberate attempt to make improper contact
with the Defendant, Jessie Lloyd Misskelley, Jr., and said actions and conduct
are a conscious and calculated attempt to circumvent the Fifth and Sixth
Amendment rights of the Defendant, Jessie Lloyd Misskelley, Jr. Further, said
actions and conduct were a calculated and deliberate attempt to interfere with
the attorney/client relationship between Jessie Lloyd Misskelley, Jr. and his
Court appointed attorneys.
22. Arkansas Law does not permit the Prosecutor to call
a Co-Defendant as a witness against other Co-Defendants when he has knowledge
that the Co-Defendant would be advised to assert his Fifth Amendment privilege
against self-incrimination. Here counsel for Jessie Lloyd Misskelley, Jr. had repeatedly
advised the Prosecution that Jessie Lloyd Misskelley, Jr. would not be
testifying against his Co-Defendants, and as such, the Prosecution cannot claim
that it was not aware of this fact.
[000458]
23.That the above mentioned conduct and actions of the
Prosecution are a willful and deliberate attempt to circumvent, and make a
mockery of, the law as set forth in paragraph 22 above, and to violate the
constitutional rights of the Defendants, Damien Wayne Echols and Charles Jason
Baldwin. Said actions and conduct on the part of the Prosecution are a
conscious and calculated attempt to circumvent the due process rights of said
Defendants, their right to receive a fair and impartial trial andtheir right to
confront the witnesses against them.
24. That said conduct on the part of the Prosecution,
regardless of whether or not Jessie Lloyd Misskelley, Jr. actually testifies
against his Co-Defendants, seriously undermines and impairs, or could actually
make it impossible, for Damien Wayne Echols or Charles Jason Baldwin to receive
a fair and impartial jury trial due to the fact that said conduct on the part
of the Prosecution constitutes a "grandstand play" which has
improperly drawn attention to Jessie Lloyd Misskelley, Jr.'s alleged confession
which he submitted throughout the course of his trial was coerced. Potential
jurors will now place emphasis on this improper "grandstand play" by
the Prosecutor due to pre-trial publicity.
25. That due to the misconduct of the Prosecution as
set forth herein, the Defendants request the following relief:
a. Dismissal of all the charges against the Defendants
with prejudice;
b. Suppression of any and all statements made by the
Defendant, Jessie Lloyd Misskelley, Jr., including any and all references to
same;
[000459]
c. That the Prosecution be ordered to not have any
contact whatsoever, directly or indirectly, with any of the Defendants herein,
including Jessie Lloyd Misskelley, Jr.;
d. That the Prosecution be forbidden to call Jessie
Misskelley, Jr. as a witness, or make any further reference to him being a
witness, at the trial of Damien Wayne Echols and Charles Jason Baldwin;
e. That the Prosecution be held in contempt of Court
for its alleged misconduct and punished accordingly; and
f. That a Special Prosecutor be appointed to
investigate the allegations set forth herein, preferably one from outside the
Second Judicial District.
WHEREFORE, premises considered the Defendants pray that this Honorable Court
grant their Motion and grant the relief requested herein, and for all other
relief to which they may appear entitled.
CHARLES JASON BALDWIN,
DEFENDANT
GEORGE R. WADLEY, JR.
P.O. Box 1573
Jonesboro, AR 72403-1573
(501) 972-1100 George R. Wadley Jr. (signed)
PAUL N. FORD
702 N. Missouri
West Memphis, AR 72301
(501) 735-6223 Paul N. Ford (signed)
DAMIEN WAYNE ECHOLS,
DEFENDANT
VAL P. PRICE
P.O. Box 3072
Jonesboro, AR 72403-3072
(501) 932-6226 Val P. Price (signed)
SCOTT DAVIDSON
P.O. Box 848
Jonesboro, AR 72403-0848
(501) 932-1616 Scott Davidson (signed)
BRIEF IN SUPPORT
The prosecutor's role is identified in Floyd v. State, 278 Ark. 342, 645
S.W.2d 690, 693 (1983) wherein the Court stated: "...State's attorney acts
in a quasijudicial capacity and it is his duty to use fair, honorable,
reasonable and lawful means to secure a conviction in a fair and impartial
trial."
The prosecution overreached its duties in making improper contact with the
defendant, Jessie Lloyd Misskelley, Jr., in violation of his Fifth and Sixth
Amendment rights. The Prosecution was informed in clear and unequivocal terms
that Jessie Lloyd Misskelley, Jr. was not going to testify against his
codefendants, Damien Wayne Echols and Charles Jason Baldwin, thereby invoking
his Fifth Amendment right to remain silent.
The Prosecution, having this knowledge, is not even permitted to subpoena, or
call Jessie Lloyd Misskelley, Jr. as a witness in the trial of his
codefendants. In the case of Foster v. State, 285 Ark. 363, 687 S.W. 2d
829 (1985), the Arkansas Supreme Court stated that "The Court erred...when
it permitted the prosecutor to call Pat Hendrickson, the wife of the deceased,
who was charged with capital felony murder, as a witness even though both the
Court and the prosecutor knew that Mrs. Hendrickson would be advised to plead
her fifth amendment privilege against self incrimination."
Thus, the Prosecution committed misconduct in obtaining an ex parte
Order from the Court moving the defendant, Jessie Lloyd Misskelley, Jr., out of
the Arkansas Department of Corrections to Craighead County to serve as a
witness in the trial of Damien Wayne Echols and Charles Jason Baldwin, having
been advised by Mr. Stidham that Jessie Lloyd Misskelley, Jr. would not be
testifying in the trial. The Court in Foster, supra, and the Arkansas
Court of Appeals in Sims v. State, 4 Ark. App. 303, 631 S.W. 2d14 (1982)
explained the rationale of forbidding the prosecution from calling a witness to
the stand that theprosecutor knows will invoke their fifth amendment privilege.
The Arkansas Supreme Court in Foster, supra, quoting language from Sims,
supra and Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074 [1077],
13 L.ED.2d 934, 937 (1965) stated:
"The evil in the nontestimony of such a witness is not the mere calling of
the witness, but the obvious inferences drawn by a jury to a series of
questions, to all of which the witness refuses to answer on fifth amendment
grounds. In that case the questions themselves "may well be the equivalent
in the jury's mind of testimony.
"Such improper questioning, not technically being testimony at all,
deprives an accused of his right to crossexamine the witnesses against him as
guaranteed by the Confrontation Clause of the Sixth Amendment to the Federal
Constitution."
In Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278
(1963) the U.S. Supreme Court held that "...the forbidden conduct is the
conscious and flagrant attempt to build its case out of inferences arising from
use of the testimonial privilege." The Arkansas Supreme Court in Foster,
supra, characterized the prosecutions conduct as a "grandstand
play," with the prosecutor trying to "build the state's case out of
inferences arising from [the witnesses] assertion of her fifth amendment
privilege."
In the case at bar, the Prosecutor's motive in obtaining an Order transporting
Jessie Lloyd Misskelley, Jr. to Craighead County "to testify" is
quite clear. Having been informed by Mr. Stidham that his client was not going
to testify against Mr. Echols and Mr. Baldwin, he sought to bolster his weak
case by drawing inferences in the minds of potential jurors in Craighead County
that Jessie Lloyd Misskelley, Jr. "might" testify. This move gave the
prosecutor an opportunity to accomplish another improper goal. To coerce Jessie
Lloyd Misskelley, Jr. into testifying against his codefendants despite being
informed by Mr. Stidham to the contrary. This improper conduct is evidenced by
the fact thatafter being informed by counsel for Jessie Lloyd Misskelley, Jr.
and by Mr. Misskelley's father that he would not be testifying, the prosecution
obtained the Order transporting Jessie Lloyd Misskelley, Jr. some fivedays prior
to jury selection, and almost two weeks prior to his being needed at trial. While
it is not uncommon for prisoners from the ADC to be moved to a county jail to
testify, it is quite uncommon for a State prisoner to be moved this far in
advance. This "advance time" gave the prosecution an opportunity to
workon Jessie Lloyd Misskelley, Jr. by violating his Fifth and Sixth Amendment
Rights. The Craighead County Sheriff's Deputy advising Jessie Lloyd Misskelley,
Jr. on February 17, 1994, that he"should testify" in the trial of his
codefendants andhis promise that the Court would "drop [some]
charges" if he did testify demonstrates a conscious and calculated attempt
to circumvent the Fifth and Sixth Amendment Rights of Jessie Lloyd Misskelley,
Jr. Said conduct is certainly imputed to the Prosecuting Attorney whether or
not he actually knew it or not.
Two things indicate that the Prosecutor had actual knowledge of the misconduct.
First, Jessie Lloyd Misskelley, Jr. was taken directly to Deputy Prosecutor Joe
Calvin's office in Rector despite defense counsel objections. Secondly, the
Prosecuting Attorney, himself, Mr. Brent Davis, was present in Mr. Calvin's
office when Mr. Misskelley arrived at the office.The Prosecutions deliberate
conduct in circumventing Jessie Lloyd Misskelley Jr.'s Fifth and Sixth
Amendment Rights are further demonstrated by the fact that when Mr. Stidham and
Mr. Crow arrived in Rector, Arkansas at approximately 7:00 p.m. they discovered
that Prosecuting Attorney Brent Davis and Deputy Prosecutor Joe Calvin had
already communicated with their client without their knowledge and consent. That
said attorneys were allowed to communicate with their client, Jessie Lloyd
Misskelley, Jr., for only approximately fifteen minutes when Prosecutors Davis
and Calvin burst into the conference room and demanded to take a statement from
Jessie Lloyd Misskelley, Jr. Stidham and Crow objected to the interference and
informed prosecutors that they wished to visit with their client uninterrupted.
Prosecutors then expressed their fear, in the presence of Jessie Lloyd
Misskelley, Jr., that Defense Attorneys would convince Jessie Lloyd Misskelley,
Jr. to decline to make a statement to them. Jessie Lloyd Misskelley, Jr. then
stood up and announced that he wished to make a statement in spite of the
advise and counsel of his attorneys, and exited the conference room and refused
to talk to his attorneys further. The Honorable Judge David Burnett was
telephoned at which time Mr. Stidham voiced his objections to his client being
present in the prosecutors office in the first place, that his presence at the
prosecutor's office was a violation of his client's Constitutional rights, that
Mr. Misskelley had requested psychiatric care on Tuesday, February 15, 1994,
that he questioned Jessie Lloyd Misskelley, Jr's current mental competency and
requested a mental evaluation, and that Jessie Lloyd Misskelley, Jr. had
informed him on Tuesday, February 15, 1994 that he did not wish to testify
against his codefendants. The Court denied the objections and request for a
mental evaluation by Mr. Stidham and permitted the Prosecution to offer use
immunity to Jessie Lloyd Misskelley, Jr. and take his statement over said
objections. The Prosecutors meeting with Jessie Lloyd Misskelley, Jr. on
Friday, Saturday and Sunday without the knowledge and consent of his attorneys
is a gross instance of misconduct.The Defendants anticipate that the
Prosecution will argue that they did not violate Jessie Lloyd Misskelley, Jr.'s
Fifth Amendment Rights because they granted him "use immunity" before
taking a statement from him, and therefore nothing he says can be used against
him. The Defendant's submit that the Court should analyze how this grant of
immunity was effectuated. The grant of immunity was obtained by prosecutorial
misconduct, i.e. violation of Jessie Lloyd Misskelley, Jr.'s Sixth
Amendment rights. Had the prosecutor acted properly he would have never been in
a position to even offer the immunity to Jessie Lloyd Misskelley, Jr. The
"but for" test the prosecutors deployed in closing arguments at the
trial of Jessie Lloyd Misskelley, Jr. is applicable here. In other words,
"but for" the prosecutor violating Jessie Lloyd Misskelley, Jr.'s
Sixth Amendment rights, he would have never been in a position to even offer
use immunity to Jessie Lloyd Misskelley, Jr. The Prosecution should not be
allowed, andthis Court should not condone, the violation of one codefendant's rights
to the extreme detriment of the other codefendants. In fact, the Courts have
long condemned the violation of the defendant's right in any respect. This
leads us to the next anticipated line of defense the Prosecution will deploy to
explain their conduct, the standing of the defendants to argue this motion.
The Defendants, Damien Wayne Echols and Charles Jason Baldwin, have standing to
argue this Motion because the prosecutor's misconduct did not just violate
Jessie Lloyd Misskelley, Jr.'s rights but their own as well. In violating
Jessie Misskelley's rights the Prosecution also violated the rights of Damien
Wayne Echols and Charles Jason Baldwin. That the abovementioned conduct and
actions of the Prosecution are a willful and deliberate attempt to circumvent,
and make a mockery of, the law as set forth in paragraph twentytwo (22) of the
Defendant's Motion, and to circumvent the due process rights of said
defendants, their right to receive a fair and impartial trial and their right
to confront the witnesses against them. That said conduct on the part of the
Prosecution, regardless of whether or not Jessie Lloyd Misskelley, Jr. actually
testifies against his codefendants, seriously undermines and impairs, or could
actually makes it impossible, for Damien Wayne Echols or Charles Jason Baldwin
to receive a fair and impartial jury trial due to the fact that said conduct on
the part of the prosecution constitutes a "grandstand play" which has
improperly drew attention to Jessie Lloyd Misskelley, Jr.'s alleged confession
which he submitted throughout the course of his trial was coerced. Potential
jurors will now place emphasis on this improper "grandstand play" by
the Prosecutor due to pretrial publicity.In summary, the prosecutor's role
identified in Floyd, supra, clearly state that the Prosecutor has a duty to use
fair and honorable means to secure a conviction and to promote a fair and
impartial trial. The Defendants submit that nothing in the conduct of the
Prosecution set forth herein is fair or honorable, and it certainly does not
promote a fair and impartial trial.
The Court states in United States v. Serubo, 604 F.2d 807, 817 (3d Cir.
1979):
"For while in theory a trial provides the defendant with a full
opportunity to contest and disprove of the charge against him, in practice, the
handling of an indictment will often have a devastating personal and
professional impact that a later dismissal or acquittal can never undo. Where
the potential for abuse is so great, and consequences of a mistaken indictment
so serious, the ethical responsibilities of the prosecutor and obligation of
the judiciary to protect against the appearance of unfairness are
correspondingly heightened...We suspect that dismissal of an indictment may be
virtually the only effective way to encourage compliance with these ethical
standards, and to protect defendants from abuse of the grand jury
process."
The matter at hand is not a grand jury indictment, however, the difference
should not lessen the ethical responsibilities of the prosecutor to protect
against unfairness in promotion of a fair and impartial trial and the basic
fundamental concept of "presumption of innocence until proven
guilty."
Further, the ethical responsibility of protecting Jessie Lloyd Misskelley's
Sixth Amendment right to assistance of counsel as afforded by the United States
constitution cannot be overlooked. In addition, the impropriety of the
prosecution has invaded and compromised these Defendants' constitutional rights
by mocking ethical considerations and acceptable protocol.The State has caused
aggravated circumstances prejudicing these Defendants resulting in
prosecutorial misconduct and/or overreaching. As stated in United States v.
Kessler, 530 F.2d 1246, 1256 (5th Cir. 1976):
"To find 'prosecutorial overreaching,' the government must have through
'gross negligence or intentional misconduct' caused aggravated circumstances to
develop which 'seriously prejudiced a defendant' causing him to 'reasonably
conclude that a continuation of the tainted proceeding would result in a
conviction,'" citing United States v. Dinitz, 424 U.S. 600, 96
S.Ct. at 1080, 47 L.Ed.2d at 274, 44 U.S.L.W. at 4312. See alsoUnited
States v. Bizzard, 493 F.Supp. 1084 (1980).
In order to deter the prosecutorial misconduct and/or overreaching, this matter
should be dismissed to preserve fairness, as noted in United States v.
Carrasco, 786 F.2d 1452 (9th Cir. 1986) wherein the Court stated:
"The purpose of a dismissal may be to preserve fairness to the individual
defendant, to deter prosecutorial misconduct, or to protect judicial
integrity."
The Defendants pray that the Court grant their Motion.
Respectfully submitted,
DAMIEN WAYNE ECHOLS, DEFENDANT
By: _________
Val Price, Bar#
Court appointed Attorney
[address]
Jonesboro, Arkansas 72403
(501) 9326226
CHARLES JASON BALDWIN, DEFENDANT
By:___________
George Wadley, Bar#
Court Appointed Attorney
[address]
Jonesboro, Arkansas 72403
(501) 9721100
CERTIFICATE OF SERVICE
We, Val Price, and George Wadley Court appointed Attorneys for the Defendants
herein, do hereby certify that I have served a copy of the foregoing pleading
upon Brent Davis, Prosecuting Attorney, by personally delivering same to him
this _____ day of February, 1994. Val Price [signed] George Wadley [signed]
