MR. STIDHAM: No, your Honor. A phone call
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 as his lawyer. If he wants him to be his lawyer or he doesn't want him to be his lawyer. That should be the inquiry, not whether or not he's going to testify or not.
THE COURT: Does anybody want to make any more record?
MR. STIDHAM: Your Honor, just one point. The Court should analyze how the contact took place with Mr. Misskelley after February 15th when the prosecutor was notified that he would not testify. The circumstances surrounding the contact should be what the Court is analyzing to determine whether or not there was misconduct of him getting use immunity in the first place. That is the crux of our argument --
THE COURT: I understand that. That's what I've just done. As of Wednesday, Mr. Davis has testified he indicated to your partner and Jessie's co-counsel that, "If I bring him back, will you be willing to go to him and see if he's willing to make a statement," or words to -- whatever he's testified to.
MR. STIDHAM: Did Mr. Crow ever tell you he would be willing to do that?
MR. DAVIS: He said, "I would be inclined to do so if you bring him back."
MR. STIDHAM: Did you tell him that you were going to be bringing him up from the Department of Corrections? Did you tell him that that was going to happen?
MR. DAVIS: No, I didn't tell him.
MR. STIDHAM: Did he consent to that?
MR. DAVIS: In my opinion he didn't have to consent to him being brought back.
THE COURT: I don't have any problem with bringing prisoners back.
MR. STIDHAM: Two weeks before he's needed at trial?
THE COURT: I've brought them back months before -- before.
MR. FORD: What is the Court going to do with respect that voir dire be postponed until a determination has been made by the Court?
THE COURT: I'm going to make that determination real quick.
MR. FORD: Will the Court -- is that a yes or a no as to whether or not voir dire will be postponed until that determination is made?
THE COURT: I'm not going to postpone the voir
dire. We are going to start at one o'clock so I will make my ruling before then.
MR. FORD: You'll make your ruling on this issue before then.
THE COURT: Yes.
MR. DAVIDSON: Depending on your ruling, we will probably have other motions.
THE COURT: Like what?
MR. DAVIDSON: Possibly a motion for continuance, possibly a motion for a copy of those tapes.
MR. FOGLEMAN: He was listed as a witness.
MR. PRICE: We would like copies --
THE COURT: If he testifies --
(THE COURT AND MR. PRICE SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
MR. PRICE: -- of Mr. Misskelley Friday, Saturday, and Sunday.
THE COURT: You are entitled to co-defendant's statements that are recorded.
MR. PRICE: And also a copy of any notes of the three days of conversation.
THE COURT: You're entitled to that by the discovery statute.
MR. PRICE: Thank you.
MR. DAVIS: Your Honor, we can resolve that real
quick. Number one, there's not tapes and number two, there are no notes.
MR. DAVIDSON: Mr. Stidham just said there was a tape.
THE COURT: Mr. Stidham has a tape of his conversation with his client, and I think that's attorney-client privilege and the only way you're going to get that is if Mr. Misskelley says you can have it.
MR. PRICE: We would also request that Mr. Misskelley be brought -- if he's allowed to testify -- that he be brought to my office so I can interview him and prepare to cross examine him just like --
MR. FOGLEMAN: Your Honor --
(MR. PRICE, MR. FOGLEMAN AND THE COURT SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
THE COURT: -- I thought you already had.
MR. FOGLEMAN: Mr. Price already has cross examined him.
MR. DAVIDSON: No, we have not.
MR. PRICE: No, your Honor --
MR. STIDHAM: -- your Honor, that is not correct. That is an absolute absurdity.
MR. FORD: I'd like the same opportunity.
MR. STIDHAM: Your Honor, as his lawyer, I'm
objecting to anybody talking to him -- anybody.
MR. PRICE: If I could clarify something. Approximately two or three days prior to the Denno hearing, I went up with Mr. Stidham and I practiced cross examination of Mr. Misskelley approximately ten or fifteen minutes. That's the only conversations I've had with Mr. Misskelley.
MR. FOGLEMAN: Was that to assist Mr. Misskelley in preparation for his trial?
MR. STIDHAM: Mr. Price was asking questions of Mr. Misskelley to prepare him for the onslaught we anticipated --
MR. PRICE: -- At the direction of Mr. Stidham.
MR. FOGLEMAN: So that was to assist him in preparation for their trial.
MR. DAVIS: Your Honor, we would certainly note on the record that if any statements were made by Mr. Misskelley under those circumstances, then Mr. Price was providing legal services at the request of Mr. Misskelley's counsel and, therefore, any statements Mr. Misskelley made at that point would be subject to attorney-client privilege and one of the things that's going to come up is who is going to advise him to claim that privilege and, number two, what happens when Mr. Price who represents a co-defendant in the
case gets up and starts to examine him regarding that. Because Mr. Price said that he was there to provide legal assistance to Mr. Stidham in preparing him for a hearing.
MR. STIDHAM: I don't know if you want to term it "legal assistance." It was a mock trial situation, your Honor.
MR. FORD: I'd like a transcript of Thursday's statement at Mr. Calvin's office that he is preparing a rough draft for.
MR. FOGLEMAN: And y'all were told about that.
(MR. FORD AND MR. PRICE SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
THE COURT: According to the rules of evidence, you are entitled to it. I think the rule reflects after he testifies, but I generally allow it beforehand.
MR. FORD: They have an open file policy.
THE COURT: I'm telling you that my ruling has been you are entitled to it.
MR. DAVIDSON: We also request a copy of any tape that Mr. Stidham has that he played for Brent's secretary and thereby wouldn't be privilieged anymore.
MR. FOGLEMAN: It is the client's privilege.
MR. FORD: Are you representing Mr. Misskelley
MR. FOGLEMAN: Somebody has got to.
MR. FORD: Y'all don't have a conflict -- you two gentlemen -- the prosecutors --
MR. STIDHAM: It seems incredulous that the same two guys who are wanting to kill him two weeks ago are now his best friends --
THE COURT: All right --
MR. DAVIS: -- You could reverse that, Judge. It's nearly incredulous to us that the same guy that defended him two weeks ago is now doing these things.
THE COURT: All right. We're off the record. Let's take a recess.
(THE FOLLOWING CONFERENCE WAS HELD IN CHAMBERS)
THE COURT: Let the record reflect this is
a continuation of the hearing in chambers.
MR. FORD: Your Honor, two things --
THE COURT: You need to let the record reflect that the defendants are not present.
MR. FORD: That's correct. The defendants are not present. This is a hearing outside the presence of the prospective jury panel.
THE COURT: Do you want the defendants present?
MR. PRICE: We waive the presence of Mr. Echols.
MR. FORD: We waive the presence of Mr. Baldwin. Before we broke for lunch, the Court indicated that it would grant my request that voir dire be postponed until the Court has made its decision as to whether or not it would let Jessie Misskelley testify.
It's now my understanding that you're going to withhold that ruling but yet proceed with voir dire. Is that correct?
THE COURT: Yes.
MR. FORD: We'd like to voice our objection to the Court's ruling in that respect and state to the Court that we believe that whether or not Mr. Misskelley will testify or not is an extremely critical portion of the voir dire inquiry.
If he was to be eliminated from the potential list of State's witnesses, that the manner and method at which we would proceed with voir dire would be different and that if he is going to testify, it would put us in the position of not knowing. It's different in this situation than not knowing because of trial strategy as opposed to not being allowed to call him by virtue of whether or not he is a competent and qualified witness.
Secondly, we believe that not knowing for certain the Court's ruling in this respect could affect
drastically the way in which we would exercise our challenges for cause and the challenges for peremptory reasons. If the defense is -- if the State is going to call Jessie Misskelley, then questions regarding the jury's perception as to his believability whether or not he -- his impact and his indication that the two remaining co-defendants were the perpetrators along with him is clearly something that could create challenges for cause and not being able to clearly understand that at this point in time from a defense standpoint, I believe unduly prejudices us at this stage. Also, your Honor, we would --
(THE COURT RECEIVING A TELEPHONE CALL)
THE COURT TO THE BAILIFF: Bring Mr. Misskelley up here.
MR. DAVIS: Could we take him somewhere else besides up here because if we bring him up here, there's going to be an absolute circus with the media --
THE COURT TO THE BAILIFF: Take him to the county jail.
MR. STIDHAM: Your Honor, Mr. Crow is at the Clay County Jail talking to Mr. Misskelley and he's going to be on his way here.
MR. FORD: Are you objecting to him talking to
MR. FOGLEMAN: I didn't say a word, Mr. Ford.
MR. FORD: Well, based on your laughter --
THE COURT: Is there any change in what was said this morning?
MR. STIDHAM: He had just gotten there.
THE COURT: Bring him out to the jail and we will make arrangements to go out there and I am going to have Phillip Wells talk to him briefly and we will make a record out there as well.
MR. STIDHAM: Your Honor, I'd like to make an objection for the record and I'd ask that this be made a part of Mr. Misskelley's --
THE COURT: Well --
MR. STIDHAM: I hate to keep jumping back and forth, your Honor, but I need to protect my client's rights. Mr. Wells is a law partner of Mr. McDaniel. Mr. Wells and Mr. McDaniel have been color commentators for Channel Eight News during the course of the entire Misskelley trial. I have personally spoken to Mr. McDaniel about this case as has the prosecution, and I think it is an inherent conflict for Mr. Wells to talk to Mr. Misskelley. Again, I will renew my objection that anyone talk to him.
I think Mr. Misskelley needs to have a mental
evaluation and Mr. Misskelley needs some time to decide what he's going to do, and he needs to make an intelligent decision about this. All I ask is that we have him evaluated and I have an opportunity to inform him of what his rights are.
THE COURT: You are going to do that in the presence of the Court and you are going to do it today, and I'm going to be here, and we are going to make a record of it and get on with this, and it is going to be done.
The only significant issue is whether or not Misskelley is informed and if he's making a voluntary statement and if it is his voluntary desire to testify. That's the only thing that is important. All the rest of it is just window dressing.
MR. STIDHAM: Is the Court ruling on our motion?
THE COURT: I'm going to tell Mr. Wells -- if y'all want an independent attorney to listen to him -- it seems to me that --
MR. FOGLEMAN: Your Honor, somebody is going to have to advise him in regard to attorney-client privilege.
MR. STIDHAM: Mr. Crow is quite capable of doing that.
MR. DAVIS: The concern -- and I think the Court
would agree based on what has been presented here, based on some of the statements of Mr. Stidham -- that there are at least grave concerns whether that attorney-client privilege hasn't been jeopardized or violated up to this point and there needs to be some steps taken to insure that it's protected down the road.
MR. STIDHAM: Your Honor, I would ask that the Court talk to Mr. Crow and allow him to testify under oath with regard to our motion and also allow Mr. Misskelley to visit with his family before making any decision. He's eighteen-years-old but he's also very incapable from a mental standpoint.
THE SHERIFF: I can bring him to this back door.
THE COURT: If you can do that, that's fine. Bring him on.
MR. STIDHAM: Your Honor, I think it would be important to have Mr. Crow testify under oath regarding our motion before the Court --
THE COURT: Call him and tell him to get up here.
MR. STIDHAM: He's on his way.
(VOIR DIRE BY THE COURT OF THE PROSPECTIVE JURY PANEL HELD AT THIS TIME)
(THE FOLLOWING CONFERENCE WAS HELD IN CHAMBERS)
MR. STIDHAM: I know I've objected to this.
We've been on and off the record at this point. I want to make sure that I got this on the record. I understand the Court's ruling that an independent attorney is going to discuss with Mr. Misskelley whether he understands the concept of use immunity and the appeal process and all that information, and I formally would object to that. Mr. Misskelley is my client, and I would I like the opportunity to visit with him, something that I have been denied for the past several days. And also --
THE COURT: Wait a minute. Nobody has denied you the right to visit your client that I'm aware of. I've heard nothing that would prohibit you from visiting your client.
MR. STIDHAM: No one has physically restrained me but my allegation is that the circumstances that led to this offer of immunity has precluded and interfered with my attorney-client relationship.
THE COURT: Let's get the record clear. Has anyone prohibited you from going to the Clay County jail and visiting your client?
MR. STIDHAM: No one has physically --
THE COURT: Have you made any effort to go there physically and interview your client?
MR. STIDHAM: I have made phone calls to the
county jail --
THE COURT: Were you allowed to talk to him?
MR. STIDHAM: I was not allowed to talk to him. I asked them to have him call me. He did not call me. He finally called Mr. Crow yesterday afternoon.
THE COURT: Did you make any other efforts on your own to go visit him?
MR. STIDHAM: No, your Honor, because if he's not going to talk to me on the phone, he's not going to talk to me in person.
THE COURT: I understand that Mr. Crow was at the Clay County jail about an hour and a half ago when I called to have Misskelley brought back up here --
MR. STIDHAM: Yes, sir.
THE COURT: -- Talking to him.
MR. STIDHAM: My understanding was -- I had just got off the phone with Mr. Crow prior to you placing the phone call, and Mr. Crow had just gotten there.
THE COURT: In view of this unusual circumstance and the dispute between the prosecutor and the defense attorneys, the Court has taken it upon itself to call Phillip Wells, a lawyer of some reputation, to make an inquiry of your client and to make a report to the Court. I don't plan to be here. I want him to independently interview him in your presence and in
the presence of the prosecutor to determine whether or not he understands what use immunity means, what the consequences are and all those things we've gone over.
MR. STIDHAM: I object to the prosecutors being in there because those are the same guys that have been talking to him without my knowledge and consent.
THE COURT: All right. The prosecutors won't be present then. Do you want a record made of that?
MR. STIDHAM: No, I don't want a record made of that. Mr. Wells can report to the Court his findings and even though I object to him going in in the first place, I understand the Court's ruling and I would ask that he make a full and complete report to the Court.
THE COURT: There's several reasons for it. One is that there is a potentiality that -- based upon your statement that you believe it to be perjury -- that you would have to be relieved from the case and at that point I would have to have another attorney appointed. So there are other reasons that I think an independent attorney needs to evaluate Mr. Misskelley's willingness to testify and I am going to allow that to be done in your presence.
MR. STIDHAM: Would you be willing to make a ruling on our motion we filed this morning on prosecutorial misconduct prior to this meeting taking
THE COURT: I think I have ruled on that.
MR. STIDHAM: You have not spoken to Mr. Crow and you asked that he be here to be put under oath and explain the circumstances of the --
THE COURT: I will be glad to talk .to Mr. Crow before I make any ruling. All right, let's go out there.
(THE FOLLOWING PROCEEDINGS WERE HELD IN CHAMBERS)
THE COURT: Let the record reflect that this is a continuation of the hearing outside of the presence of he prospective jury.
MR. WELLS: For the record, I was brought in as an independent attorney to make a determination as to whether or not Jessie Misskelley was aware of the offer that had been previously made by the prosecuting attorney to offer him use immunity in exchange so that his testimony should he desire and choose to take the stand would not be used against him in any subsequent proceedings or be used against him in his appeal.
My first determination had to be made, is he mentally competent to be able to understand what was going on. Was he aware of the consequences of making a decision either way, and it is my opinion that
Jessie Misskelley is mentally competent and does understand the circumstances of what his choice is to be.
It is my understanding and my impression that Jessie Misskelley, although not an educated person and does not understand a lot of the words that we lawyers use in our normal discussions in legal circumstances, does understand that he has a decision to make as to whether or not he chooses to take the stand or whether or not he chooses not to take the stand.
I feel he understands what the consequences of either of those decisions would be. I feel that he understands what an appeal is, that he understands that his case is now on appeal and he understands that if he chooses not to testify, that he can continue with his appeal.
I believe that he also understands that if he chooses to testify under the use immunity situation, that he can continue his appeal.
I have attempted with the assistance of his attorneys
to explain to him the technical defense that he has in terms of the fact that
he signed a statement when he was 17 years of age and I believe Mr. Misskelley
understands that that is an appellate argument that can be raised.
As any criminal defense lawyer has in a circumstance like this, Mr. Misskelley has a very, very difficult decision to make and as it stands right now, he understands that the prosecuting attorney is of the opinion and is under the impression that the statement that he gave to the prosecuting attorneys is a truthful statement and that they are attempting to have him testify in open court as to the statement he gave against the other two defendants.
I specifically asked him not to go into any facts or circumstances so that I wouldn't be involved in whether or not he has provided truthful testimony, or made a truthful statement, but what I wanted to make sure that Jessie Misskelley understood is that if he took the stand, that he needed to provide truthful testimony under oath and if he had some kind of negotiations, that it would demand that he provide truthful testimony.
The other decision he has to make is which decision he should make. It is my impression that he is faced with the decision of not testifying and even though he is granted use immunity, he has indicated to me that that may be one of his decisions. But before he makes that decision, he would like to talk to his mother and father and get their parental guidance as
to which decision he makes.
He has made that specific request and I also told him and I think his defense lawyers told him before this trial commences, both the defense lawyers and the prosecuting attorneys want to know what his decision is because the voir dire and the trial is going to depend on that. And he understands that he has to make a decision as to whether or not he should testify, whether or not he would be granted more than use immunity. And as a criminal defense lawyer, I have indicated to him that if he makes a decision that he is willing to testify, that before he makes that decision, he needs to have his criminal defense lawyer try to find out what type of negotiated plea they are willing to offer and only at that decision should Jessie Misskelley decide whether or not to give up his appellate rights and his opportunity not to testify in exchange for finding out what kind of negotiated plea that is.
I don't believe that at the present time Jessie Misskelley is going to make a decision until he talks to his parents. I have asked defense lawyers whether or not your Honor would allow him to talk to his parents. I feel it is a very unbelievably difficult decision that he has to make, and I would ask that he
be given that opportunity.
Then, I believe that he will be willing to make a decision as to whether or not he should testify or whether or not he should choose not to testify and depend on the appeal and understanding -- and I believe he understands if he chooses not to testify and the appeal is unsuccessful, that his sentence will remain as life imprisonment plus two twenty-year sentences.
THE COURT: Thank you, Mr. Wells. Anything else, gentlemen?
MR. STIDHAM: As Mr. Misskelley's court-appointed counsel, we would also make the request that he be allowed to visit with his parents before he makes probably the most important decision that he'll ever face.
THE COURT: I will permit him to talk to his parents. I don't know any reason why he couldn't anyway. Where are they?
MR. STIDHAM: I assume they are in Marion. I would be happy to make a phone call and have them start heading this way immediately.
THE COURT: Go ahead and do that.
MR. FORD: Was the question as to the factual dispute between Mr. Stidham and Mr. Davis this morning
regarding Mr. Crow's recollection of Wednesday and Thursday morning -- has that been developed on the record?
THE COURT: Let's do that.
MR. DAVIS: One thing I would -- as far as the scenario of him talking to his parents -- and I realize this would be asking an additional hardship on Mr. Wells -- but would the Court request that Mr. Wells be present or at least initially to advise them and bring them up to snuff on the scenario that's transpired here today and kind of fill them in --
MR. STIDHAM: We would object -- Mr. Crow and I would object to that, your Honor.
THE COURT: For what reason?
MR. STIDHAM: We feel again the same objection with Mr. Wells talking to him in the first place. We feel that that is Mr. Crow and I's job to take care of matters which fall within the realm of the attorney-client relationship.
We certainly -- and I don't mean that as an affront or attack on Mr. Wells at all. I think he understands that.
MR. DAVIS: Your Honor, it is the State's position that all the same reasons that made it make sense to the Court for Mr. Wells to communicate with
the defendant Misskelley about this, that all those same reasons would apply to providing that same information and communication to parents who obviously are going to be assisting in making this decision.
THE COURT: Frankly, the Court doesn't believe the parents ought to make that decision. They're not legally trained and probably the worst persons to give him advice, but I'm going to allow them to talk to him if that's who he wants to talk to.
MR. STIDHAM: Mr. Misskelley, would you like to talk to your parents before you make this decision?
THE DEFENDANT: Yes, sir.
THE COURT: I'm going to let him do that. Can you sit in on that, Mr. Wells?
MR. WELLS: I'll be willing to do anything that the Court directs me to do.
THE COURT: I'm going to ask that you stand in with Mr. Crow and Mr. Stidham during that interview with his parents.
MR. STIDHAM: We'd ask that no officers -- that the officers be directed to not discuss anything regarding the case with our client.
THE SHERIFF: Fine with me.
THE COURT: Okay. That's fine. You can take him back to the jail.
(THE SHERIFF AND JESSIE MISSKELLEY LEAVING CHAMBERS)
THE COURT: Mr. Crow, do you want to state for the record your recollection of a Wednesday telephone call from you to Mr. Davis or one he originated? I don't remember which.
MR. CROW: I honestly don't recall who called who. He may have called me and I called him back. I don't recall which way it was.
He wanted to know if we would consider letting he speak with Jessie in the presence of Dan and myself about testifying. He simply, as I understood it, just want -- just wanted to talk to him and make himself, make his own pitch kind of like what Mr. Calvin did on the day before -- on the day of trial. This is what we are offering, this is what you're going to get, which we certainly allowed on the day the trial started. Mr. Calvin came in and spoke, made Jessie an offer in our presence and then left and we discussed it.
I said that I didn't think I had a problem with it, but I expected Mr. Stidham would, and I wasn't making any decision yet, and I would talk to Dan and call him back. That was the end of the conversation at that point.
THE COURT: Did you indicate whether or not -- let me put it another way. Let me think how --
MR. DAVIS: Judge, could I ask a question?
THE COURT: Go ahead.
MR. DAVIS: Greg, didn't I say to you on the telephone that if Jessie were to be brought back to Clay County, would you agree to go talk to him with me where I could ask the questions?
MR. CROW: I don't honestly remember if it was Wednesday or Thursday the first time I was aware that Jessie was being brought back to Clay County. The first time I remember it being discussed it was given to me as a, "He is being brought back," not a, "Do you mind if he's brought back."
I don't think I made an objection to him being brought back because I don't think I have -- they can put him in Cummins. They can put him in the Miller County jail in Texarkana if that's what they want to do. That's not my role, to decide where my convicted client is housed.
I honestly don't think it was until Thursday morning that I was aware of the fact that he was being brought back, but it may have been Wednesday morning. My recollection was not, "Do you mind." It was, "He is being brought back."
MR. DAVIS: Are you saying that it didn't happen or you just don't recall on Wednesday morning if at that time I said, "If I can get Jessie back to Clay County, would you go up there and talk with him."
MR. CROW: My recollection was, whether it was Wednesday or Thursday, that "He is being brought back. Would you go talk to him with us."
MR. DAVIS: We never had any telephone conversations between you and I on Thursday, correct?
MR. CROW: I did with Joe. First -- when I was aware he was being brought back it was, "He is being brought back." And then if that was the conversation with you, if it was Wednesday, my recollection, you said, "He is being brought back. Would you mind going to talk to him."
At that point I said, "I will have to discuss it" -- I certainly said, "I'm going to discuss it with Mr. Stidham." I think talking with you yesterday you had the impression I was going to talk to Mr. Stidham.
You didn't remember one way or the other. You certainly had the impression I was going to talk to him.
MR. DAVIS: Would it be accurate to say that what you related to me over the phone was you personally didn't have any qualms with that but in order to do
it, you needed to talk with Dan first?
MR. CROW: And I expected he would have a problem.
MR. DAVIS: On Thursday when Joe called you and said he was on his way to Clay County, didn't you tell Joe that, "I will talk to Dan and we will be there by 4:30," or something to that effect?
MR. CROW: My recollection is when I first talked to Joe, "He is on his way, would you come talk to him." And I took it that he didn't want me to tell Dan and I wasn't going to do that. I said, "I have got to check into some things and I will get back to you."
I then went and talked to Dan. We decided that we did not want to proceed that way and -- Joe may have called me back or I called him. I think I had a phone message on my desk to call him, and the phone rang and it was Joe, or it may have been me calling him back. And he said, "He's on his way up here." I told him, "I'm not coming up. It is not going to happen."
Then at that point Joe asked if they could talk to him and I said absolutely not and that was it.
MR. DAVIS: Did -- at that point did Joe indicate to you, "If he's here and indicates he wants to give a
statement, do you want us to call you and have you present?"
MR. CROW: He said, "If he wants to give us a statement, what happens?" I said, "He's not giving a statement to anybody without us being there." I made it clear that I didn't want him to question him without me being there -- me and Dan, one or both.
MR. DAVIS: To your knowledge, there was no statement taken until after you were present at Joe Calvin's office?
MR. CROW: What I understand from talking to you guys is he walks in the door and he was asked a one line question, "Do you want to give a statement?"
MR. DAVIS: And you were immediately called and advised as to what his response was.
MR. CROW: That's my understanding.
MR. DAVIS: Did Joe and you discuss that he was on his way to Clay County and what -- and this is in that conversation where Joe calls you and says he's on his way here -- did you discuss the fact that he was -- as to whether or not he was going to be brought to Joe's office versus the jail?
MR. CROW: Yes. That was the first conversation Joe and I had. At this point it wasn't -- I had already told either you or Joe one that there wasn't
going to be a conversation with all of us, the prosecution, Jessie and the defense attorneys in the room.
At this point the question was, "Am I going to talk to Jessie?" And Joe said, "Do you want to do it at the jail or my office," and Joe's office is a little closer than mine. That's when I said, "I'm not sure it is going to happen. Let me check on some things. But if it does happen, I'd as soon do it at your office."
Then when I called him back, I told him I didn't want him going to anybody's office.
MR. DAVIS: At that time he advised you that the sheriff's deputy was already --
MR. CROW: -- Apparently he -- apparently that was already set up before I got on the phone because -- that was already set up to happen before I ever talked to you the first time. My understanding is the first time he ever left Pine Bluff --
MR. DAVIS: But in the first conversation with Joe, he asked would you rather do it at the jail or my office, correct?
MR. CROW: That's correct.
MR. DAVIS: You indicated that you would prefer if it was done, that it be done at Joe's office.
MR. CROW: That's right.
MR. DAVIS: So you don't know if he was already headed to Joe's office or if that was changed as a result of --
MR. CROW: I have no knowledge. Timing wise he had to be already out of Pine Bluff before that conversation occurred.
MR. STIDHAM: Your Honor, I'd like to ask Mr. Davis a couple of questions.
THE COURT: All right.
MR. STIDHAM: Mr. Davis, earlier while we were not on the record, you mentioned that there was radio contact between Joe's office and this deputy that was bringing Jessie up?
MR. DAVIS: It wasn't radio contact between Joe's office. When Joe talked with Greg the first time, Joe calls me and says, "Greg said he will be up here in about 45 minutes."
At that time I called the Craighead County jail and asked them if they had radio contact with Deputy Howell. They indicated that they did not at that point in time. I waited around and they called back and said that he had checked in and he was at Brinkley.
Then I called the jail and told them, "When he
gets near Jonesboro, contact him and tell him to go to Joe Calvin's office. It is an office on the left right before you get to the Citgo station."
In fact I had to call them back and give them directions because I didn't know exactly how to explain it to them.
And so then I took off for Rector myself and was -- I think at Halliday when Joe calls me on my car phone and tells me at that point that he said that he had talked with Greg and that he indicated that he wasn't coming unless Jessie indicated he was going to give a statement.
So at that point I went on to Joe's office. I didn't know Officer Howell's -- apparently he had a car phone but I didn't know his number and I didn't have radio communication. I just assumed when he got there, we would figure out what was going to happen.
MR. STIDHAM: When you got there and Officer Howell got there, Officer Howell told you that Jessie wanted to make a statement?
MR. DAVIS: I think that's correct.
MR. STIDHAM: So Officer Howell had been discussing the matter with Mr. Misskelley prior to arriving at Joe's office.
MR. DAVIS: I got the impression from Officer
Howell that Jessie Misskelley indicated that he wanted to discuss this matter.
MR. STIDHAM: I don't have anything further.
MR. DAVIS: I'd like Joe Calvin to tell his recollection of the events.
MR. CALVIN: Your Honor, on February 7th we had criminal pretrial in Piggott and as deputy prosecutor I was discussing this case with Judge Pearson and asking his opinion about the possibility of having Misskelley testify. And he said most certainly the prosecution can do so. You would give that individual immunity and bring him to court and have him testify. He said you could do not do it unless you give him immunity. He said it was probably a dereliction of duty if you did not do that. So I relayed that conversation somewhere in the next few days to Brent.
But what happened on February 11th, John Fogleman called me and said he had some political aspirations, and we discussed that, and I told him I'd have to wait and see who was running for a particular job.
I asked him, are you going to have Misskelley testify, and he said, "I don't know." And he asked if I would call Dan Stidham. That was on the 11th day of February which was a Friday. And if I'm not mistaken, that was the day that we had a considerable amount of
ice and when I called down there, they said Dan was somewhere shooting ducks or geese or deer or something in Mississippi and he probably couldn't get back. That was on Friday.
So the following Thursday Greg Crow called me and said, "We are four days late in returning your phone call." Greg and I talked a little bit about the case, and I do not remember what the conversation was at that point.
I -- immediately when we hung up, they buzzed me and said Brent was on the phone and Brent got on the phone. I said, "I just hung up from talking to Greg."
He said, "I just wanted to tell you that Jessie Misskelley is on his way to Clay County to give a statement or perhaps to be asked to give a statement."
MR. STIDHAM: Who told you that?
MR. CALVIN: Brent.
MR. STIDHAM: He told you that when?
MR. CALVIN: When he said, "He's on his way to Clay County to give a statement or to be asked to give a statement."
MR. STIDHAM: This was on the 17th?
MR. CALVIN: Yes.
MR. STIDHAM: What time was that?
MR. CALVIN: That was that afternoon. But at
that point then he said, "Would you mind calling Greg and tell him that if he gives a statement, could he be present."
I said, "If you want me to." He says, "You have a better rapport with the two attorneys than I do." I then picked up the phone and called Greg.
MR. STIDHAM: Why did he ask you to call Greg?
MR. CALVIN: I don't know. I didn't ask him. I called Greg and I said, "It is my understanding that Misskelley is on his way to Clay County."
I might also mention that I discussed with Brent, do we want to do this in my office or in the jail. The jail is pretty noisy. He said, "That would not make a lot of difference," or something to that effect.
Anyway when I did call Greg, I said, "Greg, it is my understanding that he might be coming here to give a statement. I don't know what about." I guessed what it would be about. We discussed how long it would take him to get here, and he said about 40 minutes.
He said, "Don't talk to him until we get there." And he said, "We are going to advise him not to make a statement."
I asked him if he was going to inform Dan of the
conversation because I think they had had some problems during the trial about defense tactics, and he said, probably will, but I certainly didn't tell him not to inform Dan.
So he said he could be there in about 40 minutes. I then called Brent back and Brent said, "I'm on my way to Rector."
I said -- Greg had mentioned that it would probably be more comfortable in my office to take a statement if one was given. I called Brent back, and he said that he would contact the Sheriff's Department some way to tell Dick Howell to bring him to my office, told him where it was.
Brent then called back on the phone. I think we had another conversation, I don't remember what, but I did call Greg back after an hour and a half and wondered why he wasn't there, and he told me he wasn't coming and I said, "Well, what if he gets here and wants to make a statement?"
He said, "If he wants to make a statement, you call me and I will be there."
Then about five o'clock Brent drives up and I tell him that Crow had indicated he was not coming, that I did ask him if he wanted to make a statement, what would happen. He said I'll be there.
So after he drove up, the deputy sheriff left Misskelley out in the car and came in. Brent was there. He left him out there I guess for about five minutes. I suggested bringing him in the library, and I would ask him if he wanted to make a statement.
So the deputy sheriff went out and -- I guess he had him in handcuffs. I don't know. He brought him into the library. He took a seat at the end of the table and I asked Misskelley if he wanted to make a statement. He said he did.
I immediately picked up the phone and dialed Greg's number that he had given me. He gave me two numbers, his residence and his office, and I think you said it was a direct number where it would not go through the switchboard.
So he answered the phone and I said, "Misskelley is here and he told me he wanted to make a statement," and so I held the phone out and Jessie said where Greg could hear him, "I want to make a statement."
Then Greg said, "I heard him," and I said, "Can you come up?" He said yes. I said over the phone, "He's indicated he's hungry and we are going to get something to eat. Do you have any objection to that," and Greg said no, and at that point somebody went and got several cheeseburgers and brought them over and we
About 45 minutes later Dan calls and is very upset. He said, "Is Misskelley there," and I said, "Yeah, he's here and wants to make a statement," and he might have said -- I don't know -- "It might not be in his best interest," and I said, "I don't know anything about that."
About seven o'clock, I think, the two of them arrived and came into the office. So we stood around and waited. Jessie went outside to smoke a cigarette. We don't allow smoking in the office. I think he smoked several cigarettes. I think Brent smoked a cigarette. Several people smoked cigarettes. But at no time was any discussion had with Misskelley about anything he had done.
When they arrived, they said, "We want to talk to our client." No problem. So they went into the library and shut the door. And I want to say it was about 40, 45 minutes -- it was quite a length of time -- it was getting late and I was wanting to go home so I came in and said, "Why don't we get the show on the road," or something like that.
I think Dan became upset with me because I had walked in the room, and so he said something about, "He made a statement," and I said, "Well, according to
what I know about law he certainly has a right to make a statement. He has already been convicted." They said, "He's innocent." I said, "Well, he may be innocent but twelve people in Clay County said he was guilty. If you grant him immunity that you can't use it against him, the state has a right to call him."
We said a few words back and forth. I went out and shut the door. We stood out there about another twenty minutes or so. Brent and I walked back in then and Jessie Misskelley was angry. He got up and went out and made some derogatory remarks about -- I won't say about who -- but anyway he stood back out in the lobby and Dan came out and he indicated he wasn't finished talking with Jessie.
Jessie said he didn't want to talk to him anymore. He wanted to make his statement. Dan says, "I will have the sheriff handcuff you and drag you back in there," and Dick says, "Not this sheriff. I will not drag him back in there."
Then about that time they said, "Let's call the judge." So then we all four proceeded into my office. I dialed Judge David Burnett. He answered the phone and I said, "Judge Burnett, this is Joe Calvin. I'm in my office at Rector and before me is Brent, Dan Stidham and Greg Crow."
And at that time I had just about a thirty second conversation. Dan talked to you. I don't know what you said to Dan. And then Brent talked to you. And then I think we went back in there --
THE COURT: I think I talked to Greg, too, didn't I?
MR. CROW: Yes.
MR. CALVIN: You talked to everybody but me. I just heard one side of the conversation.
THE COURT: I wanted to talk to people who knew something.
MR. CALVIN: And I appreciate that. I might add that I was paying the phone bill. So after all that phone conversation, they got up and went back out and said -- they told me what you had said to both of them. We got a tape recorder. Dan had a tape recorder --
MR. STIDHAM: The police chief --
MR. CALVIN: The police chief had a tape recorder.
THE COURT: Is this the transcript? I want it to be made a part of the record.
MR. CALVIN: We took a tape recording of his statement. Brent swore him in, and in that recording gave him immunity and he related to Brent about
certain things about the crime and he wanted to testify. At the end of the conversation they went on the record as saying they thought he had committed perjury.
So at that time we concluded the interview and got up and we found that my tape, the third tape, was dragging, was not real audible. So we got another tape and I can't remember where we got that but we played our tape back and let Dan record it again and that took 45 minutes. So we had to sit around the office for 45 minutes. I might say at that time the feelings were very nice. They were very cordial.
THE COURT: What were you doing?
MR. CALVIN: Well, I had about six or eight beers and they drank all the beer and I had about a half of a fifth --
MR. STIDHAM: -- of cheap bourbon.
MR. CALVIN: I don't think it was actually cheap.
MR. FOGLEMAN: I think the record should reflect --
THE COURT: That John Fogleman wasn't there?
MR. FOGLEMAN: -- that Jessie did not partake. And John Fogleman was not there.
MR. CALVIN: Jessie had already gone. We set there for 45 minutes and recorded that and I think Dan
had a fairly accurate statement of what Mr. Misskelley had given and we stood around a few more minutes and talked and shook hands and Dan says to Brent, "I don't really agree with this, but you are just doing your job and if I were prosecutor, I would have done the same thing."
And we shook hands and they left. That was basically it. Then I get a copy of a letter that he faxed to you and various other people. But at no time was any questions asked of Misskelley until they got there. I honestly think under the rules that they wouldn't have to be there from what the Honorable Judge Pearson said. But there were no questions asked.
Jessie did make statements about prison life, that he didn't like it, things like that. But he stood outside and smoked about half the time.
MR. STIDHAM: For purposes of the record, I didn't have a clear understanding of what had transpired when I made any statements to Mr. Calvin and Mr. Davis. I do respect and understand they have got a job to do. I think it is very clear from the motion I filed this morning that I disagree entirely with the tactics that they used and I think that's very obvious to the Court exactly why they transported
We again would renew our motion and the arguments set forth that this was a deliberate and willful attempt to interfere with Jessie Misskelley's Fifth Amendment rights and his Sixth Amendment right to counsel, and we submit the offer of immunity was given in bad faith, and we would also submit that the prosecution shouldn't be allowed to violate one constitutional right in order to compel a witness to testify by granting him immunity, and we think that is absolutely improper.
MR. CALVIN: Your Honor, I would like to add something. This is actually not my case and it was moved to Clay County. I helped pick the jury, and I only did this to assist Mr. Davis.
THE COURT: Are you saying don't do it again? Anybody else?
MR. STIDHAM: I do have one other thing. Who told you that Mr. Crow and I had different ideas about trial strategy?
MR. CALVIN: I think Greg told me over in Corning that y'all might -- y'all, you know, as two law partners, y'all disagreed on some of your theories of how to defend the case. It was nothing derogatory.
MR. CROW: I don't remember that.
MR. CALVIN: Something to that effect, but that would have been a month ago.
MR. STIDHAM: I would like to say for the record I don't recall ever having any disagreement with Mr. Crow throughout the process.
MR. CALVIN: I don't know that it makes any difference.
MR. STIDHAM: I would like Mr. Crow to state whether or not he believes we had any problems or disagreements with regard to the representation of Mr. Misskelley.
MR. CROW: I don't remember anything during the trial process.
THE COURT: All right. I'm ready to rule. Motion will be denied. Specifically, the motion for Jason Baldwin and Damien Echols -- the relief requested was dismissal of all charges against those defendants with prejudice. That will be denied. There's absolutely no reason or justification whatsoever. You've barely got standing. I'm making an affirmative finding that there was no, absolutely no, prosecutorial misconduct in this case. The prosecuting attorney is duty bound once evidence comes to their knowledge to pursue that evidence with all vigor and to present that evidence in a court of law.
That is his sworn duty.
Once the statements that Misskelley made were made known to him, he had a duty and an obligation to pursue that. Frankly, in my mind I'm not sure that he had any obligation at all to contact defense attorneys before approaching Mr. Misskelley at the penitentiary. If he had driven down there and asked him if he wanted to make a statement and testify under a grant of immunity, assuming he could get that from the Court, I'm not sure that it was necessary.
As I see the facts and from my knowledge of how it developed, he apparently was reluctant and did not attempt to take a statement from Misskelley before informing defense counsel.
You may not like how he brought him down here and the fact that you were summonsed to an office and went there because your client was there. I certainly can understand that feeling and your objection to that. On the other hand, he informed you and had you present before he made any attempt to even approach your client with regard to use immunity.
So I don't find that there was any misconduct on his part at all. There's absolutely no reason to suppress the statements made by Misskelley or any references to them.
That was some of the relief that
was requested in Baldwin and Echols' motion.
"That the prosecutor be ordered not to have any contact directly or indirectly with any of the defendants." Well, the – them trying to approach a defendant that is being tried and to obtain a statement from him is quite different from what was done under these circumstances. Obviously, I think Mr. Davis and Mr. Fogleman know that they are not to contact Baldwin and Echols prior to -- and that would be an infringement of attorney-client privilege to attempt to do so.
However, where there are co-defendants and one has been convicted and sentenced to the penitentiary, I think the prosecutor would be derelict in his duty if he didn't attempt to elicit testimony from that co-defendant, at least make the attempt to do so.
I'm not going to forbid the State to call Jessie Misskelley as a witness or to to make any reference to him at the trial. His statement that he previously had given and any statement that has been taken and recorded is not admissible, and I think all of you know that, and I shouldn't have to make any ruling on that. It's simply not admissible.
However, if Misskelley is willing to come forward and give testimony at the time of trial, the State
will not be prohibited from calling him as a witness and eliciting that testimony.
There's no reason or justification to hold anyone in contempt of Court on this and so a special prosecutor would be absurd and that is the extent of it.
The way I see it, if Mr. Misskelley is willing to testify, then he will be permitted to do so.
MR. PRICE: Will that decision be made known to us?
THE COURT: I'm sure it will be. I haven't removed Mr. Crow or Mr. Stidham. It's been my observation they have done a rather remarkable job in a capital murder case where the client had given police officers a statement. With the nature of this case, the high interest that's been involved in it and the emotions that have been involved, they have done a remarkable job in avoiding a capital murder conviction.
I did seek Mr. Wells' help because of the conflict between the prosecutor and the defense attorneys under the circumstances and the allegations made in the motion, and I feel it is beneficial to the Court to have that outside influence where parties or their feelings are raw and their attitude toward each
other are at odds.
So for that reason I thought it was beneficial to have an independent attorney that didn't have any emotional tie to the case one way or the other to make inquiry of Mr. Misskelley as to whether he was willing to make a statement.
From Mr. Wells' report, he apparently didn't ask him whether or not he wanted to make a statement, but he apparently talked for about an hour.
MR. CROW: At least.
THE COURT: So I'm going to give him an opportunity to visit with his parents. I'm going to start this trial tomorrow morning and after I finish voir diring that next batch of jurors, we're going to start picking a jury. So you can do whatever you want with regard to your voir dire questions, each of you, the State and the defendants, because I think you will be on fairly equal footing as to whether you surmise whether he'll testify.
Hopefully, he will be able to give an answer tomorrow or this evening as to whether or not he's desirous in giving his statement, or his testimony. His statements don't mean a thing. They're hearsay. The only way Jessie Misskelley is going to be able to do anything is if he physically takes the stand.
MR. DAVIDSON: At that time we should be given the statements for impeachment purposes.
THE COURT: You have already been given a copy of the statement. Mr. Stidham gave you a copy of the statement that he gave --
MR. PRICE: We did get a copy of the statement. Brent brought me one yesterday. I think it is a rough draft version --
MR. DAVIS: I've got one of those for each defense attorney, which is a certified transcript that Joe's secretary prepared based on the tapes that were taken that night. They can compare them with whatever Dan's got.
MR. CALVIN: I have a question for curiosity's sake. You're going to afford Mr. Misskelley the opportunity to speak with his parents. When he talks with his parents, then he's going to tell somebody, I want to testify or I do not want to testify. That still wouldn't be his decision to make because the State even if he says, I don't want to testify, still has the right to put him on the stand.
MR. STIDHAM: I disagree, your Honor. That's not the law.
MR. CALVIN: I think it is. If they want to put him on the stand --
MR. STIDHAM: -- Knowing that he's going to invoke his Fifth Amendment privileges?
MR. CALVIN: He's been given immunity, and he doesn't have a Fifth Amendment right. Once the judge grants immunity, the State can still call him as a witness even though he says, I don't want to testify.
THE COURT: That's my understanding as well. If there is a grant of immunity, he doesn't have the right to impose the Fifth Amendment.
MR. CALVIN: If he says today that he doesn't want to testify, that still --
THE COURT: That doesn't mean that they cannot call him. That's correct.
MR. DAVIDSON: If I go to the jail tonight and ask him if he wants to talk with me --
THE COURT: I'll do this on that. If you want to brief that issue further -- if there is a grant of immunity given, the person who received that grant can't refuse to testify. That is my understanding of the --
MR. PRICE: Even if the case is on appeal.
THE COURT: That's right.
MR. STIDHAM: Our research indicates --
THE COURT: Y'all can research that if you want to, but I think that is a correct statement of the
I'm not ruling on that. I'm ruling that if he chooses to testify, I'm sure going to let him.
MR. STIDHAM: I'd again make the request that a transcript of these hearings today -- that I be allowed to designate those on appeal for the purposes of Mr. Misskelley.
Second of all, if Mr. Misskelley says, I don't want to testify, does that mean the prosecutors are going to be able to go down there and beg him some more or do anything with him some more? Do we have a right to be notified and be present? I think that issue probably needs to be clarified.
THE COURT: I think they have a right to talk to him.
MR. PRICE: In the presence of their attorney?
THE COURT: It would be preferable --
MR. DAVIDSON: -- Can we talk to him?
THE COURT: If he wants to talk to you, I think you can.
MR. STIDHAM: Your Honor, you're ruling that if he tells us that he does not want to testify, they are still going to have an opportunity to pursue him unbridled by --
THE COURT: In view of all this hoopla we've
raised about it I think it would probably be preferable to have you present, but I'm not going to bar them access to a potential witness, or at least a person they believe has some testimony or information.
MR. PRICE: So the State can talk to Mr. Misskelley without his attorneys being present --
THE COURT: I didn't say that. I said it would be more advisable to have them present in view of this motion.
MR. STIDHAM: They haven't deemed it to be advisable thus far.
THE COURT: My thought is -- and y'all haven't shown me any law contrary -- I'm not sure that they don't have a right to go down there and talk to him.
MR. PRICE: So the same thing would apply to us? We would have the right to talk to him --
MR. FOGLEMAN: Your Honor, there are different interests involved --
THE COURT: Yeah, I think you probably do. As a witness, you probably have a right to.
MR. FORD: But we can talk to him now, too. You're going to allow him to testify if he chooses to and will not -- under use immunity would order him with the contempt powers to testify against his will.
THE COURT: I haven't made that ruling yet. I'm
saying that is a potentiality that that ruling will be made, and I am giving you an opportunity to brief that.
MR. FORD: Okay.
MR. STIDHAM: We would ask that no one be allowed to talk to him until that ruling has been made. We submit to the Court that Jessie Misskelley has just as much Sixth Amendment rights now as he did before because of the status of his appeal and the fact if we have a remand, your Honor, we'll be trying this again.
THE COURT: Nothing he says can be used in that trial when you do it again.
MR. CALVIN: This man is a convicted person from Clay County, Arkansas. He has been convicted.
MR. STIDHAM: That man has rights --
MR. CALVIN: He may have rights to appeal but once he's been convicted and the Court grants him immunity, the State can call him and put him on the stand. They might not know what he's going to say but they can flat call him. That's been law for years.
MR. STIDHAM: I disagree --
THE COURT: There's one other thing. There's been some talk about the Court's power to reduce the sentence, and we have talked about that indirectly. And for the record, I have never said I would do
anything one way or the other. In fact I tried to tell each of you that I wasn't going to make any commitment that I'd do anything, one way or the other, whether he testifies, doesn't testify or what.
If they are going to require his testimony after you brief that and I have considered that, then the proper way to proceed if that were to happen would be for his defense attorneys to file a motion for a new trial, and I can rule on that, and I suppose at that point a plea bargain if I granted a new trial based upon him testifying under a grant of use immunity, that a plea bargain could be agreed upon. Those are mechanics that I'm not sure whether anyone really knows --
MR. CROW: Judge, the statute basically says within 120 days you can do what you want without --
MR. FOGLEMAN: That's not what the statute says.
THE COURT: In a civil case I can.
MR. STIDHAM: For the record, I object to anyone -- law enforcement personnel, prosecutors, anybody -- conferring with my client. I object to that at all in any form or fashion -- indirect, direct, innuendo or anything.
MR. DAVIS: One thing I would like to request -- and I don't know what the logistics are with Barbara
-- but the portion of your ruling on this motion and I know -- I don't know how much of it would be -- since apparently everybody in the media has a motion alleging misconduct on my part, if there is a transcript of your order or your findings made which indicates no prosecutorial misconduct, I would request that that portion of your ruling that indicates that be transcribed so I can file that in the Court file so that I don't have to make a public comment but that there's some record so that --
THE COURT: Well, everyone of these people out here have been given -- or obtained a copy of the motion. I'm prepared to go out and announce my ruling.
MR. DAVIS: I would certainly appreciate that, your Honor, because that leaves me in a --
THE COURT: They know what the motion was. I'm going to announce the ruling the Court has made.
It still leaves a question mark as to whether or not Mr. Misskelley will testify. Y'all will just have to deal with that however you can in your voir dire because I'm going to start the voir dire in the morning.
MR. WADLEY: Judge, while we're on the subject concerning tomorrow, we are going to have a new pool
coming in tomorrow.
THE COURT: About putting the twelve back in? I don't care. I will do that.
MR. FORD: One last thing regarding tomorrow. The Court has previously indicated that we have to share our strikes and that Mr. Price -- at least it's our agreement -- will be entitled to six and we will be entitled to six, and we are aware that the State has ten strikes.
We would ask that each side be placed on equal footing and that we be given ten strikes and that Mr. Price be given ten strikes. In the event the Court deems that to be inappropriate the Court has previously indicated to me in off-the-record discussions that if all the strikes were going to be used, that you would give us another one to avoid any error. If you're going to give those strikes at that time, we would ask to know whether you're going to give one or two and to basically give those to us now so that we know how many cards we have in our hand to order to determine how we play those cards.
THE COURT: All right. What my remark was, was that I was going to follow the longstanding traditional law that when you have a joint trial, the defendants are required to share their strikes. I see
no reason to change that whatsoever and don't intend to do so. I by habit and custom have in the past where defense lawyers requested additional strikes, given them additional strikes, but I'm not going to commit myself to give you one, two, ten or none.
If you exhaust your strikes, we still have not picked a jury and the Court feels that it's appropriate, I will give you additional strikes, but I'm not going to commit myself to how many or when.
MR. WADLEY: Your Honor, the long line of cases the Court talked about, those cases dealing with shared strikes were not capital cases.
THE COURT: Oh, yes, they have been.
MR. WADLEY: Well, I --
MR. DAVIDSON: Your Honor, again, we would renew our motion for severance in that we again still feel that we would not be able to adequately share strikes with the other side. We believe our defenses are adverse, and we would again renew our motion for severance.
THE COURT: Adverse in what regard? Y'all have been working pretty darn good as a tag team.
MR. FORD: Your Honor, I object to that inference on the record like you did this morning. I don't see that we're doing any tag team.
Your Honor, I likewise join in a motion for severance based on the Rules of Criminal Procedure which require that we renew it at trial or lose it. We are hereby renewing, and it will be a continuing request for severance throughout the entire proceeding --
THE COURT: -- I'm not going to allow a continuing objection on that. You're going to have to raise your objections as they come up, and I'll rule on them.
MR. FORD: We ask for a ruling on our motion for severance.
THE COURT: Denied.
MR. DAVIDSON: Ours also.
THE COURT: Denied.