OCTOBER 26, 1998 (Page 1)

Page 2

STATE OF ARKANSAS	PLAINTIFF
VS.	NO. CR-93-450A
DAMIEN ECHOLS	DEFENDANT

HEARING ON RULE 37 PETITION

JONESBORO, ARKANSAS

OCTOBER 26, 1998

APPEARANCES

FOR THE STATE: BRENT DAVIS
                PROSECUTING
                ATTORNEY
                P.O. BOX 491
                JONESBOR0, AR 72403

                TODD NEWTON
                ASST. ATTORNEY GENERAL
                JUSTICE BUILDIN6
                LITTLE ROCK, AR
                72201

FOR THE DEFENDANT: CHET DUNLAP
                    COURT-APPOINTED ATTORNEY
                    P. O. BOX 54
                    TRUMANN, AR
                    72472

                    EDWARD MALLETT
                    MELISSA MARTIN
                    ATTORNEYS AT LAW
                    55 WAUGH DRIVE,
                    SUITE 900
                    HOUSTON, TX
                    77007

BEFORE THE HONORABLE: DAVID BURNETT, CIRCUIT
                         JUDGE

VOLUME IV
BARBARA J. FISHER, C.C.R.
OFFICIAL COURT REPORTER
P. O. BOX 521
PARAGOULD, AR   72451-0521
(870) 236-8034

INDEX (VOLUME IV)
10/26/98

MOTION AND RULNG 637-653

WITNESSES FOR PETITIONER
VAL PRICE
     Examination by Mr. Mallett 653-718
     Examination by Mr. Davis 718-781
     Examination by Mr. Mallett 781-816

BRENT TURVEY
     Examination by Mr. Mallett 816-844
     Examination by Mr. Davis 844-867

PETITIONER EXHIBITS
     43     819

	637
1	JONESBORO, ARKANSAS, OCTOBER 26, 1998, AT 9:30 A. M.
2	THE COURT: Court will be in session.
3	Mr. Dunlap, did you want to make some kind of a
4	statement?
5	MR. DUNLAP: Yes, your Honor.  I was contacted
6	by the -- your Case Coordinator up in Osceola -- I
7	think it was Tuesday or Wednesday of last week -- and
8	asked if I could fill in and -- as co-counsel on Mr.
9	Echols, and that the hearing would probably last --
10	probably -- well, a week -- five days. And I
11	indicated that I would, and I would agree to do that,
12	but I'm not sure as I stand here this morning exactly
13	what my role is to be, your Honor. So let me inquire
14	what the Court expect, of me at this time.
15	THE COURT: The Court appointed you to
16	temporarily stand in the shoes of Mr. A1 Schay who
17	was the Arkansas appointed attorney for Mr. Echols
18	who had some unexpected surgery. You -- your primary
19	role, as I see it, is to provide Mr. Mallett with
20	Arkansas rules, procedure and advice on the laws of
21	Arkansas as relative to a Rule 37 Petition or other
22	petitioners that he might need assistance of local
23	counsel on. You're the local counsel appointed at
24	this point for Mr. Echols.
25	I expect Mr. Schay will -- will within four to
	638
1	five weeks -- will be back on the case and, at that
2	point, you'll be relieved. But I suppose for the
3	record, you're Mr. Echols' Arkansas counsel. The
4	primary lead and the primary role has been undertaken
5	by Mr. Mallett and his associate to present Mr.
6	Echols' Rule 37 Petition to the Court
7	You're -- you're -- you're -- you're appointed
8	in the case, but your primary function will be to aid
9	and assist him in Arkansas procedure and law.
10	MR. DUNLAP: Your Honor, if I may, Mr. Mallett
11	I've had an opportunity to confer with him this
12	morning briefly and --
13	THE COURT: I thought he called you last week.
14	You didn't get a hold of Mr. Dunlap?
15	MR. DUNLAP: We spoke over the phone briefly.
16	He faxed me some of the pleaxxxs, and I met him this
17	morning approximately an hour and a half before we
18	started here.
19	But as co-counsel, your Honor, he has already
20	asked me to advise him on several matters that I was
21	completely unfamiliar with. Of course, being local
22	Arkansas attorney, I followed this case back
23	in 1993 in the newspapers as well as the media. But
24	as far as the Rule 37 and the issues being raised
25	here today, I'm completely unprepared. It would
	639
1	probably take me the better part of a month to get
2	prepared to go forward as co-counsel in this case.
3	So let me move for a continuance at this time.
4	THE COURT: Well, that'll be denied.
5	MR. DUNLAP: Note my objection.
6	THE COURT: All right.
7	And the record should reflect that Mr. Mallett
8	has been involved in this case for almost eighteen
9	months now -- maybe -- maybe even longer than that --
10	and has presented the entire matter with the possible
11	exception of one short witness and is lead counsel
12	and has taken that role, and I see absolutely no
13	reason for a continuance and that you're a competent
14	lawyer or wouldn't have been appointed and certainly
15	have the knowledge to advise him on local rules of
16	procedure.
17	MR. DUNLAP: Thank you.
18	MR. MALLETT: I don't want to test the Court's
19	patience, and I think the Court well understands that
20	much of what we speak here today we speak here
21	because of the possibility that an appealing court
22	someday --may look at these proceedings and
23	with that idea in mind, I would acknowledge that I
24	have asked most of the questions and done most of the
25	arguments in these proceedings as the Court has
	640
1	observed, and I don't dispute that I have taken the
2	lead. But by saying that, I do not mean to concede
3	that Mr. Schay was not a lawyer appointed by the
4	Court pursuant to this Court's written Order which I
5	of record appointing him pursuant to Article 37.5 as
6	the counsel of the case.
7	What I spoke to Mr. Dunlap about this morning
8	was whether he was my lawyer or Damien Echols'
9	lawyer. And I thought with reference to the intent
10	of the Arkansas Supreme Court in adopting these
11	rules, that could be a distinction with a difference.
12	THE COURT: He's appointed to represent Damien
13	Echols, and in that regard his primary function as I
14	see it at this point is to stand in the shoes of Al
15	Schay to advise and assist you on Arkansas law, rule
16	and procedure.
17	You seem very adept on finding your way through
18	the Arkansas Statutes and law and -- and it's obvious
19	to the Court that you're highly competent and capable
20	to proceed so that's -- the record is clear on that.
21	In fact the Supreme Court's already ruled on this
22	particular issue. So let's -- let's move along.
23	MR. MALLETT:   I know the Court wants to move
24	along, and I'm not trying to test your patience, but
25	just for the record, the objection would include that
	641
1	the rule does not contemplate local counsel as
2	appointed for any limited purpose. The rule
3	contemplates  -- as I read Rule 37.5 -- that out-of-
4	state counsel may be appointed pro hac vice -- which
5	I have not -- and if that occurs, then the Court may
6	appoint local counsel who is not technically
7	qualified under the rule.
8	So even were I appointed and the Court acting
9	pursuant to its authority in appointing local
10	counsel, Mr. Dunlap, I -- I have to suggest that as I
11	read the rule, the Arkansas Supreme Court in
12	attempting to comply with the federal statute must
13	consider that local counsel would be appointed for
14	all purposes.
15	THE COURT: Well, I've appointed him for all
16	purposes.
17	MR. MALLETT: Then--
18	THE COURT: He is Damien Echols' local counsel.
19	MR. MALLETT: Then we would join and renew his
20	motion for a continuance on the basis that a true
21	counsel appointed for all purposes needs more than
22	a weekend and breakfast meeting to prepare
23	for a Rule 37 hearing.
24	THE COURT: Well, ordinarily I would grant a
25	continuance if a new attorney came into the case at
	642
1	the outset. If -- if -- if he were here and no one
2	else were prepared and no one else were able to
3	proceed, no one else had questioned witnesses,
4	obviously, a continuance would be in order and would
5	be granted. Here, that is not the case.
6	You have been the lead attorney since the
7	beginning of this matter. Whether or not we've
8	appointed you or not, I certainly allowed you to
9	enter the case -- and your associate to enter this
10	case -- and to represent Mr. Echols. So you have
11	been given Court authority and -- and --tantamount
12	to an appointment. The only thing that's short of
13	that appointment is that the court has not undertaken
14	to pay you as an indigent attorney -- attorney for an
15	indigent person. And you indicated to me that that
16	was not necessary and that you were doing so pro --
17	pro bono and that there were funds to -- to pay your
18	out-of-pocket expenses. And the Court's got some
19	serious question about the funds that are being
20	received and where they're going and what the
21	accounting for it is. But those are side issues that
22	xxxxx don't matter a whole lot.
23	I think we've made a sufficient record on the
24	point of proceeding. I'm ready to proceed and let's
25	call your next witness.
	643
1	MR. MALLETT' Again, your Honor, I do apologize
2	I know the Court's impatient and anxious to proceed
3	--
4	THE COURT: No, I'm not impatient. I just --
5	we've got a limited amount of time. Let's use it.
6	MR. MALLETT: The -- the new point I wish to
7	comment upon is that the state's answer to our motion
8	for a continuance represented that Mr. Echols was
9	represented by two experienced attorneys with
10	reference to capital proceedings, and I would like to
11	indicate to the Court that Ms. Martin was licensed by
12	the State Bar of Texas in the fall --I think,
13	November or October of 1997 -- and she's indicated to
14	me that her nightmare would be finding Mr. Dunlap and
15	I and Mr. Schay all incapacitated and the Court
16	holding her responsible. I just wanted to indicate
17	to the Court that in the unfortunate that something
18	would happen to us --
19	THE COURT: Well, if something happens to you
20	and Mr. Schay and Mr. Dunlap and she's left all alone
21	paddling the canoe, I'd probably give her a
22	continuance.
23	MR. MALLETT: Thank you, your Honor.
24	THE COURT: All right. But that's not the case
25	before the Court right now.
	644
1	MR. MALLETT: But that'll make things better in
2	our -- in our camp.
3	THE COURT: Okay.
4	MR. MALLETT: And I appreciate it.
5	THE COURT: Right now, we've got a speed boat
6	with you at the helm. So it's not a sole canoe, so
7	let's -- let's go ahead.
8	MR. MALLETT: And, also, so the Court will
9	understand, Mr. Dunlap has stationed himself as far
10	as he can from us and still communicate with us
11	because I believe he still has a mild fever and a
12	cold. And I Just wanted the Court to know that if
13	he requires a break at sometime, that s not to get
14	some tactical advantage.
15	THE COURT: I told you when I appointed Mr.
16	Dunlap that he's got a mind of his own and that he's
17	an aggressive and capable defense attorney, and I'm
18	sure he can speak up for himself and will. If he
19	doesn't, it would be a great surprise to the Court.
20	MR. MALLETT: Moving on, if I may then, to
21	bookkeeping. With reference to our motion for
22	continuance that the Court denied in conference in
23	week, I received on the twenty-third by
24	facsimile transmission dated -- timed 2:29 P.M. or
25	fourteen hundred and twenty hours and twenty-nine
	645
1	minutes, a response from Kelly K. Hill, Deputy
2	Attorney General, in the Arkansas Supreme Court, and
3	and part of her pleadings in opposition to allow
4	us to obtain leave of the Arkansas Supreme Court that
5	our Notice of Appeal was filed premature. And I
6	think we can clean this up on the record if we could
7	today. I would not want Mr. Echols subsequently to
8	be deemed to have made some strategic decision and
9	not pursue interlocutory relief --
10	THE COURT: Are you talking about pleadings that
11	were filed with the Supreme Court?
12	MR. MALLETT: I'm talking about a Notice of
13	Appeal that was filed here. I think I can explain if
14	I can only take about one more minute.
15	THE COURT: All right. Go ahead.
16	MR. MALLETT: We filed for a Notice of Appeal --
17	MR. DAVIS: What you're referring to though is
18	the response filed by the Attorney General's office
19	in response to --
20	THE COURT: To your Motion to Stay. Is that
21	what you're talking about?
22	MR. MALLETT:  That's correct, your Honor. And
23	on page four at footnote three the Attorney General
24	---- inadvertently, I think -- because it wasn't Mr.
25	Newton's writing, but another lawyer --
	646
1	THE COURT: I don't have that pleading.  It
2	didnít come to me.
3	MR. MALLETT: That's correct, your Honor, but
4	the Court I think will remember that we had a
5	telephone conference --
6	THE COURT: We had a telephone conference, and I
7	made rulings and the agreement was that Mr. Newton
8	would reduce that -- that -- that -- the findings
9	that the Court made to a written Order, and he did so
10	and as soon as I got it, I signed it and he did so
11	back to him, and then you called me, and then I had
12	a great deal of difficulty getting through to your
13	fax machine, but after about three or four tries, I
14	think I got the whole thing to you, didn't I?
15	MR. MALLETT: Yes, your Honor, and I believe
18	that that was on the twentieth of October.
17	THE COURT: Oh, well, it was the next day, I
18	think -- or two days later. I'm not sure.
19	MR. MALLETT: And we subsequently presented an
20	amended Notice of Appeal after the time of your
21	xxxxxx.   And we've -- we've -- we've looked at it
22	today and found it in the Clerk's file and I think
23	Clerk had not -- I think it had not been entered
24	of record.
25	THE COURT: Well, I mean -- those -- I think
	647
1	that's really moot. I mean, it was appealed. My
2	ruling on the continuance was appealed, and the
3	Supreme Court heard it and ruled on it. So, I mean,
4	that's -- the record ought to be clear on that.
5	MR. MALLETT: There might be a time in a
6	different court where we would want to be sure that
7	we didn't make a procedural default or procedural
8	error because we filed the notice prematurely.
9	Could I have Mr. Dunlap explain what he learned
10	when he looked at the Clerk's file?  if youíll look there in the file
11	MR. DUNLAP: Your Honor, there was a -- I think
12	if you'll look there in the file--I've got it file
13	marked -- there was a facsimile -- I want to say it
14	was dated October the -- the twentieth and in the --
15	it was --
16	THE COURT: Was that Wednesday? That's the day
17	I left to go to Fayetteville, so I'm sure --
18	MR. DUNLAP: But anyway, a copy of your -- of
19	your Order was never denied, and the continuance was
20	never filed. There was--the facsimile was from
21	Mr. Mallett's --
22	THE COURT:   Well, it was filed because I signed
23	it. So I guess the record can reflect that the
24	Motion and the Order were filed before the Court by
25	facsimile and that the Court entered an appropriate
	648
1	Order and that it was timely filed and that the
2	continuance was -- that the appeal of the -- or the
3	Motion to Stay -- the continuance was properly and
4	timely filed. So the record should so reflect, and
5	the Supreme Court appropriately ruled -- I think,
6	Saturday sometime, wasn't it -- Saturday morning.
7	Okay.
8	MR. MALLETT: And then I note -- and then that
9	we filed an Amended Notice of Appeal and I want it
10	understood and I talked to Mr. Newton about this, I
11	believe --
12	THE COURT: I don't think there's any dispute or
13	problem with it.
14	MR. MALLETT: -- that we filed our Notice of
15	Appeal after the Court denied relief so that we were
16	not premature in filing our Amended Notice of Appeal.
17	THE COURT: Well, there's no question about it.
18	MR. MALLETT: I didn't think there was any
19	question until I read the state's pleading in the
20	Arkansas Supreme Court, and that's why I'm raising it
21	here. And I think Mr. Newton will agree that the law
22	of the case will be that the Amended Notice of Appeal
23	was timely filed.
24	THE COURT: I haven't read those pleadings. I
25	don't know. I just knew that you chose to appeal the
	649
1	denial of a continuance and that you did so and that
2	an order was entered. So as far as I'm concerned,
3	the record in this court could reflect that you took
4	the denial of the continuance up on a Motion to Stay
5	and that was likewise denied, and it was timely
6	filed, including any amendments you might have filed.
7	All right.
8	MR. MALLETT: Thank you, your Honor.
9	Shall I move the lectern over and --
10	THE COURT: Yeah, sure. Put it wherever you're
11	comfortable with it.
12	MR. MALLETT: I'd like to ask Mr. Price to come
13	down here.
14	One minute, your Honor, I need to admonish
15	witness.
16	THE COURT: Well, there are a whole bunch of
17	people, I assume, are witnesses in the courtroom.
18	Is the rule being requested by anybody?
19	MR. DAVIS: Yes, your Honor.
20	THE COURT: All of you that know yourselves to
21	be witnesses in this case, please stand. All the
22	witnesses please stand.
23	THE WITNESSES:  (COMPLYING)
24	THE COURT: Any other witnesses in the
25	courtroom?
	650
1	Is that it? All right, gentlemen, you need to
2	step outside. Yes, sir, you'll have to step outside,
3	too.
4	MR. MALLETT: Could we ask that we not have
5	transmitting or recording devices other than the
6	official Court Reporter?
7	THE COURT: As far as I'm concerned, that --
8	that -- that doesn't even need to be said. But, yes,
9	in view of what happened the other day, that would be
10	--
11	THE COURT REPORTER: They've already gone so
12	they didn't hear you.
13	THE COURT: Have the bailiff inform the
14	witnesses that they're not to in any way attempt to
15	hear, overhear, or record any conversation taking
16	place in the courtroom.
17	MR. MALLETT: I've been reminded -- housekeeping
18	again, Just for the record -- the Motion to Recuse
19	asking the Court -- the Court -- we would renew that
2	0   for the record, your Honor.
21	THE COURT: I'll renew my ruling. That's
22	sealed. And there's no precedent for it. In fact
23	the trial court is expected under our rules of law
24	to hear matters involving post-conviction hearings,
25	and that's what I'm here to do. And all this talk
	651
1	about whether it'll go before another tribunal is
2	premature, too, because I'm listening to what you've
3	got to say.
4	MR. MALLETT: Thank you, your Honor.
5	MR. DUNLAP: Your Honor, if I may before we get
6	started, I have a habit of when the Court has ruled
7	of saying, thank you, or I understand the Court's
8	ruling, I don't intend for that to mean in any way
9	that I'm waiving any objections to the Court's
10	rulings.
11	THE COURT: I thought when you said, Thank you
12	Chet, that meant you were pleased with the ruling
13	( LAUGHTER. )
14	MR. DUNLAP: I'm sorry.
15	THE COURT: And I'll -- I'll put that down. In
16	the future when you say, thank you, that's just a
17	matter of habit and that you're not pleased with the
18	ruling.
19	MR. MALLETT: Let the record reflect that when I
20	thank you, I mean I am pleased that the Court
21	has ruled, but Iím not necessarily pleased with it.
22	THE COURT: Well, you won't have any trouble
23	getting a ruling.   You may not be pleased with it, so
24	--
25	MR. MALLET: Yes, your Honor, I do that out of
	652
1	habit and and courtesy and not -- not to waive the
2	objection.  I think the Court understands.
3	THE COURT: Well, that's what I've always
4	accepted it as as a matter of courtesy. But since
5	Mr. Dunlap wanted to be clear that he wasn't waiving
6	any objection, we'll let the record reflect that
7	when he says, thank you, it's mere form. All right.
8	MR. MALLETT: Your Honor, in reviewing our
9	pleadings, I discovered that we have covered most of
10	the issues that we raised in our pleadings, and I'll
11	not go back into those.
12	THE COURT: Well, I'd appreciate that.
13	MR. MALLETT: There are some issues in our
14	pleadings that I believe we do not wish to abandon
15	and have not reviewed. I spoke to Mr. Price -- I
16	think it was probably Saturday just after the Motion
17	for Continuance was denied -- and indicated to him
18	that I would have some questions in areas where he
19	had not previously testified.
20	.   THE COURT: All right.
21	MR.  MALLETT: With the Court's permission we'll
22	xxxxxx under that.
23	THE COURT: Yes, sir.
24	MR. MALLETT: I'm gonna direct the state's
25	attention, if I may, and the Court's, to our
	653
1	pleading where on page three on the Second Amended
2	petition for Relief under Arkansas Rules of Criminal
3	procedure 37, we plead as a complaint that counsel
4	was constitutionally ineffective in the guilt stage
5	for failing to preserve an adequate record of the
6	jury voir dire. That's the subject I want to start
7	with this morning, if I may.
8	THE COURT: All right.
9	VAL PRICE
10	having been first duly sworn to speak the truth, the whole
11	truth, and nothing but the truth, then testified as follows;
12	CONTINUED REDIRECT EXAMINATION
13	BY MR. MALLETT:
14	Q.  Mr. Price, I recall from your earlier testimony that when
15	the time came to work on the direct appeal of the case, the
16	lawyers divided the record amongst themselves. Each of the
17	four lawyers working on the appeal on behalf of Echols and
18	Baldwin, being by agreement assigned to read separate quarters,
19	more or less, of the record, and then there was perhaps some
20	sharing of information and some of you had selected portions
21	of record but that no defense team -- and per agreement --
22	xxxxxxxxxxxxxxxxxxx record on appeal on be half of Mr. Echols. Is
23	that correct?
24	A.     I mean -- it was up until the last phrase that you
25	mentioned. I mean, I read the entire transcript. So your
	654
1	statement that the defense team did not read the entire
2	transcript, that's incorrect.  But we did -- essentially,
3	you're correct.  We broke it up. There was about four thousand
4	pages, and each one of us took about a thousand pages of the
5	transcript to do the abstracting of.
6	Q.    We have talked earlier about the fact that no issues
7	relating to jury selection were raised on appeal.
8	A.    Yes, sir, that's correct.
9	Q.    And, as I recall, your explanation for that was that you
10	did not utilize all of your strikes.  So that a complaint about
11	the Court's ruling on perhaps a challenge for cause would not
12	be reviewable on appeal because you could have overcome my
13	harm by using a peremptory in such a case where you had
14	peremptories to use, and since you didn't use all of your
15	peremptories, there was no possibility of reviewing the Court's
16	rulings on jury selection. Is that correct?
17	A.    Yes, sir, that's correct.
18	Q.    Too many words, but you understand what I'm saying?
19	A.    Yes, sir.
20	Q.    Okay.  Did  you then read in preparation for the appeal the
21	transcripts on the jury selection portion of the trial?
22	A.    No, sir.
23	Q.    So when you say you read the entire record, you mean to
24	indicate you read the entire record from opening statements
25	through jury argument?
	655
1	A.   Well, the entire record on appeal. We did not designate
2	the voir dire as---as part of the record on appeal, and that
3	was not prepared.
4	Q.    But you were in the courtroom when in these proceedings it
5	was agreed that the record would be supplemented with the
6	addition of the voir dire portion of the jury trial?
7	A.    On the Rule 37?
8	Q.    In the Rule 37.
9	A.    I -- yeah, I -- I was either in the courtroom, or I was
10	aware of that.
11	Q.   Let me read to you e few short portions of the jury
12	selection portions which is now part of the record.  I'm on
13	page numbered fifteen of a transcript dated February twenty-
14	second and twenty-third, 1994. Beginning at line eight --
15	and I believe that this is the Honorable David Burnett,
16	presiding Judge.
17	ìQuestion. This is a criminal case, of course. I'm sure
18	all of you know that. But in a criminal case, it's the duty
19	of the state to produce the evidence to convince you of the
20	defendant guilt beyond a reasonable doubt. Do each of you
21	understand that?
22	ìAnswer:  No audible response.
23	ìQuestion. Will you require the state to meet its burden
24	of proof?
25	ìAnswer: No audible response.
	656
1	ìQuestion.  That is a satisfy you by the evidence beyond
2	a reasonable doubt of the defendant's guilt.   Do each ---do you
3	each understand that.
4	ìAnswer.  No audible response.
5	ìQuestion. And that -- and in that connection while each
6	of the defendants are on trial jointly, your verdicts must be
7	individual to each of them. Do you understand that as well?
8	ìAnswer. No audible -- no audible response.
9	ìQuestion. In a criminal case in our system of justice we
10	have what we call the presumption of innocence. That is, as
11	you sit in the jury box right now and throughout the trial, if
12	you look over at either of these defendants that I have
13	identified, you should have in your mind the presumption of
14	innocence. That is, they are innocent or should be innocent in
15	your mind unless and until you are convinced by the evidence of
16	their guilt beyond a reasonable doubt. Do each of you
17	understand the concept of presumption of innocence?
18	ìAnswer. No audible response.
19	ìQuestion. And can each of you give the defendants the
20	benefit of that presumption?
21	ìAnswer---  no  audible response. .
22	xxxxxx, goes into discussion with an individual
23	juror.
24	The portion that I have read to you is a portion that you
25	probably have never read in your life. Is that correct?
	657
1	A.    That's correct
2	Q.    And you were probably unaware that the Court Reporter
3	recorded no response from anyone on the panel with response to
4	the questions that I have read.
5	A.   That's correct.
6	Q.   On pages eighteen and nineteen, the Court raises the
7	important question about publicity -- which we did discuss
8	earlier -- with respect to raising -- to making a record of
9	jury voir dire. I'll start on page eighteen at line seventeen.
10	ìWe're asking you to disregard what youíve read , seen and
11	heard, and, of course, as you sit there, you're the ones
12	that know whether you can do that. And it's important that a
13	person have a fair and impartial trial and that your mind
14	should not be made up from outside influences.
15	ìIn fact, you will be told by the Court today that you're
16	not to read any news account, listen to any radio account, or
17	watch TV or let anyone -- family members, brothers, sisters,
18	spouses, children, anyone else -- influence your opinion in
19	this case from this day forward. Do each of you understand that?
20	Answer:  No audible response.
21	Question: Do each of you feel that you are prepared to
23	listen to the evidence and let your mind be -- your decision in
24	this case be -- determined by what you hear in the courtroom
25	and the law given you by the Court? Will each of you do that?
	658
1	ìAnswer.   No audible response.î
2	Then the jury goes off to a discussion with the lawyers
3	about the-witness list.
4	That's the first time you have known that a response to
5	the Court's questioning of the panel, the Court Reporter
6	recorded for any appealing court, no response from those on the
7	panel. That's the first you've heard that?
8	A.   Yes, sir.
9	Q.   And finally, at the bottom of page nineteen, he resumes on
10	line twenty-two. Judge Burnett says, "All right, ladies and
11	gentlemen, let me ask it this way: Do any of you --there are
12	a number of persons that have been identified as witnesses.
13	Many of them, of course, are not from this area. Do any of you
14	know of any person or had any conversation with any person that
15	purported to be a witness or a person that had firsthand
16	information about this case?
17	ìAnswer. No audible response.
18	ìQuestion. I take it that none of you from your shaking
19	your heads and your blank looks that you haven't talked to any
20	persons
21	"Answer. No Audible response.î
22	Do you have  a memory, as you now look back at the Court's
23	questioning of the panel, that the citizens assembled there for
24	jury selection were shaking their heads and keeping blank looks
25	through jury selection? Was that, as you remember, the way
	659
1	it went ?
2	A.    Just ---and this would mainly be by speculation. It's
3	quite common for jurors to nod their head particularly when --
4	when a judge is asking questions during voir dire. And I
5	could speculate that that -- that may have been happening then.
6	I'm -- I don't know for sure of that.
7	Q.    And you don't -- and, of course, this is all speculation,
8	so you don't know whether that reads everybody on the panel
9	snaking their heads, five people shaking their heads, everybody
10	having a blank look, two blank looks. We have no idea what was
11	going on from-- on the basis of the record collected do we?
12	A.   On the basis of -- well, I thought that when,  we did the
13	voir dire we were doing it in groups of three or four in the
14	back. You know, I know sometimes I've had cases where the
15	judge -- including Judge Burnett -- will voir dire the entire
16	panel with general questions, and then we go in the back with
17	specific questions. I thought in this case that we -- we --
18	the Judge did all of the questioning, including the ones that
19	you were reading, in the back, but again, I -- since I haven't
20	looked at the transcript,  I donít --I don't know for sure
21	THE COURT: My recollection is I asked the
22	general questions -- the general voir dire that
23	you're going over -- in the open courtroom in groups
24	of twelve or eighteen -- I don't -- whatever number
25	we called. Then we went back into the back three at
	660
1	a time, I believe, and asked individual questions.
2	And while there was no audible response, the Court
3	was addressing the jurors en masse, and if there were
4	any responses in the negative, that would have been
5	recorded. And I think you'll probably find some
6	responses if you go through the whole thing.
7	Did the state waive an objection to -- to
8	opening up voir dire? Voir dire was not a matter of
9	a -- that was even subject to an appeal to the
10	Arkansas Supreme Court because the challenges--
11	peremptory challenges -- were not exhausted .   That
12	used to be the Arkansas law. Does the state care one
13	way or the other? I mean, I'll go ahead and listen.
14	MR. MALLETT: I think that --
15	THE COURT: I don't know that that's any basis
16	for -- for a reversal or an appeal.
17	MR. MALLETT: To -- I believe that in these
18	proceedings, your Honor, we complained in our
19	Petition of defense counsel failing to preserve an
20	adequate record of jury voir dire. That's where I am.
21	xxxxxx
22	THE COURT: Well, but the record was kept. He
23	just didn't designate that record for appeal purposes
24	because they had not exhausted their peremptory
25	challenges, and that's the point I'm raising now.
	661
1	If you think there's something to it for one of those
2	future ventures that you've got in mind, well, go
3	ahead
4	MR. DAVIS: Your Honor, the state's response to
5	their Petition -- that particular allegation of Rule
6	37 -- was that they basically -- that the defense did
7	not use all of their strikes, therefore, there is a
8	presumption that the jurors were fair and unbiased
9	and, therefore, that the failure to designate that
10	portion of the record was of no consequence in terms
11	of--
12	THE COURT: Well, that's what I'm pointing out,
13	Mr. Davis. If Mr. Mallett wants to tell me what
14	issues before me now would bear on that question,
15	I'll be happy to listen to it. But, I mean, I can't
16	see that failing to designate the record that was
17	made of the voir dire has any significance in this
18	post-conviction hearing at all. But if you can
19	convince me it does, I'll be happy to hear it.
20	MR. MALLETT: The jury selection has now been
21	xxxxxxxded to the record for Rule 37 proceedings. We
22	did that earlier.
23	THE COURT: Yeah. I -- I understand that.
24	MR. MALLETT:   And when we have an opportunity to
25	present our briefing -- if we do -- then we would
	662
1	brief for this Court the entitlement of a person
2	facing a possible sentence of death to a jury that is
3	qualified under Witherspoon and other cases so that
4	those who would automatically give the death penalty
5	in any case in which they found the person guilty, or
6	automatically give life, in any case in which they
7	found the person guilty --
8	THE COURT: We did the Witherspoon.
9	MR. MALLETT: -- would be excluded. And we're
10	suggesting that the absence of any audible responses
11	to critical questions of -- really -- questions at
12	the very heart of whether a person can get a fair
13	trial at all --
14	THE COURT: Well --
15	MR. MALLETT:  -- leaves a silent record as to
16	whether the panel is qualified under these important
17	Supreme Court decisions.
18	THE COURT: You're not gonna find a silent
19	record on the Witherspoon questions. Those
20	questions were asked, as I recall, in -- I might have
21	asked 'em out here, but they were asked in detail in
22	Chambers and that is recorded and they did give
23	Verbal responses to the Witherspoon test
24	So, go ahead.
25	MR. MALLETT: Well, I suppose the record will
	663
1	speak for itself on that.
2	THE COURT: Well, it should
3	MR. MALLETT: All right.
4	BY MR. MALLETT:
5	Q.    In connection with this process of observing and listening
6	as the Judge is qualifying the panel on publicity, prior
7	knowledge of the case, knowledge of witnesses, Witherspoon,
8	all these other things, when it came time for the lawyers to be
9	able to supplement the Judge's general questions with the
10	lawyers conducting their own interrogation of the prospective
11	panels, did Judge Burnett place any time limits on you, or
12	restrict you as to time and number of questions in any way?
13	A.    No, I don't believe so.
14	Q.    So that if you had wanted to go into some area where there
15	were no audible responses where you were dissatisfied with the
16	certainty of the response, you were free to go further had you
17	chosen to do so?
18	A.    Yes, sir.
19	Q.    It would be the attorney's responsibility because the
20	Judge did not limit you in any way at all?
21	A.    That is correct.
22	Q.    Thank you. And in that process, likewise, the Judge did
23	not limit you as to the topics about which you could question
24	prospective jurors, correct?
25	A.    I believe that's correct.
	664
1	Q.    Now I have read in the Opinion of the Arkansas Supreme
2	Court on this case that it was the theory of defense propounded
3	by --- propounded on behalf of Mr. Echols at trial that the
4	state's effort to offer testimony about Satan or Satanism and
5	cults -- groups of people that worship religions other than the
6	Christian religion or the Jewish religion -- and trappings of
7	the occult -- I'm not quite sure what that means -- but I know
8	it was in the Dale Griffis testimony.
9	A.    Right.
10	Q.    I read in the Arkansas Supreme Opinion that it was
11	the theory of defense on behalf of Mr. Echols that this
14	on that?
15	A.    I believe that's correct.
16	Q.    Was there a -- a ruling -- any ruling of the Court that
17	restricted you from asking prospective jurors what beliefs they
18	had about the activities of so-called occult groups? Did the
19	Court restrict you from going into that on voir dire?
20	A.    I believe hat there was a Motion in Limine that had been
21	Filed on behalf of Mr. Baldwin's lawyers dealing with the
22	Occult questions.  We were not directly a part of that. That
23	was done at one of the pretrial hearings. So-- and think
24	the Judge had made a ruling and related to the occult questions
25	in connection with that. But as far as -- I don't recall -- I
	665
1	don't think the day of our voir dire the Judge restricting us
2	specifically on any -- any of these areas.
3	Q.   Assume for me hypo -- with me hypothetically because the
4	record will speak for itself. I'm not -- I'm not trying to
5	test your memory. So assume hypothetically that the record
6	reflects that at the voir dire portion of the trial on behalf
7	of Mr. Echols, you and Mr. Davidson did not ask the jurors Of
8	any prior knowledge of so-called satanic groups or practices.
9	That would have been a decision the lawyers made, not a
10	consequence of any Order or ruling imposed by the Court.
11	A.   Yes sir
12	Q.   And -- and continuing, assuming the hypothetical.  If
13	there was no questioning of prospective jurors about someone
14	named Allister Crowley and someone named Anton Lavey, that
15	would have been a result of the decision of the lawyer, not
16	some rule imposed by the Court?
17	A.   Yes, sir.
18	Q.   And if you didn't ask anyone on the panel if they had any
19	knowledge of so-called cults or occult groups existing within
20	(xxxxxxxxxxxxxxx) of the court, that would be a decision that
21	the lawyer made, not a consequence of something the Judge
22	examined?
23	A.  Yes, sir.
24	Q.  How as a strategic decision did it help Damien Echols
25	defend his presumption of innocence and ultimately argue for
	666
1	a finding of not guilty for you to seat a jury without asking
2	anyone on the panel their knowledge or thoughts about these
3	subjects.-- Allister Crowley, Anton Lavey, Satan worship,
4	cults, the occult -- how as a strategic matter did it help
5	Damien Echols for you to leave that out of jury selection
6	entirely?
7	A.    Well, first of all, at that time, we didn't know exactly
8	what the state's evidence was gonna be concerning those issues.
9	Dr. Griffis -- you know, we had -- we were not aware of Dr.
10	Griffis at that point. We were not aware of what his testimony
11	was gonna be at that point. In addition, the -- there was the
12	testimony that came in about the -- during the trial about the
13	writings that -- I believe that Damien had -- some writing that
14	was found in his personal items at the jail and -- I forget, it
15	was either Lavey or Crowley's name was on that. That was
16	evidence we were not aware of until we got into the trial. You
17	know, we decided not to ask the -- the Jury about those areas.
18	Q.    I'm not clear on your answer, so I'm gonna break it down a
19	little bit.
20	A.    Sure
21	Q.    xxx  saying that the state's possession of the exhibits
22	that they xxxx and admitted to trial was withheld from you
23	until during the trial as to the exhibits with the writings of
24	Crowley and Lavey?
25	A.   Yes, sir, that's correct.
	667
1	Q.    Were they under some rule of open discovery or disclosure
2	that allowed them to withhold these materials until during the
3	trial?
4	A.    Were they -- were they -- repeat your question.
5	Q.    Were -- were they acting in accordance with the rules of
6	pretrial discovery in your case?
7	A.    No, sir.
8	Q.    All right. So they surprised you with some stuff --
9	A.    Right.
10	Q.    -- that should have been disclosed?
11	A.    That's correct.
12	Q.    All right.  And then a second subject introduced by your
13	answer a moment ago about, we didn't know what the state of
14	the evidence would be, makes me want to know: Did you decide
15	before the trial that you wanted all of this material in so
16	that you could refute it?
17	A.    Not necessarily. I mean, we thought their theory that
18	this was a satanic killing was ludicrous, and part of their
19	theory was -- and this goes back to what Griffis had testified
20	xxxxxxxxxx satanic killing because the Satanists clean
21	everything up at the crime. And we thought the fact that
22	there was  xxxxx at the crime scene -- the difference between
23	deductive and inductive reasoning.   We didn't think that by
24	asking a lot of questions about what people think of the occult
25	-- you know -- we didn't think anyone would -- would give us an
	668
1	answer that they're favorable -- they're in favor of the
2	occult, and we didn't know exactly what evidence would be
3	coming in during  the trial. And so -- so that's why we didn't
4	ask the questions of the jury about the occult.
5	Q.    Did you have any rulings from this Court excluding you
6	from letting this in as part of your defense of Damien Echols?
7	A.    No, sir.
8	Q.    All right. So you wanted it to come in pretrial and you
9	had no order excluding it from coming in pretrial?
10	A.   Well, I mean, you're -- you're lumping -- which evidence
11	are you referring to?
12	Q.   Evidence about satanic worship, occult groups.
13	A.   Well, I mean, some -- some of that evidence that came in
14	during the trial we objected to. There was the group evidence
15	that -- that writing -- I believe the -- I'll kind of break it
16	-- there was some items that -- I think the writings of Mr.
17	Echols two years before that were found in his room, we
18	objected to those during the trial based -- based on relevancy.
19	There was some other items that came in that were about a year
20	prior to trial and  objected to those when they come -- came
21	in also as is relevancy because it was our theory that items
22	that xxxxxx had in his possession a year or two before the
23	murders were not relevant to the motives of killing somebody
24	two years later.
25	Q.    Maybe we're not communicating.
	669
1	I mean you're referring to the satanic evidence which is
2	---
3	Q.    Iím trying to figure out if you wanted it in pretrial and
4	then chose to not voir dire the jury on it.
5	A.   Well, there's different -- I mean, you're talking about
6	evidence in general. There's a -- there's a bunch of evidence
7	in there. I mean --
8	Q.   Any evidence. Did you want any of that evidence in
9	pretrial?
10	A.    Some evidence -- some evidence we did. Some evidence we
11	didn't .
12	Q.   And what is the reason -- the tactical reason that helps
13	Damien Echols that you did not qualify the jury -- the jury as
14	to that evidence of the so-called occult -- whatever that is
15	-- and satanic worship -- whatever that is -- this -- this body
16	of what I consider to be vague and amorphous but very
17	prejudicial and inflammatory material. Was there some
18	strategic advantage to Damien Echols advanced by not asking
19	prospective jurors their feelings on those subjects?
20	A.   Repeat the question
21	Q.   Yes  xxxxing it that is the case as we read in the
22	Arkansas Supreme Court Opinion that you wanted this material
23	--material in  about cults, the occult, and Satanism, was there
24	some reason--
25	A.    Well, I mean, that -- that's not correct. Because as I
	670
1	Just stated in my earlier answer, we did object to some of that
2	evidence as it was coming in. So that's -- that's not correct.
3	Pretrial what did you want in -- what was your theory of
4	the case relating to this material? Did you want to keep it
5	out, or did you want it in?
6	A.   It depended what evidence they were gonna put forth.
7	Q.   You hadn't decided on your theory of the case at time of
8	jury selection. Is that what you're saying?
9	A.   No, that's not what I'm saying either. We didn't know
10	specifically what evidence they would be admitting, what
11	evidence they would not be admitting, we--they had a book
12	that talked ---that was given to law enforcement officers in
13	dealing with investigation of satanic cases that had on the'
14	back cover of it, you know, this is only for law enforcement
15	officers, don't release this book to the general public. And
16	that was evidence that we thought would be favorable because we
17	thought that was absurd to have something that the police could
18	read but not the general public.
19	Q.  You knew about that pretrial?
20	A.  No I think that specific book came--we--we weren't
21	aware of that until the trial got rolling
22	xxxxxxx what evidence did you anticipate the jury would
23	hear on the subject  of the occult or Satanism or anything
24	within what I would call the non-Christian, non-Judeo Christian
25	traditions? What did you anticipate?
	671
1	A.   We anticipated that there would be the eighteen questions
2	that were asked by the off -- the law enforcement officers with
3	almost every witness that they interviewed, and there were two
4	or thro -- two or three questions in that group dealing with
5	Satanism and the occult and we anticipated that -- that
6	evidence would be -- that they would be bringing that in
7	because we knew that they -- they had asked those questions of
8	almost anybody that was interviewed.
9	Q.   All right. At least that much and then anything that came
10	out as a result of that?
11	A. Right.
12	All right, there some strategic reason that would
13	assist Damien Echols' defense that you neglected or Chose to
14	not ask the prospective Jurors their feelings on that subject
15	that was embodied within those questions you just described?
16	A.   Yes, sir.
17	Q.   What was the reason?
18	A.   We -- we decided not to ask 'em those questions.
19	Q.   For what reason?
20	A.   ëCause we didn't think it was important at that time
21	Q.   xxxxxx I promise you I wouldn't test your memory and
22	xxxxxxxxxx  approach it that way: In this whole discussion that
23	we had in the  previous proceeding where we talked about the
24	contract with Home Box Office, there was a question left
25	pending, and I don't know if you've had a chance to look --
	672
1	look it up yet.  I -- the question left pending was: Were you
2	ever shown the questions that Damien Echols was going to be
3	asked in advance?  I think your answer was, ìI'm not sure. We
4	could look that up."
5	Have you had a chance to look that up?
6	A.   No, sir.
7	Q.  Okay. I'll stay away from that if you didn't -- as I say,
8	I thought maybe we had an answer by now.
9	Oh, and another related question is: Is it your view that
10	Home Box Office today still owes for the trust account of Mr.
11	Davidson twenty-five hundred dollars to Damien Echols?
12	Yes, sir.
13	Q.   Let me go on to a different topic.
14	THE COURT: As long as it's not vague and
15	amorphous.
16	MR. MALLETT: How do you spell amorphous, your
17	Honor?
18	THE COURT: I don't know.
19	MR. DAVIS: It doesn't matter, your Honor, the
20	prosecutor doesn't know what it means. (LAUGHTER.)
21	MR. MALLETT: I think it's a form of Grecian urn
23	THE COURT: Well, you used it.
24	MR. MALLETT: -- used to store the ashes of a
25	dead --
	673
1	THE COURT REPORTER: He shouldn't be using
2	it if he doesn't know how to spell it. (LAUGHTER.)
3	THE COURT: Lord, I wouldn't be able to speak if
4	I had to spell everything.
5	BY MR. MALLETT:
6	Q.   Going back to our Amended Petition. I am looking to
7	assist the state at Section B, Topic Number Eight which is on
8	page four. The subject is Michael Carson. Now that I've had a
9	chance to read the transcript of the testimony of the trial at
10	least once, I gleaned that Mr. Carson had been a client of
11	yours in a juvenile proceeding before the time that you were
12	appointed to represent Mr. Echols.
13	A.   Yes, sir.
14	Q.   Is that right?
15	A.   That's correct.
16	Q.   Was there ever a time that you discussed the prior
17	representation of the state's witness, Michael Carson, with Mr.
18	Damien Echols with a view to determining whether he would --
19	Mr. Echols would waive any appearance of a conflict of interest
20	that might exist from a jury-- if a jury heard that you had
21	been a counsel for a stateís witness?
22	A.   I don't know if I specifically discussed that with
23	Damien or not.
24	Q.   I would like to indicate to you that -- I believe the
25	record will bear me out -- that when the subject came up and
	674
1	was mentioned for the first time to Judge David Burnett who was
2	presiding and he heard this for the first time, there was a
3	representation  made that Mr. Scott Davidson would cross examine
4	Mr. Carson. Do you recall something like that happening?
5	A.   Recall --
6	Q.   Telling Judge Burnett that Scott --
7	A.   -- that conversation or Mr. Davidson --
8	Q.   -- Davidson -- about telling Judge Burnett that Scott
9	Davidson would cross examine Mr. Carson?
10	A.   I  recall -- yes, sir.
11	Q.   And do you recall then that Mr. Davidson, in fact, did not
12	cross examine Mr. Carson, and there were no question asked of
13	Mr. Carson?
14	A.   That's correct.
15	Q.   Were you then within your mind possessed of information
16	that could have been used if it were permitted to impeach Mr.
17	Carson and make it appear that he is a person less likely than
18	the average law abiding and honest citizen to tell the truth
19	under oath? Did you have any impeachment material known to
20	you ?
21	A.   xxxxxx?
22	Q.   xxxxxxxxxxx  asking you what it was
23	A.    I don't believe so. We -- we decided not to cross examine
24	Michael Carson.
25	Q.   Was that the reason that you chose not to cross examine
	675
1	Michael Carson in part that you were not permitted by the Order
2	Of the court to call the probation officer, Mr. Danny Williams?
3	A.   No, sir
4	Q.   Did you speak to Mr. Williams about what his testimony
5	might be if he were permitted to testify?
6	A.   Yes, sir.
7	Q.   And so you did have some idea of what his testimony would
8	be if he were allowed to testify?
9	A.   Yes, sir.
10	Q.   And if I may be so bold, as one who has never spoken to
11	Danny Williams but has read the record in the case was the
12	essence of that testimony -- potential testimony --as followers
13	Everything Michael Carson knew he learned from Danny Williams?
14	A.   Yes, sir, that's correct.
15	Q.   Were you barred then from presenting the testimony that
16	Mr. Carson was testifying to what he heard from Danny  Williams
17	by the Arkansas rule that the communications with a juvenile
18	officer are confidential? Is that what barred Mr. Williams
19	from putting on that testimony?
20	A.   We never saw Mr. Williams' testify. Mr. Baldwin's lawyers
21	did  xxxxxxxxx Carson's testimony was not admissible against
22	Mr. Echols and therefore, we made the tactical decision not to
23	cross examine him, nor to seek an impeachment of -- by Mr.
24	Williams.
25	THE COURT: I think I gave a cautionary
	676
1	instruction to the jury that -- that Carson's
2	testimony was not applicable to Mr Echols but
3	applied to Mr Baldwin I believe the record will
4	reflect that.
5	And, also, in -- in -- we conducted a hearing on
6	the probation officer's testimony, I think out of the
7	presence of the jury because -- the record should
8	show tender or at least an in camera hearing with him
9	giving testimony.
10	MR. MALLETT: I -- I suspect that's where I got
11	the essence of -- of what he would have had to say if
12	the jury could have heard it. That's probably where
13	I got it from, your Honor.
14	BY MR. MALLETT:
15	Q.   Do I understand then that -- that your recollection is
16	that you made what we call a strategic decision. You would
17	rather rely on the Court's limiting instruction -- which was
18	one choice -- than the alternate choice of disputing Mr. Carson
19	and saying, Mr. Carson, you're a liar. Baldwin never said that
20	to you
21	A.   Yes
22	Q.   You were not limited by Judge Burnett from attacking
23	Michael Carson.  That's a decision that you made, correct -- to
24	leave Mr. Carson unimpeached at least by Mr. -- the team of
25	Mr.  Davidson and Mr. Price -- that's a decision that you made?
	677
1	Yeah, that -- yes, sir, definitely.
2	Q.   Do you believe as a practicing trial lawyer with
3	considerable  experience in the courts that generally it's
4	better to rely on a -- that a jury will follow a limiting
5	instruction and that that is a better strategic decision than
6	-- hypothetically -- just destroying a witness and saying --
7	showing he's a complete liar?
8	A.    It -- it depends. I mean, generally it's better to
9	destroy the witness if you can do that.
10	Q.    And if that could be done, and if it were -- and if that
11	could be done, but it relied upon the testimony of the juvenile
12	probation officer, Mr. Williams, then that attack would have
13	been restricted because of a law in Arkansas protecting the
14	confidentiality of communications with a juvenile officer. So
15	-- fair statement?
16	A.   Well, not exact -- number one, Danny Williams officially
17	was not a juvenile officer. He worked with the Juvenile Courts
18	as a drug abuse counselor. But he was not a quote juvenile
19	probation or Juvenile intake officer. I mean --
20	Q.   Well then is there a privilege afforded communications to
21	drug abuse counselors?
22	A.  xxxxxxxx think that's ---that was what -- the basis of it
23	was.
24	Q.    Fine. So that what you were restricted by and this
25	balancing decision you had to make as a trial lawyer, whether
	678
1	to rely on a limiting instruction or whether to go after the
2	witness and try to destroy him --
3	A.   Go after -- go after Carson or Danny Williams?
4	Q.   To go after Carson.
5	A.    Go after Carson.
6	Q.    Your -- your -- your tool of destruction, in effect, was a
7	privileged communication which you could not use -- you were
8	restricted by the Arkansas privilege from using that weapon?
9	A.    I mean -- yes, sir. But -- but we were able -- I mean, we
10	felt we are able to get the best of both worlds. I gave my
11	file on -- notes about Carson to Baldwin's lawyers, and they
12	were able to use that to try to cross examine Mr. Baldwin
13	try to cross examine Carson. So we were able to have co-
14	counsel cross examine him because we didn't want to emphasize
15	-- you know, we felt if we would get up and cross examine him
16	then the Judge may say, this evidence is admissible against
17	Mr. Davis (sic). So that's why -- the outline that I prepared I
18	gave to Mr. Ford and Mr. Wadley and they used to cross examine
19	Mr. Carson.
20	Q.   xxxxxxx referring in part to the materials that you
21	xxxxxxxxxxx you were Mr. Carson's lawyer?
22	A.   xxxxxxxxrt yes, sir.
23	Q.   So you took the materials  that you accumulated while you
24	were Mr. Carson's lawyer and -- any
25	A.   Well, no. No, sir. I'm-- I misspoke. I didn't have any
	679
1	materials when  I was Mr. Carson's attorney. After I was
2	appointed on this case I obtained an Order from the Probate
3	Judge up in Lawrence County to get a copy of the juvenile
4	record of Mr. Carson.  And -- and so I got those after I had
5	represented him.
6	Q.   You had knowledge about Mr. Carson --
7	A.   Yes, sir, I had --
8	Q    Because you had been his lawyer?
9	A.    Thatís correct. Yes, sir.
10	Q.    You used the knowledge you had about Mr. Carson because
11	you had been his lawyer, and acting on that knowledge you went
12	and sought documents?
13	A.   Yes, sir.
14	Q.   You give the documents that were derivative of your
15	knowledge of Mr. Carson for co-counsel to use in cross
16	examining Mr. Carson?
17	A.   Well, co-counsel of the other co-defendant.
18	Q.   Counsel for the other defendant.
19	A.    Along with other material as well.
20	Q.    And then did not cross examine Carson at all?
21	A.    xxxxxx yes sir.  Right.
22	Q.    And  were protected by the cross examination of counsel for
23	a co-defendant and by the limiting instruction?
24	A.   Yes, sir.
25	Q.   And Carson, therefore, was not cross examined by you or
	680
1	Davidson--
2	A.    That's correct.
3	Q.    It was a matter of decision --
4	A.    Yes, sir.
5	Q.    -- when he -- when he said, Jason Baldwin confessed to me
6	in great detail, right?
7	A.   Correct.
8	MR. MALLETT: If I may retrieve a paper, your
9	Honor.
10	BY MR. MALLETT:
11	Q.    On page four of our Amended Petition at paragraph nine, we
12	present a complaint relating to the testimony of Officer Ridge
13	about Mr. Misskelley's statement. On earlier proceedings it's
14	been agreed for this record -- and I think you were in the room
15	---- that everyone available for jury service knew that
16	Misskelley had made a statement against penal interest. Were
17	you in the courtroom for some of that discussion?
18	A.   Yes, sir. Right. I remember it.
19	Q.   On page nine twenty-two you are asking the questions and
20	about xxx xxxx  and at the bottom of nine twenty-two--
21	MR. DAVIS:   Could I ask what volume this is?
22	.   MR. MALLETT: Yes, sir. If I could step over
23	and help --
24	(MR. DAVIS AND MR. MALLETT CONFERRING. )
25	BY MR. MALLETT:
	681
1	Q.   Very briefly to put this passage into context -- beginning
2	at the bottom of page nine twenty-two-- which is in volume
3	five -- you  were questioning and there's a conversation about a
4	stick.  And you asked on line twenty, ìSo that stick was not
5	the stick that was at the crime scene?"
6	And Officer Ridge answers, "Yes, it is the stick that was
7	at the crime scene.
8	ìQuestion. I guess I'm confused. At the time you did not
9	take that stick into evidence at the time that ya'll recovered
10	the bodies.î
11	Ridge answers, ìNo, sir. I didn't take this article into
12	evidence until the statement of Jesse Misskelley in which he
13	said" -- and at that point you are on your feet cutting him off
14	----
15	A.   Yes, sir.
16	Q.    -- at the word "said" because we know what's coming next.
17	A.    Right.
18	Q.   Don't we -- as trial lawyers?
19	A.   Yes, sir.
20	Q.   You xxxxx. You moved for a mistrial. That's denied.
21	The bench is approached. there's a conversation outside the
22	jury, and at the end of the conversation outside
23	the hearing of the jury, the proceeding picks up again, and
24	ultimately the Court gives a limiting instruction. And I think
25	it's many pages over, approximately nine thirty-four, that
	682
1	you're given-- the Court is giving a limiting instruction.
2	When you heard Mr. -- Officer Ridge come out with that
3	statement, --his statement -- "I didn't find the stick until
4	the statement of Jesse Misskelley in which he said" -- you, as
5	trial lawyer, knew that he was in violation of a Motion in
6	Limine restricting him from making any reference to the fact
7	that there had been a confess -- a statement against penal
8	interest by Jesse Misskelley. You were aware --
9	A.    Yes, sir. Yes, sir.
10	Q.    That's why you are objecting?
11	A.    Correct.
12	Q.    And you knew that you were doing everything you can--
13	could under the circumstances to keep that out of the trial.
14	A.    Yes, sir.
15	Q.    And you wanted that out of the trial because you wanted
16	your jury to have the evidence submitted to them as a body of
17	evidence in which there was nothing about Jesse Misskelley
18	making a confession?
19	A.   Yes, sir.
20	Q.   All right.  As you heard Officer Ridge making that
21	argument--making that statement, and you're cutting him off,
22	you  xxxx xxxxly  objection and then you talked about it with
23	the court, did you believe that Officer Ridge was---back up--
24	let me withdraw that and ask it this way.
25	You were aware as a lawyer who has handled appeals that an
	683
1	intentional--- an intentional wrong by the state --whether
2	it's the prosecutor or the state's witness -- is reviewed for
3	error more favorably  to the defendant than some accidental or
4	inadvertent statement. You knew that, did you not?
5	A.   Yes, sir.
6	Q.   All right. Was there any strategic decision that in the
7	record of proceedings with Judge Burnett in assisting him in
8	making a ruling and fashioning a limiting instruction, was
9	there any strategic decision on your part that you never
10	argued, your Honor, Judge Ridge -- Officer Ridge is doing
11	intentionally. Was there any strategic reason that you would
12	not argue that?
13	A.   Is that in the record that we did not argue that?
14	Q.  Did not.
15	A.   Okay.
16	Q.   I -- I represent to you that you did not. The record will
17	speak for itself.
18	A.   Okay. I mean, I could speculate. Maybe there was no way
19	to prove whether he was intentionally doing it or accidentally
20	made that statement.
21	Q.   But that's speculation.  You--there's no affirmative
22	strategic reason  that with the jury out, you would choose to
23	omit the argument, your Honor  he's doing this on purpose.
24	There's no strategic reason for that error --
25	A.   Probably not.
	684
1	Q.    --or absence of argument if it's not in the record,
2	correct?
3	A.    Probably not.
4	Q.    Let's go to a different topic. On page six at paragraph
5	twelve at the top -- for the state's assistance -- we introduce
6	now in our Amended Petition the subject of your prior
7	representation of a co-defendant of Mr. Mark Byers.
8	A.   In a civil case?
9	Q.   In a civil case. As I understand it, Mr. Byers and your
10	clients, Mr. and Mrs. Barnes, were sued in a civil case.
11	A.   Yes, sir.
12	Q.   On the claim that they wrongly entered a business---that
13	was the claim?
14	A.    Right.
15	Q.   Their defense was they did not wrongly enter the business?
16	A.    Correct.
17	Q.    On the claim that they wrongly removed some property --
18	A.   Yes, sir.
19	Q.   -- and their answer was that they did not wrongly remove
20	some property.
21	A.   Yes, sir.
22	Q.   And Mr. Byers and your clients, the Barnes, had a common
23	defense which was, we didn't wrongly enter the business and we
24	didn't wrongly remove any property, right?
25	A.   Initially, that's correct. Yes, sir.
	685
1	Q.   Okay.  And Mr. Byers, I now understand better, in the
2	course of those proceedings moved himself into the jurisdiction
3	of the Bankruptcy Court, right?
4	A.   Yes, sir.
5	Q.   And in part as a result of him being -- of the stay issued
6	by the Bankruptcy Court on getting after any assets of his, the
7	plaintiff's lawyer dismissed him from the case?
8	A.   Yes, sir.
9	Q.   At that point, he becomes a very material witness he's
10	just no longer a party?
11	A    Yes, sir.
12	Q.  All right. And, in fact, in the proceedings that
13	happened, did you call Mr. Byers to testify as a witness in
14	favor of Mr. and Mrs. Barnes, your clients?
15	A.    I know he ended up being a witness. I don't recall which
16	side called him.
17	Q.    If the records of the civil proceeding reflect that he was
18	sponsored by you as a witness, you would have no quarrel with
19	that?
20	A.   No sir.
21	Q.   Was there ever a record made at any time of you telling
22	Damien Echols that you had been a counsel for Mr. Barnes who
23	was sued with Mr. Byers and that Mr. Byers was a witness on
24	behalf of the Barnes with whom he had been jointly sued?
25	Anything about -- in these proceedings -- about Damien Echols
	686
1	knowing that you had a prior representation----as you did with
2	Michael Carson--- involving Mr. Byers in the same side of the
3	lawsuit?
4	A.   You mean a ---record-- a court record?
5	Q.   Well, I'll start with the court record, yes.
6	A.   I mean, I don't -- I don't think there was anything
7	mentioned in court.
8	Q. Any written acknowledgment or receipt or any document that
9	you obtained from Mr. Echols promising that he wouldn't
10	complain about that in a later proceeding?
11	A.   Oh, no, sir. No.
12	Q.   Fine. And, of course, there is no indication in any
13	correspondence or document that you talked to Judge Burnett and
14	said, we have a theory of the case. Our theory of the case is
15	that it's possible -- it's possible that Mr. Byers is
16	criminally responsible and he's been a witness for the Barnes
17	family that I represented, and he's testified favorably for
18	them, and I know him. You never put that like on the record
19	for Judge Burnett?
20	A.   I don't believe so.
21	Q.    Among other things in that civil case, one thing that
22	occurred was a continuance was granted because Mr. Barnes (sic)
23	was complaining that he had tumors within his brain.
24	A.   Right.
25	Q.   You remember that, don't you?
	687
1	A.   Byers were complaining.
2	Q.   Byers--Mr. Byers was complaining.
3	Q.   You just said Mr. Barnes.
4	A.   Well, I withdraw that. I misspoke.
5	A.   Okay. Right, that's correct.
6.	Q.   No, your witness, Mr. Byers, had tumors.
7	In connection with anticipating calling him as a witness
8	in the criminal case in defense of Mr. Echols, did you make an
9	effort to get the medical records on Mr. Byers to see if it was
10	true that he had brain tumors? .
11	A.   No, sir.
12	Q.   Did you know in terms of sort of general knowledge that
13	the information that we trial lawyers and people in the public
14	who are not lawyers learn that from time to time a massive
15	brain tumor is found as associated with bizarre and violent
16	conduct? Is that something you knew back in 1993 and ninety-
17	four?
18	A.   I probably had some general knowledge of that.
19	Q.   Do you know for example this is the -- I think it's the
20	twenty fifth or thirtieth anniversary this year of Charles
21	xxxxx xxxxng to the top of the University of Texas tower --
22	A.   Yes, sir.
23	Q.   --and shooting up everybody on the ground as well as some
24	of the observers there at the top level? You read about that
25	in the newspaper in the last few days probably, didn't you?
	688
1	A.    Not the last few days. I was aware of that.
2	Q.    And you know that when they -- when they did
3	his autopsy they found something the size of a walnut, at
4	least, in his head?
5	A.   I wasn't aware of that, but --
6	Q.   Okay. He left a suicide note saying, I'd to have an
7	autopsy to see if there's something wrong with my brain.
8	A.   Well, that's probably correct.
9	Q.   So knowing that you would call Mr. Byers as a witness, and
10	knowing that Mr. Byers claimed to have a history of brain---
11	brain tumors, what did you do to investigate Mr. Byers to
12	assist you in presenting the best possible case of the theory
13	that he had something to do with criminal responsibility for
14	this tragedy? Did you do anything?
15	A.   Well, you asked me, did we get his medical records. No,
16	we did not.
17	Q.   Did you do any -- what -- what investigation did you
18	conduct?
19	A.   Conduct on Mr. Byers?
20	Q.   Yes
21	A.   In general?
22	Q.   Yes.
23	A.    I mean, we investigated him thoroughly. We -- we talked
24	to prior business associates of his in West Memphis. We got as
25	much information as we could on Mr. Byers.
	689
1	Q. Did you learn that he had some sort of conviction for a
2	terroristic threat?
3	A. Was that the one at Marked Tree?
4	Q. In 1987?
5	A. Is that the one in Marked Tree?
6	Q. Yes.
7	A. Yes, sir.
8	Q. Did you introduce that for the ladies and gentlemen of the
9	jury in Mr. -- restate it.
10	Q.   Was there some tactical reason you didn't tell the ladies
11	and gentlemen of the jury about that in Mr. Echols' defense?
12	A. I believe -- believe that was in the Marked Tree Municipal
13	Court -- if I'm not mistaken -- and I don't -- and Municipal--
14	I don't think that would have been admissible as impeachmentó
15	a misdemeanor conviction.
16	Q. Would it be admissible as 404(b) ñ circumstantial
17	evidence?
18	A. I don't believe so. It may have been.
19	Q. You're -- you're aware that defense lawyers can offer
20	evidence under rule 404(b)?
21	A. xxxx xxxx aware of 404(b), yes sir.
22	Q.   xxxxs-- was the defense-- itís not limited to the
23	prosecution, but the defense counsel can also introduce
24	evidence of knowledge, plans, scheme, repetition, that sort of
25	thing?
	690
1	A. Intent, motive, yes, sir.
2	Q. All right. This is sort of gruesome, but at the time that
3	you decided that you would call Mr. Byers as a witness, did you
4	know that Mr. Byers had made allegations that certain evidence
5	of the body of his son had been found in Mr. Echols' home?
6	Were you aware he had said that to newspaper or television
7	reporters?
8	A. I believe I was aware of that.
9	Q. Is there any reason -- any strategic reason that you would
10	not bring that out in Mr. Echols' defense?
11	A. Well, I don't think there was any basis for that.
12	Q. Oh, you mean, it was -- you knew about it and you believed
13	it was a lie, correct?
14	A. Well, I don't believe there were any body -- I think he
15	was complaining that his body parts were at Damien's house or
16	something of that nature.  And there wasn't any -- none of that
17	was found at his house.
18	Q. So you knew that he had made statements that were not true
19	relating to the case, right?
20	A. Yes, sir.
21	Q. Is there some strategic reason you didn't tell the jury
22	that he had made false statements relating to the case?
23	A. We decided not to ask it.
24	Q. Can you articulate any strategic basis for deciding not to
25	ask that?
	691
1	A. The gut feeling of cross examination.
2	Q. Is that a decision you made at the time, or is that what
3	you now think you might have been thinking at the time? Do you
4	have a present recollection that you decided, I don't want the
5	jury to know that he's been lying about this case because of my
6	gut telling me the jury won't want to know that he's been lying
7	about the case?
8	A. I mean, I don't specifically remember -- you know, that --
9	making any conscious decision to ask that question or not ask
10	that question.
11	THE COURT: Is this a good point for a recess?
12	MR. MALLETT: Very well, your Honor.
13	THE COURT: All right, court will be in recess
14	for ten minutes.
15	( RECESS. )
16	(RETURN TO OPEN COURT. )
17	THE COURT: All right, Court will be in session.
18	MR. MALLETT: May I continue, your Honor?
19	THE COURT: Yes, sir.
20	BY MR. MALLETT:
21	xxxxxxxx some supplemental comments on a new topic.  Iím
22	on page xxx number one. We have already heard the testimony
23	in this Rule 37 proceeding about Doctor Moneypenny and his
24	testimony, and I believe that the state of the record now is
25	that you wanted Doctor Moneypenny to testify to help sustain a
	692
1	mitigating Circumstance under the Arkansas Code. I wrote down
2	the whole code here -- I wrote it down. Sections 5.4-6048(c)
3	but for brevity, we'll just call it the Arkansas Death Penalty
4	law. Do you now know what we're talking about?
5	A. Yes, sir.
6	Q.   And under that death penalty law, there is a set of
7	aggravating circumstances that a jury may look for in the
8	evidence at the punishment stage of a capital case, correct?
9	A. Correct.
10	Q. And a set of mitigating circumstances?
11	A. Yes, sir.
12	Q. And under the charge of the Court, the jury is invited to
13	weigh the aggravating circumstances and weigh the mitigating
14	circumstances if they are found on either side of the ledger in
15	arriving at a verdict.
16	A. Yes, sir.
17	Q. And I believe under the Arkansas scheme as instructed by
18	Judge Burnett, they are told that if they find that the
19	aggravating circumstances outweigh the mitigating
20	circumstances they shall impose the death penalty.  Is that --
21	xxxxxxxxxxx
22	xxxxxx the instruction our jury was given under the
23	law.
24	MR. DAVIS: No, sir, your Honor, I don't think
25	that -- I don't think that's an accurate statement of
	693
1	the law.
2	MR. MALLETT: I don't want to get into a quarrel
3	what I think is a preliminary matter. The record
4	will reflect how the jury was instructed and I -- I
5	don't -- I cannot really debate it on what Arkansas
6	law says, so I'll restate my question.
7	THE COURT: Well, the record should reflect that
8	I read verbatim the instructions provided by Arkansas
9	Rules of Criminal Instructions whatever -- whatever
10	the language is. That's what I read.
11	Now, if the record reflects otherwise, then
12	we've got a problem because I read it exactly as it
13	came out of the instructions.
14	MR. DAVIS: Your Honor, what I was noting was
15	the statement was made that if aggravating factors
16	outweigh mitigating factors, then the jury is to find
17	for a sentence of death, and under Arkansas law that
18	leaves out a step, which is, if the Jury determines
19	-- the Jury has to determine beyond a reasonable
20	doubt that the facts and circumstances of the case
21	xxx the imposition of the death penalty, and thatís
22	xxxxxxx
23	THE COURT: Three steps.
24	MR. DAVIS: -- and that's the additional step
25	that's been left out in his description.
	694
1	THE COURT: The third one, I tell the jury that
2	regardless of whether or not the aggravating
3	circumstances are found to outweigh the mitigation
4	that they may still, if they deem it appropriate,
5	return a verdict of life without parole -- words to
6	that effect. I'm not attempting to read the
7	instruction but whatever it -- however it's worded, I
8	followed the law.
9	MR. MALLETT: I'm not disputing that.
10	Could I have just one second?
11	THE COURT: Sure.
12	BY MR. MALLETT:
13	Q. What I wanted to get your attention on ñ and I appreciate
14	the Court helping me state the law correctly so it's not
15	misstated in this record -- what I wanted to get your attention
16	on was your earlier testimony that the testimony of Doctor
17	Moneypenny was helpful because the Jury found a mitigating
18	factor. Do you recall that testimony?  I'm trying to take you
19	there in your previous testimony.
20	A. You mean today or - -
21	Q. xxxx earlier hearings back on the ñ probably September
22	xxx June nine, excuse me, June nine.
23	A. I mean, I remember some of the earlier testimony.
24	Q. Well, let me kind of back up this way then.  You
25	called Doctor Moneypenny?
	695
1	Q. He testified?
2	A. Yes, sir.
3	Q. He had with him a large volume of materials that he had
4	been given to review relating to the history of Damien Echols?
5	A. Yes, sir.
6	Q. Had you read all of those materials yourself before he was
7	called to testify?
8	A. Yes, sir.
9	Q. So you knew -- at least in a general sense as well as any
10	ordinary person could remember -- the contents of those
11	materials that he took with him to the witness stand?
12	A. Yes, sir.
13	Q. It is the case that in considering what weight to give
14	Doctor Moneypenny's testimony a jury could also consider
15	whether from Doctor Moneypenny's testimony they can infer
16	aggravating circumstances, correct?
17	A. Yes, sir.
18	Q. The jury is not limited to considering Doctor Moneypenny
19	as a mitigation witness simply --
20	A. xxxxx xxhatís ñ
21	Q. xxxx xxxx heís called by the defense, right?
22	A. xxxx with that.
23	Q. That under skillful cross examination, a witness can be
24	turned into a witness for the other side, correct?
25	A. Yes, sir.
	696
1	Q. Like in this case, they asked Doctor Moneypenny whether
2	someone ever said to Damien Echols, you could be compared with
3	Charles Manson and Ted Mondy -- Bundy, right?
4	A. Yes, sir.
5	Q. Damien Echols never said, I want to be Charles Manson or
6	Ted Bundy.  That's nowhere in his records, right?
7	A. I believe that's correct.
8	Q.   But the records that you read had some third party making
9	some off-hand comment to him ñ
10	A. Right.
11	-- and scribbling it down in the report, right?
12	A. Right.
13	Q. So that would be complete hearsay, right?
14	A. Yes, sir.
15	Q. Right.  And now when that testimony came in, you'll recall
16	you made no objection to it?
17	A. Yes, sir.
18	Q. Was there some tactical reason -- was there some tactical
19	reason that in determining the presence or absence of
20	aggravating factors relating to Damien Echols you wanted the
21	xxxx xxx  that a third party never called as a witness or
22	xxxx xxx made a comment in some psychological records?
23	A. That testimony wasn't an aggravator.
24	Q. You haven't -- you can't read minds, right?
25	A. That testimony wasn't an aggravating circumstance.  If
	697
1	youíll look at the sev -- I think he was either eight or nine
2	at the time -- that testimony does not go to any of those
3	aggravators.
4	Q. Well --
5	A. Look -- look at the statutory aggravators and go down that
6	list. It doesn't go to any of those listed.
7	Q. Was there --
8	A. So, no, it was not admissible towards an aggravator.
9	Q. Was it a statutory aggravating circumstance that the
10	defendant evidenced a sense of pleasure in committing a murder?
11	A. Look to see exactly when was -- if you look at the
12	aggravator about -- I need to look at the Criminal Code.  There
13	was -- I can't remember exactly if -- if at the time we had
14	that -- I believe it's -- I don't know if it's seven, eight, or
15	nine -- it's one of those aggravators about the -- the cruel
16	and heinous nature -- I don't recall exactly when that was
17	passed.
18	Q. Well, was it an aggravating circumstance for a jury to
19	find that a murder was committed in an especially cruel and
20	depraved manner?
21	A. xxxx xxx passed at the time of our trial?
22	Q. xxx xxx the reason I think it was is that Iím reading from Echols
23	versus State, 23 the Opinion of the Arkansas Supreme
24	Court.
25	A. Okay.
	698
1	Q. Which is published at 936 S.W.2d 509, and at 36 Ark. 326
2	Ark. Reports 917.
3	A. Okay.
4	Q. And I'm reading here, ìEchols contends that the statute is
5	vague because the jury can find an aggravating circumstance
6	upon finding that a murder was committed in an especially cruel
7	and depraved manner.î
8	A. All right.
9	Q. So for the reason that you raised this argument in your
10	appeal --
11	A. Okay.
12	Q. -- I must assume that that was the law in the State of
13	Arkansas --
14	A. That -- that -- then that's correct.
15	Q. -- at the time.
16	A. Yes, sir.
17	Q. Well--
18	A. Now, repeat the original question.
19	Q. Do you believe that statements -- hearsay statements that
20	a third party makes in comparison between Echols on the one
21	hand and Tom Bundy and Charles Manson on the other hand, could
22	be xxxx aggravating factor?
23	A. Is that an aggravator?  No, sir.
24	Q. In your judgment.
25	A. Yes, sir.  You're asking me the question.  Because those
	699
1	were statements made -- that conversation with Mr. Echols
2	occurred prior to the murders.  The conversation that you're
3	talking about in the record there was with a -- some type of
4	mental health counselor sometime prior -- I don't recall the
5	exact date -- I'm sure it's in the records -- prior to the
6	murders and something that Damien said -- somebody asking him
7	and making reference to Charles Manson a year or two years
8	prior to the murders, I don't think goes to an aggravator that
9	he committed a crime that -- a cruel and heinous nature in a
10	murder committed two years later.
11	Q. Would you believe that the statements attributed to him in
12	this hearsay ñ so your ñ your contention is that the hearsay
13	was desirable, and you wanted it in, and it was not
14	objectionable because of helping some way?
15	A. Yes, sir.
16	Q. And how did it help defend the life of Damien Echols
17	having been found guilty of capital murder --
18	A. It goes to--
19	Q. -- for a jury to know that an unidentified third party
20	made this comparison?
21	A. It xxxx his mental state. When somebody such as Damien
22	goes to see a mental health counselor, you donít talk about how
23	wonderful things are.  You talk about problems you're having.
24	And so the mental health counselor's comparisons to Ted Bundy
25	or Charles Manson -- you know, that's what you do in counseling
	700
1	-- you talk about problems that you're having.  And this took
2	place prior to the murders so that -- and -- but I do think it
3	goes toward what his mental state is.  And if we would have
4	not put on the mitigating factor towards -- on -- and not tried
5	-- tried not to put on any mitigation towards his mental health
6	condition, I think that -- that would have been a bigger
7	blunder than -- than the way we did it.  And I think we would
8	have been ineffective -- if we would not have put on evidence
9	of his mental health state, I think we would have been
10	ineffective.  And, therefore, by doing that, I donít think we
11	were ineffective.
12	Q. So you thought it was good to put on evidence that a
13	party made this comparison or made some comment or another?
14	A. Yes, sir, because that was contained in five hundred pages
15	of records that was reviewed by Doctor Moneypenny who was our
16	mitigation expert to his mental health condition.
17	Q. And you did not see that various -- the declarations
18	elicited by the state on cross as supporting any of the
19	aggravating considerations under the Arkansas death penalty law
20	as then written?
21	A. No, sir.  I donít think they were admissible as to the
22	cruel and heinous nature aggravator.  Now, as far as did they
23	hurt in general, yes.  I think that was -- that was bad
24	evidence that was coming out, and on mitigation is the only
25	time in a trial where a lawyer purposefully puts on bad stuff.
	701
1	We are trained -- Motion to Suppress -- throw out evidence--
2	exclude evidence -- object to evidence.  On mitigation you
3	purposefully put on bad stuff to try to prove -- a good
4	mitigator to try to save the life of your client.  We -- there
5	-- there may have been some better wit -- we may should have
6	done a better job explaining that to the Jury.  But as far as
7	the evidence itself, it -- there was a -- there was a strategic
8	reason why we put that evidence on.
9	Q. Well, there was no effort by you to explain the nature of
10	mitigation evidence to the jury during jury selection, correct?
11	A. Ah, that's correct.
12	Q. All right.  And having a jury which has been qualified and
13	seated without any education or acceptance of the concept of
14	mitigation, you went forward.  Tell me what you then considered
15	to be the definition -- a reasonable lay -- a reasonable
16	attorney's definition of what is mitigation evidence.
17	A. Mitigation evidence is any evidence pertaining to support
18	the -- saving the life of your client.
19	Q. Can you amplify that definition or enlarge on that
20	definition in any way?
21	A. In - to what extent?
22	Q. Well, to mitigate -- a moment ago you said that mitigation
23	evidence was bad information about your client.
24	A. Yes, sir.  I mean, sometimes.  I mean, sometimes it's good
25	and sometimes it's bad.
	702
1	Q. So--
2	A. In connection with this issue, yes, sir, the mental health
3	-- or the mental state aggravator -- mitigator, sometimes it
4	comes across as bad information, certainly.
5	Q. At the time of this trial, did Arkansas law provide as
6	aggravating factors that the offense was committed in an
7	especially depraved manner?  Was that part of the law at the
8	time?
9	A. I'm trying -- we originally had one cruel and heinous --
10	that was struck down, then they passed another one.  I believe
11	that that's -- that's -- that was the -- the one ñ one of the
12	ones in effect at the time.
13	Q. And at the time, did an aggravating factor at that time
14	include a finding that a defendant on trial for capital murder
15	and convicted relishes the murder?
16	A. I believe that's part of the definition.
17	Q. And as another part of aggravating factor, may the jury
18	find a defendant was indifferent to the sufferings of the
19	victim?
20	A. I believe thatís part of it.
21	Q. And at the time, was it an aggravating factor that a jury
23	might find that the defendant evidenced a sense of pleasure in
24	committing the murder?
24	A. I believe that's part of it.
25	Q. When we think about mass murderers -- Charles Manson, the
	703
1	murder of Sharon Tate the movie star and others -- and a leader
2	of a large group of people -- we're talking about multiple
3	murders by the leader of the so-called cult, right -- as
4	Charles Manson?
5	A. Yes, sir.
6	Q. All right. Ted Bundy -- we're talking about a serial
7	murderer -- a person who killed several people --
8	A. Right.
9	Q. -- over a period of years, right?
10	A. Certainly.
11	Q. So the hearsay comparison is with homicide of the worst
12	sort -- a leader of a group that commits mass homicide or a
13	person who commits homicide over a period of years, right?
14	A. Right.
15	Q. Those hearsay comparisons then are consistent with, are
16	they not, a suggestion that a defendant acted in an especially
17	depraved manner?  Fair statement?
18	A. Could be.
19	Q. And they could be heard as suggestion that a defendant
20	relishes the murder?
21	A. Could be.
22	Q. Is indifferent to the sufferings of the victim?
23	A. Could be.
24	Q. And evidenced a sense of pleasure in committing the
25	murder?
	704
1	A. Could be.
2	Q. So these" hearsay comparisons from an unnamed person could
3	be used as supporting findings of aggravating factors?
4	A. It could be.
5	Q. And of giving weight to those aggravating factors --
6	weight to compare with the weight to be given any mitigating
7	factors?
8	A. Did the jury find that aggravator?
9	Q. I'm sorry.  I don't mean to be smart here, but I don't
10	remember the record perfectly ñ
11	A. Okay.
12	Q. -- and I'm trying to ask the questions of the lawyer who
13	was there.  So you could tell me.
14	A. I mean, I -- I don't -- let me look at the record and let
15	me see.
16	Q. Assume hypothetically that they found that the aggravating
17	factors outweighed the mitigating factors and in addition found
18	that they believed the death penalty should result.  Okay,
19	assume that.
20	A. Okay
21	Q. When these hearsay declarations are declarations which may
22	have given weight on the aggravating side, right?
23	A. Could be.
24	Q. Okay.  So your earlier statement then -- we have to
25	qualify-- your earlier statement that this testimony that we
	705
1	allowed to be admitted in the cross examination of MoneyPenny
2	is testimony the we need to at least qualify ëcause we  canít
3	read the minds of the jurors.
4	A. Could be.
5	Q. And the weighing process that we impose on the good
6	citizens who come down to serve on the juries -- including this
7	jury -- is a weighing -- is a thought process that we don't
8	invade, we don't evaluate, we don't read, in fact, we don't
9	even impeach 'em.  If they have regrets afterwards --
10	A. Could be.
11	Q. -- there's nothing they can do about it, right?
12	A. Could be.
13	Q. I mean, that's -- isn't that the law in Arkansas ñ itís a
14	law that I'm familiar with.  In my state, at least, that a
15	jury that has regrets a week later can't come in and say, I've
16	changed my mind -- that's called impeaching a verdict.
17	A. Right. That's -- yes, sir.
18	Q. You have that law in Arkansas, don't you?
19	A. Yes, sir.
21	Q. All right.  So-- so -- so the jury does the weighing, and
22	the lawyers donít know what weight they give to any particular
23	point in the body of evidence, correct?
24	A. Well, not necessarily.  It depends if they find for that
24	aggravator or not.
25	Q. Do you think that it would be -- was it possible at the
	706
1	time to have Doctor Moneypenny testify and object to these
2	hearsay declarations as not the declarations of the defendant
3	nor a medical diagnosis on which Doctor Moneypenny relied?
4	A. You're asking, could we have made an objection?
5	Q. Sure.
6	A. Sure, we could have made an objection.
7	Q. Is there, again, a strategic and tactical reason that you
8	wanted this hearsay comparison admitted, and you waived any
9	right to object?
10	A. Yes, sir.
11	Q. Is this another of your judgment calls from your gut as a
12	trial lawyer that it would weigh more heavily in mitigation
13	than in aggravation?
14	A. Yes, sir.
15	Q. In making that decision, you're relying on your previous
16	experience as a trial lawyer?
17	A. Yes, sir.
18	Q. And the state of the evidence at the time?
19	A. Yes, sir.
20	Q. And your feelings on that day?
21	A. Yes, sir.
22	Q. Did you have any other party advising you and Mr. Davidson
23	in making that decision?
24	A. To make that specific objection or not or --
25	Q. Right.  To decide whether to object to that hearsay about
	707
1	a  declaration made to Damien Echols by someone out of court.
2	A. I'd say just -- Mr. Davidson was the main one I conferred
3	with about objection.
4	Q. Did you tell Damien Echols, we have a Doctor Moneypenny
5	that we'd like to call as a mitigation expert but if we call
6	him and when we call him, we're going to want the jury to hear
7	about these comments that are in your records comparing you --
8	according to some case worker -- to Manson and Bundy? Did --
9	did you ever talk to your client about that?
10	A. I mean, I don't recall that specifically discussed --
11	those statements. I -- I -- we discussed it in general about
12	Doctor Moneypenny testifying and about that Doctor Moneypenny
13	had his records.
14	Q. Let me go on to a different topic.  There was an issue in
15	the trial -- I'm gonna turn my attention, if I may, to a
16	subject found on page seven discussing the topic of
17	constitutional ineffective assistance on appeal in paragraph
18	five relating to threats of communications to jurors.
19	Do you remember that during the trial it was reported by
20	the court that there had been some communica -- some informal
21	communication to members of the jury?
22	Yes, sir.
23	Do you recall the Court reported that the Court conducted
24	an informal and brief investigation of the content of those
25	threats?
	708
1	A. Yes, sir.
2	Q. Was there a tactical reason that you did not request that
3	a record be made at which the lawyers could ask questions of
4	the jurors about the contents of these threats?  Is there some
5	reason that you left it up to the Court to handle?
6	A. We decided it would be better for the Judge to ask the
7	questions than the individual lawyers.
8	Q. Is -- is that what you sort of reason now as probably your
9	state of mind?
10	A. Probably.
11	Q. If the record reflects on the record, no effort by the
12	attorneys to propose questions to the Judge, or to object to
13	the Judge's questions, or to ask the Judge to ask additional
14	questions, then the record would be complete.  There were no
15	proceedings off the record related to this, were there?
16	A. Not that I'm aware of.
17	THE COURT: Wait a minute.  There were but it
18	was after the fact.  We conducted a hearing after --
19	it might have been after judgment.  There was
20	additional voir dire taken on the matter and the
21	record -- it should be in the record.  Additional in
22	xxxx hearing.
23	BY MR. MALLETT:
24	Q. And if that record that was made after the fact reflects
25	questions by the Judge and a report by the Judge about what
	709
1	went on, with no insistence by counsel that counsel conduct the
2	questioning, no objection to the questions the Court had asked,
3	and no suggestion that the Court ask additional questions, did
4	you discuss the threats among yourselves, then that record --
5	THE COURT: Mr. Mallett -- Mr. Mallett, it was
6	done after the fact, and the individual jurors were
7	all polled by defense counsel and the Court in
8	camera, in chambers, regarding whether or not threats
9	affected their ability to reason, rational and return
10	a fair and just verdict.  You should have that.  It
11	was done after the fact.  You're correct on that.
12	But it was done, and a record was preserved on their
13	individual responses.
14	MR. MALLETT: Was that after the verdict?
15	THE COURT: Yes, sir.
16	MR. MALLETT: Thank you, your Honor.
17	THE COURT: It might have been between the --
18	I'm not sure.  It was after the first verdict, I'm
19	sure, and it might have been after the second
20	verdict, but it was --
21	THE WITNESS: I think it was after the second
22	verdict, also.
23	THE COURT: Was it?  It may have been.
24	THE WITNESS: 'Cause we were -- we were -- I
25	believe we were in the jury room and we -- they had
	710
1	their -- their notes up on the wall.
2	THE COURT: But they were called in -- yeah, I
3	believe you're right. They were called in
4	individually and polled on that -- that matter.
5	MR. MALLETT: If I may have a minute, your
6	Honor.
7	THE COURT: Yes, sir.
8	MR. MALLETT: If I may have a minute, your
9	Honor.
10	THE COURT: Sure.
11	MR. MALLETT: Ms. Martin's trying to help me get
12	educated
13	THE COURT: That might take more than minute,
14	but go ahead.
15	MR. MALLETT: I -- I resemble that comment, your
16	Honor. (LAUGHTER.)
17	THE WITNESS: You resemble that?
18	MR. MALLETT: For the record, your Honor, I am
19	looking at pages marked at the top right, twenty-
20	seven seventy-four of what I have as a transcript of
21	the proceedings of the trial.  The Court of, course is
22	absolutely right.  After the conclusion of both
23	proceedings in the Court, a conference was held in
24	chambers -- beginning at line twenty-three and bottom
25	of what I have as page twenty-seven seventy-four --
	711
1	and in these proceedings -- turning the page -- the
2	court discusses telephone calls, contacts with jurors
3	and whether the jurors --
4	THE COURT: As I remember it, it wasn't a direct
5	contact with the jury, but it was a contact with one
6	of the juror -- juror's daughter and that daughter --
7	after the fact -- some days or two later -- mentioned
8	it to a father and then I believe there was a mother
9	of a child that had been approached or contacted by
10	someone, and then we questioned those two jurors as
11	well as all of the other jurors.
12	MR. MALLETT: There's -- the names of the jurors
13	-- it's not confidential, is it?
14	THE COURT: Well, I remember one, but I don't
15	remember the other.
16	MR. MALLETT: I'm -- I'm reading at twenty-seven
17	seventy-five about a Mrs. Dacus.
18	THE COURT: I believe it was Mrs. Dacus and Mr.
19	Arnold.
20	THE WITNESS: Yeah, Arnold.
21	MR. MALLETT: All right.
22	THE COURT: And they were asked about whether of
23	not they relayed that information to the other jurors
24	and whether or not it was discussed, and whether or
25	not it had any bearing or factor on their weighing
	712
1	the issues or ultimate decisions.  And each juror, as
2	I recall, indicated that it did not, and it wasn't
3	discussed further from the time it occurred which was
4	early on in the first week of the trial.
5	Is that when it was?
6	THE WITNESS: I don't remember exactly when it
7	was.
8	THE COURT: Well, I'm getting old and my
9	memory's not as good as it used to be, but that's the
10	way I remember it.
11	MR. MALLETT: And -- and it goes over to twenty-
12	seven seventy-nine.  May I take it then that there is
13	no other record of any complaints by defense counsel
14	or proposals for questions by defense counsel than
15	what we see on these pages?
16	THE COURT: As far as I know.  I took it as the
17	Court's function.  Of course, the jury's told that if
18	anyone contacts them, attempts to influence 'em, or
19	intimidates 'em, or -- or in any way affects -- tries
20	to affect their judgment, to report that to the
21	bailiff and the Court.  And thatís what was done.
22	xxx I should have immediately told the lawyers.  I
23	donít think I told 'em until a day or two later, but
24	that was my mistake, and I own up to it. That's the
25	only one I made though. (LAUGHTER.)
	713
1	BY MR. MALLETT:
2	Q. And since that time, I take it you have not taken it upon
3	yourself to go out and interview the jurors on your own and to
4	conduct any additional investigation into these threats or any
5	matters that might affect the legality of their verdict -- or
6	have -- or have you?
7	A. About the threats?
8	Q. Yes, sir.
9	A. No, sir.
10	THE COURT: I've got some question about a
11	lawyer after the fact going out and interviewing
12	jurors.   I guess you can, but it might be an ethical
13	problem involved.
14	MR. MALLETT: We can talk about that informally
15	at sometime.  That's not a point that I'm raising at
16	this -- in this conversation.
17	BY MR. MALLETT:
18	Q. A Joyce Cureton. I am looking at the bottom of page eight
19	of our Amended Petition.  Do you know who Joyce Cureton is?
20	A. She was a jail matron at the time.
21	Q. And you spoke to her sometime prior to the trial or
22	during the trial?
23	A. I believe so.
24	Q. All right.  Do you remember if you did or not?
25	A. I don't know.
	714
1	Q. Did you probably speak to Mr. Ford or Mr. Wadley about
2	her?
3	A. Concerning what topic?
4	Q. Her availability as a witness for Damien Echols.
5	A. I -- on what topic? I mean --
6	Q. Well, let me back up and ask it this way: Do you have any
7	recollection of a Subpoena being issued by Mr. Ford for her
8	testimony for the punishment hearing?
9	A. Not -- not 'til you told me, no, sir.
10	Q. Okay. So this will be very brief then. If I suggest to
11	you that there was -- back up one more. In Arkansas is a
12	lawyer entitled to rely on a Subpoena issued by another party
13	so if the state has a proper Subpoena served and executed on a
14	-- on a witness, are you entitled as defense counsel to -- to
15	access to that witness and to assume that their attendance will
16	be at court without issuing a Subpoena of your own?
17	A. I mean, that's always been my practice with Mr. Davis,
18	yes, sir.
19	Q. And likewise, if you have two or more defense counsel --
20	two or more defendants in the case -- and counsel for one
21	defendant issues a Subpoena, then counsel for the other
22	defendant can rely on that Subpoena ñ you donít have to
23	duplicate it?
24	A. Right. Yeah. Generally, if you -- if -- if the party
25	that subpoenaed 'em says -- has decided they're not gonna call
	715
1	ëem you generally check with the other side or the co-
2	defendant.
3	Q. You don't excuse the witness you have under Subpoena until
4	being sure that the other lawyer wasn't relying on that
5	Subpoena?
6	A. Right. That's -- yes, sir.
7	Q. Okay. Do you have any recollection of interviewing Joyce
8	Cureton or having an interview of Joyce Cureton conducted on
9	Damien Echols' behalf in the report provided to you?
10	A. I don't remember.
11	Q. Then do you have any recollection of -- I'll just say
12	hypothetically-- a Subpoena was issued to her and she received
13	a suggestion message or instruction that rather than receive
14	and obey the Subpoena, she should leave the jurisdiction. Is
15	that suggestion I've made as a hypothetical come as complete
16	news to you and about which you don't really know anything?
17	A. Very vaguely, I remember something about that, but I don't
18	-- the details, I don't -- I don't recall.
19	Q. All right. On the subject that you wanted into evidence
20	-- which is this -- if the Court Reporter will excuse me --
21	amorphous ñ and by that I mean vague, uncertain, indefinite,
22	unspecific (sic), intangible, unscientific, and ñ and not very
23	reliable ñ thatís what I mean by amorphous.
24	On this amorphous topic of satanic practice, satanic
25	worship, the occult, cults, witchcraft, white witchcraft, black
	716
1	witchcraft, or any other color of witchcraft, on that body of
2	knowledge -- maybe we should call it the metaphysical area in
3	the case that we discussed earlier, the state had a witness and
4	you had a witness. I think you had Mr. Hicks.
5	A. Yes, sir.
6	Q. Okay. In anticipating the presentation of the defense
7	case, did you read the writings of Mr. Hicks -- did you read
8	his publications?
9	A. Yes, I read it over the week-end.
10	Q. Before the -- before he testified?
11	A. Yes, sir.
12	Q. Okay. And there is a reference in the record to a
13	quotation by a book by Mr. Ken Lanning. Did you read
14	publications by Mr. Ken Lanning?
15	A. I don't think I read his -- I think there was a reference
16	in Hicks' book, Pursuit of Satan, where there might have been
17	a chapter or a couple of paragraphs or some pages about
18	Lanning. I thank that's what I read on -- concerning Lanning.
19	Q. So you did not read the works of Lanning directly but only
20	as referenced by Hicks?
21	A. Yes, sir. I believe thatís right.
22	Q. Are you aware that under the Rules of Evidence when a book
23	has been accredited by an expert as a treatise on which people
24	in his field relies and on which he relies, that the words
25	published in that treatise after it's accredited are admissible
	717
1	as evidence and are not hearsay?
2	A. I believe so. Yes, sir.
3	Q. So that you can take the book itself and while you don't
4	mark the book as an exhibit and offer it into evidence, you can
5	read from the book and say, we offer as evidence in the case,
6	and read from the book?
7	A. Certain passages. Yes, sir.
8	Q. You could have read from Mr. Hicks' book, for example?
9	A. Yes, sir.
10	Q. So when the state was objecting that what was in Mr.
11	Hicks' publication was hearsay, did you have it in mind that
12	materials that he has published and relied on are admissable
13	as an exception to the rule excluding hearsay?
14	A. I don't recall. I mean, I don't think -- I'm assuming we
15	didn't make that response to their objection.
16	Q. And I wanted to find out if there was any tactical reason
17	why when they were objecting to admissible material you chose
18	not to assert its admissiblity under Rule 803 810 of the
19	Arkansas Rules of Evidence, or whether that was simply an
20	inadvertent waiver that happened in the trial?
21	A. It could have been an inadvertent waiver. I don't recall.
22	MR MALLETT: Thatís all I have. Thank you
23	very much, Mr. Price. I'm sorry it took longer than
24	I said.
25	THE WITNESS: All right.
	718
1	MR. DAVIS: Your Honor, I -- I need -- I have a
2	medical appointment to get a shot over the lunch
3	hour. If we could -- if we could break now.
4	THE COURT: 1:00 o'clock?
5	MR. DAVIS: Yeah, it'd be better for me.
6	THE COURT: I have a conference call at 1:00
7	o'clock. So we'll make it 1:15.
8	MR. DAVIS: Okay.
9	( RECESS. )
10	(RETURN TO OPEN COURT. )
11	THE COURT: All right.
12	RECROSS EXAMINATION
13	BY MR. DAVIS:
14	Q. Mr. Price, I have a few questions for you. Mine may skip
15	around a little more haphazard.
16	A. That's fine.
17	Q. I'm trying to look back over my notes. I believe the
18	first area of inquiry that was made -- at least today -- by
19	defense counsel was regarding -- let me be sure -- your
20	preserving an adequate record of the jury voir dire for
21	purpose of appeal.
22	A. Yes, sir.
23	Q. And you were aware at the time that the case was appealed
24	and you and Mr. Davidson had prepared the appellate briefs,
25	that there was a transcript of the voir dire proceedings. Is
	719
1	that right?
2	A. I don't know if there was actually a transcript at the
3	time we did our appeal. I knew that the Court Reporter had
4	taken down what was said during the -- during the voir dire.
5	Q. Okay. And so you knew that it was available should you
6	desire or feel that it was necessary to make that a part of the
7	record?
8	A. Yes.
9	Q. Okay. And you made a decision not to do that?
10	A. Yes, sir.
11	Q. Okay. And what was the basis for that?
12	A. Well, the primary basis was because we did not use all of
13	our strikes, and Arkansas law on voir dire is you can't argue
14	something on an appeal relating to jury selection unless you've
15	used all your -- your strikes.
16	Q. Okay. And why did you not use all your strikes in
17	selecting the panel?
18	A. As a matter of trial strategy, we -- we struck the people
19	that we decided we wanted to strike and the people that we
20	didnít want to strike, we didn't strike 'em. So they were
21	selected to serve on the jury.
22	Q. Without the use of all of your peremptory challenges, did
23	you feel you were able to select a jury of twelve people
24	that were able to fairly sit, hear and decide the issues in
25	this case?
	720
1	A. Yes, sir.
2	Q. Now, you also -- Mr. Mallett asked you a number of
3	questions about the Court's questioning of the jury panel prior
4	to us voir diring them on a three -- at three or four at a
5	time. You heard that?
6	A. Yes, sir.
7	Q. Okay. Do you recall that taking place in terms of the
8	logistics of how that occurred?
9	A. I had thought that we -- the Judge did the introductory
10	questions as well as the attorneys doing the specific
11	questioning all in the back -- in chambers in the jury room. I
12	think the Judge has stated earlier in court today that he
13	thought we -- he questioned them twelve or eighteen all-at one
14	time in the panel and I don't -- I don't specifically recall
15	which way we did it.
16	Q. Okay.
17	MR. DAVIS: Your Honor, may I approach the
18	witness?
19	THE COURT: Yes.
20	BY MR. DAVIS:
21	Q. I want to show you the transcript of the voir dire
22	proceedings at page twelve. Could you look at that -- twelve
23	-- bottom of page twelve and the top of page thirteen, and does
24	that appear to you to be the initial questions that the Court
25	was asking to the jury panel that had been -- the first
	721
1	eighteen that had been placed in the box? (HANDING TO
2	WITNESS. )
3	A. (EXAMINING.) Yes, sir. The first question deals with
4	being related by blood or marriage to any of the lawyers, and
5	then the Judge introduces the people at the table, and he also
6	-- and then he asked if anybody had any business, professional,
7	or social dealings with any of the lawyers involved.
8	Q. Okay. And those appear to be questions that the Judge is
9	asking of the jury panel --
10	A. Yes, sir.
11	Q. -- in -- en masse?
12	A. Yes, sir.
13	Q. Okay. And on a bunch of those questions the majority of
14	them the response listed by the Court Reporter is ìNo Audible
15	Response." Is that correct?
16	A. That's the response listed to some. Some -- apparently
17	some of the jurors raised their hands.
18	Q. Right.
19	A. Yes, sir. ìNo Audible Responseî is listed several times.
20	Q. Okay. And because the transcript reflects that there is
21	no audible response -- that does not cover or does not
22	indicate that the jurors were not nodding their heads in
23	agreement with the Judge, or indicating agreement with the
24	questions that he was asking, does it?
25	A. That's correct.
	722
1	Q. Okay. All it says is they didn't say yes?
2	A. Right.
3	Q. Or make some verbal response?
4	A. That's correct.
5	Q. Now, as a defense attorney, if a juror is up there and
6	he's asked one of these preliminary questions that the Judge
7	was putting to them, and you see a juror up there who's making
8	no audible response but they're shaking their head like that
9	(DEMONSTRATING) when he asks them, can you be fair to the
10	defendant, and they're giving you body language that irritates
11	that they might not be a juror that would be receptive to
12	hearing your side of the case, would you make note of that and
13	deal with that later in voir dire?
14	MR. MALLETT: Excuse me, your Honor. I
15	apologize for interrupting, and I'll try not to do
16	this very often.
17	Could he rephrase the questions so that he's
18	asking about this case? My objection is that the
19	question is too broad to be helpful to this Court in
20	deciding this case.
21	THE COURT: Well, I think Iím gonna allow you to
22	ask it in two ways. You can ask him specifically in
23	this case and in general as his practice as an
24	attorney, would he conduct a voir dire in that
25	fashion. I think it's -- they're both appropriate.
	723
1	You're challenging it on the basis of him not being
2	competent in this trial, so limit it to this trial
3	and then his practice in general.
4	BY THE WITNESS:
5	A. Basically, the same answer is for both. I would make note
6	of  body language responses by the prospective jurors.
7	Q. And so when the Judge is asking questions -- generally in
8	any trial when the Judge asks those type of questions, you're
9	observing the jury not only to determine what their verbal
10	response may be, but also what their physical reaction to
11	certain questions might be, correct?
12	A. Yes, sir.
13	Q. Okay. And did you observe this jury panel when the Court
14	put these questions to them during this case?
15	A. Yes, sir.
16	Q. Okay. And do you recall any specific physical responses
17	in terms of shaking of the head or anything that caused you
18	to later ask additional questions or other questions back in
19	the jury room?
20	A. I donít specifically recall any -- I mean -- any verbal or
21	-- excuse me -- any body language type movements that I later
22	followed up on it. I haven't reviewed any of my voir dire
23	notes and that -- that material.
24	Q. Okay. When the jury panel's in that situation before --
25	in that specific case when the Judge is asking this jury panel
	724
1	those general questions are you assessing the jury in terms of
2	visual appearance, what they look like, how they react --
3	things of that nature?
4	A. Yes, sir.
5	Q. Okay. And does all of that go into and assist you in
6	formulating what questions you then ask more specifically when
7	you go back and voir dire those jurors three on three or four
8	on four?
9	A. Yes, sir.
10	Q. Okay. And did you do that -- make those assessments and
11	make those determinations -- use that in assisting you in
12	evaluating what questions you would put to them during your
13	later voir dire?
14	A. Yes, sir.
15	Q. Now, let me flip over here in the transcript. On page
16	twenty-five on line thirteen, the Court says, ìAll right,
17	gentlemen, I'm ready to go to the back.î
18	Does that appear to you to be that at that point in time
19	was when the Court began to have the voir dire done in the back
20	jury room on a three-on-three basis, or four-on-four basis?
21	A. Yes, sir, because he makes reference to, ìI see no reason
22	reason to keep the other hundred and thirty prospective jurors here.
23	Itíll probably take an hour or two to go through the
24	questions.î
25	Q. Okay. And you were physically present during the entire
	725
1	voir dire process when the questions were asked not only by
2	yourself, by Mr. Ford, by myself, and by the Court back there
3	in the back room; is that right?
4	A. Yes, sir.
5	Q. Okay. And during that time period in making your
6	determination as to whether to exercise strikes or peremptory
7	challenges, did you -- are you making that decision solely on
8	verbal responses that are made, or do you also consider
9	physical responses, reactions, appearance -- that sort of
1	0 thing?
1	1 A. We consider everything -- the verbal responses, the body
1	2 language -- you know, back -- the jury questionnaires that they
1	3 filled out -- other things of that nature.
1	4 Q. Is there a way that a transcript can gather or reflect
1	5 what a person's physical reaction, his body language,
1	6 mannerisms, that might -- that you might consider in making a
1	7 determination to keep or strike a juror? Can that be reflected
1	8 in a written transcript?
1	9 A. No, sir.
2	0 Q. And did you consider all those things in making your
21	determination as to what peremptory challenges to use?
22	A. Yes, sir.
2	3 Q. Now there were questions asked you, did you ask any
2	4 questions of the group of -- of the -- either as a group or
2	5 individually in the back about their views on satanic or occult
	726
1	practices. Do you recall Mr. Mallett asking you that?
2	A. Yes, sir.
3	Q. Okay. Do you recall if you asked any of those type of
4	questions?
5	A. I -- I -- independently, I don't recall. I believe
6	through his questions and my answers this morning, I think he
7	indicated that I didn't -- didn't go into that, but I don't
8	recall.
9	Q. Okay. Did I hear you say something this morning to the
10	effect that to ask people their views on that that you -- one
11	of the reasons you didn't was because you didn't expect to get
12	a positive response -- any juror saying, yes, thatís -- I
13	follow those beliefs. I'm a Satanist myself and I  --  I'm a
14	firm believer in that, or somebody who was supportive of those
15	thoughts and ideologies. You just didn't anticipate you would
16	get any positive feedback of that nature, right?
17	A. Yes, sir, that's correct.
18	Q. Okay. And is there -- when you question a juror about
19	topics of that, is there a danger that that can cause an
20	overemphasis in that particular subject matter in a juror's
21	mind if you spend time asking questions about a topic of that
22	nature?
23	A.   Yes, sir.
24	Q. Did that in any way impact your decision as to whether or
25	not to inquire as to their feelings regarding those particular
	727
1	subjects?
2	A. I'm sure it did.
3	Q. Now, if I understood your testimony this morning, you said
4	something to the effect that you didn't know exactly what the
5	state was going to present in the way of that type of evidence,
6	correct?
7	A. Correct.
8	Q. Okay. And, in fact, you didn't know whether the state
9	intended -- but you knew that they had listed Doctor Griffis as
10	a witness, but you didn't know whether the strategy of the
11	state was to go ahead and use him or not, correct?
12	A. That's correct.
13	Q. Okay. And so you were at that point at least aware that
14	it could come in but in terms of how much and to what extent
15	and what form, you weren't -- you had no idea, right?
16	A. That's correct.
17	Q. Now, in regard to what you said this morning -- if I
18	understood it -- to some extent you were happy to fight this
19	field -- or fight this battle on the field of this being a
20	satanic killing, correct?
21	A. Yes, sir.
22	Q. Okay. In terms of the position of your defendant, you
23	felt like the stateís case was so weak in that area in being
24	able to establish that, that if the state took that track, that
25	that would be a very effective way for you to be able to
	728
1	challenge the state's evidence, right?
2	A. Yes, sir.
3	Q. Okay. And as the trial unfolded from your recollection of
4	the testimony of Doctor Griffis, which was presented by the
5	state, did you feel like that was damaging to your client?
6	A. I think some of Griffis' testimony was damaging, but I
7	also think a lot of his testimony and his theories were
8	ludicrous.
9	Q. And one of the very foundations of your case was being
10	able to attempt to expose how ludicrous you thought that
11	theory was?
12	A. Yes, sir, that's correct.
13	Q. Okay. And in order to take that avenue, it was necessary
14	for the state to take certain steps in that direction for that
15	to occur, right?
16	A. Yes, sir.
17	Q. In other words, if the state doesn't put on a Doctor
18	Griffis, then you don't have the opportunity to attack and
19	lambast him to show as you described that you thought his
20	testimony was ridiculous -- was ludicrous?
21	A. Thatís correct.
22	Q. Okay. So there was strategy involved?
23	A. Yes, sir.
24	Q. A number of the jurors are asked during the voir dire
25	proceeding about where they heard, or where they've gathered
	729
1	their information. Is that true? In other words, the source
2	for whatever information they've heard about this case?
3	A. Yes, sir.
4	Q. Okay. And when a juror responded and said, I read about
5	it in the Jonesboro Sun, or I've seen it in the Arkansas
6	Democrat-Gazette, were you familiar and had you read the vast
7	majority of the information that had been published in those
8	newspapers?
9	A. Yes, sir. I think almost all of it.
10	Q. Okay. So when a juror would make mention of that -- even
11	though the juror did not mention specifically, I read about
12	this specific instance -- you could be -- at least have some
13	idea as to the general information that that juror was exposed
14	to?
15	A. Yes, sir.
16	Q. Did you feel there was an advantage at this trial in
17	having jurors that came in anticipating the strength of the
18	state's case before the trial? I may need to rephrase that.
19	A. Well, I mean -- yes, sir, I think so. You know, the
20	statements -- a lot of the jurors, I think, were aware of
21	statements by Officer Gitchell previously that -- you know,
22	from a scale of one to ten the state's case is an eleven, and
23	now --- you know, at the trial -- I think, as a matter of
24	fact, that the state objected to the -- us being able to
25	question Gitchell about that, and I think the public's
	730
1	perception of the strength of the state's case going into the
2	trial diminished as the trial went on.
3	Q. And were you -- was it your theory that the jury panel had
4	some preconceptions or that prevalent within the jury panel
5	were preconceptions that there would be extensive evidence as
6	to the satanic and cult nature of these killing?
7	A. Yes, sir. I think the jury was expecting more of that
8	testimony than came forth at the trial.
9	Q. Did you feel that that could in effect work as an
10	advantage to your client that the jury panel of this locale
11	that had been exposed to certain information might come in with
12	very high expectations of the testimony in the area of satanic
13	worship and occultism and things of that nature?
14	A. Yes, sir.
15	Q. Okay. Would that fact or the possible existence of that
16	fact be beneficial to you if you felt you could blow that
17	theory out of the water?
18	A. Yes, sir.
19	Q. And is that one of the reasons that you decided or made
20	the strategic decision that the case would be -- fall -- if you
21	could have it your way on the field that the -- on the theory
22	that the state was putting all their eggs in that basket --
23	that this was a satanic and cult killing?
24	A. Yes, sir.
25	Q. And so a jury that had been -- panel that had been
	731
1	indoctrinated by news media accounts that had emphasized that
2	particular aspect might in effect be an advantage to a
3	defendant in this case?
4	A. Yes, sir.
5	Q. Also, the -- had the newspaper accounts and television
6	accounts described the graphic nature or the horrendous type
7	of injuries that the three youths had sustained?
8	A. To a certain extent.
9	Q. And I know during the time it occurred until the arrests
10	were made, there was a period where there was very limited
11	information about that, but by -- by post Jesse Misskelleyís
12	trial, most of the details, including descriptions -- graphic
13	descriptions of the autopsy photos and all that -- had already
14	been published, correct?
15	A. Yes, sir.
16	Q. Is there -- when you know that a jury panel is going to be
17	faced with evidence of that -- that can be that emotionally
18	charged, and that can have such a severe impact, is it better
19	or worse to have a panel that has had some exposure to it and
20	isnít being hit with this the first time in the course of
21	the trial?
22	A. Itís usually better to have a jury exposed to damaging
23	materials such as that the more times you can and so that by
24	the time they get to it at -- at the second trial, for example,
25	it's -- they're not -- they're a little bit more conditioned
	732
1	to accept that evidence coming in and it's not as -- the shock
2	value isnít there as much.
3	Q. So having the jury panel that was somewhat aware -- or at
4	least had some information about the case -- is -- is a two-
5	edged sword. It can be damaging at times, but it also can
6	provide benefits?
7	A. Yes, sir.
8	Q. Okay. And your job as a defense attorney in this case was
9	to try to assess those jurors to determine if their mindset was
10	such that they could still be fair and provide your client with
11	a fair trial, or to see if this information or if other things
12	might have affected or colored their viewpoint to the point
13	they couldn't be fair, correct?
14	A. Correct.
15	Q. And you made those assessments based on all the things
16	you've described previously during your voir dire process?
17	A. Yes, sir.
18	Q. And you felt confident that you'd picked a fair jury?
19	A. Yes, sir.
20	Q. You were also asked this morning by Mr. Mallett about were
21	you ever shown the questions that Damien was going to be asked
22	in advance.
23	A. From the HBO interview?
24	Q. Right. Right.
25	A. Yes, sir.
	733
1	Q. Do you remember if you were or not?
2	A. I donít recall if we were actually shown the questions or
3	told -- I remember conversations that we will ñ that they will
4	not go into full detail about the case itself, and we did have
5	conversations about that. I donít ñ I donít specifically
6	remember if they showed us a set of questions or not. I mean,
7	I was present during -- the whole time during their interview.
8	Q. Okay. They didnít interview him without you present,
9	right?
10	A. Not a bit, no, sir.
11	Q. Okay. And you told the people from HBO, I assume, these
12	are certain areas I donít want you to go into?
13	A. Yes, sir.
14	Q. Okay. And was Damien present when you were having these
15	discussions? Was he -- you were saying, now, look guys, I
16	donít want you to talk about this, this, and this, and heís
17	present when these things are going on, or do you recall?
18	A. I think we had several conversations with ëem. We
19	probably had some not in his presence ñ and by saying, ìwe,î
20	myself, Scott Davidson and probably Ron Lax, our investigator
21	were involved in discussions. I know we had some conversations
22	without him, but I seem to recall even -- the day of that
23	particular interview which was done in the jail down in Augusta
24	that we may have even talked to them with him present before
25	they actually turned the camera on and started asking
	734
1	questions.
2	THE COURT: Did you object to any questions they
3	asked or find any reason to object to any question
4	they asked?
5	THE WITNESS: We certainly had that opportunity.
6	I donít -- I donít remember specifically if we -- if
7	we objected to questions or asked to go off the
8	record.
9	THE COURT: Did they stay within the guidelines
10	you proposed as to propriety of the questions?
11	THE WITNESS: Yes, sir.
12	THE COURT: All right.
13	BY MR. DAVIS:
14	Q. You viewed the video  --  or the ìParadise Lostî HBO
15	documentary?
16	A. Yes, sir.
17	Q. Okay. Is there anything that you recall from having
18	reviewed that -- and I realize itís hard to recall everything
19	thatís in there -- but when you viewed it the first time,
20	second time -- however many times youíve seen it -- were there
21	things in there that you saw in the interview given by Mr.
22	Echols that you thought were damning to him or hurt his case?
23	A. No, sir.
24	Q. And were there questions asked or responses given that you
25	thought damaged his case on appeal or at any point in
	735
1	time -- would be a problem -- would be problematic in the
2	future if you had to retry this case?
3	A. No, sir. As a matter of fact I think a lot of what he
4	said was favorable.
5	Q. And when you watched it, were you kind of -- I mean, did
6	you kind of watch it with an eye to that thinking, you know
7	now that itís -- now that we're gonna see the finished product,
8	what in the world -- is there gonna be anything in here that
9	comes across --  that the world could perceive my client in
10	a negative fashion?
11	A. Yes, sir.
12	Q. Did you -- did you notice those things?
13	A. I don't -- I don't recall noticing anything that --  of --
14	of our participation in the -- in the -- in the film that was
15	negative towards Mr. Echols and I think it -- a lot of it was
16	favorable.
17	Q. So if -- if you didnít specifically go over the questions
18	prior to them being asked, with the method in which they were
19	asked, was it such that you had a chance to counsel with your
20	client and to instruct him if you thought the answer would be
21	injurious to his case?
22	A. We could have stopped the questioning at any
23	time.
24	Q. Okay. And so whether or not you were given the questions
25	in advance, or reviewed them in advance, in terms of the
	735
1	ultimate effect on the interview process, it had none, correct?
2	A. I -- that's correct.
3	Q. Now, there were questions asked this morning about your
4	cross examination or failure to cross examine Michael Carson.
5	A. Yes, sir.
6	Q. Now, there's something about you'd represented Carson
7	before?
8	A. Yes, sir. I'd represented Carson in Lawrence County when
9	I was public defender over there on a -- on a juvenile case.
10	Q. And when did you become aware that this person who was
11	listed on the state's -- as the state's ñ potential stateís
12	witness is the same guy that you had represented
13	at some other time?
14	A. I think fairly soon after finding out his -- his name and
15	his age. I kind of put two and two together and figured that
16	was the same -- same Michael Carson.
17	Q. Okay. And did that give you any insight into his
18	background or past experiences that someone who maybe had not
19	had that opportunity would have asked?
20	A. Yes, sir.
21	Q. Okay. And the testimony that was elicited from Carson at
22	trial, the xxx was instructed that that testimony didnít even
23	apply to your client, correct?
24	A. That's correct.
25	Q. Okay. And, in fact, the jury was instructed at trial that
	737
1	that testimony was given only in regard to Jason Baldwin.
2	A. That's correct.
3	Q. Now, if after the jury -- and that -- that instruction was
4	given to the jury before Carson testified, right?
5	A. Yeah. I think before and also after or something -- or a
6	similar instruction, but, yes, sir, it was given at that time,
7	not -- yeah, it was given the first time at that time.
8	Q. Okay. So Carson takes -- before Carson takes the witness
9	stand, the Judge has told the ladies and gentlemen seated in
10	the jury box that Michael Carson's testimony does not apply to
11	Damien Echols but goes solely and can be considered for them
12	only to determine the guilt or innocence -- for whatever weight
13	it's to be determined -- in determining the guilt or innocence
14	of Jason Baldwin.
15	A. Yes, sir.
16	Q. And so after he's testified, does Mr. Ford get up to cross
17	examine him?
18	A. Yeah, after recess, I believe either Ford or Wadley.
19	Q. Okay. And they tried to rip into him pretty good,
20	correct?
21	A. Yes, sir.
22	Q. Okay, Now,  just -- as a lawyer who observed what was
23	going on with the cross examination of Michael Carson, was it
24	your impression that -- I think the words were used by Mr.
25	Mallett this morning -- you can either -- you have options --
	738
1	you can either sit there and rest on the admonition the Court's
2	given, or you can go up and destroy a witness. Is that what he
3	gave you this morning?
4	A. Yes, sir.
5	Q. Okay. Now, is that always the scenario that plays out in
6	the courtroom -- that you destroy a witness on cross
7	examination?
8	A. No, sir.
9	Q. Okay. What happens sometimes when you get up and cross
10	examine a witness?
11	A. I mean, sometimes you don't succeed in destroying him.
12	You -- that -- there -- I mean, in essence, you bolster the
13	witness, or they become even stronger, or they come across as a
14	better witness than they were before.
15	Q. This may tell us what quality Mr. Mallett is as an
16	attorney. Maybe he's never experienced something less than
17	destruction of a witness in his cross examination.
18	But when that occurs, is that beneficial --
19	MR. MALLETT: Objection to the ad hominem, the
20	personal attacks, your Honor I don't think that's
21	necessary
22	THE COURT: Well, avoid personal references.
23	MR. DAVIS: Okay.
24	BY MR. DAVIS:
25	Q. In the instance where you get up to cross examine a
	739
1	witness in an attempt to destroy that witness, and it turns out
2	to be a bust, and it doesn't work, and you don't destroy them,
3	how does that affect your case?
4	A. I mean, itís  -- itís worse.
5	Q. Does it underscore and make that testimony even more
6	damaging than it was before you stood up?
7	A. Sometimes it does, yes, sir.
8	Q. Okay. In a scenario where testi  -- where a jury has ....
9	specifically instructed that testimony does not even apply to
10	your client, is there a strategic decision in whether to get up
11	and cross examine and run that risk, or to just let the
12	testimony come in and let the other attorneys cross examine
13	him?
14	A. Right, and that's exactly what we did in this case. We
15	felt that if we would -- if the Judge made the admonition it
16	didn't apply to us, if we would then get up and cross examine,
17	we thought maybe the Judge might turn around and say, now that
18	we've opened the door, Carson's testimony could be admissible
19	against Echols as well.
20	You know, I knew that Mr. Ford was -- was a very effective
21	lawyer. As a matter of fact, I gave -- I had a file on Carson
22	with --  and having nothing to do  -- well, part of it was my --
23	my earlier representation, but a lot of the questions were
24	typical questions that we would have asked Carson. As a matter
25	of fact, I think Mr. Davis (sic) was the one -- if we would
	740
1	have cross examined Carson, he would have done it -- Mr.
2	Davidson rather than myself. So I had sketched out potential
3	questions, and we gave all that material over to Ford and
4	Wadley so that they could use it during their cross examination
5	of Carson.
6	Q. Okay. Was there any -- was -- was the decision not to
7	cross examine Carson, was that in any way premised based on the
8	fact you had represented him in juvenile proceedings before?
9	A. No, sir.
10	Q. Okay. I mean, was there any discussion, or was there any
11	thought process that -- you know, well, we'd kind of like to
12	cross examine this guy and go after him, but, you know, I used
13	to represent him so, therefore, I'd better -- we better not --
14	we better not go that route. We'll just let this dog lie right
15	now.
16	A. Well, no. The discussion was if we decided to cross
17	examine him, Scott needed to do it and not I. I didn't need to
18	do it. But as far as the fact that I had the previous -- had
19	previously represented him so we -- we -- we shouldn't question
20	him at all  -- that -- that was not--that was not an issue at
21	all.
22	Q. Okay. Do you know if -- if Mr. Echols was aware, or had
23	you mentioned to him when Carson's name comes up and during the
24	time you're preparing for the case, did you mention to him that
25	you had, in fact, represented this Michael Carson back in
	741
1	juvenile proceedings sometime before?
2	A. I don't recall -- I don't know if I specifically talked to
3	Damien about that or not. A lot of times we would discuss with
4	him what we were doing on different aspects of the case, but
5	there were other things that we would -- would primarily do
6	without -- without discussing with him.
7	Q. Okay. And during the time that -- that Michael Carson's
8	name --- you become aware that he's a witness, he may testify,
9	he does testify, is Mr. Lax -- Ron Lax -- your investigator, is
10	he aware of Carson as a potential witness?
11	A. Yes, sir.
12	Q. Okay. Did Mr. Lax do anything in terms of preparing
13	information or going over statements to try to assist in being
14	prepared for that witness and what he might do?
15	A. I'm sure that Mr. Lax reviewed Mr. Carson's statement.
16	When we -- when we got any discovery, we'd turn it over to Mr.
17	Lax, and he kind of outlined it and said what was there and
18	what -- what was missing, and different -- how this piece of
19	evidence fits in with another part and how -- how to respond to
20	it. So Iím sure that he reviewed that testimony -- or that
21	statement of Carson.
22	Q. Okay. Do you know whether --  you said that you had some
23	information -- acquired information from the juvenile files
24	because you knew you had represented him and, therefore, you
25	knew to ask for it?
	742
1.	A. That's correct.
2	Q. Okay. So when you -- you then -- after you get that
3	information, you give that to Mr. Lax, right?
4	A. Yes, sir.
5	Q. Okay. And did you tell Mr. -- did Mr. Lax know about this
6	prior?
7	A. I'm sure that when I gave him the information, he became
8	aware of it.
9	Q. Okay. And was it common in your preparation for trial
10	that some of the contact in terms of what was going on and
11	explanation of what you were doing in preparation of the trial
12	some of that information was relayed to Mr. Echols by Mr. Lax?
13	A. Was relayed to Mr. Echols?
14	Q. Right.
15	A. Yes, sir, some of it -- some of it was.
16	Q. Okay. In other words, Mr. Lax might have contacts with
17	Mr. Echols to explain, I met with Mr. Price and Mr. Davidson
18	last night. We were doing this, this, and this, and I've been
19	tracking down these witnesses. He would pass that information
20	along to Mr. Echols if you and Mr. Davidson had it?
21	A. Right. Now there's also a Glori Shettles who also works
22	with Mr. Lax, also had a lot of contact with Damien, and she
23	may have also passed on additional information.
24	Q. Okay. How early on in the case was -- was Inquisitor,
25	Inc. or Ron Lax or his group involved?
	743
1	A. Within the first week of my being appointed.
2	Q. Okay. If the -- the psychiatric reports that were
3	referred to earlier -- if they show requests for medical auth
4	-- for medical authorization and release forms dated June
5	thirteenth of ninety-three --
6	A. Yes, sir.
7	Q. -- and they're on the heading of  Inquisitor, Inc. signed
8	by your client, Mr. Echols, would they have been involved in
9	the --
10	A. Right.
11	-- preparation of this case that early on?
12	A. Yes, sir.
13	Q. And that -- that was within less than two weeks of the
14	date of arrest, correct?
15	A. Yes, sir.
16	Q. Okay. And this is the same Ron Lax that -- that Mr.
17	Stidham referred to as the best criminal investigator he'd ever
18	been involved with?
19	A. Yes, sir.
20	Q. Is that your assessment of him, also?
21	A. Yes, sir. In death penalty cases, yes, sir.
22	Q. Now, the testimony  -- I may have it --
23	MR. DAVIS (TO MR. MALLETT) May I borrow your
24	volume five since I don't have one?
25	MR. MALLETT: (HANDING.)
	744
1	BY MR. DAVIS:
2	Q. Mr. Mallett asked you some questions this morning about
3	the volley of questions with Officer Ridge where -- I think
4	it's on page nine twenty-two of the transcript -- where you
5	asked, ìOkay. So that stick is not the stick was at the
6	crime scene?î
7	His response, ìYes, sir, it is the stick that was at the
8	crime scene.î
9	And then your next question was, ìI guess I'm confused.
10	At the time you did not take that stick into evidence at the
11	time you all recovered the bodies.î
12	That's the question you asked.
13	A. Yes, sir.
14	Q. Now, there are times during the trial when you ask
15	questions that you wished you hadn't asked sometimes, correct?
16	A. Correct.
17	Q. Okay. And we -- everybody who is involved as a trial
18	lawyer occasionally asks a question which they wished they had
19	left it at home, or just kept their mouth shut, right?
20	A. Right.
21	Q. Okay. In hindsight, looking at that question, is that one
22	you wish you hadn't asked Officer Ridge?
23	A. Not necessarily. I mean, the response that he gave was
24	not the response I wanted, but the fact that I was trying to
25	get -- get across the point that -- you know, the crime scene,
	745
1	there were certain items taken into evidence at the time the
2	bodies were recovered, and he went back to the crime scene a
3	month later and got these sticks, and that's what I was trying
4	to get across. And I thought he could have answered my
5	question without saying -- without referring to Jesse's
6	confession.
7	Q. Okay. So and at times when you start focusing -- in this
8	case, your focus was, I want to show to this jury that this guy
9	didn't get the -- these sticks or these items that are being
10	introduced as evidence -- he didn't get ëem out there at the
11	crime scene simultaneously with doing the crime scene
12	investigation.
13	A. He waited a month later.
14	Q. Okay. And so that -- you were focused on that issue?
15	A. Right.
16	Q. And in focusing on that issue, you kind of lost sight of
17	the fact that he had a reason why he went back a month later to
18	get ëem?
19	A. Right.
20	Q. Okay. And when you asked that question, the question was
21	intended to elicit a response that was, yes, it took -- it was
22	a month later before I went back and get--got them. I didn't
23	right there immediately. That's what you wanted?
24	A. And stop -- right.
25	Q. Okay. But in your zeal to get that information out, would
	746
1	you agree that you asked a question that offered him an
2	opportunity to explain why he got them a month later which was
3	because that was after Jesse Misskelley had given him a
4	statement indicating that certain sticks had been used?
5	A. I mean, it was certainly his response.
6	Q. Okay. And would it be fair to say that when you asked the
7	question, you weren't thinking at that time that that was a
8	particular response he might give?
9	A. Either were thinking or didn't think he'd give that
10	answer, but --
11	Q. But as soon as he starts to open his mouth and you hear
12	the words ìJesse Misskelley,î the bells go off, right?
13	A. That's correct.
14	Q. Okay. Now, would you admit that the way in which that
15	question is asked in terms of, at the time you did not take
16	that stick into evidence at the time that you all recovered the
17	bodies, that that possibly invites a response from Officer
18	Ridge as to why it was they didn't take that stick into
19	evidence at that time?
20	A. Do --  as of now, looking at that question?
21	Q. Right
22	A. Yes. Yes, sir.
23	Q. Okay. And under that scenario, it wouldn't be ethical or
24	proper to allege that he intentionally threw that before the
25	jury in violation of any Motion in Limine, would it -- if the
	747
1	question invites such a response?
2	A. That' s correct.
3	Q. And was there anything from your observation of Officer
4	Ridge from the question that was asked that led you to believe
5	that he was laying up there in wait -- waiting for any slim
6	opportunity for the door to be opened so that he could rush in
7	and throw Jesse Misskelley's statement before this jury?
8	A. Not with Officer Ridge.
9	Q. Okay. In other words, his response was to counter the
10	impression that he was -- he didn't get 'em until a month later
11	because he was some incompetent investigator, right?
12	A . Right.
13	Q. Okay. And in your zeal to focus on that area you
14	overlooked that possibility?
15	A. Yes, sir.
16	Q. But as soon as you realized that something was happening
17	-- that he had said -- he mentioned the statement of Jesse
18	Misskelley and before he could even explain what was in that
19	statement of Jesse Misskelley that made that important, you
20	entered your objection, right?
21	A. Very loudly, yes sir.
22	Q. Okay. And cut him off at the pass, right?
23	A. Yes
24	Q. In fact, the record reflects that -- that you moved for a
25	mistrial?
	748
1	A. Yes, sir.
2	Q. Okay. And the Court overruled that, but you took all the
3	steps necessary at that point in order to insure that that
4	information did not come before the jury and that it went no
5	further than chat?
6	A. Yes, sir.
7	Q. What else could you have done?
8	A. Well, we asked for the cautionary instruction which I
9	believe the Judge gave. I mean, legally, that's it. I mean,
10	we -- you ask for a mistrial, you make the objection, the Judge
11	made his ruling, I think we approached the bench to -- to put
12	forth the -- I mean, I could have made the formal objection at
13	the -- at the table -- counsel table and then the jury would
14	have heard exactly what I was objecting to, and that's why we
15	approached the bench to make that particular objection. And
16	then, we asked for the -- for the cautionary instruction.
17	Q. Did you sense it was a situation where that had
18	intentionally been done to cannonball your case, so to speak?
19	A. Perhaps. I mean, it may have been or may not have been.
20	Iíve had other cases where officers have testified and made
21	references to polygraph tests, for example, in other trials
22	where I think theyíre purposefully trying to enter that into
23	evidence in  -- in violation of Motions in Limine before, you
24	know. On those cases, you know, the times I've seen that -- I
25	think that's a definite intentional act on their part but --
	749
1	but with this one, I --
2	Q. And if you object -- if you -- in a situation where you --
3	where you really don't feel or sense that it was done
4	intentionally, if you make these arguments time and again, your
5	honor, he's intentionally trying to ruin my case by
6	intentionally violating this previous order, if you make those
7	frequently when you don't think there's been an egregious
8	error, how does that affect your credibility with the Court and
9	your -- your likelihood of getting favorable rulings in a
10	serious situation?
11	A. I mean, I think that affects the way the Judge will rule
12	on future objections. The Judge can say that that's invited
13	error and state a legal reason why it's admissible. You know,
14	the Judge could have said, well, Mr. Price, you -- you opened
15	the door to that question and not even done a cautionary
16	instruction.
17	Q. Now, let me jump to the questions that were asked -- let
18	me give Mr. Mallett his notebook back.
19	You were asked questions about your representation of
20	these people who were the co-defendants of Mr. Byers civil
21	suit.
22	A. Yes, sir. Bruce and Linda Barnes.
23	Q. Okay. And when did that -- when did that start? When did
24	your representation --
25	A. It started -- I want to say a year or two prior to the
	750
1	murders-- I think, ninety-one.
2	Q. And who were your clients that you represented in that
3	case?
4	A. Bruce and Linda Barnes.
5	Q. Okay. Now, was -- was Mr. Byers a client of yours?
6	A. No, sir.
7	Q. Okay. He was a co-defendant in that case?
8	A. In that civil case, yes, sir.
9	Q. And he became a witness in that case?
10	A. Yes, sir, later on.
11	Q. Okay. Did you ever represent him in that case?
12	A. No, sir.
13	Q. Before, during or after the trial -- represent Mr. Byers
14	in that matter.
15	A. In that case, no, sir.
16	Q. In any case?
17	A. Well, technically, I'm Chief Public Defender for this
18	district and Mr. Byers has had a -- a -- another case before
19	this Court and Bill Howard, one of my conflicts lawyer, has
20	been appointed to represent him on that matter. That's already
21	been disposed of.
22	Q. And thatís something that's occurred long since the
23	appeal?
24	A. Way past this, yes, sir. Past the appeal, also.
25	Q. Did you provide any advice to Mr. Byers in regard to that
	751
1	particular action, or was he represented by separate counsel?
2	A. He was represented by C. B. Nance, separate counsel from
3	West Memphis.
4	Q. Okay. So did you during that incident -- you didn't
5	represent him -- did you advise him and counsel him on what he
6	should do?
7	A. No, sir. I mean, I -- at one time I talked with him --
8	well, more than once -- a couple -- a few times I've had
9	conversations with him and Mr. Nance because originally they
10	were -- the Barneses and Mr. Byers were accused of .
11	basically, it was the same -- there was a woman named Shirley
12	McNamara had left her husband who is an optician or an optometrist
13	and taken some glasses and set up a optical store and a jewelry
14	store together and then the Barneses was -- were partners with
15	her, and then Mr. Byers came in to run the jewelry store, so
16	they had a business relationship. And then they had a falling
17	out, and eventually Mr. Barnes and Mr. Byers left and took some
18	items, and there was a dispute over -- whether who owned the
19	items that were taken and whether certain items were taken or
20	not. That was kind of the gist of that.
21	Q. So Mc --McNamara instituted the lawsuit?
22	A. Yes, sir.
23	Q. And she named as defendants Mr. Byers, and  --
24	A. And the Barneses.
25	Q. -- the Barneses?
	752
1	A. Yes, sir.
2	Q. And you represented the Barneses?
3	A. Yes, sir.
4	Q. And I believe there was some testimony this morning -- you
5	may or may not have -- Mr. Byers was at least a witness in some
6	action involving that civil proceeding?
7	A. Yes, sir.
8	Q. And you -- do you recall if you called him as a witness or
9	who called him?
10	A. I don't recall which side called him.
11	Q. And was there anything other than his involvement between
12	you and him in that case other than him being a witness and
13	being a co-defendant along with your clients?
14	A. Was there anything --
15	Q. Any other contact you had with him other than in that
16	respect?
17	A. No, sir.
18	Q. Okay. Did you -- was there ever a discussion of this
19	between you and Mr. Lax, or you and Mr. Echols, or in the
20	presence of Mr. Echols that -- you know, as -- as things
21	happened that this person that is the father of one of the
22	victims in this case, that -- that there was a civil suit a
23	few years back in which he was a witness in a case or something
24	of that sort?
25	A. I believe I told Mr. Lax about -- about my involvement and
	753
1	the circumstance of that. I don't specifically recall whether
2	or not I discussed it with Mr. Echols.
3	Q. Did you -- was there ever any point in time where not --
4	not under ethical rules or violations -- but you began to get
5	that gut feeling or think, you know, gosh, this puts me in a
6	precarious situation because I represented a co-defendant of
7	his in a civil action two years ago?
8	A. I mean, I never thought that was a problem. I thought it
9	was actually favorable to us.
10	Q. And was there anything about that contact with him in the
11	past that would have caused you to be less aggressive toward
12	him in a trial setting?
13	A. None whatsoever.
14	Q. Okay. Isn't it in fact true that the clients that you
15	represented at that time that were the co-defendants with him
16	had a pretty good grudge against Mr. Byers, right?
17	A. Yes, sir, that -- that's putting it mildly, but, yes, sir.
18	Q. Putting it mildly?
19	A. Yeah.
20	Q. Okay. In fact, the people you represented not only had a
21	grudge against him but they actively viewed the trial during
22	the course of this trial that we're here on -- that's the
23	thatís the subject of these proceedings?
24	A. They were here almost every day during -- during Mr.
25	Echols' trial.
	754
1	Q. Okay, and it wasn't because they were strong supporters of
2	Mr. Byers, right?
3	A. Complete opposite.
4	Q. And so the interest that you represented in that civil
5	action with people who not only had a bone to pick with Mr.
6	Byers, they don't -- they don't even like him, right?
7	A. Yes, sir.
8	Q. Now, there were also questions asked of you this morning
9	about, you know, did you really investigate Mr. Byers, did you
10	do what you needed to do to be prepared to ìdisî him when he
11	took the witness stand. Was Mr. Lax working -- you said he was
12	working for you as early as June thirteenth of ninety-three,
13	right?
14	Yes, sir.
15	Q. Okay. And you've characterized Mr. Lax as an excellent
16	investigator.
17	A. Yes, sir.
18	Q. Okay. When it comes to tracking down information, running
19	down leads, putting together a file on relevant information on
20	somebody, how would you rate Mr. Lax?
21	A. Excellent.
22	Q. Okay. How, did Mr. Lax in his professional opinion, did
23	he discuss trial strategy as to how to handle the case
24	and things of that nature?
25	A. Yes, sir.
	755
1	Q. Okay. Was it Mr. Lax's opinion, based on your working
2	with him, that you should focus in on Mr. Byers as a real
3	culprit in this case?
4	A. Yes, sir. He agreed with that -- that had been one of our
5	strategies.
6	Q. Okay. And, in fact, did he assist in invest -- in
7	focusing his investigation to help you establish that strategy?
8	A. Yes, sir.
9	Q. Did he spend time investigating background on Mr. Byers?
10	A. Yes, sir.
11	Q. Now, I know he investigated a lot of things, but was that
12	something he really focused on? I mean, did you all  -- did --
13	in your discussions and your talks, is that something that you
14	all spent a great deal of time delving into is how we're gonna
15	point the finger at Mr. Byers?
16	A. Yes, sir.
17	Q. And Lax was heavily involved in that, right?
18	A. Yes, sir.
19	Q. Okay. Now, you called Mr. Byers to the witness stand,
20	right?
21	A. Yes, sir.
22	Q. Okay. And, that again, was a strategic move, right?
23	A. Yes, sir.
24	Q. And explain to us the strategy behind that.
25	A. We were trying to put forth that Mr. Byers was a -- was
	756
1	just as much or more so of a suspect in this case as Mr. Echols
2	was. And we had -- we had the evidence of the -- the pocket
3	knife that had -- that HBO had -- actually, Mr. Byers had given
4	to HBO when there was blood on one of the hinges that matched
5	-- potentially matched some of the evidence involved in this
6	case.
7	Q. And would it be fair to say that in the general effort to
8	point the finger or paint Mr. Byers as the culprit in this
9	deal, that the -- the biggest piece of evidence to nail him
10	with was that knife? That's what you wanted to use as your
11	real hammer on him, right?
12	A. It may not be the biggest piece, but certainly a -- a -- a
13	very strong piece of evidence, yes, sir.
14	Q. Okay. And, in fact, in your examination of Mr. Byers, you
15	impeached him or attacked his credibility in regard to prior
16	inconsistent statements about that knife, right?
17	A. Yes, sir.
18	Q. Okay. And the strategy there was why -- why -- why did
19	you want to do that?
20	A. Well, by impeaching him to point him out that he was a
21	liar.
22	Okay. Now, as a trial attorney, when you've got something
23	that you consider to be a big hammer or something important
24	that you can wield against a party -- adverse party such as Mr.
25	Byers, like the knife was, what happens when you start throwing
	757
1	a little -- other little minor things in to attack him with
2	that pale in significance in comparison to that item?
3	A. I mean, quite often you -- you tend to lose focus if you
4	-- if you have one main area or two or three primary areas that
5	you're -- you're directing at, if you ask -- if you go into a
6	lot of other minor things, sometimes it takes away the emphasis
7	that you're trying to put on for the main -- for the primary
8	point you're trying to get out of a witness.
9	Q. So in this case, you -- you hammered him on the knife,
10	right?
11	A. Yes, sir.
12	Q. Okay. And Mr. Mallett questioned your judgment in terms
13	of not asking him about a prior terroristic threatening
14	conviction that was a misdemeanor -- a Municipal Court
15	conviction?
16	A. Yes, sir. I believe it was sometime in the eighties.
17	Q. Okay. It happened years before this?
18	A. Several years, yes, sir.
19	Q. Okay. And what was your -- I mean, in terms of making
20	decisions, why do you not throw in a -- attempt
21	in front of the jury to get in this misdemeanor terroristic
22	threatening conviction from a number of years back that was out
23	of Municial Court when you've got other evidence that you
24	think would be very vital and very pertinent?
25	A. I mean, I think sometimes a jury will think that a lawyer
	758
1	is picking on particular witness by asking -- kind of nit-
2	picking in certain points that if they don't fit into the big
3	picture -- if it's not really relevant from a legal standpoint
4	or even a factual -- if you don't get that much damage or
5	mileage out of cross examining a witness on a misdemeanor
6	conviction, then -- then sometimes that takes away -- again,
7	takes away from the focus of your -- your main points of cross
8	examination.
9	Q. And so your decision not to use those items was strategic?
10	A. Yes, sir.
11	Q. Okay. In -- in hindsight looking back at it, would you
12	still make that same strategy call in terms of the decision,
13	whether to use that prior Municipal Court conviction under
14	those circumstances?
15	A. I'd probably make the same call.
16	Q. There was also questions about Mr. Byers having made some
17	statement to somebody about -- I don't know -- body parts being
18	found in your client's house during the search -- or something
19	like that -- at least that's what the question was this
20	morning. Were you aware that statements like that may have
21	been made by Mr. Byers?
22	A. I was aware of some statements to that  -- that general
23	nature.
24	Q. And is that something that you felt like from a strategic
25	standpoint would be important or vital in establishing Mr.
	759
1	Byers as the culprit in this case?
2	A. No, sir.
3	Q. If you posed that question to Mr. Byers and Mr. Byers
4	says, I may have said that, but I was -- I got that information
5	from somebody that it turned out to be incorrect, what would
6	you gain?
7	A. Absolutely nothing.
8	Q. And, therefore, you made a strategic decision not to
9	attempt to attack credibility based on that issue?
10	A. Yes, sir.
11	Q. Okay. Now, I want to move on to some questions
12	surrounding Doctor Moneypenny.
13	Who put together the -- the file on your clientís mental
14	health records?
15	A. Glori Shettles that worked for Mr. Lax.
16	Q. Okay. So that was another employee of Inquisitor, Inc.
17	A. Yes, sir.
18	Q. Okay. Was she assigned, also, to work on this case?
19	A. Yes, sir.
20	Q. And itís your information that she's a criminal
21	investigator just like Mr. Lax?
22	A. Her main area is mitigation.
24	Q. And sheís actually a specialist in the area of mitigation?
24	A. Yes, sir.
25	Q. Okay.
	760
1	A. I mean, by-- by specialist, I mean -- I don't know if she
2	has a --- that -- mitigation is certainly the main area that she
3	does.
4	Q. So you mean Mr. -- this Inquisitor, Inc., the
5	investigating agency that you had the benefit of their
6	services, they've actually got somebody in-house that focuses
7	on the sole issue of mitigation in criminal prosecution?
8	A. In death penalty cases, yes, sir.
9	Q. And so she's had experience and background in that area?
10	A. Yes, sir.
11	Q. Okay. And was she -- were her services provided to you to
12	assist in gathering this information?
13	A. Yes, sir.
14	Q. And is the one who started back in June of nineteen
15	ninety-three putting this information together?
16	A. Yes, sir.
17	Q. Now, did you have discussions with her in terms of the
18	pros and cons, or with Mr. Lax what she had found in her
19	investigation, how it was gonna play out, the pluses, the
20	minuses, things of that sort?
21	A. Yes, sir. We had discussions with Mr. Lax and with her
22	concerning mitigation evidence and the data that she had
23	been gathering.
24	Q. Did you all meet specifically to discuss what was gonna be
25	involved in the mitigation phase?
	761
1	A. Several times, yes, sir.
2	Q. Okay. And on those occasions, would it be you, Mr.
3	Davidson, Mr. Lax, and her?
4	A. Primarily, yes, sir.
5	Q. Okay. And did you share with your client, Mr. Echols,
6	what they were doing in regards to gathering information on
7	mitigation, and how that was -- how you viewed it playing out
8	at the trial?
9	A. I'm sure we had some discussions with him concerning the
10	mitigation evidence. As far as how many conversations and the
11	extent of it, I'm -- I don't recall -- you know, how many times
12	we met to discuss mitigation with him and things of
13	nature.
14	Q. Was he aware you were gathering his mental health records?
15	A. Yes, sir.
16	Q. And in the -- in the process of her gathering this
17	information, did you get a chance -- I believe you indicated
18	that you reviewed everything that she provided?
19	A. Yes, sir.
20	Q. Okay. Is it fair to say that along with the good things
21	that goes to benefit your client in that stack of information,
22	there are some damaging things?
23	A. Yes, sir.
24	Q. Okay. And is that what I understood you to say about the
25	unique nature of mitigating testimony that oftentimes the good
	762
1	goes with the bad?
2	A. Yes, sir.
3	Q. And--
4	THE COURT: Are you gonna be much longer?
5	MR. DAVIS: I've got some more questions, your
6	Honor.
7	THE COURT: All right. Then we're gonna take a
8	ten minute recess with the admonition not to discuss
9	the case.
10	( RECESS. )
11	(RETURN TO OPEN COURT.)
12	THE COURT: All right.
13	BY MR. DAVIS:
14	Q. Mr. Price, let me -- let me jump -- I think we're on Mr.
15	-- Doctor Moneypenny and that testimony. Let me jump to
16	something else briefly and then I'll get back to that.
17	We were discussing a minute ago your strategy in not
18	watering down what you considered to be pertinent evidence
19	about the knife that Mr. Byers gave to HBO with other less
20	significant matters.
21	A. Yes, sir.
22	Q. In other words, focus on what you think were your big
23	points. In regard to appellate procedures in terms of
24	itemizing the issues that you note for appeal, how many points
25	of error did you note or did you list on your appellate brief
	763
1	that you submitted on behalf of this defendant?
2	A. I'm estimating thirty to thirty-five.
3	Q. Okay. And is -- when you list -- and so you allege at a
4	minimum thirty points that you were appealing the decision of
5	the lower Court on?
6	A. Right.
7	Q. Okay. Now, is there some -- in appellate procedure and in
8	writing the appellate brief, is there any theory about trying
9	to not water down your good with the bad or get too extended in
10	terms of the number of issues that are involved?
11	A. The general theory is to -- to focus primarily on your
12	strongest points. In a death penalty case the Supreme -- the
13	Supreme Court has ordered -- we're obligated to abstract every
14	point that's -- every ruling that's adverse to the defendant
15	and we did that. But as far as arguing those points, you still
16	-- it's kind of a balance between -- you put more time and
17	effort into the stronger points that you think you have a
18	better chance at winning on, and less time both pagewise and
19	argumentwise on the -- what are considered, you know, minor
20	trivial points on an appeal.
21	Q. Okay. Did you consider thirty to be a -- I mean, to focus
22	on these thirty, did you consider that to be a conservative
23	approach, or did you -- was that throwing in a lot of items
24	that -- that you considered were marginal in terms of their
25	ability to be successful on appeal?
	764
1	A. In this case, I think we had logical reasons to put forth
2	all thirty points. We origin -- normally, there is a twenty-
3	five page limit on the argument portion on a brief. We filed a
4	hundred page brief, and the Supreme Court came back and cut it
5	to sixty-five pages. So the final brief portion was sixty-five
6	pages of argument as far as we were concerned.
7	On a couple of points dealing with the search warrant
8	issues, we knew that Mr. Ford and Mr. Wadley would be -- they
9	-- they had fewer points to argue and that was -- was one of
10	the areas that they were gonna emphasize, so we ñ we mentioned
11	it, I think, some, but they made the -- the major points that
12	way but we -- and, of course, the Opinion itself was over a
13	hundred pages long -- was the longest in the history of the
14	Arkansas Supreme Court.
15	Q. And so you had sixty-five pages -- that's what the court
16	-- Supreme Court limited you to in terms of your arguments that
17	you submitted?
18	A. Yes, sir, that's correct.
19	Q. Okay. So within those sixty-five pages you had to
20	adequately address the thirty issues that you cited for appeal?
21	A. Right, by referring to the -- the objection that we made
22	at the trial level, the supporting authority for it. We had to
23	include both our objection and the -- of course, the state's
24	response and the Judge's ruling on each of those points because
25	we couldn't -- we couldn't argue anything on appeal that we
	765
1	didn't raise at the trial court level.
2	Q. Okay. So you're -- you as an appellate attorney in that
3	situation, you are required to kind of discard certain things
4	or minimize certain arguments in order to give you more time
5	for the more important arguments you want to make and more
6	pages for those more relevant and, hopefully, more successful
7	arguments, right?
8	A. Yes, sir.
9	Q. Okay. So when you made decisions not to put the
10	transcript or ask that the transcript of voir dire be made a
11	part of the record and object to voir dire proceedings, is that
12	also a strategic decision in terms of limiting how --  how
13	watered down your appellate issues are?
14	A. Yes, sir.
15	Q. And did you -- would -- in your opinion as an attorney
16	representing Mr. Echols, would it have been beneficial to you
17	to raise such an issue and lessen the amount of time that you
18	could devote in your brief to other issues you thought were
19	more important or relevant?
20	A. No, it would have hurt us if we would have raised issues
21	concentrating on voir dire on the appeal because, you know, we
22	didn't
22	use -- bottom line, we didnít use all our strikes, and we
23	couldnít argue any of those points on appeal even if we had
24	wanted to, and that would have taken away pages and time and
25	effort that we devoted to the other aspects -- or the other
	766
1	issues raised on the appeal.
2	Q. Now, let me get back to Doctor Moneypenny. You put Doctor
3	Moneypenny's testimony on to establish the aggravating
4	circumstance that -- and I'm paraphrasing here -- but something
5	to the effect that at the time of the occurrence of the acts
6	the defendant was suffering from mental illness or --
7	A. Prove mitigating -- you said aggravating -- mitigator.
8	Q. Right, to mitigate -- a mitigator.
9	A. Right.
10	Q. You put that on for the purpose of establishing and hoping
11	that the jury would find a mitigator exists that at the time of
12	the occurrence of this the defendant may have been under the --
13	had some mental condition that influenced his behavior --
14	something to that effect?
15	A. Yes, sir.
16	Q. And did you actually study what those mitigators are that
17	are listed in the instruction that you have a shot at proving?
18	A. Yes, sir.
19	Q. Okay. And in doing that, you consulted with the lady from
20	Inquisitor, Inc. who had a vast experience in this?
21	A. Yes, sir.
22	Q. And did she -- did she object to your strategy to use
23	Doctor Moneypenny?
24	A. No, sir.
25	Q. How did you locate Doctor Moneypenny?
	767
1	A. We had tried to find some other witnesses and -- we tried
2	two or three that weren't available and I think -- I think I
3	contacted some attorneys in Little Rock and asked him who's a
4	good doctor to use in mitigation, and that's how we came across
5	Doctor Moneypenny.
6	Q. Okay. Was it your understanding he'd had experience in
7	these matters before?
8	A. Yes, sir. I believe at least two or three other trials he
9	testified in. I think I even got copies of his transcripts in
10	earlier trials.
11	Q. Okay. And did the investigator or the mitigation
12	specialist at Inquisitor, Inc., did she have contact with
13	Doctor Moneypenny?
14	A. I believe -- I believe she did. Maybe she had it
15	directly. She may have -- Mr. Lax may have been a go-between.
16	I'm sure that she -- well, I know that she -- we got the
17	materials she prepared. She may have sent 'em directly to
18	Moneypenny, or we may have sent 'em to him. I don't recall,
19	but I believe that she had had some dealings with him.
20	Q. Okay. And in getting an expert to testify about your
21	clientís mental health condition, do you feel itís incumbent
22	upon you to obtain all of those mental records that
23	might assist him in formulating an opinion?
24	A. Yes, sir.
25	Q. Okay. And is that the reason that you had the Inquisitor,
	768
1	Inc. acquire all those records and supply those to Doctor
2	Moneypenny?
3	A. Yes, sir.
4	Q. Okay. And in any situation like that where you put on an
5	expert witness to testify based on a review of medical records,
6	there's always the possibility that there's something harmful
7	in those medical records, right?
8	A. Yes, sir.
9	Q. Okay. And if you're gonna ask them to render an opinion
10	based on their review of those records, then you recognize as
11	an attorney on the front end that they may also be inquired
12	about -- about some of the less positive things about your
13	client?
14	A. Yes, sir.
15	Q. Okay. And so you recognized that that situation was going
16	to occur on the front end?
17	A. Yes, sir.
18	Q. And the reason you put him on was to establish that
19	mitigator, right?
20	A. Thatís correct.
21	Q. Did it work in terms of establishing that mitigator?
22	A. Yes, sir.
23	Q. Did the jury in their deliberations, in fact, find that
24	that mitigator existed?
25	A. Yes, sir, on the jury instructions.
	769
1	Q. Now, Mr. Mallett asked you a lot of questions about the
2	hearsay that -- he was talking about some hearsay statement in
3	the medical records or --
4	A. In Robert Hicks' book and Lanning --
5	Q. No, I'm still on Moneypenny. In the psychiatric reports
6	which Doctor Moneypenny reviewed, there was some reference in
7	there to somebody who had treated or counseled Mr. Echols as
8	saying -- and I'm paraphrasing again -- something ñ
9	A. It was the Bundy and --
10	Q. -- that he -- that he had all the characteristics of a Ted
11	Bundy or a Charles Manson.
12	A. Yes, sir.
13	Q. Okay. And that was mentioned and brought out in cross
14	examination of Doctor Moneypenny?
15	A. Yes, sir.
16	Q. And Mr. Mallett asked you, couldn't that be considered as
17	evidence to go toward establishing the aggravator that the
18	defendant acted in an especially cruel and depraved manner.
19	Okay, what --
20	A. Yes, sir.
21	Q. What are your views on that? What do you think?
22	A. I donít think that -- that evidence is -- is a basis to
23	support that aggravator.
24	Q. Okay. Now, in terms of when you look and you're trying to
25	weigh whether to enter something that could be good, it could
	770
1	be bad and balancing, in this particular case, what evidence
2	was already before the jury that they had found your client
3	guilty of that would establish that this crime was committed in
4	a cruel and depraved manner?
5	A. They'd already found him guilty of the three murders.
6	Q. Okay. But was there any evidence that was presented up to
7	the point that they hear this hearsay reference that Mr.
8	Mallett referred to as something about Ted Bundy and Charles
9	Manson -- is there other evidence in the record that already
10	goes a long way toward establishing that this crime was
11	committed in an especially cruel and depraved manner?
12	A. The damage to the -- the private part and the genitals of
13	one -- one of the boys.
14	Q. From a standpoint of what you thought going in as an
15	attorney once your client had been convicted, and knowing the
16	state of the evidence, the photographs they had seen, the
17	descriptions from the medical examiner, the terrible torture
18	and mutilation of these three children, was there really any
19	hope from a defense standpoint that the jury wasn't going to
20	check the box that this crime was committed in a particularly
21	cruel and depraved manner?
22	A. There was -- there was hope but whether it was realistic
23	or not, I mean, it -- there certainly was evidence there that a
24	jury could check that aggravator based on the evidence up to
25	that point.
	771
1	Q. Okay. Besides -- without anything coming in in the
2	punishment phase of the trial at all, there was an abundance of
3	evidence in which that box would have in all likelihood could
4	have been checked --
5	A. Could have been checked.
6	Q. In this case?
7	A. Yes, sir.
8	Q. Okay. So your decision in terms of the mental health
9	records is ---in the balancing of whether I let the bad in with
10	the good -- your decision is, what difference is a little more
11	that goes toward this cruel and depraved aggravator versus the
12	benefit I can get from establishing that my client has had a
13	prolonged history of treatment for mental illness and disease,
14	correct?
15	A. Correct.
16	Q. Okay. And you made the strategic decision that whatever
17	harm -- additional harm might come from this reference to Ted
18	Bundy or any of the damaging things, that seeing hundreds of
19	pages showing that your client had been treated and had an
20	ongoing mental condition for which he was being treated and
21	medicated and other things, would be more beneficial than
22	whatever harm it caused?
23	A. Yes, sir.
24	Q. Now, Mr. Mallett asked questions about the threats and
25	comm -- threats or communication of the jury. I believe it was
	772
1	Mr. Arnold and Mrs. Dacus brought those up. You were present
2	when the Court had the jury questioned about those particular
3	instances?
4	A. Yes, sir.
5	Q. Were they brought in -- do you recall if they were brought
6	in one by one or individually or in a group? I'm asking this
7	honestly because I can't remember.
8	A. I don't recall. I remember we were back in the jury room
9	and I remember they still had the charts up comparing what they
10	thought of each of the witnesses.
11	THE COURT: The way I remember it--
12	THE WITNESS: I don't --
13	THE COURT: -- we brought in Mrs. Dacus and Mr.
14	Arnold and then individually all the jurors one at a
15	time.
16	BY THE WITNESS:
17	A. 'Cause I don't believe that we would have had six
18	attorneys, the Judge, the Court Reporter, plus the two
19	defendants, plus twelve additional jurors all in that room --
20	plus the security all in there at the same time Iím
21	speculating it was one at a time, but I don't -- I don't have
22	any independent knowledge either way.
23	Q. Okay. And that procedure is done after three weeks worth
24	of trial, a punishment phase is just concluded, your client has
25	just received the death penalty, and we're going back there and
	773
1	-- and asking these questions of jurors who served on the
2	case, right?
3	A. Right, four weeks of trial, but yes, sir.
4	Q. All right. Pretty -- as a defense counsel, I donít --
5	I assume the defense attorneys were like us -- pretty exhausted
6	at that point in time?
7	A. Yes, sir.
8	Q. Okay. Did -- was there anything from the response of the
9	jurors or from the way it was conducted that made you seriously
10	feel like any of those contacts that the Court was inquiring
11	about had actually affected or prejudiced or caused the jury to
12	vote one way or another in this case?
13	A. No, sir.
14	Q. And were you satisfied with the manner in which the Court
15	inquired of the prospect -- of the jurors that served in terms
16	of inquiring into this issue and making a record of it?
17	A. Yes, sir.
18	MR. DAVIS: One second, your Honor.
19	BY MR. DAVIS:
20	Q. And as far as interviewing jurors individually other than
21	what the Court did back there, you indicated you didnít do
22	that? I mean, after -- after all -- after the Court goes
23	through this procedure and brings the jurors in one by one and
24	take them, did this come out and did it affect you, anything ñ
25	you didnít go back after that procedure is over with and
	774
1	contact the jurors one by one and inquire further of them about
2	this?
3	A. About that issue?
4	Q. Right.
5	A. No, sir.
6	Q. Okay. Did you talk to some jurors about generally what
7	their observations were and --
8	A. Yes, sir.
9	Q. -- that sort of thing?
10	A. But we had one of the jurors contact us several weeks
11	after the trial and said they -- they wanted to talk to us
12	about the trial. So we didn't initiate it, but we went and
13	talked to that -- that juror.
14	Q. Okay. And were there any -- did you initiate any contact
15	with jurors -- call them up and say, we're interested in
16	finding out what you were thinking?
17	A. I'm trying to remember it there was any -- no, sir, I --
18	there -- I can't remember if there were any of the jurors that
19	I personally knew that I may have had brief conversations with
20	but as far as calling any of 'em up,
21	particularly immediately after the trial, I don't think I did
22	that.
23	Q. Have you ever done that in a case before -- after
24	trial, call up all the jurors and try to find out what their
25	responses were?
	775
1	A. I've had some cases actually after the term's over with --
2	because, you know, normally, we have two or three week terms
3	and after the entire termís over, somebody that I have
4	personally known from before, I will sometimes inquire with
5	them. And a couple of times I've had jurors call me up to just
6	discuss, you know, the case in general.
7	Q. And when you do that, sometimes they talk with you and
8	sometimes they don't?
9	A. Right. I mean, if they -- yeah -- if they don't want to
10	talk I don't do anything -- go further with 'em.
11	Q. And sometimes they-- they don't like your side and they
12	don't want to give you anything that they think would be
13	beneficial, right?
14	A. That's correct.
15	Q. Okay. And so in this case, you decided from a strategic
16	standpoint there wasn't anything to be gained from doing that,
17	correct?
18	A. Right. We didn't -- we didn't just generally go down the
19	list and call all the -- all the jurors.
20	Q. Mr. Mallett asked you questions about Joyce Curetonís
21	availability as a witness. This is one of their allegations in
22	the petition that they didnít flesh out, so this is the first
23	time Iíve heard about it.
24	Did you subpoena her as a witness?
25	A. I don't think we did.
	776
1	Q. Okay. Do you feel like if you didn't subpoena her and
2	hadn't issued a Subpoena for her, do you think you did anything
3	in terms of lacking effectiveness of counsel for Mr. Echols by
4	not subpoenaing her?
5	A. No. No, and I -- I could speculate that Jason was in the
6	Craighead County Juvenile Jail during the entire time prior to
7	the trial. And Ms. Cureton was in charge of the juvenile jail
8	And I know sometimes attorneys will call jailers in as
9	mitigating witnesses. And I speculate that's what they may
10	have done with Ms. Cureton. Mr. Echols was housed
11	other jails until a week or so before our trial started, so she
12	didn't have that exposure to him.
13	Q. So I would guess that if you were able to call her as a
14	mitigator and, you know, we're -- we're now speculating, but
15	what she could testify to would be her experience with Damien
16	while he was here for the three or four weeks during the trial?
17	A. Right. But even then Damien was -- was eighteen so he was
18	not a juvenile, and he was not housed in the juvenile part of
19	the jail. I think they -- there was some time where they
20	housed him separately from other inmates and she may have been
21	-- had something to do with that part of the jail.
22	Q. But at best, all -- I mean, from where you stand here
23	today looking back at things, Ms. Cureton, if she had been
24	subpoenaed, if she had been available, and if she were called,
25	could have testified that Damien was a good inmate for the
	777
1	three or four weeks he was out here in our juvenile facility --
2	would be the kind of mitigator that she could have provided?
3	A. But even that I think is -- is wrong because he wasn't in
4	the juvenile part of the jail. I'm trying to think -- 'cause I
5	know they've moved -- they've moved -- they've done some
6	changing of moving females and juveniles and juvenile females
7	and the juveniles -- I do remember one part of the jail that we
8	--- we talked to Mr. Echols on some occasions, and she may have
9	been the matron in charge of that portion at that time. But as
10	far as -- I mean, I -- I -- I don't think her testimony would
11	have helped at all.
12	Q. Okay. And so you sure can't see much reason why somebody
13	would have gene out of their way to suggest she leave the
14	jurisdiction so she wouldn't have to provide that crucial type
15	of testimony that he had been out at the jail for three or four
16	weeks?
17	A. It certainly has -- I don't see any -- any relevance to
18	Mr. Echols at all.
19	Q. Okay. Now, the testimony by Mr. Hicks, your -- I guess
20	heís the --
21	A. -- anti-cult expert.
22	Q. -- anti-cult expert. Now, how did you find Mr. Hicks?
23	A. Mr Lax did some checking and researching on the
24	different sources of people who had written and -- in this
25	field, and his name came across -- and I don't know if  Mr.
	778
1	Echols (sic) may have found his book first and then contacted
2	him or found him and he mentioned that, I've got a book out.
3	But I know at some point ill there, we -- we obtained his book
4	and then talked to him on the phone.
5	Q. Okay. So -- so you do that after you realize the state
6	has listed Doctor Griffis as a witness, right?
7	A. Right.
8	Q. Okay. And so when we list Griffis, you and Lax, or Mr.
9	Lax by himself, or somebody, finds out what Griffis is all
10	about in terms of what his particular testimony is, and then
11	you -- you all make the determination that you need an expert
12	to counter it?
13	A. Right. And I think we had conversations with him at the
14	-- you know, since -- since he would be an expert witness. I
15	think -- I believe Mr. Griffis testified on more than one day
16	and we may have -- I think we had -- we called him at nighttime
17	to tell him what Griffis has said so far that day and got his
18	responses on how to cross examine him plus we used him, and we
19	decided to call him as a direct examination as our witness as
20	well.
21	Q. Okay. And so you evaluated what Griffisí testimony was
22	gonna be with the assistance of Mr. Lax, your investigative
23	expert, you determined it was a good idea to have an expert of
24	your own, right?
25	A. Yes, sir.
	779
1	Q. And then with the assistance of Mr. Lax you go out and
2	secure an expert from ñ who is from Virginia -- is that right?
3	A. Richmond, Virginia, yes, sir.
4	Q. Okay. And he had written books --
5	A. Writ (sic) a book The Pursuit of Satan, against the
6	anti-cult experts and we read that one week-end during the
7	trial.
8	Q. Okay. And did you have a chance -- he also assisted you
9	not only by providing testimony but assisted you in your
10	preparation and examination of Doctor Griffis, correct?
11	A. Yes, sir.
12	Q. Did you appeal the -- in terms of your -- the issues
13	involving what he wasn't allowed to go into in his testimony
14	referring to other treatises and things of that nature -- was
15	that issue raised on appeal?
16	A. There were two issues -- and I get 'em confused -- but the
17	Judge had made a ruling, I think when I was questioning Griffis
18	about -- I want to say Ken Lanning, the FBI expert -- and the
19	Judge had made a ruling concerning that testimony and then the
20	Judge had made another ruling on whether or not we could
21	question Hicks on the same -- or similar testimony, and I
22	believe I raised both those points. I mean, I was alleging
23	that the Judge had -- had changed his mind because he allowed
24	it one time and didn't allow it the other time and I believe we
25	raised that -- both those issues. I don't have my brief in
	780
1	front of me, but I thought -- thought we raised both of 'em.
2	It ought to be under the Table of Contents or --
3	Q. Number nineteen, the trial court erred when it sustained
4	the state's objection to hearsay when Echols attempted to ask
5	Hicks about the scholarly treatise of Lanning?
6	A. Right. And I think there's another related one -- it
7	might have been a couple of points before that.
8	Q. So that issue was raised on appeal?
9	A. Yes, sir.
10	Q. And the Supreme Court had an opportunity to address it?
11	A. Yes, sir.
12	Q. Okay. And --
13	MR. DAVIS: One second, your Honor.
14	Your Honor, may I approach the witness?
15	THE COURT: Yes.
16	BY MR. DAVIS:
17	Q. I'm showing you what is on the bottom of page five thirty
18	of the Supreme Court's decision in this case where it says --
19	where it makes its ruling on that particular issue of appeal.
20	A. Yes, sir.
21	Q. Where it says, ìMoreover,î could you read that, please?
22	(HANDING TO WITNESS)
23	A. Moreover, Echols could not have suffered any prejudice
24	from the ruling because the information was later given to the
25	jury."
	781
1	Q. And so that issue was preserved for appeal, was appealed
2	and the Supreme Court determined that there was no error that
3	could be attributed to that -- or no damage because, in fact,
4	that information was provided?
5	A. Yes, sir.
5	Q. Okay.
7	THE COURT: Didn't I reverse myself on that and
8	allow you to read from the treatise? I thought I did
9	but maybe I didn't.
10	MR. DAVIS: Pass the witness, your Honor.
11	THE COURT: Anything else?
12	MR. MALLETT: Yes, sir.
13	REDIRECT EXAMINATION
14	BY MR. MALLETT:
15	Q. Mr. Price, when Mr. Davis began his cross examination, he
16	said, I have just a few questions. I'm reluctant to make that
17	same statement.
18	In your time as public defender here in this county and
19	the three counties in Arkansas, I take it that you frequently
20	find yourself in court with Mr. Davis, do you not?
21	A. The other two counties, no, but in Craighead, yes, sir.
22	Q. And likewise over the years frequently in court with Judge
23	Burnett?
24	A. Yes, sir.
25	Q. You are professional colleagues and pursuant to the laws
	782
1	of the State of Arkansas work together within the system of
2	Justice -- the elected Judge, the public defender, the
3	prosecuting attorney?
4	A. Yes, sir.
5	Q. As a matter of choice, these are professional decisions
6	that you have, at least, made and presumably decisions that
7	they have made freely and voluntarily?
8	A. Professional decisions --
9	Q. That you would work as public defender and --
10	A. Oh, yes, sir
11	Q. -- Mr. Davis as the prosecuting attorney, and Judge
12	Burnett as the Judge.
13	A. Yes, sir.
14	Q. And within the context of the adversary system, you may
15	not be close personal friends, but you are at least
16	professional colleagues working within the same system and
17	frequently at the same courthouse?
18	A. Yes, sir.
19	Q. Have you also had occasion to travel together from time to
20	time to attend professional meetings and conferences and
21	training sessions?
22	A. Weíve traveled some together.
23	Q. And tell us about that, please.
24	A. I know there was a -- a -- I guess a seminar on alternate
25	sanctions that we went to Tampa, Florida, as part of five
	783
1	different judicial districts in Arkansas. And Judge Burnett
2	went and Mr. Davis went and the public -- probation officer
3	went and I went as the public defender and then we had the same
4	teams for four -- I believe, four or five other counties plus
5	other people from the Department of Community Punishment,
6	Sentencing Commission and some other state officials from
7	Little Rock.
8	Q. And is it fair to say -- and I say this not as a criticism
9	at all but just simply a statement of fact that everyone knows
10	-- that even after these proceedings are over, your
11	professional relationship with the prosecuting attorney and the
12	Judge presumably will go on. You probably have many cases in
13	pending right now?
14	A. Yes, sir.
15	Q. All right. And you understand that it's in the nature of
16	a Rule 37 proceeding -- in a proceeding seeking post-conviction
17	relief after the assessment of the death penalty -- that under
18	the pleadings that we have filed and that are filed in such
19	cases, the lawyer who is the trial lawyer at the time of trial
20	in a sense in forced or asked or requested to defend the work
21	he did during the trial.
22	A. Yes, sir.
23	Q. And so without there actually being a pleading stating
24	that you're a party, you become -- at least along with your
25	colleague, Mr. Davidson -- a necessary witness --
	784
1	A. Yes, sir.
2	Q. -- to the fair disposition of the claims under the Rule 3
3	proceeding.
4	A. Yes, sir.
5	Q. All right. So it's not really that you're on trial but
6	maybe to some extent your work is under examination?
7	A. Yes, sir.
8	MR. DAVIS: Your Honor, this whole -- I mean,
9	to establish a record -- I don't know whether Mr.
10	Mallett is apologizing to Mr. Price as to why he's
11	ripped him for three days -- I don't know what it is,
12	but it's not relevant. I mean, we could be up here
13	for years if he goes into all this stuff on every
14	redirect with every witness. I mean, he can cover
15	the things I covered on cross examination of his
16	witness -- but, Lord, we'll be here for months.
17	THE COURT: Well, I'm not sure what your
18	objection is, but I guess --
19	MR. DAVIS: My objection is there's nothing
20	relevant --
21	THE COURT' I sustain it if it's --
22	MR. DAVIS: -- to what he's asked in the last
23	five minutes.
24	THE COURT: Is it relevancy alone? Okay. Let's
25	move along.
	785
1	MR. MALLETT: I will, your Honor.
2	THE COURT: All right.
3	BY MR. MALLETT:
4	Q. As I was listening to you answer Mr. Davis' questions --
5	which he asked in a leading form -- that is, it was suggestive,
6	I think, to you as a witness what answer he would prefer that
7	you give -- is that a fair statement? Was he generally leading
8	you throughout the last interrogation?
9	A. Quite a bit of his questions were leading.
10	Q. All right. And, for example, to illustrate, one of the
11	questions that he asked you in this undertaking that we've been
12	listening to this afternoon was, if you had to do it again,
13	would you make the same call. I think at that time we were
14	discussing what questions you were asking Mr. Byers, correct?
15	A. Yes, sir.
16	Q. And you said, yes, I would make the same call, right?
17	A. Yes, sir.
18	Q. And that is an answer that, in fact, doesn't (sic) defend
19	the call that you previously made.
20	A. Doesnít defend it?'
21	Q. Well, does it, yeah -- don't you think?
22	A. Yes, sir.
23	Q. Okay. Now, hindsight is a powerful thing, and I know that
24	if we had the power of hindsight we probably wouldn't be here,
25	we'd be down investing in the stock market because we would
	786
1	know what was gonna happen tomorrow. We'd only do cases to
2	advance social causes or appropriate personal agendas perhaps.
3	But we don't all have the power of hindsight.
4	In hindsight -- using the power of hindsight we know that
5	the sum result of the tactical and strategic decisions that you
6	made at trial were that Damien Echols was convicted of capital
7	murder, assessed the death penalty by a jury, and his
8	conviction was affirmed on appeal, right? That's -- that's
9	what happened -- that's what hindsight tells us.
10	A. That's what hindsight say happened.
11	Q. All right. So that if every decision you made at trial
12	was different, the result wouldn't have been worse from the
13	standpoint of the case as it existed the day the Supreme Court
14	affirmed the conviction. With the power of hindsight, you lost
15	on everything -- in all the courts -- guilt, punishment, appeal
16	-- thirty points on appeal. None meriting a new trial. You
17	lost everything.
18	A. And the U.S. Supreme Court, yes, sir.
19	Q. And the U.S. Supreme Court.
20	A. Yes, sir.
21	Q. So are you absolutely sure then in hindsight
22	that if you had it to do over again, you would want to do
23	everything exactly the same?
24	A. Am I absolutely sure?
25	Q. Sure.
	787
1	A . No.
2	Q. All right. Let's then go through a few of the points
3	about which you gave testimony under questioning by Mr. Davis.
4	The issue of whether you had a fair jury to decide the
5	case. You have known since law school that this is taught in
6	law school to be an adversary system of justice in which one
7	side -- the plaintiff or the prosecution -- puts on the
8	strongest case they can. The other side -- defense -- civil or
9	criminal -- puts on the strongest case they can, the jury
10	decides. The jury decides in effect the truth of the truth of  the case
11	under the rules of evidence and the law that is
12	given to them by the Court.
13	A. Yes, sir.
14	Q. That's what is called the adversary system of justice,
15	right?
16	A. That's correct.
17	Q. So when we discuss what kind of jury a lawyer wants
18	prosecuting a criminal case, wouldn't you speculate that a jury
19	in a capital -- excuse me -- that a prosecutor in a capital
20	case probably wants a jury of twelve people that are strongly
21	in favor of the death penalty and willing to participate in
22	giving it. I mean, that's what a prosecutor should call a fair
23	jury, donít you think?
24	A. Perhaps, and I've never been a prosecutor. I've never
25	picked a jury for --
	788
1	Q. I mean, Just in your own mind, wouldn't a prosecutor
2	prefer to have, you know, twelve homicide detectives or prison
3	guards?
4	A. Quite possibly.
5	Q. All right. And likewise when we talk about wanting a fail
6	jury to decide a case, as an advocate -- as an advocate, you
7	want as best you can to have jury -- jurors on your jury in a
8	capital case who have reservations about the death penalty --
9	even though theyíre qualified to give it in a proper case -- so
10	that when they read the evidence you hope they will find -- in
11	the event of a conviction -- that your client is on whose
12	situation under the facts would justify a vote for life and not
13	death, right?
14	A. Yes, sir.
15	Q. Okay. And likewise when you select a jury and you have a
16	client who has told you he was innocent -- has Damien Echols
17	has always -- always told you he is innocent of this offense,
18	hasn't he?
19	A. Yes, sir.
20	Q. All right. So when you have a client who has denied at
21	times the commission of the offense, you as an advocate in
22	the adversary system of justice want to seat a jury that will
23	-- you hope -- believe in and follow the law which is that
24	there is a presumption of innocence, hold the prosecution to
25	its burden of proof and, you hope, find at the end of all the
	789
1	evidence they are not persuaded and the proper verdict is not
2	guilty, right?
3	A. Yes, sir.
4	Q. Right. So generally then, it is fair to say that what is
5	a fair jury is -- from your standpoint -- a jury most likely to
6	acquit and in the event of conviction return a sentence of life
7	and not death. That's what you want.
8	A. Yes, sir.
9	Q. Okay. Then when you seated your jury, you seated a jury
10	whose audible responses didn't appear of record in many cases
11	as both sides have said, but you have indicated that you would
12	make note of the body language of the prospective jurors at any
13	trial. Is that what you told Mr. Davis and Judge Burnett --
14	that if the jurors were quiet you would make note of the body
15	language?
16	A. Yes, sir.
17	Q. All right. Do you mean to indicate to me that we can go
18	to the file boxes of notes that you've retained in this case,
19	and we'll find notes that you've made of body language of all
20	of these silent jurors -- a hundred and thirty of them -- being
21	questioned as a group by Judge Burnett?
22	A. I donít recall that a hundred and thirty of 'em were
23	questioned by Burnett.
24	Q. well --
25	A. I recall -- that we put the box -- we put eighteen in the
	790
1	box. I don't think -- I recall his questions being -- the
2	initial questions to the ones in the box -- not -- not to the
3	hundred and thirty --
4	Q. With -- with the remaining people out in the courtroom?
5	A. Yes, sir.
6	Q. All right. A hundred and thirty people in the courtroom.
7	A. A hundred and thirty people -- right.
8	Q. And then a smaller group in the box, and it was the group
9	in the box that was not responding, right?
10	A. That's my -- my recollection.
11	Q. All right. And then do you have notes that every time
12	there was no audible response you took notes of physical
13	responses?
14	A. Well, you know, Mr. Schay has looked at all my notes. I
15	don't specifically recall exactly what's in all my notes.
16	Q. Well, I mean, do you -- do you believe that you would have
17	taken notes of physical responses every time they sat there
18	silently?
19	A. You mean, if I nodded (sic) down, all eighteen jurors have
20	nodded their head after each question, I don't think I did
21	that. I do think I would look at, you know, the juror, Ms.
22	Smith, and -- and I may have made some mental notes as to, you
23	know, my impressions of a particular juror.
24	Q. Mental notes. Of course, you understand that in a capital
25	case there is always a possibility for a hearing like this
	791
1	hearing. You understand that. I mean, you understood that
2	when you undertook this representation?
3	A. Yes, sir.
4	Q. So you understand the importance of having a record of
5	what exactly occurred in the courtroom?
6	A. Yes, sir.
7	Q. All right. Mr. Davis asked you whether physical responses
8	can be reflected in the record, and I believe you answered, no
9	those would not be reflected in the record. Do you recall
10	giving that answer?
11	A. Yes, sir.
12	Q. Well, is that completely correct? For example, have you
13	ever been in a courtroom when a lawyer said, may the record
14	reflect that the witness is smiling, or the witness is
15	laughing?
16	A. His question dealt with the jurors' responses.
17	Q. Have you ever been in a courtroom where lawyers said, may
18	the record reflect that the prospective juror is standing up,
19	sitting down, smiling, talking to the Juror to their right or
20	looking at the ground, reading a book, sleeping
21	-- anything of that nature?
22	A. I donít believe so, no, sir.
23	Q. So youíre  not aware --
24	A. As far as a juror. Now, as far -- the second part of
25	your question dealing with -- as a witness, yes, I -- I've
	792
1	seen responses where, you know, let the record reflect that
2	the witness is doing such and such, or the witness is making a
3	gesture, or the witness is -- yeah -- doing something, and,
4	you know, sometimes I will physically -- I will state, well,
5	the juror (sic) is standing up and moving their hand in a -- as
6	if they're firing a pistol or something of that nature.
7	Q. Oh. So that's called -- might be called verbalizing
8	conduct or verbalizing your observations, right?
9	A. Observations of witnesses, yes, sir.
10	Q. So we can protect the record from being silent and
11	inaudible by verbalizing observations for the record, right?
12	A. Are you talking about as a witness, or as a juror?
13	Q. As a juror.
14	A. I mean, I don't think I've ever verbalized jurors'
15	responses like that.
16	Q. Interesting. Have you ever heard a judge say something
17	substantially like this: I take it from your silence that all
18	of you feel the same as Mr. Brown?
19	A. Yes, sir.
20	Q. Hypothetically, Mr. Brown.
21	A. Yes, sir. Iíve heard that quite often.
22	Q. Okay. So that is another way of verbalizing observation
23	of what goes on, right?
24	A. Yes, sir.
25	Q. But you've now seen in this record a series of questions
	793
1	followed for this Court to review today and any other court to
2	review at any time with the recording of no audible response,
3	right?
4	A. Yeah, I've seen no audible response in the record, yes,
5	sir.
6	Q. Now, when Mr. Davis then took you from the fact that you
7	had no idea of how a non-verbal response could be made a part
8	of the record, the next thing he went and asked you about was
9	the fact that you didn't ask any questions in jury selection
10	about this notion that there are people who are Satanists which
11	I translate as they worship Satan or who prefer, I guess, a
12	life of fire and brimstone to a life of eternal bliss -- at one
13	with God -- I guess that's what that means. You -- you didn't
14	ask any questions of the prospective panel --
15	A. That's correct.
16	Q. -- of how they felt about that notion --
17	A. That's --
18	Q. -- at all?
19	A. Yes, sir, that's correct. That's correct.
20	Q. Because you assumed that these people who had sworn an
21	oath to God to tell the truth would if they were Satanists just
22	lie about it.
23	A. No, I don think they were sworn to God --
24	Q. Well, did you swear the panelists to give true answers?
25	A. Swear or affirm the testimony you're about to give.
	794
1	Q. That's not -- in Arkansas it's not a religious oath?
2	A. No, sir.
3	Q. But they did swear or affirm, I presume, under -- what --
4	risk of perjury if they told a deliberate lie -- I presume the
5	statute would still apply --
6	A. Yes, sir.
7	Q. -- to a false statement under oath?
8	A. I mean, there's -- there is an oath that they take prior
9	to voir dire.
10	Q. All right. So you assumed that they would not tell the
11	truth and that's why you didn't ask these questions about Satan
12	worship?
13	A. I assumed that no one would -- would admit that they were
14	-- believed in occult or Satanism.
15	Q. Or did you consider asking them how they felt about the
16	notion that satanic cults might exist in rural Arkansas?
17	A. We may have talked about it.
18	Q. But you didn't ask that question either?
19	A. I mean, you'd have to look at the record.
20	THE COURT: I've got to interject here just a
21	minute, Mr. Mallett.
22	Have you read the entire voir dire?
23	MR. MALLETT: Yes, sir.
24	THE COURT: Extensive questions were asked by
25	defense counsel of three witness -- three prospective
	795
1	jurors at a time, and those were verbal responses
2	that are recorded. You're pointing out questions in
3	general that the Court asked. Somewhere in that
4	record, I suppose, I probably asked tile very question
5	you did -- I assume from your silence that each of
6	you have no response to the question -- or words to
7	that effect.
8	But, as I recall, Mr. Ford and Mr. Price both
9	asked numerous questions, and they were voir dired on
10	the issue of their beliefs in the occult, or
11	whatever, in great detail. And I think that the
12	record that you have obtained would ñ would support
13	and reflect that.
14	I mean, you're leaving it as if Mr. Price asked
15	no questions or left unanswered a question hanging in
16	the air. That's -- that's not what happened. I want
17	the record to be clear on that. So whatever is in
18	the voir dire record will reflect the specific
19	questions and answers.
20	So I think you need to ask him --
21	MR. MALLETT: I donít mean -- I donít mean to
22	quarrel with the Court, so Iíll start by answering
23	the Courtís question.
24	THE COURT: All right.
25	MR. MALLETT: Yes, I read the voir dire.
	796
1	THE COURT: All right. Did it not reflect
2	questions and answers?
3	MR. MALLETT: It did not reflect questions and
4	answers into the belief of those who were available
5	to serve on the jury into their feelings about this
6	notion of satanic beliefs, satanic cults, the
7	occult --
8	THE COURT: That wasn't asked by anyone present?
9	MR. MALLETT: I look at those twelve people,
10	your Honor, and I look at the questions that were
11	asked them in small groups and the way that it was
12	handled, and it is as though a vacuum was placed
13	around them, and the Court very carefully asked them
14	that if whatever it was that they have heard about
15	the case, they can set it aside and decide the case
16	through the evidence.
17	The question, how do you feel about this notion
18	of satanic cults -- whatever -- I'm not finding it.
19	THE COURT: Of course, that's the reason we
20	sequestered the -- the -- did a -- a inquiry in the
21	back so those sensitive questions could be asked and
22	I am under the impression that they were asked. But
23	you say they weren't then --
24	MR. MALLETT: And I -- I -- I'm -- I'm not -- I
25	mean, I'm not -- you know, you're the Judge and not a
	797
1	witness, and I'm not meaning to sound like I'm
2	interrogating the Court.
3	THE COURT: Well, I understand that. I mean, it
4	-- it -- well, go ahead.
5	MR. MALLETT: And, in fact, your Honor --
6	THE COURT: I'm not sure what point you're
7	trying to make is what I'm getting at because I -- I
8	have a different recollection of -- of what did
9	happen in the voir dire.
10	MR. MALLETT: Well, of course, now I'm reviewing
11	matters that Mr. Davis reviewed that in turn are
12	claims in our Petition for a Rule 37 ruling.
13	THE COURT: All right. Go ahead.
14	BY MR. MALLETT:
15	Q. And do I understand from your earlier testimony that you
16	did not consider at the time of jury selection this subject of
17	the satanic here in rural Arkansas wasn't an important subject
18	worth asking about? Is that what I understood you to say when
19	Mr. Davis was asking you questions?
20	A. Did we ask any questions on voir dire about that subject?
21	Q. Iím asking if you thought it was important.
22	A. Before I could answer that question, I have not looked at
23	voir dire. Did we ask any questions on that subject on the
24	voir dire?
25	Q. No.
	798
1	A. No. I anticipate we probably thought about that -- that
2	subject, but we decided not to ask any questions about it.
3	Q. You have no present recollection of what the agreement was
4	between you and Mr. Davidson about how you would deal with this
5	here in rural Arkansas -- this idea of cults and satanic
6	meetings and satanic killings.
7	A. What agreement are you referring to?
8	Q. Any agreement between you and Mr. Davidson about what --
9	A. You mean discussions about how we --
10	Q. How -- whether you would ask it -- raise it to the jury --
11	educate them, bring it up, let them -- let them know -- find
12	out what their feelings were, see if they would be inclined to
13	believe that if those were the circumstances under the state's
14	theory they would disregard all other evidence and find guilt
15	because of their profound religious --
16	A. I mean, I would anticipate that we talked about that
17	subject, but as far as any specific knowledge of that
18	discussion, no, I don't -- don't recall that.
19	Q. Do you believe that a constitutionally adequate voir dire
20	would have included probing questions into this very sensitive
21	area?
22	A. I think this was a constitutional voir dire.
23	Q. Well, thatís defending the voir dire that you --
24	A. That's -- that's correct.
25	Q. -- did but if --
	799
1	A. That's what you're asking me to do and I'm -- I'm doing
2	that.
3	Q. There was testimony about what publicity to which the
4	jurors had been exposed. And you said, well, if I knew where
5	they lived I would know what newspapers they read, or what the
6	media was, so I would know what they had been exposed to. Do
7	you recall giving us that information?
8	A. Today or on -- back in --
9	Q. Today. Today. If a juror identified the source of
10	information, I would know what they'd read because I knew what
11	stories had been published.
12	A. All right.
13	Q. Did you say that to Mr. Davis?
14	A. I believe I did.
15	Q. How did you know what stories they'd read?
16	A. Well, because the primary newspapers that were covering
17	this were the Commercial Appeal from Memphis, the Arkansas
18	Democrat-Gazette, the Jonesboro Sun, and the West Memphis
19	Times were the three -- or the four newspapers that primarily
20	covered this story.
21	Q. And by knowing that a prospective juror had read any one
22	of those publications, would know which story they had read
23	that there were trappings of Satanism, that Misskelley had
24	confessed, that Damien Echols wore black -- would you know what
25	content they had read from knowing the --
	800
1	A. I read all those stories.
2	Q. Did you know if the jurors had read all the stories?
3	A. Had read any specific stories?
4	Q. Yes.
5	A. No, sir.
6	Q. Yes. How did you know the jurors had read specific
7	stories?
8	A. I mean, I didn't know that the jurors had --
9	Q. So you only knew what information they might have been
10	exposed to, correct?
11	A. Yes, sir.
12	Q. And did not ask them to tell you the contents of the
13	information they had previously received about the case'?
14	A. Yes, sir.
15	Q. As I was listening to you answer Mr. Davis' questions
16	about the Jury anticipating more evidence of the satanic than
17	was presented, I thought you were telling me that what you
18	wanted to have was a jury who knew everything about the
19	Misskelley trial. Is that what you intended to be telling us?
20	A. No, sir.
21	Q. It was as though you believed that the more prejudiced in
22	favor of these boys being the murderers of those three little
23	boys --  the more prejudiced they were in that favor at the
24	beginning of your trial the better off you were because your
25	case would be a different case than the Misskelley case. Is
	801
1	that what you intended to tell us?
2	A. No, I didn't say that.
3	Q. What did you say?
4	A. You know, you're saying, the more prejudiced -- I'm -- I'm
5	--
6	Q. Well, what did you intend to say -- to communicate when
7	you were saying that we believe the Jury anticipated a very
8	strong state's case in this area, and it wasn't so strong.
9	What was -- what was you trying to tell us?
10	A. I was trying to say I -- the jury thought there would be
11	more evidence of the crime itself and of Satanism and the
12	occult and that type of -- of evidence, and that evidence
13	didn't come forward.
14	Q. And so you wanted a jury that already had all that
15	accusation, the Misskelley trial, the Misskelley confession,
16	the Misskelley conviction, you wanted that as part of your
17	theory of defense in the trial that started two weeks after the
18	Misskelley verdict?
19	A. Well, now you're saying -- Misskelley didn't have that
20	much evidence about the occult. In the confession of
21	Misskelley there was evidence of the occult, but there was not
22	that much other evidence in Misskelley's trial about this being
23	a satanic, cult-related killing.
24	Q. So you wanted a jury that knew all about the Misskelley
25	trial, right?
	802
1	A. Well--
2	Q. Did -- I mean, that --
3	A. They did know about it.
4	Q. And you -- I'm trying to figure out as you were listen --
5	answering questions for Mr. Davis if that's the kind of jury
6	you wanted. Was it? The jury who was fully informed about the
7	Misskelley trial so they would see your trial was different.
8	Was that your strategy?
9	A. That -- that was one of our strategies.
10	Q. All right. So you didn't want a jury that was gonna set
11	aside everything they had heard. You wanted a jury that was
12	gonna remember everything they had heard and then know that
13	your case was different. That's what you told Judge Burnett
14	today.
15	A. Not necessarily, no, sir. I did not want the jury to know
16	the details of the Misskelley confession, and they didn't know
17	about that from our trial.
18	Q. Well, what did --
19	A. 'Cause the Misskelley confession didn't -- didn't come in
20	in our trial.
21	Q. How did you know what the juries knew from reading all of
22	these fine publications that you had read? The Misskelley
23	confession was certainly reported by all the media widely
24	spread and widely reported, right?
25	A. Yes, sir.
	803
1	Q. Al1 right. So you wanted a jury, not that would set aside
2	what they had heard from the Misskelley trial, but would
3	remember the evidence from the Misskelley trial and then
4	compare it to the evidence adduced in Mr. Echols' trial.
5	A. In a certain aspect. That's -- that's one of the factors
6	we looked at.
7	Q. Thank you.
8	A. We -- there were other witnesses in Misskelley's trial
9	that didn't take -- that didn't testify in our trial. So,
10	no, that's not a complete answer.
11	Q. It was one of your desires?
12	A. It was one of 'em.
13	Q. As I was listening to you talk about Michael Carson and
14	how the choice you made was to rely on the Court's limiting
15	instruction rather than assist in undermining the truthfulness
16	of Michael Carson -- if it could have been done -- because of
17	the possibility you might fail.
18	A. I didn't say that.
19	Q. Well, what did you say?
20	A. Youíre saying that I didn't assist. I assisted Mr. Ford
21	in his cross examination.
22	Q. By -- by choosing that Mr. Davidson and you --
23	particularly Mr. Davidson --  would not cross examine, right?
24	A. Yes, sir.
25	A. That -- that was a conscious decision, wasn't it?
	804
1	A. Yes, sir. That's correct.
2	Q. I was wondering if you ever considered arguing that the
3	evidence against Mr. Baldwin and Mr. Echols was different? In
4	the case of Mr. Baldwin there was a person in jail who said
5	that Mr. Baldwin confessed to him that he, Baldwin, had done
6	this and giving that confession on two occasions. Did you
7	consider arguing that to the jury so they could see that the
8	evidence about Echols was less than the evidence about Baldwin?
9	A. I thought we did argue that in closing.
10	Q. Well, the record would speak for itself on that matter.
11	A. Yes, sir.
12	Q. On Officer Ridge, when you asked a question, ìI guess Iím
13	confused. At the time -- you did not take that stick into
14	evidence at the time you all recovered the bodies.î You are
15	asking a question that Officer Ridge can answer, yes or no.
16	Is that true?
17	A. Yes, sir, that's true.
18	Q. And Officer Ridge was then under the authority of Judge
19	Burnett pursuant to a Motion in Limine instructed either
20	directly of indirectly through state's counsel -- instructed
21	to not make reference to the Misskelley confession, true?
22	A. True.
23	Q. So you asked him a yes or no question, right?
24	A. Right.
25	Q. He was under a Motion in Limine not to make any reference
	805
1	to the Miskelley confession, right?
2	A. Right.
3	Q. And he then answered, no, sir -- which is a complete
4	answer to the question, did you take the stick into evidence at
5	the time you recovered the bodies. So when he says, no, sir,
6	he has given a complete answer, right?
7	A. Right.
8	Q. And so when you hear that, no, sir, you have received an
9	answer to the question that you have asked, right?
10	A. Right.
11	Q. Okay. You didn't have any regret about asking that
12	question, did you?
13	A. At --
14	Q. It was answered, right?
15	A. At that time, no, sir.
16	Q. All right. So what happens next is he begins making a
17	speech, and he makes a speech explaining when he did recover
18	the stick without you asking him when did you recover it, why
19	did you go and recover it at that time and so forth.
20	MR. DAVIS: Your Honor, I'm gonna object. This
21	isnít a question. This is testimony by Mr. Mallett,
22	and I donít get to cross examine him.
23	MR. MALLETT: I'll rephrase it.
24	MR. DAVIS: He didn't -- he didn't put it in the
25	form of a question. He's just testifying. And
	806
1	that's great for the record for federal habeas, but
2	I'd just as soon deal with a witness I can cross
3	examine.
4	THE COURT: Rephrase your question.
5	MR. MALLETT: I don't mean to be argumentative,
6	but I certainly learned something of leading
7	questions when I was listening to the state's
8	prosecutor earlier today.
9	MR. DAVIS: I was cross examining a witness,
10	too.
11	THE COURT: Well, both of you could be pulling
12	little red wagons around. Let's get on with it.
13	BY MR. MALLETT:
14	Q. The problem was not your question, Mr. Price, was it, but
15	that your question was a perfectly good question calling for a
16	yes or no answer, true?
17	A. Is there another -- true.
18	Q. Right. You had no regret about asking that question,
19	right?
20	A. The regret is to the answer that he ñ the second part of
21	the answer that he gave.
22	Q. But thatís the part that was not responsive to your
23	question.
24	A. Yes, sir.
25	Q. And it was not responsive to your question, and it was
	807
1	contrary to a direct order from Judge Burnett or an indirect
2	order from the state -- from the prosecuting attorney.
3	A. Yes, sir.
4	Q. So it was not one question too many, it was one illegal
5	answer too many -- an answer not permitted under the rules and
6	not required to answer the question, right?
7	A. Yes, sir.
8	Q. You did nothing wrong in that regard, did you?
9	A. I don't think I did.
10	Q. Well, did it occur to you that you could improve your
11	position on appeal or subsequent review if you said, your
12	Honor, that's an intentional act by Officer Ridge in direct
13	violation of the rule of this honorable Court. The basis for
14	a mistrial is not only that we now have a statement of a
15	confession infecting the jury, but we have it done deliberately
16	to contaminate the jury. Is there any reason you wouldn't make
17	that argument?
18	A. I mean, I didn't make that argument. I don't know the
19	reason I didn't.
20	Q. And it certainly -- certainly would not be non-ethical to
21	suggest in your motion to Judge Burnett that it appears Officer
22	Ridge was intentionally violating Judge Burnettís argument.
23	That would not be unethical, would it? I'm referring to Mr.
24	Davis' question. Nothing unethical about making that argument,
25	right?
	808
1	A. I don't suppose.
2	THE COURT: Was that a point not a point for
3	appeal? It was, wasn't it?
4	MR. MALLETT: He neglected to point out to the
5	Supreme Court, your Honor, respectfully, that it was
6	in direct violation of your order and that it was a
7	deliberate act by Officer Ridge done to insert the
8	confession into a trial that this Court had worked so
9	hard to sanitize from that trial.
10	THE WITNESS: But I don't think I made that
11	specific objection at trial.
12	BY MR. MALLETT:
13	Q. No, you didn't object at trial it was done intentionally.
14	A. So you couldn't argue on -- on appeal.
15	Q. And was your decision, I will not object and claim he did
16	this intentionally in violation of Judge Burnett's argument --
17	orders. Was that because as part of your theory of the case
18	you wanted the jury to know that Misskelley was convicted on
19	the strength of his own confession -- you wanted to remind them
20	of that? Was that a trial strategy relating back to --
21	A. Trial strategy of not objecting that it was intentional--
22	Q. Yes.
23	A. -- ëcause I didn't want it brought up?
24	Q. Because you -- because you wanted to remind them that
25	Misskelley was convicted on the strength of his confession.
	809
1	A. I wouldn't say that because they'd already heard that.
2	Q. They'd already heard that from the media that they all
3	knew --
4	A. No. No, they'd already heard that from Ridge's answer.
5	You're saying that I would ask -- I would not make that
6	objection so that Ridge wouldn't -- he'd already said it.
7	Q. So you didn't make it because you didn't think of it?
8	A. Probably.
9	Q. When you were discussing Mr. Byers and Mr. Barnes with Mr
10	David -- Davis, I recall listening carefully as Mr. Davis asked
11	you something about whether Mr. Barnes had a grudge against Mr.
12	Byers -- they had some -- some reason they were not close
13	friends but were, in fact, adverse at the time at the trial.
14	Do you recall that line of testimony?
15	A. Yes, sir.
16	Q. Is that something that you discussed with Mr. Davis today
17	before testifying?
18	A. Today?
19	Q. Yes, sir.
20	A. I havenít talked to Mr. Davis today. Mr. -- Mr. Davis or
21	Mr. Davidson.
22	Q. Well, I said Mr. Davis.
23	A. I donít think --
24	Q. The Prosecuting Attorney Davis.
25	A. No, sir.
	810
1	Q. I was wondering how he knew that? Had you discussed that
2	with him in anticipation of your testimony in these
3	proceedings?
4	A. I -- I had brief conversations with him yesterday, but I
5	didn't know the nature of my testimony.
6	Q. Yesterday, Sunday the twenty-fifth?
7	A. Yes, sir.
8	Q. About your expecting to testify today?
9	A. Yes, sir. I -- I don't know if I -- I have no -- I don't
10	recall --
11	Q. And -- and --
12	A. -- if Iíve had conversations with him before about the --
13	Q. But you knew the issue of Mr. Byers was gonna come up
14	today?
15	A. No, sir.
16	Q. You didn't talk about that yesterday?
17	A. No, sir. About Byers and Barnes, no.
18	Q. Doctor Moneypenny -- you testified to meeting or meetings
19	with Glori Shettles --Ms. Glori Shettles, Mr. Davidson, and
20	Mr. Lax discussing the mitigation testimony that might be
21	available. I presume that was might be available if the trial
22	got that far?
23	A. Yes, sir.
24	Q. You would have had those meetings pre-trial, correct?
25	A. Yes, sir.
	811
1	Q. You -- stretch your memory and let me know if I'm right
2	about this -- you had one meeting with Glori Shettles on the
3	subject of mitigation testimony at her home during evening
4	hours pre-trial end only one. Does that seem --
5	A. At Glori Shettles' home?
6	Q. Yes.
7	A. Iíve never been to Glori Sherries' home.
8	Q. Or perhaps at your -- as you think about it, did you have
9	more than one meeting with Glori Shettles about mitigation
10	testimony for which the four of you were present?
11	A. No, I think we had several meetings.
12	Q. And would those be recorded in your time sheets which you
13	have filed with the Court seeking compensation?
14	A. Maybe, maybe not. We met at Mr. Lax's office on several
15	occasions.
16	Q. All right. When did you find Mr. Moneypenny, or learn of
17	Mr. Moneypenny as a possible witness with reference to when the
18	trial started?
19	A. I want to say a few months prior to the trial, but I'm not
20	-- I mean, offhand, I don't recall. I know we were -- there
21	was -- I believe there was somebody at Memphis that we were
22	trying to use but he was -- became unavailable and then we
23	started looking for -- for somebody else and then we came up
24	with Moneypenny.
25	Q. Who did you use in Memphis who became unavailable?
	812
1	A. I donít remember the name. It was somebody -- Mr. Lax
2	and Ms. Shettles were trying to find somebody over there.
3	Q. On the subject of medical records, I believe you told us
4	under interrogation of Mr. Davis that the medical records can
5	be a two-edged sword -- they could be harmful or helpful,
6	correct?
7	A. Yes, sir.
8	Q. And the reason that a -- that Doctor Moneypenny had -- had
9	the medical history and the mental health history records of
10	Damien Echols is to assist him in looking at the whole life or
11	the person as best as could be reflected in those records?
12	A. Yes, sir.
13	Q. And you know that commonly in the field of psychology and
14	psychiatry it's typical for experts to look at histories as
15	part of what they consider in making a diagnosis.
16	A. Yes, sir.
17	Q. And in preparing to testify?
18	A. Yes, sir.
19	Q. So that the records themselves may contain all sorts of
20	information that is incorrect, hearsay, or incompetent, but
21	nevertheless, we rely on the expert to decide what weight to
22	give the information that is in the medical records, right?
23	Yes, sir.
24	Q. At page twenty-seven eighteen Mr. Fogleman, assisting Mr.
25	Davis in the prosecution of the case, has Doctor Moneypenny on
	813
1	the stand, and he simply moves the admission of the stack of
2	medical records two inches thick. Do you remember that?
3	A. Yes, sir.
4	Q. Knowing that there was harmful information in those
5	medical records, what was your strategic reason for wanting two
6	-- a two-inch thick pile of Damien Echols' personal history to
7	be back in the jury room with all the other evidence in the
8	case?
9	A. Because I thought that the existence of those records
10	which were something that Doctor Moneypenny had based his --
11	his testimony on was supportive of the mitigating circumstances
12	of the mental health of Damien Echols.
13	Q. You wanted the jury to read all of those records?
14	A. Yes, sir, and we wanted -- we wanted the jury to know that
15	Doctor Moneypenny had read those records.
16	Q. And by -- by -- well, of course, you could ask Doctor
17	Moneypenny if he'd read the records that he was holding, but by
18	letting them into evidence, you wanting the jury to have an
19	opportunity to review all evidence admitted by the Court chose
20	to let the jury have this complete medical history file --
21	A. Yes, sir.
22	Q. -- that was two inches thick, right?
23	A. Yes, sir.
24	Q. And you knew that that was not admissible if you objected
25	to it?
	814
1	A. Perhaps.
2	Q. Did you stretch your memory again -- and I believe this
3	is something we can check on from jail records if necessary --
4	think about where Damien was housed during the trial -- Mr.
5	Damien Echols was housed during the trial. Think about it
6	carefully. If I suggest to you that a wing or area of juvenile
7	detention was cleared out so that he could be kept there in a
8	certain kind of segregation from the older prisoners so that he
9	was on the juvenile side during the three or four weeks of
10	trial, does that kind of help ring a bell or jog your memory a
11	little bit?
12	A. I remember at least one time when we met with him -- I
13	think -- in the area -- the wing where he was living at which
14	is, you know, all the way at the end of the hallway kind of
15	back there, portion of the jail.
16	Q. And sort of administratively segregated from the general
17	population as a person on trial for capital murder?
18	A. Uh --
19	Q. I mean, he wasn't in the general population brought out in
20	a dayroom full of ñ
21	A. No. No. He was -- I think he was completely separate.
22	Q. All right. So if I suggest to you that he was in -- on
23	the juvenile side, does that ring a bell as to where he was
24	when you went and you met with him?
25	A. Yes, sir.
	815
1	Q. And on the subject of the writings of Mr. Robert Hicks,
2	Mr. David read to you from the Opinion of the Arkansas Supreme
3	Court. The Court said, the information was admitted anyway.
4	Do you remember what ìthe informationî was that was admitted
5	into evidence that was -- that was within the writings of Mr.
6	Hicks? Do you know what the Arkansas Supreme Court was talking
7	about?
8	A. I thought they were talking about Ken Lanning's theories
9	on whether or not satanic occult killings take place or not --
10	exist or not.
11	Q. Did you read Mr. Hicks' article which could be found in
12	the Internet titled ìSatanic Cults -- A Skeptical View of the
13	Law Enforcement Approach,î revised in September of 1989? Iíll
14	hold up to you a -- I don't know -- fifteen, twenty page
15	manuscript. Is that the manuscript that you had or did you
16	have something else?
17	A. I had his book.
18	Q. You had an actual book?
19	A. I had his book.
20	Q. All right. The book itself didn't go into evidence, did
21	it?
22	A. No, sir.
23	Q. So the Arkansas Supreme Court was referring to some
24	materials from the book, correct?
25	A. I -- some materials or some testimony, yes, sir.

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