West Memphis Three Trials:
The Jesse Misskelley Trial (January 26 - February 4, 1994)

Closing Argument of John Fogleman
February 3, 1994

Misskelley Trial - Defense's Opening Statement - January 26, 1994 Misskelley Trial - Testimony of Bryn Ridge - January 26, 1994 Misskelley Trial - Testimony of Victoria Hutcheson - January 28, 1994 Misskelley Trial - Testimony of Marty King - February 1, 1994 Misskelley Trial - Testimony of Warren Holmes - February 1, 1994 Misskelley Trial - Testimony of Dr. Richard Ofshe - February 2, 1994 Misskelley Trial - Verdict - February 4, 1994 Misskelley Trial - State's Closing Argument (Davis) - February 3, 1994 Misskelley Trial - Defense's Closing Argument - February 3, 1994 Misskelley Trial - State's Closing Argument (Fogleman) - February 3, 1994 MR. FOGLEMAN: May it please the Court, Mr. Stidham, Mr. Crow, and ladies and gentlemen of the jury. Before I actually get into -- we call it argument -- I'm not going to argue with you. I'm going to try to reason through the facts and law and talk to you -- but before we get to that, I want to take this opportunity and I'm sure Mr. Stidham and Mr. Crow would join me in this -- in sincerely thanking you for your willingness to serve as jurors in this case. This isn't your all's case. This is a Crittenden County case and we appreciate -- we all appreciate your willingness to serve as jurors in this case and take time away from your families and your jobs to be with us and help us see that justice is done.

In this case, when you became a juror, you recall standing at the (first?) and you took an oath. And you took an oath to base your verdict solely and exclusively on the law that judge Burnett has just given you and the evidence as it comes from this witness stand. Not speculation, not conjecture, but on the evidence as it comes from this witness stand. And that's all that anybody can ask you to do.

In the judge's instruction also he mentions sympathy. Well, ladies and gentlemen, this is not a case about sympathy for either side. And it's natural for you to feel sympathy, but in this case we don't want you to feel sympathy for anybody in the case. We don't want you to allow that to affect your decision in this case. We submit to you after you've looked objectively at the evidence in this case, at the testimony in this case, that you will return an approriate verdict of guilty to three counts of capital murder. In this case, judge Burnett has instructed you that in order to sustain a conviction of capital murder, in order for you to return a verdict of guilty of capital murder, the State has to prove two things beyond a reasonable doubt on each count. That is, that with the premeditated and deliberated purpose of causing the death of another person, this defendant or an accomplice -- or an accomplice -- caused the death of Michael Moore on count one, Stevie Branch on count two, and Chris Byers on count three. Now, in regard to the reference to an accomplice, the judge has given you an instruction on accomplice and in this instruction he tells you that a person is criminally responsible for the conduct of another person when he is an accomplice. He's just as guilty if he's an accomplice. And an accomplice is one who either directly participates in the commision of an offense or who with the purpose of promoting or facilitate in the commision of the offense, he aides, agrees to aid or attempts to aid the other person in planning or committing the offense. Now the definition of purpose is on here too. And these definitions are real important. And if you look at it you'll see that a person acts with purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.

Now, what I would like to do now is take the elements of the offense and go through with you the element that we have to prove and what the evidence has been in this case. First, that with the premeditated and deliberated purpose of causing the death of Michael Moore, Stevie Branch and Chris Byers. This defendant in his taped -- let me back up -- this defendant in the statement before he admitted being present, he tells Detective Ridge and Inspector Gitchell that he has a phone call the day before the murders. And that he's told that Damien and Jason are going to West Memphis and they're gonna get these boys and hurt them. He also testifies that at one of these cult meetings he mentions, that a photograph of not just some boys, but these boys, is passed around at this meeting. And Ms. Byers testified about her son coming in a month or so before and saying about how some strange man all in black had taken her picture -- taken the son's picture, Chris's picture. He also stated that Damien had been watching these boys, he'd been stalking these boys.

Premeditation. In looking at premeditation the injuries themselves speak loudest. Multiple skull fractures. Chris Byers bleeds to death. And Stevie Branch and Michael Moore are drowned. Was there a conscious object to cause death? Unquestionably. I don't believe anybody could dispute that.

The second element is that the defendant, or an accomplice, caused the death of Michael Moore, Stevie Branch and Chris Byers. The defendant himself in his taped interview describes this event. He describes his participation, or what he says is his participation in this event. The defendant's own expert says that the natural inclination of a defendant is to lessen his involvement in the offense and I'll come back to that a little bit later. So he describes it for you himself. And the way he describes it, it reveals a premeditated and deliberated murder although he tries to lessen his own involvement.

Now, these alibis, being in Highland Park and wrestling, this was a parade of the defendant's friends. You saw the yellow ribbon. It's a -- the judge tells you in judging credibility you judge demeanor, the way the witness testifies and whether there's -- and I'm not giving this word-for-word so rely on what the instruction says, not what I say to you -- whether there's any reason not to be telling the truth, any bias, anything to be gained from the outcome of the case. And when you look at the people with the yellow ribbon the bias is obvious. They're here to try to help the defendant.

Now, when you analyze their testimony -- and this isn't a real impressive, professional little diagram I've got here -- but, when you analyze their testimony in regard to Highland Park -- and ofcourse you can't see this but I'm still gonna refer to it cause it helps my memory. The testimony about where the defendant was up until about 5:30 is really pretty consistent. It's pretty consistent among the witnesses. But when you get to the crucial time around 5:30 or 6:00, these witnesses have this defendant in three or four different places at the same time. You look at it, at about -- Susie Brewer, she's got at 6:00 -- around 6:00 -- between 5:30 and about 7:00 -- she's got her and the defendant on the street together and at Stephanie Dollar's house. If you move down to Jennifer Roberts, she's got at 6:00 the defendant and Christy Jones on the defendant's porch. Christy Jones says that from beginning about 5:30 or 6:00 she and the defendant are on her porch by themselves for about an hour or hour and a half. So anywhere from 5:30 to 7:00 or 6:00 to 7:30, she's saying that they're sitting on the porch all by themselves. If you go down to Mr. Hoggard, he puts at 6:30 Jessie by himself out in front of Stephanie Dollar's house. Not on the porch at the defendant's, and not with Susie Brewer down the street. Mr. McNease says that about that time that he sees the defendant at this police car which is down the street from the defendant's house. And finally, Jessie Senior says that he sees the police there when he gets home from DWI school. Well, the DWI school doesn't end to almost 8:00, and if you'll look at this radio log, you'll see that the officers checked off the scene there right before 7:00, or at 8:00. Anyway, it was at a time when they had already left by the time Mr. Misskelley, Senior got home, or even left where he was. So this is all totally inconsistent.

And then when you go to the wrestling alibi, that was a total, total mess. You have Fred Revelle, the only one, the only person, who comes to the police and says, "Look, I think you all may have made a mistake. He was with me, and here's why he was with me. We had gone wrestling, it was me and Jessie and one other person," I believe he said. And -- in his first statement to the police. "And I know it was that day because that's the day we paid the money." So the police naturally doing their job, they go out and investigate to see if he's right, you know, was the defendant somewhere else? And lo and behold what do they find out? The money was paid a week before that. And they get a receipt to prove that. Well then when Mr. Revelle comes into court and testifies, the story is completely different. And he hadn't told anybody about it, with law enforcement.

Then you have Dennis Carter come in here and say, "Yeah I went with him May the 5th, I know it was May the 5th, sure as I'm sitting here." I said that, he didn't. But that's the gist of his words. And then what did he tell the police? Shortly after -- keep in mind, this when it's still fresh in the memory -- shortly after the arrest of the defendant, what did he tell them? Said "I didn't go wrestling then. I didn't go wrestling 'till after the murders had happened. Days after." Just a mess.

And then finally, after witness after witness gives these confusing and conflicting stories about being wrestling or not wrestling, you have this Johnny Hamilton come in. And he testifies that, "Why I'm sure it was that day. Kevin Johnson was at search and rescue, Keith Johnson went., that was the only time he went." Keith johnson says, "Yeah I went wrestling one time and some specific events happened, but I don't know when it was." Keith Johnson, I think, told the truth. He didn't have any idea when it was, but yeah he'd been wrestling with them one time. How do we know that's not true? Not about Keith Johnson, but about that it was May the 5th. When they went wrestling they signed this document. Keith Mercier -- I hope I say that right -- he came in today and testified, "I only went one time. I went one time, signed the form, and it was before the murders." He's the last person that signed. He had to have signed after Keith Johnson, after Johnny Hamilton. Keith Johnson only went one time. So Keith Johnson had to have gone before the murders, for Keith Mercier to have signed after him.

Also on Mr. Hamilton, he says, "Well Iím not gonna drive 600 miles for nothing." He would drive 600 miles to testify, but he won't go 3 or 4 miles from Highland Park to the police department to tell them, "Hey I think you've made a mistake." He didn't tell anybody. He didn't even tell the defense. He didn't tell anybody -- somebody goes and talks to him last Sunday and he says, "Oh yeah I remember vividly May the 5th." Where were we May the 5th? I ain't got the clue.

The defense then moves from alibi to Mr. Bojangles. Remember Mr. Bojangles? Remember that? Is there any evidence to suggest Mr. Bojangles had anything to do with this? You have a sheet with a single negroid hair fragment. A single one. And so they pick out Mr. Bojangles to present up here as this must be the person who did it. Well let's think about that a minute. Well there's blood, you know, he came in, he was kind of uncoherent. Is there something to that? Could it have been Mr. Bojangles? Well let's think about it. What about the crime scene? Picture in your mind the crime scene, and then picture in your mind Bojangles. The crime scene, not a drop of blood. Not one, couldn't find one. The bodies were hidden, the kids' clothes were hidden, they were crammed down in the mud, the blood was washed off the bank, had the scuff marks. Contrast that with Bojangles. Goes in there and he leaves blood all over the place, down the hall, on the wall, on the floor, on the commode, all over the place. Do you really believe that a guy is gonna go to the trouble of cleaning up the crime scene, hiding the kids' bodies, hiding their clothes, hiding any evidence of this crime that's taken place there, and then he's gonna walk down through a field to Bojangles Reataurant, a public place, and leave blood all over the place? Give me a break.

The defense in their opening claimed that there's gonna be proof that this was Damien tunnel vision. There's no evidence of that. None. The testimony was that, yes, Damien was a suspect. But he was one of a number of suspects. Just one of a number.

Let's talk about these experts that were called by the defense. As the judge has instructed you, because somebody is labelled an expert -- and that applies both to the experts testifying on behalf of the State and experts testifying on behalf on the defense -- you're entitled to weigh their credibility, judge what you hear from them, conside whether you think it's of any value or not.

Let's start with Mr. Holmes. What makes Mr. Holmes an expert? He said why he had 13 years of law enforcerment experience. He'd worked for the Miami Police Department for 13 years, and since that time he's been a lecturer and a witness. Inspector Gitchell has had 19 years of experience. Now, but let's talk about it. Actually, you think about it, Mr. Holmes is a good witness. As far as presentation. But when you sit back and really think about it and analyze what he said, said the police didn't do anything wrong. He had some problems with the content of some of the questions, and some of the responses. But as far as the police being coercive, he said the police didn't do anything wrong. In fact, if you'll think back and use your own memory, do you remember Mr. Holmes saying, "I would have done the same things myself." You remember that?

Mr. Holmes' complaint is time and ligature, the knots. But in his testimony he says -- he complains because they didn't clear these things up. Well as the testimony has been and Mr. Holmes himself admitted, when you're interviewing somebody you don't stop all of a sudden and start cross-examining them about something they said that may be wrong. The goal is to keep the person talking. And then he says in his testimony, "Well they did go back later and clear up the time but not the ligature." And actually when he said that, if you will look and listen to these tapes, there's nothing said about how or what they're tied with until the second statement anyway. They didn't clear it up after the first one because it wasn't in there. It was in the second and that was not cleared up.

Now, he -- I wanna go through some of the things that Mr. Holmes said that you looked at in determining whether you got a coerced confession or a good confession, think that's the way he put it. He says on the problems with time and the ligature, he gave a few possible explanations. He had to have been doped up, or he had to have been -- have a faulty memory, or maybe he just wasn't telling the truth. What we have in this case, the evidence doesn't show whether Mr. Holmes was familiar with Dr. Wilkins' examination or not. But what we have, we got a defendant who had huffed gas, smoked pot, abused alcohol, and he found significant memory deficits. The very things that the defense's own expert said could account for these problems.

He also said the most important thing -- I wrote this down -- that the person sounds and looks like they're telling the truth. Yet, Mr. Holmes admitted that he had formulated his opinion before he even heard the tape of the defendant. He had had a transcript. But how do you judge how they sound if you don't hear the tape? And he had already formulated his opinion.

He gave a number of factors. Said indication of relief -- it's finally out, or some indication of relief. Well what was the testimony? The testimony was that after the defendant, or about the time the defendant finally admitted that he was there when these crime occurred, that he cried. That not an indication of relief? Like, "[MAKES SIGH OF RELIEF SOUND] it's over."

He also says, as one of the factors, "If you are wrong in a supposition in questioning a person he will correct you." Well let's see if you find any of that, the factors the defense's own expert says to look for. If you're wrong in a supposition he will correct you. On page 3 of the transcript Inspector Gitchell asked, "Whose car were you all in?" Suggestible question, isn't it? Leading question, isn't it? Well does he buy in, does the defendant buy into the suggestion? Does he go along with the supposition? No. He says, "We walked." He corrects him. "No we didn't go in a car, we walked." Then on page 10 of the transcript -- if you're wrong in a supposition he will correct you. Detective Ridge says, "Did they take like one picture of one boy?" The supposition is there's one picture of one boy. Did he go along and agree with this supposition? It's a suggestible, leading question, right? No. He says, "They were in a group." He corrects him. "No, it was not one boy in one picture. The boys were in a group." Then on page 18, Detective Ridge, "Besides just playing, the little boys, had they been in the water? Did they get into the water with you all?" The supposition was that the little boys had got into the water. Is that an incorrect supposition, did he correct him? He says, "No, they did not get into the water with us." He corrects him. Does the very thing that the defense's own expert says that you would do when you're confessing. And not a coerced confession. He then says that in a confession, uncoerced, that you have -- in there they relate conversation with co-defendants. Do you have that in this case? Well, the proof was that before the tape, before he admitted that he was present, the tape was started, that there was a telephone call from Jason Baldwin to this defendant. And in this phonecall, Damien is in the background saying something to the effect of, "Tell him we're gonna get some girls." And he says, "Hey I know what's going on." You think that the guy's gonna make up something -- he's gonna make up dialogue of something like that? Or would Mr. Ofshe say that they manipulated him into saying that? On page 3, again -- remember one of the things the defense's own expert says is you'll have conversations between the co-defendants. The defendant on page 3 says, "He called me, asked me could I go to West Memphis with him. I told him 'No I had to work and stuff.' And he told me he had to go to West Memphis. So him and Damien went." Conversations between co-defendants. On page 6, conversations. Says he took off running, went home. "Then they called me, asked me how come I didn't stay. I told him I just couldn't." Again, the very things that the defense's expert says that you find in an uncoerced confession. And then page 12, you got the telephone call where he says, "We done it, we done it. What are we gonna do if somebody saw us." All conversations with co-defendants. He then says another factor is that there's something that corroborates the confession. Now, is there anything in this case that corroborates the confession? Anything at all? Think about it, number one, Tabitha Hollingsworth. She testifies -- and her testimony was not challenged one iota. She testifies that her mother and the rest of her family are going to pick up grandmother, aunt, whatever, some relation. And on the way there, between -- or about Blue Beacon Truck Wash -- the woods are just to the side, you all know all about the crime scene -- that they see walking along the service road Damien and his girlfriend Domini. And you remember how she described the clothing? Said they were muddy. She also said that they're wearing black and that Domini had holes in her knees. You remember that? You get your notes and refer back. Think back about that, holes in the knees. Now, what did the defendant say about what Jason was wearing? All black, one of these shirts with the skull on it --and it's in the tape about what he's wearing. And how does he describe the pants that he's wearing? Said he has holes in the knees. At night, along the service road, Domini has got red hair. Jason Baldwin, slight, slightly build, long hair, pants with holes in the knees. That's one thing that corroborates the confession.

You got Damien. You've got him at the scene by Tabitha's testimony, and you also have the testimony of Lisa Sakevicius -- if that's the right pronunciation -- about the fibers. The fibers that were taken from one of the victims' clothing that were consistent with having come from this one shirt -- this one shirt -- out of Damien's house. The testimony was that she checked fibers from the victims' houses, she checked fibers at Jason's, Damien's, the defendant's. And out of all that, one article of clothing, the fibers matched. Sure they can say, "Well those fibers" -- as the witness said -- "Well it could have come from a similar type garment from the same batch of dye." But out of all those houses, you get one garment that matches.

Then, on Jason. Again, you have a fiber -- a fiber -- that matches. The only match -- only match -- out of all the clothing in all those houses. The only match. That a coincidence? Is it a coincidence that the defendant describes Jason as having pants with holes in his knees and wearing all black, and then Tabitha saying, "Well I see Damien and Domini," his girlfried, and just so happens she's got holes in her knees. Is that a coincidence?

Then we get to something that corroborates it, which is another thing that Mr. Holmes says about some inconsequential matter. Think the way he described it was somebody walking by or some kind of conversation or something. You remember what the defendant said in his statement about what he did with his tennis shoes? And what kind of tennis shoes they were? He said that he gave them to a guy named Buddy Lucas. And he describes in his statement that they were white and blue Adidas. Detective Ridge testified that he went to Buddy Lucas', and lo and behold what did he get from Buddy Lucas? The white and blue Adidas. Is that a coincidence? I think not.

Then you get to further corroborate, the injuries. When in discussing -- and listen -- you have the right to listen to those tapes as many times as you all want to. Listen to those tapes. Don't rely on what I say they say or what Mr. Stidham or Mr. Crow says or what Mr. Davis says, you go back there and listen to those tapes. Listen for the inflection in the voice, listen for the yawns to show the tremendous pressure he was under in this interview. But when you listen to it, what you're gonna find is they ask him -- said something about a boy and where was the person cut. He says, "In the face." Now, in all this stuff that Mr. Stidham put on about this knowledge, this stuff in the paper about that they were all sexually mutilated and that kind of thing. Nothing in there about a boy being cut in the face. Said they were beat up real bad, but nothing, nothing in there about somebody being cut in the face. He says, "Yes, one of them was cut in the face." And then they say, "Well, where was another boy cut?" "At the bottom." (Hands up?) he says, in the area of the groin area. Now, is all of that just coincidence that he says that? Or is it as Mr. Ofshe says that somehow these devious officers manipulated this defendant into saying things that weren't true.

You've also got another factor, that's the ears. The defendant tells about the kids being grabbed by their ears. And you heard the medical examiner's testimony, whatever the purpose for grabbing the ears, this defendant in his statement says they were grabbed by their ears. And if you'll look at that, you'll see that's exactly what he says. And Inspector Gitchell testified that before he actually said it he was even demonstrating it. And what do we have from the medical examiner? You got damage to his ears, bruised ears, consistent with having been grabbed. You've got three guys supposed to be involved in this, the defendant, Damien and Jason. How many weapons did the medical examiner say that he could put a minimum number on? Three. At least two club type weapons. I mean, you don't have to be an expert to look at these photographs and know that those injuries were not caused by similar type things. It's obvious that these were caused by a smaller object, these by a larger object, and then you have the knife. Is it a coincidence again that we got three weapons?

He also says that -- and this is in a sense corroboration of what he says in his statement. Mr. Holmes says that it's natural for a person try to lessen their involvement. Out of all three of these kids for the defendant to associate himself with as far as one he dealth with, which one did he pick? He picked Michael Moore, right? Which of the three boys didn't have any torture type of mutilation to them? Michael Moore. Is that a coincidence? Or did the police somehow say, "Well this would be a good scenario here. We'll get him to admit to it, but we'll only have him involved with one of them that wasn't hurt too bad." No. It's not a coincidence. It's not an accident, it's not a guess. Just telling what he knew, despite his faulty memory and his gas huffing and alcohol abuse. And while we're talking about that, if you recall Dr. Rickert testifying about the effects of the faulty memory and the things you'll remember and won't remember, the things that you remember are the significant things. This was over a month later -- or, excuse me it wasn't over a, it was about a month later. Which details is he right on? The most traumatic, terrible events. Which ones is he wrong on? Two things, time and rope. Are those the significant things that a person with memory deficits is going to remember and have branded in their mind? I think not.

In regard to time, and it was somewhat pointed out this morning in Inspector Gitchell's testimony -- there's an interesting statement in here by the defendant. He's saying this noon stuff and nine o'clock in the morning and all that. On page 12, and listen to this. When you get back there, again, make sure that you ask to listen to the tape, and get it to this spot, and you'll look and you'll see that nobody had said anything about, "Hey it happened at night" or anything like that. And you're gonna hear Jessie say, "Well, after all of this stuff happened that night, that they done it, I went home about noon." Absolutely makes no sense at all. But you'll hear those words come out of his mouth. Is it because we got somebody that doesn't have any concept of noon? It's not words put in his mouth. That's not anything from a question that was asked to him. Those are his words. "Well, after all of this stuff happened that night." Was that some kind of a slip? Why did he say that? He's the one who first says about it happening that night.

Then we get to Dr. Wilkins. He described the defendant as a gas huffer, heavy alcohol user, pot smoker. And then you see -- the defendant throughout this trial -- and you ask yourself, and you listen to these experts and you say, "Who's being deceptive?" Is it Inspector Gitchell and Detective Ridge when they say, "Look we just talked to the guy, we let him talk, we took his information. And when we found out, and when we realized that he was identifying injuries to particular people that only a person that was there and involved knew, we knew we had our man." Now, are they the ones being deceptive? Who's being deceptive? This is the person that was there on May the 5th. The bright eyes, the clear eyes, that is the person that was there on May the 5th. Not the person that you've been observing, allowed to observe throughout this trial. Who's being deceptive in this case?

Dr. Wilkins claims that this defendant is suggestible. Remember when he was asked, "Well did you do some kind of test, or is there any test that shows that?" There's no basis for his opinion other than his general conclusion that he's suggestible. And remember what Dr. Rickert said about being suggestible? And how you'd need to know whether the person had a memory problem because that could affect whether they're being suggested to or they just don't remember. Remember that? Dr. Wilkins himself testified that this defendant had significant memory deficits.

Then we get to Mr. Ofshe or Dr. Ofshe, as, whichever one you prefer. But Dr. Ofshe or Mr. Ofshe, he can't treat a broken arm, he can't treat your mind, he's not a licensed psychologist, you can't be licensed as a social psychologist. He is a professor and a professional witness. And I will say this. As Mr. Davis said, he's earned our respect. He is an expert witness. An expert at testifying. You observed him. Do you believe that he would have even agreed that Mr. Davis' shirt is white if he had asked him? He probably would have wanted to explain his answer. Just because you hold yourself out as an expert in something doesn't make you an expert. Just because you come in with a lot of degrees and a Pulitzer Prize. But as you heard Dr. Rickert, it may as well have been the Heisman Trophy. The Pulitzer Prize has no relevance to scientific testimony. None. He's from Berkeley, California and he came and put on a show. And it was, from my standpoint, pretty entertaining. May not have been too entertaining for Brent, but it was pretty entertaining to watch this expert at testifying testify.

Last year he earned forty thousand dollars for just going around testifying. And how many times could he recall ever testifying on behalf of the prosecution? Not one. And you might say, "Well, but the prosecution obviously wouldn't want him to come up here and testi [COUGHS] -- obviously wouldn't want him to come up here and testify that it's a coerced confession." But, why he says forty percent of the times that he looks at these things that he finds they're not coerced. Well don't you think out of that forty percent, or whatever percent he said, that one time the prosecution would have said, "Well they're challenging the voluntariness of the confession, would you come testify for us?" No, he only testifies for the defense. Ofcourse he claims that he doesn't make much money but he made forty -- forty thousand dollars -- charges three hundred dollars an hour. But he's never gotten it. Isn't that what he said? Says he charges three hundred dollars an hour but had never been paid that much. Think he values himself more than what he's really worth.

But let's talk about the substance. And I've talked a lot about his qualifications and I think y'all are acutely aware what the proof is about that. But what he boiled down his opinion to, was his problem, was about the same problem that Mr. Holmes said. He just had problem with that time. Ofcourse Mr. Holmes says that the time thing was cleared up in the second interview. But Mr. Ofshe spends all his time talking about the time problem. Now I want you to think, and you use your own memory, don't rely on what I say, you use you own memory, what scientific basis did he give for concluding that any of that statement was coerced? What was the scientific basis that he told you? What was it? He didn't give you any. He didn't. It wasn't there. He just said, "It's coerced because I reviewed this," just like you could review the transcripts and listen to the tapes and say, "Hmm, there's a problem with time." Do you need to pay a guy three hundred dollars an hour to look and see there's a problem with time? And I don't mean to make light of it, because it's a serious situation, it's a serious problem. But the defendant is the first one who mentions it happening at night. And then he reverts talking about it being in the morning. Why he did that, why he said that, I don't know. He's -- the testimony has been he's got significant memory problems, been huffing gas -- I don't know. But when you analyze the way he talks in that tape and you analyze what he said, you find he's not being coerced or manipulated. He's telling what he thinks is the truth about the time. And the most significant details of the crime he gets right.

He says the problem is the suggestible questions. Now, if you've got a person -- and whether he determined that this defendant was a suggestible person or not I never was clear on, I never heard him say anything about that -- now Dr. Wilkins did but he didn't have any basis for it, couldn't give you any basis for it. But he says the problem is the suggestible questions, which to me sound like a leading question, kinda like lawyers always jump up objecting that it's a leading question -- sounds about the same. Well, is a leading question coerced? Well, if the leading or suggestible question is coercive, you just say, well that's not right. Like, "Whose car where you all in?" "No we weren't in a car, we walked." That's pretty easy to do, and the defendant did it. But if those questions are suggestible and the officers are manipulating this defendant, don't you think that he would be agreeing with them when they ask him a question that's leading or suggestion?

Let's go through this. And let's look and these suggestible questions. Start at page 4, Detective Ridge, "What occurred while you were there?" Any manipulation, suggestion or leading in that question? "What occurred while you were there?" And he answers -- he tells them, "I saw Damien hit the boy real bad." Anything suggestible or leading about that? No. Page 6, "Had they got their clothes on when you saw them tied?" That's a leading question suggesting that they had their clothes on. He says, "No, they had them off." From the photographs it's obvious that they couldn't have been tied with their clothes on, they've had to be tied after their clothes were off. He couldn't have got their clothes off. So there he doesn't buy into the suggestion if you wanna call it that or the leading. Page 7, "Where was he cut at?" Or "Where did he cut him at?" "He was cutting him in the face." Anything that would suggest that he was being cut in the face -- now they said, "Well he might have been pointing to his face." Ladies and gentlemen, there is not one iota of evidence that that took place. Not one. And you remember your oath. You can't base it on speculation, you can't base it on conjecture, it's got to be on the evidence. And there's not any evidence that that took place. "Where was he cut at?" -- after he talks about cutting him in the face. "At the bottom." Well he might say, "Well, he was" -- after that there's a reference to the groin area and he says, "Well they led him into saying the groin area." Well the officers testified that when he said "bottom" he's pointing at the groin area. But even if you (won't/wanna?) say bottom, look at the photographs of Chris Byers and his bottom and see if it's not cut. And he asked, "Which boy was that?" -- talking about the boy castrated. "That boy right there," and he points at this boy. There is no evidence that there was any suggestion made to this defendant about which one of these pictures to select. And you know, to believe that they did, you -- there's no evidence of it so you couldn't find that -- but let's just say that you said, "Well, they did." You would have to conclude that these officers were so dishonest and twisted that they would pin it on an innocent person, a person they knew to be innocent.

Then on page 10, "Has he ever had sex with them before?" -- talking about Damien and the little boys. Doesn't that suggest that the officers think that maybe Damien had sex with them before? And under Ofshe's theory the defendant should have said, "Yes." And then tried to figure out what they wanted him to say next. He says, "No. No, he's been watching them. No he's haven't been having sex with them, he's been watching them."

And page 11, talking about the pictures. And this next thing is throughout this. "It has the same three boys in it?" "Yes." And then Detective Ridge says, "You're certain of that?" Asked him that on a number of occasions after they've given a response that would be a response that's consistent with the facts. "You're certain of that?" Now what did Ofshe, what did he say when Mr. Davis asked him about that -- "You're certain of that?" -- what does that mean, you think they're trying to lead him when they said that, aren't they questioning his answer when they say that? Oh he says that's to reinforce it. To reinforce it. These officers are skillfully manipulating the defendant and this is to reinforce it. Well, when we get over here in the second interview when we're clearing things up, he gets over here, and you know that the medical examiner testified about the injury to Stevie Branch's penis, that what he called a (suck mark?) or whatever you wanna call it. And there are some little bruises across the penis that you could conclude are teeth marks. You look at the bruises. And the officer goes in there and he ask, "Did anyone maybe suck theirs or something?" And Jessie says, "Not that. I didn't see nothing. Neither one of them do that." Again, the question is leading or suggestible or whatever you wanna call it. Does he buy into it? No. And then Inspector Gitchell says, "You didn't see that?" Jessie says, "Uh-uh." Gitchell again says, "Ok, did they pinch their penis in any way or were rough with it or anything like that?" Jessie: "I didn't see nothing like that, not rough with them. I just seen." And Gitchell says, "You didn't see anyone go down the boys?" The third or fourth time. "Uh uh." Gitchell: "Are you sure?" Is Inspector Gitchell now reinforcing an answer that's inconsistent with the facts? It's obvious the defendant just didn't see this incident. Now, when it works to the defense's advantage, Ofshe says if you ask "You're certain of that?" why that means you're reinforcing it. Skillfully reinforcing it. But when it's the other way what is it? What is it? They're just asking questions, they're questioning, "Are you sure?" When they ask, "Are you sure that Chris Byers is the one that was castrated? Are you sure?" It's giving him an opportunity to say something else. And he doesn't take that opportunity then, and he doesn't take it when they're asking him about this injury to the penis. In fact, this shows directly to the contrary of what Dr. Wilkins and Ofshe say about the suggestibility. It shows that he is completely able to resist suggestion.

There are a number [COUGHS] -- there are a number of other times in there when similar type questions are asked -- and I'm not going to through every one of them, you can find them for yourselves -- where there are apparently leading or suggestible questions that he doesn't buy into, he doesn't go along with. Then in this second tape, in referring to time, when he talks about 5, 6, 7 or 8, Inspector Gitchell is questioning him about that time, and finally he says, "It was starting to get dark." He abandons trying to refer to it by time. Because he has no concept of time. And he says, "It's starting to get dark."

Page 4, "Did you ever see the boys in the water?" Suggestible, leading that, yes, they were in the water. Jessie says, "Yes, down by the water." He doesn't buy into it. Page 5, "Did you see the Moore boy, was he raped?" Certainly suggests that he was, right? Leading question. The Answer: "No."

Finally, in talking about the boys being sexually abused, Inspector Gitchell says, "So they both did it to all three of the boys?" Jessie: "Just them two as far as I know."

The purpose of all this that I've gone through, and I hope I hadn't bored you all too much -- but, Mr. Ofshe testified and went over and over things that he claimed showed how suggestible this defendant was and how the police were manipulating this defendant. These are just a few examples throughout this transcript where what you might call leading questions -- and by no means are all questions leading -- but some of the questions you might consider leading, for the defendant, as Mr. Holmes said, he'll straighten it out. And that's what he did. He didn't just cave in and have his will overborne. This expert, when it's the way he wants it to be, then it's police manipulation. But if it's to the contrary he ignores it. And the best example of that is about him saying that "Are you certain" reinforces it. When Inspector Gitchell asks, "Are you certain" on a question that he was stating that was inconsistent with the facts. Can't have it both ways. It's either reinforcement or it's not. And then Ofshe, and we went through this, now why this very skillful expert testifier did this, I don't know. But he testified that "night" was not mentioned until page 18 when Detective Ridge said, "The night you were in these woods." And if you'll remember back on page 12 -- and you'll have that with you back there, the transcript and the tape -- it was the defendant himself who first brought up "night." Now why Ofshe tried to pass off to you all that the police had introduced night, I don't know. Was he wrong, just wrong, mistaken, not -- doesn't have a grasp of the facts? Or was he misrepresenting to you?

He then testified in regard to the follow-up tape that nowhere in the record does the defendant say 7 or 8 until Inspector Gitchell mentions 7 or 8. Inspector Gitchell testified and explained where he got 7 or 8. And it was from the defendant's mouth. And then on page 3, again, why he did this I don't know. Ofshe tells you that where the transcript shows that Detective Ridge said nine o'clock in the morning, why the transcript's wrong. That was Jessie that said that, according to Ofshe. Listen to that tape. I don't believe you'll have any trouble distinguishing between Detective Ridge's voice and the defendant's voice and it is clearly Detective Ridge saying nine o'clock in the morning. Now if these officers are going to skillfully manipulate this defendant, after he said that it was in the morning, why would he say nine o'clock in the morning?

Finally, in regard to Mr. Ofshe, this is the same man that despite all these flowery explanations for why this occurred, is the same man who in the State of Washington testified that a man had given a coerced confession, a wrong untrue confession, when his two, not minor daughters or mentally handicapped daughters or anybody else, his two adult daughters said that he had molested them. His wife said that it happened. And he said that it happened and confessed to it, pled guilty, and not until the expert testifier goes and talks to him does he suddenly say -- this is after more than five months of maintaining his guilt -- that I'm not guilty. All these people, were all these people skillfully manipulated and coerced into saying these things? Well, the State of Washington and their courts thought not and discounted his opinion.

The bottom line in this case is these officers' integrity, Inspector Gitchell and Detective Ridge, there is absolutely not one iota of evidence that they have told anything other than the truth in this courtroom. Anything other than the truth about what happened there. There's no evidence of that, there's no evidence or coercion, there's no evidence of them yelling at him. As Inspector Gitchell said, sometimes you have to do that, in this case it was not necessary. There's no evidence of any form of coercion. What is the defense? Are they saying that the defendant was brainwashed? Is that what they're saying?

This defendant knew facts that nobody else knew. Now when you look at these documents that the defense introduced, I believe it's gonna be clear that he was giving information nobody else knew. The newspaper, what they printed was that all the boys had been sexually mutilated. Well if that's the information he had, why didn't he say, "Well all three of them were cut" in that place, instead of one. He picked out the right one. Got a little report here from an interview with some guy named Kellon. "Rumors: castrated and mutilated, beaten to death." Did it say one was castrated? Or mutilated? Anything about cuts in the face? No. And then another one, in response to the question 9 which is "How do you think they died?" "Pointed to penis, said heard cut off. Heard it was cut off and they were beat up." He didn't say it was cut off of one or two or three. There's no evidence that who was cut or how many was cut was common knowledge. You got injuries to the ears nobody knew about, the defendant described the way they would have happened. You got injury to the genital area where he identified the specific person. Yes, there's information that all of them had had that, and that was not true. That was wrong information. And he picks out the one person who it was done to. Injuries to the face were not common knowledge.

Finally, finally, when you get to the Bojangles defense which we've already talked about briefly. And use your common sense, the judge says you can take it back to the jury room with you. Is somebody that's gonna go to all the trouble that these defendants went to in cleaning up that scene, are they gonna then, are he gonna then go into a public place and leave blood all over the place?

In this system we all have duties. Barbara's duty, and even though she's not doing her little typing thing she's still taking everything down by tape recorder. In the courtroom that's her job to take down everything that's said. The sheriff's office to act as bailiffs, provide security, and they've done their duty. Inspector Gitchell and his men investigated this crime the very best of their ability. And keep in mind what the medical people said, and let me digress a minute. This was a clean scene. It's not like being in a house where the evidence is contained. This is outside in the woods, but yet not a drop of blood. They might say, "Well it must have happened somewhere else and they carried them in." There's no trail of blood leading out there either. And this guy going in Bojangles leaves blood dripping all over the place. Not any blood out there because it been wiped down, and you got the pictures and you can see in the pictures the condition of that bank where it had been cleaned off. You've got the most destructive thing to evidence that you can have: water. You got the bicycles in water, you got the kids in water, you got their clothes in water. And despite all of those problems the forensic people at the crime laboratory were able to obtain fibers that matched both Damien Echols and Jason Baldwin. Despite all those problems. And they also found -- and this was somewhat confusing -- the testimony, at least it was for me -- some of y'all may be scientists or science people -- but the testimony from Dr. or Mr. Deguglielmo about the DNA. Now if you will recall, Kermit Channell from the crime lab said that in his tests on the little boy's pants that he ran screening tests, he ran one screening test, and it came back positive, positive for semen. He ran a second screening test, positive for semen. He looked under a microscope and the pants were all muddy and everything and he couldn't see any sperm but he had these two positive tests for semen. So he sent those cuttings from the pants to Genetic Design in North Carolina and that was the man from North Carolina. And what did he tell you? When you boil it all down -- if I can boil it down -- he tells you that in his opinion the DNA that he found from those cuttings was from sperm. Did he see any sperm? No. Because he doesn't look at things under the microscope. His are DNA tests. He said -- they asked him, Mr. Stidham said, "Are you saying positively that there are sperm there?" And he said, "Well, no, you can never say positively unless you look under a microscope and are able to see it, but if I had done that it would have used up part of the sample and we were trying to preserve the sample." But with his opinion, with the test that he ran, if you'll remember there's the epithelial, what he called fraction, and the male or sperm fraction. Remember when he was describing how you split out the two when you got more than one suspect and you split it out so you'll be able to divide them up? The epithelial fraction is the non-male fraction. If it's something other than sperm it's gonna show up in that, like blood. Well, when he got the DNA test back from the epithelial side, nothing. No DNA. On the male fraction -- the sperm fraction -- it was positive for DNA and he stated that in his opinion that this indicated the presence of sperm on those pants. So despite -- not enough to connect to this defendant, but it wasn't enough to connect to anybody. It's not as if you had something that just didn't connect to this defendant, wasn't enough to connect to anybody because there's just not enough of a sample. So despite this clean crime scene, the forensic people at the lab, and through the work of the police department, they were able to come up with that corroborating factor, the fibers that matched Damien and Jason. And then -- you got the judge, and back to the duties. Judge Burnett's job is to keep us all in line and you've seen probably more objections and approaches to the bench than you ever wanna see. But those things, as Mr. Davis pointed out to you in voir dire, sometimes are necessary and we have to do those things. But his job is to be the judge of the law and to give you the law that you are to follow. Mr. Stidham and Mr. Crow, it's their job to represent this defendant, and they've done that. It's Mr. Davis' and my job to present to you the State's case, and we've done that. And now we're about to enter the phase where, really, the job becomes yours, the entire job becomes yours. To judge whether or not, based solely and exclusively on the evidence that you got before you, whether the State has met it's burden of proving this defendant guilty of three counts of capital murder. I submit to you that the State has met its burden of proof. I submit to you that you should go back, deliberate, take your time, this is not something to rush through, listen to those tapes, and then return your verdict of guilty. Thank you.

THE COURT: Let's take a recess. All right ladies and gentlemen, with the -- sherriff, I want the whole hallway cleared out back there for the jury to use both restrooms, have somebody on both doors. You may stand in recess for let's say ten minutes, will that be enough, ten minutes? Okay. And again, you're still not to discuss the case until you've heard all the arguments and I submit the case to you.

Misskelley Trial - State's Opening Statement (Fogleman) - January 26, 1994