Jessie Misskelley Mentally competent?

[Obscuregawdess]

His IQ was 72, which is borderline mentally retarded. Watching him talk, you can easily see that he does not communicate like the average person his age. He does have a hard time articulating and compiling a sentence. If I were to run into him without knowing him, it would be obvious he is slow. Now, he was said to have had a temper, drink, and smoke a little marijuana on occasion... probably more than his father let on. Of course, he was the average teenager... but mentally? Is it unlikely he would make three separate statements out of vulnerability and fear? When he was asked if he was scared (in his "confession"), he said he was. They asked him, "Of the police or Damien?" And he stated it was the cops he was afraid of.

[Obscuregawdess]

http://westmemphisthreediscussion.yuku.com/topic/2221

Jessie's Alibi -- Timeline

9:00 AM - Jessie Sr. wakes up Jessie Jr. to go to work with Ricky Deese and Josh Darby.

9:00 AM - 1:00 PM - Roofing with Ricky Deese and Josh Darby.

2:00 PM - Ricky Deese's wife sees Jessie in Highland Trailer park.

3:30 PM - 7:00 PM - Jessie with Susie Brewer.

5:00 PM - 6:30 PM - Jessie and Susie over at Stephanie Dollar's trailer.

6:30 PM - Jessie and Susie go outside to see police officers.

6:30 PM - Jessie is seen by: Louis Hoggard (who talks with him), Charles Ashley, Susie Brewer, Jennifer Roberts, Stephanie Dollar, Christy Jones, and Dennis Carter.

6:45 PM - Jessie and Susie got to Johnny Hamilton's house and the three walk back to Jessie's house.

7:00 PM - Jessie, Susie, and Johnny run into Jennifer and Christy at Jessie's house.

7:15 PM - Jessie walks Susie to Stephanie's house and walks back to his house to get mask. Jessie Sr. arrives home from DWI school.

7:15 PM - 7:30 PM - Jessie leaves for Dyess with Freddy Revelle, Bill Cox, Roger Jones, Dennis Carter Jr., and Johnny Hamilton.

8:00 PM - Jessie and company meet Keith Johnson at Exxon station near Turell to go to Dyess.

8:00 PM - 12:00 AM - Jessie wrestling at Dyess with: Bill Cox, Dennis Carter, Roger Jones, Johnny Hamilton, and Keith Johnson.

[Obscuregawdess]

http://westmemphisthreediscussion.yuku.com/topic/2268

Interview Notes-Jessie Misskelley
--------------------------------------------------------------------------------

Mike Allen:

INVESTIGATIVE REPORT

OFFENSE: Byers/Branch/Moore - Homicide

VICTIM:

COMP# CF# 93-06-0666 DATE PG OF

6/3/93

6/3/93 Jessie Misskelly - knowledge of Damien Echols
11:00 minded
AM stated he was sick , (Damien)

listed Friends of Damien:
Jason Baldwin (Allways together)
Girl Friend of Damien's (Dominie (lnu unknown)

Last time saw Damien: 3 weeks ago
saw Damien at Highland, at Vicky's
house 34 y.o.a. women (I told her he's sick)

Heard about (Rumor's) that Damien &
Robert Burch did it.

stated He was working with Ricky
Deese (roofing) thinks he worked
tues, Wed, thurs the week of the
murders. Jessie Misskelly stated he saw
a boy on a Bike near 7th Street &
when he saw a Police car and hid.
got off at 5:00 P.M., Josh Darby, Ricky

Notes 6/3/93

s/M. Allen

006244


Deese Got Off at 5:00 P.M. that Wednesday
Misskelly stated he went home.

states he goes to skating rink alot
see's Damien up there nearly everytime
he goes up there. See's Damien with
Carl Smith & Jason Baldwin.

has seen Jason Baldwin get in Fight
with a guy and got his nose busted
and Damien stuck his Finger in the blood
and licked it. occurred in lakeshore.

states he has known Damien for about
a year.

states that Damien met Vicky after the
murders, Vicky asked Misskelly About
Damien.

states he never has been in Robin Hood.


Notes s/M. Allen
6/3/93

[Note: This page was completed on a blank statement form]

006243






Bryn Ridge (before polygraph):

(Jessie Misskelly
Interview
w/Mike Allen)

INVESTIGATIVE REPORT

OFFENSE:

VICTIM:

COMP# CF# DATE 6/3/93 PG 1 OF 2

Jessie Misskelly (Jr)

Day of Murders

That week worked as Roofer
Boss - Ricky Deese
[worked] with Josh Darby and
got off work at 5:00 PM

went home and stayed at home

Heard that Damien and Robert Burch had done
murders

Damien is Sick (in head)
Drinks Blood

Damien and Jason are close. Jason Baldwin
Hasn't seen Damien in over two months
Doesn't know anything about Murders

Doesn't know much about Robert Burch
Lives Somewhere in West Mphs.
Used to live in Highland trailer Park.

Stated that he will take Polygraph


s/ABR 250

006257

INVESTIGATIVE REPORT

OFFENSE:

VICTIM:

COMP# CF# DATE 6/3/93 PG 2 OF 2



M. Allen will attempt to obtain permission
for Polygraph from Father

Knows that Damien has a girl friend named Domini/lives in Lakeshore
Skinny, Pregnant, Red hair

Spent last night w/ Vicki, has a sone Aaron
stated that three weeks ago he introduced Damien to Vicki

Deny any Satanic activity

Doesn't knw of any taking place.

Damien drinks Blood


s/ABR 250

006256





Bryn Ridge (post polygraph):

Jessie Misskelly, Jr.
6/3/93 interview

INVESTIGATIVE REPORT

OFFENSE:

VICTIM:

COMP# CF# DATE PG 1 OF

Permission obtained F Polygraph
Bill Durham reported that he is lying
(Lying his Ass off)

Me and Gary Gitchell

Stated he had received a call from Jason Baldwin
the night before Murders.
They were going to go out and get some boys and
hurt them
Stated he received call from Jason, Damien in Background
wanted him to go with them
Said they planned something.
Heard Damien say that Jason ought to tell
that they were going to get some girls or something
Jessie said he knew what they were going to do.

Jessie began to say something and then says he
doesn't want anything to do with it

[star] Jessie stated that he saw pictures of Boys Killed
During Meeing

s/ABR 250

006251

INVESTIGATIVE REPORT

OFFENSE:

VICTIM:

COMP# CF# DATE PG 2 OF

Has meeting of "(Satanic cult.)"
will meet in different Places
will talk of what they are gong to do
will build fire of paper & Wood and stuff
a friend of Jason's will bring a brief case
15 YOA Ken wears a long coat.

(Brief case has a couple of guns
Lives near where Billy Stewart used to live

Someone brings a dog and they usually kill
the gods

They will skin the dog and eat part of it.

Says that Damien drives a Red car that is owned
by Jack Echols.

In the Briefcase are a couple of guns and
some drugs. Marijuanna and cocaine.

States that the picture of the boys in a group of
the 3 in front of a house

Damien has been to W. Mphs. watching

Has watched boys in the woods where they
were killed.


s/ABR 250

006252


INVESTIGATIVE REPORT

OFFENSE:

VICTIM:

COMP# CF# DATE PG 3 OF


States that Damien hangs out at Skating Rink to find
Boys.

Doesn't know who has briefcase now.

Says Damien has been watching Boys for
a long time.

Meetings all held on Wednesday

On Wednesday that Boys were killed there
was no meeting

Friends
Who attends Meetings Christina Jones
Jessie Dennis Carter
Jason
Damien
Adam ?
Ken ?
New Dude
Tiffany Allen
Domini
Christina Jones
Blond Hair Tall Heavyset

will be 8 or nine people and they will have orgy
afterwards 3 on one


s/ABR 250

006253


INVESTIGATIVE REPORT

OFFENSE:

VICTIM:

COMP# CF# DATE PG 4 OF


Jason & Damien are having sex with each other.

Has had meetings in Robin Hood.

Jason has a folding knife
Damien doesn't have one
Jason always carries knife

Jessie not sure of times of Phone calls

3 calls

Day before
Morning of Murder
After Dark Jason on line Damin in Back Ground
We did it We did It
What are we going to do now
What if somebody saw us.

Sounded like Jason was at home. Brothers in
Background.

Says that the animal killing is part of ritual if
person eats meat then he is part of group.

Will take polygraph concerning new statement.

s/ABR 250

006254


INVESTIGATIVE REPORT

OFFENSE:

VICTIM:

COMP# CF# DATE PG 5 OF


Show a picture of one victim in coroner's office

Jessie know was one of those killed by Damien
Jessie looked hard at Picture and said it was of
"Moore Boy" and that it was one of the boys
in the Polaroid
Jessie stated that he didn't want t obe a
part of this that Damien and Jason killed he
did not.

Will think about taking a polygraph test.

I left room at which time Jessie informed
[star] Gary Gitchell of his being present during time
of Murders. Witnessed Murder by Damien and
Jason.

Taped statement began after time given to
get self composed.


s/ABR 250

006255

[Obscuregawdess]

(post by jivepuppi)

http://westmemphisthreediscussion.yuku.com/topic/2095

I'll try to catalog here the differences between the original transcribed text and the updated transcription that I made from the tape (available in the documents section). Those who follow my posts, know that often I try to be thorough. I figure that a complete catalog has both immediate meaning and is useful as a resource. In this case, the revised confession is the resource, and I will limit this to a variety of the more significant changes. As I mentioned previously that a lot of the changes involved the difference between mm-mm and yes. It is interesting to note when Jessie is being clear and emphatic and when he just mumbles something vague.

The first difference of possible import comes when Jessie is being asked who was first hit by Damien. Jessie is asked to point at the picture in a newspaper "line-up"of which kid. The original transcript reads:

DETECTIVE GITCHELL: This boy right here,
MISSKELLEY: Yeah,
DETECTIVE GITCHELL: Alright, that's uh the Byers boy, that's who you are pointing at?
MISSKELLEY: Yes
DETECTIVE RIDGE: If you read the caption, the grizzly slain from left, 8 year old Michael Moore, Steven Branch and Christopher Byers. Okay, so you saw Damian strike Chris Byers in the head.

While the revised one reads:

DETECTIVE GITCHELL: This boy right here,
*A32 MISSKELLEY: Yeah,
DETECTIVE GITCHELL: Alright, that's uh the Byers boy,
*A33 MISSKELLEY: Christopher
DETECTIVE GITCHELL: That's who you are pointing at?
*A34 MISSKELLEY: Mm-hmm.
DETECTIVE RIDGE: If you read the captions, the grisly slain from left, 8 year old Michael Moore, Steven Branch and Christopher Byers. (Jessie seems to be echoing these names as Ridge speaks). Okay, so you saw Damien strike Chris Byers in the head?

Jessie clearly gives Chris Byers first name. Since he had only given Michael Moore's name previously by prompting, this is of interest. Jessie echoes the names in the background as Ridge reads them off. Finally, it is interesting to note how Jessie movies from a clear "yeah," to an indistinct mm-hmm. In this case it is easy to see the reason, he has been caught misidentifying the child. What seemed positive a moment ago is less positive now.

The next place with a significant change is (original):

DETECTIVE RIDGE: In the woods. Okay, you've been down there in those woods before, can you describe to me what in those woods, what's the location where you were?
MISSKELLEY: Uh,

(Revised:)

DETECTIVE RIDGE: In the woods. Okay, you've been down there in those woods before.
*A41 MISSKELLEY: Yes, I have.
DETECTIVE RIDGE: Can you describe to me what in those woods, what's the location where you were?
*A42 MISSKELLEY: Uh,

Here we find Jessie making a clear affirmative statement when given a question as to whether he was there. This is in direct contrast to him having to give a statement to support it. This pattern is repeated over and over. Jessie gives a clear statement of his presence, but then becomes vague or even nonsensical when trying to support it. Interestingly, the clear affirmation was lost in the original transcription.

Next (original:)

DETECTIVE RIDGE: Alright, where does that path go too?
MISSKELLEY: It leads out there close to the field, close to the interstate.
DETECTIVE RIDGE: Okay
MISSKELLEY: Close to the interstate

Changed to:

DETECTIVE RIDGE: Alright, where does that path go to?
*A44 MISSKELLEY: It leads out there close to the uh field, close to the interstate.
DETECTIVE RIDGE: Okay
*A45 MISSKELLEY: That's where I was at.
DETECTIVE RIDGE: Alright.
*A46 MISSKELLEY: I was close by the interstate.

In this case the original transcriptionist leaves out some relevant information. Jessie says and then affirms that he was by the interstate. Of course, the place where the bodies is closer to the southern end of the Blue Beacon Woods. As in a number of cases, the transcriptionist left out an entire exchange.

Next (original):

DETECTIVE RIDGE: Which way does he go, I mean, does he go back towards where the houses are, he's going to Blue Beacon, is he going out towards the fields, where's he running too?
MISSKELLEY: Towards the houses.
DETECTIVE RIDGE: Towards the houses?
DETECTIVE GITCHELL: Where the pipe is that goes across the yards?

Changes to:

DETECTIVE RIDGE: Which way does he go, I mean, does he go on back towards where the houses are
*A49 MISSKELLEY: He goes on back. . .
DETECTIVE RIDGE: He's going to Blue Beacon, is he going out towards the fields,
*A49 MISSKELLEY: He's going. . .
DETECTIVE RIDGE: Where's he running to?
*A50 MISSKELLEY: Towards the houses.
DETECTIVE RIDGE: Towards the houses?
DETECTIVE GITCHELL: Where the pipe is that goes across the water?

These changes show something a bit humorous. Jessie is trying to answer the question, but Ridge keeps pressing forward with more options. The final statement by Gitchell is in contrast with Destini's comments that the police mentioned the pipe across the yards. Gitchell clearly says water.

Next (original):

DETECTIVE GITCHELL: Now, did you say that the boys skipped school that day, these little boys did?
MISSKELLEY: Yes, they were going to catch, they were going somewhere and like I said, Damian and nem left before I did, I told them that I would meet them there and stuff, and it was early in the morning and so, they went ahead and met me, they went on up there and then I come up later on behind them.

Corrected:

DETECTIVE GITCHELL: Now, did you say that the boys skipped school that day? These little boys did?
*A107 MISSKELLEY: Mm-hmm,
DETECTIVE GITCHELL: Are you sure?
*A108 MISSKELLEY: They was going to catch the, going somewheres and like I said, Damien, Damien and nem left before I did, I told them I'd meet them there and stuff, I had to get ready, and I meet them there and it was early in the morning and so, they went ahead and met, met me, they went ahead went up there and then I come up, you know, later on behind them.

The corrected transcript conveys somewhat how lost Jessie is during his trying to justify how the little boys skipped school. This sort of thing happens a number of times on the tape, where Jessie is repeating words. It is easy to imagine how, in such a situation, he is sensing the detectives disbelief. Another situation where Jessie stutters his way through a declaration is when he later describes eating the dog meat as a means of initiation into the cult.

Next (original):

DETECTIVE RIDGE: And you mentioned that you heard some voice in the background?
MISSKELLEY: I heard some dingling

Corrected:

DETECTIVE RIDGE: And you mentioned that you heard some voice in the background?
*A120 MISSKELLEY: I heard some of Damien.

"Some of Damien" is an awkward construction. It seems to mirror the construction "some voice." (It could be "some, uh, Damien") I find this change fascinating because it subtracts one of the very few comments Jessie made about the background. When people recall actual events, they bring up the key sensations. "We couldn't hardly see." "The mosquitos were awful." "The water was stagnant." Jessie's recollections are virtually free of these, except when the detectives provide them. (Later on Gitchell declares that Jessie was muddy.) There was no "dingling" in the background. It was Damien, what Jessie had said before, and what he would repeat. There is no sensory recollection, only "factual." There are manuals that help people like insurance investigators look for clues as to when people are lying. The lack of vivid, specific, sensory recall is one of them. (Or, alternatively, great sensory recall can be a sign that a person is a very good liar.) Jessie is not a good liar.

Next (original):

DETECTIVE RIDGE: Okay, he had his legs up in the air, alright, what was To keep the little boys from running off, but just their hands are tied, what's to keep them from running off?
MISSKELLEY: They beat them up so bad so they can't hardly move, They had their hands tied down and he sit on them
DETECTIVE RIDGE: You said that they had their hands tied up, tied down, were they hands tied in a fashion that they couldn't have run, you tell me.
MISSKELLEY: They could run, they just had them tied, when they Knocked them down and stuff, they could move their arms and stuff, and hold them down like, wake up and raise up and the other one just put his legs up.
DETECTIVE RIDGE: Okay, so they had them under control, you were there the whole time that was taking place?
MISSKELLEY: I was there.

Changed to:

DETECTIVE RIDGE: Okay, he had his legs up in the air. Alright, what was to keep these little boys from running off? If just their hands are tied, what's to keep them from running off?
*A138 MISSKELLEY: They beat them up so bad so they can't hardly move. They hadn't tied, had their hands tied down and he just sit on them.
DETECTIVE RIDGE: You said that they had their hands tied up, tied down, were their hands tied in a fashion to where they couldn't have run? You tell me.
*A139 MISSKELLEY: They could, they could run, they just had them tied, when they knocked them down and stuff, they could hold their arms and stuff, and just hold them down like, where he couldn't raise up and the other one picked his legs up.
DETECTIVE RIDGE: Okay, so they had them under control. You were there the whole time that was taking place?
*A140 MISSKELLEY: I was there.

These exchanges are clarified a bit. Now it is pretty clear that Jessie is describing wrestling maneuvers. Sitting on the kids, pulling the arms back, lifting up the kids legs. Sounds like they are going for the pin. How Damien and Jason managed to constrain three kids this way doesn't make much sense. These exchanges also represent one style by which Jessie answers questions: the smorgasbord style. Here we have the kids able to run, unable to run, their hands are tied, they are sat on, their legs are picked up, they are too beaten up (earlier they were unconscious, later they were fighting all the time). We again have the police offering Jessie cheeseball leading questions, but this time Jessie does not come up with the response they are leading him to. If just their hands are tied, why can't they run? (Hint, hint, running requires feet.) To be fair, the police give up after a couple of tries, not like the continued tries when talking about the kid being held by the ears. And it ends with one of my favorite lines by Jessie: I was there. After giving repeated nonsensical statements, he makes that simple proclamation like that makes all of the nonsense right. (Oh, that's right. It did for the police and the state of Arkansas.)

On to (original):

DETECTIVE RIDGE: Okay, none [note: this is not clear - it may be 'one'] of them were cut on the face real bad, is that what you said?
MISSKELLEY: Yes

changed to:

DETECTIVE RIDGE: Okay, none of them was cut on the face real bad, is that what you said?
*A141 MISSKELLEY: Mm-hmm.

From the tape it sounds like Ridge said n-one, as though he began phrasing the sentence a certain way and then changed it to "one of them was." I had made a post speculating regarding one was, none were. This invalidates one part of my post. He clearly says "was."

Next stop, original:

DETECTIVE RIDGE: Are you willing to go down there with us and us having a camcorder and show us where these things took place? Would you do that?
MISSKELLEY: Silent
DETECTIVE RIDGE: Wouldn't have any problem with that?
MISSKELLEY: Not that I know of, I wouldn't
DETECTIVE RIDGE: But you would be able to point out where these things took place?
MISSKELLEY: Yes
DETECTIVE RIDGE: Which way the boys came from and where you all were when he hollered for the boys and stuff like that, you wouldn't have a problem with that?
MISSKELLEY: After the murder and stuff, I would say about two or three days later after it happened, I went down there and thought about it and I haven't been down there since.

Changed to:

DETECTIVE RIDGE: Are you willing to go down there with us and us have a camcorder and you show us where these things took place? Would you do that? (3 seconds of silence) Wouldn't have any problem with that?
*A196 MISSKELLEY: Not that I know of, I wouldn't.
DETECTIVE RIDGE: Huh?
*A197 MISSKELLEY: Not that I know of, I wouldn't have a problem with that.
DETECTIVE RIDGE: But you would be able to point out where these things took place?
*A198 MISSKELLEY: Mm-hmm.
DETECTIVE RIDGE: Which way the boys came from
*A199 MISSKELLEY: Mm-hmm.
DETECTIVE RIDGE: And where you all were when he hollered for the boys and stuff like that, you wouldn't have any problem with that?
*A200 MISSKELLEY: After, after, after the murder and stuff, I would say about two or three days later after it happened, I went down there and thought about it and I haven't been there ever since.

It's hard to understand how the transcriptionist left out the extra exchanges here. They don't change the substance of this, but they do draw out the length of the exchange before arriving at the same conclusion. If you look at this as Jessie being pinned against the wall (he couldn't possibly point anything out) this added length strains the painful black humor in this charade.

Next stop (original transcript):

DETECTIVE RIDGE: Where did you throw up at?
MISSKELLEY: I got a little bit ways out of there and got half a mile up the road, is when I threw up, and couldn't hardly run and I just threw up.

Changed to:

DETECTIVE RIDGE: Where did you throw up at?
*A213 MISSKELLEY: I got a little bit ways out there. I took Seven up and then about a half a mile up the road, is when I threw up, and I had to quit running and (unintelligible) I threw up.

This is fascinating. It was argued from his post-conviction statement that Jessie went to the overpass to throw up. The police found a bottleneck to "prove" that he was there. On the audio tape, Jessie is clearly audible in saying where he went (transcribed Seven up, above). I say clearly audible, but not perfectly intelligible. When I first heard the tape I wrote down "fenlap" and then listening a few more times, it came out "Sennap" the S seemed clear. Looking at the map, 7th street is one of three possible routes he would have taken to connect Blue Beacon to Marion. There is a bend in the road almost exaclty one half mile up.

(From the original:)

DETECTIVE RIDGE: Why did you not come forward with this information?
MISSKELLEY: Cause I was scared
DETECTIVE RIDGE: Scared of Damian? or scared of the police?
MISSKELLEY: Scared of the police
DETECTIVE RIDGE: Are you scared of Damian now?
MISSKELLEY: No
DETECTIVE RIDGE: Are you scared of the police now?
MISSKELLEY: No
DETECTIVE RIDGE: You are not, so we've treated you well?
MISSKELLEY: Yes

changed to:

DETECTIVE RIDGE: Why did you not come forward with this information?
*A271 MISSKELLEY: Cause I was scared
DETECTIVE RIDGE: Scared of Damien? or scared of the police?
*A272 MISSKELLEY: Scared of the police.
DETECTIVE RIDGE: Are you scared of Damien now?
*A273 MISSKELLEY: No.
DETECTIVE RIDGE: Are you scared of the police now?
*A274 MISSKELLEY: Un-uh (faint)
DETECTIVE RIDGE: You are not, so we've treated you well?
*A275 MISSKELLEY: Mm-hmm (faint)

This is a case where Jessie is very definite at one moment, and then giving a vaguely audible response a moment later. Draw your own conclusions from the gradient of response. One thing I was shocked by the fact that the police, knowing that a recording was going on, never asked Jessie to yes or no, rather than so many mmms.

There are a lot of other changes of moderate degree of meaning, but I think this covers most of the relevant ones.

jivep.
-------------

Because I tend to be quantitative, I counted the number of instances that Jessie said mm-hmm vs. yes or yeah, and un-uh vs. no.
There were 40 mm-hmm's and 31 yeses and yeahs.
There were 12 un-uh's and 22 nos.

There were a couple of instances where I couldn't make out anything. That's a lot of grunt conversion.

jivep.

[Obscuregawdess]

Evening Times
2/2/94

Psychologist's testimony questioned
Evaluation of Misskelley heard by jurors this morning

By Kathleen Burt
Evening Times Staff Writer

CORNING -

A psychologist who evaluated Jessie Misskelley Jr. as borderline mentally retarded and very suggestible went before the state Board of Psychological Examiners last month and had his practice limited.

Dr. William Wilkins of Jonesboro must practice under the direction of a supervisor and cannot handle sexual abuse or neuro-psychology cases, he said under rigorous questioning from prosecutors this morning in the capital murder trial of Jessie Lloyd Misskelley Jr.

The restrictions imposed by the board dealt with complaints about the way Wilkins handled a sexual abuse case in Jonesboro.

An evaluation of Wilkins done by another psychologist reported concerns about Wilkins' lack of knowledge of fundamental psychological defects and the scales used in scoring the Minnesota Multi-Phasic Personality test (MMPI) and Wexler tests, common psychological and intelligence evaluation tools. Wilkins used both those tests, along with the Rorshchach test, in evaluating Misskelley.

As he testified in a pre-trial hearing, Wilkins said this morning that Misskelley scored below the normal range of intelligence, and reacted on the level of a 7- to 8-year-old child in making interpretations. He said Misskelley was unable to deal with abstract concepts in making moral judgements; had a reading level of a third-grader, and a writing ability of less than a first-grader. He called him anti-social and dependent.

"Jessie is a young man who is dependent on others to make major decisions, and he has difficulty separating fantasy from reality."

Wilkins was still on the stand at press time, and was expected to be the last defense witness. Prosecutors planned to call three or four rebuttal witnesses.

Tuesday, prosecutors chipped away at Misskelley's alibi as the two-week-long case wound down.

Misskelley has been on trial since week before last for the murders of three West Memphis 8-year-olds May 5.

Nine defense witnesses took the stand Tuesday, including several people who said they wrestled with Misskelley in Dyess on the night the three boys were reported missing.

In each case, prosecutors were able to show witnesses were confused about the date Misskelley accompanied them to the Mississippi town some 40 miles north of West Memphis.

Most of the wrestlers gave statements to police after Misskelley was arrested June 3.

Dennis Carter, 15, a ninth-grade student at Marion Junior High School, read from his own handwritten statement given to police June 9. He said on the stand that Misskelley went with him and several others to Dyess. But when Prosecutor Brent Davis introduced Carter's statement into evidence, the testimony didn't hold up.

"I have never went with Jessie to Dyess," Carter read slowly and hesitantly.

He said Misskelley usually went wrestling on Mondays and Fridays.

Carter became tearful when Davis asked him about the yellow ribbon he wore on his chest.

"I love Little Jessie and want to see him come home," Carter said.

Later testimony did not do much to help the case.

The key defense witness Tuesday was an expert from Miami. Warren Holmes, a former police investigator and now a lecturer on false confessions around the southeast, said he was troubled by Misskelley's alleged confession to police shortly before his arrest.

"I was most troubled by the error in the time factor and the ligatures," Holmes said.

In his statement, Misskelley said the boys were killed around noon on May 5, and their bodies tied with brown rope. But they were in school at noon that day, and their hands and feet were bound with black shoelaces.

Davis questioned Holmes extensively on the fact that Misskelley knew which of the boys was castrated and other specific injuries, especially those to the boys' ears. Those details were withheld from general knowledge, police said.

"I don't know what inferences were made by investigators before the tape went on," Holmes said. "But those things are not as important as the time factor and the ligatures."

He added that in Misskelley's second statement the time discrepancy was cleared up somewhat, but the fact that Misskelley said the boys were tied with rope was never resolved.

"Surely he knows the difference between rope and shoelaces," Holmes said.

Prosecutors wee prepared to show a videotaped lecture by Holmes if he refuted any of the investigation tactics used by police to get the confession.

"But he never denied any of it," Davis said afterward.

During Holmes' testimony, Insp. Gary Gitchell, who helped take Misskelley's statement, shook his head.

"I hope I never get that desperate for money," he said later.

Holmes has yet to submit a bill for his testimony, but said the inconsistencies compelled him to fly from Florida to testify in the case.

Kevin Johnson, an iron worker and resident of Highland Trailer Park, tried to refute earlier testimony which showed Misskelley told police certain details about the murders that was privileged information.

Johnson, a member of the Crittenden County Search and Rescue Unit, said he told Misskelley some details that were discussed among Search and Rescue members.

"Did you know which boy was castrated?" Davis asked.

"No," Johnson said.

Johnson added he wasn't at the crime scene when the victims, Michael Moore, Chris Byers and Steve Branch, were found in a ditch near 10-Mile Bayou.

"Did you know the specific injuries they sustained?" Davis said.

"No, I just told him what was in the paper and what some Search and Rescue guys said," Johnson responded.

After a long delay for lunch, defense attorneys Daniel Stidham and Greg Crow of Paragould tried to build a case against what they call "Jessie's false confession."

Marty L. King, a former employee of Bojangles Restaurant on Missouri Street, recounted an unusual event he said occurred on the night the boys were reported missing.

King said a black man, whose clothes were covered in mud and blood, was in the restaurant around 9 or 9:30 p.m. May 5. The man was in the ladies' restroom when King found him.

"On the wall, there was a forearm imprint of blood and blood all around the toilet," King said.

King said he asked the man if he was OK and said he needed to leave the restaurant.

"He said he was all right, but he didn't get up," King said. "I called police."

He said before police arrived, the man was gone.

King said he and other employees of the store cleaned the restroom, but police did take some samples of blood. No mention of any other blood samples has been made in previous testimony.

Deputy Prosecutor John Fogleman cross-examined King about the muddy evidence. He pointed out that several fields surround Bojangles, especially to the east. Using a West Memphis map, Fogleman and King discussed the terrain.

Defense attorneys were attempting to show that a negroid hair found on the sheet one of the boys was wrapped in could have belonged to the mystery man.

Prosecutors say the hair could belong to one of the black officers or possibly one of the coroners' workers who have handled the boys' bodies.

After Tuesday's proceedings, supporters shouted their support for Misskelley as he was escorted to a deputy's car.

"I love you, Little Jessie," one said.

"We're there for you," another added.

Misskelley faces life in prison or the death penalty if convicted on capital murder charges.

PHOTO: Jessie Misskelley Jr. turns away from witness stand as friends testify Tuesday

Scans:
home.comcast.net/~wm3file....94_01.jpg
home.comcast.net/~wm3file....94_02.jpg

[Obscuregawdess]

2/23/94

Misskelley backs out of deal, testimony
By Kathleen Burt
Evening Times Staff Writer and The Associated Press

JONESBORO - A teenager convicted of murder in the slayings of three West Memphis boys will not testify against two other defendants, his attorney said today.

Dan Stidham said Jessie Lloyd Misskelley Jr., 18, made the decision Tuesday night after meeting with him, co-counsel Greg Crow of Paragould and Misskelley's parents.

"I'm very angry that my client has been spoken to without my consent," Stidham said, referring to a conversation between Misskelley and prosecutors. He said he would mention that in Misskelley's appeal.

Defense attorneys said and sources confirmed that prosecutors offered to recommend a reduction in the life-plus-40-years sentence of Misskelley, possibly to 40 years, if he would testify truthfully against the two other defendants in the case.

Misskelly talked with a lawyer and with his parents for two hours Tuesday and about whether or not to testify against two co-defendants in the murders of which he was convicted earlier this month.

Jonesboro lawyer Phillip Wells was appointed Tuesday by Burnett to explain all the options available to Misskelley.

"Judge Burnett was concerned after a meeting by Mr. Misskelley with prosecuting attorneys over the objections of his attorneys. He wanted to bring in an independent counsel who was not biased toward either the prosecution or the defense to determine that Mr. Misskelley was not being pressured or swayed to testify," Wells said.

He added that he thought Misskelley was coherent and able to understand the options he was presented.

"He seemed show in intellectual functioning, but I am convinced he understood what his choices were," Wells said.

Wells said he met with Misskelley for two hours Tuesday afternoon in the judge's chambers and reviewed all the options the defendant had to weigh.

Later Wells met with Misskelley again after the youth indicated he wanted to discuss the options with his parents.

The Misskelleys, Wells and the defense attorneys in his case met for about two hours in the Craighead County Detention Center Tuesday evening.

Jessie Misskelley Sr., said he did meet with his son Tuesday evening, but the younger Misskelley did not say whether he had made a decision about what to do.

"I think it's a bad idea (for him to accept the plea)," Misskelley said. "But I'm not going to tell him what to do. He's a man now."

Jury selection in Echols' and Baldwin's joint trial began Tuesday.

Misskelley was convicted of the first-degree murder of Michael Moore and two second-degree murders for the deaths of Christopher Byers and Steven Branch, Feb. 4. He admitting observing the murders, and implicated Echols and Baldwin, in a taped statement he gave police, but he did not testify at the trial. That statement is inadmissible in this trial.

Defense attorneys said Tuesday Misskelley has been offered a 40-year sentence in exchange for his testimony, and other sources confirmed that report today.

Jessie Misskelley Sr. added that his son was depressed and scared because of all the confusion and the traveling, but believes he will be vindicated "somehow."

Wells, a defense attorney himself, said he has dealt with clients who have lower IQs. In one case, he conducted a defense for a man he said could not conform to expected conduct because of his mental ability.

Misskelley's attorneys have repeatedly said their defendant has a low IQ and buckled under the pressure police and prosecutors placed on him.

Testimony by a Jonesboro psychologist during Misskelley's trial showed he has borderline intellectual functioning.

Although Wells was needed specifically to discuss the options, he may be called by Burnett again if additional discussions are held, he said.

http://home.comcast.net/~wm3files/ET02.23.94_01.jpg

[Obscuregawdess]

CA6/9/93

'Did not' kill 3 boys, teen writes from jail
June 9, 1993
By Bartholomew Sullivan and Marc Perrusquia


One of three teenagers accused of murdering three West Memphis boys has told his parents in a letter that he "did not do it."

The letter raises further questions about the credibility of a statement Jessie Lloyd Misskelley Jr., 17, gave police. He told them he witnessed one of the killings and chased and subdued one of the boys who tried to escape.

Within hours of his statement, police arrested his two co-defendants, Michael Wayne Echols, 18, and Charles Jason Baldwin, 16, and carried out four search warrants.

In a letter from the Cross County Jail in Wynne, Ark., received by the family Monday afternoon, Misskelley denied involvement in the slayings.

"I hope that y'all don't hate me because I did not do it," Misskelley wrote, saying he spent the day on a roofing job with a man named Ricky Deese.

"I can not stand (it) in here much longer. I will go crazy," the letter said at one point. "Please try to get me out. I will die in here."

The statement, obtained Sunday by The Commercial Appeal, raises questions about times and possible alibis. Attorney Paul N. Ford said he can prove his client was in school at the time Misskelley told police the slayings were taking place.

Echols's lawyer, Val P. Price of Jonesboro, Ark., said Tuesday night that he has not reviewed Misskelley's statement in detail but anticipates he will challenge what he termed "the alleged confession." Price said Echols will plead not guilty.

Misskelley told police that the murders took place between 9 a.m. and noon on May 5 although at another point he says that "all this stuff" happened at night.

School officials said Monday that records show the three victims - Weaver Elementary School second-graders Steve Branch, Christopher Byers and Michael Moore - were in school until at least 2:45 p.m. that day, and witnesses saw them at 5:15 p.m.

Ford declined comment Tuesday on whether his client has an alibi if the slayings occurred at night but has said Baldwin will plead not guilty.

Ford said it appears "logical" that Misskelley's statement is the basis for his client's arrest.

Misskelley ended his statement at 3:18 p.m. on Thursday and the arrests of Baldwin and Echols occurred at 10:32 that night.

Lee Rush, Misskelley's stepmother, said the family has received death threats since a story came out in The Commercial Appeal detailing the statement he gave to police. Rush said the family can prove Misskelley was working the day of the slayings and attending a wrestling event that night, but she declined to give details.

"With . . . like that in the newspaper, you're asking for the Old West days: (People are) going to lynch this kid," Rush said. "I don't believe it."

"It's all false," said Jessie Misskelley Sr., 54, who has played host to a steady stream of reporters since news of his son's arrest broke last week. ''I think they just made it up."

Deese could not be reached for comment Tuesday.

West Memphis Police Insp. Gary Gitchell declined comment Tuesday. Gitchell said the case is still under investigation and dismissed questions aimed at the strength of the case against the three defendants.

"We just have to keep on working," he said.

The roofing work and wrestling match alibis differ from one the elder Misskelley gave reporters on Monday, when he said he believed his son spent the whole day May 5 in the Highland Trailer Park between Marion and West Memphis and was searching for witnesses to confirm it.

Dyess, Ark., Fire Chief Floyd Gilmore said the Fire Department, which has sponsored wrestling matches in town on previous occasions, did not hold a contest the night of May 5.

Dyess Mayor Edward Wooten said there hasn't been a wrestling match in Dyess for more than a year. "There were no wrestling matches that day in the town of Dyess," Wooten said.

Misskelley said in the letter that he has access to a television set and a Bible.

"My stomach has been hurting me," he said. "I watch the news last night and I cry and cry."

http://westmemphisthreediscussion.yuku.com/topic/2651

[Obscuregawdess]

http://westmemphisthreediscussion.yuku.com/topic/2774

THE COMMERCIAL APPEAL
MISSKELLEY JUDGED MENTALLY FIT, FACES DEATH IF CONVICTED
Date: Wednesday, December 22, 1993
Section: Metro
Page: B1
Illustration: photo
Source: By Bartholomew Sullivan The Commercial Appeal
Dateline:

Memo: Shorter version, Final B2
Edition: First
Jessie Lloyd Misskelley Jr. is not mentally retarded and could face the death penalty if he's convicted of the murders of three West Memphis 8-year- olds, Circuit Judge David Burnett ruled Tuesday.
According to a psychologist called by Misskelley's lawyer, Daniel Stidham, Misskelley sniffed gasoline, used drugs and was a discipline problem in school and is on the "borderline in intellectual functioning."
Misskelley is expected to go on trial in Corning, Ark., Jan. 18 for the May murders of Christopher Byers, Steve Branch and Michael Moore.
Stidham wanted Misskelley ruled mentally retarded to avoid the death penalty if Misskelley is convicted.
The State of Arkansas presumes a defendant is mentally retarded if he has an IQ of 65 or lower and prohibits the imposition of the death penalty for such defendants if they are found guilty. Misskelley tested with an overall IQ of 72.
"He's not mentally retarded," Burnett ruled after a 1 1/2-hour hearing. ''He is right above that level."
Jurors will be allowed to hear testimony from Jonesboro psychologist William E. Wilkins if Misskelley is convicted, Burnett also ruled. Wilkins testified Tuesday that he believed Misskelley met the state's definition of mental retardation because of his "significant sub-average general intellectual functioning."
Wilkins testified Nov. 16 when Stidham tried to have Misskelley, who was 17 when the murders occurred, tried in juvenile court. Burnett denied the request. Wilkins said last month that Misskelley "lives in a kind of schizoid world."
A documentary film crew recorded Tuesday's proceedings. The documentary is being produced by the same New York group that made the award-winning Brother's Keeper about the 1990 death of one of four bachelor brothers in rural New York state.
Two other defendants, Jason Baldwin and Damien Echols, will go on trial on identical murder charges in February in Jonesboro.

[Obscuregawdess]

http://westmemphisthreediscussion.yuku.com/topic/2802

HEADLINE: DEFENSE COUNSEL SAYS MISSKELLEY RETARDED;
HEARING IS TODAY FOR SUSPECT IN SLAYING OF 3 BOYS

BYLINE: Bartholomew Sullivan; The Commercial Appeal

BODY:


Jessie Lloyd Misskelley Jr. is mentally retarded and should not be executed if he is convicted of the murders of three West Memphis 8-year-olds, his attorney said Monday.

The issue may be resolved today when Circuit Judge David Burnett also considers whether Misskelley, who was 17 when the murders occurred May 5, should be tried in January as an adult.

An Arkansas law passed earlier this year prohibits the execution of mentally retarded convicts. Misskelley attorney Daniel T. Stidham said a psychologist he declined to name evaluated his client and found he had an IQ of 72. Average IQs range from 90 to 100. Arkansas law presumes mental retardation in cases where the defendant has an IQ of 65 or less.

Stidham is expected to try to prove mental retardation with additional evidence. ''He's certainly no rocket scientist by any stretch of the imagination,'' Stidham said Monday.

Misskelley, Charles Jason Baldwin and Damien Wayne Echols, 18 at the time the murders occurred, have been charged in deaths of Christopher Byers, Steve Branch and Michael Moore.

Burnett ruled last month that Baldwin, who had just turned 16 when the murders occurred, will be tried in February as an adult.

Stidham and attorney Gregory Crow have maintained that Misskelley was legally incapable of waiving his rights to an attorney before making a statement to police in June.

In the statement, he allegedly said that he, Baldwin and Echols, who turns 19 in December, were present when the boys were bludgeoned, and one was sexually mutilated with a knife.

Tennessee law also prohibits executing the mentally retarded, using an IQ of 70 as evidence of ''subaverage'' intelligence. Mississippi juries are permitted to consider mental retardation as a ''mitigating factor'' when considering the death penalty.

Any finding that Misskelley is mentally retarded could affect a jury's view of the credibility of his alleged statement to police.

According to the transcript of his statement to police, Misskelley said the murders took place around noon and that the boys were lured into the woods after skipping school. Neither statement is consistent with facts.

Before he made his statement implicating himself and the others, Misskelley was asked by West Memphis Police Det. Bryn Ridge if he understood he had the right to remain silent and could have a lawyer present during questioning. Misskelley said he understood his rights and signed a waiver form.

Stidham maintains his client didn't really understand. In court last month, Stidham said Misskelley's parents were the only ones legally capable of waiving the 17-year-old's rights. The parents were not present during the questioning.

Barry Lee Fairchild, who was scheduled to die in September for the 1983 rape and murder of an Air Force nurse, has maintained he was retarded with an IQ in the low 60s. A federal judge ruled that Fairchild was not mentally retarded and would have an IQ between 75 and 87 if tested under optimal circumstances. Arkansas has executed four inmates since 1964.

[Obscuregawdess]

http://westmemphisthreediscussion.yuku.com/topic/2657

TOUGH, A BIT TROUBLED, BUT KIND TO KIDS
Date: Saturday, June 5, 1993
Source: By Richard Kelley The Commercial Appeal

Neighbors on streets washed by the soft whine of I-55 used words such as "respectful" and "well-mannered" to describe Jessie Lloyd Misskelley on Friday.
From accounts of those near Highland Trailer Court between Marion and West Memphis, he also was quick and good with his fists when he wasn't being respectful. Many people called him easily persuaded, said he could be vulnerable or even naive, but they add he was good with kids and that they liked him.
Interviews with people here who have known the 17-year-old for years sketch a portrait that could apply to many teenagers these days: a school dropout with a history of minor trouble with the law, and a sometime rebel with a reputation as a good worker when you could get him to the job.
People say he tried hard to fit in with his friends, to be part of a new crowd that worshiped heavy metal music.
"He's been in a little trouble, like sniffing gasoline and stuff," said neighbor Patricia Howe, 25. "He just got in with the wrong people, or got into the wrong gasoline."
The troubles of 'Little Jessie' Misskelley, charged Friday with capital murder and facing a possible death sentence, have grown larger.
Over the course of a dozen interviews Friday, several neighbors and acquaintances said Misskelley's relatives told them Misskelley had told police he had a role in the killings.
"From what his aunt said, right across the road, he's already confessed, and he wanted to get this off his chest," Howe said.
Rita Holmes, 29, another neighbor, added, "Little Jessie admitted he hit one in the head. And the one got away from him and he ran and caught him back to where the other boys was at," she added, attributing the information to members of the Misskelley family.
Jim McNease, owner of Jim's Repair Service, employs Misskelley's father and at times the son. He said the younger Misskelley is "easy persuaded."
"They sent him out to lure the kids in," McNease said. "I talked to the cops, and they said he lured them into the woods. I think they say he hit one and chased one down."
Misskelley's girlfriend also lives in the neighborhood. Her mother, Beverly, declined to allow her daughter to be questioned, or to give her last name Friday.
"Susie is shocked - she's mad," the mother said. "You would be, too, if you cared for somebody and they admitted to doing something like this."
Police have as yet declined to give much information on the arrests, any confession, possible motives for the killings or details of the murder scene. But neighbors here point darkly to the possibility of some sort of cult activity, another rumor which police have yet to address.
"He was just a normal kid," his 54-year-old father, known as Big Jessie, said at the county courthouse Friday.
He said his son had been arrested and appeared in juvenile court a couple of times for fighting and breaking windows. He said he quit Marion High School last year.
He said his son liked professional wrestling, as well as hunting squirrels and rabbits although he didn't own a gun. He said he had tried for a general equivalency diploma but that he didn't like school and quit that as well.
Neighbors said the younger Misskelley often played with their children in this close-knit neighborhood where most people know each other. Some said he would babysit for them.
"Every time I asked him to do something, he's done it," said Holmes. ''He's even stayed at my house, and watched my kids when I went to the store."
"All three of them boys have been here," said 22-year-old Robert Howe, Patricia's brother, at a nearby home. "They talk a little bit, and they'd be on their way. (Misskelley) picked them up, hugged them and kissed them, but never hurt them."
Karen Sims, 28, said Misskelley was "respectful, well-mannered."
"He's never given me any trouble," said McNease, who owns the auto repair shop where Misskelley's father worked as a mechanic. McNease also said the younger Misskelley also worked for him part time.
"He's just like one of our kids. He'd come in here and hug my neck," he said, "just like he was one of my young 'uns."
He said the elder Misskelley had raised his son alone, after the teenager's mother moved to California.
McNease said Misskelley and the other two murder suspects, Michael Wayne Echols and Jason Baldwin, rode bicycles a lot around Marion and West Memphis. Misskelley had a temper when pushed, McNease said.
"He was a fighter," he said. "If you picked on him, he would bop you in the mouth.
"He whipped a grown man right out there the other day," McNease said, pointing to the driveway to his shop. "If it hadn't been for Big Jessie stepping in to stop it, he would have hurt that man bad."

[Obscuregawdess]

(see his testimony in trial info/ court documents)

ABOUT WARREN HOLMES

Warren Holmes is a graduate of the Keeler Polygraph Institute in Chicago, Illinois. He was Detective Sergeant of the Miami Police Department, in charge of the Lie Detection Bureau, from 1955-1963. Since 1963 he has been self-employed, running Holmes Polygraph Service, Inc. He is a Charter and Life Member of the Florida and American Polygraph Associations; Former President of the Florida Polygraph Association and Former President of the Academy for Scientific Interrogation (now called the American Polygraph Association).

The author of numerous articles on lie detection and interrogation for various professional journals, Mr. Holmes has, every year since 1957, conducted seminars on lie detection and interrogation for various police agencies throughout the U.S. For ten years he was guest lecturer on the interrogation of homicide suspects at the Royal Canadian Mounted Police Academy in Ottawa, Canada. He lectures each year at the FBI Academy and other federal agencies on lie detection and interrogation. He is Former Special Consultant to the U.S. Senate Select Committee on Assassinations, Washington, DC.

Mr Holmes has administered polygraph examinations in such national cases as the John F. Kennedy Assassination, the Dr. Martin Luther King Assassination, Watergate, and the William Kennedy-Smith Case.

ANALYSIS
An analysis of the charts from the polygraph examination of Jessie Lloyd Misskelley, Jr. Test conducted at the West Memphis Police Department on June 3, 1993 by examiner Detective Bill Durham.

BELOW ARE LISTED THE TEST QUESTIONS AND MR. MISSKELLEY JR'S VERBAL RESPONSES

1. Have you ever taken a polygraph test before?
Answer: "No."

2. In regard to the deaths of those three boys, are you going to tell the truth during this test?
Answer: "Yes."

3. Have you ever been in Robin Hood Hills?
Answer: "No."

4. Do you smoke dope?
Answer: "No."

5. Have you ever took part in Devil Worship?
Answer: "No."

6. Have you ever sold any dope?
Answer: "No"

7. Have you ever attended a Devil Worship Ceremony in the Turner-Twist Area?
Answer: "No."

8. Have you taken any drugs or medication today?
Answer: "No." 9.

9. Are you involved in the murder of those three boys?
Answer: "No."

10. Do you know who killed those three boys?
Answer: "No."

CHART ONE QUESTION #1
VERBAL RESPONSES No
ANALYSIS: The examiner utilized a Stoetling Ultra scribe Instrument This particular instrument possesses two pneumograph (respiratory) pens recording any changes in breathing in the chest and abdomen areas.

The third pen, in the center, depicted by a singular line, measures what is called the electrodermal or galvanic skin reflex. In essence, this pen records any changes in skin resistance, to a minute electric current.

The fourth pen, depicted in the heavy bottom tracing, records cardio activity, primarily pulse rate and changes in relative blood pressure.

In Question #1 there were no physiological reactions indicative of deception in any of the four parameters.

QUESTION #2
VERBAL RESPONSES Yes
ANALYSIS: No physiological reactions indicative of deception in any of the four parameters.

QUESTION #3
VERBAL RESPONSES No
ANALYSIS: No deception indicated. Just prior to this question being asked, there was a pronounced rise in the blood pressure tracing which in the opinion of this examiner, was caused either by arm pressure or general nervous tension.

QUESTION #4
VERBAL RESPONSES No
ANALYSIS: A pronounced reaction in the electrodermal response indicative of deception. It is the understanding of this examiner that Mr. Misskelley after the test confirmed that he lied to this particular question.

QUESTION #5
VERBAL RESPONSES No
ANALYSIS: No deception indicated in either respiratory tracing or the electrodermal response. There was however, a pronounced blood pressure reaction in the area where Question #5 was asked. It should be noted however, that the blood pressure response actually started before the test question was asked.

QUESTION #6
VERBAL RESPONSES No
ANALYSIS: No deception indicated in any of the four parameters.

QUESTION #7
VERBAL RESPONSES No
ANALYSIS: No deception indicated in any of the four parameters.

QUESTION #8
VERBAL RESPONSES No
ANALYSIS: No deception indicated in any of the four parameters.

QUESTION #9
VERBAL RESPONSES No
ANALYSIS: No deception indicated in any of the four parameters. There was however, a pronounced blood pressure reaction approximately eight seconds after this question was asked. It is the opinion of this examiner, that this response was not connected with the stimulus of Question #9. It is also noted, that the examiner failed to readjust the electrodermal pen to its normal position in the center.

QUESTION #10
VERBAL RESPONSES No
ANALYSIS: No deception indicated in any of the four parameters. It is noted that approximately five seconds after this question was asked, there was a slight disruption in the cardio tracing which appears to be caused by finger movement.

CHART TWO QUESTION #1
VERBAL RESPONSES No
ANALYSIS: No physiological reactions indicative of deception in any of the four parameters. Following Question #1, the examiner made an adjustment upward in the cardio tracing.

QUESTION #2
VERBAL RESPONSES Yes
ANALYSIS: A minor response in the electrodermal parameter and a rise in the blood pressure tracing. It is the opinion of this examiner, that the rise in the blood pressure tracing is more commensurate with arm pressure, than an immediate physiological reaction to the stimulus of Question #2.

QUESTION #3
VERBAL RESPONSES
ANALYSIS: The examiner indicates, by a marking, a slight response in the lower respiratory, which in the opinion of this examiner is too insignificant to even be noted. There were no responses indicative of deception, in the upper respiratory tracing, electrodermal response or the cardio tracing.

QUESTION #4
VERBAL RESPONSES No
ANALYSIS: No major physiological reaction, as compared to when Mr. Misskelley was asked this same question on Chart #1.

QUESTION #5
VERBAL RESPONSES No
ANALYSIS: A minor staircase reaction in the upper respiratory, as noted by the testing examiner, but no physiological reactions indicative of deception in the lower respiratory electrodermal or cardio parameters. A minor reaction in the cardio tracing approximately five

QUESTION #6
VERBAL RESPONSES No
ANALYSIS: A disruption in all four parameters caused by a clearing of the throat, as indicated by the testing examiner.

QUESTION #7
VERBAL RESPONSES No
ANALYSIS: No reactions indicative of deception in the upper or lower respiratory tracings, nor the electrodermal response. Approximately, five seconds after this question was asked, there was a pronounced cardio reaction, which in the opinion of this examiner, is too delayed to be connected with the stimulus of Question #7. That response, in the opinion of this examiner was caused by either general nervous tension or arm pressure.

QUESTION #8
VERBAL RESPONSES No
ANALYSIS: No physiological reactions indicative of deception in any of the four parameters.

QUESTION #9
VERBAL RESPONSES No
ANALYSIS: No physiological reactions indicative of deception in any of the four parameters.

QUESTION #10
VERBAL RESPONSES No
ANALYSIS: A minor blocking in the upper and lower respiratory tracings indicated by a notation made by the testing examiner. No physiological reaction indicative of deception in the cardio tracing. The reactions in the respiratory tracing are not significant enough, in the opinion of this examiner to be classified as deception.

CHART THREE QUESTION #1
VERBAL RESPONSES No
ANALYSIS: Minor reaction in the electrodermal response not indicative of deception, in the opinion of this examiner.

QUESTION #2
VERBAL RESPONSES Yes
ANALYSIS: No physiological reactions indicative of deception in any of the four parameters.

QUESTION #3
VERBAL RESPONSES No
ANALYSIS: A minor staircase reaction in the lower respiratory, noted by a marking by the testing examiner, not significant enough, in the opinion of this examiner to be classified as deception. No indication of any physiological reaction indicative of deception in the electrodermal and cardio tracing.

QUESTION #4
VERBAL RESPONSES No
ANALYSIS: A pronounced change in the descending limb on the exhalation stroke of the respiratory cycle. A minor reaction in the electrodermal response and no significant reaction in the cardio tracing.
QUESTION #5
VERBAL RESPONSES No
ANALYSIS: No pronounced reaction in either respiratory tracing, a minor reaction in the electrodermal parameter and no physiological reaction indicative of deception in the cardio tracing.

QUESTION #6
VERBAL RESPONSES No
ANALYSIS: No physiological reactions indicative of deception in either the upper or lower respiratory tracing. A minor reaction in the electrodermal response. A pronounced physiological reaction in the cardio section, that apparently was not resolved by any post-test admission. It should be noted, however, that this is the most significant blood pressure reaction which occurred precisely at the moment of the stimulus of the question.

QUESTION #7
VERBAL RESPONSES No
ANALYSIS: The examiner noted a minor reaction in the lower respiratory, which is inconsistent, in that he has ignored other reactions in the respiratory, which did not come at the points where pertinent test question was asked. There were no reactions indicative of deception in the electrodermal or cardio parameters.

QUESTION #8
VERBAL RESPONSES No
ANALYSIS: No reactions indicative of deception in either respiratory tracing. A minor reaction in the electrodermal response. No reaction indicative of deception in the cardio tracing.

QUESTION #9
VERBAL RESPONSES No
ANALYSIS: No reactions indicative of deception in either respiratory tracing. It should be noted, that just prior to this question being asked, there was a significant change in the respiratory not indicated by any markings by the testing examiner. There were no reactions indicative of deception in either the electrodermal or cardio tracing.

QUESTION #10
VERBAL RESPONSES No
ANALYSIS: No physiological reactions indicative of deception in any of the four parameters.

FINAL CONCLUSIONS BY WARREN D HOLMES
It is the opinion of this examiner, based on an analysis of the polygraph charts from the examination of Jessie Lloyd Misskelley Jr. that there were no pronounced physiological reactions indicative of deception at the points on the polygraph charts where he was asked the pertinent test questions. The test results, in the opinion of this examiner, do not corroborate any contention that Jessie Lloyd Misskelley Jr. was criminally involved in the death of Christopher Byers, Michael Moore, or Steve Branch.

The testing format utilized by examiner Durham, reveals several disturbing factors:

I. No Peak of Tension test. The Peak of Tension test, in the opinion of most experienced examiners, is the most valid procedure in polygraph testing. It utilizes key information, known only to the guilty and to the investigators. The murders of the three boys, obviously provided sufficient information for Peak of Tension testing.

For example, the following Peak of Tension Test could have been conducted.
A.Do you know if any of the three boys were tied up with plastic tape?
B.Do you know if any of the three boys were tied up with rope?
C.Do you know if any of the three boys were tied up with wire?
D.Do you know if any of the three boys were tied up with shoelaces?
E.Do you know if any of the three boys were tied up with belts?
F.Do you know if any of the three boys were tied up with clothing strips?
G.Do you know if any of the three boys were tied up with string?

If Jessie Lloyd Misskelley Jr. had reacted to the Key Question D, that would have been the best indicator that he possessed pertinent information regarding the crimes in question. It should be noted that all experienced examiners place much more reliability on this type of test than all others. In fact, polygraph examiners in both Israel and Japan, are reluctant to conduct any type of test other than a Peak of Tension Test.

II. There is nothing wrong with Question #3. Questions #5 and #7, however, presuppose that some type of satanic ritual took place at the time of the crimes. These questions, in the opinion of this examiner, clearly indicate an input by the investigators that may have negated examiner objectivity. Question #9, in the opinion of this examiner, is too generalized in nature to delineate any possible role Misskelley may have played in the deaths of the three boys. To determine precise involvement, the following questions, in the opinion of this examiner, should have been asked.
1. Were you present when the three little boys were killed?
2. Did you kill any of the three little boys?
3. Did you do anything to cause the deaths of any of the boys?
4. Did you tie up any of the boys?
5. Did you do anything to hurt any one of the boys?
6. Have you lied about where you were when the three boys were killed?

III. No Confirmation Test. After Jessie Lloyd Misskelley Jr. allegedly confessed, a polygraph test should have been performed to determine the validity of the confession or to determine if Misskelley was more involved than what he admitted.

IV. Examiner Durham's notes do not reveal any information which may have caused a variable in the polygraph examination. There was no indication, in his test notes, that Misskelley revealed any drug use or his medical history. Polygraph test results are directly related to the personality structure of the person being tested. Many people are not suitable subjects for polygraph testing.

V. The introduction of the control questions, pertaining to drug use and sale, could have created a general tension evident in the polygraph charts, primarily in the cardio parameter. All polygraph schools teach that the control questions should be in the same crime category as the case in question. This was not done in the Misskelley examination. A more appropriate control question would have been: "Prior to May 5, 1993, did you ever hit anybody you didn't tell me about?"

VI. This examiner has worked on five major murder cases, where false confessions were obtained. 1. Joe Shea - Florida Case 2. Mary Katherine Hampton - Louisiana Case. 3. Pitts-Lee - Florida Case 4. T. Sawyer - Florida Case 5. Dupont - Florida Case The book: "In Spite of Innocence," by Michael L Radelet, outlines many more miscarriage of justice cases. The common denominators are prevalent in most of these cases.

1. An invalid polygraph test, which cause the investigators to become more assertive and a catalyst to a false confession.
2. The person who falsely confesses, is generally of low IQ, and highly susceptible in personality structure.
3. Alcohol and substance abuse leads to confusion, and these subjects begin to doubt their own minds, especially when told they failed a polygraph examination.
4. These subjects confess to get the police off their backs, and they assume that they can explain their behavior and their confession at a later time.
5. Those who falsely confessed, generally don't tell the investigators anything that the investigators don't already know, and their confessions conflict in detail on major points established by crime scene analysis and investigation. The false confessor never provides any weapons, fruits of the crime, or anything physically material to corroborate the confession.
6. In most of these miscarriage of justice cases, there is a lot of pressure on the police to solve the case, and a desire on their part to believe the false confession. To the lay individual, it is extremely difficult for them to conceive that a person would confess to a crime they did not commit.

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COURTROOM TESTIMONY

MR. STIDHAM: Warren Holmes.

MR. DAVIS: Your Honor, could we approach the bench?

(THE FOLLOWING CONFERENCE TOOK PLACE AT THE BENCH)

MR. DAVIS: If they are putting the polygraph expert on to go through in terms of reviewing charts and rendering an opinion as to what the charts show and -- this man is also, as I understand it, at least theoretically an expert in the field of interrogation -- I don't know it that's the reason they're putting him on. But if they are putting him on to say, "These charts indicate this," we would be objecting --

THE COURT: I'm not going to allow a witness to speculate on whether or not the machine was correct or the interpretation of the readings were incorrect. That's just not in issue, it's not admissible.

MR. STIDHAM: Your Honor, it is in issue.

THE COURT: No, it's not.

MR. STIDHAM: Have you had an opportunity to review our brief in this regard?

THE COURT: Yeah, sure have. And it is going to be my finding on that that I'm not going to allow anyone to speculate on the machine's results or whether or not it applies to guilt or innocence or whether or not the person was truthful or deceitful. I will, however, allow testimony about the polygraph and whether or not that polygraph could have induced a person to make a statement that they would not have otherwise made. But to allow one expert to refute another one on whether or not the results of the polygraph were accurate or how they interpret them when the results themselves aren't admissible under any circumstances.

MR. STIDHAM: We are talking about the voluntariness of the confession, and the issue is not so much -- our argument is twofold: A, that it should be offered for any purposes because it goes to the totality of the circumstances. In other words the witness, assuming that he is going to testify to this, that there's no indication of deception on any of the charts. He should be allowed to testify to that so the Court can determine the totality of the circumstances regarding this confession. Tanner versus State, the ALR citation, your Honor, sets that forth very, very clearly. And when you analyze that with Patrick versus State and Rock versus Arkansas, it becomes clear that any evidence tending to show the innocence of the accused is admissible not only at the suppression hearing but also at the trial itself. Your Honor, we would submit that this testimony is of vital importance to determine whether or not this statement as given by Mr. Misskelley -- both statements -- are voluntary and therefore admissible. To clude those, in my opinion with all due respect to the Court, I believe that we may end up having to retry that issue.

THE COURT: Tell me real short and in a concise sentence what it is you expect this expert to testify to.

MR. STIDHAM: Your Honor, I expect him to testify pursuant to his report which indicates that after review of the polygraph charts, there were no indications of deceptions whatsoever.

THE COURT: In other words you want him to testify in his opinion that the accused was not showing deception.

MR. STIDHAM: That's one of the things --

(MR. STIDHAM, MR. CROW, AND MR. DAVIS SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)

THE COURT: -- that's totally and completely irrelevant and inadmissible.

MR. DAVIS: He says that the Tanner case is the basis of this -- and he also says it is the number one authority. In the Tanner case there was no polygraph exam even given. The appellant appealed saying that it was error to have allowed the State to mention that they were preparing him for a polygraph test when he confessed. Number one, there was no polygraph given and the key thing is there were no results which could have been thrown in the hopper that could have confused the issue.

THE COURT: My ruling is that the results of the polygraph test are not admissible evidence and, therefore, no expert -- state or defense -- is going to be able to testify to the veracity of the polygraph machine because it's not accepted in this state as credible evidence and I'm not --

(MR. STIDHAM, MR., CROW AND MR. DAVIS SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)

THE COURT: I won't accept it one way or the other. I don't care whether he says he was telling the truth or whether he says he was lying.

MR. STIDHAM: We would like to make an offer of proof regarding this and also for economy reasons we'd like to make an offer of proof as to what he would testify at the actual trial itself and submit a transcript of that --

THE COURT: I'm not barring his testimony. He may have something --

(THE COURT AND MR. STIDHAM SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)

MR. STIDHAM: -- that will be barred.

MR. CROW: As to our arguments I would request that the Court make my brief I wrote as part of the record.

THE COURT: it is part of the file.

MR. CROW: All those issues were raised, and I don't want to waive any issues that may have been argued in this brief exchange.

(RETURN TO OPEN COURT)

THE COURT: Let's proceed.

WARREN HOLMES
having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:

DIRECT EXAMINATION BY MR. STIDHAM:

Q. Mr. Holmes, will you please state your name?

A. Warren D. Holmes. H-O-L-M-E-S.

Q. What is your occupation?

A. Polygraph examiner, commonly known as a lie detector expert.

Q. Can you tell us about your background?

A. I'm a graduate of the Keeler Polygraph Institute in Chicago, graduated there in 1955. I was with the Miami Police Department from 1950 to 1963. I left as a detective sergeant in charge of the Lie Detection Bureau to open up my own business. I'm a charter and life member of the American Polygraph Association, a charter and life member of the Florida polygraph Association. I'm a former president of the Florida Polygraph Association, former president of the Academy of Scientific Interrogation, which is the predecessor name to the American Polygraph Association. I was consultant to the United States Senate on assassinations. I lecture putting on interrogational seminars for the F.B.I., the C.I.A. and other government agencies. I have lectured ten years at the Canadian Police College on homicide interrogations and investigations. I lecture each year at the Department of Public Safety of Texas, the Texas rangers, primarily, and I conduct interrogational seminars throughout the United States -- ten to fifteen a year.

Q. I understand you conducted the polygraph examinations on the John F. Kennedy assassination?

A. Yes.

Q. And the Doctor Martin Luther King assassination?

A. Yes.

Q. Watergate?

A. Yes.

Q. You also worked on the William Kennedy Smith case?

A. Yes.

Q. Have you been qualified as an expert in the area of polygraph examinations in any other states in the country?

A. (NO RESPONSE)

Q. Let me rephrase that. Have you been qualified as an expert by any courts?

A. Yes.

Q. How many times have you been qualified on the subject of polygraph examinations?

A. Many times primarily in the State of Florida.

Q. Have you ever been qualified in the area of interrogation techniques or police interrogation techniques?

A. Yes. Many times.

Q. Have you ever worked on a case involving a false Confession?

A. Many.

Q. How many homicide cases have you worked on, or do you know?

A. I have administered polygraph examinations to a little over twelve hundred people who were suspected of the act of murder. I have taken hundreds of murder confessions.

Q. Have you ever taken a false confession?

A. Yes. Several.

Q. What would an interrogator look for when they were receiving a confession that might tend to point out that this is a false confession?

A. As I illustrated to you in our conversation previously, there are about eleven different things that you look -

Q. Let me stop you for a minute.

MR. STIDHAM: Your Honor, I ask that the witness be qualified as an expert in interrogation tactics and techniques. He obviously has over forty years --I should say thirty-eight years of experience in various police agencies. He is obviously an expert in that area.

MR. DAVIS: Your Honor, may I voir dire him just a second?

THE COURT: Yes.

VOIR DIRE EXAMINATION

BY MR. DAVIS:

Q. Mr. Holmes, did you at one time -- I realize this is a long time ago -- would you have conducted an in-service training program for the Memphis P.D.

A. Yes.

Q. -- back in 1981?

A. Yes.

Q. Could you kind of glance through this for me to see if that would -- (HANDING) if I am correct in assuming that that is the booklet you provided them regarding interrogation techniques?

A. (EXAMINING) Yes.

Q. And so have there -- is your opinion -- have you had any training in addition to what you had at that point in 1981 that gives you superior qualifications now or greater insight into the field of interrogation than you had back in 1981?

A. My entire career is empirical in nature. It is one case after another for thirty-nine years. It's all empirical in nature.

Q. Are there any dramatic changes that have occurred in the tactics for interrogation since back in 1981?

A. No.

MR. STIDHAM: Again we'd ask that he be qualified as an expert in the field of interrogation.

THE COURT: Go ahead.

CONTINUED DIRECT EXAMINATION BY MR. STIDHAM:

Q. You started to testify earlier -- and I rudely interrupted you -- about things that the interrogator would look for when receiving a confession from a suspect that might indicate it is a false confession. What are those factors?

A. Number one, they don't tell you anything you don't already know. Number two, what they do say doesn't jibe with the crime scene analysis or the physical evidence or any investigation that has been done up to that point. Number three, if they don't relate it in a narrative form,'ll say, "At the time we were doing this some man was walking his dog off in the distance," or, "Just at the precise moment I was doing this there was an automobile accident," and later you will find out that actually occurred. You look for those incidental details they can offer. Ah, if it is a valid confession and you make a supposition and you're wrong, they will tell you're wrong. They'll answer every question directly. You don't have to correct them if there is a contradiction in what they have to say. Ah, you don' to have to lead them in any way and they'll spontaneously offer information that you didn't even know about. If you were wrong in a supposition, they'll tell you that you were wrong, but mostly they just sound and look like they are telling the truth and what they say makes sense. So an experienced interrogator looks for all those factors to see if they are present. If they are not there, you have to have serious misgivings as to the validity of his confession.

Q. Are there things that can be done by a police interrogator while taking a confession to help limit the possibility of a false confession, or is that basically what you just told me?

A. Well, what happens is a waning of resistance primarily in about the fourth hour, and you have got to be very careful that the person just doesn't enter into this resignation and just say anything at all to get out of there. You have got to be careful of that. Obviously you cannot be telling him the key details of the crime. When he finally does confess, you have got to be able to weigh whether or not what he tells you is commensurate with the case facts as you know them.

Q. You're talking about corroboration?

A. Yeah. You have got to have something you can hang your hat on that only the guilty person would know outside the investigators.

Q. Have you had an opportunity to examine the statements of Jessie Misskelley, Junior to the West Memphis Police Department on June third?

A. Yes, I have.

Q. Have you identified any of those factors or anything in the transcripts that raise concern in your opinion?

A. Yeah, I'm concerned that he's wrong on two major points, the time factor, but primarily what the young boys were tied up with. He's done one of two things. Either he's uttered a totally false confession, or he's contrived a confession with false information that he intends to recant at a later time. I don't have any evidence that he's doing that because from what I understand about his IQ level, I'm not sure that he's that duplicitous in nature. What I don't like about his confession is he doesn't attribute any conversation during the crime to the boys. I don't like it that he doesn't express any feelings about the crime, how he felt at the time, how he feels now. I don't like the fact that he's giving wrong information about the ligature which should absolutely stand out in his mind, and I don't like the time factor. It would seem to me that despite his IQ level, he should know the difference between 9:00 in the morning and 5:00 P.M. and he somehow should know the difference between a rope and shoelaces,nd those things bother me a lot.

Q. Can a polygraph examination contribute to a false confession?

A. Unfortunately it can.

Q. How is that?

A. Because with some people it is a last hope. They think, "Okay, if I take this test and I pass it, you're going to get off my back," and then when they are told that the test indicates they are lying, that's the straw that breaks the camel's back, and then their will is beaten to a pulp, and then they just give in.

Q. So it is very important that the polygraph be conducted properly?

A. Yeah, it is, particularly with certain personality structures. You get somebody of low IQ and highly susceptible in personality structure who is concerned only with the immediate situation of getting home rather than the long term consequences of what he has to say. They always think they can straighten it out at a later date. They don't realize that they give the police a sword that they're going to stick in 'em, and they become an agent of their

MR. STIDHAM: Your Honor, at this time I would like to ask again that Mr. Holmes be allowed to be qualified as an expert in the area of polygraph examinations and he be allowed to testify with regard to his conclusions about the test that was given to Jessie Misskelley by Officer Durham. If the Court is not going to allow us to --- if the Court is not going to consider that in the totality of circumstances with regard --

THE COURT: I'm going to let him testily in this hearing, but unless my mind is drastically changed by something other than what I've seen or heard so far, the results of the polygraph are not admissible by a witness for the defense or a witness for the State. It is simply not credible evidence. The device is extremely fallible, particularly with people who are of borderline mentality as to whether or not they may even be able to completely lie or they may be completely truthful. The machine is just simply not that sophisticated, and it depends on an individual's interpretation. No court that I know of other than under special circumstances has allowed the results in court as far as the truthfulness of the subject. They may be admissible for other reasons but certainly not as to the validity of the test.

MR. STIDHAM: Your Honor, again our argument was two-pronged. We thought it would be admissible for the truth of the matter asserted.

THE COURT: Well, no, your whole theory is you can find some guy to come up and say that the test was deceptive and, therefore, if the test was deceptive, that the tactics used were misleading and that it induced a false confession. I understand your theory. it's a pretty good one, I guess. I'm going to allow you to go ahead for this hearing.

MR. STIDHAM: For purposes of the suppression hearing, you're going to allow him to testify about the results?

THE COURT: Yes.

MR. DAVIS: Your Honor, we strenuously object to that because of the fact that it's

THE COURT: I'm sure these newspaper and cameras are going to be blaring it all over the place. Of course, it has already been blared in the paper anyway.

MR. DAVIS: So far all they have is Mr. Stidham's version of that. If we proceed at the hearing, we are going to -- with tainted evidence -- we are going to proceed to present what comes under the veil of someone with authority but not admissible evidence that could easily taint the jury panel.

MR. STIDHAM: Your Honor, at the very, very least it is admissible to go towards the totality or the of circumstances.

THE COURT: I'm going to hear it in this hearing. Let ' s go.

BY MR. STIDHAM:

Q. Mr. Holmes, you have had an opportunity to examine the polygraph test that was performed on Jessie Lloyd Misskelley, Junior on June third?

A. Yes.

Q. Can you tell us what your findings were?

A. Well, they were different from the other examiner. He indicated he thought there was deception at the points in the graphs where the pertinent test questions were asked. I evaluated the charts, and I have come up with just the contrary opinion. I didn't feel that at the point where the pertinent test questions were asked that the defendant was deceptive in nature.

Q. What -- in your report you list some factors that trouble you. Could you explain those to the Court?

A. Well, this was an ideal case or what we call a peak attention test where you set up a series of questions where one is the key detail , and in this case there should have been a peak attention test regarding whether or not the boys were tied up with plastic tape or wire or shoelaces. And the theory being -- of the seven listed it the examinee reacts to the key one, he definitely has pertinent information with regard to the crime in question. So you keep taking that key detail and you shift it around in a series of different tests, and statistically it he reacts each and every time to the key detail, there's a large probability that he has intimate knowledge of the crime. Also, a peak attention test could have been conducted regarding the location of the clothes. Among experienced examiners -- particularly in murder cases -- peak attention tests are held in the highest esteem and both the Israelis and the Japanese -- that. is the only kind of test they run are peak attention tests because they believe it h the highest degree of validity. And in this case the shoelaces provided a real good opportunity to conduct a peak attention test. Unfortunately that wasn't done and had the defendant reacted each and every time to shoelaces, then we'd be looking at him with a fish eye saying he's probably involved in this. But there are other things beside that that bother me. When you conduct a polygraph examination and utilize control questions, you keep the control questions in the same e, to delineate his specific role in the crime, he should have been asked, "Were you present when the three little boys were killed? Did you kill any of these three boys yourself? Did you do anything to cause the deaths of any of these boys? Did you tie up any of these boys? Did you do anything to hurt any of these boys? Have you lied about where you were at the time of the killings?" Once they got this alleged confession and it was obvious to

THE COURT: Is it too late to do that now?

THE WITNESS: Not really. It might be a good idea if you got somebody that is independent. I have lost my objectivity in the case, and I'm sure Examiner Durham has, too. It you brought in an independent examiner, not connected with either the prosecution or the defense, I think he could sort it out.

BY MR. STIDHAM:

Q. Is it true that if an examiner didn't interpret the test results properly, that that might cause the interrogator to become more assertive and produce a false confession?

A. It's a catalyst. If the examiner goes out and says this guy is deceptive, he's involved, that's all those interrogators have to hear. That Gives them the enthusiasm to be more assertive in their accusatory format. Sure. It. is a catalyst.

Q. In your opinion did Mr. Durham fail to properly interpret these results?

A. Yes.

Q. Did he also fail to properly perform the test?

A. Yes.

THE COURT: Those questions are totally and completely improper. Go ahead. He can give his opinion as to what his findings were. Of course, he didn't even do the test. He just analyzed somebody else's test.

MR. STIDHAM: Your Honor, it is a test -- analyzing someone else's work.

THE COURT: Go ahead.

http://www.wm3.org/live/trialshearings/ ... 102&page=9

[Obscuregawdess]

BY MR. STIDHAM

Q. Is it important when you're trying to corroborate a confession that you find things independent of the confession linking the suspect to the crime?

A. Absolutely. That is what you strive for when you take the confession, something that only the killer would know, some piece of physical evidence, some witness that he has that knows that he did it or confessed to. You're always looking for that corroboration. That's one of the things that disturbs me about the defendant's confession in this case. There's nothing you can hang your hat on.

Q. Does it bother you that they didn't take him to the crime scene?

A. That's the first thing you do. When you get a guy to so-to-speak verbally crap out what he did, you take him right to that crime scene. In this case there was some dispute as to what side of the creek he was on, where was he standing, where the banks were. That could have been resolved if he had been taken to the crime scene.

MR. STIDHAM: Your Honor. I would like to submit the report of Mr. Holmes into evidence.

THE COURT: It may be received for purposes of this hearing.

(DEFENDANT'S EXHIBIT SEVEN IS RECEIVED IN EVIDENCE)

MR. DAVIS: Your Honor, of course we would object to that on the same basis that we would object to any of his opinions regarding the polygraph results which is basically what that report contains.

THE COURT: I'm going to receive it just for the record.

CROSS EXAMINATION BY MR. DAVIS:

Q. Mr. Holmes, as I understand it, did I hear you say that you had lost your objectivity in regard to this case?

A. Yeah, I think-- I don't think the boy-- based on that confession is involved--

Q. That's not what I asked you--

MR. STIDHAM: Your Honor, if he would permit him to answer the question. He asked him why he lost his objectivity and now he doesn't want to hear the answer.

MR. DAVIS: No, he --

THE COURT: All right. I don't want any argument. Ask your question -- I'll sustain your objection. Rephrase your question.

BY MR. DAVIS:

Q. Did I understand you correctly to say that you had lost your objectivity in this case?

A. I had a feeling that your judge was going to ask me if I wanted to test this guy, and I was going to say I have already lost my objectivity. That's what I meant by that.

Q. But that was your statement?

A. Right.

MR. STIDHAM: May he be permitted to finish the answer he had begun? Were you through?

THE WITNESS: I don't feel it would be proper for me to test the defendant because I've lost my objectivity regarding the polygraph.

BY MR. DAVIS:

Q. You gave a list of a number of items that you said were indicators of maybe an incorrect confession. Is that correct?

A. Yes.

Q. Then you stated the most important thing in determining the truth of a confession and you said, "The most important thing of all is if they sound and look like they are telling the truth, then you can tell." That was your testimony?

A. Yes.

Q. And the person that is in the best position to determine if they sound like they are telling the truth, if they look like they are telling the truth is the person taking the confession. Would you agree with that?

A. Yes.

Q. You were not there when this confession was given?

A. No.

Q. So basically what you have done is listen to the officers testify?

A. I haven't heard the officers testify.

Q. Have you seen their investigative reports?

A. I have received -- yes. some reports from attorney Stidham.

Q. Have you seen the original polygraph charts? Yes.

Q. The original --

A. Not the originals. Copies. Excuse me.

Q. And what else besides the copy of the polygraph charts and reports that Mr. Stidham sent you have you used in formulating your opinion?

A. The confession.

Q. Have you heard the tape of the confession --

A. No.

Q. -- where you can hear the defendant's voice?

No.

MR. STIDHAM: Your Honor, are they trying to impeach him on the fact that the Court wouldn't permit him to stay in the courtroom and listen to the testimony?

THE COURT: I don't know. Do you have an objection?

MR. STIDHAM: I asked for permission for the experts to be allowed to remain in the courtroom, and Mr. Ofshe was the only one who was allowed to remain in the courtroom. Now they're trying to impeach him on that.

THE COURT: Do you have an objection?

MR. STIDHAM: Yes. your Honor. I think it is an improper question.

THE COURT: Overruled.

BY MR. DAVIS:

Q. Basically what your opinion is based on your review of the polygraph charts and reports provided to you by Mr. Stidham?

A. True.

Q. And all a polygraph does is measure physiological responses, correct?

A. To stimuli.

Q. It does not tell you definitively who is telling the truth and who is not, correct?

A. We measure a symptom of the act of lying, but the existence of the symptom is the best evidence of lying.

Q. Sometimes.

A. Sometimes.

Q. And sometimes lying occurs when there's no physiological response, correct?

A. Correct.

Q. What we have here is your opinion versus the opinion of Mr. Durham?

A. True.

Q. And Mr. Durham is the one who gave the exam and was there present to observe the defendant when he made certain statements?

A. No, he denies that in his report. He says the defendant confessed to investigators later on, that he wasn't present when the defendant confessed --- in his report.

Q. You refer to the peak attention test as what should have been conducted, that that is the test that Officer Durham should have used?

A. Yes, sir.

Q. Were you aware at the time that Officer Durham conducted his test that at that point this defendant was not a suspect?

A. The case facts were known. He wasn't a suspect when they brought him in for the polygraph test?

Q. Yes, sir.

A. He had to be a suspect or there would be no reason to give the test. Why would he be asked do you know who did it and did you do it if he wasn't a suspect?

Q. Let me ask you this: Are you assuming in saying that the peak attention test was the one that should have been given in saying that are you assuming that he was a suspect at the time he was polygraphed?

A. Certainly he was a suspect. He was asked questions that clearly infer that whether or not he ever attended devil worshipping --

Q. I'm not asking you was he a suspect. I'm asking you were you assuming that as a fact when you said that it would be the preferred or customary operation to give him a peak attention--

A. I would assume that he was a suspect.

Q. If he were not a suspect, would that change? If you were going to polygraph someone who is not a suspect to determine

A. I can't think of a situation where you would test anybody who wasn't a suspect unless he was a witness and you were trying to corroborate the validity of his testimony. You just don't go around picking up people off the sidewalk and giving them polygraph tests. It he was brought in on a homicide case, he has to be a suspect.

Q. All right. Well, let me ask you this: You indicated that witnesses are polygraphed to determine if you can corroborate their testimony?

A. Right.

Q. Is it not conceivable that you bring in witnesses in a homicide case, question them and then put them on the polygraph to corroborate their testimony?

A. True.

Q. If that happened in this instance, then he wouldn't have been a suspect, would he?

A. My understanding he hadn't given any incriminating information up to that point, either as a witness or as a suspect.

Q. Well, if he had been brought in as a witness and put on the polygraph test in order to determine if they could corroborate his statements, he would not have been a suspect under those circumstances --

A. What would they test him on? He hadn't given any information.

MR. DAVIS: Your Honor, could the witness be instructed to answer the question?

THE COURT: Answer yes or no and then you can explain your answer.

BY THE WITNESS:

A. What you're trying to argue is at the time he was given this test, he was not a suspect. I disagree with that wholeheartedly.

Q. How was it that you determined that he was a suspect at the time the test was given?

A. The nature of the test questions.

Q. You indicated that a confirmation test would be the normal procedure after the confession?

A. Yes.

Q. You also indicated that you would expect an extremely emotional reaction once he spilled his guts, so to speak.

A. An emotional relief, yes.

Q. We've heard -- if officers have testified that at the time he spilled his guts that he started crying and indicated some emotion, would that emotional release and the emotions of that moment -- would that affect and interfere with a valid polygraph exam?

A. Possibly.

Q. So under those circumstances it wouldn't be a good idea to give the polygraph exam if you wanted a valid result.

A. Yeah, but that's not the emotion they would have seen if it was a valid confession, in a valid confession they would see relief, not anxiety or frustration. When a person confesses and they get it off their chest, they go into a serenity that they haven't experienced in a long time. They're just glad it's over with and there's tranquillity and peacefulness to their demeanor that would not have precluded conducting a second polygraph examination.

Q. So it's your testimony under oath that in nearly every instance of a confession to a serious homicide, that the defendant after confessing becomes tranquil and serene?

A. There is a certain anxiety about the consequences of what they just did, but by the same token, you always see that relief if it is a genuine confession.

Q. You used the words "tranquillity and serenity" about the defendant after they give a confession.

A. (NODS HEAD)

Q. That would be one of the indicators to you -- because this defendant didn't exhibit tranquillity and serenity -- that would indicate this statement might not be accurate?

A. True.

REDIRECT EXAMINATION BY MR. STIDHAM:

Q. Is there a mystical, magical moment that every interrogator finally wakes up and realizes during the interrogation process that he can finally say, "Hey, you are a suspect"?

A. Well, what you do is you start off interviewing. Then you make a transition from non accusatory to accusatory interrogation. And you make that transition when you evaluate the suspect's story and you see some things that are disturbing to you. His story doesn't make sense and so you become more accusatory in nature.

Q. Is there any doubt in your mind that based on the questions you've seen in the interrogation that Mr. Misskelley was a suspect when he was brought down to the department?

A. No, none. Primarily, the two questions that were asked on the polygraph about whether or not he participated in devil worshipping. That presupposes that he was in that kind of cult.

Q. Is there any reason for the polygraph examiner to participate, or have pretest knowledge about facts regarding the subject, or should the polygraph examiner be objective and out of the loop, so to speak?

A. No, he's got to get input from the investigators because he's got to know what questions will cover the waterfront and do the job.

Q. If I were to tell you that Mr. Misskelley was shown a photograph of one of the young victims in this case, would that be a factor in your analysis?

A. Depends upon when it was shown to him. Are you talking about right prior to the polygraph test?

Q. No. Subsequent to the polygraph test but prior to his breaking down as you've described it.

A. Well, the breaking down comes on the basis of a cumulative effect on the psyche and he reaches a point of resignation and that is when he confesses.

Q. Is it sometimes difficult to determine whether or not it is relief or I'm glad to get these guys off my back. Is it hard to tell the difference sometimes?

A. Yeah, it is sometimes.

(WITNESS EXCUSED)

MR. STIDHAM: Your Honor, assuming from the court's ruling that there's a possibility that you will not allow him to testify at the jury trial which begins next week --

THE COURT: You need to listen carefully to what I'm saying. He can certainly testify to a great deal about what he testified to here today. The only problem I have is with the results, either affirmative or negative, of a polygraph exam being introduced that is, whether he passed or failed.

All you have got here is two people who have differing opinions on the test that was given, that have differing opinions on the test questions on a device that is not very reliable in the first place and not very scientific.

Mr. STIDHAM: Will I be permitted to make a proffer?

THE COURT: You just did make a proffer. But the thing is, there's a number of things -- I think he could probably qualify on investigations and that part of his testimony about -- certainly his experience.

That might be useful, relevant testimony. I'm more concerned about two experts getting up and saying, "This is what I found," particularly in an area that most courts view as very unscientific in the first place.

So the results I'm not going to allow, but a great deal of his testimony is interesting and perhaps beneficial to you, and I would allow it so you just have to make a decision whether you need him at the trial, which I will allow his expertise with regard to the investigative questioning techniques that were employed.

http://www.wm3.org/live/trialshearings/ ... 102&page=9

[Obscuregawdess]

By George Jared

JONESBORO — With his hand on the Bible, Jessie Lloyd Misskelley admitted in 1993 to his then-lawyer Dan Stidham that he played a role in the slayings of three 8-year-old boys in West Memphis.

During a Rule 37 hearing Tuesday in Jonesboro, Stidham testified that Misskelley said he helped to kill Michael Moore, Steven Branch and Christopher Byers on May 5, 1993.

Misskelley, Damien Echols and Jason Baldwin are known as the West Memphis Three after they were found guilty of killing three boys whose bodies were discovered inside a water-filled ditch one day after they disappeared. The three were bound at their hands and feet with shoe laces.

“Were you stunned?” Prosecutor Brent Davis asked Stidham of the admission, which came almost a month after Misskelley’s conviction.

“Very much so,” Stidham replied.

Rule 37 hearing

A Rule 37 hearing is held if a convicted felon thinks he or she received inadequate legal counsel. Davis spent most of the day questioning Stidham under cross-examination.

Despite the post-conviction admission, Stidham still believes that his former client is innocent and that he didn’t provide Misskelley an adequate defense at trial.

“I wasn’t prepared to deal with this case,” Stidham said.

Davis disagreed. During questioning, he got Stidham to agree that the best defense for Misskelley was a strong alibi, and that was the thrust of the defense’s case. Stidham said he spent hours canvassing areas in West Memphis to corroborate his client’s claims that he wasn’t in the vicinity at the time of the crimes.

Stidham cited Misskelley’s low intelligence level and the inconsistent statements he gave police and attorneys as proof of his innocence.

It was the first case Stidham took to trial, he said. Two factors — inexperienced legal counsel and a lack of monetary resources — doomed Misskelley’s defense from the start, Stidham contended.

When he took the case, Stidham said he thought a plea deal would be reached before trial, and he would be preparing his client to testify against Echols and Baldwin in their subsequent trials.

The defendant admitted being part of the murders in an interview with investigators in June 1993. Throughout the summer, Misskelley told his attorney he committed the crime.

Prosecutors claimed to have a piece of DNA evidence tying Misskelley to the crime but when it proved inconclusive, Stidham came to a realization.

“That’s when a light bulb went off in my head, and I knew I had an innocent client,” Stidham said.

Stidham claimed Misskelley can easily be manipulated into making false statements. Proof of that, Stidham said, came in a videotaped interview with Misskelley before his trial. In the interview, Stidham and a psychologist convince Misskelley in just a matter of minutes that he robbed a convenience store near his home — even though the robbery never took place.

Telling questioners what he thought they wanted to hear plagued Misskelley from the start, Stidham said.

“Every time I talked to Mr. Misskelley, the facts would change and the script would change,” Stidham said.

During the interview, Misskelley said police would ask him a battery of questions; if he didn’t answer them in a certain way, the questioning would start over. Once the right answer was given, it was recorded, Misskelley told his attorney.

Several months after charges had been filed, Misskelley allegedly thought Stidham was a police officer, not his attorney.

The videotape of the admission to the phantom robbery and the alleged interrogation techniques was not allowed to be viewed by jurors in the original trial.

Stidham said a lack of money prevented him from hiring expert witnesses, and he argued that the few who testified were not properly questioned or prepared for the trial.

“I was not sophisticated enough as an inexperienced attorney to adequately prepare an expert witness,” Stidham said.

Stidham admitted he spent more than 2,000 hours working on the case, twice as much time as would be required according to an expert, Davis said.

Davis asked Stidham if his opinion that Misskelley was innocent jaded his view of the defense he provided.

“No.” he replied. “My overriding goal for the last 15 years in this case has been the truth.”

The hearing resumes today at 9:30 a.m. in Craighead County Circuit Court.

gjared@jonesborosun.com

http://www.jonesborosun.com/story.php?ID=35752