Discovery, in both civil and criminal litigation, is everything. Determining fact from fiction, by way of evidence, in physical or material form, or with witness or accomplice statements, is the foundation of all cases. Evidence that is circumstantial, that point toward or suggest tangible evidence or events, is the handkerchief hidden in the attorneys’ sleeve, strung magically together, ready to fascinate and hypnotize the judge and jury.
Law is comprised of rules, instructions, and regulations imposed and implemented by a judge or the government. A small child always tests its boundaries; attorneys do the same in hopes of reaching a favorable result for their client. It’s the name of the game, people.
The playing field, in theory, is even. To ensure an even playing field, discovery is shared by both sides. Attorney-client privileged information is never exchanged, nor work-product, which is defined as:
“tangible material or its intangible equivalent” that is collected or prepared in anticipation of litigation is not discoverable, and may be shielded from discovery by a Protective Order, unless the party seeking discovery can demonstrate that the sought facts can only be obtained through discovery and that those facts are indispensable for impeaching or substantiating a claim. [Wikapedia]
A defendant has the right to face his/her accuser, whatever the form the accuser takes (i.e., documents, witnesses, etc.). This mandatory aspect of the law is why there are always “Perry Mason” moments on t.v. when an unexpected witness is called to the stand and the jury and spectators gasp at the surprise. The judge then has to decide its legal admissibility.
This is a nutshell version of just one aspect of the legal process in civil/criminal matters; a little background information before reading further.
On January 21, 1997, a Motion for Disclosure to Defendant was filed on behalf of the Defendant, but the collection of discovery, by Heath’s defense attorneys, proved to be challenging.
In addition, a Petition for Mental Evaluation, was filed on January 21, 1997 by defense attorney, Thompson, four days after the murders, requesting an evaluation by qualified medical personnel at the Arkansas State Hospital in Little Rock, Arkansas pursuant to Arkansas Code Ann. 5-2-305 (2)(d) (Repl. 1977).
Ark. Code Ann. §5-2-305 (West 2010) provides for a forensic examination of defendants that must include “[a] substantiated diagnosis in the terminology of the American Psychiatric Association’s current edition of the Diagnostic and Statistical Manual.”
Additionally, Thompson asserts:
Fifth Amendment right against self-incrimination and that the defendant is not to be questioned about any facts or circumstances surrounding the time of the offense without counsel first being notified and being given the opportunity to be present, or to object to such questioning. [Petition for Mental Examination, par. 5]
In addition to self-incrimination, Carder confirmed that, without a complete file pertaining to his client, a defense could not be built and his client could not be defended.
On January 22, 1997, Judge Lance Hanshaw signs 30 Day In Patient Evaluation Order.
Defense counsel, Carder, receives a phone call from co-counsel Edgar Thompson’s paralegal, Sara, on February 3, 1997 informing him of the Judge’s request that Heath’s evaluation be expedited. A memo of said call is placed in Heath’s file.
The Judge’s request for expedition of Heath’s evaluation is further evidenced by statements made by Dr. Kittrell, forensic psychologist at ASH,
and memo to the file by Lance Womack, in-office co-counsel to Mac Carder.
Carder was informed of Heath’s admission to ASH on February 10, 1997, three days after Heath is admitted. Although Carder had not received the case file from the prosecutor’s office, the ASH receives 39 pages of the file on February 4, 1997, three days before Heath is admitted.
The Order signed by Judge Hanshaw on January 22, 1997, allowed “the Prosecuting Attorney to provide the Arkansas State Hospital a case file; that it is to be kept confidential, for the purposes of the evaluation.”
Although the order of confidentiality by Hanshaw, in conjunction with Thompson’s request in his Petition, states that defendant is not to be questioned about any facts or circumstances surrounding the time of the offense without counsel first being notified and being given the opportunity to be present, or to object to such questioning, the ASH is being made fully aware of the alleged facts surrounding the Stocks’ murders. In addition, it appears guards have been made aware of the file’s contents and telling Heath he is going to fry, leading one to question what such statement is in reference to – possibly Heath’s case file provided to ASH? Or, could the staff be greatly informed due to the massive media coverage? Possibly both is the answer. Could such comments potentially hinder/alter any psychological evaluation?
Reminder, Thompson asserted:
Fifth Amendment right against self-incrimination and that the defendant is not to be questioned about any facts or circumstances surrounding the time of the offense without counsel first being notified and being given the opportunity to be present, or to object to such questioning. [Petition for Mental Evaluation, par. 5]
Heath was asked question by “guards, nurses, everybody” and was not given the opportunity to make available his attorneys by establishing and enforcing “no phone calls.” Due to the insufficient discovery available to Carder, he was forced to “limit defendant’s cooperation with state hospital personnel”. [Mot to Suspend Any and All Observation by ASH, par. 8]
Prosecuting attorney, Larry Cook, informs Carder that he “will wait until after he reviews the case file and the state hospital report to announce whether or not he will seek the penalty of death in this matter.” [Mot to Suspend Any and All Observation by ASH, par. 1]
A partial case file, comprised of 27 pages (12 less than the ASH received), was made available on February 11, 1997 to Carder, who obtained the file personally from the PA’s office.
Due to the fact that Cook still had not informed Carder of his intent whether or not to seek the death penalty, Carder must assume that it would be sought. Accordingly, an intense mitigation investigation would need to occur in order for Carder to fulfill Heath’s Sixth Amendment right of effective assistance of counsel. Having a depleted case file, and no assurance of Cook’s charges, it is understood why Carder advised Heath not to cooperate with the ASH further. To not offer this advice would certainly render Carder ineffective. Resulting was a Mot to Suspend Any and All Observation by ASH filed by Carder.
In the Motion to Suspend, faxed to the Court on February 12, 1997, defense asserts that a statement purportedly made by defendant was missing from the file acquired from the PA’s office, along with a copy of an interview of defendant by Investigator Hollingsworth on January 18, 1997 wherein defendant was said to have confessed. These documents were given to the ASH, not Carder.
Cook’s response to Carder’s Motion essentially states that the Arkansas Code Annotated 5-2-305 is “absolutely void of any requirement that full and complete discovery must be made prior to the evaluation requested by the defendant.”
NOTE: Aside from the fact that it may not have been whether or not the ASH received a bigger file from the PA, nor it being a requirement to complete an evaluation, the Defense has a right to the evidence obtained by the PA, that which is not protected, of course. A statement by Heath, purportedly confessing, is discoverable and should have been made available upon Carder’s filing of the Motion for Discovery, if not before.
Upon the Motion to Suspend being filed with the Court on February 12, 1997, a hearing on the motion was set for the following day, February 13, 1997. A heavy snowfall caused the hearing to be cancelled. Carder inquires about rescheduling the cancelled hearing and contacts the Court on Feb. 14, 18, and 19. On the 19th, Carder was orally informed by Judge Hanshaw that he would not reset or grant defendant’s request for a hearing, stating that “the State Hospital evaluation was not a matter of defense strategy.”
Additionally, Judge Hanshaw told Carder that the defense would not begin to formulate a defense to the State’s charges until the State Hospital comes back with its report, since Stocks has not yet been found fit to proceed.
During the course of Heath’s time at the ASH, it is documented that Billy Burris of the ASH was in contact often with “someone”. Speculation was that the “someone” was Larry Cook.
**Was Heath fit to proceed but granted to proceed due to influence by Larry Cook?
In the meantime, another small battle in the war that was “Heath-against-the-system”, a Motion to Control Prejudicial Publicity was filed on January 24, 1997, only one day after Mac Carder is appointed co-counsel in Heath’s defense, and three days after Thompson’s appointment. There was no keeping the story of the Stocks’ murders out of the media, but Heath’s defense team gave it their best shot.
The Motion, in part, states:
“There has been massive, highly prejudicial publicity through this area, and throughout the state . . . [a]n example of the electronic media’s prejudicial coverage can be seen in their repeated references to Defendant’s “confession” in their stories”.[Defendant’s Motion and Order to Control Prejudicial Publicity, par. 2]
It would take two more months before the Order Control of Publicity is signed by Judge Lance Hanshaw on March 20, 1997. According to the Motion, “massive, highly prejudicial publicity” was being reported by television news agencies from Little Rock, through the press, including local Lonoke press and the state-wide Arkansas Democrat-Gazette, yet two months of additional publicity would be allowed before an Order was signed.
Less than three months later, on June 6, 1997, Heath is sentenced by Judge Hanshaw. Only a month after that, on July 20, 1997, Jack Walls is forced by Wade Knox to confess years of sexual abuse.
….so close to Heath’s truth being told…so close, yet so far away.
View timeline of Discovery.
To read more of Heath’s story, visit his website.