Pages 81-90 of the March 13, 1996 Court Proceedings

     In between those two times, I had a capital murder trial in Muskogee, which began but was mistrial in Muskogee, so I did have some free time there.  So there's three days there that I probably have to account for. But once the agreement was signed, then I began trying to talk to the OSBI agents, and they informed me that they have a rule that they cant talk to me about the results of any tests or anything done in this case without the permission of the district attorney.

     Well, Mr. Barnett was free and told me that, yeah, I could learn anything I could possibly from these OSBI agents, that its okay with him. However, he informed me that there was a new round of tests being performed, that the crime scene had been revisited in Oklahoma County. It had been moved from the place out here south of town, and that the OSBI agents employed Captain Bevel and they were doing new blend tests, new ballistics tests, and that as soon as the prosecutor learned the results, he would share them with me. That's fine. I think that's entirely proper, but it wasn't until 6:30 at night on the 11th of March that Mary Long, the serologist, faxed her result to Mr. Barnett. Mr. Barnett and I over the phone, I believe, the next day, the 12th, told me that the results were favorable to my case and said that there was a mixture of blood there that certainly would be favorable to my case.

     I also talked to Captain Bevel, who is now an OSBI agent, and he said also that the crime scene walk-through and the measuring of strings would be favorable to my case, that being that Josh Stump was not the shooter in this case. But I've yet to receive Mary Longs report; I've yet to receive Keith Ferrell's report, who's a ballistics expert. In fact, I'm told the results of that test will not even be done for some several days yet. In the conversation I had with the district attorney, Miles Zimmerman, he said he's going to wait for the results of that test to make certain decisions.

     So basically, your Honor, I have taken possession of all the physical evidence. They boxed it up and gave it to me on March 11th. I immediately caused it to be transported to Dallas, Texas, to a laboratory in Dallas, Texas. However, I don't have the crime scene photographs or the videotapes. And without that, the people who do blood spatter analysis, because the blood was not -- well, without scene pictures, they can't tell what happened and they can't start work.

     So, your Honor, they also have some cases down in Dallas which has priority over this case. They work for the prosecution primarily, and they're having a case this week on a first-degree murder case in Dallas where they're testifying.

     So, your Honor, its actually through no fault of anyone that we're in this position where I have to come in and ask for a continuance again. And I cite as my authority the Frederick case. The Frederick case is a very sad case. The Frederick case, the public defender, who I know well, basically sat on his hands for a year in a capital murder case. And he hired a psychologist, but the psychologist realty wasn't a specialist in the area that was pertinent, and had several continuances granted, some by agreement, some by the defense asking for it.

     And finally the judge got exasperated with the defense lawyer and said, We're going to trial. And the Court of Criminal Appeals said, Ho, it was wrong to send the defense to trial when the psychiatrist, who is an expert in multiple personality disorders, had a conflict or ha couldn't be available. It was wrong to send that case to trial without the defense expert. And I think that case is pertinent in this case; I think its controlling.

 In my first motion for continuance bank in February or January 19th, I informed the Court at that time that my experts down in Texas needed two complete weeks to get all the testing done, and so that was optimistic. They need two weeks if they have nothing else to do.

     And this fellow named Lannie Emmanuel, who is a recognized expert in several areas, said that if we were free to drop everything else, we could probably get your testing done.

     The states had the evidence since July of 1995. They've had all the time in the world to work on it. That's some three-quarters of a year. We've had the evidence since March 11th, Monday of this week. I think in fairness, your Honor, a continuance must be granted.

     And Mr. Stump is not happy with that. He wants to go forward, but he also told me that he wants to go forward with a trial team that's prepared and aware of all the evidence. I have not gotten the police reports and the scientific reports for the latest round of tests. I've talked to Tom Bevel on the phone, and he said he's unavailable until Thursday. Hell be teaching class.

     Mr. Barnett, I'm sure will tell you, that I've pestered him night and day for weeks, asking him, What's going on? Where are the tests? What's going on? Help me out with these OSBI agents. And he has. He sent them a fax; he's called them en the phone.

     There's a particular individual who thinks she's above the law, Janet Halliburton. She's a lawyer for OSBI, and I had a nice heart-to-heart talk with her, and she said the OSBI rules are very stringent, that these agents are not allowed to talk to a defense lawyer without the district attorneys express approval, and it has to be in writing.

     So I made a point not to ever call her again, but I thought that the next thing I was going to do was bring her in here and have her explain her rules in the court here, because she's toying with the March 25th trial date.

     I know how important that trial date is to the Court, to the orderly conduct of business in this county, and I am not one to lightly move for continuance, your Honor, bet I have non choice. I have Mr. Stumps life in my hands, his defense, and I cannot lightly and cavalierly say, Oh, yes, were ready for Trial. Lets go, when I don't know what - I think as math day goes by, the evidence gets better for our side. And I hope that someday this week, maybe next week, that Ill get the results of the states test.

     And the last paragraph of my affidavit, your Honor, is that Mr. Ganstine, my boss, who approves the contracts and then puts his name on the line with the people that I hire; he has not given permission to spend any money in this case. And I'm thinking that there's maybe five or six thousand dollars worth of work that needs to be done. We have a fiscal crisis in our agency, like many other agencies in this state. And until this supplemental appropriation, which I don't pretend to understand, but I'm hoping that he will borrow from somebody else's case to fund this one, but I'd love to have him come here and testify about his financial problems.

     But  anyway, your Honor, I've gone on too long.  I'm saying that were stuck here. Its no ones fault.  I think the OSBI, in their defense, has a bunch of bureaucratic regulations that they have to comply with. I don't pretend to understand them, but they are the ones who, if anybody, have to bear the brunt of the blame that were in the situation were in right now. Thank you, sir.

THE COURT: Mr. Barnett?

MR. BABNETT: Judge, certainty, what Mr. Rowan has indicated to the Court is true. There have been some new things that have come out that I don't even have - or the state doesn't even have at this point, some of the most recent tests.

     As far as the motion goes, we did reach an agreement on the handling of the physical evidence as to what was going to be turned over on the 5th. And then on the 6th, we had the first of the motions for continuance because we had not complied with that.

     The OSBI certainty has got a lot of things they're doing, not only in this case but with others, but they do have a lot of the evidence. And, yes. I told Mary Long and I did tell Keith Ferrell that I wanted to know before the defense what the results of those tests were. Some of those tests, the one that he talked about of Ms. Long, that one do have. That was faxed to me at 6:30pm and I did talk to Mr. Rowan the next morning about it, and I do have a copy of that for him today. And it is, I would at least say, exculpatory. And I don't know exactly the result of Mr. Ferrell's tests on gunshot residue. It's my understanding that one of the machines that OSBI uses to test that or to determine those results is down, and I don't have it either, I can't give what I don't have.

     But I think they're trying to - the OSBI is trying to do what they can to assist me in this. They did go back out to the crime scene at my request and we did do a laser and string reconstruction. There arc photographs of that. Were trying to get the photographs to Mr. Rowan as early as we can or as soon as we can. To be honest, though, we just got - the test I heard about the photograph deal was that OSBI was waiting until they had some documentation on how they wets going to be reimbursed for the cost of several hundred photographs that are going to be copied. And that is my understanding. I told them as soon as they had that worked cut, give the defense whatever they want.

     And Jackie Johnson who is the lead agent on this case has been - she is, to say the least, frustrated by some of the lab work, as frustrated as I am, and I'm sure as Mr. Rowan is, with getting these results.

 I guess what I'm trying to say, Judge, is I don't think its the states fault. The OSBI has been - I've asked them to do now things, different things, that to get some more evidence for this case. some of its not even available to me yet. I'm not sure what tests Mr. Rowan wants to have run by this lab in Texas. Apparently, they don't have the money to do anything other than just eyeball it. I don't know exactly what they're going to do.

     But at this point, there's only a few things left out there. Mere continuing to produce the reports and ask the Court to - there's a distinction between the physical evidence, which they now have, and the reports, which I don't even have. And I will certainly provide those as soon as they're ready.

     I can understand the position that Mr. Rowan is in. I don't want to continue this matter unless its just absolutely necessary. The victims and the survivors in this case would like to get this resolved and see some closure, as I would. Judge, I'm not in a position to jump up and down with an objection about the continuance, but I can't agree to it, and I hope the Court understands my position. It sounds kind of wishy-washy to say it, but I

THE COURT: Well, it certainly does. You're either for it or against it, Mr. Barnett.

MR. BARNETT: Judge, I think in the interest of justice with what's happened here with the latest information we have available - and, to be honest, it changes the complexion of the case for us - I would have to concur with the recommendation for a continuance, and Ill do that.

THE COURT: Mr. Rowan, taking into account the fiscal situation that your organization finds itself in, where would you be better off 30 60, 90 days from now than you are now?

MR. ROWAN: Well, Judge, again, were delving into areas that I can't control in my life. I'm told I was at a division staff meeting on Monday, Monday morning, and I'm told that there is some $411,111 that is earmarked for agencies to supplementally fund us until July 1st, and its supposed to be approved this week.

     And Mr. Ganstine has never been slow in funding, particularly in cases like this one where so much is at stake.  He's got to request to fund them, and hell approve them as soon as the money is available, but I cant tell you whether it's going to be this week or next week, because the vagaries of the legislature - there may be enough money there now at our agency to pay for it even without the supplemental appropriation of the legislature.  I can certainty - Mr. Ganstine is by his phone, Judge. We could talk to him about it, but I don't happen to walk in those circles of high fiscal management, so I cant tell you.

THE COURT: Well, I almost feel irrelevant to the entire proceeding. If both of you will recall when we were here before and it came on for the continuance, I took my calendar and very carefully asked each one of you if you could be prepared and ready to go on this particular date, and you both assured me that you could. And so I made arrangements for the jury, we've even sent out the jury questionnaires, told them to be prepared to be here on the 25th of March.

     I inquire of each one of you separately new as to when you think you're going to be ready to try this case. This Court has other business. There are other murder cases to be heard, pending. When do you realistically, Mr. Rowan, think you're going to be prepared to try this case?

MR. ROWAN: Well, Judge, I could be ready the 1st of May. I could probably be ready the 19th of April.

THE COURT, Mr. Barnett

MR. BARNETT, either one of these dates would be satisfactory, Judge, if the Court has those available.