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Later Fogleman noted that the defense attorneys had not dared to ask Byers directly if he had killed the boys, and he ridiculed the more cautious attempt to cast suspicion on Byers by implication. Fogleman said the move made the defense teams look desperate.

Gag Order

Indeed, as testimony wound toward a close, with only two witnesses remaining, the defense was clearly stymied. Burnett had allowed the highly disputed weapons—the lake knife and the sticks—to be introduced as evidence. He had allowed the prosecutors to explore Damien’s interest in the occult as a motive for the murders. He had qualified Griffis as a cult expert and allowed him to testify that the murders showed “trappings” of satanism. And now, as the trial entered its final week, Burnett issued another ruling, this one affirming the fairness of Jessie Misskelley’s trial. Without comment, Burnett rejected Stidham’s argument that Peretti’s change of testimony about the time of death constituted newly discovered evidence that cast additional doubt on the validity of Jessie’s confession to the police. The doctor’s change of testimony notwithstanding, Burnett ruled that Jessie would not be granted a new trial.

The ruling did not surprise Damien and Jason’s attorneys. It had been hard to imagine that Judge Burnett would have scheduled a retrial for Jessie in the middle of—or even after—the trial of the other two. But the lawyers still had a couple of hopes. One was that the jury would get to hear about Christopher’s confession to police in California. But when Morgan showed up with his court-appointed attorney, as Burnett had ordered, the already unusual trial took its most remarkable turn. Until now, all of thein camera hearings had been conducted in public; that is, even though the jury had been taken from the courtroom, reporters and other observers had been allowed to stay, since the hearings formed part of the trial. But for reasons that were never stated but that appeared to be related to drugs, Judge Burnett decided that this hearing would be an exception. Judge Burnett barred the media and spectators from the hearing, and he issued a gag order, forbidding the attorneys involved from discussing what transpired. What followed was to become the most secretive part of an already secretive case.

Burnett called Morgan and all the lawyers into his chambers. There, Jason’s lawyer Paul Ford gave voice to his exasperation. “Your Honor,” Ford protested,

we would like the record to reflect this is the firstin camera hearing that has been conducted in this case outside the hearing of the press and public. This court has continually heldin camera hearings out where everyone can hear, but this is a hearing which has been deliberately orchestrated to be outside the hearing of the public. It is also my understanding that the court is issuing a gag order which prohibits anyone from telling anybody at all that this court will not allow us to call Chris Morgan, and thus, there is no answer to why Chris Morgan was not called, and you are prohibiting us from telling the press that the State of Arkansas objected to this evidence and this witness, and that you would not allow us to question him and you would not allow us to discuss your ruling at all, and this is a public trial, which has been continually played out in front of the press, and at this point in time, when there is evidence that is detrimental to the state, it is being done in private.281

Judge Burnett listened without comment. “Anything else?” he asked.

The attorney for Morgan announced that Morgan did not wish to testify. If forced to take the stand, the lawyer said, he intended to exercise his Fifth Amendment rights to avoid self-incrimination. The prosecutors vigorously objected to the prospect of Morgan taking the stand, only to repeatedly invoke the Fifth Amendment. They did not want the jury to get the impression that Morgan might know something that could be self-incriminating about the murders—an impression that would almost certainly arise and divert suspicion from the two defendants.