Dark Spell

by Mara Leveritt

  Jason’s only prior experience with an attorney had been that first summer in Marion, when he and the other kids were rounded up, taken to court, and threatened with reform school. He had no good memories of his court-appointed defender back then, but he told himself this time was different. He credited his lawyers with the sense of responsibility that he felt himself. He would not have let down the people who relied on him—in his case, his mother and brothers—so he placed his confidence in Ford and Wadley. He would treat them with respect because they were adults and that was how he’d been taught. And he would rely on them because they knew more about both the law and his situation than he did—and he had no other choice. Still, Ford’s approach troubled Jason. “I felt, ‘I’ve got to trust him to do his job,’” Jason said. “But he seemed like he couldn’t get over Damien’s weirdness and strangeness. After I told him I didn’t do it, he said, ‘Well, do you think Damien could have done it?’ He’d always come back to that.”

  Ford’s easy air of confidence was reflected, in part, by the way he wore his hair—tied in a ponytail at the nape of his neck. That was unusual for professional men in the area; it was exceptional for an attorney. Ford promised Baldwin he wouldn’t cut his hair until Jason was home hugging his family. At least at first, Ford and Wadley brought Jason information he desperately needed. They were the ones who’d identified the “friend” who’d prompted his and Damien’s arrests. Mostly, however, they wanted to hear everything Jason had tried to tell the police.

  He told them: “I was cutting my uncle’s yard. I was hanging out with my friend after cutting the yard, spending some of the money my uncle had paid me, playing video games at Walmart. There was a guy there watching me play video games. I didn’t even know the guy, but he was just waiting his turn. Then, I went to a friend’s house and bought a cassette. I talked to my girlfriend on the phone and ate dinner and saw my brothers and my mom’s boyfriend. Just normal things that you do, those are the things I was doing that day. I wasn’t out murdering anybody.”

  The attorneys asked a lot of questions, which Jason answered in detail. He told them he’d been with his mother and her current boyfriend, Dennis “Dink” Dent; with his brothers Matt and Terry; with his Uncle Hubert Bartoush; with Damien and Domini, Ken Watkins, and Adam Philips and his sister and her boyfriend. “I told them everybody I’d seen that day. I even told them about character witnesses like Mrs. Littleton and Mrs. [Sally] Ware,” his high school art teacher. “I’d ask them, ‘Have you talked to these people?’ and they would say, ‘Yeah.’ But they wouldn’t tell me anything more.”32

  Ford told Jason he’d fought to have Jason’s trial severed from Damien’s but that Judge Burnett would not allow it. Beyond that, the attorneys told Jason little about the development of his defense. He later recalled, “It seemed everyone had adopted this practice: don’t tell Jason anything.” In turn, Jason didn’t ask questions. “I didn’t know what to ask,” he said. “I had no basis on which to ask. I just let them tell me whatever they had to tell me. The only question I ever had was, ‘When do I go home?’ Their answer was, ‘At the end of the trial.’ So that was the end of that.”

  The best part of the attorneys’ visits was the food. Every time they came, Wadley would open his briefcase to reveal a pizza, two Mountain Dews, and a couple of Snickers bars for Jason to eat during their meetings. “I was starving to death in that place,” Jason said. “I would drink the two Mountain Dews, and eat the two Snickers and the whole pizza whenever they would visit, crusts and all.” Before coming to jail, he’d never eaten the crusts.

  As bad as things were, he did not complain. He always slept well at night. “When I go to sleep it’s over with,” he said. Daytime was different. He did push-ups for exercise, but otherwise, “You just sit there,” he said. “You just think, hope and pray. It’s not very romantic or dramatic. You’re literally just sitting, waiting on breakfast, now waiting on lunch, then waiting on dinner. You’re waiting on a visit, even though it’s only going to be fifteen minutes and it’s going to break your heart. You’re waiting on a visit from your attorneys because they’ll bring pizza and candy bars. And you’re waiting on the unexpected.”

  Once, the unexpected was an order to go to the office of Joyce Cureton, the administrator of the juvenile detention center where he was held. Jason entered, ready for anything. Still, he was taken aback. A figurine of a wizard sat on the jailer’s desk. “I was having this paranoid thought,” he said. “‘Is she really into this, or is this some kind of setup to draw me out?’” He learned later that Cureton was into collectables and that “her thing was wizards.”

  Jason said, “She asked me point-blank if I committed the crime. I told her I didn’t. That’s when she told me she’d had Damien as an inmate there the year before and that he’d gotten in some trouble there. All I’d known was that he was sent somewhere for running away, but I never knew where.”

  Jason understood it was hard for people, including Cureton, to accept that he was innocent. “They had this huge, insurmountable hurdle in their minds that had to be crossed, and it came from the fact that we were arrested. I was up against this thing, like, when people arrest you, you’re automatically guilty,” he recalled. “If you say you’re innocent, they tell you, ‘Yeah, that’s what they all say.’ Then, instead of people reacting the way you’d hope they’d react, they look at you like, ‘On top of being a killer, you’re a liar too.’ It’s tough. And if they don’t react negatively, it’s like, ‘Okay, whatever. There’s nothing I can do anyway. That’s for somebody else to figure out. If you’re innocent, they’ll figure it out at the trial.’”

  Cureton’s reaction was the latter. “I could tell she was still holding onto what she’d been told,” Jason said. “She didn’t jump up and say, ‘Well, I’m going to help you go home.’ So the only people I came into contact with were powerless to help or refused to do anything. It was a weird, very helpless situation.” He liked Cureton and the rest of the staff. But he also understood, “There was no way anybody could help. They were all wonderful and nice, respectful, and courteous. But, at the end of the day, they went home.”33

  After a few months, Cureton began allowing Jason outside his cell for about an hour a day or onto the outdoor basketball court for a half-hour once a week. The change gave Jason the chance to socialize with other inmates. As a result, he became a teacher. The jail offered inmates an opportunity to take the high-school equivalency test or GED. Jason didn’t yet qualify to take the exam because it was limited to people seventeen and older. But that didn’t mean that Jason couldn’t tutor prisoners who did qualify. “I’d had a better education than a lot of those guys,” he said. “Or maybe, my attitude towards education was just better.” Jason was never assigned a cellmate, but he made some good friends at the jail; two decades later, he’d still remember their names.

  The arrival of a camera crew at the jail came as another surprise. Jason had been denied any access to media. As a result, he still did not know that someone had leaked a transcript of Jessie’s “confession” to a newspaper, where what he’d said had become front-page news. Jason didn’t know that, for months, residents of the region, like Cureton, had been seeing and hearing reports that police viewed the murders of the West Memphis children as having been part of a Satanic sacrifice. So naturally, he had not known that the combination of the murders and the rumored, sensational motive had attracted the attention of a producer at a cable television network in New York. Within weeks of the arrests, Sheila Nevins at HBO had contracted with two documentary filmmakers to go to Arkansas to film the story, including the trials, if possible.

  For the filmmakers, Joe Berlinger and Bruce Sinofsky, the assignment looked like a natural. “It seemed to be an open-and-shut case,” Sinofksy said. “Three blood-drinking, Satan-worshiping teens had committed a horrifying act of violence. We saw that there were the seeds of a great drama.”34 It also looked like a long shot. No one could recall an Arkansas trial ever having been f
ilmed before. But Arkansas law did provide for filming if—and it was a big ‘if ’—Berlinger and Sinofsky could get all the required permissions.35 The filmmakers were friendly and dogged. They got to know all the key players in West Memphis, where the victims and Damien had lived; Marion, the county seat, where Fogleman, Jessie and Jason lived; Corning, where Jessie would be tried; and Jonesboro, where Davis and Burnett had their offices—and where Damien and Jason would be tried. Being able to extend some HBO money to the victims’ families, as well as to the defendants’ attorneys, helped with that task.36

  Jason understood that the money the filmmakers paid his attorneys was to be passed on to his mother, though later he was informed that the funds had gone to his attorneys to pay for investigations that would help him in court. In any event, when Jason’s attorneys told him it was okay for Berlinger and Sinofsky to record their conversations, Jason agreed. But the situation was a little confusing. “Most of the time, I was told not to say anything,” he said, “whereas with these people, my attorneys gave me permission to talk, so it was kind of different.” Gradually, the cameras became “just part of the experience.”

  And there was yet another surprise. “Steve Jones came to see me,” Jason recalled. “It was me and Ms. Cureton in the room with him. We did not talk about the case. He seemed to me at the time very sad, like he had done something he did not want to do but had to or that he regretted it. I just remember the overall feeling of the visit. It felt like he was wanting to check up on me and express to me that he believed I didn’t do it.”37

  Jason said that, by then, Cureton agreed. “But in the same breath,” he added, “it was, like, ‘But what about Damien?’ It was a big hurdle. People just could not get over it: his history, his personality, his name—the whole Damien package.”

  The only other breaks in the routine of jail life came when Jason had to be shackled, taken from his cell, placed in a sheriff ’s van, and driven to a courthouse for one of the many pretrial hearings. The trips offered a release from seclusion, but it wasn’t one he enjoyed. “There was one held in Corning, one in Marion, and maybe a couple in Jonesboro.38 As usual, I couldn’t see,” he said. “And I didn’t really understand anything that was going on. Nothing was being explained. The lawyers would tell me what the hearing was for and ask me if I understood, and I’d say, ‘Yeah,’ because I thought I should understand it.”

  But what happened inside the court wasn’t the worst of it. “Getting in and going out of the courthouses was horrible. People can be so ugly and so nasty. There was so much hate coming off everybody out there. You know you’ve done nothing to deserve it, but people who know nothing about you think that they do. It was like a hate wall, just surrounding you, this insane, murderous rage.”

  His attorneys told him not to respond to the crowds at all. Jason could tell that the rage was intimidating, even to them. “The whole town wanted us dead,” he said, “and they were the ones defending us. They were the ones walking into that. It had to have been tough.” It was especially tough on Jason, the target of the rage, but he could not avoid the gauntlet. “You have no choice because you absolutely have no place you can go. You can’t say, ‘I think I’ll just stay here in the jail today.’ You’re stuck in it until they get through with you.”

  Once Jason was returned to his cell and left alone, he’d try to frame the experience in some way that would not distort the person he wanted to be. Whatever the situation, he could find something from the Bible that applied to it. There at the jail, for instance, he’d met people accused of all kinds of crimes. He’d chosen not to judge them because, “Jesus didn’t judge people. He pretty much forgave everybody, unless they were misusing religion or being hurtful. It was all about the love. That’s what Jesus uses. You’re supposed to love people, to uplift people, to make people better. That’s what I learned from Jesus’s teaching. That’s why he’s the guy. He’s the big radical.”

  After enduring the judgment of crowds, Jason would resort to the words Jesus spoke from the cross: “Father, forgive them for they know not what they do.” He reminded himself that Jesus had been falsely accused and jeered, and that he had responded with forgiveness. “So I tried to forgive them,” Jason said of his accusers, “because I knew that if they knew I was innocent—if they knew the truth—they wouldn’t be reacting to us that way. And I knew that that was the purpose of the trial: to get to the truth of it.”39

  A cold Christmas came and went. By early 1994, as Jessie’s trial approached, many in the region were already satisfied that he, Damien and Jason were, in fact, the killers. Among the few voices of caution raised was that of Bartholomew Sullivan, a reporter for The Commercial Appeal. He observed that Fogleman’s case might not be so easy to prove. “Defense lawyers plan to tear apart an interrogation by two police detectives in which Misskelley asserted the nighttime murders took place at noon and that the bodies were tied up with rope, instead of shoestrings,” Sullivan wrote. Noting that the knife found in the lake had not been discovered until six months after the arrests, he added that police would be “hard-pressed to explain why they waited until late November to search a lake behind Baldwin’s house for what may be introduced as a murder weapon.”40

  Three days before Jessie’s trial began, Sullivan wrote that Fogleman and Davis were “acting like this is just another murder case, despite its national attention, after revelations of sexual mutilation and police suggestions of a Satanic cult’s role.” He expected that, once the trial got underway, “The facts that have been slowly coming out . . . will be revealed in a coherent theory of the case.” Since to this point, no “coherent theory” had been presented, Sullivan asked Fogleman what evidence he’d present to support Jessie’s statements. “I can’t comment on specifics,” the prosecutor replied, “because I sincerely want these defendants to receive a fair trial.”

  As 1993 ended, Jason still had no idea where Damien and Jessie were. But when Jessie’s trial began in Corning on January 19, 1994, with extensive TV coverage, news of each day’s events spread through Jason’s jail. Jason could not imagine that Jessie would be found guilty because what evidence supported his statements? Nevertheless, in the first week of February, Jason learned that the jury had not only found Jessie guilty but had sentenced him to life in prison—plus 40 years.41

  For the prosecutors, Jessie’s trial played out as simply as they’d hoped.42 Hearing Jessie’s own voice on the tape recording saying that he’d assisted Damien and Jason in one of the murders was all the evidence the jury needed. As the foreman later explained, “Just what Jessie said convinced me. You might brag about kissing a girl that you never did. But you don’t brag about killing somebody. Why would you do that?”43

  It was a win for Fogleman and Davis, even if the jury had not given Jessie the death sentence they’d requested. Now, the prosecutors hoped that the prospect of life in prison would nudge Jessie into turning against Damien and Jason, a change they badly needed. They hoped to use Jessie’s conviction and his fear of what he faced in prison to leverage a deal. Through his attorney, they offered Jessie a chance at a term of years instead of life in prison— if he would testify against Damien and Jason in court, repeating what he’d told the police.44

  But Jessie, who’d recanted the claims he’d made to police and pleaded not guilty at his trial, refused to cooperate. And because he refused to appear at Damien and Jason’s trial and repeat those earlier claims, Davis and Fogleman were constitutionally barred from introducing even a word about what Jessie had said as they faced the trial ahead. That left them with serious concerns.

  “We do not err because truth is difficult to see. It is visible at a glance. We err because this is more comfortable.”

  ~ Alexander Solzhenitsyn

  The prosecutors held a meeting with the victims’ parents to explain the situation. Thanks to the HBO filmmakers who attended, a recording exists of that meeting. Fogleman framed the problem with losing Jessie this way: “All is not lost if he doesn’t
testify. But the odds are reduced significantly. I mean, we’ve still got some evidence.”

  Heading into Jason and Damien’s trial, here’s what Fogleman told the parents he had:

  • Three fibers that even he admitted could not be linked to the accused “to the exclusion of all others.”

  • Witnesses’ claim that, on the night of the murders, they’d seen Damien walking along a road near here the bodies were found; the problem was that these accounts placed Damien with a girl, not with Jason.

  • Statements by two teen-age girls who said they’d overheard Damien at a softball field bragging that he’d committed the murders, and

  • The statement of Michael Carson, a jailhouse snitch who claimed that Baldwin had privately confessed to him in lurid detail how he’d mutilated one of the victims; the problem here, Fogleman warned, was that the young man “might not be believed.”45

  • Then, as an afterthought, Fogleman added: “Oh, yes, and the knife in the lake.”

  In fact, there was one other element likely to help the prosecutors. Ever since the murders, now almost nine months past, publicity about the case had saturated this region along the Mississippi River. Though Jessie’s recorded statements would be barred from Damien and Jason’s trial, it would have been hard to find anyone in the region who had not heard something about the murders being linked to a cult, that a knife had been discovered in the lake by Jason’s house, that Jessie had been convicted of the triple murder, and that a strange kid who’d dropped out of high school and called himself Damien was the leader of a cult.

  On Ford and Wadley’s next visit, they assured Jason that Jessie would appeal, and that his conviction could be reversed. Despite their attempt at comfort, Jason now understood that his own situation had suddenly become more threatening than he’d imagined. If a jury could sentence Jessie—Jessie!—to life in prison, what did that mean for him?