Dark Spell

by Mara Leveritt

  “I was already sitting in a jail cell for something I didn’t do,” he said, “so by this point, I was thinking that anything bad that can happen probably will. It was, like, ‘Okay, what’s next? Bring it on.’ You get used to having bad stuff happen in your life. Anything that shows up, you’re like, ‘Of course, this would be the next horrible thing.’ But in actuality, it went beyond that.” The past months had been hard—hard and cold as the surfaces in his cell. Jason knew he’d survived this far, but he could not have foreseen how much further his courage would be tested or how spontaneously he’d respond.

  The next time Ford and Wadley came, they brought Jason what they thought to be, not one, but two pieces of excellent news. The first was that Jessie had refused to testify against Jason and Damien. That was indeed a relief. But the lawyers’ next bit of news hit Jason like a two-by-four. “I was sitting there eating pizza with Paul and Robin,” he recalled. “And they said, ‘The state wants to make a deal with you.’”

  “What’s the deal?” Jason asked. “They said it was, like, ‘Fogleman will ask the jury to give you forty years if you’ll testify against Damien.’” Jason looked at Ford and Wadley, the pizza forgotten in his mouth. “How can I do that?,” he blurted. “All I can do is tell them where I was. They want me to lie?”

  But Ford urged Jason to take the deal. “He said, ‘Just say something. Save yourself.’ But I was, like, ‘Nah, this isn’t right.’”

  Ford looked amazed, frustrated, disappointed. The subject of Damien had always been a sore point between him and Jason. “I think Paul was doing his best,” Jason said, “but when it came to Damien, I think he just saw all these alternative religions, his mental health record, his whole turmoil, and that affected his performance and his relationship with me.” Though Jason was never allowed to read the transcript of Jessie’s statements, Ford and Wadley told Jason that they contained graphic descriptions of him and Damien committing the murders. Sometimes Jason wondered if Ford even believed in his innocence. “Paul would ask me, ‘Why would he lie? Why would he say all that stuff about you?’ I’d say, ‘I don’t know why.’ And they’d be off on a tangent about Damien being weird and his mental health record. And I’d be, like, ‘I don’t know why Damien is weird, but we didn’t do this crime.’ I figured, ‘They’re the ones with the law degrees. They’re supposed to figure this out.’”

  For Fogleman and Davis, the thrill of victory in Jessie’s trial was dampened by the chance of defeat ahead. Although Fogleman had used his subpoena power to call in and question under oath dozens of Crittenden County residents, including several minors, about the murders, even that effort had not produced much. As he’d explained to the victims’ parents, jurors might view the “some evidence” he had against Damien and Jason as thin, especially in a death penalty case. Jurors might question the belated discovery of the knife in the lake, they might suspect that the snitch in jail had gotten a deal for his testimony, and they might wonder if the girls at the softball field really had heard Damien from a distance of what they themselves estimated was between fifteen and twenty-five feet. The question of motive was an even greater concern. In Jessie’s trial, jurors had gotten to hear Jessie talk about “that cult.” Without Jessie there to repeat his statements at Damien and Jason’s trial, the prosecutors worried that jurors might find it hard to believe that two teenagers had murdered three boys they didn’t know for no discernible reason.

  Any way the prosecutors looked at the trial ahead, they faced a predicament. They had no reliable physical evidence and no apparent motive. They needed an eyewitness. They needed Jason. Yes, they’d already passed word that, if he’d cooperate, they’d ask the jury to sentence him to time in prison rather than to death. And yes, he’d turned them down. But the prospect of a trial with no physical evidence beyond some “microscopically similar” fibers, no confessions, no apparent motive, and no one even to accuse Damien was enough for Fogleman and Davis to try to entice Jason with one more offer.

  Jury selection had already begun for Damien and Jason’s trial when Ford and Wadley returned to the jail to tell Jason that the prosecutors had sweetened their offer. This time, instead of death— instead of even a term of forty years—they would seek a sentence of only twenty years for Jason, if he would just testify against Damien. Jason told Ford “No!” He recalled: “I told them, ‘Don’t talk to me about it anymore.’ I knew that if they kept talking, it was going to be a bunch of bullcrap about Damien.”

  Ford dropped the subject for the moment, but as opening statements for the trial drew nearer, Jason said, Ford urged him “a couple of other times” to reconsider and take the state’s offer. “He said, ‘Just testify against Damien. Say he done it. Get up there and lie.’ I told him I couldn’t help him with anything like that. ‘I couldn’t do it even if you said you’d let me go right now.”

  Jason had consulted no one and nothing but his conscience. He’d made the decision on his own to reject the advice of his attorneys. “I was not tempted,” he said. “It was wrong. It was against everything I was brought up to believe in.”

  Jason was still sixteen. He’d already spent eight months in jail, much of that time in solitary confinement. And he was about to be put on trial for his life. Yet he was adamant. His attorneys were dumbfounded. “They couldn’t believe it,” Jason later said. “They urged me to take the offer. Paul used some horrible language. He was, like, ‘What do you want me to do, tell Fogleman to take his deal and shove it up his ass?’ The way he spoke was pretty vulgar—I think due to his frustration with it all. Paul was all about, ‘They want Damien! Give them Damien!’”

  It was Jason’s style to be deferential to adults. But here he drew a line. Fogleman could ask that he be sentenced to death, if that’s what he meant to do. Jason would not betray Damien to prevent that.

  Back in his cell, he had time to reflect on the visit in detail. When he’d told Ford and Wadley that he would never testify that he knew anything about the crime because he didn’t, Ford had said of Fogleman, “He either doesn’t believe you or he doesn’t care.” Jason could not understand that. He considered the offers hideous. Diabolical.

  If Jason lied, Fogleman would ask the jury to sentence him to a term of years in prison—a sentence that, if Jason behaved, would allow him to be freed in a few years. But if Jason persisted in telling the truth, Fogleman would seek his execution. Never in his short life had he encountered the type of mind, or the understanding of power, that could present someone in captivity with such a perverse choice. In the quiet of his cell, Jason pondered his own situation relative to Fogleman, wondering if it resembled what Jessie had faced with the police. Only one explanation seemed to make sense. As he put it later, “I guess some police and prosecutors get so used to putting pressure on people, and putting them in impossible situations, that they expect people to make stuff up.”46

  When Jason was a child, he’d believed that the world, essentially, would treat him as he treated it. If he were honest, life, in a sense, would treat him honestly in return. As he matured, he’d begun to realize that the bargain wasn’t so simple. He’d come to understand that it wasn’t an arrangement between himself and the world. The world would do what it would. Rather, Jason understood that the only pact possible—the deal that mattered—was the one he made with himself. Somewhere on the road to sixteen, he’d incorporated into his being a sense that integrity was sacred. That was his deal now, and he meant to uphold it entirely. Jason didn’t know about other people, but he always slept peacefully at night.

  “Show me a hero and I will write you a tragedy.”

  ~ F. Scott Fitzgerald

  As Jason’s trial neared, Ford and Wadley revealed little about their preparation. Jason knew that Ford had fought hard, though unsuccessfully, to get his trial separated from Damien’s, but couldn’t see why that mattered. “I didn’t understand it,” Jason said. “I thought it was not a good thing for Paul to act like he thought Damien was guilty, just because he didn’t
like his attitude. To me, that was the point: he’s innocent too.”

  What Jason did not understand was that he himself was but an asterisk, almost an inconvenient sidecar, to a proceeding that was lethally focused on Damien. Had Jason been tried by himself— before Jessie, after Jessie, or even after Damien—what would the case have been? That police had carted fifteen black t-shirts out of Jason’s house (and only one white one!)? That he listened to Metallica? That a diver had pulled a serrated knife from the lake behind his trailer? No. Only the connection to Damien mattered—the connection that Jessie established in his rambling statements to police. Though media had scrutinized Damien’s reputation for odd dress and behavior since the leak of Jessie’s statements, there’d been little to report about Jason. He was too ordinary a kid. Linking his trial to Damien’s gave Fogleman and Davis their only shot at convicting him—and at preserving their theory, as Jessie had described it, of three cult-involved teenagers savaging three eight-year-old children.

  In the last week of February 1994, deputies drove Jason from the detention center on the outskirts of Jonesboro to the courthouse downtown for the start of his and Damien’s trial. Jason knew the routine. “You get up and they take you out of the cell. They take you to a little bathroom where your court clothes are. The bailiff puts you in leg irons and waist chains. Then you get in the police car and drive to the courthouse. I always dreaded that. There’d be all these people full of hate, full of anger. It was not anything I would ever choose to go through, but you literally can’t do anything but what they tell you to. It’s like being a sheep led to slaughter. What’s that sheep going to do?”

  Still, Jason hung onto hope. He clung to his memory of lab technicians coming to his jail to take a second round of hair and saliva samples from him. That small episode had kept alive his belief that investigators had in fact found physical evidence against which they meant to compare the biological samples taken from him.47 “I was still thinking, ‘When the evidence comes back, it will back up what I’ve been saying.’ I had it in my mind that eventually they were going to figure out that we didn’t do this crime.”

  Jason also took comfort in his belief that Ford and Wadley had contacted all the alibi witnesses he had told them about, the people who would testify that they were with him while the victims were missing. “I figured that at the trial everyone would say, ‘Well, Jason was doing this, Jason was doing that,’ and everything would be all right.” Jason believed that the lawyers had done everything he’d asked—and even more that they hadn’t divulged to him. Ford and Wadley each assured Jason that everything was under control. “They just told me I was going to go home and not to worry.”

  When they arrived at the courthouse, Jason endured the jeering crowds, strengthened by his confidence that his attorneys had everything in hand. And, despite Jessie’s conviction, he wanted to trust Judge Burnett. “You never want to think the worst of people,” he said. “You always want to think there’s some good there, that people are doing what they say they’re doing. You want to give people the benefit of the doubt.” He felt the same about the jury. But there was so much Jason didn’t know. His faith in the entire proceeding might have been devastated on the spot had he known what tactics had been used—and allowed—to get Jessie to testify, even in the week before the start of his trial.48

  Jason and Damien’s trial began on February 22, 1994, George Washington’s birthday. Joyce Cureton at the jail had given Jason some of her husband’s shirts and socks to wear, clothes which she took home and washed and ironed each night because she “didn’t want him going to court looking wrinkled.”

  Seeing in school had been a challenge, but the courtroom presented a bigger one. Jason recalled, “I couldn’t see the jury. I could hear the judge, but I couldn’t tell which way he was looking.” He could see his own attorneys beside him, but little beyond them. He knew where Damien sat, and every now and then heard Damien’s voice, but from where Jason usually sat, he could not make out Damien’s face. Other characters in the courtroom were sketchy. “I began to know ‘tall, thin,’ that’s Fogleman. The bigger man was Brent Davis.” Witnesses came and went as vague, disembodied voices. Judge David Burnett, on his bench up front, loomed as an imposing but indistinct black shroud. The jurors, arrayed along one side of the room, amounted to a faceless block. At one point Ford asked Jason to assess the jurors and tell him what he thought of them. But the request was pointless. As Jason later explained, “I wish I’d had glasses at the time, but I couldn’t see three feet in front of me.” When he’d asked Ford if his mom and brothers were in the courtroom, the attorney said they were not, that they could not be present because, having been listed as possible witnesses, they were not allowed to hear other testimony. Visually limited and alone, Jason braced for what lay ahead. It passed in a blur. Ford promised Jason that, when the trial was over and he was allowed to go home, he would personally buy Jason a pair of glasses.

  As Fogleman offered the state’s opening statement, Jason heard for the first time almost more than he could bear about what was known of the crime: the brutalities inflicted on Michael Moore, Stevie Branch and Christopher Byers. Fogleman told the jurors that, as the trial proceeded, “the proof ” would show “through scientific evidence, the statements of these defendants . . . and other evidence” that Damien and Jason caused the children’s deaths.49 However, even as the prosecutors called witness after witness to testify, it seemed to Jason that little they said had anything to do with him.

  But then, on March 2, the third day of testimony, Davis called a kid named Michael Carson to the stand. As the kid walked into the courtroom, Ford leaned over and whispered to Jason, “This kid is about to testify that you told him you killed the boys. Remember the judge’s orders: you cannot show any emotion.” Jason had no idea who the kid was, and Ford’s announcement was the first he knew of what Carson intended to say. To Jason’s amazement, he then heard Judge Burnett tell the jurors, “Ladies and gentlemen, you’ve already been told that . . . the evidence against both defendants should be taken by you and separated as it relates to each defendant. This witness’s testimony will relate only to Mr. Baldwin, and you should give no consideration whatsoever of this testimony to Mr. Echols.” Jason sat up, straining without success to see the witness. Jason was startled when Carson testified that he’d been in the juvenile detention center with Jason because he did not recognize his voice.

  Carson said that once, after he’d played a game of spades with Jason, “We was scraping up the cards. I said, ‘just between me and you, did you do it?’ I won’t say a word. He said yes and he went into detail about it.”

  Shocked, Jason whispered to Ford, “He’s lying!” But Davis’s questioning continued.

  “You said he went into more detail,” Davis said.” What did he tell you?”

  Carson replied, “He told me how he dismembered the kids, or I don’t know exactly how many kids. He just said he dismembered them. He sucked the blood from the penis and scrotum and put the balls in his mouth.”

  Jason knew he had never been alone with the kid and that he had never said such a thing to anyone. He later recalled that, when he expressed his alarm to Ford, repeating that what Carson said was a lie, the attorney reassured him, “The jury can probably tell.” But Ford never called Cureton or anyone who worked at the jail or who was incarcerated with Jason to challenge Carson’s testimony.50

  Later that same day, Fogleman called a member of the state police dive team, Corporal Joel Mullens, to testify about how, on Nov. 17, 1993, he’d searched the lake at Lakeshore Trailer Park “right behind the Baldwin trailer.” When Fogleman held up a knife for Mullens to see, the officer identified it as the one he had found in the lake, “straight out from the pier where we were searching in front of.”

  Again, Jason was stung. “I told Paul, ‘It’s been in the lake all this time.’ I talked to him until I was blue in the face. I was trying to think, ‘What can we do to lend weight to our word? There’s got to
be some scientific way of showing that this has been in the lake all that time, like rust or snails’ trails, something.’ I tried to emphasize that to Paul, but they never did any tests like that, so we never had anything to show the court about that knife.” Jason figured that, ultimately, the jurors were going to have to take the word of his mother and brothers about how, by whom, and—especially when—the knife had been thrown into the lake.

  Several times, one set of lawyers or another would ask to approach the bench to speak with Judge Burnett in private. Jurors could not hear these conferences, nor could others in the courtroom, including the defendants. These were moments when Jason could relax a bit, but there was no way he could know what the attorneys and the judge were discussing, unless his attorneys returned and told him, which usually they did not.

  In fact, many of those discussions focused on the trial’s most sensitive—most critical—aspect: the idea that officers Sudbury and Jones had first suggested, that the police and prosecutors had finally embraced, and that had attracted HBO to Arkansas—that the killings were part of a Satanic ritual. Unbeknownst to Jason, Ford argued particularly hard during these bench conferences to bar the prosecutors from mentioning anything related to cults, the occult, or Satanism. Fogleman and Davis were working equally hard to find a way to introduce those topics as indications, they said, of motive. Burnett ruled that the prosecutors could not introduce “the issue of cult involvement” unless he became convinced, during an in camera hearing, that there was “competent evidence to establish that the defendant was involved in an occult or occultic type activities and/ or that this crime is indicative of a ritualistic occult killing.”

  However, a recording of one of those in camera sessions suggests that Burnett went further than waiting for the attorneys to present such “competent evidence.” In a conference on March 3 that the jury could not hear, as Fogleman prepared to call Jerry Driver to the stand, the defense attorneys tried prevent Driver from testifying about his perception that Damien was involved in the occult. Though the official transcript of that discussion reflects only that Burnett said he would allow Fogleman to question Driver about having seen “Damien, Jason and Jessie walking in Lakeshore wearing black coats and carrying staffs,” the recording contains more of what was said. On it, Burnett can be heard inserting, apparently to the prosecutors, “If y’all want to spice it up a little bit and start talking about the devil, I’ll listen.”51 He followed the comment with a chuckle. Ford did not report the exchange to Jason.