Jason hoped not to die in prison, young or old, but he could see no way out other than death. His trial attorneys, Ford and Wadley, came to visit him once to show him the direct appeal they would be filing on his behalf with the Arkansas Supreme Court. The legal system had already brutally failed him. Yet Jason signed his appeal. “The only hope I had to hang onto,” he said, “was the system itself.”
Most people think, as Jason did, that the appellate system of their state and nation is dedicated to righting wrongs that occur in trials. That is only narrowly correct. Courts of appeal review trials to satisfy themselves that procedures were duly followed—in other words, that the trials were technically correct. These courts don’t want to second-guess juries. They rarely second-guess judges. Many have long-established practices of viewing disagreements “in the light most favorable to the state.” People filing appeals often lack the funds to hire attorneys, much less private investigators. And the points they can raise on appeal are limited. If the criminal system were a pyramid, the trial would be its broad base, where the opportunity to present evidence and arguments and to challenge proceedings is greatest. The direct appeal, such as Ford and Wadley had prepared for Jason, forms the next layer of the pyramid. But now, the pyramid is narrower, as are the arguments that can be presented.
The lawyers discussed the document with Jason and had him sign it. “I thought it should work,” he said. “I’m not an attorney, but it sounded good to me. I was always hopeful and never wanted to think that what’s going on is going to be hopeless. You always want to think it will open their eyes.”
Again, he hoped that the truth would matter to someone. But Jason felt that his conviction had placed him, not just out of sight, but out of mind as well. Much like his trial, his first year in prison passed in a literal blur. After he’d been there long enough to understand how prison operated, he requested an eye exam. As a result, the state of Arkansas issued him a pair of eyeglasses—the first he’d worn in his life. “Until then,” he said, “I really wasn’t aware of how blind I was.” But the cheap, state-issued glasses scratched and broke easily. Jason said, “Guys would be walking around with tape all over them, holding them together.” Eventually a friend on the outside smuggled in a better pair of contraband, free world glasses. Normally, guards overlooked the obvious violation, but they—and the inmates— knew that a crackdown (and confiscation) could come at any time. 72
In January 1995, Danny Williams, a drug counselor from Jonesboro, wrote an anguished letter to Jason about Michael Carson, the teenager who testified that Jason had confessed to him his participation in the killings. Williams explained that he had been Michael Carson’s drug counselor in the months before Jason and Damien’s trial and that he had told Carson what was publicly known about the murders. The letter gave Jason a new, clearer vision–something like getting glasses—that Jason could now apply, in retrospect, to his trial.
“Every word that he said in court was told to him by me,” Williams wrote. “This young man then went to the police and stated that you had confessed these details to him while in detention together.” Williams said he contacted Ford and expected to be called to testify as a witness for Jason’s defense, but that he later learned that he “would not be allowed” to tell the court what had happened. “I cannot tell you why because I do not know,” Williams said. “They said it had something to do with the fact that the information was privileged.” Williams continued, “Jason, I cannot begin to tell you how sorry I am. I have never done anything that I regret more than this incident . . . I would give anything in the world if I could take back the comments that I made or change what happened, but again, you know that is impossible.” Williams understood that his letter had no legal value.
As if to underscore that point, in February 1996, the Arkansas Supreme Court unanimously affirmed Jessie’s conviction, despite admitting qualms about his age and mental abilities. Ten months later, in a ruling handed down two days before Christmas, the court also unanimously affirmed Jason’s and Damien’s convictions.73 In the longest opinion the state’s high court had ever issued, it dismissed every one of the fourty-four points that lawyers for Damien and Jason had argued on appeal. The court found, for example,
• that Damien’s and Jason’s trials could be properly joined because “the crimes were part of a joint scheme or plan”;
• that the verdicts in their cases were supported by “substantial evidence”;
• that Griffis was an acceptable expert witness because he “had much more than ordinary knowledge of nontraditional groups”;
• that introducing evidence of Damien’s beliefs did not violate the First Amendment because those beliefs were “relevant to a crime”;
• that a book on the history of witches was relevant because it showed Damien’s “interest in the occult”; and
• that because “one witness testified that appellant Baldwin had told him that he had dismembered one of the boys, sucked the blood from his penis and scrotum, and put the testicles in his mouth, and [because] an expert on ritual killings stated that one of the facts that led him to believe that the killings were cult-related was that one of the victims had been castrated and had the blood sucked from his penis, there was sufficient evidence of appellant Baldwin's participation in occult activities, and the trial court correctly allowed the evidence.”74
That opinion, written by Associate Justice Robert H. Dudley, came as a blow, but by now, Jason was getting used to blows. “You always want to hope,” he said. “But when the news comes back negative, you’re not even shocked. Then something else would get filed and you’d get hopeful again.”
After that, Jason saw no more of Ford and Wadley.75 He was without a lawyer, and though he did not know it, he was in urgent need of one. When the Supreme Court affirmed his conviction on direct appeal, that ruling started a crucial clock ticking. Jason did not understand that the clock resembled one on a bomb, or how, once it detonated, hopes he might have had would be lost. That was something else that kids aren’t usually taught in civics. In the world of law and prisons, however, the countdown now underway mattered enormously—whether he knew it or not.
The legal reality was, now that the state Supreme Court had affirmed Jason’s conviction, his options were rapidly narrowing. He had few opportunities to appeal left, and his time to file the next one was running out. He needed to file a petition claiming that his attorneys had not adequately represented him. In Arkansas, that appeal based on “ineffective assistance of counsel” is called a Rule 37 petition.76 Many inmates never file Rule 37 petitions because they lack an attorney, they don’t understand the requirement, and the time allowed for them to file runs out. If that happens, the failure at this stage of the process can block all future attempts at redress. If Jason did not file his Rule 37 petition in time, he would be “procedurally barred” from ever presenting that claim. Yet Jason, at nineteen, did not know this. His trial over, he no longer had a state-appointed attorney, and his mother certainly could not afford to hire a private lawyer. He was quite alone.
But then, unexpectedly, a lawyer who had no obligation to Jason stepped in to help. Jessie’s attorney, Dan Stidham, paid Jason a visit. Stidham knew that, because Damien was sentenced to death, he would be appointed a federal public defender. Stidham knew that he was going to stick with Jessie, to see that his Rule 37 petition got filed. However, he also recognized that no one was looking out for Jason. After the state Supreme Court’s ruling in December 1996, the youngest of the three West Memphis defendants had no one.
Of the six attorneys who had been appointed to represent the accused teenagers, only Stidham was—and remained—outspoken about his client’s innocence. Now, having filed what amounted to an ineffective-assistance-of-counsel petition against himself on behalf of Jessie, Stidham went out of his way to help Jason file the same petition for himself. Stidham made the long trip to the prison at Varner to help Jason compose a Rule 37 petition that he could file pro se, o
r “for himself.” Because of that kindness, Jason was able to file the crucial petition in March 1997, before the court’s deadline passed.77
From the vantage of prison, courts appear indifferent to time. While the legal process ground on, Jason’s life at Varner did too. Day followed day amid the yells and smells, sights and fights, chaos and general perversity of mass incarceration. A raw brutality charged the place, making life hard for everyone there. For Jason, the experience was harsher still because of the general assumption that he had sadistically murdered children. “When I was working and around people daily, I’d tell them I didn’t do it,” he said. “But they didn’t care. Most of them said, ‘Well, that’s what they all say.’ Others said, ‘So you’re a murderer and a liar too.’ It was like I was on trial every day with every person I met.”
Except for a few people like Mojo—and Clayton “Smitty” Smith. Smitty was serving fifteen years for the armed robbery of a gas station. He and Jason were close to the same age and had entered Varner at close to the same time, but Smitty’s background was different. He’d graduated from high school and become a Marine. “But when he got out,” Jason said, “he got in with the party crowd. He tried something that no one should ever try because once you try it, it’s got you. He got into drugs.”
In prison, Jason said, “Smitty grew up a lot. He changed and got off those drugs. He was driven to achieve and excel. He didn’t whine and cry a lot about what he was going through. And he had good taste in music. He liked the same things I did.” The two became good friends.
Smitty’s rack, or bunk, was next to Jason’s. “One day his laundry didn’t come back,” Jason recalled. “He was a field clerk and he had to go to work. Well, I had a clean shirt, so I said, ‘Take it. Go to work, and when you’re done, stop by the laundry and pick up yours.’ Of course, my shirt had my name—‘Baldwin’—on it.
“At end of the day, he gave me back my shirt and he said, ‘I’m sorry, man. I will never ask to wear one of your shirts again.’ When he came out wearing that shirt that said ‘Baldwin,’ the field boss saw him sitting in the field security area and thought he was me and he flipped out. Smitty was like, ‘Just one minute in your shoes, and I’m ready to get out of it. All that hate. I’ve never experienced it.’ I was like, ‘Yeah, you get used to it.’”
“there is a crack in everything. that’s how the light gets in.”
~ Leonard Cohen
Outside the prison, however, the hate that had surrounded the trials where the trials were held and that now followed Jason in prison was meeting a challenge. Call it amazement. Or curiosity. Or both. In June 1996, HBO released Paradise Lost: The Child Murders at Robin Hood Hills, the documentary film that Berlinger and Sinofsky made from footage they’d recorded before and during the trials. While Jason endured the danger and humdrum of prison, the film that became known simply as PL1 was introducing him, along with Damien, Jessie, the families of the West Memphis victims, Fogleman, Davis, and Burnett—all the players in the West Memphis saga—to the world. The documentary would win two Emmy awards and raise viewer interest in the trials.
“The film is really about the justice system, about poor man’s justice,” Sinofsky later said. “It’s about the sadness and the desperate nature of trailer parks in poor America. But in many ways, it’s also a life-affirming film. It makes you look at your own children and the people you love a little more intently. You can see how fleeting life is.”
At first, neither Jason nor anyone he knew had seen Paradise Lost, but as years trickled by, new people entering prison would come to him and say, “Hey, I watched the video.” Officers let him know that they were pulling for him. “That helped me a lot,” he said, “all through the years.”
Jason began to get excited letters from people who’d seen the film. “They were amazing,” he said. “In them, there were so many nuggets of hope: people saying, ‘We’re not going to give up,’ and ‘We’ll do whatever we can to make sure this case isn’t forgotten.’ One of the letter-writers, a teenage girl in Arkansas, became a regular correspondent and remained a bright spot in Jason’s life for years. Three others, Kathy Bakken, Grove Pashley, and Burk Sauls, friends in Los Angeles, were moved enough by the film to call Arkansas officials to inquire what had become of Jason, Jessie and Damien since their convictions. When the Californians learned that the appeals had been denied and that they were all still in prison, Kathy, Grove and Burk—or “KGB” as they became known—wrote to the men and followed their letters with a visit to Arkansas, where they met with each of the men in prison.
Bakken was surprised by her meeting with Jason. Of the three, she found him to be most different from the kid she’d seen in the film—“a deer in the headlights,” as she recalled. “Nowhere do you get a sense of how sharp and quick and optimistic he is,” she later reported. For all his youth and naivety, she saw him as “the brain.”
While in Arkansas, the Californians also contacted Stidham. Pashley remembered sitting in the attorney’s office on Nov. 1, 1996, and viewing the crime scene and autopsy images of Stevie, Michael and Christopher for the first time. “Once I saw these images firsthand,” he said, “I knew that there was really no turning back from this thing.” Out of that experience grew the website WM3. org and the call to “Free the West Memphis Three.” Soon, a fourth California supporter, Lisa Fancher, would join the fledgling effort.78 In a stroke, the three Arkansas trailer-park kids had a unifying name. They were the West Memphis Three, or the WM3 for short. And they had a slogan demanding their freedom.
A documentary film, serious viewers and compelling questions combined with the fast-forming Internet to forge a movement unprecedented in U.S. legal history. As it began to grow, “Lots of people wrote letters to me,” Jason said. “The most common denominator of what they wrote was, ‘We believe in you,’ ‘Hang in there,’ ‘We’re praying for you,’ ‘We’ve got your back.’ It’s an amazing thing when you get letters every day from people you don’t know. You’ve got the very real possibility that your best friend will be murdered by the state, and at the same time, you get letters like these.” Many correspondents said they were writing to Damien too.
People sent books through Amazon.com, so Jason always had something good to read, and many also sent money, which went into his commissary account, from which he could buy items not issued by the prison. The amount there ebbed and flowed. Any time his account topped $500, Jason sent the money to his mom. “The amount of support was just extraordinary,” he said. “If it weren’t for all those people, life in there would have been horrible—a lot worse than it was.”
Though hundreds of letters made their way to Jason, Damien, and Jessie as a result of Paradise Lost, most viewers who were moved by the film never contacted the men. A dentist in Tennessee said his initial reaction to Paradise Lost was that “the West Memphis Three were probably guilty and the state’s case wasn’t portrayed accurately by the filmmakers.” He added that, “Like most people, I trusted the authorities more than Hollywood.” A woman in Oklahoma recalled that after watching the film when it premiered on HBO, she and her husband “just looked at each other and said, ‘What the fuck just happened there?’” When Paradise Lost made it to European TV, it gripped a twenty-one year-old man in Denmark who had never before heard of the faraway case. After seeing the film, he said, however, “I couldn’t stop thinking about it.”79
Some viewers with similar reactions began Internet chat rooms, where strong feelings flew back and forth about the brutality of the murders, the quality of the investigation, the conduct of the trials, and the defendants’ guilt or innocence. For a long time, the documentary, the book Blood of Innocents (which was published in March 2000) and viewers’ reactions to what the film and book chronicled were about all the public discussed. But gradually, in addition to the Californians, a few people from Arkansas, Tennessee, and elsewhere began going to the West Memphis Police Department, the Arkansas Supreme Court, and other public sources to search for case-relate
d documents. As these primary sources were located, they were copied and put online.
The Tennessee dentist said that’s when he got “emotionally hooked” on the case. “Reading actual case documents and the strong opinions from both sides drove me to try to find out what really happened,” he said. The woman in Oklahoma found the WM3.org website, “and immediately, that day, put a check in the mail” to get a “Free the West Memphis Three” t-shirt. Christian, the man in Denmark, said, “For the first six months or so, I was going back and forth in my mind as to the WM3’s guilt or innocence on a daily basis. There wasn’t a lot of information available on the Internet back then, but after reading it all, and particularly after learning that Jessie Misskelley had made a post-trial confession, I came to believe they were guilty.”80
Though unnoticed by most of the world—and certainly by officials in Arkansas—a storm was beginning to form. Media in the Memphis/ West Memphis area reported on the release of Paradise Lost. A Memphis paper quoted Sheila Nevins, the HBO senior vice president behind the documentary, voicing doubt about the verdicts. “I think that if reasonable doubt is the issue in this country, not so much guilt or innocence, then there sure is reasonable doubt there,” she said. “These kids were guilty until proven innocent. But they weren’t sophisticated enough to prove it.”81
Some news, like reports on the HBO film, filtered into prison TVs. Guards and newly sentenced inmates brought in other news. Letters and visitors carried still more. One way or another, Jason heard a fair amount about some of the people he’d known back in Crittenden County. He heard, for example, that shortly after his and Damien’s trial, Chief Inspector Gary Gitchell, who’d led the investigation into the murders, had resigned from the department and moved across the river to Memphis. He knew that, soon after the trial, Fogleman had run for judge and been elected. He heard that Jerry Driver, the juvenile officer who’d given Damien so much trouble, had resigned from his job after an audit of his department revealed missing funds, and that Steve Jones, Jason’s own probation officer, had also soon resigned and left Arkansas.82
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