Dark Spell

by Mara Leveritt

  “On the night the show premiered, we each received thousands of emails,” Sauls said. “I think the reason is that a lot of people are really moved by this story, and they want to connect with people who are involved—because they already felt connected.” Bakken, who managed the site, said that, before PL2 was shown, the site received between one hundred to two hundred hits per day. In the two weeks when the cable channel showed the film, that number jumped to more than seventy three hundred per day. Pashley added that the site had shipped out more than five hundred T-shirts that read “Free the West Memphis Three.” On March 20, 2000, Yahoo named the WM3 site its pick of the week.107

  On June 9, the website received another spike when, while accepting a trophy at the MTV movie awards, South Park co-creator Trey Parker exclaimed, “Free the West Memphis Three!”, Another came a month later when Access Hollywood showed an interview with Parker and his partner, Matt Stone. Parker was wearing one of the support fund’s black T-shirts imprinted with the WM3 site’s URL.

  For the website’s founders, work on the case became like a second job. “When I get up in the morning, I’m working on this case,” Sauls said. “And before I go to bed at night, I’m working on this case. Sometimes I have to remind myself to do some ‘work-work’ so I can make money to keep going.” By now, the HBO filmmakers and the website organizers understood that they’d become a thorn in the side of certain Arkansas officials who dismissed the media activity as uninformed, outside agitation. Gitchell complained, for instance, “People have been swayed by a slanted film and celebrities.” The activists dismissed the officials. “They say we’re Hollywood people sticking our noses where they don’t belong,” Sauls said. “But what happened in Arkansas is a threat to justice everywhere. It sounds corny, but that’s what I believe.”108

  “Always remember that the future comes one day at a time.”

  ~ Dean Acheson

  For supporters, all this activity looked promising. But that promise seemed only to agitate Arkansas. An unexpected light had been directed onto its legal system, and suddenly people from all over were criticizing what they’d seen. Such exposure to outside scrutiny was new to Arkansas judges and lawyers. For years, the legal profession’s response was no response. The case was simply not mentioned in public.

  That could not be said about conditions at Grimes. There, the situation remained bad enough that inmates took the unusual step of reporting them to media. Michael Haddigan reported for the Arkansas Times that the paper received “a score of inmate letters . . . complaining of beatings at the hands of guards assigned temporarily to Newport from a Wackenhut prison in Louisiana.” When Haddigan investigated, he wrote, guards and employees confirmed the mistreatment of inmates, though most employees spoke off-the-record. One guard, however, Joe Tagliaboschi, an ex-Marine, was willing to be quoted by name. He said the beatings were common knowledge throughout the men’s prison. “They were vicious,” Tagliaboschi said of the Louisiana guards. “They just didn’t treat the inmates like human beings.”109

  On April 22, 2001, Jason turned twenty-four at that prison. By then, he’d heard about an encyclopedia named Wikipedia that had just appeared online, though he hadn’t seen it, of course. Such a thing was hard to fathom. Though Jason worked on computers at Grimes, he was cut off from its great connectivity. Sites such as Wikipedia, along with so much of the technological revolution, belonged to the fast-changing world outside. It was digital, new and exciting—and as out-of-reach to him as driving a car, going on a date, or pulling on a pair of jeans.

  The upside of his birthday was that he got a visit from the girl he loved. Seeing her was always good. And he received a lot of birthday cards. Some supporters added money to his prison account, but most simply offered their friendship, along with words of hope.110 For the most part, though, his sense of the passage of time was just that every day dragged. When asked how he would describe his life to someone who’d had a more normal entry into adulthood, he said: “Go to your sixteenth birthday, and take everything that happened after that. Push it all aside, and replace it with prison memories.” He now had eight years of such memories—some stamped onto his body.

  One night at Grimes Jason awoke to discover that someone had broken into the locker under his bed. Jason told the barracks guard that he’d been robbed, but the officer did nothing. “So being the hothead that I was,” he recalled, “I went into the dayroom and started knocking things over, like big stacks of plastic chairs. I yelled, ‘All right, you bitches, you’re going to wake up!’ I went over to the first rack and yelled, ‘This is a shakedown!’ Then I went to the second rack, and lo and behold, I saw a bunch of my stuff there. I said to the guy, ‘All right, you and I are going to the shower and we’re going to fight.’ The officers couldn’t see you in there, and you could, so actually it was a cage match too.”

  Was the guy bigger than Jason?

  “Oh, yeah. Yeah. Yeah,” he said. “Most people were bigger than me. We called him ‘Bird’ and he probably had forty or fifty pounds on me. I remember he was a little bit taller than me and he had a lot more reach. He told me later on that he used to box.”

  Jason got the worst of Bird’s reach. “He put a big gash under my eye and meat came out, like a piece of hamburger meat, just hanging there. It was about the size of the end of your pinky digit. I thought my eye was put out there for a minute. A thin layer of blood covered my eyeball and congealed, and I couldn’t see. But the blood cleared in a minute or so. And, of course, half my upper front tooth was knocked out. So, yeah, he kicked my butt. Prison is very schoolyard.”

  Jason did not go to the infirmary for stitches. “I couldn’t tell them I was in a fight,” he said, “or they would have put me in the hole because I started it.” Instead, he showed up for work at the school. “Ms. Moon and the rest were all, like, ‘Oh, my God,’ because I looked a mess, with a tooth half-gone, and a busted tongue and meat hanging out of my face.”

  The immediate consequence of the fight was that Bird returned most of what he’d stolen. “He gave it to me,” Jason recalled. “He said, ‘You fought for it. You can have it.’” Once his face had healed, however, the broken tooth had to be addressed. The unit’s dentist told Jason that he was only authorized to pull what remained of the tooth. But here, Jason got lucky. Because of the wound on the face of victim Stevie Branch that some now believed was a human bite mark, dental impressions had been taken of Jason’s mouth when he still had all his teeth. Because those impressions existed, the dentist, who also had a private practice, was kind enough to make Jason a new false tooth that matched the one he’d lost. For Jason, the fight amounted to little more than a footnote to memories that included monstrous things like the beating at Varner and the gassing at Grimes. Still, in addition to several others, he’d always carry a scar under his right eye, along with his false front tooth.

  Prison was leaving its marks on Jason. That couldn’t be helped. But he tried not to let the place distort him or give it the upper hand by allowing it to reshape him into someone he did not want to become. With the exception of confidences shared with his girlfriend and a few people he considered “golden,” he kept his own counsel as he had since the night of his arrest. Now, however, he had the comfort of counsel from the outside. In confidential letters and phone calls, Philipsborn was letting him know all that was going on legally on behalf of himself and his friends in prison. In 2001, that was a lot.

  After the Arkansas Supreme Court affirmed Damien’s conviction, new attorneys had filed a Rule 37 petition for him, and Burnett had denied the petition. Now, in the spring of 2001, Damien’s even newer attorneys argued before the state Supreme Court that Burnett erred in denying that petition because he had not provided written reasons to support his denial, as Arkansas law requires.111 A month later, the Supreme Court surprised many observers by handing Damien’s attorneys their first victory—however minor—in the case. They agreed that Burnett had failed to explain his reasons for denying Damien’s Rule 3
7 petition, as required, and sent the case back to him with orders to do so.112 Even at that, however, the high court took pains to stress the narrowness of its ruling, noting that all of Damien’s other claims “are considered abandoned.” Finally, on July 30, Burnett issued his written findings, explaining why he did not believe that Damien’s trial attorneys had been legally ineffective: his ruling repeated almost verbatim the arguments the attorney general had submitted, and the high court accepted them without dissent.113

  Jessie was running into similar obstacles. Stidham had filed a motion to preserve evidence in the case and had amended his Rule 37 petition, noting that, “since Mr. Misskelley’s convictions, DNA and other forensic testing have advanced considerably.” But the attorney general’s office resisted those arguments too, claiming that Jessie had “failed to assert or establish any basis to believe that such testing would lead to any exculpable evidence.” That argument, articulated here for the first time, hinted at what would become the biggest battle in the case since the trials. It would come down to a battle over evidence and, especially in light of the new DNA law, how much—or how little—the courts should consider.

  Jason understood that his case, like Jessie’s, was “all about Rule 37.” Thanks to Stidham’s intervention, Jason’s petition had been filed in a timely manner. Now, with Philipsborn and Hendrix on board, work on it could proceed. Philipsborn filed a motion “to preserve evidence and for access to evidence for testing.” Jason said, “We can look at Dan Stidham’s petition like the catalyst. It was like the starter yeast. Then John came on and put in all the rest of the ingredients to keep it going.”

  Yet irony seasoned the fermentation. Rule 37 procedures focused on the conduct of a petitioner’s trial attorneys. Now that his own efforts in that regard were ramping up, Jason learned that one of his two lawyers back then, Robin Wadley, had recently been disbarred for unethical practices. Those practices had nothing to do with Jason’s case, and Jason realized that, compared to Ford’s, Wadley’s role had been pretty limited. Still, the juxtaposition of events presented yet another of the many peculiarities in this case that could drive a person crazy if he considered them for too long. Jason refused to dwell on them.

  Because Damien was sentenced to death, his case was expedited at every level. That—and the fact that he’d had attorneys all along, due to the severity of his sentence—partly explains why, in 2001, when Jessie’s and Jason’s Rule 37 petitions had still seen little action, Damien’s had already been heard—and denied—by Judge Burnett. Damien’s attorneys faced a complex situation, feeling themselves poised to bring his case to a federal court but constrained by requirements that, before doing that, they had to exhaust every state-level remedy possible. Knowing that the exercise almost certainly would mean little but further delay, they dutifully filed the required petition to bring Damien’s case back again before Judge Burnett, arguing that Damien was being illegally held.

  Jason felt sorry for Damien having to go through such discouraging legal contortions. While little was happening with his own case, Jason did not begrudge any of the time, energy, and money that were pouring into Damien’s. After all, only Damien had been sentenced to death. Everyone involved in the process now—the inmates, their attorneys, and the attorneys working for the state’s attorney general— understood that the strictures of law would dictate a different legal approach for each of the men. They also understood that, if Damien’s lawyers could unravel the prosecutors’ case against him, it would be hard for the state to hold onto its cases against Jason and Jessie.

  Besides the lift Jason got from the legal activity stirring in 2001, he could see on the prison’s television that something at least as vibrant was happening—not in court, but outside the courthouse. In March, when lawyers for Damien and for the state were presenting their oral arguments about Damien’s Rule 37 petition before the Arkansas Supreme Court, about a hundred supporters of the West Memphis Three stood side-by-side in front of the building. News reporters from the Little Rock and Memphis markets noted how unusual it was to see such a show of support at any oral argument, much less one held for convicted child-killers.

  The men and women standing in front of the Supreme Court building held a long strip of postcards, linked in plastic sleeves. They explained that founders of the website WM3.org had organized the event and that the postcards had been sent by people from throughout the United States and around the world who also supported the men but couldn’t be present. Sauls told a reporter that the peaceful demonstration was intended to raise an alarm about the case inside Arkansas, in hopes that officials and ordinary citizens there would take time to examine the police reports and the trial transcripts that were now online, and to delve “deeper into the justice system and look at things for themselves.”

  Grove Pashley, a professional photographer who also helped organize the event, recalled collecting and putting together the thousands of postcards displayed that day. “It made me so proud to see dozens upon dozens of WM3 supporters unfurling this banner in public around the Arkansas State Supreme Court building and the Arkansas Capitol,” he said. “Images like that re-enforced our hope that one day the system would right this wrong!”

  For the first time in history, it was becoming possible for citizens near and far to take a “deeper” look into the justice system, thanks to the Internet. The West Memphis case would demonstrate how far an interested public was willing to go to research a case, find official documents, and put them online so that people could decide for themselves what had and had not occurred, and who or what made sense—or didn’t. The demonstration outside the Arkansas Supreme Court attempted to combine the power of new media with the old tactic of direct action to target a state’s judiciary. Where it would lead—if anywhere—no one knew. One thing that was becoming clear, however, was that more and more ordinary people shared the feeling that Jason’s former teacher, Sally Ware, expressed in an open letter she’d sent to regional media. “I believe a young man has been in prison for eight years for a crime he did not commit,” Ware wrote. “I cannot stand by and be silent.”

  While Sauls, Pashley, Bakken and Fancher were in Arkansas for the courthouse event, they took time to visit Damien, Jessie and Jason in prison. They found Jason, at twenty-four, looking relaxed and comfortable in his frayed white uniform. He greeted them like the old friends they now were. He told them about his job managing the school’s database on a computer; about the college courses he was taking in anthropology, accounting and American politics (“to see what our government is built on”); and about how, in his time off, he liked to play computer games like Chess Master, Quake and Sonic.

  The Californians, in turn, plied him with questions.

  Jason, how has prison changed you?

  “I’m not as naïve as I was,” he said. “It’s made me more reflective on things I should be proud of and enjoy, things like freedom. I don’t take things for granted. I know you’ve got to love life, enjoy it—embrace it while you’ve got it.” He added, “Most people my age, if they go to college, they party. They have fun. They don’t stop and think as much.”

  Do you have any hard feelings?

  “I used to. But as I’ve grown and matured, I’ve come to understand that hard feelings don’t get you anywhere.”

  How do you feel about the justice system, about law enforcement?

  “They’re underpaid and overworked. There’s a lot of pressure put on these people—so much pressure that, to get the pressure off, they might make the wrong decision.”

  So what do you think is the real reason you’re here?

  “The real reason? Someone had to pay the price. I know I didn’t do it, and that’s the main matter. They shouldn’t be content just to say we did.”

  Then what about the jury?

  “I understand what people thought. I used to think that way too. To me, a ‘suspect’ meant ‘that’s who done it.’”

  Jason’s tone was cheerful, upbeat and confident. Whil
e he and his visitors understood that they faced an almost impossible legal challenge, they spoke as though success was practically a sure thing. They spoke about “when, not “if,” Jason got out.

  Jason, would you speak, like, on college campuses when you get out?

  Jason, one of the quietest guys in prison, nodded. It was easy to recall all the delusions he’d had about the justice system at the time of his arrest: beliefs that had been stripped from him, one by one in the months that followed. Since entering prison, he’d been stripped of another: the belief that courts routinely corrected trial errors through systems of post-conviction appeals. He now knew how rarely true that was—and that, if corrections were made, they were brought about only by powerful lawyering against a powerfully entrenched state, usually with the help of significant amounts of money and generally occurring many years late. He had only to look around him, at the men serving long sentences in near anonymity, to be reminded of how coming from nothing made the chances of such miracles remote.

  “I would definitely speak,” he answered. “This is happening all over America. It’s not just here. I’ve had this experience, and it shouldn’t go to waste.”114

  To Jason, visits like that were more than breaks in the monotony; they were priceless. The Californians cherished the visits as well, despite the toll they took. “We had a lot of difficult times over the years,” Sauls would recall, “but in my memories, the feeling that we all had when we were told that the visit was over and we watched the guards taking our friends back into the bowels of the prison while we all walked back to the parking lot and our rental car were among the most depressing.

  “We were free to decide where to go at that point. Lunch? Back to the hotel? Maybe we could go visit a friend or plan a dinner for that evening. We imagined that our friends in prison were taken back to their cells or barracks to an unimaginably frustrating half-life in a concrete box. We never left those prisons without tears in our eyes and that stunned silence that always came when the spell is broken. We would sometimes get so involved in conversations that we’d forget where we were; we were simply visiting with a friend. But then, they were hauled back into their nightmare, and the prison staff was holding the doors and gates open for us to leave and go back to our relatively wonderful lives—back home to our loved ones and families and our comfortable houses.”