As a result, in addition to hope, Jason embraced gratitude and patience. He knew how rare it was for someone in his situation— especially someone without money serving a sentence of life instead of death—to have an attorney. He appreciated Lorri Davis, Eddie Vedder, all the musicians, and all the supporters who’d made contributions, large and small, to the WM3.org website. He wished he could thank them all, and he considered it his role to keep faith with them. “I definitely wanted to be free—immediately,” he said. “But then, I also knew I didn’t want to do all this work and go into a retrial because we were hasty and get the same result as before. So I was always thinking, ‘If it means staying here a little longer and getting things right, that’s what I want, rather than blowing all my chances because we didn’t get all the work done correctly.”
When Tom Quinn, Philipsborn’s investigator, visited, Jason offered what he could—mostly, he said, by “rehashing” his alibi and providing the names of people he’d encountered in the county jail. Beyond that, he kept up with his case through Philipsborn and his own research in the library. “John would always send me the rough drafts of the motions he was going to submit, copies of letters he would send to the state, and copies of emails. If John had a phone conversation with Fogleman about the case, he would always follow it up with a letter to me about what they talked about, so there was a record of their conversations.”
When Quinn later returned to the prison, he brought messages for Jason from several of the people he’d already interviewed. Among them were Sally Ware, Jason’s former teacher; Joyce Cureton, his former jailer; and some kids Jason had known in school. “They all said, like, motivational things they wanted me to know because they knew Mr. Quinn would be seeing me,” Jason said. Quinn also reported on his visit to the West Memphis Police Department, where he’d checked out for the attorneys how evidence was being preserved.
The attorneys wanted a lot of physical evidence retested. Jason recalled: “The state said, ‘You can’t have everything tested.’ So, instead of fighting for everything, the attorneys broke the evidence into groups of what they thought was most important, less important, and so on. They said, ‘Let’s get an approved group going, and while that’s being done, we’ll fight them on the other stuff.’”
This was groundbreaking work in Arkansas. Requests to retest evidence in the West Memphis case would require one of the first applications of the state’s new law allowing scientific testing that was not available at the time of the prisoners’ trial. State officials opposed many requests for retesting on the grounds that they were not likely to provide exculpatory information. “I still don’t understand the state’s argument,” Jason said. “It’s not like the state was going to have to pay for it—even though the statute allows for the state to fund it. Our case was extraordinary in that a lot of people heard about it and were willing to fund the tests.” In fact, the state’s attorneys dug in, and battles to find out where some evidence was kept, what items could be retested, and what laboratory would conduct the tests would continue for almost three years.127
Jason had long ago learned to live with his disappointments with Paul Ford at his trial, but now he learned that Philipsborn had found reasons of his own to be dismayed. Ford, it turned out, had never personally checked any of the information provided by the state’s crime lab. Philipsborn believed attorneys had an obligation not to accept any of the state’s science at face value. So now, for the first time, investigators working for Jason were reviewing the crime lab’s work. While doing that, they discovered in Ford’s file a note that had never come to light before.
Its importance was hard to determine. The note was simply a brief message jotted down by someone at the crime lab on January 5, 1994—exactly two weeks before the start of Jessie’s trial. It stated that Fogleman had called about the “three West Memphis boys” and that he wanted to know “about overlays in re to weapon.” The note added that Fogleman had said it was “fine” to bill his office “for the photos.” But that was all there was to it. Though the investigators went to the crime lab and examined all the records there, they found nothing that appeared to relate to the note: no transparencies, no record of a return call to Fogleman, and nothing about “overlays of a weapon.”128
The discovery raised several questions. Crime labs frequently make acetate transparencies of weapons—knives, especially—in attempts to match them with markings left on a body. But nobody at either Jessie’s trial or at Damien and Jason’s had mentioned—much less produced—transparencies of a weapon from the crime lab. Yet at Damien and Jason’s trial, Fogleman had repeatedly suggested that the knife found in the lake behind Jason’s house caused the injuries to Christopher Byers. And in his closing remarks to the jury, Fogleman had used a knife and a grapefruit to physically demonstrate to the jury the mark that the so-called “lake knife” had made, while pointing out the similarities between those marks and the wounds on Christopher. It was an unscientific, unorthodox— and critics have said, unethical—demonstration.
Now the question loomed: Had the crime lab, in fact, made transparencies, or overlays, of the lake knife, as it appeared Fogleman presumed? If so, what happened to them? Were they not introduced at trial because they did not match the victim’s wounds? If so, who made that decision? And if the lab did not make transparencies of that knife or some other weapon, what was Fogleman referring to when he called? And why were there no other records—in the prosecutor’s, defense attorneys’ or crime lab’s files—that mentioned “overlays of a weapon”?
The memo was tantalizing because, if the crime lab had made transparencies of any weapon related to the case, the prosecutors were required by law to supply them to the defense. But, while no one could dispute the memo’s existence, no one could explain it, either. It would remain a mystery while Jason’s team continued its deeper probe. The one point the memo did make clear was that its discovery came years too late. Had any of the six trial attorneys examined the case records as Philipsborn now did, they would have found the memo, and if it had been introduced at trial, someone from the state would have had to explain it.
Years after the discovery, Philipsborn said, “While it’s certainly possible that discussions of the transparency slipped the mind of someone on the prosecution team, it seems to me that the existence of paperwork addressing the transparency is an important issue. Of course, had it been raised at trial, one of the possible ‘outs’ for the prosecutors is that they were not addressing the knife in question in connection with the transparency. But if that were the case, Dr. Peretti would have been able to give them that out.” As it was, the question was never raised, and Peretti never addressed it.129
“Few people are capable of expressing with equanimity opinions which differ from that of their social environment.”
~ Albert Einstein
Meanwhile, Jason understood why most of the legal activity playing out in court focused on Damien. All the attorneys had filed multiple motions to preserve evidence. But, while Jessie’s and Jason’s teams were working behind the scenes, Damien’s lawyers were also fighting before the Arkansas Supreme Court. In October 2003, Damien’s attorneys and lawyers from the state attorney general’s office stood before that court, offering oral arguments as to whether or not Damien should be granted a new hearing on the evidence in his case.
The court wasted little time. Before the month was out, it issued two rulings that stung Damien: the first denied his petition for a writ of error coram nobis; the second simply affirmed Burnett’s reasons for denying Damien’s Rule 37 petition. Explaining its agreement with Burnett, the court addressed one of the most troublesome questions of Damien’s case: whether or not his mental health at the time of his trial was good enough to enable him to assist in his own defense, as the law required. In Damien’s petition for a writ of error coram nobis, his attorneys had argued that it was not. When they denied that petition, the justices wrote:
“Echols’s first ground for relief is his claim
that he was incompetent at the time of his trial, in February and March 1994. He relies upon the affidavits of Dr. George W. Woods, dated February 9, 2001, and May 15, 2001, wherein Dr. Woods concluded that Echols was incompetent at the time of his trial, based upon his review of Echols’s prior mental-health records, the trial transcript, video tapes of Echols’s testimony, and interviews with Echols conducted in December 2000. Echols asserts that he has only recently been made aware of the extent of the mental problems that he was facing at the time of trial, and that his illness actually prevented him from being aware of his incompetency. He further claims that before and during his trial, he was administered drugs without his consent.”
The Supreme Court ruled that it was too late for Damien’s attorneys to raise these arguments. “The exhibits submitted with Echols’s petition and the records from his direct appeal demonstrate that the defense team was aware of Echols’s history of mental treatments at the time of trial,” the Court ruled. “For example, the report compiled by defense investigator Glori Shettles, which is contained in the trial record, reveals the extent of Echols’s mental treatments at the East Arkansas Regional Mental Health Center (1992-93), St. Vincent’s Hospital of Portland, Oregon (1992), and Charter Hospital of Little Rock (June and September 1992). Indeed, an entire volume of the record from his trial is devoted to the records from the foregoing treatment centers, as well as documents submitted by Echols to the Social Security Administration (SSA) for the purpose of obtaining disability payments. These are largely the same records that Echols now relies on to support his petition for a writ of error coram nobis.”
Jason knew from his many correspondents that for thousands of supporters, interest in Damien’s mental health, state of mind, intellectual pursuits, and tastes in art had formed the core of their case. It seemed forever ago that he and Damien had sat on the dock at Lakeshore dreaming of a life beyond the trailer park. Well, they had gotten out, he chuckled. And now, Damien was famous, as it seemed he’d somehow expected to be, and because of Damien’s charisma, and the woman he’d married, he, Jason and Jessie all had good attorneys. By the time the Arkansas Supreme Court rejected Damien’s petition, it was clear that he practically had developed a cult following, though nothing like the one Griffis had suspected.
Many who’d watched Paradise Lost had not seen Damien as a mentally disturbed teenager, but as a sweet, smart, Goth kid in a region largely unprepared for the idea that a person could be Goth and not somehow dangerous. Others had a decidedly different reaction, more than one remarking online, “You only have to look at him to know he’s guilty.” For better or worse, Damien aroused something in people. It was something close to fear, and Fogleman latched onto it. Jason could not imagine Fogleman trying to sell the jury on the idea that Jessie had once led anything, much less a Satanic cult. And Jason doubted that Fogleman would have dared to point to him and say, “There’s not a soul in there.” But Damien was different. At trial, Fogleman had been able to persuade jurors Damien was, in fact, the soulless leader of a Satanic cult, and when the jurors sentenced Damien to death, they compounded his charisma.
Its strength could be seen in 2003, when a couple donated space at their art gallery in Los Angeles for an exhibit featuring works about the case. The event was called “Cruel and Unusual.” About twenty nationally known artists, including Grove Pashley, one of the founders of WM3.org., contributed works to raise funds for the case. Jello Biafra gave a spoken word performance denouncing the death penalty. Actor Winona Ryder addressed an opening night crowd estimated at more than four thousand gathered in a parking area adjacent to the gallery. “We believe a terrible injustice happened ten years ago,” she said at the microphone. “an injustice that involved six young lives. Three are dead. Three are holed up in prison for crimes that we and millions across America believe they did not commit.” She added, “We would like to see Damien, Jason and Jessie given new trials—this time based on concrete evidence, actual facts, and substance—instead of rumors, prejudice, superstition, and what amounts to a modern-day witch hunt. We would like to see a real proper investigation to determine who really did kill those children.”130
At around the same time, Rollins, the spoken-word artist who had been supporting the men for so long, told a Utah newspaper: “The only thing separating these guys from a life of incarceration or death is the will of good people to do the right thing. At this point, that’s all. The state of Arkansas will not pay for the [DNA] testing. God will not pay for the testing. It’s just down to you, me, and anyone who gives a damn.”
On Dec. 31, 2003, the Supersuckers performed at a club called Slim’s in San Francisco. A young woman named Anje Vela, who booked bands in the area, attended. Later that night, she went to the band’s website, where she saw a banner for the West Memphis Three. That led her to the website of Henry Rollins. “I stayed up into the early hours of the morning reading all the court documents online,” Vela said. “I then ordered Devil’s Knot, and that’s when I was ready.” Vela said that what she learned about the case accumulated until a day when, “all these pieces somehow caused a little revolt within.” She began looking for ways to enlist musicians for the two-pronged effort to raise awareness about the case and funds for the legal work.
“It seldom happens that any felicity comes so pure as not to be tempered and allayed by some mixture of sorrow.”
~ Miguel de Cervantes
At Varner, Jason reunited with his old friend Smitty. He even helped Smitty find romance. One of the women who wrote to Jason had let him know that she was a fan of the Dallas Cowboys. “When she’d write to me, it was always ‘Dallas-Cowboys this’ and ‘Dallas-Cowboys that.’ Well, Smitty was always talking about the Dallas Cowboys too. So I wrote to the woman and said, ‘I tell you what. Why don’t you talk to each other?’” The two connected, love blossomed, and when Smitty got paroled, they married. Jason remained friends with both.
But 2003 ended in misery. In June, he’d passed the ten-year mark since his arrest. He’d just suffered a long bout of the flu. He’d felt the Supreme Court’s rebuke to Damien as “a drastic blow.” He was unhappy with what he called “the momentum” of his own defense and was thinking about asking the governor to grant him executive clemency, an act that until then had been unthinkable because it would mean begging forgiveness for the crime he had not committed. “I am considering this option,” he said, “because I see how slow Burnett is going to be about things, and I know how slow the whole court system is, and honestly, I am sick of it. I just want to go home and this is the quickest way I can see to get things done.”
This was Jason in despair. His girlfriend argued that what he had in mind was a bad idea. He hadn’t mentioned it yet to his attorneys. “But,” he complained, “they aren’t the ones behind bars.” He was sick, bitter, discouraged—lower than he’d been in jail, during his trial, or at any time so far in prison. But the real issue was not the flu or his case. The problem was with his heart, which was breaking. When he felt a little better, he said that he and his girlfriend were “in the midst of a ‘crisis’ and that he’d “just been plain old-fashioned blue.”
Maintaining a romance during a life sentence in prison sucked. And a social life limited to a few thousand male prisoners left a lot to be desired too. It didn’t help that 2004 was the year that Mark Zuckerberg began writing the code for a new website he called ‘Thefacebook’. The Internet was becoming increasingly personal and speeding the concept of social networking. But not for prisoners. While Jason hungered for the technology that was empowering his generation, he could not get his hands on it. He could use computers for work but not to connect to the wonderful Internet. In the spring of 2004, when Jason turned twenty-seven, other twenty¬somethings were connecting online—and even discussing him there—while most of his interactions were with a few free-world prison employees, the other white-suited inmates, and his watchful, key-jangling guards.
Yet, almost imperceptibly, the air around the case was changi
ng. Part of that change could be felt at the University of Arkansas at Little Rock’s Bowen School of Law, where students invited Judge John Fogleman to discuss how he’d prosecuted the West Memphis case.131 Instead, Fogleman prosecuted Devil’s Knot, a book of more than four hundred pages, that included four hundred and thirty endnotes. Displaying pages from the book on a projector, he said he’d found seven factual mistakes in it. The book stated that Fogleman had been a juvenile judge; in fact, he had been a juvenile prosecutor (as Jason well knew). The book claimed that Fogleman’s father had served on the Marion school board; that should have been his grandfather. It stated that Fogleman’s father had served as president of the Arkansas Bar Association, but again, that was the wrong Fogleman; his uncle had been the ABA president. The book also reported incorrectly that, after Jason’s arrest, he’d been given a dental x-ray.132 In addition, Fogleman said he’d found errors in the captions of some of the book’s photos. While none of those mistakes was damning per se, if you put them all together, Fogleman told his audience, you had a book with little truth in it. Fogleman said that such “sloppy” reporting demonstrated the author’s “lack of concern for accuracy,” and that her book, therefore, “should not be relied on at all.”133
The attack was basic trial strategy for discrediting a witness, the witness here being Devil’s Knot. Demonstrate some inaccuracies and generalize to plant doubt about the accuracy of every word. But if the technique worked with jurors, law students proved tougher. When Fogleman accepted questions, two of them asked him to address aspects of the case that were “more substantive” than the faults he’d found in the book. His response was to belittle criticisms he’d heard about the police investigation, his prosecution of the case, and the judge’s handling of the trials, describing them as “nonsense” and as examples of “how the West Memphis Three’s supporters mislead.” Fogleman concluded his talk by assuring the audience that he’d had personal experience with Damien Echols prior to the murders and he had found him to be “weird.”
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