The same month that Fogleman spoke in Little Rock, a friend sent Jason a copy of the Arkansas Times, in which Damien’s wife, Lorri Davis, spoke publicly for the first time about her marriage. Because of Damien’s recent setbacks in court, she said she felt “compelled” to try to explain why she loved him. “I see how he has been portrayed in the media, and I understand that the perception of him here in this state is still, largely, that he is, first of all, guilty and that he’s also evil and scary. And I see that, with some very, very important exceptions, he is still portrayed that way. I want to try to change that. I cannot just sit back any longer and not speak out for him.” She also explained the work she was doing on Damien’s behalf. “I’m his voice,” Davis said. “Because of where he is, he doesn’t have one. I work with his attorneys. I help raise funds for the three cases. I work with people who want to help in any way they can. I’m working to get the truth out. And it will come out.”134
For Jason, however, the year that began as “blue” in January had turned utterly bleak by April. The eight-year friendship-turned¬love that he’d shared with the girl-turned-woman from Little Rock was definitely, dismally, finally over. He was in prison for life. She was 24 and free. And in her free world, she had met someone else. Intellectually, Jason understood. She could not be expected to share his entombment. But understanding did nothing to keep his heart from breaking.
Jason quit being the model prisoner, the good guy who worked in the library, the inmate who could be counted on to counsel more troubled souls. “It was emotionally difficult,” he would later say mildly. Then less mildly: “For a little while, it pissed me off. I’d had this attitude that if I did good and obeyed all the rules, I’d get through this and we’d be okay. But that’s not what happened.” He smoked weed recklessly. “It’s pretty easy to find in there,” he said. “Usually, there’s a few people who get it regularly. I usually paid five or ten dollars for a joint. It just depended. I did it every now and then, but this time I just did it with a negative frame of mind and bad attitude. I really think it was my negativity that invited negativity. I just fell into this ‘woe is me’ mode, like it didn’t matter what I did, just like me getting out didn’t hinge on whether I’d really killed anyone or not. It was a weird frame of mind for me.”
Predictably, Jason was caught and sentenced to thirty days in punitive isolation—the hole. He was knocked back to Class 4 status and lost his job in the law library. But by the summer’s end, he was doing better. “Whereas earlier, I was literally despairing,” he said, “now I’ve regained composure, set a goal, formulated a plan to get there and am on my way.” He’d been released from solitary a few days earlier but would remain on punitive status, without commissary, telephone, or visitation privileges for another week. He intended to rebound, first by enlisting in the prison’s boot camp program. “It is very rigorous and strict—however it will permit me to regain my Class I-C status sixty days quicker than if I went through the hoe squad. Also, once completed, I will regain a modicum of respect from the prison administration. My former employer, Mrs. Williams, has promised my job back as soon as I graduate. Mostly though, I am doing this to regain some of my own respect for myself. I do not like excuses and refrain from using them. However, I did just that—I made up excuses to break rules, feel sorry for myself, and do things I just do not do, and for that I am paying the price.”
In that dark year of 2004, Jason’s wish for his twenty-seventh birthday—after the impossible one of a prompt release—was that Metallica would come to see him and, while they were there, put on a concert at Varner. It was an absurd thought: getting the Arkansas Department of Correction to allow a famous heavy metal band to perform in a maximum-security prison. At times, though, it seemed that it would be easier to get Metallica into Varner than to get three innocent men out.
Strangely, it may have been Judge Burnett who gave Jason his best birthday present that year, when he approved requests for new tests of certain evidence. Almost since the time Philipsborn had taken over coordination of the three defense teams, he and Michael Burt of Jessie’s team, in consultation with Barry Scheck of the Innocence Project, had been negotiating with Prosecuting Attorney Brent Davis to have a long list of items from the crime scene tested—and, in some cases, retested. After a lot of “wrangling,” Philipsborn said, the sides settled on two lists of items to be submitted to Burnett. Because of the DNA law enacted three years earlier, in 2001, Burnett signed two orders—on Feb. 20 and June 2, 2004—authorizing the transfer of more than eighty items from the Arkansas crime lab to an independent laboratory equipped for DNA testing.135 Burnett noted: “...the parties have agreed that biological material found on the...evidence has the scientific potential to produce new...evidence which may be materially relevant to the defendants’/petitioners’ assertions of actual innocence...”
Now, for the first time since the arrests eleven years earlier, there was a chance of finding new evidence and bringing it to court. Burnett’s order was exact. It spelled out who would conduct the tests (the Bode Technology Group in Springfield, Virginia), who would pay for them (the defendants), how the chain of custody would be preserved, and precisely what items were to be tested. Among those items were “one package containing ligatures from wrists to legs, right and left of victim Moore”; “two dark Caucasian hairs removed from Branch”; a “hair found on Byers’ body”; a “Negroid hair removed from a white sheet”; and a “Kershaw folding knife.” The order noted that the state reserved the right “to object to the relevance of any results of testing,” while the inmates reserved the right “to litigate the legal and scientific validity of any of the state’s objections.”
Jason knew that the law operated on its own, sedate sense of time. He paid for hope with patience. Fortunately, news from Philipsborn kept him encouraged. For example, Jason knew in 2004, that Tom Quinn, the San Francisco investigator, was spending months in Arkansas, knocking on doors and asking delicate questions. While Jason watched news of funeral arrangements for former President Ronald Reagan in June of that year, Quinn was in Jonesboro, talking to Danny Williams, the counselor who had written the sorrowful letter to Jason about how he feared he’d inadvertently given Michael Carson some of the information which Carson had used against Jason, presumably in hopes of receiving favors in return when it came to his own prosecution.
Quinn asked Williams if he would describe his encounter with Davis in a sworn affidavit, and Williams agreed. As Williams had written in his letter to Jason, he said he’d been “shocked” when he’d learned that Carson, a counseling client of his, planned to testify against Jason. Fearing that he’d inadvertently given Carson the information he planned to use against Jason, Williams had contacted Paul Ford, expecting that Ford would call him to offer testimony that would discredit Carson.
Instead, Williams said in his affidavit, shortly after he spoke with Ford, a law enforcement officer came to his house “with some form of paperwork” which Williams “took to be either an order or subpoena.” It was a demand that he meet with Brent Davis. Williams told Quinn that he was taken aback by the formality of the summons, since he and Davis knew each other through work and a phone call would have sufficed.
The formality continued when Williams met with Davis, and the prosecutor told him he wanted to take a sworn statement from him and then recorded “some” of the interview that followed. Williams found it disturbing that Davis, who had some influence over Williams’ job, asked him why he had contacted the defense lawyer. Williams said Davis “explained his concerns” about his having done that and that Davis “seemed upset” and apparently felt that Williams was “out of line” for offering to testify “that Michael Carson was not telling the truth about how he had received information about the West Memphis murder case.”
The other surprise awaiting Williams came at Jason’s trial. While Carson did take the stand and describe hearing Jason say that he and Damien had killed the three West Memphis children, “sucked blood from a
penis,” and “played with the balls,” Ford never called William to testify—something Williams said he could not understand.
Williams told Quinn that he heard later that Ford said he did not call him as a witness because he was changing his statements about Carson and Ford therefore considered him an unreliable witness. But Williams said that was not true and that “at no time” did he “recall having done that.” Williams said emphatically, “I would have testified truthfully, and would have set forth the evidence” he’d related to Quinn.
The affidavit raised troubling questions for Jason. He could understand Ford not wanting to call a witness who might say one thing in private but change his testimony when called to the stand. That would only look bad. But here was Williams saying under oath that he had no intention of changing his testimony. Furthermore, the law required, that if Davis recorded an interview with Williams, the prosecutor was required to provide the tape—or a transcript of it—to Ford. If Ford had that tape or transcript of sworn statements Williams had made to Davis regarding Carson’s credibility, Ford could have used them to challenge any changes Williams may have attempted to make at the trial. So why had Ford not called him?
Jason found it hard to fathom the significance of Williams’ affidavit. He found it especially troubling that Williams stated, “I was concerned that Mr. Davis was upset with me. Our professional relationship was such that he could have contacted me informally about the matter, and asked me to talk to him. He chose to have a law enforcement officer come to my house . . .”
Since his trial, Jason had directed many of his thoughts at Fogleman. Now he considered Davis. Williams told Quinn that he needed to maintain good relations with county officials to keep his job. From the affidavit, it appeared that Davis had used police power, along with his own position as chief prosecutor, to intimidate a witness. And not just any witness. Williams was the one witness whose testimony could have damaged the credibility of Michael Carson, the only person prosecutors had found to offer substantial evidence against Jason.
Yet, Jason thought, if Davis had indeed attempted to intimidate Williams, the tactic would not have been new. Jason recalled his teacher Sally Ware telling him that she had wanted to testify about Jason’s character, but that her principal had told her that to do so would violate student-teacher confidentiality and could be grounds for firing. It reminded him of Mrs. Cureton at the jail, who’d also wanted to testify for Jason but who’d gotten an order from her boss, the sheriff, to get out of town so she could not be served with a subpoena. “This was not an isolated event,” Jason said. “This was a pattern, a way of doing business.”
It didn’t even take knowledge of such nasty details for others to detect an unsavory whiff to the legal “business” in Arkansas. In the fall of 2004, the Canadian publisher Arsenal Pulp Press, released a book titled The Last Pentacle of the Sun: Writings in Support of the West Memphis Three. It was a collection of writings, fiction and non¬fiction, that touched on the crimes and convictions.136 For Jason, the attention from a foreign publisher was gratifying—another sign of how far concern about Arkansas justice had spread. And in October, a cover story in the Arkansas Times raised another concern.
Victoria Hutcheson told Little Rock writer Tim Hackler that her testimony about witches and occult activities at Jessie’s trial had been a “complete fabrication.” Hutcheson claimed that West Memphis police detectives told her what to say, threatening that if she did not testify as instructed they could take away her son, Aaron, and implicate her in the slayings.137
Jason remembered Hutcheson from the only time he’d actually seen her: a strange encounter that took place between the murders and his arrest. He remembered Jessie showing up unexpectedly at his house, explaining at the door that a friend of his in Highland Trailer Park wanted to meet Damien. In fact, Jessie said, she was outside right then, waiting in a truck. Damien was at Jason’s house, and at Jessie’s request, he’d gone out and gotten into the truck with Jessie and the woman. “They went to her house,” Jason said. “That’s where she tried to entrap him.”
While Jason was surprised by Hutcheson’s reappearance ten years after the trials, Jessie’s attorney was not. Stidham, now a district judge, told Hackler, “Vicki Hutcheson’s testimony was crucial to the prosecution because it was the only real corroboration that they had for Misskelley’s ridiculous statement to the police. Even though she did not testify in the next trial of Echols and Baldwin just two weeks after Misskelley’s trial, everyone on the jury in Jonesboro knew about Misskelley’s statement and Hutcheson’s testimony.” Stidham said, “Hutcheson’s recantation of her trial testimony was “not all that shocking” to him because he had always believed she was lying, but that, “The real shocking thing to me about her recantation is the level of misconduct on the part of the West Memphis police. It obviously knew no boundaries.”
Hutcheson told Hackler that, at the time of the trials, she was desperate and willing to go along with a scenario about Damien driving her to an “esbat” or witches’ orgy that Jerry Driver had dreamed up. “Every word of it was a lie,” she said. Since then, she’d been to prison four times on drug and hot-check charges. She was still on parole when interviewed by Hackler. When he asked why she was refuting her testimony now, she credited a prison ministry:“ I learned in order for God to forgive me, I had to clear my conscience.”138
Mike Allen, the former detective who helped recover the victims’ bodies, was now the police department’s assistant chief. He told Hackler, “It appears that Vicki Hutcheson is trying to get her fifteen minutes of fame.” He questioned why it had taken her more than eleven years to come forward with her claim of police coercion. The only other observation Allen had to offer was that “The case gets more bizarre every day.”
That was one of the few points upon which everyone involved could agree. By now, Damien and Lorri had changed legal teams again, opting to hire Dennis Riordan and Donald Horgan, two prominent San Francisco trial and appellate attorneys.139 Damien’s legal position had become so complex that they found themselves in the unusual position of not even knowing which court—state or federal—they should now be addressing. On Oct. 28, 2004, Horgan, attorney Theresa Gibbons, also of San Francisco, and attorney Deborah R. Sallings of Little Rock, filed pleadings on behalf of Damien in both the Arkansas Supreme Court and the U.S. District Court in Little Rock. On the first page of each, in bold type, was the required notice: “THIS IS A CAPITAL CASE.”
The motion filed with the state Supreme Court—a mere six pages, plus exhibits—argued that the high court should reverse its ruling affirming Damien’s conviction because of the case’s “extraordinary circumstances.” Those, the attorneys explained, were the discoveries recently made during interviews with Damien and Jason’s jurors.
“nothing is so firmly believed as what is least known.”
~ Michel de Montaigne
Investigators for all three of the men in prison had been digging into what had gone on during the juries’ deliberations. In speaking with jurors from Damien and Jason’s trial, they learned that one juror’s knowledge of Jessie’s conviction had played a “large part” in his decision. Without that, the juror said, he’d found the evidence against the defendants thin.140
Another juror stated under oath that she too knew Jessie had already been found guilty. She told Quinn that she’d kept a set of “good notes” during both the trial and deliberations—and that those notes, which she provided to Quinn, clearly reflected consideration of Jessie’s conviction. “In my view,” she said in her affidavit, “based on my own background and beliefs, Damien Echols seemed to me to be Satan walking alive.”
Yet another juror reported that being on the Echols-Baldwin jury “spooked the hell” out of him and that he’d “never felt so scared.” According to Quinn, this juror had said, “He couldn’t sleep at night and ‘felt he could hear noises outside and would look out the window.’ His fear was the result of the talk of those kids being part of a cul
t, and looking into the audience and seeing the victims’ families and the families of the accused. The accused had their families there as well as friends, some dressed in black with straight black hair and cult symbols.”
This same juror told Quinn that he feared that, if the jury voted for guilt, “some of those people who were free on the street might seek revenge and kill him.” Quinn wrote that, although the juror said he was never personally threatened, “he felt that something could happen to him.” Quinn reported that, “Since the kids on trial were not afraid to kill, [the juror] said he thought, ‘maybe they had friends or were part of a cult that was capable of killing.’” Later in the interview, the juror reported that he’d seen “a girl in the gallery with black lipstick, black hair, the gothic look.” Quinn quoted the juror as telling him that, “When he looked into the gallery, where Echols’ people were sitting, he saw those kinds of people and thought, ‘They’re going to kill me.’”
To Philipsborn and the other attorneys, this was important stuff, especially the information that the jurors had considered Jessie’s statements to police and his conviction at Damien and Jason’s trial. Those matters had tainted Jason and Damien’s trial, in violation of the U.S. Constitution. The attorneys’ sense that this single matter could lead a court to require new trials for the men was reinforced when investigators discovered lists of “pros” and “cons” that had been created by the jury on flip boards during the 1994 trial. The sheets clearly showed Jessie’s statements as weighing against Damien and Jason. These pages, along with the jurors’ statements, were submitted under seal to the state Supreme Court. Damien’s attorneys argued that, in light of them, the jurors “considered collectively, must be found … to have been biased against the defendants.”141
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