Dark Spell

by Mara Leveritt

  But as far as the Arkansas Supreme Court was concerned, this was old ground already covered. It lost little time in denying the motion. For one thing, the high court ruled, Damien was late in asking. “It has been more than ten years since Echols’s conviction,” the justices said. “This fact clearly demonstrates that Echols did not exercise due diligence in bringing his claims to light—especially in view of the fact that the point on which he relies (the jury’s alleged consideration of Misskelley’s confession) was known to the court, the prosecutor, and to Echols’s defense team at the time of trial.”

  The Arkansas Supreme Court further explained, “In his memorandum brief, he [Damien] points out that, during trial, the trial court denied his motion for a mistrial when one of the police witnesses inadvertently mentioned Misskelley’s statement. At that time, the court [Judge Burnett] stated, ‘I suggest … that there isn’t a soul up on that jury or in this courtroom that doesn’t know Mr. Misskelley gave a statement.’ Thus, Echols should have been aware from the time of his trial and conviction of the possibility that the jury might have been aware of and considered this extraneous information.”

  That response surprised none of the appellate attorneys. The state of Arkansas had been telling them in every way it could that it was through with this case. For that reason, Damien’s lawyers had simultaneously gone to federal court with their petition for a writ of habeas corpus. The roots of this kind of appeal trace back almost eight hundred years, to when sheriffs in England’s countryside put people in jail and kings decided that they had a right to know why the physical body, or corpus, of a person was being held. In the mid-1700s, William Blackstone, an English judge, put it this way: “The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.”142 In modern times, the writ has evolved into a legal action that requires a person under arrest to be brought before a judge to ensure that the prisoner can be released if the arresting agency cannot show that it has sufficient cause or evidence to hold him. The principle is that the state may not “have the body” (habeas corpus) of an innocent person. Damien’s state petition for a writ of habeas corpus had been denied. Now he was bringing that petition to a federal court.

  Damien’s federal petition argued that the Arkansas Supreme Court was wrong in rejecting the claim that Damien’s (and Jason’s) trial had become unconstitutional when the jury considered information about Jessie’s confession, and that the state’s high court had wrongly rejected Damien’s Rule 37 petition, citing failures by his trial attorneys. Because the state Supreme Court had dispensed with those two issues for the final time, the petition said, Damien now had the right to ask the federal court to review the constitutionality of his trial.

  But Damien’s federal petition was complicated by the fact that Burnett had approved the DNA testing of materials found with the bodies, and those tests were still being conducted. A federal judge had to consider that the DNA test results remained an open question before the Arkansas courts. For that reason, Damien’s lawyers asked the federal court either to grant the writ of habeas corpus or to hold it in abeyance until Arkansas issued its final ruling regarding the forensic tests.143

  And so another Christmas came and went. Another new year began. In February 2005, the video-sharing website YouTube.com was launched. By the end of the year, it would have more than one hundred million views per day—none, of course, by Jason. Technology, even of the stupidest kind, could move at the speed of light, but legal matters concerning an individual’s life and liberty moved at the speed of a horse-drawn wagon. A month after YouTube’s launch, Arkansas’s attorney general asked the federal court to dismiss Damien’s habeas corpus petition because the state DNA matters had not yet been resolved.144 “One can only speculate to what extent the results of the DNA testing will affect the case,” Attorney General Mike Beebe wrote, “and, potentially, given the already-lengthy history of this case, those matters could be litigated in state court for years to come.”145

  In August 2005, U.S. District Judge William R. Wilson, Jr. disagreed with the attorney general. He ordered that Damien’s petition be held in abeyance in federal court until all claims concerning any DNA evidence were exhausted at the state level, adding that he expected the DNA claims to be pursued in state court “with diligence.”146

  With Judge Wilson’s ruling holding the federal petition in abeyance, Damien’s attorneys felt that they had good ground on which to move forward. Citizens’ concern and digital connectivity were affecting changes. Without being able to foresee what impact they might have, new media were, nonetheless, confronting old legal processes. Thanks to HBO’s cameras at the trials, sites like WM3.org and Callahan8k.com, the recent startup of Facebook, the responsive generosity of countless supporters, and the work of out-of-state lawyers and investigators determined to prevail, the three inmates finally had been able to reach an agreement with Prosecuting Attorney Brent Davis to conduct basic DNA testing on materials found at the crime scene. Yes, there had been long delays in the process. Unforeseen problems had arisen. But by November 2005, it appeared that analysis of what one attorney called “a large body of ‘unknowns’” would be completed by the end of the year.

  The prisoners and their attorneys were excited by the possibility that the tests would conclusively establish their innocence. At the same time, they realized, as one of the lawyers put it, that, “given the mess that was made of the crime scene, the unsophisticated manner in which biological materials were preserved, and the passage of time,” they could wind up with little new information. There was also the possibility that the tests would produce DNA profiles that could not be matched to any of the victims or the defendants. If that happened, the attorneys expected the state to argue that any foreign DNA could have been at the crime scene before the murders or brought there by searchers, investigators, or morgue workers. The hope was that identifiable DNA would be found, not in a body bag, but under one of the victim’s fingernails, for example, where it would be hard to explain away. It was a gamble worth taking, but an expensive one. One of the attorneys said at the time that the DNA testing alone “cost the defense more than a million dollars.”147

  In June 2005, friends helped Damien publish an autobiography, Almost Home: My Life Story, Vol. 1.148 On the last page, which he dated May 22, 2004, Damien reported that he had caught a glimpse of Jason, who was housed in the Varner Unit adjoining the Supermax. “The Jason sighting,” as Damien called it, occurred while he and Lorri were having their weekly visit. “I looked up to see him about thirty feet away in the hallway, looking at me through the glass,” Damien wrote. “He raised his hand and smiled, then he was gone, like a ghost.”

  By mid-2005, the Arkansas Times blogged that the West Memphis case had “spawned its own culture.” The article noted that DVDs of the two HBO documentaries had just been released in the UK and that, in 2002, two years after Eddie Spaghetti produced his CD in support of the WM3, Henry Rollins had released another, this one called Rise Above. This benefit double CD was also a tribute to Rollins’ former band, the influential punk rockers, Black Flag. It featured Iggy Pop, Rancid, Queens of the Stone Age, Slipknot and Chuck D. “I came up with the idea of doing an album’s worth of Black Flag songs and getting all these cool singers in on the deal,” Rollins told the paper. “I figured what could be better than to have none other than Chuck D. of Public Enemy kind of call out West Memphis, Arkansas, and put the place on the map?”149

  Around the same time, supporters planned a Worldwide Awareness Day, with about fifty events scheduled in the US and abroad — including ones in Moscow and at a science base in Antarctica. Organizer Tammy Akin, an associate editor of the online magazine Punk Globe, told the Boston Phoenix that she’d talked to many people who’d heard of the case but who held the mistaken belief that the men had been freed long ago. “Then there’s another whole generation of young people who have never heard of it, and then as soon as they h
ear of it, are just amazed,” she said. “So many people who don’t fit in where they’re living can see that this could happen to them.”150

  Although Arkansas supporters arranged small Worldwide Awareness Day events at a half-dozen sites in the state, they were met, by and large, with resolute indifference by Arkansas’s citizens and officials. At this point for Jason, however, a bit of official indifference would have been welcome. He liked working in the law library at Varner. But in the middle of 2005, shortly after Damien’s book came out, he was abruptly “fired.” What did it was that line on the last page of Damien’s book, about how he and Jason has caught a fleeting glimpse of each other.

  In Arkansas, prisoners on death row are not assigned Arkansas Department of Correction numbers like all other inmates because, legally, they are not sentenced to prison; they are sentenced to death. Therefore, the prison system is only holding them in “safe-keeping” for the counties from which they’ve been sentenced until the execution can be carried out. For that reason, the numbers assigned to death row prisoners all begin with “SK”—a designation some mistakenly believe stands for “state kill.” Damien was SK931. Prisoners like Damien, held in safe-keeping or any other form of administrative segregation, are not allowed to have contact with each other, much less with inmates held in less restrictive conditions. As Jason explained, “When Damien put that in there about seeing me, for someone pretty high up, their number-one issue became, ‘How did a general-population inmate and a safe-keeping inmate cross paths?’”

  The encounter had been accidental. Not a word passed between them. But the incident, which had now been made public, proved an administrative embarrassment. Jason tried to explain that part of his job at the library was to type up legal requests for prisoners in the Supermax that his boss would pick up and deliver there the next day, but that, on the morning in question, she had asked Jason to make the delivery for her.

  “She calls the library and says, ‘I can’t get away,’” he recalled. “Can you bring the cart to my office?’ Well, her office was in the Supermax. Of course, there are riot gates all the way down there. She says, ‘I’ll call and get you cleared.’ So I take the cart, and, sure enough, all the gates are opening for me, and I’m passing through. I finally get to the Varner Supermax Unit. I see Damien and Lorri in there. Lorri sees me and she taps Damien. He doesn’t have his glasses on, so he puts them on. He looks up and waves. Then an officer says, ‘Keep moving, Baldwin.’ That’s all there is to it. When I come back through, they’re gone.”

  When Damien’s book came out, an official in the prison system got a copy of it before Jason did. When he showed up for work at the library, he was fired. When he asked a captain why, the officer said, “Oh, I can’t say,” but added, “It wouldn’t be anything to do with a book your friend wrote.” Jason understood: “Death Row is not to have any contact with general population. And definitely not these two. But it happened. And now it was public.” Action had to be taken, whether it made sense or not.

  Losing the library job was a “big thing” to Jason. He remained unassigned to a new job for months. “At first I was upset about it,” he said, “but then it began to feel like a perpetual summer vacation.” Finally, he was assigned to a new barracks—as its janitor.

  Jason looked for the bright side, even in the toilets. He was quick with the cleaning, which meant that, when he finished, he could help out on the recreation yard. In prison, that wasn’t so bad. He’d gotten used to making the most of whatever situation he was handed. That was something he’d explained to Fay Lellios, a documentary filmmaker from California with whom Jason had corresponded. In 2005, Lellios flew to Arkansas for a visit, bringing along two cameras. Varner’s warden allowed her to meet with Jason for three hours in his conference room. The result was an eight-minute film in which Jason discussed the role of writing in his prison life.”151

  “My name is Jason Baldwin,” he said, straight into the camera. “I am a writer.” Looking relaxed in his white uniform, he described himself as a “quiet and disciplined” person, someone who rarely spoke unless spoken to, and who felt “unrestrained” only when writing. He told Lellios that writing had become “like medicine” for him, allowing him to “purge” himself of emotions that otherwise could poison him. Writing made prison “bearable.”

  Jason said his first poem had been about Judge Burnett. “It was, like, ‘Man, how could he not see? How could he not know that I’m innocent? Why would he not even listen?’ The poem was, like, ‘The gavel’s bang couldn’t hammer truth away.’ It was real hard.” Other poems, such as “I No Longer Face the Storm Alone,” which Jason read for the film and from which Lellios took its title, expressed a sense of companionship that had helped him survive.

  More conversationally, Jason described for Lellios the kind of pep talks he gave other inmates—and himself. “Everybody’s got a unique situation,” he said. “Everybody’s got things in their life that they don’t necessarily want to be going through or don’t enjoy or don’t like. But, man, we gotta stay strong, stay focused. And, if it knocks you down, get back up. Brush the dust off and keep going. ’Cuz you know, life is like that. It’s great. It’s wonderful. It’s a blessing. It’s a gift. I mean, you only live it once.”

  Jason had returned to Varner just weeks before a national tragedy: the terrorist attacks of September 11, 2001. Coincidentally, he would decide to leave three and a half years later, days after another national disaster. When Hurricane Katrina struck America’s Gulf Coast on August 29, 2005, Jason was living in—and cleaning—Varner’s Nineteen Barracks. And that’s where he was a few days later, when, to his surprise, he was called to the unit’s mental health office. “Mental health?” he thought. “I’ve never put in a request to see a mental health officer.” He reported to the office with “a lot of trepidation.”

  “You know Shabazz?” the staffer asked. Yes, Jason knew Shabazz. The two had worked in the library together until Shabazz got reassigned to a medium-security unit known as “Little Tucker.” The name distinguished the unit from the bigger maximum-security unit nearby, casually called “Tucker Max”—or “Big Tucker.” Before leaving Varner, Shabazz had asked Jason, “If something works out, do you want me to try to get you over there?” Jason told him, “Yeah, sure. I’m into seeing new country.”

  Shabazz was as good as his word. He’d recommended Jason for a job as a habilitation counselor at Little Tucker. The mental health officer explained that, as a habilitation counselor, Jason would be expected to help “mentally challenged” inmates adapt to their time in prison. After hearing that he would be one of three counselors assigned to be available 24/7 for thirty inmates, some of whom were mentally retarded or schizophrenic, and that he’d be supervised by a licensed mental health worker, Jason said, “Yeah. Sure. I’m there.”

  “It was that old restless uneasiness,” he explained, “the feeling that you’re somewhere you don’t want to be because where you want to be is home, but prison is where you are, and you’re growing up in there. And then you hear about something that may be better. People say, ‘Oh, man. You’ll love it at Little Tucker.’ So when something like that opens up, you’re ready. Plus, it’s a way to travel—as crazy as that sounds.”

  Chapter SEVEN

  LITTLE TUCKER

  October 8, 2005 - January 19, 2007

  On October 5, 2005, Jason boarded a van—not for home—but for the fifty-minute ride north, across the Arkansas delta, from Varner, which held more than two thousand, five hundred inmates, to Little Tucker, which held about five hundred. Seeing it came as a shock. “In Varner,” he said, “you have these giant, open barracks, with as many as fifty-six people living in them. Varner had more than two thousand inmates. There’s a top tier, a middle tier, and a bottom tier, and this giant bullet-proof glass that goes up three stories. You’d have people climbing up on the bars, banging on the glass, making this crazy, jungle-like sound. It was constant, but you got used to it.”

  Besides
being so much smaller, Little Tucker was old. From his stays at various prisons, Jason understood that each unit’s floor plan reflected the philosophy of incarceration that was in vogue at the time it was built. But he’d never before been to a prison like this. Here, “there were these big, iron bars, and they opened cells with these old-fashioned keys.” The prison reminded Jason of the one in the movie “Shawshank Redemption,” and he found it amazing. “When you got in,” he said, “they came and hung a light bulb in your room.”

  For fifty years, Arkansas’s first prison, known as The Walls, actually occupied the site in downtown Little Rock where the state capitol now stands. When construction of the current state capitol began in 1899, its foundation was laid by inmates. As building progressed, inmates from The Walls were dispersed to two new prisons. One of those was built in 1916 on more than four thousand acres of rich farmland near the tiny town of Tucker. More than sixty years later, when a second, larger maximum-security unit was added to the property, that became known as “Tucker Max,” and the old prison began to be called “Little Tucker.” For decades, Little Tucker held Arkansas’s death row and the state’s electric chair. Between 1926 and 1948, the state executed one hundred and four prisoners there. In the 1970s, allegations that other inmates had been routinely tortured with an electric device known as the “Tucker telephone” led to investigations and court-ordered prison reforms.”152

  By the time Jason arrived in 2005, the place had earned a more placid reputation, especially compared to Varner’s. The warden at Little Tucker was pretty “laid back,” Jason said, and, as a counselor, Jason got to have his own room and an office with a TV, VCR, plants, and a computer—though with no Internet access, of course. It all came as a pleasant surprise, especially the way he was welcomed. “I walk in and I’m immediately surrounded by people,” Jason said. “And I can tell that some of these guys, they’re not altogether up to speed. These are the people I’m here to counsel. And they’re happy I’m here. They’re showing me around. They say, ‘This is your cell! This is the counselor’s cell!’ Then, I look up on a balcony, and there’s Shabazz waving at me.”