Dark Spell

by Mara Leveritt

  At twenty-eight, Jason could tell that he had stepped into a new kind of prison experience—and maybe a new stage of his life. It was comforting to know that some DNA testing was underway at a laboratory that the attorneys for the prisoners and the state had agreed upon. Even so, battles about it continued. “A lot of items Brent Davis won’t agree to allow us to test,” Jason said in an interview at the time. As a result, Philipsborn prepared to argue in favor of the tests in court. That court, however, would be Burnett’s, and, as Jason said ruefully, “We know how he rules.”153

  Supporters knew little about the battles for new scientific tests at the time, but the struggle represented a new front in the clash between the West Memphis Three and the state that had won their convictions. Rulings in the West Memphis case had already set several precedents in Arkansas law, and now, as attorneys for the state and the men in prison hammered out procedures for tests under the new DNA law, the case was moving into even newer legal territory. There was a time when Jason would have found it hard to believe that state officials who claimed to want “the truth” would resist acquiring new information that might lead to pertinent truth, especially if that truth showed someone had been wrongfully convicted. But that time had long since passed. He understood now that, in general, “justice” played out more like a football game than anything he’d been taught in civics. A win for the state was a win, and players on the state’s side, including prosecutors and attorneys general, didn’t like the idea of losing a trial after it had been won. While an NFL official might change a ruling after checking an instant replay, nothing like that happens in law. The state’s attorneys general fought hard to keep their win, and if that meant working to keep new evidence from reaching a court, they considered that fight their job. Thus, a new state law allowing DNA tests, inmates seeking the tests, and supporters willing to pay for those tests did not mean that the tests would be conducted. Terminology had to be debated, evidence located, timelines established, shipments scheduled, and items prioritized—and every step of that process took time and time, and still more time.

  While the testing issues played out in courts and laboratories, Jason adapted to Little Tucker. But more than his residence had changed. For years, he had been saying, “I want to go home.” He didn’t say that anymore. He knew “home” as he remembered it had vanished long ago. He was a man in his late twenties. “I don’t even know where home is anymore,” he said. “I just want to be free. I’ll find a home.”

  Maybe it was easier to imagine a new home now that he had a new girlfriend. “She’s a great girl,” Jason said. “I just hope I can get out of this place soon to be with her.” Yet the desire was tempered by caution. Quietly and indirectly—with neither blood nor beatings— prison had taught Jason its hardest lesson. “She’s got it in her mind to wait on me as long as it takes,” he said. “But I know what that can do to a girl if it becomes too long. I don’t want that to happen again.”

  As always, he focused on his work. Though the counseling job had its perks, it was unrelenting. “You’re like a doctor on-call,” Jason said, “but it’s 24/7, and some of these people had severe needs. You’ve got to make sure they take their meds—all their meds—and some of them were taking heavy psychotropic medicines. In a way, it was strange. I’d had all this history with mental illness, with my mom and Damien. And then, when I got to prison, they’d tried to force me onto medications. And now here I am, working in that industry, so to speak. I have a job working with people like that, and I have zero-to-no training.”

  “What I did have,” he added, “was patience and good communication skills and kindness. Habilitation meant these men were in highly structured activities all through the day. All these guys had various degrees of mental deficiencies. There were always petty squabbles. For example, if we didn’t vote ahead of time, there’d be squabbles about what they were going to watch on TV. Or somebody would take a puzzle piece and put it in his pocket and take it back to his cell, so somebody couldn’t finish the puzzle. I was engaging them all the time. It was a madhouse, for lack of a better term.”

  Inmates and counselors alike tried to make the best of it. For Jason, friendships always helped, and one of his good friends during this time was another counselor he called Jibril. That was a Muslim name, related to the name Gabriel, that the inmate had adopted since coming to prison twenty years before. The prisoner’s official name was Ronald Ward. Over time, Jason learned how much he and Jibril had in common. Both were from Crittenden County (Jason from Marion and Ward from West Memphis). Both were tried for triple-murders in Judge David’ Burnett’s court with Fogleman as their prosecutor. And both had been sentenced as teenagers (Ward at fifteen and Jason at sisteen) to serve life in prison (though Ward had initially been sentenced to death).

  Jibril was seven years older than Jason, but both also considered themselves strong. Jason remembered one day, while everyone was waiting for lunch, he and Jibril sat down for a quick game of dominoes. They bet pushups. Jibril asked Jason how much he wanted to bet. Jason said, “Nothing less than fifty.” Jibril laughed and countered, “A hundred a skunk.” Hearing that, the men in the room gathered around.

  “Well,” Jason said, “I’m not the best at dominoes or any game that relies on chance starting off, so he ends up beating me and skunking me. So I’m down there doing pushups, and the guys are counting them out. I mean, I’m pretty good up to fifty, but after that my arms were shaking and Jibril had taken on the role of Major Payne from the movie.154 Those last ones are taking a bit, but I got ’em. But while I was down there doing them, my glasses fell off, and he’d done picked them up. I’m like, groping around, ‘Where are my glasses?’ He’s playing around with them. Everybody’s laughing.” Light moments like that helped ease the long wait for action on his case.

  By the end of 2005, Bode Lab had completed its analysis of the first batch of agreed-upon items. As Jason, Damien and Jessie expected, none of the material tested could be traced to them. On the other hand, the tests had not produced what Philipsborn called “a home run.” Some of the DNA material had come back categorized as “unknown”: that is, it was not from the men in prison, it was not from the victims, and it could not be connected to anyone else associated with the case whose DNA was known.

  Back in high school, before his arrest, Jason would have thought that scientific tests of crime scene evidence that didn’t connect people in prison to the crime would have prompted an automatic review of the case. By now, however, he was much better educated in law. He did not need Philipsborn to explain how the attorney general’s office would reason: that the absence of scientific evidence linking Damien, Jessie and him to the crime did not mean that they weren’t there to commit it. “Absence of evidence,” as has famously been said, “is not evidence of absence.” The attorney general’s office was dug-in on this case, and no mere “absence of evidence” proving the men’s guilt was going to persuade it to reconsider.

  With fledgling new investigations having been launched in several directions, a new and unlikely team quietly joined the effort on behalf of Damien. Earlier in 2005, filmmakers Peter Jackson and Fran Walsh of New Zealand, creators of the popular Lord of the Rings series, had watched the Paradise Lost documentaries. Like countless others, they were appalled. “I didn’t have any understanding of how the American justice system worked,” Jackson said, “because the New Zealand system is based on British law. We don’t have district prosecuting attorneys. There are no elections here for these sorts of roles or for judges. People work their way into these positions and earn them by appointments. And we have quite a good judicial review system here, for when things go wrong.”

  Walsh said she was equally surprised to learn what could happen in U.S. courts. “I was shocked when it became clear to me how much political power and political expediency played into ‘justice’ in America,” she said. “We have corruption here, but it’s not predicated on someone’s political aspirations.” Seeing the case as a “pu
zzle,” Walsh dived into the online resources that had been developed by supporters and non-supporters alike, finding all of it “enormously helpful.” She said she gradually began to “piece together what hadn’t happened” regarding forensic experts and to wonder “why they weren’t called in the first place.” She also contacted Lorri Davis. The two became close friends.

  That relationship made Damien’s situation personal for Walsh. She said she felt overwhelmed to realize the odds against his release— how, in going back to state courts, he faced “everybody, in the end, who had a vested interest in maintaining a guilty verdict.” Jackson was particularly amazed that so much of the post-conviction review kept returning to Judge Burnett. Nothing like that happened in New Zealand, he said, due to the belief there that a judge who’d already ruled on a case would have “things to protect.” To Jackson, passing the review to a different judge or set of judges made sense.

  “I have a great belief that everything comes back to human nature,” he said. “It’s all about the money. Money is the bottom line for just about everything: people have their jobs, their careers, their reputations, and usually families to support. They have everything to protect. Once you put guys in a position that they have to protect their basic livelihood, human nature is going to be to protect themselves and their positions, so you’re putting these guys in a bad position to start.”

  In December 2005, when Jackson and Walsh were headed to New York for the premiere of their film King Kong, they arranged to meet Riordan and Davis there. The foursome spent a half-day in a hotel room discussing how the newcomers could help. Jackson said, “We didn’t want to throw money into a pot. We saw a lot of areas that we thought needed to be investigated, but unless somebody was going to pay for them, it wasn’t going to happen. We told Dennis, ‘We think you guys should investigate X, Y and Z, and we’re happy to cover the costs of that.’” The pair estimated that they paid for most of the DNA testing from then on.

  They became, as they put it, “embedded” with Damien’s attorneys. “We found that focusing on one defense team was going to be most effective,” Jackson said. “Anything that helped Damien was going to help Jessie and Jason. It was going to be a three-for-one.” He said he found it “interesting and a little horrifying that, in trying to overturn a conviction and present any evidence that the state would be willing to consider, you essentially have to do their job for them. You have to do the investigative work that they should have done.” In a battle against a state, with state-paid investigators, attorneys, and a crime lab, Jackson said he felt the couple was simply “leveling the playing field” by contributing part of their fortune to offset costs of new investigations and testing for Damien.

  Consequently, as 2005 ended, attorneys for the West Memphis Three were still sorting out their respective strategies. In early 2006, Philipsborn wrote to Lorri Davis,

  “My view, having at one time essentially ‘baby sat’ all three cases and now having taken on Jason’s matter, is that given the progress of Damien’s case through the system, in the absence of a DNA ‘home run,’ it is more likely that one of the other cases will cause this case to get serious review. I say this not only out of loyalty to Jason, but rather because much of the focus to date has been on Damien— who, after all, did testify in his trial and who is viewed as the central character in the matter. My sense is that if there is some systemic concern that these convictions are rotten, it may be easier for that concern to surface in a case in which it can be said that the accused never had his say in court. That is why I am particularly sensitive, at this juncture, to not publicly tying Jason to the other cases.”

  Philipsborn continued: “Having noted this view, it is clear that Damien’s case needs the focus of current attention, and it is also clear that Damien will be in the best position, initially, to offer a critique of the integrity of the state proceedings. He has an excellent team to assist him in doing that. The emphasis of current investigation, in my view, should be on: more alibi info if it is out there; the lack of relationship between Jessie, Jason and Damien at the time; the time of death and likely death scenario; the unreliability of the Misskelley version of events.”155

  Everyone understood that Damien’s death sentence had already set him on a separate and faster legal track. Jason and Jessie, by contrast, still had not yet had their Rule 37 hearings, though, by now, Burnett had agreed to combine them. When that joint Rule 37 hearing was held, Jessie’s lawyers would have to confront what the state called his confession. In assessing Jessie’s situation, Philipsborn wrote that he was concerned about “the Misskelley statements, both before and after trial.” The attorney expected that Jessie’s lawyers would introduce better alibi evidence than Stidham brought forth at trial. “Like Jason, who was at school the day of and the day after the killings,” Philipsborn wrote, “Jessie’s post-killing routine did not change, which is extraordinary if you assume he was a mentally impaired, easily manipulated killer—which is essentially the theory espoused by the prosecutors.”

  Philipsborn intended to show that, while Ford could have presented a strong defense for Jason at trial, he had failed to call key witnesses. He’d “dropped the ball,” Philipsborn wrote. “The jurors never found out how far it was from Jason’s house to the crime scene. They were not shown the route that he would have had to follow to return there to catch the Thursday morning school bus. They were not told about the traffic density along the route of travel, or the opportunities (given the population density in his trailer park) for someone to have seen him, covered with mud, water and blood, skulking back home.” In short, Philipsborn wrote, Jason’s argument at his Rule 37 hearing would be that he “had a defense that was never put on.”

  Jason understood that, legally, his case was heating up. He also knew that, while he labored inside his prison helping inmates write their names or properly use the toilet, momentum about the case was building outside as well.

  In the spring of 2006, Dr. Martin Hill, the professor in Puerto Rico who had earlier conducted the analysis of Jessie’s statement to the police, took his interest in the prosecution a step further. Hill inaugurated jivepuppi.com, a website on which he attempted to synthesize the abundant information now available. “Being in science and being a skeptic have made me question rigorously the available evidence,” he said. “I would have no problem with good evidence appearing against them. I would at last relax and say, ‘Hmmm…. So that’s what happened.’”

  Instead, he said, he became a supporter of the West Memphis Three because of what he called “the deafening lack of good evidence against them . . . and the substantial evidence that points away from them.” Hill would add to jivepuppi.com for years. Ultimately, he said, the work led him to “see the world differently—justice, police, honesty, dishonesty.” It showed him “the power of self-delusion and how it seldom fades over time.”156

  The amount of information available on the Internet had grown immense. And there were even glimmers of change within Arkansas. Most notably, an instructor at a state university invited Stidham to speak.157 The combination emboldened Jason to speak out personally about the state of affairs. In an open letter addressed to Gov. Mike Huckabee that was published in the Arkansas Times, he wrote: “You say you haven’t seen proof of our innocence. I say that is possible, but only if you haven’t searched.”

  A few weeks later, Jason again wrote to the paper, this time to address West Memphis Three supporters in Arkansas and around the world. “I know many of you over the past decade or so have literally inundated the governor’s mansion with letters,” he said. But, because no one else knew the extent of that support, Jason asked supporters to write to the governor yet again, this time addressing their letters to him at a post office box. There they would be collected and delivered to the capitol en masse on the second Worldwide Awareness Day ahead. “Today is my birthday,” Jason wrote, “and I have but one wish. This is the last year of my twenties. I’ll be a happy man indeed if I can spend just one d
ay of it a free man.”

  On July 14, Worldwide Awareness Day, supporters in Arkansas laid out five hundred and fifty-two letters on the steps of the Arkansas capitol, all of which were sent in response to Jason’s request. Some letters came from Little Rock, one from as far away as Paddington, Australia. Jason had asked supporters to write a brief statement on the outside of their envelopes so that their feelings about the case could be read without opening the governor’s mail.

  From Ireland: “These men were convicted on hearsay that snowballed out of control and this tragedy rolls on and on.”

  From Poland: “I used the case...with my eighteen-year-old students as an example of how justice can be violated in a democratic country.”

  From New York: “Is a ‘confession’ from a disabled and challenged youth enough ‘evidence’ in your state to ruin lives?”

  From Oregon: “Guilt should be proven, not innocence.”

  About ten percent of the letters came from within Arkansas. One from Little Rock read, “If this is how a murder investigation is conducted in Arkansas, then I’m afraid to think of how many other innocent men and women are behind bars.”

  At the capitol, supporter Amanda Lamb spoke for many when she told a TV reporter, “I am very angry and frustrated that we can’t get anyone in the state to address our concerns.” A spokesman for the governor said that the letters would be delivered. Still, he reminded the crowd, the governor’s powers were limited: this was a matter for the courts.