Dark Spell

by Mara Leveritt

  “There’s a lot of times police will take you in for questioning that they don’t know what they’ve got. To me that explains the time between the time they brought him in and time they started recording everything. [As to the gap between recorded parts,] I can’t explain it. I don’t understand it.” On Stidham’s argument that Jessie’s statements were coerced: “I never considered that the police may have told him what to say. But, even listening to the tapes, you can hear where there were times when they said, ‘Don’t you mean...?’” On how Jessie changed the times when he said the murders occurred: “I didn’t disregard that he got the time wrong, but I also took it that he was trying to put himself far away from it anyway, like he was watching it and not involved, because he knew it was wrong.” On Jessie’s mistakes about the boys’ ligatures: “I remember looking at the shoestrings myself. I took them out of the bag and put them on the table. I just told myself that he was calling the shoestrings rope. And the shoestrings were dirty. They were underwater in mud, so they looked brown, of course.” On what Jessie knew: “Everybody thought all three had been mutilated or castrated. But he knew it was just one. Even if he got the wrong one, that wasn’t common knowledge to everybody. And he said he chased down one boy. That was important to me. His confession was the biggest thing, but there were those little things too.” On the jury’s votes: “When we took our first vote, it was seven to five ‘guilty,’ and then, before we went home that night, it was eight to four. We listened to the tapes two or three times in deliberation—hearing the tapes and following along on the transcripts. The hold-outs were mostly on the coercion factor. I felt like they were reading that into it. When we finally broke for the night, I went home and was thinking and thinking about it. That’s why, the next morning, I asked them to not read and just listen. They agreed. So we pushed transcripts aside and listened to the tapes, like we were in the room with them. A few just closed their eyes. A few put their heads down on the table. Nobody made a sound. We just played the tapes, and we took a vote right after that. It was twelve to nothing.” On why they acquitted Jessie of capital murder: “He helped, but he didn’t do the actual killing.” On Stidham’s claim that while the jurors were deliberating, Burnett opened the door and asked if they wanted him to order lunch; that they ‘said no, because they were about finished; that Burnett responded, “Well, you’re going to have to come back for sentencing anyway, so I’m going to go ahead and order some food;” after which the foreman asked Burnett, “Well, what if we’re going to vote not guilty?”: Williams reported, “Yeah, I’m going to say that happened.” On whether it affected the jury’s vote: “Oh, no, no, no. I’m pretty sure we had already made up our minds by then.” On how he felt afterwards: “I felt like a burden was lifted off my shoulders. You’ve got his life in your hands. It was a horrible thing to have to go through. I can’t imagine what it was for those parents to go through. It was hard. I’ll say this, from what I was shown as evidence, I got it right. We did what we thought was right, from what we had. All twelve of us did.”

  44 Ironically, the opportunity to present Jessie with the possibility of receiving a term of years, despite the jury’s having sentenced him to life in prison, arose from a reading of Arkansas law intended to grant judges special powers of fairness, not for use by prosecutors seeking to negotiate for testimony in a future trial from a person who has already been sentenced. In arguing the fairness of Arkansas’s process for administering the death penalty, Chief Justice John A. Fogleman wrote, in the pivotal 1977 Collins case, “The trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it.” He then quoted the state statute that reads, “The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in the opinion of the court, the conviction is proper and the punishment assessed is greater than under the circumstances of the case, ought to be inflicted.”

  45 Cureton said: “When they realized they didn’t have any evidence, Davis called me and asked me if I had a file on Michael Carson. I said, ‘I have a file on every kid who’s walked through that back door.’ He asked me to pull it and said, ‘It would sure help if there’s something in there about him and Jason playing cards.’ I knew exactly what he was saying. ‘If it’s not there, put it in.’ I cannot remember any time those two were together. When I took it to his office and he looked at the file he slammed it on the desk and said, ‘there’s not a damn thing in here that can help us.’”

  46 Arkansas’s Second Judicial District, where Jason was about to go on trial, had a rich history of offering citizens stark— and often ugly—choices. The district lies in east Arkansas, alongside a large piece of the Mississippi River. Its soil is deep and fertile, and fortunes have been made from it. Yet this region, including Crittenden County, ranks among the poorest in the nation. About a fourth of the population lives below the poverty line, more than a third of all children do, and fewer than fifteen percent of adults have a college degree. For many, lives spent facing “impossible situations” have been the norm. Before the Civil War, vast plantations ran on the sweat of African slaves. But even after the slaves were freed, the social structure remained largely unchanged, with large farms in the delta operating on the sweat of freedmen who now worked as tenant farmers and sharecroppers. There were many of them—and they could vote. Within twenty years after passage of the fifteenth Amendment, black men in Crittenden County held the positions of judge, county clerk, assessor and representative in the state legislature. But the white ruling establishment put an end to that. In the February 7, 2008 issue of the Arkansas Times, writer Grif Stockley related Crittenden County historian Marion Woolfolk’s account of African-American officials being rounded up and run out of the county: “A group of about eighty whites assembled at Marion about 10 a.m. July, 13, 1888, and marched to the courthouse where David Ferguson [the county clerk] was forced to resign at the muzzle of a Winchester rifle and afterwards was escorted to the 3:30 p.m. train.” The other black office holders were similarly herded onto a boat to Memphis, where they were released. The office¬holders’ appeal to the governor of Arkansas was rejected, and for the next one hundred years, no blacks held public office in Crittenden County. Poor whites in the region fared only marginally better than blacks. After the disastrous Mississippi River Flood of 1927, which was followed by a devastating drought and then the Great Depression, approximately two-thirds of Arkansas’s independent farmers lost their farms and fell into tenancy, a form of lease arrangement whereby a tenant rents, for cash or a share of crops, farm property from a landowner. Many whites, including the parents of the late singer Johnny Cash, joined African-Americans working the fields of the wealthy. But tenancy was widely abused, forcing many workers into a condition of virtual servitude. The Southern Tenant Farmers Union, which was founded in eastern Arkansas in 1934, became one of the first integrated unions in the United States. Racial prejudice in the region remained strong, but the sharpest social divide was—and has remained—economic. Power was exercised with a vengeance, mainly against blacks, but also against poor whites. As late as December 7, 1936, Time magazine ran an article titled “Slavery in Arkansas.” It described a private prison farm being run by a deputy sheriff in Crittenden County who used the forced labor of local black men who had been tried and convicted of “vagrancy.” During that era, the Ku Klux Klan rode at night, terrorizing black citizens and sometimes lynching them. White people who defended blacks were threatened or run off. Justice ran on a double standard. Julian Fogleman, the father of the man about to take Damien and Jason to trial, was the city attorney in 1954, when the body of Isadore Banks, a relatively wealthy African-American man, was found tied to a tree and burned just outside Marion. Julian’s brother John A. Fogleman, who later became chief justice of the Arkansas Supreme Court, was an assistant prosecuting attorney at the time, but Banks’s murder was never investigated. Years later, when Julian Fogleman was asked about the lack of inves
tigation, he responded vaguely,

  “There was some community discussion about who might’ve done it, but I never heard any suggestion of any name.” When asked how he felt about the murder going unsolved, Julian Fogleman responded, “I don’t know what I think.” Nine years after the murder of Banks, Julian Fogleman was an assistant prosecuting attorney when a white woman drove down a street in Marion crying for help and saying that she had seen a Negro try to rape her eight-year-old daughter. According to a July 19, 1963 Associate Press report, a mob of white men, including six deputy sheriffs, assembled and chased a young black man, Andrew Lee Anderson, into a soybean field. While running, Anderson, who was unarmed, was shot in the back of his leg. He died in the field two hours later from loss of blood. A coroner’s jury of nineteen white men took just twenty minutes to rule that his death was justifiable homicide, based on an Arkansas law that gave private citizens or officers the right to attempt to capture a felon. When questioned about the lack of investigation in that killing, Julian Fogleman told a reporter, “We don’t think the decision was wrong and don’t plan to go any further with it.” The killings of Isadore Banks and Andrew Lee Anderson are among one hundred eight priority cases identified by the Federal Bureau of Investigation’s Civil Rights Cold Case Initiative, which was established in 2006. When I began researching the region for a book about the case, a veteran attorney in the district told me, “If you’re black, you have to pay dues to live here. If you’re white, you can do whatever you want”; “local police have become an enormous political power in their own right;” that “people who have money buy their freedom:” that “courage is a high-priced commodity”; and “that’s just the way it is.”

  47 The legality of the first samples was debated at a pretrial hearing on Aug. 4, 1993. Jason’s attorney, Robin Wadley, argued that the samples taken upon Jason’s arrest were “illegally obtained,” although he did not state the fault at issue. Burnett ordered that new samples be taken after hearing from Fogleman. Referring to Fogleman, the judge said, “apparently he’s telling me there is trace evidence that they [the prosecutors] need to make comparisons on all of those items.” Burnett asked Fogleman, “Is that what you’re telling the court?” Fogleman answered: “That’s correct, your Honor.”

  48 The circumstances of Jessie’s post-conviction statement of Feb. 17, 1994, (http://callahan.8k.com/wm3/img/j_misskelleyfeb. html) prompted Jessie’s attorney, Dan Stidham, to file a motion asking that the prosecutors be held in contempt of court and punished accordingly. The motion, (http:// callahan.8k.com/pdf/jm_motion_2_22_94.pdf) was denied.

  49 Fogleman’s opening statement: http://callahan.8k.com/wm3/ ebtrial/stateope.html.

  50 Cureton said that when video of Carson’s testimony was shown on television at the detention center, “There were some black kids in there, and when Carson was on , they went ape. They said, ‘He’s a’lying, Ms. Joyce, he’s a’lyin.’ They said, ‘Get him.’ They would have torn him apart, had they [deputies] brought him back to the jail.” She added that she understood Carson was “facing several years,” but that after she took his file to Davis, “I never saw it again, and the prosecutor is the only person who can do away with a juvenile’s file.”

  51 The comment remained unknown for years. It was not caught until the producers of Paradise Lost allowed supporters to post the entire audio files from both trials online. http:// callahan.8k.com/wm3/audio/eb/html/eb_j_driver.html

  52 Testimony of Det. Bryn Ridge, Mar. 7, 1994, http:// callahan.8k.com/wm3/ebtrial/bridge_march7.html.

  53 Griffis said he received his Ph.D. in 1984 from Columbia Pacific University, an unaccredited, nontraditional, distance-learning school that operated legally in California for twelve years. Griffis testified that he took no classes to obtain the degree. In a 1997 lawsuit to compel closure of the school, a California deputy attorney general called CPU “a consumer fraud” and “a complete scam.” The California Supreme Court ordered CPU closed in 2000.

  54 The proffered documents: http://callahan.8k.com/wm3/img/ states_exhibit_300.html

  55 Jason could have insisted that he be allowed to testify, but that would have required him to overrule his counsel—something he did not feel competent to do.

  56 No record in the case of the West Memphis Three better illustrates the difficulty the state faced in articulating a coherent theory of the murders than Fogleman’s closing argument. http://callahan.8k.com/wm3/ebtrial/closefogleman. html.

  57 Grinnell acknowledged that at the time of the trial, her “nerves were really shot.” She said she wanted to testify “about Jason being at home in bed that night,” and that “Ford could have encouraged me to testify, but he discouraged me.”

  58 Cureton said that Ford asked her to testify as a character witness for Jason between the guilt and sentencing phases; that, on Friday night at the end of the trial, he asked if she would testify that Jason “caused no problems with any of the staff or the other kids;” that she’d responded that the question “put her in a spot;” that Ford said, “Because you’re afraid of losing your job;” that she responded, “You said that;” that Ford’s remark was, nevertheless, true because she had an invalid husband to support and she knew that the sheriff, her boss, did not want her to testify; that Ford could have avoided the problem if he’d subpoenaed her, but “he had not suggested it, and now it was too late”; that during the night, the sheriff became concerned that she might be called to testify and told her, “They’re probably getting a subpoena right now;” that he told her, “I want you in that car and out of the county,” and that she had obeyed.

  59 There was at least one person in court that day who shared Jason’s disbelief. Marie South was attending Arkansas State University in Jonesboro at the time of the trials. Her class schedule allowed her to attend only the sentencing phase of Jason and Damien’s trial. In an email interview in 2011, she wrote: “I grew up in a small town much like West Memphis/ Marion. My family was poor, like the families of the WM3, so I was able to put myself in their shoes, so to speak. I knew how it felt to grow up in a small town and face some of the same ridicule for being different or dressing differently.” By the time of the trials, she said, “I thought the Satanic panic was most unfortunate because no one cared to delve more deeply into it. Once the theory was accepted, it appeared that the police were no longer considering anything else about it.”

  60 The women with Cureton were Sue Weaver and Patty Burcham.

  61 As a reporter, I have entered many prisons. Even knowing that I will be able to leave, entering is an unnerving experience. Metal bangs against metal. Concrete floors and concrete-block walls distort and exaggerate sounds. Except for wardens and secretaries, everyone wears a uniform. White-suited inmates move all around, working under close supervision. Posted rules and warnings substitute for art on the walls. Iron-barred gates click open at the sound of an electronic switch. Cameras relay images to control rooms. An impersonal, militaristic brusqueness seems the professional norm. Every gesture, structure and sound presents itself as necessitated by security— and yet, perhaps because security is so emphasized, the feeling conveyed is one more of fear than of control.

  62 In a letter dated Dec. 10, 2001, Jason reported: “I never saw that guy again, but I learned how to handle guys like him, and I ran into many of them during my stay in prison. God watched out for me and nothing bad like that ever happened.”

  63 Caleb Smith, an associate professor of English at Yale University, writes eloquently about this concept in his book, The Prison and the American Imagination (Yale Studies in English), 2009. From the blurb on Amazon.com: “Exploring legal, political, and literary texts—including the works of Dickinson, Melville, and Emerson—Smith shows how alienation and self-reliance, social death and spiritual rebirth, torture and penitence came together in the prison, a scene for the portrayal of both gothic nightmares and romantic dreams. Demonstrating how the “cellular soul” has endured since the antebellum age, The Prison and the American Imaginat
ion offers a passionate and haunting critique of the very idea of solitude in American life.” http://www.amazon.com/ Prison-American-Imagination-Studies-English-ebook/dp/ B002RDDZXM/ref=sr_1_1?s=books&ie=UTF8&qid=139793 7057&sr=1-1&keywords=prison+american+imagination

  64 The correspondence between the girl and Jason would continue throughout his life in prison. He elected to exclude details about that and other relationships with girlfriends from the story told in this book.