Dark Spell

by Mara Leveritt

  88 In the U.S., indigent defendants are allowed a court-appointed attorney at trial, but not for appeals, except in death-penalty cases.

  89 Jason’s girlfriend reported this to me soon after it happened in a letter in which she also expressed concern for Jason’s safety.

  90 When I countered that Jason had grown up without good men around, he objected. “I did have a positive male role model. My grand-uncle Hubert. We’d have dinner with him. I’d cut his lawn. He was kind of crazy, but in a good way. He was fun. And my Uncle Allen, my mom’s brother. He was positive.” He continued, “It’s true that I didn’t know my father well. But you can still find role models, even in popular culture, like on TV or in books. You can appreciate things as entertainment, but if you look closer, a lot of times you’ll see that the authors are trying to convey things through their characters, things that are moral or inspirational.” He said that growing up and even in prison, he’d found instruction and inspiration in G.I. Joe, ThunderCats, Ninja Turtles, Super Mario Bros., Gobots, Voltron, Smurfs and Transformers.

  “They’re teaching you right from wrong and what to do in certain situations. Even if you’re a latch-key kid, if you know where to look, you can find these guides. So pop culture is full of role models and stuff.” But you had to use discernment, he said. “You wanted to be G.I. Joe, not Cobra.”

  91 The classes were offered in association with Arkansas State University at Jonesboro. Jason became good friends with the outside staff who came into the prison for both the high school and the college classes. Because he’d missed the higher-level math classes in high school, he started with algebra, followed by two accounting classes “just because they were being offered.” He could have taken college-level correspondence courses, but, much as he wanted an education, he wanted only classes that were taught in person. After being burned by “Dr.” Dale Griffis, the court-approved “expert” on the occult whose correspondence-school degree was thoroughly discredited, Jason said, “I didn’t even want to approach that.”

  92 Like most judges in Arkansas, Burnett routinely denied Rule 37 petitions. Prisoners have the right to appeal those denials to the state Supreme Court. That court routinely affirms the lower court’s rulings. But twice in 1999, the Arkansas Supreme Court reversed Burnett on Rule 37 petitions because he did not justify them with the required written “finding of facts.” On September 16, 1999, the high court ruled in a cases titled Coleman v. State and Dulaney v. State that, while Burnett had presented some findings, they were “conclusory” and did not reflect how the trial court applied the standard for ineffective assistance of counsel claims,” as required by law. In denying Damien’s Rule 37 petition, Burnett wrote simply that “The petitioner has failed to prove a valid claim of actual innocence or to demonstrate incompetence of counsel.” He said that many of the issues raised by the new team of lawyers constituted nothing more than second-guessing Damien’s trial lawyers’ strategy.

  93 Ware also wrote in her eight-page letter: “You were observed more than you know, because I was impressed with you and the way you didn’t have as many opportunities as some of the other students, but you pulled yourself up and made yourself something good.” Regarding Jessie Misskelley: “Jessie has claustrophobia. His Special Education teacher used to let him do his lessons in the doorway or outside. This was never written up because he was being accommodated for it. So this was never brought up in court either. Jessie would have confessed to anything to get out of the interrogation room. It is beyond me why anything he would say would be admissible in court.” Regarding the murders: “You were in my class the day of the murders, during the time period Jessie first gave! And you were in my class the day after the murders.” Regarding the man at the Bojangles’ restaurant: “This is what I believe, and I’m giving you the account from facts I know about the case. On the night of the murders, a man went into the bathroom of the Bojangles’ restaurant on Missouri Street. He was covered in mud and had blood on his face and arm. He was upset and the manager called the police. In the meantime, he left, and left mud and blood in the bathroom. The bodies of the three boys hadn’t been found yet, and the police didn’t see any reason to take samples from the bathroom. After the bodies were found the next day, the police went back to the restaurant and scraped samples of blood from the walls. But the sample was later lost. I never thought you’d be convicted. I was amazed and shocked. I thought the Bojangles’ incident would be dealt with more fully in court. I got a map of West Memphis and noticed that the bayou from Robin Hood Hills came out right behind the restaurant. It is interesting to note that the newspaper got the location of the bayou wrong. They showed it as the bayou that is much south of there, and doesn’t connect to the restaurant. You know that bayou that runs near where Finishing Touch Frame Shop used to be, near Century 21 and the BBQ place on Missouri St. I don’t know if the mistake was made by the police or the newspaper. If you were the police and had let a prime suspect in a murder case slip through your fingers, and on top of that, lost the evidence, wouldn’t it be convenient if the information in the newspaper appeared insignificant? I drove to Bojangles’ and looked behind it, but it [the bayou] was impressively close. The bayou from Robin Hood Hills comes out closest to this restaurant. Now, you know how many fast food places there are on Missouri St. Let’s say you are a man upset, covered with mud and blood, and you’ve got to get to a restroom on Missouri St. If you are coming from the south, you would stop at one of the many fast food places south of Bojangles’. If you are coming from the west or the north, you are going to stop at MacDonald’s or Krystal first. It wouldn’t make any sense to cross a busy four-lane street or go further. That means the man had to have come from the east and the Robin Hood Hills area. Someone would have seen him if he had come from anyplace else. On the Sunday before the murders, it rained only .11 inch in the Memphis area. It didn’t rain in Marion or West Memphis because I was at the art exhibit and remember. On Monday it didn’t rain and on Tuesday it didn’t rain. The bayou was the only place he could have gotten muddy that night. Here are the facts. You’ve got three little boys dead in a bayou, and you have a man with mud and blood on him, who obviously is too credible to be coincidental. It seems to me that an eight-year-old idiot could look at these facts and know the man had to be involved—if not the murderer, one of the murderers. I am amazed that this was not investigated further. Mistakes were made. I can’t blame the judge or the prosecuting attorney. They are well-respected top-notch men and they were only doing their jobs.” On Jason’s situation: “You were railroaded. But I don’t know what to do. I don’t have any money or power either. I wish you could get a lawyer on the caliber of Johnny Cochran or F. Lee Bailey. But one would have to win the Powerball Lottery to be able to afford them.” She concluded, “I believe that justice will come to light, and I believe that you will be released. But, like you, I just don’t know when.”

  94 In March 2000, two reporters who had covered the West Memphis case extensively for The Commercial Appeal published their account of what happened under the title, Blood of Innocents. It was factually accurate, by and large, and seemed to share the official and widespread opinion that justice had been done. But aspects of the case struck me as absurd. I was troubled, for instance, by the courts’ willingness to allow Jessie Misskelley to forfeit his right to have an attorney present when he was questioned by police—even though, at seventeen, he could not legally buy a pack of cigarettes, see an R-rated movie, or enter a legally binding contract without his parent’s permission. As I wrote in the Arkansas Times, in an article about juvenile law, kids in Arkansas “cannot have their ears pierced without a parent present. Yet, if they get into trouble—trouble so serious that it could send them to prison for the rest of their lives—the protections disappear.” After that article appeared, a reader forwarded to me the contents of an email exchange he’d had with an aide to Arkansas’s governor, Mike Huckabee. My correspondent had asked the governor to “look into” the case of the West Mem
phis Three. Huckabee’s liaison for criminal affairs had responded, “I do want to assure you that DNA testing was done, and that a match was found among the men convicted.” The statement was patently false, but my calls to the governor’s office for comment were not returned. In a similar vein, I often heard the case discussed in casual settings with great certainty. When I asked what evidence anyone knew of that connected the three in prison to the murders, the responses became vague but no less confident. I heard endlessly, “There was evidence that the three were guilty that was never introduced at the trial.” Those saying this were certain because someone in law, law enforcement, or politics had told them it was so. (No one seemed willing to question why evidence so crucial had not been introduced at the trials.) Meanwhile, Arkansas officials stood solid in their defense of the verdicts, dismissing those who criticized the police or the conduct of the trials, describing critics as out-of-staters who’d learned about the case from a movie and who “didn’t know what really happened.” That could not be said of Stidham, who continued to criticize the trials. Nor could it be said of Ron Lax, owner of Inquisitor, Inc., a private investigations company in Memphis, who had questioned the teenagers’ arrests from the moment he’d learned of them in June 1993. Almost on the spot, Lax became the first person to volunteer to help the newly appointed defense teams, offering his services for free. The lawyers for Damien and Jessie had welcomed the help, but Jason’s lawyers declined.

  95 In that interview, which may be the only one Gitchell gave after leaving the department, he also said: “We treated Jessie and everyone else who was involved in this case as if they were our own kids. It’s the law. You’ve got to. But we also knew the media was watching. We had to watch what we did because we knew we would be judged on it.” “The fight to free the West Memphis 3” by Stephen Lemons, Salon, Aug. 10, 2000. http://www.salon.com/2000/08/10/echols/

  96 In 2004, the PBS program Frontline reported that almost 95 percent of all cases resulting in felony convictions never reach a jury. They are settled through plea bargains in which the defendant agrees to plead guilty in exchanged for a reduced sentence. http://video.pbs.org/video/2216784391/

  97 In the early 1990s, three Arkansas women formed a group called ARWAR—Arkansans Working Against Repression— as the first Arkansas base of support for the West Memphis Three. Amanda Lamb, Wendy Crow and Mary Boley braved some hostility but mostly indifference to organize concerts, print information, and create a website calling attention to problems with the trials. Lannette Grate, a writing instructor at the University of Central Arkansas, subsequently became the first person I knew associated with a state institution who was willing to encourage her classes to critically examine the case.

  98 Hit List magazine, April/May 2000.

  99 That “crew” consisted of Danny Bland, the Supersuckers’ manager, and Scott Parker, a Los Angeles record producer. Bland explained, “I personally have not committed an unselfish act in my life. Still, this has been about our own protection and everybody else’s too. Look at the life I take for granted. I haven’t done anything wrong, but if the police came to my house and started confiscating my books and music to be used against me in a trial, they would have a field day. Also, on a business level, most of the Supersuckers’ audience is in their twenties to mid-thirties. You can’t make a living selling music to kids and then turn your backs on them, and that’s what I told these artists when I contacted them. I reminded them that these kids sitting in prison represent a lot of people. They support us. It’s only right that we should give our support to them.”

  100 “Hear No Evil,” Arkansas Times, April, 21, 2000.

  101 John Doe observed, “The world is unfair, damn it, and we’re here to try to keep it a little more fair in any small way we can. If there’s anything you can do to stop that sort of injustice, you’ve got to be there. You’ve got to contribute.”

  102 Lycos Chat, May 15, 2000.

  103 Bright and Philipsborn taught together at the annual California Death Penalty College. Burt, editor of the “California Death Penalty Manual,” was one of the defense lawyers on the first Menendez brothers’ case.

  104 They recruited some from the San Francisco area: Tom Quinn to work on Jason’s case and Nancy Pemberton for Jessie. Theresa Gibbons would lead investigations for Damien. The lawyers asked Ron Lax in Memphis to rejoin the case, which he did.

  105 In the preface to its book, Strengthening Forensic Science in the United States: A Path Forward, the National Academy of Sciences wrote in 2009, “The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.” https://www. ncjrs.gov/pdffiles1/nij/grants/228091.pdf

  106 Affidavit of Marc Scott Taylor, Nov. 6, 2000. http://callahan.8k. com/images/m_taylor/marc_taylor_1.jpg

  107 The Yahoo announcement said: “Here’s an intriguing site that details a controversial triple murder case in West Memphis, Arkansas. The site’s creators contend that the men convicted of the gruesome crimes are the victims of an all-too¬common hysteria known as ‘Satanic Panic,’ where the furor surrounding tragic events overcomes the judicial system’s ability to keep things fair and square.”

  108 “Stars Crusade for Man on Death Row,” Cinema.com, Sept. 11, 2000 http://cinema.com/news/item/333/stars-crusade-for¬man-on-death-row.phtml

  109 Documents obtained by the Times confirmed that, at about the time the inmates were contacting the paper about abuses, the Arkansas Department of Correction fined Wackenhut a total of seventeen thousand five hundred dollars for contract violations. The state’s contract with Wackenhut required that at least eighteen critical security posts at the prison be staffed during the day, and sixteen at night. But guards said they’d run the prison with far fewer officers. “Tagliaboschi said he’d worked nights when only nine guards were on duty to supervise six hundred inmates.” Haddigan’s exposé presaged Arkansas’s eventual decision to end the use of private prisons.

  110 Jason laughed that, in trying to cheer him up, some people wrote things like, “Man, I thought I had it bad, but you’ve really got it bad. You make me have to cheer up. Anyway, I

  hope you have a happy birthday.”

  111 The office of Arkansas Attorney General Mark Pryor argued against sending the case back to Burnett. Pryor, the son of a former governor and U.S. senator, would later himself become a U.S. senator.

  112 This was at least the second time in less than two years that the state Supreme Court had chided Burnett for submitting orders that were “conclusory in nature,” without providing reasons in support of his conclusions. In September 1999, the high court reversed and remanded a case from Burnett’s court, noting that, “Unfortunately, the circuit court has failed to make sufficient written findings on the points raised in appellant’s petition for post-conviction relief . . . We have held without exception that this rule is mandatory and requires written findings . . . We made it clear that the requirement of written findings of fact applies to any issue upon which a Rule 37 hearing is held.”

  113 Damien’s attorneys had raised forty-six claims, or reasons, why the court should have granted a new trial on the basis of ineffective assistance of counsel. Burnett rejected each one. He wrote, for example, that Damien argued that his trial attorneys should have challenged Burnett’s acceptance of Dale Griffis as an “expert” in the occult, in the belief that, had that happened, the court would have excluded that testimony. However, if that was Damien’s belief, Burnett wrote, “He is mistaken. Indeed, whether such an objection could have succeeded at trial is doubtful at all, considering the Supreme Court’s determination on direct appeal that the occult evidence went to show motive, which is broadly admissible.”

  114 By now Jason knew that the National Registry of Exonerations was tracking the number of people who were wrongly convicted of crimes and later cleared of all charges. http://www.law.umich.edu
/special/exoneration/Pages/About¬Us.aspx

  115 Ulaby’s report included an interview with the Supersuckers’ Danny Bland, in which he explained why bands like his and L7 were part of “an increasingly high-profile movement” on behalf of the men in prison. “We all realize this could happen to any one of us,” he said. “You know, if they rounded up half of the kids around here with black hair and who listen to Black Sabbath and wear black coats, you know, there’d be no one around here to work at Burger King.” Ulaby noted that some stores refused to sell the benefit CD the Supersuckers produced “because of the controversial cause.”

  116 Supermax and Security Housing Unit (SHU) prisons are controversial. In 1996, a United Nations team assigned to investigate torture described SHU conditions as “inhuman and degrading.” A 2011 New York Bar association comprehensive study http://www2.nycbar.org/pdf/report/ uploads/20072165-TheBrutalityofSupermaxConfinement.pdf suggested that supermax prisons constitute “torture under international law” and “cruel and unusual punishment under the U.S. Constitution.”

  117 The Jaycee program has since been dropped from Arkansas prisons.

  118 In 1977, when Jason was born, the U.S. had fewer than a half-million people in prison. By 2001, when he returned to Varner, the national population had quadrupled, to more than two million. Drug sentences accounted for most of that surge.

  119 After having reported on the West Memphis case for years, I began writing Devil’s Knot in 1998. I intended to focus it on the story of Damien and Lorri Davis, and received their written permission to do so. After the project was underway, they told me that their attorneys advised against their participation and that they wanted to be released from their commitments. I agreed and, deciding to write more in-depth about the case, I contacted Ron Lax, the private investigator who had amassed what I discovered were the best files then in existence. This was shortly after the Arkansas Supreme Court denied all three men’s direct appeals, and no significant legal work had begun on their behalf. Lax, who was highly offended by the way the men’s cases were prosecuted, gave me access to his files in the hope that my reporting would cast more light on the story, expose conduct he considered disgraceful, and keep the case alive. When the book was released, a review in the Toronto Globe said Devil’s Knot took readers inside a case that “has become a Gordian knot for U.S. justice and the nations’ sense of its freedoms.” Bartholomew Sullivan, who had co-authored Blood of Innocents, wrote in The Commercial Appeal that Devil’s Knot now offered “the best blow-by-blow account available of the investigations and trials,” a grace note if ever there was one. A reviewer for Reason magazine observed that Devil’s Knot presented “a horrifying and infuriating look at how moral panics over youth culture can lead to the denial of justice,” adding that the West Memphis case represented a “cautionary tale about the awesome and frequently careless power of law enforcement and the damage it can do when informed by ignorant moral panics and unchecked by rational individuals.” The reviews were good, though some critics felt I had gone too far in pointing to John Mark Byers, the stepfather of Christopher Byers, as the prime suspect. Perhaps I did, but I remain convinced that police should have focused their attention, first and foremost, on him and the victims’ other parents. Instead, the parents, step-parents, extended family members and neighbors were barely investigated at all. As I spoke about the case at bookstores around the state, I learned that many Arkansans who’d questioned the state’s conduct of the trials had felt isolated in their opinions and overwhelmed by the certainty of those who supported the convictions. The manager of a bookstore in Jonesboro where I was once scheduled to appear told me that announcements of my book signing were taken down faster than staff could put them up. Supporter Marie South, who lived in Jonesboro and who had attended part of the second trial while in college, said she’d found it “unfortunate” that everyone she knew seemed to accept without question the state’s theory of Satanism as a motive for the murders. Only after message boards and chat rooms appeared on the Internet did South learn that she was not alone. “When the three were convicted, I figured that was it,” she told me. “I was stunned and touched when I found out that others were interested in the case.”