Dark Spell

by Mara Leveritt

  Now music folded into the mix. During the dark times at Varner, and now at Grimes, Jason had found it comforting to remember that Metallica, the band he liked so much, had contributed its music to the film Paradise Lost. It was phenomenally encouraging for him to think that people with as much going on as Metallica would take time to care about his case and lend their hands—and a few guitars. What Jason did not know was that, by 2000, more musicians were stepping up to support him, Damien, and Jessie—kids who, many performers came to believe, were convicted partly based on their tastes in music. Some viewers may have jeered at the part in Paradise Lost when Fogleman told the jury that there wasn’t anything wrong with heavy metal music “in and of itself.” But many musicians were shocked to hear a prosecutor attempt to link some of their fans to murders by mentioning heavy metal.

  One of those outraged musicians was Eddie Daly. Like Jason, as a kid, he had wanted—really wanted—to be a heavy metal musician. By 1996, when Paradise Lost came out, Daly had adopted the stage name Eddie Spaghetti, moved to Seattle, and was heading a band called the Supersuckers. Jason had never heard of him.

  But Daly knew of Jason. Paradise Lost had struck a deep chord in Daly. He hated what the film represented. “No one is really safe from this kind of persecution,” he said. “You might think that it would never happen in America, but it does. Granted, there are millions of other cases that are probably worthy of our attention, but you can’t go after all of them . . . But maybe we can at least get these kids out of jail.”98

  A couple of years later, Daly was talking to another Seattle musician, Eddie Vedder, the front man for Pearl Jam, when somehow the West Memphis case came up. Daly recalled that he and Vedder ended up speaking about the case for hours. Vedder, who had already become both informed and concerned about it, told Daly that the Arkansas Supreme Court had affirmed the convictions, that Echols still faced execution, and that Baldwin and Misskelley, then in their twenties, remained in prison for life. Daly decided to act. As he put it, he knew he was “no Eddie Vedder,” with records selling in the millions. Nevertheless, he could “do something.”

  Daly and his crew decided to bring like-minded musicians together on a CD to help raise money to investigate the Arkansas case further.99 “It seemed to us that the injustices stemmed from the music these kids were listening to, and the solution may come from that,” Daly said. “We knew it would be a lot of work, that putting together a record like this would be very time-consuming, but we decided we needed to assume that responsibility.” Daly visited the prisoners in Arkansas. “I was struck by how funny and smart Baldwin is,” he told a reporter. “In [the documentary], he was an awkward age—gawky and scared. And now he’s educating himself. He’s an algebra tutor at the prison. He looks like a college student. And he’s got a lot of friends there who believe in his innocence.”100

  Though Jason was grateful, he had never heard of—much less, actually heard—most of the musicians featured on the compilation CD titled Free the West Memphis 3. Fans, however, particularly those on the west coast, recognized some of the biggest singer-songwriters and punk rock bands at the start of the new century. The Supersuckers, Tom Waits, Steve Earle, Jello Biafra, Kelley Deal, Zeke, Mark Lanegan, and the groups Rocket from the Crypt, Joe Strummer and the Long Beach Dub All-Stars, Murder City Devils, Nashville Pussy, The John Doe Thing, and Killing Joke all contributed cuts.101 So did Vedder, without Pearl Jam.

  Biafra explained his decision as, “It could happen to me. It could happen to you.” Waits said, “In our system of justice, the best client for a lawyer is a scared millionaire. The worst thing in our criminal justice system is to be broke or different.”

  “I know I was born and I know that I’ll die, the in-between is mine.”

  ~ Eddie Vedder

  Few at the time knew how deeply Vedder had taken that belief to heart. Here’s how he once explained his response to Paradise Lost and the research he did after seeing it: “There is a lot of evidence to suggest that they weren’t involved, and it’s worth saying there was no real evidence to support the fact that they were involved or guilty. It seems like a case of discrimination, but not necessarily against color or sexual preference. It’s more like against adolescence and ones that may look a little different.”102

  If prisoners had been allowed contact with prisoners at other units, and if Jason and Damien could have kept in touch, Jason might have known that Damien’s wife, Lorri, had gotten to know Vedder personally, and Pearl Jam’s front man was contributing more than music to the cause of freeing the West Memphis Three. Vedder was contributing money, and he planned to contribute more, but as a businessman, he wanted to approach the case with something like a business plan. Growing awareness of the Arkansas case resulted in contributions, large and small, that went both directly to Lorri on behalf of Damien and to the men as a group, via a fund established by the folks behind WM3.org. But realistically, Vedder wanted to know, how could the men be freed? Realizing that high-powered legal work would be crucial, he needed to understand what was possible, given the constraints of law—and what was not.

  In the late 1990s, Vedder asked John Philipsborn, a prominent San Francisco attorney experienced in trial and appellate work, to take a look at the status of all three cases and propose a starting point. Philipsborn accepted the job without charge. He said that as he examined Damien’s case, he and Vedder began working closely with Lorri to calculate how much money would need to be reaised “because there was a lot of material that hadn’t been looked at very well.” As a result of those discussions, Philipsborn said, Vedder offered to help financially “on an ad hoc basis.”

  One of the first things the musician did was to invite all the defense attorneys currently involved in the case to come to Seattle to see if a coherent strategy could be devised. Philipsborn said the question underlying the meeting was, “Would it be possible to raise funds in a concerted way to get lawyers and experts to take a concentrated look at this case?”

  The group gathered on May 14, 2000, at the Sorrento Hotel in Seattle. Vedder and Lorri were there. The attorneys present included Stidham, who now represented Jessie for free; Edward Mallett of Houston, who was representing Damien; and Steve Bright, a death penalty expert and executive director of the Southern Center for Human Rights, who was also helping Damien. Philipsborn attended, of course, and he had invited Michael Burt, the chief trial lawyer for San Francisco’s public defender’s office.103 According to a memo from that meeting, Burt, a nationally known death penalty litigator, had been recruited specifically “to broach the subject of DNA testing.”

  Few outside the room knew the meeting was taking place. In the weeks that followed, Philipsborn recalled, “I made recommendations about the sorts of lawyers that would be needed, the sorts of activities that should be undertaken. I wrote to Dan Stidham and got his files, and I wrote some motions about impounding evidence.”

  But the truth was that the three cases, which had looked disorganized enough at trial, had deteriorated further since then. The fact that Jessie still had Stidham, his trial lawyer, working on his behalf stood out as an oddity itself. Jason had no one. And though Damien’s lawyer had already argued on his behalf before the Arkansas Supreme Court, Philipsborn said, “It wasn’t clear even to Ed Mallett that he was well situated as a post-conviction lawyer in the Echols case.” Though Mallett was president of the National Association of Criminal Defense Lawyers, Philipsborn explained, he was not a post-conviction lawyer.

  “He essentially got volunteered to help in the Echols effort, but after the Rule 37 ruling, Damien was on his way to federal court, and it was fairly clear to us with experience that the case was not properly poised to go into federal court. There were a number of issues that needed to be addressed.”

  Changes within Damien’s team presented another complication. After Damien took Mallett off his case, he and Lorri recruited attorneys Joe Margulies of Northwestern University and Rob Owen of the University of Texas to represent hi
m. As the west-coast lawyers tried to sort out the Arkansas mess, they stepped back and took a look at what had happened legally so far.

  Back at the time of the murders, the police had arrested the men as a group, based on Jessie’s confession. In essence, the three were tried separately because Jessie’s trial was severed and because Jason’s attorney opted not to cooperate with Damien’s, as he considered the two defendants’ cases antagonistic. All three entered separate prisons, and now all faced different issues. Damien had to fight his death sentence and had attorneys helping him do that. Jessie still had Stidham’s support, but Stidham alone could not help him overcome his confession. And Jason, a tag-along to the case who’d still been sentenced to life, lacked even an attorney.

  In terms of attack, the cases looked different. But the overview at the Sorento Hotel led to a new strategy. Yes, each man’s case raised unique challenges. But the murders were a singular event. And since the film and creation of the website, the West Memphis Three had become a singular entity. It became clear that a simultaneous fight should be launched on behalf of all three and that, though individual pleadings would differ, new investigative information should be shared, as it would benefit all. For the first time since Burnett ordered that Jessie be tried alone, the lawyers decided, as Philipsborn put it, “that the three cases would rise or fall as a group.”

  Philipsborn contacted the three Arkansas prisoners. By the end of 2000, Jason had been without an attorney for the better part of five years. Then, he got a call from California. He recalled, “John Philipsborn told me he’d been hired by an anonymous donor to hire an attorney for me.” He added: “John was not allowed to say who the donor was, and I always respected that. I figured, whenever it was meant for me to know, I would know. Eventually, I ended up hearing from somebody that it was Eddie Vedder, but I certainly never mentioned it to anybody.” From that point on, Philipsborn kept in touch with Jason, apprising him of developments as the new legal campaign progressed.

  Philipsborn explained that the plan called for each of the three inmates to be represented by an attorney from outside Arkansas, along with one from inside the state. While the lead attorney for Jason had not yet been chosen, Philipsborn asked Blake Hendrix, a well-established Little Rock criminal defense lawyer, to go to the Grimes Unit and introduce himself to Jason. “I liked Blake instantly,” Jason said. “He told me that he believed in me and that, if I gave him the job, he’d do his best to see that I got out.”

  San Francisco attorney Michael Burt, who was at the Sorento meeting, agreed to represent Jessie. In Arkansas, Jeff Rosenzweig, a prominent criminal defense and appellate lawyer, signed on for Jessie as well. But who would take the lead in Jason’s case? The plan, from the time of the Sorento meeting on, had been for Philipsborn to coordinate the teams’ development and strategies regarding evidence, but that he would not represent any of the prisoners himself. After getting to know Philipsborn, however, Jason asked Philipsborn to be his lead attorney. “The degree of professionalism and dedication that John was exhibiting made me want him as my attorney, and when I saw his credentials, they made me want him even more,” Jason said. “When I met Blake, I said I’d like for John to be my other attorney, and Blake said, ‘I think that’s the best idea I’ve ever heard.’” To Jason’s relief, Philipsborn agreed, and for the first time since 1996, when the Arkansas Supreme Court rejected his direct appeal, Jason had a team of attorneys working to see him freed.

  Eventually, Philipsborn traveled from San Francisco to Newport, Arkansas, to meet Jason in person. By then, the two already felt they knew each other. Jason appreciated the way that, even before they met, Philipsborn gave him information, included him in his team’s discussions and asked his opinions. For instance, because he’d been kept virtually in the dark by his trial attorneys, Jason had never seen a copy of Jessie’s confession. Portions of it had been reported in newspapers, on TV, and in Paradise Lost. Now, Philipsborn sent him a transcript. It was like seeing Paradise Lost again, only this time in perfect detail.

  That was just one of the ways Jason found Philipsborn and Hendrix to be different from his trial attorneys. “John and Blake both had a lot more experience than Paul and Robin did at the time,” he said. “Anything the state put forth—they didn’t accept it on its face. They double-checked everything. John, he doesn’t just go after one thing. He goes after everything. He doesn’t exclude anything, no matter how small or large. He doesn’t become fixated on any one aspect of a case. He’s got to figure out the hows, the whys—every single detail about anything.”

  The teams hired separate investigators.104 “There was some concern expressed that a number of death penalty issues had not been perfected in Damien’s case,” Philipsborn said; “the sort of normal litigation you would expect to see had not been completed. There were large areas of need that pertained to all three, and as we transitioned into the early 2000s, the consensus was there had to be additional work in all three cases. That led to negotiations to see all of the evidence and to hire criminalists because by then, we had been provided with some very generous donations by Pearl Jam and Henry Rollins and others, whom I presume that Lorri was dealing with separately.”

  The attorneys Philipsborn assembled, along with those Damien and Lorri brought to the table, all knew that, nationally, a potential game-changer was afoot in the form of forensic technologies, and Philipsborn, an expert in those technologies, wanted to be ready to use them. Despite images projected by television programs such as CSI, which premiered in 2000, the fact remained—and still does remain—that most police departments, crime labs, and states have been slow to adopt long-recommended practices for better use of the forensic sciences.105 Nevertheless, interest in DNA for crime-solving, which had emerged in the 1980s, was being reflected in laws by the 1990s.

  In 1994—the same year Jason, Jessie and Damien were tried—New York had passed a law allowing prisoners to seek post¬conviction relief if they could present new scientific evidence that was not available at the time of their trials. Other states had followed, and now, as Philipsborn was rounding up attorneys to serve as new teams for the West Memphis Three, an Arkansas state senator was preparing a similar bill for his state. Within months, the Arkansas legislature would pass the bill “to accommodate the advent of new technologies enhancing the ability to analyze scientific evidence.” Though few, if any, realized it at the time, passage of Arkansas’s Act 1780, which allowed post-conviction DNA testing, loosened a critical bolt in the tight sealed West Memphis case, as well as in many future cases of wrongful conviction. Yet challenges under the new law still would not be easy. In order to take advantage of this historic opportunity, a lot of work had to be done—and money had to be raised.

  Over the many months that followed, the legal teams quietly sent criminalists, investigators, and DNA experts to Arkansas. Jason now learned that Ford had not hired an investigator in preparation for his trial and had even rejected the offer of Memphis private investigator Ron Lax to assist, without charge, in his defense. It was stunning for Jason to realize how unprepared his attorneys had been with regard to evidence as he’d gone on trial for his life. By contrast, he said, his new attorneys “tried to get every little piece of evidence tested, as soon as they got the money to pay for it.”

  The specialists discovered that, though Lax’s files weren’t perfect, overall, his records stood out as the most comprehensive of any in the investigation. In comparison, the police department’s records were a shambles. One of the criminalists noted that some physical evidence at the department that needed further scientific tests had not been “stored in a manner consistent with current scientific standards.”106 Even attorneys’ case records were problematic. Stidham readily turned over everything he had, but Damien’s lead trial attorney, Val Price, at first balked at providing the new teams with his files. Ford cooperated, but his files were sparse, to say the least.

  Overall, Philipsborn said, “There was a great deal of stuff missing. Ther
e was no forensic science material there. Nothing you would have expected to have been obtained from the medical examiner. No DNA. No serology work. No notes of criminalists. No notebooks. None of the hundreds of pages you would have expected had been gotten.” Thus began the lengthy process of negotiating with state officials to obtain materials, particularly from the state crime lab— materials the new teams believed the defense attorneys should have gathered in 1993.

  Hearing Philipsborn describe how much work had not been done confirmed what Jason had suspected after his trial: that he’d been prosecuted, convicted, and sentenced based on nothing of substance. It appeared that no one—neither his defense counsel nor the prosecutors—had acted with due diligence or demanded scientific investigation.

  Though the attorneys were not being paid, this other work was expensive, and everyone knew that, if DNA tests had to be conducted, the costs would rise exponentially. Supporters who were not celebrities contributed what they could towards these efforts by way of the WM3.org website. Some contributed five or ten dollars a month for years. A Little Rock man committed to sending whatever return he got on his taxes every year until the men were freed. Generous as those gifts were, they could not approach the amount of money that would be needed to fight the legal battle ahead.

  HBO’s release in 2000 of a second documentary about the case, Paradise Lost 2: Revelations, helped considerably. After the show aired, the founders of WM3.org reported receiving almost eight thousand emails from newly intrigued viewers. HBO also devoted several nights to airing the original film, along with the sequel, and this time, viewers who wanted to look further into the case had several places to go on the Internet. Since the founders of WM3.org were featured in the second film talking about the site, they expected a strong response. What they got was overwhelming.