But now, he knew that while he did not want to live without faith and hope, life demanded more. Blind trust was not enough. And pain was not a sufficient reason to set reason aside. “If my child were murdered,” he reflected, “I would stop at nothing to find out who did this to him. No matter how much it hurt, I would make sure that the police got the one who was guilty of the crime. I would make sure they did their job. I would not let them pull some ace out of the hole—a rabbit out of the hat—and just accept it because they are the police, and I want so much to believe they have found someone that I can hate and unleash all the pain, anger, suffering and grief that have been caused by my loss.”
Jason kept such thoughts to himself, but some supporters were not so reserved. In March 2002, Henry Rollins wrote about the West Memphis Three in his newsletter to fans, “They were incarcerated through ignorance and a blindness that is as infuriating as it is horrifying . . . These three are innocent, and to stand for the kind of insanity that convicted them is to align oneself with all that is bad.” He added, “I know that this is not the only case of innocent people in prison, and I am not trying to imply that this is the only case like this that should be addressed. But it’s there, glaring in your face, obscenely flaunting its ignorance and hatred. You can’t let this kind of thing happen on your watch and call yourself free.”
Similar questions disturbed those outside the prison who’d become interested in the case. Some, like Hansen in Denmark, found Jessie’s confessions persuasive, though much about the case remained troubling. Others, convinced of the WM3’s innocence, wondered whether regional religious biases had played a part in the verdicts, or if the police had directed attention to the teens to spare someone else, or if the judge and the prosecutors had been in league to assure the convictions for reasons no one knew. For some, suspicions about the integrity of law enforcement in the area were heightened in 2002 when it was reported that a handful of Crittenden County drug enforcement officers were indicted for skimming money from drivers passing through West Memphis on the city’s two interstate highways.120
In 2002, Bartholomew Sullivan reported in The Commercial Appeal that the West Memphis Police Department’s new chief, Robert H. Paudert, suspected illegal activity among some officers. Not knowing whom he could trust, Paudert had taken his concerns to the Federal Bureau of Investigation. Agents there understood he had reason for concern. For years, Crittenden County had opted not to participate in the state’s network of county drug task forces, which shared all drug monies seized. Sullivan reported that, in 2000, Crittenden County’s independent drug task force had seized $5.43 million on the highways that passed through West Memphis and Marion. That constituted more than half the total amount of drug money seized during that year in the entire state. In 2001, FBI agents conducted at least two sting operations. Those led to indictments the following year.121
As Sullivan reported, “It may have been the recent, sudden improvement in the livelihoods of some of the officers—fancy motorcycles, big houses—that made neighbors and fellow officers suspicious.” Some of the flash points that caught investigators’ attention were a sheriff ’s deputy who lived with his schoolteacher wife in a quarter-million-dollar house, two deputies who flew private airplanes, one who’d reportedly paid $18,953 in cash for a Harley-Davidson motorcycle, and another who was said to have paid for a $26,500 ski boat with $100 bills.
In July 2002, a federal grand jury indicted four narcotics officers, charging them with stealing money from suspected drug couriers. Two former sheriff ’s deputies and two men from the West Memphis Police Department were charged with having pocketed more than a half-million dollars. Three of those men, including West Memphis Police Inspector James Sudbury, a narcotics detective who had played a key role in the investigation into the 1993 murders, had been subjects of a probe that was still underway at the time of the murders. Sudbury was not indicted in 1993 or in 2002, though after the second investigation he was fired for violating policies regarding cash seizures.122
“Indeed,” Sullivan wrote, “suspicion about misuse of the drug war tactic that’s supposed to drain the profits from illegal drug dealing is an old story in Crittenden County. An Arkansas State Police investigation in the early 1990s turned up some wrongdoing involving seized evidence and sloppy recordkeeping by an earlier version of Crittenden County’s drug task force. At the time, a few wrists were slapped, including those of two of the three recently fired West Memphis police officers and a sheriff ’s deputy . . . But Prosecuting Attorney Brent Davis elected not to file charges in 1993, records indicate.”
Yet it was almost as though the indictments and the history they represented had unfolded in a vacuum. Except for Sullivan, nobody mentioned Davis’s role in allowing the “highway robbery” to continue. By 2002, Fogleman had become a respected circuit judge. And Judge David Burnett was being heaped with honors. In March 2002, the Arkansas Supreme Court named him chair of its Committee on Criminal Practice, and at the end of the year he was elected president of the Arkansas Judicial Council, a prestigious group made up of all the state’s judges, including those on the state’s court of appeals and Supreme Court. “That 2002 election was a big deal for me,” Burnett told an interviewer. “Being recognized by my peers was an extraordinary compliment.”123
It seemed to Jason that, the more the West Memphis trials were criticized from outside Arkansas, the more the legal establishment within the state supported them. It looked like a strange gap was developing between people who saw the case as a cause for alarm and a legal community that saw nothing extraordinary in it. Didn’t there need to be some common understanding between the public and the courts? Sometimes, Jason thought that his case surely would collapse of its own absurdity. But then, he had only to look around himself—at the gray cinderblock walls, the bars outside, the police and the electrified fence—to remember how wrong he’d been to believe for so long that absurdity could not prevail.
With so much mystifying about the past and so much to long for ahead, Jason kept sane by focusing on the present: on his work, girlfriend, letters and Hacky Sack. At night, even when his reveries looped back to his trial, he’d never lie awake long. Drowsily, he’d think, “It was like playing Mike Tyson’s punch out on Nintendo. The courts are Iron Mike and I am Little Mac. But someone unplugs my controller from the game console and Little Mac gets knocked out. One! Two! Three! You’re out! That’s it. Game over.”
“Anyone who has the power to make you believe absurdities has the power to make you commit injustices.”
~ Voltaire
Near the end of 2002, officials at Varner moved Jessie into the barracks where Jason lived. Jason said he was glad because Jessie had struggled in prison, fighting a lot, and Jason hoped that now he could “help keep him out of trouble.” He wished he could have been there for Jessie when the West Memphis police asked to interview him. As Jason now saw it, “The police were not going to let Jessie out of that interrogation room until one of three things happened: (1) Jessie’s father makes the police let him out, stating, ‘Enough is enough; as you can plainly see, my son does not know anything about these things’; (2) an attorney arrives and makes the officers let Jessie go; or (3) Jessie agrees with their views and just gives in to their overpowering and aggressive tactics.”
He elaborated, “I do not know where Jessie’s father was during all this mess, and, obviously, Jessie did not have an attorney. So poor Jessie knows only that telling the truth to these people is not working. He’s been in the interrogation room for hours. How long does it take to answer a few questions? How many times did Jessie tell the police the truth that they refused to accept? How did the police show Jessie their dissatisfaction with his truthful answers? How did it make Jessie feel to be saying what he knows to be right and yet having the ‘good guys’ not believe in him and absolutely refuse the truth? One cannot imagine how torn Jessie must have been feeling after hours of their calculated and ruthless tactics, knowing that he was telling them
the truth and yet still they refused to accept it.
“I bet he was wishing for someone with morals and a sense of decency to come into that room to make it all stop, to say, ‘Hey, Jessie, sorry to put you through this mess. We know you are telling the truth. Here, we’ll call your father to come and get you so that you can go home and live your simple but peaceful and pleasant life.’ And everything would have been okay. But, no. These strangers, who now are extremely hostile to Jessie, who refuse all the true answers, will not let him go, and no one is coming to let him go home. What can Jessie do but agree with them?”
For Jason, Jessie’s slide from resistance to compliance was as understandable as heat melting ice. He’d felt that heat—that pressure—himself. He’d experienced the cajoling, the refusals, and even the life-saving enticements. No. Not for a minute could Jason blame Jessie for his collapse. It was too easy for Jason to put himself in Jessie’s place.
“Jessie never wants to hurt anyone or disagree with people or make anyone mad at him,” Jason said. He begins to think, ‘It is just words.’ If he just agrees with them, they will let him go home. They have, after hours of interrogation, made it plainly evident, even to Jessie, that they are not going to accept anything from his mouth but what they want to hear, so that they can wrap this case up and get everyone off of their backs. So what does Jessie do, being the good guy that he is? What can he do? What could anyone do in that position, but begin to agree with them. Meet them halfway in the lies, and if he gets it wrong, don’t worry, they are now heading in the right direction. They are his friends now, so they help him out if he gets some of the answers wrong. It is like a difficult test, except that the ‘instructors’ are walking him through with each question and if his answers are wrong, they’ll supply the facts.
“Jessie still knows it is wrong, but at least at the immediate moment, some of the stress that these people have caused him is being lifted by him answering the questions the way that they want him to. That is the way I think that day went down for Jessie. He had no choice. They only recorded what they wanted to. They never allowed anyone who had Jessie’s better interest into that room.”
That was Jason’s subjective assessment. He had no way of knowing, as he contemplated Jessie’s experience, that at almost the same time, a college professor in Puerto Rico was also reviewing Jessie’s session with the West Memphis police—but from an objective point of view. Dr. Martin D. Hill, who taught pharmacology, had seen Paradise Lost, checked out WM3.org, and become intrigued by the amount of information increasingly available on the Internet. He began to scrutinize parts of the case that he found particularly “mind-boggling.” Jessie’s confession was one of those.124 Hill wanted to see if he could find new information embedded in the parts of Jessie’s interrogation the police had recorded. He said he wanted to “ponder the deep question: ‘How can you tell when someone is saying nothing?’”
Taking an academic approach to that question, Hill searched the transcripts for key words, noting when they were spoken and by whom. In a study he later published in a scientific journal, Hill concluded that Jessie had provided “none of the key, specific, verifiable details” of the crime, that “the police were the source of nearly all of the substantive information” regarding it, and, further, that the information that Jessie himself supplied was “contradictory” and “incorrect.”125
Jason did not know about Hill’s study, and it would have changed nothing if he had. Reports of a different kind dominated the news that spring of 2003: the explosion of America’s space shuttle Columbia and the U.S.-led invasion of Iraq. At Varner, the big news for Jason was a job change. Jason was moved to work as a clerk in the prison’s law library. It was an intellectually demanding job that required speed, computer skills, and the ability to communicate about law with inmates who often knew little about it beyond that they’d been convicted. Jason welcomed the challenge.
He worked in the library from seven in the morning to forty-thirty in the afternoon, and again, from seven to ten in the evening. While a free-world employee ran the library, clerks like Jason were expected to fill stacks of requests for books submitted by inmates. When inmates brought in handwritten legal motions they wanted submitted to the courts, the clerks had to type them. Jason worked nonstop, looking up cases on the library’s Gateway computer and running off copies for inmates on the little dot-matrix printer.
“I worked my butt off in there,” he said. “That was the most hardworking job there was. You had the Supermax just opening up, and the death-row population moving into it. There were statutes and court rules to learn. I learned all about LexisNexis, a database of law, there. It gives you connections to court rules, statutes, journals— anything related to law, state and federal. I was getting a crash course in legal research, without instruction or guidance.”
He reflected, “I wouldn’t say I was educated, really, but I was working with what I had access to. I learned how to make a search phrase to look up certain terms. I’d type up a legal brief description and index it for the guys or print it out for the guys in lockdown. After a while, I devised a cheat sheet for myself. I set up a hyperlink, saved it, and when I needed it, I could pop it up, and it would take me straight to LexisNexis.”
Jason’s system worked, at least within the limits of his position. “Guys come in,” he said, “and they don’t have any idea where to begin researching their case. So the first thing I tell them is, ‘Hey, I’m not a lawyer. And I can’t be a lawyer. I’m definitely not your attorney. I would love to work magic for you, but you’ve got to be your own lawyer or find a lawyer.’ A lot of times, I would type letters to attorneys for them. But I was always very clear on how I could help and how I couldn’t.”
What he could do was explain how legal processes were supposed to work. He’d talk inmates through their direct appeals, Rule 37 petitions, and coram nobis petitions—filings asking a court to correct a previous error “of the most fundamental character.” (Courts can respond by issuing writs of error coram nobis in order to “achieve justice” where “no other remedy” is available—but they are extremely rare.) Jason understood that, but rarely offered such disheartening information, preferring to direct prisoners to the statutes and the most relevant or authoritative references for each point they wanted to raise. Thus informed, the inmates could start requesting the resources they wanted by name. But there was always a grim tenor to the work. Though prisons are required to provide law libraries, Jason privately knew how much of the work he saw prisoners doing there would almost certainly prove futile.
“Most people didn’t have a clue about the law in any way, shape, form, or fashion,” he said. “And the more they would file and get rejected, the more hopeless they would feel. I never saw anyone get some relief. No. It’s a tough system, and the majority of those guys were not innocent. They were just trying to get better deals or something. Some people, like me, would think, ‘I’ve got a slam-dunk case,’ but the law is basically a whole bunch of opinions, and people’s opinions are as multitudinous as there are people, and it’s very hard to get judges’ attention to reflect on their opinions.”
Every delusion about law Jason had entertained at sixteen was long gone. He understood full well the magnitude of the job his current lawyers faced. Once a person was convicted, the obstacles to a rehearing were huge, no matter how rational the need for one might appear. “You have everything you need for relief,” he said, “innocence and everything that proves that. And you think that the law is like a computer program or a combination lock. You get all these things that are necessary and it works. But it’s not like that. They can just shut you down and refuse to listen or even to give you a reason why your petition has been denied. It’s not like there’s a recipe that works all the time. It’s like you’d get a recipe for baking a cake, but a thousand times out of a thousand and one, it doesn’t bake.”
In addition, Jason knew, the recipe for his own case was more complicated than most. The state’s theor
y of the case was that he, Damien and Jessie had murdered the children together, yet each of the inmates’ cases presented different challenges. Jessie’s lawyers had to tackle his confession. Damien’s had to fight against death. And Jason’s lawyers, ironically, had to get a court to consider the distinctive factors pointing to his innocence. And all of this had to be accomplished despite the state Supreme Court’s findings that Jessie had confessed to the police and that “there was evidence from which the jury could reasonably find that both defendants [Echols and Baldwin] said they killed the children.”126
The teams of attorneys Philipsborn formed produced a high-octane mix of legal minds and egos engaged in a high-stakes effort. By 2003, when Jason was working in the law library, he was aware that tensions had arisen among the attorneys, especially over strategies and timing. He anchored his confidence in Philipsborn. “John’s belief is that you don’t get into the ballgame if you can’t control the football,” he explained. “He’s not going to get in there without everything he needs. John plays for the long game. He had no faith in Burnett, but he knew you’ve got to get everything you want to get in before the lower courts so it will be there for the higher court. He never speculated about how long the process might be, but I held out hope.”
When asked how he’d managed to hang onto that hope, knowing what he did now about the law, Jason said he’d chosen to develop a positive attitude as a child, “being around people who were always complaining about things.” He said, “They were too busy complaining to see the good things, and I tried not to be that person. Regardless of what’s going on, there’s some good in it too, even if it’s just your ability to do pushups in isolation—because there’s some people who can’t do pushups. Not that you turn a blind eye on what’s going on. But at the same time, you don’t want to spend so much energy focusing on the hard stuff that you don’t let yourself find happiness.”
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