Mitchell asked what information Pam had that made her think Terry might have had something to do with the children’s deaths. According to a police transcript of the interview, Pam told Mitchell that she’d had an extramarital affair in January 1993, and that Terry had caught her in the kitchen kissing the man. “Terry walked in and he beat the guy up and all that stuff,” she said. “But he doesn’t really appear to be angry enough at me that he wants to divorce me or anything like that, you know, everything is gone be all right. We gonna go on with our marriage and stuff.”
Ten years later, however, she said, Terry had “set a trash bag out on the carport and said that that was my clothes and that’s what I could take with me . . . Terry had taken every stitch of clothing that I had. I don’t know if he cut it with a knife or if he cut it with a box cutter or what. But the clothing that he had in that trash bag to give me—and this was even down to my bras and underwear—they were cut.” Pam said she was reminded that Terry had told her in the beginning of their marriage, “I don’t get mad, I get even.”
Lt. Mitchell asked about the items that Pam’s sister had brought to Stidham sometime after Pam and Terry’s divorce in 2004. Pam said that when she and her sister, Jo Lynn, started moving things, they found a collection of twelve to thirteen knives, which Jo Lynn took home with her. When Jo Lynn examined the knives, Pam said, she found among them a pocket knife that their father had given to Stevie. “Stevie carried it with him all the time,” she said. “He would have had it with him that day. It was in Terry’s knife collection and we was wondering why in the heck is this knife here, because the family didn’t give it to him.”
Pam also said that they found a strongbox in the top of their closet that belonged to Terry, which he kept locked. She said that, when her brother-in-law had pried it open, they found a dental partial that Terry had worn, “a little bitty necklace that had a penny on the end of it, and the year was 1984; that was the year Stevie was born. And I think he had maybe a marble or something like that, and that’s all was in that strong box.”170
Two days later, on June 21, Terry Hobbs came to the police department to be interviewed by Mitchell. Terry explained that, though the family had a phone at their home, he did not call the police to report Stevie missing until he picked up Pam at the restaurant because he thought he “had mentioned that to Dana”—the mother of Michael Moore. The interview covered Terry’s account of the night the boys disappeared, the day the bodies were found, and the couple’s life thereafter. He said Pam’s sister had planted the drugs for which he’d been arrested in Memphis.
Mitchell showed him a photo of what he said looked like “some partial dentures.” Hobbs identified the partial as his and said that Pam and her sister had taken it. Mitchell next showed Terry photos of knives, and Hobbs said, “They’re mine.” He explained that he did not remember where he’d gotten most of them, “’cause a lot of time I would find ’em on the ground somewhere and just pick ’em up and put ’em in a little box or something like that.”
Mitchell then showed Hobbs a photo of two items, one of which was a pocket knife, that Hobbs said he did not recall. Mitchell asked if Hobbs remembered Stevie having a knife at all. Terry said that, “his granddaddy may have given him one. It’s possible. I can’t say yes or no, though.”171
By the time of that interview, at the end of June, Jason had spent a total of five months in solitary confinement at the Supermax Unit. He thought about Terry Hobbs occasionally, but speculation about who had actually killed the children had never struck him as productive. To the contrary, as he put it, “Any time I hear of someone being accused of something, I immediately start looking for that element of doubt. I don’t start looking for ways of justifying the idea that that person is guilty.”
Instead, his thoughts mostly looped back to his first stint in solitary confinement, at the jail, after his arrest. He remembered how hard he’d held onto the seemingly logical belief that officials were collecting physical and biological evidence from him because they had collected other physical and biological evidence with which they were going to compare it. Surely, he’d thought, that was why investigators had, not once but twice, taken fingerprints, handprints, footprints, hair, saliva, blood and writing samples from him.
Throughout those long months at the Craighead County Detention Center, Jason had trusted that scientific comparisons would exclude him as the murderer. But then came the shock at his trial when the prosecutors did not introduce a single piece of biological evidence. In fact, the only physical evidence they ever claimed linked him to the crime at all was a solitary fiber found on the victims—a fiber that they argued could have come from Jason’s home.
Jason recalled begging Ford to tell him why—“Why had the state taken all that stuff if there was nothing to compare it to?”—and Ford saying he didn’t know. Jason remembered Ford saying, “Their story was that there was nothing to compare it to.” Though Jason had thought that made no sense, he’d felt “just swept along for the ride.”
Now, some things did make sense. Now, Jason knew for certain that the state had possessed biological evidence from the crime scene all along. He knew that testing of that evidence was now complete. And he knew that those tests had, as expected, excluded him, Jessie and Damien.
He understood that the tests did not establish anyone else as the murderer. But disappointing as that was, what amazed him most was the deeper understanding as to why his prosecutors had not introduced any biological evidence at his trial: it would have undermined their case.
“Finally!” he thought. One of the most perplexing pieces of his fourteen-year puzzle had snapped into place. “There was biological evidence! The state had it before the trial! The state had it all along! And they didn’t use it.”
Philipsborn was careful to warn Jason that, because of the uncertain results, a difficult and perhaps long fight lay ahead. Jason accepted that. With no end to his “administrative confinement” in sight, he remained polite, stoic and patient, at peace with himself and his thoughts. When he found out that the hair of Terry Hobbs had been found inside the knots binding Michael Moore, he tried not to make much of it, though it did seem to him “a damning place to have a hair.”
So much had changed in fourteen years—for the West Memphis Police Department, Jerry Driver, Vickie Hutchison, Melissa Byers, the Hobbses, Fogleman, Davis, Burnett, and even Robin Wadley, his trial lawyer who’d been disbarred. Citizens around the world—and including a fair number in Arkansas now—were calling the trials an injustice. Yet, in a more immediate sense, nothing at all had changed. At thirty, Jason sat locked in an isolation cell, just as he’d sat for months after his arrest at sixteen. Now, as then, though, he held onto hope, occasionally even allowing himself to envision what it would be like to be freed. Once, he committed that dream to paper, in a poem titled “We Emerged.”
We emerged
with skin
pale as the tombs we were condemned in
as soft as mom’s prayers
Our hands
float past
our faces
carrying
more than our dreams
could have imagined
as they wave away the memories that would anchor them as surely
as the steel Smith & Wesson cuffs we were just let out of
I open my mouth with a smile
Not sure if I could bear
To go
Back
In.
The price of such dreams was steep: the certainty, as each dissolved, that the cuffs remained in place: that he was still—as always—“In.” He was grown now. He’d come of age in a hard way: as a convicted child-killer in prison. Yet through it all, he had not lost hope. He believed that the day would come when all the effort pouring into this case would bear fruit, when the state would admit he was innocent, and an honest investigation into the murders would finally occur.
On June 25, 2007, guards came to Jason’s cell to tell him to gathe
r his belongings. He was being moved again, back to Tucker, though this time he’d go straight into another isolation cell there, at the complex’s Maximum Security Unit. On the drive, the van in which Jason sat cuffed and shackled passed close by the Diagnostic Unit in Pine Bluff, where he had entered the system and where the department’s hospital was located. Jason did not know it, but inside that hospital, a thirty-seven year old inmate from West Memphis lay dying. Ronald Ward— Jason’s friend, Jibril—would die there four days later.
Back in 1985, when Burnett sentenced Ward to death, the judge told a newspaper, “The tragedy in the Ronald Ward story is he’s a victim of a society that allowed him to live in a situation where he had no guidance or control. But Attila the Hun probably had unfortunate circumstances, too. One purpose of our system is to protect and exact retribution.”172
Ward died of natural causes. But so far, just during Jason’s time in prison, states in the U.S. had executed more than nine hundred prisoners—twenty-two in Arkansas alone. By the time Jason moved back to Tucker, opposition to the death penalty was growing, and that year, two more states would join the sixteen that had already outlawed the practice. And, though it was too late for Jibril, Jason, and Jessie, another, less well known movement—this one to abolish the practice of sentencing juveniles to life in prison—had also begun.
Jason entered yet another prison, unsure of almost everything— except himself. He knew what he would and would not do and how much he could survive. He saw how cynicism and sham had perverted his trial. He knew that the “West Memphis Three” had supporters who recognized that too and that, because of them, he, Damien and Jessie eventually would “emerge” from the “tombs” to which they’d been “condemned.” Yet, for all that, there was a way in which he remained as naïve as he’d been at sixteen.
Jason still expected that when the key turned and a court set him free, it would be because reason and evidence had prevailed at last. For all he’d experienced of cruelty and cunning—the deaths, the deceits, the deals—Arkansas inmate #103335 could not have fathomed the depths to which officials would yet go to keep him— and the truth of the murders—buried.
NOTES
1 This trilogy uses endnotes because stories, like investigations, are multi-layered.
2 In 1977 I was a green reporter, a mom with two kids in school, and a member of Amnesty International, an organization that opposes the death penalty “in all cases and under all circumstances.” That year, only sixteen countries had abolished the death penalty, though as I write this, thirty years later, that number has risen to ninety. The United States is still not among them.
3 In “Carl Albert Collins v. State of Arkansas,” No. CR75-110, Mar. 7, 1977, Chief Justice Fogleman also found that “death by electrocution is not unconstitutionally cruel.”
4 Courts have traditionally accorded juveniles some kinds of special treatment, though standards have been haphazard. During the 1980s and 1990s, many states, including Arkansas, enacted legislation that allowed juveniles to be “transferred” to adult status for trial under particular circumstances and according to different procedures. Arkansas is one of fifteen states that allows prosecutors to decide to charge a juvenile as an adult, though, if contested, the transfer must be approved by a judge. “Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting,” U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention, Sept. 2011. https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf. For a brief history of courts’ treatment of juveniles, see: http://www. pbs.org/wgbh/pages/frontline/shows/juvenile/stats/childadult. html.
5 The Foglemans in Crittenden County likely trace back to a German family named Vogelmann, members of which emigrated to North America in the mid-1700s. A branch of the family that spells its name ‘Fogelman’ is prominent across the river, in Memphis, Tennessee, particularly in real estate. Their name shows up in the Fogelman College of Business and Economics at the University of Memphis and the city’s Fogelman YMCA. Avron B. Fogelman, a Memphis real estate developer, was a former part-owner of the major league Kansas City Royals baseball team and several Memphis-based sports teams.
6 Mississippi History Now: http://mshistory.k12.ms.us/ articles/319/surviving-the-worst-the-wreck-of-the-sultana.
7 Memphis Argus, April 28, 1865.
8 The official number of dead from the RMS Titanic is 1,502. Small markers in Jefferson Davis Park in Memphis and in Knoxville, Tennessee, commemorate the Sultana explosion.
9 Arkansas Democrat-Gazette, April 25, 1999
10 As reported by Seth Blomeley in the Arkansas Democrat¬Gazette’s profiles of Fogleman and his opponent, Courtney Henry, in their 2010 campaigns for the Arkansas Supreme Court.
11 The public defender, Thomas B. Montgomery, said he is ethically barred from speaking about the case and that, because it was a juvenile case, records from it have likely been destroyed.
12 Jason’s mother, recalled that she had to pay part of the court-ordered restitution every month, “And if I didn’t pay on it every month, they would send my kids to a juvenile home.” It was her understanding that she was paying for damages to the window of a car that had been shot out with a BB gun.
13 “15-Year-Old Death Row Inmate Says He’s ‘Still Scared’ of Dying,” by David Speer, Associated Press, Oct. 11, 1985, http://www.apnewsarchive.com/1985/15-Year-Old-Death¬Row-Inmate-Says-He-s-Still-Scared-of-Dying/id-798e9 c622ddadb70eceea37d20def176. The Supreme Court’s opinion:. http://opinions.aoc.arkansas.gov/weblink8/0/ doc/94303/Electronic.aspx. The court’s criticism of Burnett notwithstanding, Arkansas judges the following year voted him the state’s Trial Judge of the Year.
14 Here, the defendant, David Strobbe, was charged with murdering a woman near West Memphis by running her over with a car. The jury found Strobbe guilty and sentenced him to life in prison. But when Strobbe appealed, the state Supreme Court found serious error with Fogleman’s prosecution. The “critical evidence” withheld from Strobbe’s attorneys was nothing less than information that the state’s key witness, who had offered eye-witness testimony against Strobbe, had himself participated in the murder. “The state knew its case rested primarily on this one witness,” wrote the high court’s new chief justice, “and they represented that he was merely there—that he only saw the crime.” The Supreme Court further noted that the district’s chief prosecuting attorney claimed he was not personally aware of that fact at Strobbe’s trial because his deputy, “Mr. Fogleman, apparently had not thought it significant enough to tell him.” One justice concurred with stronger language. “I agree the decision must be reversed,” he wrote, “but in my opinion the error consisted of officers of the state misrepresenting the truth, not merely remaining silent.” David T. Strobbe v. State of Arkansas, No. CR 87-143, June 20, 1988. (http://opinions.aoc.arkansas.gov/ weblink8/0/doc/94691/Electronic.aspx) Years later, Fogleman told a reporter that he’d been embarrassed by that ruling. “I learned a very, very valuable lesson,” he said. “From that point on, if there was anything—just about anything—I provided it to the defense.” (Center for Public Integrity, Mar. 8, 2004.)
15 Center for Public Integrity report, 2004; http://www. magnacartanews.greatnow.com/Arkansas_Prosecutorial_ Misconduct.html
16 Damien, born Dec. 11, 1974, was the oldest of the three. Jessie, born July 10, 1975, was six months younger. Jason, born April 11, 1977, was a year and ten months younger than Jessie and two years and four months younger than Damien.
17 Jason’s mother, is adamant that she did not throw a knife into the lake. In an online exchange in 2013, she wrote that, “. . . for anyone saying I threw a knife in the lake is wrong… I didn’t allow my children to have knives, and when Jason got a knife a year earlier he accidentally threw it way out in the middle of the lake . . . my children had no knives at the time of the murder of those three children!” However, in Jason’s Rule 37 hearing on Aug. 14, 2009, Joseph Samuel Dwyer, a friend of Jason’s, testified: “I remember the scuba diver who found a
knife in the lake. I also remember that it was Jason’s mother who threw the knife in the lake. She did not want him to have any knives. She had found one and she threw it out there out of anger.” These statements correspond with recollections of Jason’s brother Matt, as related in a letter to me dated Mar. 15, 2013. In a Petition for a Writ of Error Coram Nobis filed in 2008, Jason’s attorneys told the court that “post-conviction investigation has revealed that at least two witnesses [Domini Teer and Garrett Schwarting] told police that they were aware that a large knife was thrown into the lake before the murders. Also, one of the officers has indicated the officers were given precise directions on where to find the knife.”
18 In 2001, Fogleman recalled, “I started working as a deputy prosecutor in 1983. I was also the juvenile prosecutor, and I think I’d had encounters with all three of the defendants. I think all that came into the trials, at least in the hearing to transfer the case to juvenile court. I think Jason had only been there one time, maybe. It may have been a felony. But it wasn’t anything of a violent nature. And Jessie, to be honest, I can’t remember. I’m pretty sure I’d had dealings with Jessie as well. And, of course, Damien had been in there a time or two, and he was different. In his attitude and the things he was accused of. They all had a little twist to them. ‘Bizarre’ may not be the right word, but he was definitely outside the norm. His attitude was the only thing that stands out really in my mind. Probably when he was in juvenile court—it was probably close to 10 years ago, it may have been after he had come back from Oregon, he’d gotten into trouble, I think. I remember him coming into court, and I remember the way he just turned and looked at me, and it wasn’t evil, it wasn’t laughing, it wasn’t sad, it was just blank. There wasn’t anything there. I commented to somebody at the time, the way his eyes were and how empty they seemed. At that point, I just thought it was odd, and even as a prosecutor who’d dealt with a lot of things, it was odd and a little unnerving. Most of the juveniles we deal with are typical kids from poor economic circumstances, where crime is basically a way of life for them. Their families have been involved in the criminal justice system for years. You get a certain arrogance with them. For some who come in, it’s obvious, just from their appearance, that they won’t ever be back; they’re scared. But Damien’s attitude was different from anybody’s I’d ever experienced before. And frankly, he didn’t stand out from anybody else in my mind up until that point.”
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