When The Smoke Clears

All bad news starts with a phone call.

Half asleep, Jason Lively dashed downstairs after the voice on the other end of the line said, “Doc’s house is on fire.”

The “Doc” in question was 70-year- old Ebb Whitley, a revered — and only — physician in the Iaeger, West Virginia, a town of just a few hundred.

Lively knew the doctor well. His mother, Kathy, worked closely with Whitley as a nurse for 25 years. And the fact that Whitley was a paraplegic made the situation more urgent as Lively raced to the scene.

When Lively arrived, he saw stopped cars and fire trucks in front of Whitley’s brick home, which sat adjacent to his medical clinic.

With smoke billowing out of the house, Lively ran upstairs with one of the firefighters. He stopped 10 feet short of Whitley, who had either fallen or dragged himself out of bed in an attempt to escape the flames.

“Doc” lay motionless. It was too late.

“It was horrible,” said Lively, before pausing and pushing back tears.

A few weeks after the fire, authorities showed up at a coal mine where Lively worked. It was payday, Lively remembered, and the police hauled him away.

NOT A WHODUNNIT, BUT A HEDUNNIT

An initial fire investigation determined that someone had deliberately set the blaze that claimed the life of the Air Force veteran-turned-doctor and local political figure.

At the time (March 2005), a deputy state fire marshal who’d been with the office for about 10 months led the investigation. He believed that a fire raged through a couch and coffee table in the living room and the wooden floor of a bedroom. He concluded that two separate fires were set – one via an open flame to the sofa downstairs and the other by an accelerant containing toluene, a colorless liquid associated with degreasers and paint thinners, to the upstairs bedroom.

Suspicion started to circle around Lively, then 29.

The day before the fire, a witness claimed to overhear Lively’s mother threaten to kill the doctor after a heated argument. Such dustups were common within the often-contentious nurse- doctor relationship, according to those who knew the pair.

“Doc had an argument with mom and Doc said he’d hit her,” Lively said. “Mom said, ‘If you put your hands on me, I’ll kill you.’ They always had conversations like that. For real. After a while, they’d smooth it all out and everything would be OK. But I don’t know why either of them kept putting up with that.”

Lively’s reputation in the area didn’t help matters. By his own admission, he was no choir boy growing up in McDowell County. He frequently got into fights and was known by local law enforcement.

“My mom and dad divorced when I was young, so I kind of lived two lives,” Lively said about his upbringing. “My dad was an outlaw and my mom was a saint.”

He may have been too much to handle for his mom, as he went to live with his dad at 15.

The elder Lively died a few years later. During that period, everything got (effed) up, Lively said, and fueled his rebellious ways.

“When you’re doing that kind of stuff at 16 or 18, you’re a tough guy,” he said. “But when you’re pushing 30, it’s not as glamorous. You’re a bum.”

He knew that made him an easy target to pin the dastardly crime on.

The prosecutor did just that, highlighting Lively’s checkered history. Two witnesses also claimed that Lively and a friend (who was acquitted in a separate trial) had been at Whitley’s house the morning of the fire. The defense questioned the credibility of one witness, a jailhouse informant, while the other witness recanted and claimed that the police coerced him.

Still, on Nov. 21, 2006, a jury found Lively guilty of first-degree murder and first-degree arson, sending him to prison for life with mercy.

“No one wanted to bring up that I tried to save Doc,” Lively said. “And if I really did kill somebody, why would I be over there? Going back to the place where I killed somebody? Oh, hell no. I ain’t getting nowhere around there.”

HELL WITHIN HELL

Despite a life sentence behind bars and asserting his innocence, Lively figured he needed to make the best out of what was handed to him. He leaned heavily on his street smarts and grittiness from all those fights and an unsteady youth.

If not for his father’s “outlaw” mentality, Lively thinks he would have barely survived prison.

The McDowell County hellraiser who never cared much for school and dropped out of community college resorted to an unlikely source of comfort: books.

“One of the things that got me through were books,” he said. “My family – God love them – would send me any books I wanted. Never a question.”

But positive moments like these were few and far between, especially with much of his time spent in solitary confinement.

“I got beat up every day for fighting for wanting to call my family,” Lively said. “I spent about six years locked up in the hole at one time – at one time. One particular warden would come to my cell just to mess with me. He tormented me.”

Lively contends he’d get sprayed down for no reason, his legs kicked out from under him and bodily fluids thrown at him, among just some of the unsavory acts committed.

The most traumatizing pain, however, did not stem from bullying or assault from within the prison walls. Lively said thinking about his family and loved ones hurt the most.

“That’s the hardest part about being locked in a little box for so long,” he said. “It’s constant and all you have to do in that little room is think. How was I going to make it better? And I had all of these people that I had been nothing but a burden on. And I was a burden on everyone long before I went to prison.”

His mother and his future wife, Billie Blankenship, served as Lively’s biggest champions. He and Blankenship had gone to the same high school, where they’d been friends and flirty. They would reconnect when Blankenship started writing to Lively in prison. She became immersed in his case and advocated for his release.

More support would filter in from the outside world, from folks who’d never even met Lively, to his bewilderment.

“Why would anyone spend any time and effort to help a stranger in my situation?” he pondered. “No matter what, 75 percent of people who know me and the case in its entirety will still believe that I did it because I was already stained with the reputation of being in prison for murder, you know what I mean?”

THE BELIEVERS

Eleven long years passed into Lively’s sentence when for the first time, he felt a glimmer of hope.

Up until then, Lively saw setback after setback in his quest for freedom. He had even acquired an unlikely ally – the former prosecutor, Sid Bell, who argued against Lively and believed him to be guilty. That is, until an article in The New Yorker had Bell second guessing Lively’s conviction. The article centered on the case of Todd Willingham, who’d been executed in Texas for setting a fire that killed his three daughters. As it turned out, a thorough, independent investigation concluded that Willingham did not set the fire. Rather, the investigation, conducted by a chemist trained at Cambridge University, showed the fire was likely accidental and caused by a space heater or faulty electrical wire.

Bell would hire a Harvard-trained fire expert, Craig Beyler, to review the Lively case. Beyler had also previously reviewed the Willingham case, coming to the same conclusion that Texas executed an innocent man.

Bell hoped that Beyler’s analysis would confirm the initial investigation and put his mind at ease. But that’s not the way the science would roll. According to Beyler’s report, conducted in 2012,the fire was likely caused by an electrical mishap that started below the subfloor.

It was 2017 when the gears of justice really started turning.

Andrew George, a litigator with multinational law firm Baker Botts, and the West Virginia Innocence Project, led by Director Melissa Giggenbach, JD ’99, took on Lively’s case. The West Virginia Innocence Project, housed within the Clinical Law Program at the West Virginia University College of Law, is part of the wider, national Innocence Network aimed at exonerating wrongly convicted inmates.

“Arson is one of the hallmarks of wrongful convictions that we look for,” Giggenbach said, “especially older arson cases. The science has changed so drastically that many cases should be re-evaluated and re-investigated.”

Giggenbach, who’s been affiliated with the West Virginia Innocence Project since 2013, handles post-conviction matters in both state and federal courts. Giggenbach and her clinical law students have successfully overturned convictions for clients wrongfully convicted of murder and child abuse caused by shaken baby syndrome.

She recognized overturning Lively’s conviction would take some work, which included earning her client’s trust.

Giggenbach and her team were already all in. WVIP doesn’t just pick up any cases. They must pass a sniff test, of sorts, in which legal counsel strongly believes scientific testing and evidence will aid in a post-conviction petition by providing factual innocence.

“When you’re dealing with people who’ve been convicted and have spent a lot of time in solitary confinement like Jason, their first point of business is to make sure you understand and believe them. I believed in his innocence. I didn’t need any convincing. Once we got over that hurdle, we could start talking about the nuts-and-bolts of what was going on.”

Some of the flaws of the original case that attracted WVIP involved older, disproven investigation techniques as well as the lack of an independent analysis.

“There was also snitch testimony, which is a major red flag, 100 percent. That kind of testimony is highly prejudicial because they have a reason to lie and make stuff up in exchange for a lighter sentence.”

In June 2018, Lively’s lawyers successfully petitioned in federal court to appeal a denial of his habeas petition, based on his trial attorney’s failure to seek an independent fire investigator.

At that point, Lively was closing in on 12 years in prison.

“Though we kept getting closer and closer, it was also our job to help Jason be patient,” Giggenbach said. “He described solitary confinement as going into the bathroom, closing the door and sitting there for 23 hours a day, every day. It’s cruel and unusual.”

BURNING DOWN FALSE SCIENCE

Now equipped with a fully dedicated legal team leaving no stones unturned, Lively still needed something extra to inch him across the end zone of justice.

Giggenbach and her fellow counsel knew the key would be in the science. That’s when another face from WVU would enter the scene.

Shortly after the U.S. 4th Circuit Court of Appeals granted the legal team’s petition, the West Virginia Attorney General’s Office asked Glen Jackson, professor of forensic and investigative science, to review the Lively case.

Jackson’s forensics-related research includes ignitable liquid residue and explosives analyses. His published research on trace human remains once formed a storyline in “Law and Order: SVU.”

In reviewing existing reports, Jackson agreed with Beyler’s assessment in that the fire was not deliberately set and likely originated below the subfloor of the upstairs bedroom.

Furthermore, Jackson tested samples retrieved from Whitley’s home that included charred flooring, unburned flooring and mattress material from the burned bed. His analysis revealed no detectable levels of ignitable liquids, contradicting the prosecution’s claims that a fire was set in the bedroom with an accelerant.

The toluene found on site, Jackson said, was likely the result of pyrolysis, or the chemical reaction from the burning process, and not gasoline or charcoal lighter fluid as the original investigators presumed.

In fact, charcoal fluids do not contain an abundance of toluene, Jackson noted. Traces of gasoline were also not detected at the scene.

“A large fire tends to come with a very high temperature,” Jackson said. “That wasn’t the case here. There was not extensive fire damage to the whole house. It was concentrated to two rooms, which indicates it was slow, long-burning fire rather than a short, intense one. That points to an electrical or accidental origin.

“As a scientist, I don’t like the word ‘faulty’ to describe the limitations of forensic science evidence in this case. I like to think that we continue to refine our knowledge and ability to understand the world around us. We’ve learned more since then and now we can evaluate evidence in a more informed way.”

PAYDAY

At the Mercer County Courthouse on Sept. 23, 2020, in Princeton, West Virginia, Lively, shackled and in an orange jumpsuit, waited nervously as Judge William Sadler ran through the facts of the case.

Supporters, including his mom and Blankenship, looked on while attorneys Giggenbach and George sat with Lively.

Bell, the former prosecutor, had provided a sworn affidavit earlier that year stating that false and misleading evidence was presented at Lively’s post-conviction hearing. He admitted that Lively was wrongfully convicted in the affidavit.

"Jason could barely contain himself that day,” Giggenbach recalled. “His leg was shaking up and down. Once the judge ran through the evidence, including what Dr. Jackson had observed, we started seeing the writing on the wall. The judge stated there was insufficient evidence to prove that an arson had actually been committed. Everyone’s silent, and Jason is asked if he had any questions. And in the most quiet voice I’ve ever heard, Jason says, ‘Does this mean I can go home now?’

“When Judge Sadler said ‘yes,’ Jason stood up, the correction officer took off his cuffs and chains and his mom rushes over and gives him a big hug.”

Lively was soon taken to the basement where, for the first time in 14 years, he slipped out of his prison jumpsuit and into plain civilian clothes. He then walked around the side of the courthouse to be greeted by a group of his supporters and the sounds of Ozzy Osborne’s “Mama, I’m Coming Home.”

“Everyone got hugs and hung out for a while before it was time for him to go home to his mom’s where she had a steak dinner waiting for him,” Giggenbach said.

The moment that he realized he was going to be free — the culmination of people from a variety of professions working together on his behalf — is a feeling he can never forget and for which he’ll be forever grateful. He hopes fearless legal experts and enhanced science can free more wrongfully convicted individuals.

He’s also learned some lessons along the way, such as time being more valuable than money.

“It’s very easy for you to give me 20 bucks,” Lively said. “But if I come up to you and say, ‘Can I have an hour of your time?’ Yeah. OK (sarcasm). People will give you the money but not give you the time.”

He also has a bet to keep.

“I told him, ‘I bet you anything in the world that I won’t be back,’” Lively said.

And he’s still waiting for his payday — this time from the state. After nearly two years as a free man, Lively is still petitioning the state to give him restitution for those 14 years.

In the meantime, he’s happily married to Blankenship and living in North Carolina and working in construction.

“I have nothing to complain about at the end of the day. I have a beautiful wife, a beautiful daughter, two beautiful dogs and a beautiful motorcycle.”