QUOTE OF THE DAY: "The Court finds that, had the jury in the defendant’s trial been presented with this substantial and competent scientific evidence, it likely would not have, indeed, could not have concluded that arson was the cause of the fire. Quite simply, without the deliberate act of arson as the cause of the fatal fire that took doc Whitley’s life, the felony murder conviction cannot be supported and the conviction cannot withstand judicial scrutiny,” Sadler ruled. The judge concluded that the “fair administration of justice and the public interest” dictate that Lively’s conviction be vacated."
--------------------------------------------------------------------
PASSAGE ONE OF THE DAY: "In 2018, former McDowell County Prosecutor Sid Bell, who led the effort to convict Lively in the 2006 murder trial, filed affidavits with the McDowell Circuit Clerk’s Office questioning the validity of Lively’s conviction based on new evidence. The new evidence included a report on the fire by an insurance company investigator, who concluded that the fire was from a single source — a point between the floor of the second-story bedroom and the ceiling of the living room below it, where an electrical short in the wiring of a ceiling fan had been identified. Bell wrote that he hired Craig Beyler, who holds an engineering doctorate from Harvard University and is a nationally recognized expert in fire investigation and fire safety, to take a second look at the initial conclusion that the fire was the result of arson. Beyler found that the fire was electrical in origin, started near the ceiling fan assembly and was not the result of arson, according to Bell. Additional testing by Dr. Glen Jackson, a West Virginia University professor of forensic and investigative science, produced a conclusion similar to Beyler’s. “For several years, I have felt uneasy about the Lively conviction,” Bell said in one affidavit, adding that he “strongly believes” in Lively’s innocence.
--------------------------------------------------------------------------------
STORY: "McDowell man freed after 14 years in prison for a crime that was not committed," by Staff Writer Rick Steelhammer, published by The Charleston Gazette-Mail on September 23, 2020.
GIST: "High on the wall of a courtroom in Mercer County Circuit Court, a quotation drawn from the Magna Carta is spelled out in one-foot-tall letters: “To no one will we deny justice, to no one will we delay it.”
In the case of Charles Jason Lively, who appeared in the courtroom Wednesday in a hearing before Judge William Sadler, the quote from the 13th-century English document establishing the right to a fair trial for all only partially lived up to the lofty intention with which it was written.
Justice was served when Sadler vacated Lively’s first-degree murder conviction, but it arrived after a 14-year delay, during which Lively was locked up in West Virginia’s maximum security prison at Mount Olive, with most of that time spent in solitary confinement.
“At first, I wanted to scream out that I was innocent,” Lively said after the hearing. “But no one was listening.”
No one, that is, except for his mother, Kathy Lively-Hamilton; fiancée, Billie Blankenship; a steadfast group of friends and family; and, eventually, attorneys affiliated with the West Virginia Innocence Project.
Lively soon realized he needed to pursue a systematic approach through the legal system to establish his innocence. Despite setbacks that included circuit court and West Virginia Supreme Court rulings that torpedoed bids for a verdict reversal or a new trial, Lively said he never stopped believing that he would be exonerated one day.
“Without hope, you’ve got nothing,” he said.
In November 2006, a jury convicted Lively of first-degree murder and first-degree arson in the March 15, 2005, death of Ebb K. “Doc” Whitley. A physician who operated a clinic at Iaeger, Whitley served in the House of Delegates during the 1990s, and was a former McDowell County Commission president, school board member and McDowell County Democratic Party chairman.
The trial was held in Putnam County Circuit Court, following a change of venue request by Lively’s attorney at the time.
At the time of his death, Whitley was 70 years old and partially paralyzed and unable to walk after a fall in his home several years earlier.
Lively’s mother, a nurse, worked in Whitley’s clinic for several years. For a short period before moving into the Iaeger home in which he died, the doctor lived in the home in which Lively and his mother lived.
Whitley was found dead on the floor of a second-story bedroom in his home following a house fire. The state Medical Examiner’s Office determined that the cause of death was asphyxiation due to smoke inhalation and burns that covered 90% of his body.
During Lively’s murder trial, two assistant state fire marshals testified that their investigation of the house fire showed it was caused by two intentionally set fires — one in the doctor’s bedroom and the other in a first-floor room. They also testified that traces of toluene — a component of gasoline and charcoal starter fluid — were found in the bedroom.
Witnesses called by the prosecution testified that Lively had been seen on the morning of the fire in the vicinity of Whitley’s home and a jail inmate testified that Lively had told him that he and another man had gone to Whitley’s home to rob him, and that Lively’s alleged companion had set fire to the home.
Lively denied having anything to do with Whitley’s death or being in his home on the day of the fire. He maintains that he was in Wyoming County when the fire took place.
Lively’s lawyer at the trial failed to conduct an independent investigation of the cause of the fire, although he did suggest that Whitley might have been smoking in bed.
In 2018, former McDowell County Prosecutor Sid Bell, who led the effort to convict Lively in the 2006 murder trial, filed affidavits with the McDowell Circuit Clerk’s Office questioning the validity of Lively’s conviction based on new evidence. The new evidence included a report on the fire by an insurance company investigator, who concluded that the fire was from a single source — a point between the floor of the second-story bedroom and the ceiling of the living room below it, where an electrical short in the wiring of a ceiling fan had been identified.
Bell wrote that he hired Craig Beyler, who holds an engineering doctorate from Harvard University and is a nationally recognized expert in fire investigation and fire safety, to take a second look at the initial conclusion that the fire was the result of arson. Beyler found that the fire was electrical in origin, started near the ceiling fan assembly and was not the result of arson, according to Bell. Additional testing by Dr. Glen Jackson, a West Virginia University professor of forensic and investigative science, produced a conclusion similar to Beyler’s.
“For several years, I have felt uneasy about the Lively conviction,” Bell said in one affidavit, adding that he “strongly believes” in Lively’s innocence.
In 2017, West Virginia Innocence Project attorneys, including the project’s director, Melissa Giggenbach, and Andrew George, special counsel for Baker Botts LLP in Washington, D.C., who also is affiliated with Giggenbach’s organization and the Innocence Network, began working with Lively.
They prevailed in a case before the U.S. 4th Circuit Court of Appeals, which resulted in Lively being granted permission to file a new appeal to his conviction based on his initial attorney’s failure to seek an independent investigation into the cause of the fire.
One month ago, Giggenbach and George filed a motion in McDowell Circuit Court to vacate Lively’s conviction. The case was transferred to Sadler’s court, where a hearing on whether to vacate the conviction was held.
The McDowell County Prosecuting Attorney’s Office did not object to vacating the murder conviction. However, it did seek a plea agreement in which Lively would plead guilty to misdemeanor charges of trespassing and alteration and destruction of a computer. On Wednesday, Lively gave Kennedy pleas to each charge. Kennedy pleas allow defendants to avoid the admission of guilt, while admitting they would probably be found guilty of a charge if brought to trial.
In light of Lively having served 14 years for a crime he did not commit, no jail time or fines accompanied the misdemeanor charges.
Sadler ruled that analyses conducted by Beyler and Jackson, using nationally recognized fire-analysis standards, ruled out arson as the method of fire ignition.
“The Court finds that, had the jury in the defendant’s trial been presented with this substantial and competent scientific evidence, it likely would not have, indeed, could not have concluded that arson was the cause of the fire. Quite simply, without the deliberate act of arson as the cause of the fatal fire that took doc Whitley’s life, the felony murder conviction cannot be supported and the conviction cannot withstand judicial scrutiny,” Sadler ruled.
The judge concluded that the “fair administration of justice and the public interest” dictate that Lively’s conviction be vacated.
That statement brought cheers and applause from the audience, followed by Lively and his mother embracing at the defense table, after bailiffs and personnel from Mount Olive removed Lively’s shackles. Lively also hugged his fiancée, Giggenbach and George.
After being taken from the courtroom, Lively was taken to a room where he removed the orange prison jumpsuit he’d arrived in and changed into jeans, athletic shoes, a plaid shirt and a New York Yankees ball cap.
Outside, he was greeted by more than 20 well-wishers and the sounds of Kool & the Gang’s “Celebration” played on a boom box.
“I couldn’t be any happier than I am right now,” Lively’s mother said as she beamed at her son. “There are no words to describe how I feel.”
“I lost 14 years of my life due to an unfortunate accident,” said Lively, now 42, as he draped an arm over his fiancée’s shoulder. “Now I’m ready to see what the world has to offer.”
He credited Giggenbach and George for making possible his first day of freedom in 14 years.
Immediate plans include spending a few days with his mother at her Monroe County home, spending a lot of time outdoors, doing some writing, then moving to North Carolina, where Blankenship, whom he met at Iaeger High School, works as a nurse, and then getting married and putting down roots there.
“Go enjoy your freedom,” Giggenbach said after giving her client a send-off hug.
The West Virginia Innocence Project has produced several new trials for incarcerated clients, but Lively’s case was the organization’s first exoneration.
“It was a privilege to meet and work with Jason,” George said. “It’s really gratifying to see him free. It took thousands of hours of work and a lot of help from a lot of people to get to this day. This case took a lot of baby steps to move things forward. The wheels of justice can grind slowly but, eventually, they’ll get us here.""
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
-----------------------------------------------------------------
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
----------------------------------------------------------
