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PRINCETON — Charles Jason Lively entered the Mercer County Courthouse Wednesday morning wearing shackles and a prison uniform. He walked out a free man.
Family and friends greeted him with cheers, tears and embraces. Many wore “Justice for Jason” shirts.
Lively said his release was hard to comprehend, that he was on “sensory overload.” Hugging Billie Blankenship, his fiancee, Lively said his next step was to get married.
Lively spent more than 14 years of his life behind bars, many of them in solitary confinement.
At age 29, Lively was convicted of first-degree murder and first-degree arson following the March 2005 house fire death of Ebb K. “Doc” Whitley Jr. A second man, Tommy Owens, was also charged, but was acquitted in a separate trial.
The case was a high-profile one across southern West Virginia, because Whitley was a well-known local politician and doctor.
An Air Force veteran, Whitley had served on the McDowell County Board of Education, the McDowell County Commission, the McDowell County Democratic Executive Committee and as a member of the West Virginia House of Delegates, according to his obituary.
Lively was sentenced to life with the possibility of parole after 15 years. He has been held at Mount Olive Correctional Complex. Two recent deaths at the facility have been linked to COVID-19 after it saw a surge of cases.
During a hearing Wednesday, Mercer County Circuit Judge William J. Sadler vacated all of Lively’s previous convictions. In addition to Whitley’s murder, Lively had previously been convicted of petit larceny for the alleged theft of a laptop from Whitley’s second house.
Lively then entered into a Kennedy plea deal in front of the judge for the misdemeanor offenses of alteration or destruction of computer equipment and trespass in structure or conveyance, in regards to the laptop. In West Virginia law, that means Lively accepted punishment, but did not admit guilt.
The judge allowed the time Lively had already served to be applied to those charges.
In a motion to get Lively released, his lawyers cited three reports from state-retained experts “challenging the cause determination of the fire as incendiary, as well as the accuracy of forensic testimony at trial.” The motion was first reported last month by Mountain State Spotlight.
Lively’s lawyers also cited statements from the former prosecutor on the case, who now believes Lively was wrongly convicted.
“I’ll never get that time back,” Lively said after his release. “All the money in the world can’t buy not one minute. We’ve got finite days on this earth, and 14 [years] of mine are gone. I’m ready to go live a little bit.”
Lively said his mom, Kathy Lively-Hamilton, and his fiancee got him through the years.
After a few days in West Virginia, Lively will go to North Carolina, where Blankenship lives. Lively, already a published author, plans to try to get another book published.
Lively knew Blankenship from high school. She said they were friends back then, with maybe a little flirtation, and she once helped carry his books to class after he broke his leg.
Blankenship began writing to Lively around eight years ago. She became an advocate for his release. They fell for each other.
“I did not know that it was going to be as hard as it was. I did not realize I was going to fall for a prisoner,” she said. “I did not realize the pain that would come with that.”
No matter what, she decided she would always be with Lively.
“As hard as it was, I couldn’t leave,” Blankenship said.
Lively-Hamilton cried in the courtroom as the proceedings veered toward her son’s release.
“[I’m] thinking of all the ways we can make up 15 years,” she said after the hearing. Before Wednesday, she hadn’t hugged her son since February because of the pandemic. “Me and Billie will be fighting over who gets the hugs and kisses.”
Lively was represented by the West Virginia Innocence Project, which worked with the law firm Baker Botts and other attorneys.
Melissa Giggenbach, program director of the West Virginia Innocence Project, said this was the first time the legal clinic has had a client get convictions vacated without facing another trial. She said they had been working on the case since 2017.
Andrew George of Baker Botts said hundreds to thousands of hours of almost daily work went into Lively’s release.
“We’re really grateful to get to today,” George said. “It’s completely surreal but incredibly gratifying.”
Sid Bell, the lead prosecutor at Lively’s murder trial, said in a 2018 affidavit that he had been uneasy about the Lively verdict for several years. Bell wrote he strongly believed Lively was innocent of setting the fire that resulted in Whitley’s death.
“It is even clearer now than it was at the time of my first affidavit that Charles Jason Lively was wrongfully convicted,” Bell said in a second affidavit, filed in January.
The first of the three reports was completed in 2012 by an expert Bell had retained after experiencing doubts about the case. The expert, Craig Beyler, working for Hughes Associates in Maryland, concluded that the only hypothesis for the cause of the blaze that couldn’t be ruled out was that it was an electrical fire.
In his second affidavit, Bell wrote that the “most important scientific arson evidence” used in Lively’s trial was the finding of toluene, a flammable liquid, on Whitley’s bedroom floor. During the trial, Bell said that showed Lively could have set the fire using charcoal starter fluid.
“In summary, though I did not know it at the time, I now know that the State presented false and highly misleading evidence at Mr. Lively’s trial regarding the most important part of the State’s arson case,” he wrote.
Bell’s second affidavit followed two reports by Glen Jackson, a WVU professor.
“In truth, charcoal starter fluids also can be ruled out as a possible source of toluene because there is no evidence that they contain an abundance of toluene,” Jackson wrote in his second report.
Jackson said toluene is a common “pyrolysis product” of wood and flooring materials, meaning it comes out when heated. “One cannot be confident” that ignitable fluid was applied to create the fire because of this, he said.