Ace, a brown pit bull therapy dog, snoozes at Jason Lively’s feet as he caresses his neck under the table in a government board room.
Seventeen years ago, Lively was tried and convicted of murder. He spent 14 years in prison before new evidence freed him.
Now Lively is suing the state to see how much 14 years of a man’s life is worth — 14 years of birthdays, Christmases, weddings, funerals, births and more gone.
Lively’s attorneys, all pro-bono through the West Virginia Innocence Project, said he deserves millions of dollars for the damages during a two-day early October hearing before the Legislative Claims Commission, a special commission set up for the rare instances the state can be sued.
Normally, the commission mostly hears claims from people who bent a rim on a pothole or contractors who didn’t get their invoices paid. But the three-member panel is also tasked with deciding what, if any, a wrongfully convicted person is entitled to damages. The last time they did was in 2016.
A decision in Lively’s case is expected in the next two months. If an amount is awarded, the state legislature will have to vote on it before Lively would see any money.
Appointed by the Legislature, the commissioners — J. Rudy Martin, Andrew Cooke and John H. Shott — sat in silence as they heard how prison took an already troubled man and completely broke him during testimony in the Senate Judiciary Committee room.
His release in September 2020 was greeted with many smiles and tears. But just a few months later at a Christmas gathering, he started pacing his mother’s living room in a square box pattern, as he would his cell during the years he spent in solitary confinement.
His mother Kathy Hamilton recalled: “He looked straight through me, like I wasn’t even there,” before excusing himself to go outside.
Through the window, Hamilton said she saw her son walking in that same square.
His wife said Lively once went to the store to buy spaghetti sauce, but came back in tears with no sauce. He couldn’t even function in a supermarket, she testified.
Jessie Roberts, his cousin and best friend, said shortly after Lively’s release, they remodeled a house together. He said just losing a measuring tape sent Lively into uncontrollable rage. Sobbing, he had to leave the job site for 15 minutes to collect himself.
“I don’t want to talk bad about him, but he’s broken,” he said.
Throughout the testimony, Lively would become overcome with emotion, breaking down in tears. At times, as the state’s attorneys cross examined witnesses, he would get angry. His attorneys would place a hand on his shoulder and whisper in his ear to keep him calm.
When he took the stand, his attorney asked him his name and where he was from. Tears welled up in Lively’s eyes. His face turned red. He patted his face with a handkerchief as his voice cracked from the pain that spread across his face.
“How much is a West Virginia coal miner worth?” Lively asked commissioners.
He talked about his mother having to move because the community thought he was a murderer. He said the state’s lawyers were lying and he was “so disgusted” with them.
The three commissioners sat stone faced as an attorney handed Lively a bottle of water. He grasped his shoulder, as he often did, and in a calm voice said, “Jason, do you need a break?”
The lawyer asked for a recess and the commissioners agreed. Commissioner Shott said Lively could be excused for the rest of the day, saying, “This is really hard on him.”
Jason Lively’s compensation: How much is 14 years of “hell” worth?
But that question, “How much is a West Virginia coal miner worth?” would be brought up again and again during the hearing.
Lively’s attorneys say $18 million — about $15 million in emotional damages, the rest due to lost work. The state’s attorneys said he should get between $51,000 and $117,000, if anything at all.
According to the state, there wasn’t much record of his work; tax paperwork showed he made about $3,400 a year between 1996 and 2005.
But witnesses — including a former employer at a coal mine — said he worked on and off through those years in mines, logging and construction. And some of that work may have been under the table.
Repeatedly, his attorneys pointed toward one fact in the case — Lively was arrested at a coal mine in Boone County in 2005.
Throughout the proceeding — despite stating at the beginning that they weren’t going to retry Lively — the state’s attorneys said even though the state paid for the forensic evidence that eventually set him free, he wasn’t “innocent.”
They pointed to him pawning the doctor’s laptop on the day of the fire and, they said a jailhouse snitch, who later recanted, passed a polygraph stating Lively told him he set the fire. They also repeatedly zeroed in on a plea deal he took in 2008 to an unrelated arson case.
“He was unjustly convicted, but is he actually innocent?” Michael Dunham, a defense attorney, asked.
However, former McDowell County Prosecutor Sid Bell, who put Lively in prison and then advocated for his release when new evidence came to light, said despite never
being a fan of Lively, he was convinced “no human hand started that fire.”
During closing statements, Dunham said evidence showed Lively was no worse off now than what he was in the years before prison.
“Let’s look at the facts here,” Dunham said. “He had trouble with employment, he had financial hardships, he had substance abuse problems and he had violent tendencies before he went in — look at him now — he’s broke, he struggles with substances and he has violent tendencies now.”
It was no secret Lively had his struggles. As a kid, he was energetic, a three-sport athlete — many witnesses called him “Mr. Popular” in high school. But when his dad died in a car wreck shortly after he graduated, Lively turned to booze, pills and cocaine to cope, according to the testimony.
That led to a few brushes with the law — when he was arrested, Lively figured it was for a bar fight he’d been in the weekend before.
But Lively’s lawyers argued he is clearly a shell of a man by pointing to expert testimony that showed he had 20 different symptoms of PTSD and character testimony that showed he was a changed man after 14 years behind the walls.
“He has struggles and he is reliving the hell he went through every day,” said Adam Dec, one of Lively’s attorneys. “It’s going to take a significant amount of therapy to even have a shot at living a normal life.”