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Charles Jason Lively

Other West Virginia exonerations
Shortly after 10 a.m. on March 15, 2005, volunteer firefighters arrived at a two-story wood frame and brick veneer home in Iaeger, West Virginia. The first two men through the front door found a couch burning vigorously in the living room. After knocking down the flames with a hose, they moved to the second floor.

In the master bedroom, they found the body of 70-year-old Ebb K. Whitley, a physician and longtime political figure in McDowell County. Whitley, who was confined to a wheelchair, was found at the side of his bed. He was dead and suffered burns over 90 percent of his body. His bed had been consumed and no longer was burning. Whitley, who had a pain clinic next to his Iaeger home, had been nearly paralyzed—unable to walk and with little use of his hands, the result of a fall in 2000.

The blaze was under control within 10 minutes of the arrival of the firefighters.

Three weeks later, on April 8, 2005, police arrested 27-year-old Charles Jason Lively and 25-year-old Tommy Owens on charges of murder, arson, and conspiracy.

Although he was confined to a wheelchair, Whitley still maintained a medical practice. Lively’s mother, Kathy, had been Whitley’s caretaker, as well as the clinic administrator and clinic nurse. Whitley had operated the clinic since the 1960s. He headed the county’s Democratic Party for about two decades and had served on the McDowell County Commission.

In May 2005, Whitley’s wife, Wilma Sue, was charged with elder abuse for mistreating Whitley. She was accused of over-medicating him, withholding food and water, and physically abusing him. Authorities said that was the reason Whitley had moved out of their home in Beartown, West Virginia to the home in Iaeger days before the fire took his life. The charges against her, however, eventually were dismissed.

Lively also was charged with theft of a computer that police said had been stolen from the Beartown home. The computer—which Lively said Whitley had given to him—was recovered after Lively sold it and the new owner turned it over to police.

In November 2006, Lively went to trial in Putnam County, where the trial was moved at the request of Lively’s defense attorney due to pre-trial publicity in McDowell County. The prosecution contended that Lively sought revenge after his mother was fired the day before the fire.

McDowell County Prosecutor Sid Bell told the jury in his opening statement that Lively and Owens went to Whitley’s home to rob and terrorize him. He said that two fires were set—one next to the bed and one downstairs.

Lively’s lawyer, McDowell County Chief Public Defender Floyd Anderson, said that the fire was likely the result of a dropped cigarette. “Doc dropped ashes everywhere,” Adams said in his opening statement to the jury.

According to testimony, when Whitley decided to move to the Iaeger residence from Beartown, he called his sons, Jack and Jeff Whitley, who lived out to state, to help him move. In the meantime, Whitley moved in with Kathy Lively. Jack stated that when he arrived at the Lively home to move his father, his father was upset and anxious. Jeff stated that his father looked scared. Jack said his father told him that he was glad to get away from the Lively home, because Whitley and Jason Lively had “got into it,” and Whitley was afraid that Lively was going to hit him.

At the same time they moved their father to Iaeger, the sons arranged for Sherry Addair to move in and care for Whitley. Addair was expected to come to the home either Tuesday night, March 15, or Wednesday morning, March 16. Prior to Jeff’s departure on March 14, Whitley reassigned the administrative duties at his clinic. He removed Kathy Lively’s name from the clinic’s bank accounts, took her keys, and prohibited her from writing prescriptions without them being initialed by Louise Christian, a billing assistant.

Kathy Lively and Whitley got into a heated argument at the doctor’s home, in front of Jeff, Christian, and the local bank president, Jim Sizemore. Although Kathy Lively and the doctor were known to argue, Jeff and Christian both testified that Kathy Lively threatened Whitley, saying, “I'll kill you, you SOB.” Christian testified that Lively said that “he wasn't going to do this to her” after she had taken care of him for a quarter of a century.

Jimmy Gianato, an arson investigator who was at the 911 center when the call of the fire came in, testified that when arrived at the home, he found a hole in Whitley’s bedroom floor from which the downstairs living room was visible. He said a fire that did that much damage needed more heat than what a lone cigarette would produce.

Karen Powers, an analyst in the West Virginia State police crime laboratory, testified that she analyzed 12 samples that were taken from the debris. She said that 11 were negative for flammable liquids. However, one sample taken from the floor next to Whitley’s bed was positive for toluene, a flammable liquid.

“Toluene is a component in many ignitable liquids that we find,” Powers testified. “It’s a component of gasoline. It’s found by itself in some charcoal starters, some paint thinners, or some floor strippers, things like that. It’s a relatively common product.”

Bell also presented the results of an investigation by the West Virginia Fire Marshall’s Office. The investigators concluded the fire was arson based on the finding of toluene in the sample and based on the damage they found in the home. Because the hole burned in the ceiling/bedroom floor was several feet away from the couch, the investigators concluded that the couch was ignited separately because burning material that dropped down did not hit the couch. Smoking was ruled out as the cause.

The final conclusion was that based on two points of origin and the presence of toluene, the fires were intentionally set.

Christian testified that on the day Whitley took away Kathy Lively’s keys and authority, Kathy Lively was livid. “She was cursing and ranting and said he was not going to do that to her,” Christian said.

Christian testified that on the morning of the fire, she saw no smoke when she drove by Whitley’s home around 9 a.m. Because there were already patients at the clinic located next door to Whitley’s home when she arrived, Christian did not immediately take breakfast to Whitley. Between 9:00 a.m. and 9:30 a.m., Kathy Lively called in and asked if anyone had checked on Whitley. She said she was not coming to work because she was going to her doctor about a back problem.

Christian said Jason Lively also called into the clinic that morning to see if Whitley was going to need him to take care of him that day. Christian testified that was the first time that Jason had ever called the clinic asking about Whitley.

Christian said that Shirley Cline, the employee who took the call from Jason, interrupted the conversation to report that the doctor’s house was on fire. Christian said that at about the same time, she noticed smoke coming out of the doctor’s house.

Jason Scott Ritchie was an inmate confined in the Southern Regional Jail while Lively was awaiting trial. Ritchie testified that Lively told him that he and Owens went to Whitley’s home to steal money and drugs, but instead took a safe, computer, and a gun. Ritchie testified that Lively told him that as they were leaving, Owens set Whitley's home on fire.

Tim Butler testified that he drove by Whitley’s home around 8:15 a.m. and saw the front door open. He said he saw someone he did not identify walking inside the home. There was no sign of fire at that time and the person was never identified.

The prosecution also presented testimony that Jason Lively had attempted to pawn the laptop the same day it was discovered missing from Whitley’s Beartown home. The first prospective buyer did not want the computer after seeing that Whitley’s name was on the start-up screen. Lively then took the computer to his cousin, who removed the doctor’s name from the screen. Lively then sold it to Jeremy Lester for either $150 or $250. When Lively told Lester that if anyone asked about the computer, Lester was to report that Whitley had given the computer to Lively. Lester turned the computer over to police the next day.

Bell also presented evidence of Jason Lively’s involvement in other crimes on prior occasions. In a 2002 incident, Owens and Jason Lively had attacked two men, including a disabled coal miner. Lively had been convicted of misdemeanor battery. And in 2001, Owens and Lively were accused of threatening a store owner with arson unless they were given money and drugs.

Kathy Lively testified that she never threatened to kill Whitley. She said that Whitley’s reassignment of all of her administrative duties, including having to have all prescriptions she wrote initialed by Christian, did not bother her at all.

Lively testified that she had worked for Whitley for 26 years and her primary job was as his nurse. However, she said she had also helped care for him. Lively said she was a signatory on Whitley’s bank account and she wrote prescriptions. She said she had the keys to Whitley’s home in Iaeger, as well as the keys to the clinic, to Whitley’s private office, and to the drug sample rooms. She said she saw patients and controlled the payroll. She testified, however, that Whitley had total power at the office and that she did not do anything without his approval.

Jason Lively testified and denied setting the fire. He said that during the week that Whitley lived in the Lively house, he helped take care of him, including running errands, preparing meals and sitting with him. He said that he quit his logging job after Whitley agreed to pay him $50 a week. He said that Whitley had given him the computer.

Raymond Griffith, a private investigator for an insurance company who also investigated the fire, testified for the defense that he believed the fire started in the ceiling/floor area and was probably the result of electrical malfunction. However, he officially found the cause to be undetermined. He said he could not rule out arson and he could not rule out that it was accidental.

Harry Caskey, another inmate at the jail with Lively and Ritchie, testified for the defense that Ritchie told him that to get out of jail, “All you’ve got to do is tell them that the Lively boy said he killed that doc.”

On November 21, 2006, the jury convicted Lively of first-degree murder, first-degree arson and petit larceny, a misdemeanor, for the theft of the computer. He was sentenced to life in prison with the possibility of being granted parole after 15 years.

Two months later, in January 2008, a jury in Wyoming County acquitted Owens. The jury took less than 30 minutes to return a verdict of not guilty.

Despite Lively’s conviction, the prosecutor, Sid Bell, would later say that he was “uneasy” about the verdict. He said his “doubts” grew when he began following reports about the case of Cameron Todd Willingham in Texas, who had been executed in 2004 for setting a fire that killed his three daughters.

Doubts about that case were first reported in 2004 by the Chicago Tribune, which published an article based on a review of the case by three arson experts who independently concluded there was no proof the fire was arson. In addition, New Yorker magazine published a lengthy article about the case and a documentary film series—Death by Fire—was aired by Frontline.

At the time, Lively’s appeal was still pending. Bell believed that the West Virginia Supreme Court of Appeals might grant Lively a new trial based on the presentation of evidence about Lively’s prior bad acts. So, he later said, he sought out Dr. Craig Beyler, an expert who had been hired by the State of Texas to examine the Willingham fire.

“Although hiring an expert to review a case post-conviction may have appeared to be unusual, I discussed my concerns with my own criminal case investigator, Mike Spradlin, a retired State police ‘cold case’ investigator with 36 years of experience, and decided it was warranted in this case,” Bell later said.

In April 2010, the West Virginia Supreme Court of Appeals upheld Lively’s convictions. One justice dissented, saying that Lively’s trial had been unfair because the prosecution was allowed to present the evidence of Lively’s prior bad acts.

When Bell received Beyler’s report, dated May 31, 2012, he gave a copy to Lively’s attorney because it was “clearly exculpatory.” In fact, Beyler concluded that the finding of arson was not supported by any evidence.

Beyler said that the state fire marshal’s investigator’s conclusion of arson was based on the presence of toluene, but no specific liquid was identified as being used to start the blaze. “They did no work to determine what the product was and what products may have been present in the room before the fire. In short, they could not identify the accelerant and could not establish that the liquid was a foreign material brought to the room for the purpose of starting a fire.”

Beyler noted that the National Fire Protection Association (NFPA) 921: Guide for Fire and Explosion Investigations requires that the material first ignited be identified as part of the cause investigation. Because it was not, the hypothesis that the fire was incendiary had to be eliminated, he said.

Beyler criticized the fire marshal’s investigation for concluding there were separate fires set on the first floor and on the second floor. The evidence was consistent, he said, with the fire burning upward from the first floor ceiling—not downward from the second floor.

Beyler noted that the assistant fire marshal opined that the fire in the living room could not have been started by the drop down of burning materials from above. Beyler said the fire marshals relied upon the fact that the center of the hole in the bedroom floor was offset from the couch by several feet.

“This, of course, ignores the fact that the drop down of burning debris was possible over the entire area of damage within the floor/ceiling assembly, not just the center of the hole to the room above,” Beyler concluded. “Further, it ignores the fact that once debris from above hits the floor, the material can move along the floor and burnt embers can be propelled along the floor in all directions due to the impact. All that is required for ignition of the couch is contact with a small flaming piece of wood or ember."

The fire marshal’s conclusion “has no merit,” Beyler said.

In June 2015, Lively filed a federal petition for a writ of habeas corpus citing a number of claims, including that his trial defense attorney had failed to obtain an arson expert to challenge the arson testimony at his trial. In September 2017, a federal judge dismissed the petition and denied Lively’s request to appeal the decision.

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., began working with Lively. In June 2018, U.S. 4th Circuit Court of Appeals granted the lawyers’ motion to allow Lively to appeal the denial of his habeas petition based on his trial attorney’s failure to seek an independent investigation into the cause of the fire.

The following month, the West Virginia Attorney General’s office asked Dr. Glen Jackson, professor of forensic and investigative science at West Virginia University, to review the fire evidence in Lively’s case and Beyler’s findings. In May 2019, Jackson said that he agreed with Beyler that “the available evidence and prevailing wisdom indicate that the origin of the fire was most likely to be below the subfloor of the upstairs bedroom. Such an origin is inconsistent with the use of toluene as an ignitable liquid in the upstairs bedroom.”

In January 2020, Jackson issued a follow-up report after three more samples were retrieved from Whitley’s home, including charred flooring near the hole in the second floor bedroom, unburned flooring from the far side of the bedroom, and mattress material from what remained of the burned bed. Jackson said that testing of these samples revealed no detectable levels of ignitable liquids.

Jackson concluded that the original finding of toluene was the result of pyrolysis—the burning process. Jackson said the crime lab analyst’s trial testimony was misleading.

“Toluene is not found ‘by itself’ in charcoal starter fluids,” Jackson said. “In fact, I cannot find any evidence that toluene is ever present in charcoal starters.”

Jackson also said that the analyst’s reference to gasoline was misleading. “Whereas toluene is certainly a component of gasoline, the absence of any other components of gasoline in sample #12 dictate that gasoline can be categorically eliminated as a possible source of the toluene,” Jackson said.

Moreover, Jackson also said that the prosecution’s reliance on the analyst's testimony was misleading. “The statement [in closing argument] that charcoal starter fluids contain toluene is very misleading because most/all charcoal lighter fluids are practically devoid of aromatics like toluene,” Jackson reported. “The closing remarks could easily have misled the jury to believe that a commonly occurring domestic product was used to initiate the fire. 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.”

In January 2020, Bell provided a sworn affidavit that based on Jackson’s reports, he understood that the analyst’s testimony “and my summation of that testimony were false.” He added, “In summary, 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—the theory that Sample 12 showed the use of a liquid accelerant like charcoal fluid.”

As a result, Bell said in the affidavit that it was clear that “Charles Jason Lively was wrongfully convicted.”

In August 2020, Lively’s lawyers filed a motion for a new trial based on the Beyler and Jackson reports as well as Bell’s statements. The motion was unopposed by the McDowell County Prosecuting Attorney’s Office.

On September 23, 2020, the murder and arson convictions were vacated and the charges were dismissed. Lively entered a “Kennedy plea” to misdemeanor charges of trespassing and alteration and destruction of a computer. Kennedy pleas allow West Virginia defendants to avoid admitting guilt while conceding there was evidence sufficient to convict at trial.

Lively was then released, nearly 14 years after his conviction.

In 2021, Lively filed a claim for compensation from the state of West Virginia. The state Legislative Claims Commission recommended an award of $1.56 million in December 2023. The state legislature approved it in March 2024.

– Maurice Possley

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Posting Date: 10/12/2020
Last Updated: 3/11/2024
State:West Virginia
Most Serious Crime:Murder
Additional Convictions:Arson, Misdemeanor
Reported Crime Date:2005
Age at the date of reported crime:27
Contributing Factors:False or Misleading Forensic Evidence, Perjury or False Accusation, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No