Latest / Wrongful Conviction / #031 Jason Flom with Brian Ferguson

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#031 Jason Flom with Brian Ferguson · Wrongful Conviction

0:04
Speaker 1: I think we have the best legal system.
0:05
Speaker 2: It's just the people that implement they get lost along
0:09
Speaker 2: the way and forget what their job really is.
0:13
Speaker 3: He just kept on trying to remind me that who
0:15
Speaker 3: was in authority, who was in control, and how easy
0:19
Speaker 3: it was for my body to be found in any
0:23
Speaker 3: alley of New York City.
0:25
Speaker 4: It's a tough prison when you have the guards going
0:28
Speaker 4: against you because they are the biggest gang in the prison.
0:33
Speaker 1: They do that.
0:33
Speaker 2: They'll give a guy a life sentence and go home
0:36
Speaker 2: in eat spaghetti like it was nothing.
0:38
Speaker 3: And anybody that said, well, why would you confess to
0:41
Speaker 3: something that you didn't do, My question to them will
0:43
Speaker 3: be why wouldn't you confess when somebody's threatening to kill
0:46
Speaker 3: your life?
0:48
Speaker 5: The judge, he said, how you feel?
0:50
Speaker 1: I said, I'm okay. He said, well, the days you're
0:52
Speaker 1: lucky day you're going home.
0:56
Speaker 4: This is wrong for conviction.
1:15
Speaker 6: Welcome back to Wrongful Conviction with Jason Flumm. Today we
1:19
Speaker 6: have two extraordinary guests. Brian Ferguson, who served eleven years
1:24
Speaker 6: in maximum security prison, who sends the life in West
1:27
Speaker 6: Virginia and is a rising senior at Georgetown and is
1:31
Speaker 6: currently the executive director of the Mayor's Office of Returning
1:34
Speaker 6: Citizen Affairs in DC.
1:36
Speaker 4: Brian, welcome to the show.
1:38
Speaker 1: Thank you.
1:38
Speaker 6: And with Brian is my friend Mark Howard, who is
1:43
Speaker 6: a mentor to Brian and to me and a major
1:47
Speaker 6: force in this movement. Mark is a professor of government
1:51
Speaker 6: and law at Georgetown University, and he's also an acclaimed author.
1:55
Speaker 6: His most recent book is Unusually Cruel, Prisons, Punishment and
1:59
Speaker 6: the Real American Exceptionalism.
2:01
Speaker 4: Mark. It's great to have you here. Great to be here, Jason.
2:04
Speaker 6: So Brian, let's go back to the beginning of this
2:08
Speaker 6: crazy story of yours. There's a lot of typical things
2:10
Speaker 6: in your story that we see in wrongful convictions, but
2:13
Speaker 6: there's a number of unique characteristics, not the least of
2:16
Speaker 6: which is that you come from a very distinguished family,
2:20
Speaker 6: which is atypical of people who get caught up in
2:23
Speaker 6: the system and who get wrongfully convicted. Can you talk
2:27
Speaker 6: a little bit about your growing up and what that
2:29
Speaker 6: was like and what your family was like.
2:31
Speaker 2: Right, No, absolutely, you know. My family was very supportive.
2:35
Speaker 2: I have a close knit family. I have a small
2:37
Speaker 2: immediate family. I was born and raised in Washington, d C.
2:40
Speaker 2: In Northeast DC, in Michigan Park. Relatively middle class family,
2:44
Speaker 2: but professional. Both of my parents were working, both of
2:47
Speaker 2: them were college graduates, and so in that respect, it
2:49
Speaker 2: definitely was unique in terms of the people that I
2:52
Speaker 2: ended up coming across in the penitentiary and then in
2:55
Speaker 2: the work that I do with people that have been
2:57
Speaker 2: incarcerated since.
2:58
Speaker 6: The work that you're doing now, right, And you have
3:01
Speaker 6: some legal professionals in your family as well.
3:04
Speaker 2: Right now, I have several legal professionals in my family. Ironically,
3:08
Speaker 2: as it turns out, so my mother, my aunt, my uncle,
3:12
Speaker 2: and my sister are all in the legal profession. My
3:15
Speaker 2: aunt is still currently a judge in Washington, DC.
3:17
Speaker 1: Right now.
3:18
Speaker 6: Wow, that's a lot of lawyers in one family. Let's
3:21
Speaker 6: go back to how this happened and how you became
3:23
Speaker 6: a suspect in the first place. You were a college
3:25
Speaker 6: student at the time.
3:25
Speaker 2: Right, right, So I was a college student at West
3:28
Speaker 2: Virginia University, actually doing very well because I actually was
3:32
Speaker 2: on the track to go to law school and had
3:35
Speaker 2: intentions and plans on going to law school. So yeah,
3:38
Speaker 2: I was in West Virginia in my second year of undergrad.
3:42
Speaker 6: So, Brian, you were a four point zero student on
3:44
Speaker 6: your way to law school. Why did you pick West
3:45
Speaker 6: Virginia to go to school?
3:46
Speaker 2: By the way, because I was playing sports in West Virginia.
3:49
Speaker 2: I played soccer on the team and was recruited to
3:51
Speaker 2: go there.
3:52
Speaker 4: So your life was pretty good. Yeah, things were looking
3:54
Speaker 4: straight up, right.
3:56
Speaker 1: That's what I thought absolutely.
3:57
Speaker 6: I mean, your life was laid out in front of
3:59
Speaker 6: you like a like a damn red carpet. It just sounds,
4:03
Speaker 6: it sounds ideal. And then all of a sudden everything
4:07
Speaker 6: went wrong. You became a suspect in a murder. Did
4:10
Speaker 6: you even know about it?
4:12
Speaker 1: Right?
4:12
Speaker 2: So, I think, if I'm honest, it would have started
4:14
Speaker 2: before that with the police. I think it's it's important
4:17
Speaker 2: to understand the community that is in like small towns
4:22
Speaker 2: in West Virginia, especially being from a middle relatively middle class,
4:26
Speaker 2: like I said, family in DC, I you know, dressed
4:29
Speaker 2: relatively well, right, but well for DC is different for
4:33
Speaker 2: for what it is in West Virginia. So, you know,
4:35
Speaker 2: the police assumed that myself and there were a couple
4:39
Speaker 2: of other guys from New York, a couple of other
4:41
Speaker 2: guys from Los Angeles who were you know, generally the
4:44
Speaker 2: same in the same socioeconomic class, couldn't have just been
4:48
Speaker 2: that way because our parents might have been successful, or
4:52
Speaker 2: that we came from a different environment, but it had
4:54
Speaker 2: to have been that we were dealing drugs. So they thought, oh,
4:56
Speaker 2: you know this, these guys you know, might be and this.
4:59
Speaker 2: We weren't together or anything like. It was separate individuals,
5:02
Speaker 2: but just that I knew of these guys, you know,
5:04
Speaker 2: must be deal drums, are doing something wrong. And so
5:07
Speaker 2: there were a couple of incidents with the police where
5:10
Speaker 2: it was like.
5:11
Speaker 1: What are you doing or why are you?
5:12
Speaker 2: Why are you driving this car, Why don't you live
5:15
Speaker 2: in this part of town, why do you live in
5:16
Speaker 2: this part of town. So those kinds of things, I
5:18
Speaker 2: think are a good backdrop to.
5:21
Speaker 1: To kind of what ultimately happened.
5:23
Speaker 2: And so with respect to the particular incident, which is
5:27
Speaker 2: which which led up to I guess me being even
5:30
Speaker 2: included in the conversation was I had a girlfriend who
5:34
Speaker 2: this other guy at the school had made advances toward
5:38
Speaker 2: and she told me that, you know, this guy said X,
5:42
Speaker 2: Y and Z about you and and and doesn't very
5:45
Speaker 2: much appreciate you. And so I said, okay, well I
5:48
Speaker 2: ended up talking to the guy. Listen, I don't know you,
5:51
Speaker 2: I don't know you know what the issue is or whatever,
5:54
Speaker 2: but whatever you have to say, please say it to me,
5:56
Speaker 2: don't go to her. We had maybe a three minute
6:00
Speaker 2: argument and then that was it. That was literally it.
6:03
Speaker 2: And that was in my first year of college. And
6:05
Speaker 2: I say this in my first year of college because
6:07
Speaker 2: that's important timeline wise, because this gentleman ended up getting
6:11
Speaker 2: shot and died.
6:12
Speaker 1: He died from being shot. But that was a year
6:15
Speaker 1: and a half later.
6:16
Speaker 2: And so you know, after the argument that I had, apparently,
6:20
Speaker 2: and I learned this after the fact, you know, he
6:22
Speaker 2: would tell his friends and I don't like this guy.
6:24
Speaker 1: Look at this guy driving around. He thinks he's this,
6:26
Speaker 1: he thinks.
6:26
Speaker 2: He's that, or he wanted your girl, right, Yeah, basically,
6:29
Speaker 2: but after that interaction, I had no further interactions with him.
6:33
Speaker 2: And so for the next year and a half, I
6:35
Speaker 2: went about my business, he went about his business, and
6:38
Speaker 2: I had no occasion to kind of come across him until,
6:42
Speaker 2: like I said, the police asked me about shooting.
6:46
Speaker 1: Right, I had no idea.
6:47
Speaker 6: So here's what we know. At seven pm on February second,
6:50
Speaker 6: two thousand and two. Jerry Wilkins was his name, right,
6:53
Speaker 6: was shot in the back in front of his apartment,
6:55
Speaker 6: and court records indicate that witnesses gave varying descriptions of
6:59
Speaker 6: the gunman. However, prosecutors charged you with murder because basically
7:03
Speaker 6: they didn't know who did it, right, and they were
7:07
Speaker 6: able to find somebody or a couple of people who said, oh, yeah,
7:10
Speaker 6: that's the guy. There was one guy who had an argument,
7:12
Speaker 6: you know, because he had gone as you just said,
7:14
Speaker 6: he had gone around telling people that he had had
7:16
Speaker 6: beef with you. So here comes the police knocking on
7:19
Speaker 6: your door or what happened?
7:22
Speaker 2: So you mentioned the witnesses. I think it's the most
7:26
Speaker 2: interesting and really disappointing thing to me about the witnesses
7:28
Speaker 2: was that they were varying accounts, but the one thread
7:32
Speaker 2: of commonality between the witness accounts was that it was
7:36
Speaker 2: a very skinny, dark skinned, black gentleman that was the assailant.
7:41
Speaker 2: And I've been confused with a lot of different things
7:43
Speaker 2: in my life, but skinny, dark skinned guy is not
7:46
Speaker 2: really one of them.
7:48
Speaker 6: So skinny, dark skinned, black gentleman, I think you resemble
7:51
Speaker 6: that description about as much as I do. Brian is
7:57
Speaker 6: you know, he looks like a football player actually is
8:00
Speaker 6: not dark skinned, so that was an inconvenient truth, but
8:04
Speaker 6: they managed to find a way around it, as they
8:05
Speaker 6: do in.
8:06
Speaker 4: These cases certainly, and how they do that.
8:09
Speaker 2: One of the key moments I think in the trial
8:12
Speaker 2: when it comes to the witness identification was when the
8:16
Speaker 2: witness refused to ident I mean, I'm sitting in court
8:19
Speaker 2: obviously in the defendant's table, but when asked, the witness
8:23
Speaker 2: refused to identify me as the person whom she had seen.
8:25
Speaker 2: The witness that was the closest to the crime was
8:28
Speaker 2: asked about, you know, whether the assailant was in the courtroom,
8:32
Speaker 2: and first we did the person have a mask on?
8:34
Speaker 2: You know he did, and I saw his face. Can
8:36
Speaker 2: you identify him? Have you identified him before? And can
8:38
Speaker 2: you identify him now? And the answer to that was no.
8:41
Speaker 2: At that point I was thinking that, Okay, well this
8:44
Speaker 2: is over and we should really just like have whatever
8:48
Speaker 2: motion that needs to happen to drop the case right
8:51
Speaker 2: now should really happen. And that's that was my misconception
8:54
Speaker 2: of what kind of the next couple of hours were
8:56
Speaker 2: going to be like.
8:57
Speaker 1: But it wasn't.
8:58
Speaker 6: Let's go back a little though, so you were you
9:00
Speaker 6: were arrested. That must have been enough of a shock.
9:03
Speaker 1: That was a tremendous shock.
9:04
Speaker 4: But let me ask you, did you even know that
9:05
Speaker 4: he had been killed?
9:07
Speaker 1: No? Not at all.
9:08
Speaker 4: So it wasn't like talk on campus or anything like that.
9:10
Speaker 1: No.
9:10
Speaker 2: So they came to my friend's house. I was at
9:13
Speaker 2: my friend's house and they came in, asked could they
9:16
Speaker 2: come in? You know, we let them in, and they
9:18
Speaker 2: started asking me about Jerry Wilkins. Right, that was a
9:21
Speaker 2: gentleman's name. I didn't know that his neck because he
9:24
Speaker 2: went by a nickname on campus. So for the first
9:27
Speaker 2: i'm gonna say three minutes of the conversation, it was
9:29
Speaker 2: like an Abbott Costello, Who are you talking about?
9:32
Speaker 1: Oh? You know who we're talking about? No, I don't.
9:35
Speaker 2: And then so one of them said, oh, well you
9:37
Speaker 2: know it's it's JP. Is this guy's nickname? Okay, well
9:40
Speaker 2: I know who you're talking about. And so that at
9:42
Speaker 2: that point they informed me that he had been shot.
9:45
Speaker 2: And I had no idea up until that very moment
9:48
Speaker 2: that that had happened.
9:49
Speaker 4: Did they take you away right then and there?
9:51
Speaker 1: No, not at all.
9:52
Speaker 2: So they questioned, they asked if they could question me.
9:54
Speaker 2: I agreed, to let them search everything that I had,
9:57
Speaker 2: because I had nothing to hid, and I wanted them
9:59
Speaker 2: to disco help me as a suspect if I were
10:02
Speaker 2: a suspect, which they told me that I wasn't, of course,
10:04
Speaker 2: as they want to do sometimes, but spoke with them,
10:08
Speaker 2: finished the conversation with them, and kind of just went
10:10
Speaker 2: on about my business and didn't hear about it again
10:13
Speaker 2: for another I'm gonna say, six months, and then I
10:16
Speaker 2: got a call. I was actually back in DC at
10:19
Speaker 2: this time, working as an intern for one of the
10:22
Speaker 2: largest law firms in the country on an importer, and
10:25
Speaker 2: I got a call from my lawyer who told me, so,
10:29
Speaker 2: you've been indicted for this homicide and you need to
10:33
Speaker 2: come and turn yourself in.
10:36
Speaker 1: And that was the first time I had heard about
10:37
Speaker 1: it since.
10:38
Speaker 6: And I'm just always at a loss to try to
10:43
Speaker 6: imagine the shock, the emotions, the confusion that everything that
10:49
Speaker 6: must go on inside your head when this all of
10:54
Speaker 6: a sudden is like, wait, what the fuck are you
10:57
Speaker 6: talking about? In a different way, like, for instance, if
10:59
Speaker 6: you're picked up and putting a handcuffs and taking in right,
11:01
Speaker 6: you've got to actually now go and get yourself back there.
11:04
Speaker 6: You've got to take this journey back to West Virginia
11:07
Speaker 6: to go show up and be processed. Right then, what
11:12
Speaker 6: I mean, did you go the next day?
11:14
Speaker 4: Did you go? And what do you I mean the
11:16
Speaker 4: first person you called was who in this happened?
11:18
Speaker 2: So I'm pretty sure that the first person I called
11:21
Speaker 2: was my mother, who is and remains, you know, the
11:23
Speaker 2: closest person person to me obviously other than my wife
11:27
Speaker 2: at this point. But we talked about it, and you know,
11:29
Speaker 2: obviously it had to be done to go back to
11:32
Speaker 2: West Virginia. So we made the arrangements to with and
11:35
Speaker 2: I'm not exactly short, I'll recall exactly how long it was,
11:38
Speaker 2: but it was within a day or two that we
11:41
Speaker 2: went back and in process. Yeah, So we went up,
11:45
Speaker 2: met with my lawyer, and then went over to h
11:47
Speaker 2: to the courthouse for the initial hearing.
11:50
Speaker 4: That we had, and then you were arraigned.
11:54
Speaker 2: So I was arraigned, and because the judge made several
11:58
Speaker 2: statements from the bench saying, well, I don't really know
12:00
Speaker 2: what's going on here, and we're going to assume that
12:05
Speaker 2: this hearsay evidence is valid and I'm going to let
12:09
Speaker 2: it in. Because other than that he said from the bench,
12:12
Speaker 2: that the prosecution has no case at all, Set the
12:14
Speaker 2: bail very low for a capital murder case. Set the
12:17
Speaker 2: bail ten thousand dollars, and I made bail and went home.
12:22
Speaker 4: Then comes a trial, Then comes the trial.
12:24
Speaker 6: Right, It's interesting you had an ineffective assistance of council
12:28
Speaker 6: claim later on in your appeal, and typically well typically
12:33
Speaker 6: xuonneries were represented, whether or not the head in effects
12:37
Speaker 6: of assistants a council. In general, there are people who
12:39
Speaker 6: come from very humble roots and have no ability to
12:42
Speaker 6: pay for an attorney and are represented by a public defender.
12:45
Speaker 6: That wasn't the case with you, So let's talk about
12:47
Speaker 6: that too. Because your family hired an attorney who would
12:51
Speaker 6: on paper have seemed like the right guy to represent
12:53
Speaker 6: you in this situation.
12:54
Speaker 2: Right, right, So the determination was made to hire a
12:58
Speaker 2: local attorney because the thinking behind that was, Okay, this
13:01
Speaker 2: person knows the landscape of this particular small town. If
13:05
Speaker 2: it's necessary to pick a jury or to do the
13:08
Speaker 2: many different things that a lawyer would have to do
13:10
Speaker 2: both pre trial and during trial, that they would be
13:13
Speaker 2: well suited to do that in this environment.
13:15
Speaker 1: So that determination was made.
13:17
Speaker 2: So we went with an attorney that was from the
13:19
Speaker 2: Morgantown which is where West Virginia University is located the
13:23
Speaker 2: Morgantown area, to represent me in this case. I mean,
13:27
Speaker 2: that was a terrible mistake. It turns out we went
13:30
Speaker 2: to trial. The trial, and you mentioned earlier it seeming surreal,
13:34
Speaker 2: I can verify that for you that it didn't seem
13:37
Speaker 2: that it was surreal. I was completely baffled by the
13:42
Speaker 2: fact that I was even in this situation, that I
13:44
Speaker 2: was even having to answer for a crime like that,
13:47
Speaker 2: that that had never even crossed my mind. And the
13:49
Speaker 2: fact that I'm sitting in this chair and being even
13:52
Speaker 2: accused of something like that was completely foreign to me.
13:55
Speaker 2: And you know something I really resented, to be honest
13:58
Speaker 2: with you, but that I knew that I had to
13:59
Speaker 2: go through. So in trial, the case against me was
14:04
Speaker 2: literally all hearsay and had no evidence whatsoever, and that
14:08
Speaker 2: ultimately was brought up by the courts that released me.
14:12
Speaker 2: But basically the evidence in the trial was, oh, our friend,
14:18
Speaker 2: mister Wilkins told us you didn't like him. Our friends
14:21
Speaker 2: told us that y'all had some type of beef. That
14:23
Speaker 2: was really it.
14:24
Speaker 4: Mark, Let's turn to you for a second.
14:25
Speaker 6: You can't convict somebody in America based on that on
14:28
Speaker 6: rumors a capital murray case.
14:30
Speaker 4: How's that happen?
14:32
Speaker 5: Well, unfortunately, I think experienced listeners of your podcast will
14:35
Speaker 5: know by now that that's Sadly, that's not the case
14:38
Speaker 5: that when there's a lot of pressure in a community
14:40
Speaker 5: to solve a certain crime, when they identify a suspect,
14:45
Speaker 5: they go down a certain road that they don't want
14:46
Speaker 5: to go back from. They get their conviction once that
14:50
Speaker 5: train is in motion. If you're lying there on the tracks,
14:53
Speaker 5: they run over you and you get convicted.
14:55
Speaker 6: I want to explore that too, because in this case,
14:58
Speaker 6: what is is the idea that after Brian had been
15:04
Speaker 6: identified as a suspect, and after the wheels of let's
15:08
Speaker 6: call it justice and quotes had started turning, another more
15:12
Speaker 6: likely suspect emerged, right, who may have actually been the killer?
15:16
Speaker 6: But they never that was not followed up on because
15:20
Speaker 6: it wasn't the narrative that they had signed on too. Right,
15:24
Speaker 6: they'd picked their guy. Everybody was determined to solve this
15:27
Speaker 6: case or to clear it off their desk. Not to
15:30
Speaker 6: solve it, right, but to get rid of it. And
15:33
Speaker 6: if an innocent guy got caught in the crosshairs, and
15:36
Speaker 6: so be it, so be it. So the hearsay is
15:39
Speaker 6: admitted into court, which seems odd too. I mean, would
15:42
Speaker 6: you if you were representing him at that time, would
15:44
Speaker 6: that still have been allowed to be admitted into court?
15:47
Speaker 5: Yeah, I don't know. I'm not sure about the rules
15:49
Speaker 5: of evidence in West Virginia, but I'm sure they found
15:51
Speaker 5: a way to spin it and sort of use the
15:54
Speaker 5: notion that there were witnesses who somehow implicated him even
15:58
Speaker 5: though they didn't as a means of conviction. And from
16:01
Speaker 5: what I understand about Brian's case, there was evidence that
16:03
Speaker 5: came out about other suspects that the police essentially buried
16:09
Speaker 5: and put away that his attorney, member paid attorney, private,
16:14
Speaker 5: well respected established attorney found out about and didn't follow
16:18
Speaker 5: up on. That is just egregious and it's unusual. But
16:23
Speaker 5: I think there's a real lesson here, which is that
16:26
Speaker 5: it's not just about the people who who can't afford
16:30
Speaker 5: to represent themselves, who get bad public defenders who can't
16:34
Speaker 5: follow through and give adequate representation. It happens at every level.
16:38
Speaker 5: If that machinery of justice is determined to get you,
16:42
Speaker 5: they probably will regardless of your personal circumstances, and that's
16:47
Speaker 5: just shocking and in my view, totally unacceptable and outrageous.
16:53
Speaker 6: An everybody's feel I mean, because this can happen, and
16:55
Speaker 6: I think Brian is a great example of this, right,
16:58
Speaker 6: I talk about the fact that this can happen to anyone.
17:02
Speaker 6: It literally can happen anyone, or he wouldn't be sitting
17:03
Speaker 6: here because he ain't that guy. Right, So you got
17:07
Speaker 6: convicted of capital murder that moment. Take us back there.
17:12
Speaker 6: You're in the courtroom. You're not that far removed from
17:16
Speaker 6: having been the guy on campus who had it all?
17:20
Speaker 6: And did you expect that the jury was going to
17:23
Speaker 6: come back whether guilty or an innocent verdict?
17:26
Speaker 2: The entire time I expected them to come back with
17:29
Speaker 2: an innocent verdict. I had been making plans because remember,
17:32
Speaker 2: like I said, I was on bond. I had made
17:34
Speaker 2: bond and had been home and was driving myself every
17:37
Speaker 2: day from the hotel back and forth to court. And
17:40
Speaker 2: so the day of the conviction, I had driven myself
17:43
Speaker 2: from the hotel to the courtroom because they said they
17:46
Speaker 2: had a decision, and I was eager to get it
17:49
Speaker 2: over with because I wanted to go home and so
17:51
Speaker 2: my anticipation was that it would be not guilty, that
17:54
Speaker 2: I would be acquitted and go home and then deal
17:56
Speaker 2: with everything kind of after that.
17:59
Speaker 1: But that was far different from the reality. I actually knew.
18:02
Speaker 2: I found out that there was a conviction a little
18:05
Speaker 2: bit before they read it in court, because when they
18:08
Speaker 2: called the jury out from the box, they have a
18:11
Speaker 2: jury sheet, and the jury sheet has different lines, and
18:14
Speaker 2: the first line is not guilty, second line is, you know,
18:17
Speaker 2: first degree murder. Third line and fourth line are the
18:19
Speaker 2: different the underlying charges. I guess you would say so
18:23
Speaker 2: second degree manslaughter are different variations of the homicide charge.
18:28
Speaker 2: And when the jury walked out, the foreman had it
18:31
Speaker 2: in his hand, but he had it in his hand,
18:33
Speaker 2: and as he stepped I could see I couldn't tell
18:37
Speaker 2: which line had been checked, but I knew that it
18:38
Speaker 2: wasn't the first one, and I knew that the first
18:40
Speaker 2: one was not guilty. So for about two minutes, I
18:44
Speaker 2: knew that it was some kind of guilty verdict, but
18:46
Speaker 2: just didn't know what.
18:47
Speaker 1: And I was in total disbelief.
18:50
Speaker 4: In the court room. I'm assuming your family was there.
18:53
Speaker 2: Right, so my entire like I said, I have a
18:55
Speaker 2: small family, but we're very close knit, so I had
18:58
Speaker 2: my mother was their father, both my siblings, cousins, and
19:01
Speaker 2: some friends were there.
19:03
Speaker 6: And it must have been I mean, it's just like
19:06
Speaker 6: the worst kind of imaginable sort of nightmare. You're there
19:10
Speaker 6: surrounded by all these people who know you couldn't possibly
19:12
Speaker 6: have done it, who love you and care for you,
19:15
Speaker 6: and are people who have accomplished so much in their
19:18
Speaker 6: own lives and have been a part of the justice
19:19
Speaker 6: system at one level or another, even including your aunt
19:22
Speaker 6: who's a judge, and who are suddenly powerless to stop
19:26
Speaker 6: this grave injustice from happening to a person that they
19:30
Speaker 6: love and care about deeply, which is you.
19:33
Speaker 4: And then it's.
19:34
Speaker 6: All just a I just my head explodes when I
19:37
Speaker 6: try to even imagine this. And I wasn't there, but
19:40
Speaker 6: you were there, and you were in the middle of it,
19:42
Speaker 6: and now you get taken off to prison.
19:44
Speaker 1: Right. So it was.
19:47
Speaker 2: Worse than that, actually, because prior to us actually going
19:51
Speaker 2: into the courtroom, the marshals, who had been obviously there
19:54
Speaker 2: for the entire court proceedings, took me aside and asked me,
19:57
Speaker 2: you know, not even me, but they took me in.
19:59
Speaker 2: A couple of mine family members aside and asked, do
20:01
Speaker 2: you want to talk to the media or anything afterward?
20:04
Speaker 2: Because we have sat through several or hundreds even of
20:09
Speaker 2: court proceedings here, we can kind of tell one way
20:12
Speaker 2: or the other which way it's going to go. We
20:14
Speaker 2: really feel like you shouldn't even be here, that this
20:16
Speaker 2: is going to be an acquittal. So if you don't
20:19
Speaker 2: want to talk to the media, let's figure out a
20:21
Speaker 2: way to get you out of the back door and
20:24
Speaker 2: into your current back to the hotel. Asked me where
20:26
Speaker 2: the hotel was, because their anticipation was that if you
20:31
Speaker 2: don't want to talk, then let's get you out of here.
20:34
Speaker 2: And we're honestly sorry for this. And that was the
20:36
Speaker 2: conversation that I had literally before I walked into the
20:39
Speaker 2: courtroom itself.
20:41
Speaker 6: Even they knew you were in Oh somehow other twelve
20:44
Speaker 6: other people call the jury couldn't figure it out. So
20:47
Speaker 6: I want to talk about the prison experience. Eleven years
20:52
Speaker 6: in a place that must have been as terrifying and
20:55
Speaker 6: foreign to you as could be imagined.
20:58
Speaker 4: So you got taken off to which prison.
21:02
Speaker 2: So initially you're taken to jail, right, So I spent
21:06
Speaker 2: about a year and a half in the jail awaiting
21:11
Speaker 2: transfer to prison. So from the courtroom I was walked
21:15
Speaker 2: down and put into a holding cell for about four
21:17
Speaker 2: or five hours to give my clothes up and the
21:19
Speaker 2: change and into kind of basically jail jumpsuit. And then
21:24
Speaker 2: later that night I was transferred to the jail where
21:27
Speaker 2: I ended up staying for about a year and a half,
21:29
Speaker 2: and then after a year and a half, I was
21:31
Speaker 2: then transferred to the state's maximum security prison, which is
21:34
Speaker 2: called Mount Olive in West Virginia.
21:36
Speaker 6: And the jail, the jail is is that in a
21:38
Speaker 6: building or is it like a Is it a sprawling complex?
21:41
Speaker 2: Is it it's a standalone complex, So it's it's sprawling,
21:46
Speaker 2: but it's they're all interconnected.
21:49
Speaker 6: Because in many cases jails like Rikers Island or Harris
21:53
Speaker 6: County are even more dangerous in maximum security prisons because
21:56
Speaker 6: of the fact that there's really no order there right
21:58
Speaker 6: because people are transient. It seems insane that you were
22:01
Speaker 6: kept there for a year and a half before transferring
22:03
Speaker 6: you to prison. I mean, how did you get through
22:05
Speaker 6: that way?
22:06
Speaker 2: So I would say that the worst thing was for me,
22:09
Speaker 2: you know, I felt like, and this was the case
22:11
Speaker 2: throughout I felt like as a man, you can deal
22:14
Speaker 2: with even a terrible thing that happens to you. I
22:18
Speaker 2: could deal with something that happened to me, as bad
22:19
Speaker 2: as it was and as much as I wanted to
22:21
Speaker 2: change it, it was something that I felt like I
22:23
Speaker 2: could adjust to and deal with in the moment, because
22:27
Speaker 2: I always felt that I would eventually come home. I
22:30
Speaker 2: just didn't know when. The thing that was the worst
22:32
Speaker 2: for me was the prospect of losing my parents or
22:36
Speaker 2: seeing what my incarceration did to my family, and you know,
22:41
Speaker 2: the things that they had to deal with, and at
22:43
Speaker 2: the same time be helpless about it.
22:45
Speaker 1: Like you said, it's nothing that they can do. They
22:47
Speaker 1: do the time with you.
22:48
Speaker 2: I think anyone who's ever had a family member in prison,
22:52
Speaker 2: anyone who's been around a family who's had someone in prison,
22:56
Speaker 2: knows that those close family members especially do every minute
22:59
Speaker 2: of that time with that person. And so having my parents,
23:03
Speaker 2: my siblings, my really close friends go through that it
23:08
Speaker 2: was no fault of mine, but for sure no fault
23:10
Speaker 2: of their own, and not be able to do anything
23:13
Speaker 2: and not really know how I'm taking it, because I
23:15
Speaker 2: know how I'm taking it, but they don't, and so
23:17
Speaker 2: they might expect the worst, and so having them or
23:19
Speaker 2: seeing them rather go through that, I would say that
23:22
Speaker 2: was definitely and it's not even close the worst part
23:25
Speaker 2: of the experience.
23:26
Speaker 6: For me, because we were walking around with that guilt,
23:29
Speaker 6: right or r right. I mean, ironically, you're innocent, and
23:31
Speaker 6: you have guilt because of the fact that you're even
23:35
Speaker 6: though you're not responsible, you're feeling responsible for this misery
23:40
Speaker 6: that you know your family's going through, only because they
23:42
Speaker 6: love you and they care, right, It's just it's a
23:45
Speaker 6: totally twisted cycle.
23:57
Speaker 4: Was there anything positive at all?
24:00
Speaker 2: Yeah, you know there there are, ironically a lot of
24:03
Speaker 2: different positive moments. Humans are a resilient kind of species,
24:07
Speaker 2: and especially if you're a strong person. And I've seen
24:10
Speaker 2: the system break a lot of people and so I
24:12
Speaker 2: don't want to say that they're not strong. But for
24:14
Speaker 2: the people that you know have hope, for the people
24:18
Speaker 2: you know that that are able to kind of adjust
24:21
Speaker 2: to their not accept it, but to adjust to the environment,
24:24
Speaker 2: you can find people doing things that make them feel better.
24:29
Speaker 1: Right.
24:29
Speaker 2: So for me, that was helping people in even worse situations.
24:33
Speaker 2: In mind, I had a terrible situation. I was given
24:35
Speaker 2: a life sentence without the possibility of parole, And so
24:39
Speaker 2: that meant that if the sense were kept the way
24:41
Speaker 2: that it was, I was never going to be given
24:43
Speaker 2: the opportunity to come home. I was to die in prison.
24:45
Speaker 2: It was a death sentence, just an extended one.
24:48
Speaker 4: Well, what is worse than that? Not much, But you
24:50
Speaker 4: said there are people even worse situations.
24:52
Speaker 2: All, so there are people in worse situations in mind
24:55
Speaker 2: in that you know, they came in, didn't have any
24:57
Speaker 2: kind of family support, still had those really really long
25:01
Speaker 2: sentences or life sentences, but they didn't have the advantage
25:04
Speaker 2: of being able to call home and talk to somebody.
25:06
Speaker 2: They didn't have the advantage of already having an education.
25:10
Speaker 2: And so you know, when I was able to help people,
25:13
Speaker 2: to tutor people to get their ged or to help
25:15
Speaker 2: them through the really limited college classes that they had,
25:19
Speaker 2: or to even help them with their legal work, because
25:21
Speaker 2: a lot of times people were stuck with the really
25:23
Speaker 2: terrible lawyers or no lawyers at all, and were responsible
25:26
Speaker 2: for their own legal work, but couldn't read, or couldn't
25:29
Speaker 2: read well enough to be able to analyze what their
25:33
Speaker 2: case was as compared to what the law was, and
25:36
Speaker 2: how to juxtapose those two things. So being able to
25:39
Speaker 2: help people with their law work and also with kind
25:42
Speaker 2: of feeling like they accomplished something, whether it's getting a
25:45
Speaker 2: ged or taking college classes.
25:47
Speaker 1: That's where I found my solace.
25:49
Speaker 6: Amazing that you could dig deep enough in this midst
25:52
Speaker 6: of this darkest place that you could possibly find yourself
25:55
Speaker 6: in to help others.
25:57
Speaker 4: I mean, it's as simple as that. There's really no
25:58
Speaker 4: better way of putting it. And so let's get to
26:01
Speaker 4: the appeal.
26:02
Speaker 6: You had sort of a dream team, right, not like
26:05
Speaker 6: the OJ dream team, like your own version of that
26:08
Speaker 6: you had. I mean you actually had sort of legal
26:12
Speaker 6: royalty on your side.
26:13
Speaker 2: Right, Yeah, I did. And again, you know you said that,
26:16
Speaker 2: like what could be worse in my situation, My situation
26:20
Speaker 2: was made far better by the fact that I had
26:23
Speaker 2: distinct hope as opposed to just kind of nebulous, Oh,
26:26
Speaker 2: I think and I hope that I'll get out one day.
26:29
Speaker 2: I really was able to believe and to kind of
26:32
Speaker 2: know inside that the people that were working on my
26:35
Speaker 2: case were the very best. So Covington and Berlin, which
26:38
Speaker 2: is either the top or one of the very top
26:41
Speaker 2: law firms in the country, took my case pro bono,
26:44
Speaker 2: which is fortunately because there's no way, even with a
26:47
Speaker 2: professional family, that we would have ever been able to
26:49
Speaker 2: afford their services. And not only did they take my
26:52
Speaker 2: case pro bono, but they put amazing lawyers on my team,
26:55
Speaker 2: and so for the first few years of the appeal,
27:00
Speaker 2: even with that, But it's important to point out that
27:01
Speaker 2: it was eleven years that it took for my case
27:04
Speaker 2: to be overturned. But one of my lead attorneys was
27:07
Speaker 2: Eric Holder, who ultimately became the Attorney General of the
27:11
Speaker 2: United States in two thousand and nine when President Obama
27:14
Speaker 2: was elected, and so he did an amazing job. Jim Garland,
27:18
Speaker 2: Sarah Wilson, Sarah Frederick, Paul Schmidt. There are amazing lawyers
27:23
Speaker 2: that put not only hard work, but they put their
27:28
Speaker 2: really their soul into into the case.
27:30
Speaker 1: They called me.
27:32
Speaker 2: I did as much work with them as I did
27:35
Speaker 2: with anyone else, and ultimately the case was overturned.
27:39
Speaker 4: It's really amazing to listen to you.
27:41
Speaker 6: I mean, you're very calm and sort of ethereal type
27:45
Speaker 6: of being for the short time I know you. But
27:47
Speaker 6: eleven years it took, even with the support of an
27:51
Speaker 6: amazing and accomplished and brilliant family and representation at the
27:57
Speaker 6: highest level, that someone could hope for years. I'm getting
28:01
Speaker 6: the chills just thinking about that. And it turned to
28:04
Speaker 6: Mark for a second because the conviction was overturned. So
28:09
Speaker 6: for the average person, you go, Okay, that's it, right,
28:13
Speaker 6: go home. Conviction overturned. Mistakes were made. We're sorry, mister Ferguson.
28:19
Speaker 6: Can we get you a ride somewhere? You know what
28:21
Speaker 6: I mean? Do you need a lift? That's not the
28:24
Speaker 6: approach that West Virginia took. They still wanted their pound
28:26
Speaker 6: of flesh.
28:27
Speaker 5: Yeah, So from my understanding is they appealed this reversal, right,
28:32
Speaker 5: which kept Brian for another year and a half right
28:36
Speaker 5: in prison, despite the fact that the conviction had been overturned,
28:39
Speaker 5: but the indictment still stood, and so they were appealing
28:42
Speaker 5: the fact that he should have been released at that point,
28:45
Speaker 5: which is actually very common in wrathful conviction cases. And
28:48
Speaker 5: it's really appalling and sickening. And sometimes it's even after clear,
28:52
Speaker 5: you know, demonstrable DNA tests and they still will appeal.
28:55
Speaker 4: That though, what is it? It's so strange and Brian,
28:59
Speaker 4: maybe you have it might not Mark, you must because
29:02
Speaker 4: it makes me nuts.
29:03
Speaker 5: Well, it's the very simple human reflex of not wanting
29:07
Speaker 5: to admit you were wrong morally, they've been so invested
29:11
Speaker 5: in it. Sometimes they just want to believe it. Many
29:14
Speaker 5: cases they really do believe it, they convince themselves, and
29:17
Speaker 5: then they don't want to admit publicly that Often a
29:21
Speaker 5: case that even might have made their reputation, that their
29:24
Speaker 5: reputation of their office is grounded on, was based on
29:28
Speaker 5: a terrible, horrific mistake. And this happened so many times,
29:34
Speaker 5: where you'd think there would be they'd be on their
29:36
Speaker 5: knees begging for forgiveness and apologize, but no.
29:40
Speaker 6: And on their way to go look for the guy
29:41
Speaker 6: who actually did it exactly before he killed somebody else.
29:44
Speaker 5: And if they really cared about justice, that they cared
29:46
Speaker 5: about law and order, right, these concepts they like to
29:49
Speaker 5: talk about, then they would be doing those things. No,
29:52
Speaker 5: but they want to keep that person that they know
29:55
Speaker 5: and come to learn is innocent, if they didn't know
29:58
Speaker 5: it already, keep that person in just to preserve their reputation,
30:02
Speaker 5: preserve their careers. And it's just unconscionable.
30:05
Speaker 4: You don't seem angry, what's up with that?
30:08
Speaker 2: You're not the first person to point that out. But
30:10
Speaker 2: what I'd like to say when anyone mentions that is
30:12
Speaker 2: that you know there's a threshold beyond which you're not
30:16
Speaker 2: worried about retribution, or you're not worried about being mad
30:19
Speaker 2: about the situation. If you would have caught me after
30:23
Speaker 2: maybe two or three years, yeah, I'd have been pissed.
30:25
Speaker 2: I was still pissed that my name was even brought
30:28
Speaker 2: up in a situation like this, that these people twisted
30:31
Speaker 2: the law, that they hid evidence that they knew another
30:34
Speaker 2: person was actually the one who committed the murder. But
30:38
Speaker 2: after a while, after you have to worry about your
30:40
Speaker 2: parents ever seeing you on the outside again. You have
30:43
Speaker 2: to worry about ever, you know, as you see your
30:45
Speaker 2: friends getting older, graduating from college and postgraduate degrees and
30:51
Speaker 2: having families and going off and doing all kinds of things,
30:54
Speaker 2: and the world passing you by. At some point you
30:56
Speaker 2: just want to come home. And so when you get
30:58
Speaker 2: that opportunity. For me, when I got the opportunity, I
31:02
Speaker 2: was far more happy to be home and to have
31:05
Speaker 2: the opportunity to build my life again than I am mad.
31:10
Speaker 2: Like that's not even a close. Those aren't even competing
31:13
Speaker 2: emotions in my mind.
31:15
Speaker 6: That's amazing. There's some sort of spiritual enlightenment going on here.
31:20
Speaker 6: That's that's kind of awesome to behold.
31:22
Speaker 5: You hear that with a lot of exguneries, then I hear.
31:24
Speaker 6: It over and over again, but it never gets old
31:27
Speaker 6: and it never ceases to amaze me. And everybody that
31:30
Speaker 6: I've I mean, I think every exunery I've ever met,
31:33
Speaker 6: and there's hundreds of them, have had some variation. Everyone's
31:37
Speaker 6: got their own take on it, everyone's got their own
31:41
Speaker 6: unique way of explaining it, and each one went through
31:45
Speaker 6: their own journey to get to that place, and of
31:49
Speaker 6: course so therefore there everyone has a little bit of
31:52
Speaker 6: a different way of expressing it. But it's absolutely remarkable
31:56
Speaker 6: when you hear somebody like you. I hope you understand
31:59
Speaker 6: how much that is inspires everybody else around you, and
32:02
Speaker 6: how much it inspires guys you know, like Mark and
32:05
Speaker 6: myself and so many others who are in this fight
32:08
Speaker 6: and trying to help prevent other people from following your situation,
32:12
Speaker 6: trying to help you know, other people like you find
32:14
Speaker 6: the freedom that they deserve and recover the life that
32:17
Speaker 6: was taken from them on the outside. And let's get
32:20
Speaker 6: to that too, because we got to still talk about
32:22
Speaker 6: the Alfred plea because it's a fascinating and terrifying concept
32:27
Speaker 6: that is hard for a lot of people, I think,
32:30
Speaker 6: to wrap themselves around. Because what happened in your case,
32:35
Speaker 6: which we see not infrequently in wrongful convictions, is that
32:41
Speaker 6: after this year and a half where you're now in
32:44
Speaker 6: this crazy limbo, right, you've known all along you're innocent,
32:48
Speaker 6: and they may have known all along you're innocent, but
32:50
Speaker 6: now you know that they know that you're innocent, right,
32:53
Speaker 6: and yet you're still in prison, and at a certain
32:57
Speaker 6: point you're faced with a decision that I don't think
33:01
Speaker 6: anybody who hasn't been there can even conceptualize, which is
33:06
Speaker 6: that it's really, do you want to bet your life? Hey, Ferguson,
33:11
Speaker 6: We just fucked you up, right, We just took you
33:14
Speaker 6: and just ground you up, and you're still here and
33:17
Speaker 6: that annoys us, right, and now you know you're you're
33:21
Speaker 6: in a position to make us look bad. We don't
33:23
Speaker 6: like that, right, And you're in a position to be
33:25
Speaker 6: able to sue us and get a lot of money.
33:27
Speaker 4: We don't like that either. And the tables are turned.
33:30
Speaker 4: We don't like that. We're going to give you a choice, right,
33:33
Speaker 4: which is.
33:33
Speaker 6: That even though we know that the right thing to
33:36
Speaker 6: do is to let you go and move on with
33:40
Speaker 6: your life. And like I said, we're going to go
33:43
Speaker 6: look for the guy that really did this, because there
33:44
Speaker 6: is no statute limitations on murder. There's a monster that's
33:48
Speaker 6: walking among us in our community where we live. But
33:51
Speaker 6: instead they came to you with a much different idea.
33:53
Speaker 6: You want to talk about that.
33:55
Speaker 2: Yeah, So in my case, actually they knew the person
33:59
Speaker 2: was incarcerated. He had apparently been known to be very
34:04
Speaker 2: violent and especially with guns to people in that community.
34:07
Speaker 2: And so as is that happens, he ended up in prison,
34:11
Speaker 2: and so he was in the prison, in a federal
34:13
Speaker 2: prison actually for I think fifteen years. So they weren't
34:16
Speaker 2: actually worried about this person walking among them in their communities.
34:20
Speaker 2: What they were worried about, like you said, was losing
34:23
Speaker 2: money was me suing when they dropped the case, and
34:27
Speaker 2: they made it very clear to my attorneys after they
34:30
Speaker 2: put in their appeal, that appeal took a year and
34:32
Speaker 2: a half, that I had to stay in prison after
34:33
Speaker 2: my case was overturned the Supreme Court of the state.
34:36
Speaker 2: So the West Virginia Supreme Court once they got the
34:39
Speaker 2: case and then they voted to uphold the decision to
34:42
Speaker 2: release me, making kind of and what I've heard is
34:45
Speaker 2: unprecedented comments from the bench that this should have never happened,
34:49
Speaker 2: this is a travesty of miscarriage of justice, and that
34:51
Speaker 2: this case has bothered us for years. Saying things like
34:54
Speaker 2: that you would think would influence a prosecutor one way
34:56
Speaker 2: or the other, but it didn't because they have the
34:58
Speaker 2: discretion to do as they will with respect to retrying
35:02
Speaker 2: a case. And so after they made that decision, they
35:05
Speaker 2: being this Supreme Court and I was released, the West
35:09
Speaker 2: Virginia prosecutors still had the option to retry me and
35:12
Speaker 2: made it clear to my attorneys that at this point
35:15
Speaker 2: we could drop the case, but we're playing with house money,
35:17
Speaker 2: and by that they meant if we retry him and lose,
35:20
Speaker 2: we're in no worse position optically practically than we are
35:24
Speaker 2: right now.
35:25
Speaker 1: The case.
35:26
Speaker 2: There's egg on our face. You know, everybody sees that
35:28
Speaker 2: we messed up, and then we tried the wrong person.
35:30
Speaker 2: If we retry him and lose, that that position doesn't
35:34
Speaker 2: get worse.
35:35
Speaker 1: But that's if we lose.
35:36
Speaker 2: If we win, he gets a brand new life sentence
35:39
Speaker 2: with no possibility or parrole and this time there's no
35:42
Speaker 2: coming back from it, So what do you want to do?
36:01
Speaker 4: So, Mark, doesn't this sound like double jeopardy? How do
36:04
Speaker 4: they get away with that?
36:05
Speaker 1: Yeah?
36:05
Speaker 5: Well, I mean when the conviction's overturned, it's like a
36:08
Speaker 5: trial never happened.
36:09
Speaker 4: So they do start over.
36:11
Speaker 5: And so what they're effectively saying is we are going
36:14
Speaker 5: to try you for murder and go for the maximum sentence,
36:17
Speaker 5: which is what he'd had before, or we will let
36:20
Speaker 5: you go with this Alfred plea where it's time served.
36:24
Speaker 5: It's technically legally a conviction means there's a record, but
36:29
Speaker 5: you get to claim your innocence, right, And it's this
36:32
Speaker 5: very bizarre choice. It's not always offered, but when it
36:35
Speaker 5: is a lot of times people do take it because
36:38
Speaker 5: there's that fear. What I mean, this is West Virginia, right,
36:40
Speaker 5: this is going into a courtroom after what he'd been
36:43
Speaker 5: through already. How's he supposed to know it's not gonna
36:45
Speaker 5: go the same way again, even though there's no evidence.
36:47
Speaker 5: There's no evidence the first time, and okay there's more now,
36:51
Speaker 5: but who knows?
36:52
Speaker 1: Right?
36:52
Speaker 5: But the key about the alphared plea, it's not a
36:54
Speaker 5: conviction with just time served and says, I plead guilty,
36:58
Speaker 5: I did it. He maintains his innocence and he gets
37:01
Speaker 5: to claim his innocence and they get technically the conviction,
37:05
Speaker 5: but then he's out. And I think many lawyers would say,
37:09
Speaker 5: take the deal because you need to get out. Out
37:12
Speaker 5: is out. And there are people who don't take it
37:14
Speaker 5: and who get convicted and they could have walked out
37:16
Speaker 5: that door.
37:17
Speaker 6: Yeah, and what a thing to live with that is
37:19
Speaker 6: so literally, Yeah, even if it's you know, look, even
37:21
Speaker 6: if you had somebody there saying, look, it's a it's
37:24
Speaker 6: a one percent chance, Brian, like you just do everything's
37:27
Speaker 6: in your favor. I mean, what do you what are
37:28
Speaker 6: you going to do? Like you could You're going to
37:31
Speaker 6: go back to prison for the rest of your life.
37:34
Speaker 6: It's almost like a Sophie's choice. But at the same time,
37:37
Speaker 6: I guess you got to take it. And we know
37:39
Speaker 6: and there are people who roll the dice. Yeah, and
37:41
Speaker 6: you could say, well, that's a principal thing to do.
37:44
Speaker 6: It's a brave thing to do. It's also a crazy
37:46
Speaker 6: thing to when you know what they're capable of. And
37:48
Speaker 6: we've seen cases where they'll come right out and say, look,
37:50
Speaker 6: we got a new jailhouse, nitche. We've got somebody else
37:53
Speaker 6: that's gonna we're gonna roll out and they're going to
37:55
Speaker 6: testify against you, and you know we're going to get you.
37:58
Speaker 5: But the key thing is Brian always maintained his innocence,
38:00
Speaker 5: and he could maintain his innocence while taking that plea
38:03
Speaker 5: and afterwards. So it's very different from a guilty plea
38:07
Speaker 5: for time served, which sometimes innocent people will take sure
38:11
Speaker 5: where they admit guilt for something they didn't do because
38:14
Speaker 5: it lets them out. The Alfred plea lets him maintain
38:17
Speaker 5: his innocence throughout as he did.
38:19
Speaker 2: The prosecution made it very clear, and I think as
38:22
Speaker 2: close to word for word as I can get, the
38:24
Speaker 2: quote was, we're extremely confident in our ability to convince
38:28
Speaker 2: our jurors of whatever we want to.
38:30
Speaker 1: So that sounds like a threat right there. Says a lot.
38:33
Speaker 6: So you were finally free, right to go home, and
38:37
Speaker 6: no one would blame you, least of all me if
38:39
Speaker 6: you came out and decide, you know what I'm gonna do.
38:42
Speaker 4: I'm gonna I'm gonna get drunk. I'm just gonna drink.
38:44
Speaker 6: I'm just gonna like I'm going on a bender, right,
38:47
Speaker 6: because look at what I just came out of, and
38:50
Speaker 6: I deserve to go have to de live my life
38:52
Speaker 6: like I'm in a rap video, you know what I mean.
38:54
Speaker 6: But that's not really what happened though, right, I mean,
39:00
Speaker 6: your story is remarkable in so many ways, but not
39:05
Speaker 6: least of which because of what's.
39:07
Speaker 4: Going on now.
39:09
Speaker 6: And you know you're now a senior at Georgetown, Yes
39:13
Speaker 6: I am, so you've got what else is going on?
39:16
Speaker 2: So right now, I am the executive director of the
39:19
Speaker 2: Mayor's Office on Returning Citizen Affairs in Washington, DC. So
39:23
Speaker 2: the office is the only legislatively mandated office of its
39:27
Speaker 2: kind in the country, and basically the mission is to
39:30
Speaker 2: provide information, support and services to individuals who come home
39:35
Speaker 2: from incarceration back to the district.
39:37
Speaker 6: So you're giving back in a way that you are
39:40
Speaker 6: uniquely qualified.
39:42
Speaker 4: To be able to do.
39:43
Speaker 1: Correct.
39:43
Speaker 4: It's sort of a great full circle. Look, we'd all
39:46
Speaker 4: like to give you.
39:47
Speaker 6: Back those eleven years and make that just just to
39:50
Speaker 6: RaSE that from what we.
39:51
Speaker 2: Can You can't you can't get you can't ever get
39:54
Speaker 2: back the time. But you know, when I came home,
39:57
Speaker 2: the thing that was really on my mind was how
40:01
Speaker 2: many people went out of their way to help me.
40:03
Speaker 2: How many people stepped out of their comfort zone and
40:06
Speaker 2: what would have been completely acceptable for them to do
40:09
Speaker 2: or to not do, to go above and beyond to
40:12
Speaker 2: help me. Marcu is definitely one of those people. The
40:15
Speaker 2: lawyers that I had, they didn't need to do any
40:17
Speaker 2: of the stuff that they did, And if it weren't
40:20
Speaker 2: for what they did, there's no way that I would
40:22
Speaker 2: be in a position i am today or anywhere near there.
40:25
Speaker 2: So it's I believe a requirement for me to give
40:28
Speaker 2: at least some of that back, as much of it
40:30
Speaker 2: as I can. The people, like I said that there
40:32
Speaker 2: are worse positions than I was when I came home.
40:34
Speaker 2: I was fortunate enough to have a family to come
40:37
Speaker 2: home to. I didn't have to worry about where my
40:39
Speaker 2: next meal was coming from, or where I was going
40:41
Speaker 2: to get money to get food or anything like that,
40:44
Speaker 2: or clothes, or where I was going to live when
40:46
Speaker 2: I was looking for a job or anything like that.
40:48
Speaker 2: These are problems they face a lot of people when
40:51
Speaker 2: they come home from prison, whether they did two years
40:53
Speaker 2: or twenty years.
40:54
Speaker 1: And I didn't necessarily have to deal with all that.
40:56
Speaker 2: I still had tremendous hurdles, but the fact is that
40:59
Speaker 2: I had the supports and people help me through my situation,
41:02
Speaker 2: and so I want to do that for other people
41:04
Speaker 2: who are in even worse situation than I was when
41:06
Speaker 2: I came home.
41:07
Speaker 6: If one person clapping wouldn't sound so weird, I give
41:09
Speaker 6: you a round of applaus right after that, you know
41:11
Speaker 6: what I mean.
41:12
Speaker 4: But yeah, that's that's amazing.
41:14
Speaker 6: And you know, and I think a lot of people
41:16
Speaker 6: that are that do get involved in this stuff. I mean,
41:18
Speaker 6: I can't speak for everybody, but many of us recognize that.
41:22
Speaker 6: But there before the grace of God, go I right,
41:24
Speaker 6: this could happen definitely to anyone, because it did. I
41:28
Speaker 6: think it's great that there's so much interest and momentum
41:31
Speaker 6: behind an awareness that there's a huge number of people
41:36
Speaker 6: like you who need help, both people that were wrongfully
41:39
Speaker 6: convicted and people that are out the type of people
41:42
Speaker 6: you're helping now and have served their time and are
41:46
Speaker 6: just in this country. The punishment is so disproportionate in general,
41:50
Speaker 6: So the crime and the punishment continues with the stigmas
41:54
Speaker 6: that exist after you get out. I mean, some of
41:56
Speaker 6: it is deliberate, some of its government mandated punishment. I mean,
41:59
Speaker 6: you can't vote and all this other stuff, and some
42:02
Speaker 6: of it's just society looking down on people and not
42:05
Speaker 6: wanting to give people a second chance. When we see
42:08
Speaker 6: both xouneries and people who are formally incarcerated, who served
42:11
Speaker 6: their time, as you were saying, accomplishing extraordinary things. I
42:15
Speaker 6: want to ask two more things. One is, when you're
42:17
Speaker 6: finally released, what did you do.
42:19
Speaker 2: I got the hell out of West Virginia. This is
42:21
Speaker 2: the first thing I did. I wanted to drive. I
42:24
Speaker 2: told so my father picked me up, which you know,
42:27
Speaker 2: my father had been even when I had a life
42:30
Speaker 2: sentence with no parole and the appeals were stalling or
42:34
Speaker 2: going nowhere and there wasn't any discernible date to look
42:38
Speaker 2: forward to. He was always in my ear. Listen, I'm
42:41
Speaker 2: gonna pick you up. I'm gonna pick you up from
42:43
Speaker 2: right here, and we're gonna go wherever you want to go.
42:45
Speaker 2: And to have him be outside the gate when they
42:48
Speaker 2: let me go, it was a beautiful thing. It was
42:50
Speaker 2: one of the best moments in my life. But when
42:52
Speaker 2: we got in that car, I told him to get
42:53
Speaker 2: me the hell out of the state, and so we
42:56
Speaker 2: drove until we got to Maryland and then we stopped
42:58
Speaker 2: to eat and I don't even remember.
42:59
Speaker 1: Where it was, but it was great.
43:01
Speaker 4: It must have been incredible.
43:02
Speaker 1: It was amazing.
43:02
Speaker 6: Okay, so now comes the thing we typically do, as
43:06
Speaker 6: everyone who listens to the show knows, I like to
43:09
Speaker 6: just turn over the floor to you for closing thoughts.
43:12
Speaker 4: Let's call it closing thoughts.
43:14
Speaker 2: I think if I had to come up with closing
43:16
Speaker 2: thoughts right now, what's on my mind is just the
43:19
Speaker 2: opportunity that exists for people that are coming home from prison.
43:24
Speaker 2: As you mentioned, the federal system is its own thing,
43:26
Speaker 2: but in a lot of these states and a lot
43:27
Speaker 2: of these cities, DC especially, there's a tremendous amount of
43:31
Speaker 2: resources and services that are available to people. And like
43:35
Speaker 2: you said, the tide is turning with respect to how
43:37
Speaker 2: people look at the criminal justice system of mass incarceration,
43:41
Speaker 2: what needs to be done for people not only when
43:44
Speaker 2: they come home, but before they even get there in
43:47
Speaker 2: the prison. The treatment that's going on, a lot of
43:49
Speaker 2: it is criminal in and of itself, but DC and
43:53
Speaker 2: I work at the Mayor's office on returning citizen affairs.
43:56
Speaker 2: If you got to come home to somewhere after having
43:59
Speaker 2: been incarcerated. DC is a great place, and you know,
44:01
Speaker 2: we serve as an example for a lot of different things,
44:05
Speaker 2: one of which is the band of Box law that's
44:07
Speaker 2: happened then. I know New York is following suit on
44:09
Speaker 2: which is basically prevents employers from screening people for their
44:13
Speaker 2: criminal records and so that gives people opportunities for jobs.
44:16
Speaker 2: The mayor has dedicated millions of dollars to the re
44:19
Speaker 2: entry community in DC and has you know, made the
44:23
Speaker 2: priority of the needs of the returning citizen community. You
44:28
Speaker 2: have different nonprofit organizations all throughout the city and the
44:32
Speaker 2: nation that are really the kind of backbone of the
44:34
Speaker 2: movement to help people once they come home. And I
44:37
Speaker 2: want to really take my hat off, not just because
44:39
Speaker 2: I'm a student there, but to Georgetown and to other
44:42
Speaker 2: universities like that, but especially Georgetown because of what they
44:45
Speaker 2: do in the re Entry space Mark and the Prison
44:48
Speaker 2: Justice Initiative is an amazing example of that that they
44:51
Speaker 2: have identified the needs of this community as a priority
44:55
Speaker 2: as well and have utilized their resources and the brain
44:59
Speaker 2: power that exist in a university like that, a top
45:03
Speaker 2: tier university to be able to make a change. So
45:06
Speaker 2: I think that my last thought would be to just
45:09
Speaker 2: take my hat off to everyone who's doing the work,
45:11
Speaker 2: everybody who's listening that has either done the work or
45:14
Speaker 2: who is inclined toward people who are incarcerated, whether wrongfully
45:19
Speaker 2: or otherwise, because ninety seven percent of people that are
45:22
Speaker 2: incarcerated are coming home. So the question is what kind
45:25
Speaker 2: of neighbor do you want? What kind of person do
45:27
Speaker 2: you want is going to be at your school, is
45:29
Speaker 2: going to be in the store with you? What kind
45:31
Speaker 2: of society do you want?
45:33
Speaker 1: Do you want to participate in and contribute to?
45:35
Speaker 2: So those things I think are what are on my
45:38
Speaker 2: mind and what I want to have the audience take away.
45:41
Speaker 5: Mark, Yeah, so I agree with everything that Brian just said.
45:44
Speaker 5: But let me just close with something about Brian, because
45:47
Speaker 5: I think it's probably already clear to your listeners what
45:50
Speaker 5: an amazing person he is and how strong and resilient
45:53
Speaker 5: and caring he is. But he has so many different
45:57
Speaker 5: dimensions that might not come across right away on this podcast.
46:00
Speaker 5: But I got to know Brian. I remember getting an
46:02
Speaker 5: email from him a couple of years ago, and you know,
46:05
Speaker 5: dear Professor Howard, very polite and so on and saying
46:09
Speaker 5: very little but just about his own experience, and that
46:13
Speaker 5: he'd be interested in having a meeting sometime, and I thought, yeah,
46:16
Speaker 5: I definitely I'm interested. And when we met in my office,
46:20
Speaker 5: within five minutes I knew this guy is a winner.
46:23
Speaker 5: This guy is unbelievable. And we talked about the possibility
46:27
Speaker 5: of him coming to Georgetown because he'd stopped. He'd been
46:30
Speaker 5: at West Virginia and he'd stopped after two years despite
46:32
Speaker 5: having a great record, but that was over and it's
46:35
Speaker 5: hard to pick that up again. And we came up
46:38
Speaker 5: with the idea, why not have him be a transfer
46:41
Speaker 5: student to Georgetown, And so I supported that and wrote
46:45
Speaker 5: a letter of recommendation very long, where basically I was
46:48
Speaker 5: threatening to resign if Georgetown didn' admit. I said, if
46:51
Speaker 5: Georgetown is worth anything of its reputation of in terms
46:56
Speaker 5: of academic excellence, where he had the record and deserved it,
46:59
Speaker 5: just oh yeah, but also in terms of Georgetown's tradition
47:05
Speaker 5: of giving back and as a Jesuit institution of caring
47:08
Speaker 5: for others and so on. And he was admitted as
47:12
Speaker 5: a transfer student and then came on and then actually
47:14
Speaker 5: was in my classroom and I was teaching a course
47:17
Speaker 5: called Prisons and Punishment, which has about fifty students, and
47:21
Speaker 5: Brian was one of those students, and we talked beforehand
47:24
Speaker 5: and I said, you know, I'll let you decide when
47:27
Speaker 5: to reveal your story, and if you want me to,
47:30
Speaker 5: I'm happy to if you want to, you decide when
47:32
Speaker 5: the right time is. And I remember it was several
47:34
Speaker 5: weeks into the class and he'd already been active and
47:37
Speaker 5: asking questions and making comments and so on. But then
47:39
Speaker 5: at one point he said to the whole class, now
47:42
Speaker 5: might be a good time for me to tell you
47:44
Speaker 5: my story, what I've been through, why I have a
47:46
Speaker 5: connection with this issue. And you should have seen the
47:49
Speaker 5: jaws drop in that room, total silence and admiration and awe.
47:55
Speaker 5: And over the next few months, the role that he
47:58
Speaker 5: had in that classroom and in these students' lives, the
48:01
Speaker 5: respect that they had for him, it was life changing
48:04
Speaker 5: for them for me too, And I got course evaluations
48:07
Speaker 5: at the end of the semester that were through the roof,
48:10
Speaker 5: but so many of them said having Brian in this
48:13
Speaker 5: course was unbelievable, right, And so I'm really grateful to him,
48:17
Speaker 5: but not just in terms of what he did to
48:19
Speaker 5: me and for my students, but what he's giving back
48:21
Speaker 5: to so many people around him, right, And so it's
48:24
Speaker 5: one of these things where you never would wish this
48:27
Speaker 5: type of horrible thing to happen on anyone, but in
48:30
Speaker 5: a way, Brian is the person to have it happened
48:32
Speaker 5: to because he is so strong and he's taking from
48:36
Speaker 5: that something to help change this horrific system. And I
48:40
Speaker 5: think he's going to be a leader in the future,
48:43
Speaker 5: whether it's in DC or nationally. He's got an incredible
48:46
Speaker 5: future and we're all going to hear a lot more
48:49
Speaker 5: from him and about him.
48:50
Speaker 6: I think, don't forget to give us a fantastic review.
48:59
Speaker 4: Wherever you get your post, it really helps.
49:02
Speaker 6: And I'm a proud donor to the Innocence Project and
49:04
Speaker 6: I really hope you'll join me in supporting this very
49:07
Speaker 6: important cause and helping to prevent future wrongful convictions. Go
49:11
Speaker 6: to Innocence Project dot org to learn how to donate
49:14
Speaker 6: and get involved. I'd like to thank our production team,
49:17
Speaker 6: Connor Hall and Kevin Wartis. The music in the show
49:20
Speaker 6: is by three time OSCAR nominated composer Jay Ralph.
49:23
Speaker 4: Be sure to.
49:24
Speaker 6: Follow us on Instagram at Wrongful Conviction and on Facebook.
49:28
Speaker 4: At Wrongful Conviction podcast.
49:30
Speaker 6: Wrongful Conviction with Jason Flamm is a production of Lava
49:33
Speaker 6: for Good Podcasts in association with Signal Company Number one