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#480 Maggie Freleng with Marty Levingston · Wrongful Conviction

• 0:06
  Speaker 1: Marty Livingstone doesn't claim he was an angel.
• 0:08
  Speaker 2: When he was younger, we was running around doing stupid things,
• 0:11
  Speaker 2: like he was running around. He was running doing doing
• 0:13
  Speaker 2: street stuff, just run around, acting stupid, getting into fights.
• 0:17
  Speaker 1: He grew up on the streets learning from other kids
• 0:19
  Speaker 1: like him.
• 0:20
  Speaker 2: So like we called ourselves wanting to be different, little
• 0:24
  Speaker 2: things like different or like trying to form. So I
• 0:27
  Speaker 2: ain't know what the heck we was talking about, So like.
• 0:29
  Speaker 1: A gang or like a music Like what what do
• 0:31
  Speaker 1: you mean by form?
• 0:32
  Speaker 2: Something like you know, like form something like you know,
• 0:35
  Speaker 2: like we're trying to like a click, like like a click, like,
• 0:38
  Speaker 2: oh we did we did? Like but we're trying to
• 0:40
  Speaker 2: find We boys, we brothers, a group.
• 0:42
  Speaker 1: Of friends having each other's back. Marty says he was
• 0:45
  Speaker 1: never part of a gang or commit any serious crimes.
• 0:49
  Speaker 1: He was a young dad getting his degree at the
• 0:51
  Speaker 1: time that his life came crashing in on him. One
• 0:56
  Speaker 1: day he got a phone call from his mom.
• 0:58
  Speaker 2: I said, mother, what's going on? She said, the US
• 1:00
  Speaker 2: Marshall was here. Now.
• 1:02
  Speaker 1: As I mentioned, Marty wasn't an angel. He admits that
• 1:06
  Speaker 1: he was familiar with the police. In fact, he had
• 1:09
  Speaker 1: been accused of a shooting before, but that was cleared up.
• 1:12
  Speaker 1: It hadn't been Marty. Normally he wouldn't be too worried,
• 1:17
  Speaker 1: but he says this time his gut told him something
• 1:20
  Speaker 1: was off.
• 1:22
  Speaker 2: Really on this one, it's like I felt something. It
• 1:28
  Speaker 2: was different, like this one is different. My name is
• 1:32
  Speaker 2: Marty Leviston. I was wrong for the convicted for fifteen years.
• 1:36
  Speaker 1: From Lava for Good. This is wrongful conviction with Maggie
• 1:39
  Speaker 1: Freeling today. Marty Levingston Marty Livingstone was born on August thirteenth,
• 1:52
  Speaker 1: nineteen eighty four, to Sandra and Marty d. Levingston in Cincinnati, Ohio.
• 2:00
  Speaker 2: Life wasn't I'm not gonna say life was average. Child, No,
• 2:04
  Speaker 2: I got a it's eight of us WHOA So my
• 2:08
  Speaker 2: mama was my mama six counting me. Then my father
• 2:12
  Speaker 2: had two before then, so I got three brothers and well,
• 2:17
  Speaker 2: three brothers and three sisters. The oldest will be Telicia Evans,
• 2:22
  Speaker 2: Dron Levingston Darlene.
• 2:25
  Speaker 1: Marty is somewhere in the middle of all the siblings
• 2:28
  Speaker 1: then me. Growing up, Marty says he was a daddy's boy.
• 2:31
  Speaker 2: My mom used to tell me stories about how she
• 2:34
  Speaker 2: used to be trying to like feed me. Like if
• 2:36
  Speaker 2: she puts some in her mouth and she tried to
• 2:38
  Speaker 2: feed me with it, he I smack it away. No,
• 2:41
  Speaker 2: but she says, soon as my daddy do it, I
• 2:42
  Speaker 2: could eat it. I eat it. So my dad was
• 2:45
  Speaker 2: just like I actually like my dad to come get
• 2:47
  Speaker 2: me when I was seven, six, seven, eight years old
• 2:50
  Speaker 2: and I could just go. I used to go everywhere
• 2:52
  Speaker 2: with them.
• 2:53
  Speaker 1: So but then Marty's parents split up and his dad
• 2:56
  Speaker 1: moved out.
• 2:57
  Speaker 2: That's what shows me how powerful my mother or he
• 2:59
  Speaker 2: is because us like she kept us with a roof
• 3:02
  Speaker 2: over our head, kept food on the table, like you
• 3:05
  Speaker 2: know what I'm saying. I don't know how she did it,
• 3:07
  Speaker 2: but I used to sit back and and watch her
• 3:10
  Speaker 2: make miracles happen.
• 3:11
  Speaker 1: Not only did she make it happen, but Marty remembers
• 3:15
  Speaker 1: lots of good times in his busy home full of love.
• 3:18
  Speaker 2: Sometimes it'll be out of kids, it'll be probably about
• 3:21
  Speaker 2: it could be good ten of us, ten eleven, twelve
• 3:23
  Speaker 2: of us, because if my cousin's over there, that's counting
• 3:26
  Speaker 2: them too. So oh yeah, so it'll be fighting over cereal,
• 3:28
  Speaker 2: fighting over cereal boxes, cookies, video games, like it was
• 3:33
  Speaker 2: just everybody. You know, they could pete in fighting, arguing.
• 3:36
  Speaker 2: But when you look back at it now, it was
• 3:38
  Speaker 2: like that was fun.
• 3:42
  Speaker 1: Marty says. Life was good. But then in nineteen ninety six,
• 3:46
  Speaker 1: when he was in his teens, his mom moved the
• 3:49
  Speaker 1: family to the Hawaiian Terrace apartment complex in Mount Airy,
• 3:53
  Speaker 1: a neighborhood in the outskirts of Cincinnati, which at the
• 3:56
  Speaker 1: time was dealing with a lot of crime.
• 3:59
  Speaker 2: That's when I actually start you know, picking up things like,
• 4:05
  Speaker 2: you know, learning things and things like what, oh will
• 4:09
  Speaker 2: the wrong things?
• 4:10
  Speaker 1: Marty says. He started getting into trouble for things like
• 4:13
  Speaker 1: selling drugs.
• 4:14
  Speaker 2: I start trying to find myself at that time, Like,
• 4:16
  Speaker 2: you know, my father was away at the time, and
• 4:19
  Speaker 2: so like I'm trying to find you know, where was
• 4:23
  Speaker 2: your dad at the time. My dad was incarcerated.
• 4:26
  Speaker 1: What was he incarcerated for.
• 4:27
  Speaker 2: Well, he's incarcerated for you know at that time, was
• 4:31
  Speaker 2: probably have some drug possessions or something.
• 4:33
  Speaker 1: How did that affect you.
• 4:34
  Speaker 2: When he left me? Like when he left at that time,
• 4:37
  Speaker 2: like I was hurt. You know, I was hurt, and
• 4:40
  Speaker 2: I'm trying to find myself and and it affected me
• 4:43
  Speaker 2: affected me a lot.
• 4:45
  Speaker 1: Marty started learning how to be a man from the streets.
• 4:48
  Speaker 2: I was starting to get taught the wrong things at
• 4:50
  Speaker 2: that time, like you know about just everything about women,
• 4:53
  Speaker 2: by life, by everything period. I was starting to get
• 4:56
  Speaker 2: taught those things like you know, like this how we
• 4:58
  Speaker 2: should do it, This is how we should look at women,
• 5:01
  Speaker 2: This how we should look at people.
• 5:03
  Speaker 1: At sixteen, Marty had his first kid and went on
• 5:06
  Speaker 1: to have three more. Marty says he was aimless and
• 5:10
  Speaker 1: getting cues from all the wrong people. Back then, stories
• 5:14
  Speaker 1: of neighborhood gangs were all over the local news. Not
• 5:18
  Speaker 1: a story you will see only on five. You know,
• 5:20
  Speaker 1: you used to only hear about gangs like the Crips and.
• 5:23
  Speaker 3: The MS thirteen Bloods, crips living and hanging out in
• 5:27
  Speaker 3: areas you may least.
• 5:28
  Speaker 1: Expin information tonight on a local store busted for dealing
• 5:32
  Speaker 1: drugs officers. Marty says he wasn't part of any gang,
• 5:34
  Speaker 1: but he was still involved with groups of kids and
• 5:37
  Speaker 1: young men breaking the law.
• 5:39
  Speaker 2: Like I'm gonna tell you, like I wasn't no angel.
• 5:42
  Speaker 2: You know, it was idea live a lifestyle, so you
• 5:46
  Speaker 2: couldn't do that in that area. So they end up
• 5:49
  Speaker 2: evicting my mother about it.
• 5:50
  Speaker 1: There, Marty left the neighborhood, but not the lifestyle. He says.
• 5:54
  Speaker 1: He kept acting foolish into his twenties and eventually made
• 5:58
  Speaker 1: a name for himself with law enforcement.
• 6:00
  Speaker 2: I had running ins, I had priors, I had I
• 6:03
  Speaker 2: had juvenile record. Yes, I had priors. I was out
• 6:07
  Speaker 2: there in the streets and moving around and stuff like that.
• 6:10
  Speaker 1: Though in between run ins with the law, Marty spent
• 6:13
  Speaker 1: part of his early twenties trying to get his degree.
• 6:16
  Speaker 2: I was going to job court. I was going there
• 6:18
  Speaker 2: for to be for business business management.
• 6:22
  Speaker 1: What would you have wanted to do with business management?
• 6:24
  Speaker 1: What were you thinking?
• 6:25
  Speaker 2: For real? I ain't know what I was doing. I
• 6:26
  Speaker 2: look back now, I shouldn have went in there. I
• 6:28
  Speaker 2: should have went and got carpentry or something. But like so,
• 6:31
  Speaker 2: I'm like, I think of business managed, because at that time,
• 6:34
  Speaker 2: everybody that's from the streets be saying business business management.
• 6:37
  Speaker 1: Putting two and two together business management and Marty's lifestyle,
• 6:42
  Speaker 1: I can kind of guess where he was going with
• 6:44
  Speaker 1: that degree.
• 6:45
  Speaker 2: So I'm going to Cincinnight job court school at the time,
• 6:49
  Speaker 2: And so my dad had called me and said, I
• 6:51
  Speaker 2: just heard your name on the news, I say for
• 6:54
  Speaker 2: what on the on the on the radio, they say
• 6:57
  Speaker 2: he was looking for you for a shooting.
• 6:58
  Speaker 1: I said, huh, shooting. This was Marty's first major arrest.
• 7:04
  Speaker 1: It was in two thousand and six that was.
• 7:07
  Speaker 2: Full tempted murder Forlonius Assault.
• 7:10
  Speaker 1: Marty was arrested for a drive by shooting at the
• 7:13
  Speaker 1: University of Cincinnati. Two men had been injured, but Marty
• 7:17
  Speaker 1: says he hadn't been involved and the case against him
• 7:21
  Speaker 1: didn't go very far.
• 7:22
  Speaker 2: The witness that got shot he dated my little sister
• 7:26
  Speaker 2: at the time, and so he even coming there like, yeah,
• 7:31
  Speaker 2: I know who shot me. He ain't shoot me. Yeah
• 7:33
  Speaker 2: he was up there. I seen him up there, but
• 7:34
  Speaker 2: he ain't shoot me. And so that case ended up
• 7:37
  Speaker 2: getting dismissed.
• 7:40
  Speaker 1: Still, Marty was on the police's radar now more than ever.
• 7:44
  Speaker 1: And not long after, Marty was arrested for another shooting,
• 7:49
  Speaker 1: but this time there was no survivor to say it
• 7:52
  Speaker 1: wasn't Marty. On the evening of December twenty eighth, two
• 8:02
  Speaker 1: thousand and seven, two shooters opened fire at the Hawaiian
• 8:05
  Speaker 1: Terraces apartment complex. So do you remember when this happened?
• 8:10
  Speaker 2: Yes, I remember like yesterday.
• 8:11
  Speaker 1: Tell me what you remember.
• 8:12
  Speaker 2: Well, what happened was, So I'm in the house. I'm
• 8:15
  Speaker 2: in the house. I'm on my mother houses. Three days
• 8:17
  Speaker 2: after Christmas, I got my daughter with me. So I'm in.
• 8:19
  Speaker 2: I'm in the house. I was actually laying down because
• 8:21
  Speaker 2: I had a real bad migraine. I received a call
• 8:25
  Speaker 2: by a friend of my friend of mine name Andre.
• 8:29
  Speaker 2: He called me. He said, brother, I heard a lot
• 8:32
  Speaker 2: of gunshots out here. He go outside, he says, ambulance,
• 8:36
  Speaker 2: fire trucks everywhere. I say, wow, what happened? So he
• 8:39
  Speaker 2: ended up asking somebody. They said what happened? He said, man,
• 8:42
  Speaker 2: somebody just got killed.
• 8:44
  Speaker 1: The victim was nineteen year old Michael Grace. According to reports,
• 8:48
  Speaker 1: Grace had been living with his aunt at the Hawaiian
• 8:50
  Speaker 1: Terrorists Apartment Complex. Prosecutor said that the teenager had been
• 8:54
  Speaker 1: trying to escape his former connections to a gang called
• 8:57
  Speaker 1: the Taliband, but on December twenty eighth, that former life
• 9:01
  Speaker 1: caught up with him. Grace was in a car with
• 9:04
  Speaker 1: his friend Carlos Mayo when members of a rival gang
• 9:08
  Speaker 1: allegedly picked a fight with them, which ended in his
• 9:11
  Speaker 1: fatal shooting.
• 9:12
  Speaker 2: There So I got up. I went in my mother
• 9:14
  Speaker 2: room and I said, Mom, somebody just got killed in
• 9:17
  Speaker 2: Hawaiian Village because we called it Hawaiian Village too. I said, well, man,
• 9:20
  Speaker 2: you know they will try to put that on me.
• 9:23
  Speaker 1: Remember, Marty used to live at Hawaiian Terrace before his
• 9:26
  Speaker 1: family was evicted. He was connected there.
• 9:29
  Speaker 2: She said, well, you went out there, you was right here.
• 9:32
  Speaker 1: But Marty knew his relationship with the streets and the
• 9:35
  Speaker 1: police would work against him.
• 9:37
  Speaker 2: My name always came up when something happened, even in
• 9:41
  Speaker 2: why I wasn't even being in that area no more,
• 9:43
  Speaker 2: My nave still came up.
• 9:45
  Speaker 1: Why did you think they were going to try and
• 9:46
  Speaker 1: put it on you?
• 9:47
  Speaker 2: Anytime something happened, they either go questioned me, or pull
• 9:51
  Speaker 2: me over, or do something like that. So I knew
• 9:53
  Speaker 2: that area. I knew either they go try to put
• 9:56
  Speaker 2: this on me, they go come question me, they go
• 9:58
  Speaker 2: do something.
• 9:58
  Speaker 1: But they didn't, at least not until after the New Year,
• 10:02
  Speaker 1: when a witness named Savannah Sorels appeared.
• 10:05
  Speaker 3: So she was a young woman who lived in the area,
• 10:09
  Speaker 3: lived in a position where she could see the shooting
• 10:12
  Speaker 3: from a window in her house.
• 10:13
  Speaker 1: This is Donald Castor.
• 10:15
  Speaker 3: I'm an attorney and a professor of clinical law at
• 10:18
  Speaker 3: the Ohio Nissance Project at the University of Cincinnati, and
• 10:21
  Speaker 3: I was privileged to be one of Marty's attorneys. In
• 10:23
  Speaker 3: his post conviction.
• 10:24
  Speaker 1: Proceedings, Donald says that Sorels told police she saw Marty
• 10:28
  Speaker 1: and his co defendant David Johnson kill Michael Grace, and when.
• 10:32
  Speaker 3: They showed her a picture of Marty and out of David,
• 10:35
  Speaker 3: she said to each that that was them. So Marty
• 10:40
  Speaker 3: and David were charged.
• 10:42
  Speaker 1: Once in custody, Marty tried to tell the police that
• 10:44
  Speaker 1: he'd been home with his mom and daughter the night
• 10:47
  Speaker 1: of the shooting, that they were making a mistake, just
• 10:50
  Speaker 1: like last time, except this time friends and relatives of
• 10:54
  Speaker 1: Michael Grace were pointing the finger.
• 10:57
  Speaker 2: Now I have a whole neighborhood that's saying that they
• 11:00
  Speaker 2: think they thinking that I killed their cousin, brother, our friend, whoever.
• 11:04
  Speaker 2: And so that's what made that one different.
• 11:07
  Speaker 1: And this time detectives had Robert Taylor, a jail house informant.
• 11:12
  Speaker 3: Robert would come forward to the lead investigator on Marty's
• 11:16
  Speaker 3: case and say that he heard Marty and David talking
• 11:21
  Speaker 3: about the case through the air ducks in the Hamilton
• 11:26
  Speaker 3: County Justice Center.
• 11:28
  Speaker 1: That's the jail Marty and his co defendant David Johnson
• 11:30
  Speaker 1: were being held in. Robert Taylor claimed that through the
• 11:34
  Speaker 1: air ducks he'd heard Marty admit that he'd killed Grace,
• 11:38
  Speaker 1: that they were members of rival gangs and they were
• 11:41
  Speaker 1: fighting over stolen guns before the shooting. Marty says Taylor
• 11:45
  Speaker 1: was known in the jail as a snake.
• 11:48
  Speaker 2: They caught him white chocolate. Watch him. He is snitched.
• 11:53
  Speaker 2: He jumping on people's cases. He doing this and doing that.
• 11:55
  Speaker 1: So Marty stayed away from him, but it didn't matter.
• 11:59
  Speaker 2: I end up getting the a visit from my attorney
• 12:02
  Speaker 2: and he basically was telling me who they was using
• 12:05
  Speaker 2: against me on my case. And he showed me a
• 12:08
  Speaker 2: picture of him. Said do you know this guy? I said,
• 12:12
  Speaker 2: that's the jail house snitch that'd be running around here.
• 12:14
  Speaker 2: He's like, well, yeah, they're about to use They want
• 12:16
  Speaker 2: to use him as a witness on your case.
• 12:18
  Speaker 1: Police had an informant making serious accusations, but over the
• 12:23
  Speaker 1: following months, the rest of their case against Marty seemed
• 12:26
  Speaker 1: to fall apart. At a pre trial hearing, Savannah Sorel's
• 12:30
  Speaker 1: a key witness, changed her statement.
• 12:33
  Speaker 3: Savannah came into court and said again, Now, I said
• 12:37
  Speaker 3: it with Marty, but I didn't actually see Marty. She said,
• 12:40
  Speaker 3: I saw David.
• 12:41
  Speaker 1: Remember David was Marty's co defendant.
• 12:44
  Speaker 3: And I knew that David and Marty hung around together
• 12:47
  Speaker 3: a lot, so I assumed that it was Marty with him,
• 12:50
  Speaker 3: but I didn't actually see who was with David. I
• 12:52
  Speaker 3: could just see that there was somebody with David, and
• 12:55
  Speaker 3: she said that, you know, at under oath.
• 12:58
  Speaker 1: In a pre trial court, Procene and Carlos Mayo, the
• 13:01
  Speaker 1: person who was with Michael Grace during the shootout, told
• 13:05
  Speaker 1: the authorities that Marty hadn't been there the night of
• 13:08
  Speaker 1: December twenty eighth.
• 13:09
  Speaker 2: When he testified say he was firing and my code defended,
• 13:12
  Speaker 2: And they asked him like, okay, did you know do
• 13:15
  Speaker 2: you know more? To he said, well, I know him
• 13:17
  Speaker 2: enough to identify him if I if I seen if
• 13:20
  Speaker 2: he was there, I would have seen him. I would
• 13:22
  Speaker 2: have knew he was there. But no, I ain knew
• 13:24
  Speaker 2: of him until they put him on the news.
• 13:26
  Speaker 1: This sounds so crazy to me. I feel like there's
• 13:27
  Speaker 1: more people saying he wasn't there than he was there.
• 13:31
  Speaker 3: There was nobody who said he was there, besides.
• 13:33
  Speaker 1: Robert Taylor, the snitch, right, the snitch who turns out
• 13:38
  Speaker 1: was getting a pretty sweet deal for testifying.
• 13:41
  Speaker 3: He offered testimony to support the police because he was
• 13:45
  Speaker 3: facing a murder charge. It was the first major offense
• 13:47
  Speaker 3: he had been charged with. It's pretty clear he was
• 13:50
  Speaker 3: scared and didn't want to convicted, And in fact, he
• 13:53
  Speaker 3: got a monster plead deal from the prosecution in that case,
• 13:57
  Speaker 3: was allowed to plead the involuntary manslaughter only did it
• 14:00
  Speaker 3: few years in prison to testify to testify against Marty
• 14:03
  Speaker 3: and others. But Marty was sort of the Marty and
• 14:06
  Speaker 3: David was sort of the big case.
• 14:09
  Speaker 2: That got him that deal.
• 14:10
  Speaker 1: But with the pre trial testimony of Sorrels and Mayo
• 14:13
  Speaker 1: in his favor, Marty thought surely the charges against him
• 14:17
  Speaker 1: would be dismissed. But then the judge set a trial date.
• 14:22
  Speaker 2: I'm like a trial date, Like, I mean, I really
• 14:24
  Speaker 2: about to say the trial and is I got a
• 14:26
  Speaker 2: whole witness getting up here saying and I commit this crime.
• 14:29
  Speaker 1: Even though it might seem really weak to take to trial.
• 14:32
  Speaker 3: There was a lot of pressure to get this case
• 14:35
  Speaker 3: solved and resolved because at the time, there was an increase,
• 14:40
  Speaker 3: or at least a perceived increase in gun violence in Cincinnati.
• 14:44
  Speaker 3: There was a lot of impetus to put somebody away
• 14:47
  Speaker 3: for this crime.
• 14:50
  Speaker 1: Amid this climate with fear of violence and constant stories
• 14:54
  Speaker 1: of gangs in the nightly news. Marty went to trial
• 14:58
  Speaker 1: in January of two thousand and nine, prosecuted by Gus
• 15:01
  Speaker 1: Leone and Anne Flanagan. So tell me about trial. So
• 15:12
  Speaker 1: in my notes, I actually don't have any kind of defense.
• 15:16
  Speaker 1: Really did that actually happen? Was there no defense?
• 15:18
  Speaker 3: Well, so it's it's I'm trying to remember, did help
• 15:22
  Speaker 3: put your family on this an ALTI?
• 15:24
  Speaker 1: Marty's defense attorney in two thousand and nine was Hal Arenstein.
• 15:28
  Speaker 2: No, okay, yeah, we talked. I talked to Hall about that,
• 15:32
  Speaker 2: and he was like, you know, putting the putting your
• 15:35
  Speaker 2: family up there, They go, okay, you put your mom's
• 15:37
  Speaker 2: up there. They go your mom? Alaugh, oh you you
• 15:40
  Speaker 2: put your this and that? Like but when I look
• 15:43
  Speaker 2: back now, I'm like, I should have put my mom
• 15:44
  Speaker 2: up there.
• 15:45
  Speaker 1: So I went up there for you.
• 15:46
  Speaker 2: No one, no, no one.
• 15:47
  Speaker 3: There was no defense presented, and that was a pretty
• 15:49
  Speaker 3: common defense perception that juris don't believe alibis from family members.
• 15:55
  Speaker 1: Sure, but how was he defense without a defense?
• 15:58
  Speaker 3: So I think the idea, and let me be very
• 16:01
  Speaker 3: clear about this, Hall is a really good attorney. I
• 16:05
  Speaker 3: take no issues with anything that Hal did in this case.
• 16:09
  Speaker 2: I think the idea that was that this case was
• 16:11
  Speaker 2: just so weak.
• 16:12
  Speaker 3: From the prosecution's point of view that no jury would convict.
• 16:16
  Speaker 3: And I think that if this case were tried today
• 16:18
  Speaker 3: on that evidence, juries were skeptical enough that they wouldn't.
• 16:22
  Speaker 3: But in two thousand and eight, before there was a
• 16:25
  Speaker 3: little bit of the more sophistication that the jury seemed
• 16:29
  Speaker 3: to have now, and when people in that time were
• 16:33
  Speaker 3: afraid of the perception of increasing gun violence, Marty was convicted.
• 16:41
  Speaker 1: Sentenced to thirty one years to life for murder, felonious assault,
• 16:46
  Speaker 1: and tampering with evidence.
• 16:49
  Speaker 2: When they say it guilty, I'll say, I'll say how like,
• 16:53
  Speaker 2: I mean like what, I'm like, I look back, my
• 16:56
  Speaker 2: mom said we'll pill it, and I'm like like wow,
• 17:00
  Speaker 2: So like it it ain't kick in right away because
• 17:05
  Speaker 2: I still ain't know the law. I still I never
• 17:07
  Speaker 2: been to prison before, so I ain't know how nothing
• 17:11
  Speaker 2: was I ain't know how the process is with these
• 17:13
  Speaker 2: appeals and stuff like that. I ain't know. I just
• 17:16
  Speaker 2: ain't know nothing. I was lost in the whole situation.
• 17:19
  Speaker 1: Shortly after his conviction, while he was still trying to
• 17:22
  Speaker 1: process everything, Marty says, his grandma sent him a passage
• 17:26
  Speaker 1: from the Bible.
• 17:28
  Speaker 2: Song twenty three The Lord is My Shepherd. Shend me
• 17:31
  Speaker 2: that scripture and she said, baby, she told me, like,
• 17:33
  Speaker 2: you ain't gonna be able to do that without God.
• 17:35
  Speaker 1: So Marty says, he continued reading the Bible and started
• 17:38
  Speaker 1: going to church.
• 17:39
  Speaker 2: I need some hope, I needed some faith, I needed
• 17:41
  Speaker 2: some beast.
• 17:42
  Speaker 1: And he started to reckon with the life he led
• 17:44
  Speaker 1: before prison.
• 17:45
  Speaker 2: I'm locked up for something I ain't do. But whow
• 17:50
  Speaker 2: I'm locked up? So I had to start looking at
• 17:52
  Speaker 2: looking at that something led up to this, And that's
• 17:56
  Speaker 2: when it got to show in my lifestyle. The lifestyle
• 18:00
  Speaker 2: while I was living lay it up to this. Because
• 18:02
  Speaker 2: if I wan't in the streets, if I wasn't running
• 18:03
  Speaker 2: around saying that don't happen to them, that happened to
• 18:06
  Speaker 2: people like that. But I'm if I wasn't running the streets,
• 18:10
  Speaker 2: my name would it never came up in that at all.
• 18:13
  Speaker 1: So Marty says he decided he was going to change.
• 18:21
  Speaker 2: So I'm like, let me, let me get me together,
• 18:23
  Speaker 2: let me let me learn how to be a father.
• 18:27
  Speaker 2: So I started taking classes on dad and I and
• 18:30
  Speaker 2: you know, fatherhood classes don't how to be a father
• 18:33
  Speaker 2: or you know, like even even how to be a
• 18:36
  Speaker 2: husband or how to be a brother, how to be
• 18:38
  Speaker 2: how to beat those and what do it really mean?
• 18:40
  Speaker 2: Because I was taught wrong. I stay focused, and you know,
• 18:46
  Speaker 2: I became facilitators of programs in there, you know self,
• 18:53
  Speaker 2: Like we had a program called real Man where you
• 18:56
  Speaker 2: got guys talking to the youth that's coming and we
• 18:58
  Speaker 2: got guys coming there like eighteen years old. So like
• 19:00
  Speaker 2: I'm doing things like that through the chat pacer on
• 19:02
  Speaker 2: Real Man programs. Family First, I was consistent and I
• 19:07
  Speaker 2: worked out, exercised the lots when in the law library,
• 19:10
  Speaker 2: just read a lot of stuff like that, and it
• 19:13
  Speaker 2: changed me.
• 19:16
  Speaker 1: Marty put in a ton of work on himself and
• 19:19
  Speaker 1: his case for years. He appealed his case on issues
• 19:23
  Speaker 1: like suggestive witness identification because police had shown Sorels only
• 19:28
  Speaker 1: one photograph instead of a lineup to confirm Marty as
• 19:32
  Speaker 1: the shooter, plus another witness had come forward claiming that
• 19:36
  Speaker 1: she'd seen the shooting and Marty hadn't been involved. Also,
• 19:40
  Speaker 1: Marty wanted DNA testing on the shell casings found at
• 19:43
  Speaker 1: the scene, but all his appeals were denied. So Marty
• 19:48
  Speaker 1: wrote the Ohio Innocence Project. And he waited.
• 19:55
  Speaker 2: So one day I'm sitting up in a bed. It
• 19:58
  Speaker 2: was twenty twelve, and so he said, levis, do you
• 20:01
  Speaker 2: have a visit. So I'm like, I'm like, Damn, I
• 20:05
  Speaker 2: wonder who this is. I ain't got no visit set up, Like,
• 20:08
  Speaker 2: I don't know if somebody was coming to visit me.
• 20:10
  Speaker 2: So I'm like, so I'm thinking, I'm like, oh, that
• 20:12
  Speaker 2: must be somebody important. So I went ahead and hurry
• 20:14
  Speaker 2: up put my stuff on.
• 20:15
  Speaker 1: When Marty got to the visiting room, it was Donald.
• 20:19
  Speaker 2: So I come in there. He got he gotta he
• 20:21
  Speaker 2: got a missus Donald. He got a look on his face.
• 20:24
  Speaker 2: Mister Donald got a serious look on his face. He
• 20:26
  Speaker 2: you know I'm coming in here, Like hold on, I
• 20:28
  Speaker 2: know he want he won't playing no games. So I'm like,
• 20:31
  Speaker 2: he coming there, you know, he talking to me. I'll
• 20:32
  Speaker 2: tell him he's going though. He say he said, give
• 20:35
  Speaker 2: me a few days and I'm gonna talk to somebody.
• 20:37
  Speaker 2: I ain't telling you it's a goal yet, but I'm
• 20:39
  Speaker 2: gonna talk to somebody and just call me Monday and
• 20:41
  Speaker 2: see what's up. So I went back praying, but I
• 20:43
  Speaker 2: called my mama, like and it's a project. Can't see me.
• 20:46
  Speaker 2: I don't think the guy liked me.
• 20:48
  Speaker 1: But meanwhile, Donald couldn't wait to get started.
• 20:51
  Speaker 3: I came back to the office and I started telling
• 20:54
  Speaker 3: everybody either they got to senizent guy Marty Levingston, and
• 20:56
  Speaker 3: we gotta get him out and here.
• 20:57
  Speaker 1: So Donald and the Ohio Innocence Project to work on
• 21:00
  Speaker 1: Marty's case for years. They tried to find new evidence
• 21:05
  Speaker 1: to get Marty back in court. Then their break came
• 21:09
  Speaker 1: in twenty twenty one. Because of developments in what's known
• 21:12
  Speaker 1: as touch DNA testing. Donald and his team applied for
• 21:16
  Speaker 1: post conviction testing on all the evidence that hadn't been
• 21:20
  Speaker 1: analyzed for prince and DNA during the original investigation. They
• 21:25
  Speaker 1: were appealing to the same judge that had denied Marty's
• 21:29
  Speaker 1: previous appeal, but this time the judge wanted to have
• 21:33
  Speaker 1: a hearing to find out what evidence existed that could
• 21:37
  Speaker 1: prove Marty's innocence, and she said.
• 21:39
  Speaker 3: Maybe I'll grant it, but I want to have the hearing,
• 21:41
  Speaker 3: and I want to make this state tell us what
• 21:44
  Speaker 3: evidence exists that could be tested.
• 21:46
  Speaker 1: But that never happened. Before any DNA testing could materialize,
• 21:52
  Speaker 1: prosecutors went back to Marty with a new deal, and.
• 21:55
  Speaker 3: At that point the prosecution was willing to offer what's
• 21:58
  Speaker 3: called this dark please deal.
• 22:00
  Speaker 4: So the key to understanding what a dark plea is
• 22:04
  Speaker 4: is when it's offered.
• 22:06
  Speaker 1: Okay, this is Justice Michael Donnelly.
• 22:09
  Speaker 4: I presently serve as an Associate Justice on the Ohio
• 22:14
  Speaker 4: Supreme Court, where I've served since two thousand and nineteen.
• 22:19
  Speaker 1: Justice Donnelly is an expert and a vocal critic of
• 22:22
  Speaker 1: what he calls dark pleas, which are deals prosecutors make
• 22:27
  Speaker 1: behind closed doors with people who claim they've been wrongfully convicted,
• 22:31
  Speaker 1: who are looking for a new trial, like Marty.
• 22:34
  Speaker 4: When you're on the front lines of the system and
• 22:37
  Speaker 4: you see the injustice that occurs as a result of
• 22:40
  Speaker 4: a non transparent system and people being coerced into plea bargains,
• 22:45
  Speaker 4: that should not I think it's an obligation on all
• 22:49
  Speaker 4: judges to speak.
• 22:50
  Speaker 1: Up but he didn't always have dreams of advocating for
• 22:53
  Speaker 1: justice and practicing law. He actually wanted to be a musician.
• 23:02
  Speaker 4: So the music career didn't work out the way I expected.
• 23:06
  Speaker 4: But I've been able to incorporate my love of music
• 23:09
  Speaker 4: into my life.
• 23:10
  Speaker 1: In his mid forties, he started a band.
• 23:13
  Speaker 4: We're called Faith and Whiskey, and our motto is, if
• 23:16
  Speaker 4: you don't have one, you better have the other. We
• 23:18
  Speaker 4: do a lot of benefits, including the Legal Aid benefit
• 23:22
  Speaker 4: here in Cleveland, which is the legal event of the summer.
• 23:26
  Speaker 4: I call it the Jam for Justice.
• 23:28
  Speaker 1: So you find being a rocker at night Supreme Court
• 23:31
  Speaker 1: judge by day they work well.
• 23:33
  Speaker 4: Say yeah, well, my kids think it's cool.
• 23:36
  Speaker 1: Justice Donnelly says he used law school as a delay
• 23:39
  Speaker 1: tactic to get his music career off the ground. But
• 23:42
  Speaker 1: next thing he knew, he was an assistant county prosecutor
• 23:46
  Speaker 1: and then.
• 23:47
  Speaker 4: Went into civil liedication, practiced a total of twelve years
• 23:50
  Speaker 4: before taking the bench as a trial court judge.
• 23:54
  Speaker 1: Justice Donnelly was a trial court judge for fourteen years.
• 23:58
  Speaker 4: So I'm fully aware through my observations during those fourteen
• 24:05
  Speaker 4: years of the coercive nature of plea bargaining as it exists.
• 24:14
  Speaker 1: In the modern day please or deals where the defense, prosecution,
• 24:18
  Speaker 1: and judge come to an agreement on a conviction and
• 24:21
  Speaker 1: sentencing instead of at trial.
• 24:24
  Speaker 4: And very early on in my career, and what I
• 24:27
  Speaker 4: describe as one of the biggest epiphanies of my career,
• 24:30
  Speaker 4: I began the question the ethics of what takes place
• 24:34
  Speaker 4: in that back room.
• 24:35
  Speaker 1: He says, judges have outsized power when it comes to
• 24:38
  Speaker 1: backroom negotiations.
• 24:40
  Speaker 4: There's no objective criteria that judges use to accept or
• 24:45
  Speaker 4: reject a plea bargain. Like sometimes you might be in
• 24:48
  Speaker 4: a judge's back room chambers and that you've come to
• 24:52
  Speaker 4: an agreed sentence with the prosecution and the defense, and
• 24:56
  Speaker 4: the judge might say, I don't agree with that. I
• 25:00
  Speaker 4: think this person has to do five or ten or whatever.
• 25:03
  Speaker 4: And this gets set in the back room and the
• 25:07
  Speaker 4: questions never raise. You know what guides the judge to
• 25:10
  Speaker 4: do that.
• 25:11
  Speaker 1: Now, when it comes to people like Marty, people have
• 25:14
  Speaker 1: been convicted but claim they're innocent, Justice Donnelly says, the
• 25:17
  Speaker 1: deck is even further stacked against them.
• 25:21
  Speaker 4: It is very difficult to have the court system look
• 25:26
  Speaker 4: at your case for a second time and reconsider.
• 25:30
  Speaker 1: It, and judges can take their time deciding on a
• 25:32
  Speaker 1: post conviction case.
• 25:34
  Speaker 4: And the judges sometimes let those motions languish for years.
• 25:39
  Speaker 4: For years, there's no speedy trial or the equivalent of
• 25:43
  Speaker 4: speedy trial rights for innocence claimants.
• 25:45
  Speaker 1: In Marty's case, it took several rounds before a judge
• 25:48
  Speaker 1: even agreed to allow DNA testing, which could have opened
• 25:52
  Speaker 1: the doors for a brand new trial. But before Marty
• 25:59
  Speaker 1: got a second chance at proving his innocence, the prosecution
• 26:03
  Speaker 1: approached him with a new deal, the dark Plea. Here's
• 26:23
  Speaker 1: Marty's attorney, Donald Caster again.
• 26:26
  Speaker 3: So what they said is, look, we will support emotion
• 26:28
  Speaker 3: for a new trial, and the basis for the motion
• 26:31
  Speaker 3: of the new trial is just going to be we,
• 26:33
  Speaker 3: the prosecutors, believe that Marty was over sentenced. In exchange,
• 26:37
  Speaker 3: we will expect Marty to plead guilty to involuntary manslaughter.
• 26:41
  Speaker 3: He will be immediately eligible for release and the case
• 26:44
  Speaker 3: will be behind him. And it's a tough thing. I
• 26:47
  Speaker 3: don't you.
• 26:48
  Speaker 1: Know what was the option if you didn't take.
• 26:50
  Speaker 3: That, to keep fighting over the DNA evidence, And even
• 26:53
  Speaker 3: if everything fell perfectly into place, it would be another
• 26:57
  Speaker 3: at least couple of years of litigation before we got
• 27:00
  Speaker 3: a new trial order.
• 27:01
  Speaker 2: At least.
• 27:01
  Speaker 1: Donald says Marty had a tough choice to make.
• 27:05
  Speaker 3: Marty was was getting anxious his parents were getting older. Yes,
• 27:09
  Speaker 3: he wanted to see them again. His parents, his kids
• 27:11
  Speaker 3: are growing up without him.
• 27:13
  Speaker 1: Justice Donnelly says, this is the crux of the dark plea.
• 27:17
  Speaker 4: Do you want to take the risk of what's behind
• 27:20
  Speaker 4: door number three? You want to take the risk, you
• 27:23
  Speaker 4: can do that, or here's the keys to your jail cell,
• 27:27
  Speaker 4: which one you're gonna take. That's that's exactly what happened.
• 27:31
  Speaker 2: What's happening.
• 27:32
  Speaker 4: So I've never criticized anyone for taking the dark plea
• 27:36
  Speaker 4: because it's so unconscionable.
• 27:38
  Speaker 1: So even though Marty would have to forego the opportunity
• 27:41
  Speaker 1: to prove his innocence, he decided to take the plea.
• 27:45
  Speaker 2: You know what, I'm gonna go a hit and take it.
• 27:50
  Speaker 2: I know, I'm gonn probably be on parole and I'm
• 27:53
  Speaker 2: just go I'm just get out. I'm just go get out.
• 27:54
  Speaker 2: I'm just gonna get out and prove them wrong and
• 27:56
  Speaker 2: show them wrong. Like nah, I'm I'm no. I was
• 28:00
  Speaker 2: not who y'all who? I was not that, So you
• 28:04
  Speaker 2: took it, y'all took it.
• 28:06
  Speaker 1: On February sixteenth, twenty twenty three, Marty stood in front
• 28:10
  Speaker 1: of Judge Wendy Cross.
• 28:12
  Speaker 2: So you're nervous, I'm nervous, a heart beating. That's when.
• 28:21
  Speaker 2: That's when she said, it's a good day. The judge
• 28:24
  Speaker 2: said that. Judge Cross said it's a good day, and
• 28:30
  Speaker 2: they she said everything that she you know and not
• 28:34
  Speaker 2: she said you will be going home to your family.
• 28:36
  Speaker 2: Then I just looked up, like.
• 28:39
  Speaker 1: What did anyone like? Did you hear anything? Was there
• 28:42
  Speaker 1: a gas for a scream or fab Yeah?
• 28:44
  Speaker 2: They had to quiet down yesterday. Yes you heard, I
• 28:49
  Speaker 2: heard them. It was different than when they said guilty, guilty,
• 28:53
  Speaker 2: it was crying and screaming. This time it was joy.
• 28:57
  Speaker 3: Dark pleas are a really bittersweet moment for everyone. In fact,
• 29:04
  Speaker 3: when Marty went home finally, I think what Judge Cross
• 29:07
  Speaker 3: said exactly was it's always a good day when.
• 29:10
  Speaker 2: Justice was done was done.
• 29:12
  Speaker 3: And that was hard for me to hear because I
• 29:14
  Speaker 3: was sitting in the room, and while I was very
• 29:16
  Speaker 3: happy that Marty was going home, it didn't feel to
• 29:18
  Speaker 3: me like justice.
• 29:19
  Speaker 2: Was happening that day.
• 29:21
  Speaker 1: That bitter sweet feeling is one Justice Donnelly shares, which
• 29:25
  Speaker 1: is why he's made it his mission to stop the
• 29:28
  Speaker 1: practice of dark Please.
• 29:30
  Speaker 4: This is the way power works in the dark.
• 29:33
  Speaker 1: If it were up to him, the judge in Marty's
• 29:35
  Speaker 1: case wouldn't have allowed for a backroom deal with the prosecutors.
• 29:39
  Speaker 1: She would have held a hearing out in the open.
• 29:42
  Speaker 1: Let Marty's lawyers prove his case and make the prosecution
• 29:46
  Speaker 1: stand by theirs.
• 29:48
  Speaker 4: Because when a hearing takes place in an open court
• 29:50
  Speaker 4: where the press contend it can attend and observe, you
• 29:54
  Speaker 4: see the merits or the lack of merits rise or
• 29:58
  Speaker 4: fall to that standard that the innocent advocates are trying
• 30:03
  Speaker 4: to get. Hey, the theory of guilt that was told
• 30:05
  Speaker 4: to the original jury has been completely undermine and then
• 30:09
  Speaker 4: it becomes clear to the judge you have to put
• 30:11
  Speaker 4: the defendant or a new trial or not.
• 30:15
  Speaker 1: As far as in his own courtroom, Justice Donnelly decided
• 30:18
  Speaker 1: long ago to put all backroom conversations on the record.
• 30:24
  Speaker 4: That way, everybody's held accountable, the prosecutor of the defense,
• 30:27
  Speaker 4: lawyer and me, the judge.
• 30:29
  Speaker 1: Justice Donnelly actually coined the phrase dark plea because he says,
• 30:33
  Speaker 1: if you can name it, you can fix it.
• 30:35
  Speaker 4: If this term were to become commonplace in saying, and
• 30:39
  Speaker 4: you could say, judge, they want to offer me a
• 30:42
  Speaker 4: dark flea, and the judge could say, no, we're not
• 30:45
  Speaker 4: letting that happen.
• 30:47
  Speaker 1: Marty was released in February of last year into the
• 30:52
  Speaker 1: arms of his loved ones, and since getting out, Marty
• 31:00
  Speaker 1: he has wasted no time catching up on life.
• 31:03
  Speaker 2: Everything been great. You know when I first came home.
• 31:09
  Speaker 2: You know, I got married two months later to my wife,
• 31:12
  Speaker 2: Latoy Elevenston, and we got married April to eighth, and
• 31:26
  Speaker 2: since then it's just been it been, it been because
• 31:30
  Speaker 2: I'm learning now. So she she she we we kind
• 31:33
  Speaker 2: of bump. Here is a lot because I'm I'm still learning.
• 31:36
  Speaker 2: She been out here.
• 31:37
  Speaker 1: So what's one of the hardest things You're learning?
• 31:41
  Speaker 2: Patience? Like being patient with things, like being in line
• 31:43
  Speaker 2: for something, or even even like you know, just even
• 31:48
  Speaker 2: dealing with finances and stuff. It's just different little things
• 31:51
  Speaker 2: that I have to learn.
• 31:52
  Speaker 1: What's what's it like being back with your kids? I
• 31:54
  Speaker 1: mean some of them you really didn't even see them
• 31:56
  Speaker 1: grow up.
• 31:57
  Speaker 2: I'm starting to learn how important I am and my
• 32:00
  Speaker 2: responsibilities as a man in the house, you know, because
• 32:04
  Speaker 2: you gotta think I'm coming inside of the house with
• 32:06
  Speaker 2: some children that don't don't know me. You ain't grow
• 32:08
  Speaker 2: up with me. So like they gotta learn my space.
• 32:12
  Speaker 2: I gotta learn. I gotta learn what to say. Not
• 32:16
  Speaker 2: they like they learning me too.
• 32:18
  Speaker 1: Marty works as a stationary steam engineer and has a
• 32:22
  Speaker 1: clothing line with his cousin called Extravagant Culture Department, and
• 32:26
  Speaker 1: he's been attending speaking engagements with Justice Donnelly and Donald
• 32:30
  Speaker 1: at the OIP the Ohio Innocence Project to advocate against
• 32:34
  Speaker 1: wrongful convictions and dark Please Marty not only considers them colleagues,
• 32:39
  Speaker 1: but family.
• 32:41
  Speaker 2: Or if he's been with me all the way through,
• 32:44
  Speaker 2: you know, like just even like if I'm going through something,
• 32:48
  Speaker 2: I could call them for anything, Like I mean, I
• 32:50
  Speaker 2: call him all during the day, Like I call him
• 32:52
  Speaker 2: mister Donald, take some callum. I call anybody from down
• 32:56
  Speaker 2: there and they go pick up to me and it's
• 33:00
  Speaker 2: not fake. If I need to see him, I still
• 33:03
  Speaker 2: go down to the office all the time down on
• 33:05
  Speaker 2: the college. I think I'll come in there more to anybody.
• 33:09
  Speaker 3: You may be there more than I am, so I always.
• 33:12
  Speaker 2: Go down there and check on everybody. It's my family.
• 33:16
  Speaker 1: So thank you for listening to Wrongful Conviction with Maggie Freeling.
• 33:28
  Speaker 1: Please support your local innocence organization. You can go to
• 33:31
  Speaker 1: the links in the episode description to see how you
• 33:33
  Speaker 1: can help and to read more about Justice Donnelly's work
• 33:36
  Speaker 1: on Dark Please. This episode was written by me Maggie Freeling,
• 33:41
  Speaker 1: with story editing and mixing by senior producer Rebecca Ibada.
• 33:45
  Speaker 1: Our producer is Kathleen Fink. Our researcher Shelby Sorels, with
• 33:49
  Speaker 1: additional mixing by Josh Allen and additional production help by
• 33:52
  Speaker 1: Jeff Cliburn and Connor Hall. Executive producers are Jason Flahm,
• 33:56
  Speaker 1: Jeff Kempler, and Kevin Wurtis. The music is by three
• 34:00
  Speaker 1: time OSCAR nominated composer Jay Ralph. Make sure to follow
• 34:03
  Speaker 1: us on all social media platforms at Lava for Good
• 34:06
  Speaker 1: and at Wrongful Conviction. You can also follow me on
• 34:09
  Speaker 1: all platforms at Maggie Freeling. Wrongful Conviction with Maggie Freeling
• 34:13
  Speaker 1: is a production of Lava for Good Podcasts in association
• 34:16
  Speaker 1: with Signal Company Number one