Latest / Wrongful Conviction / #247 Jason Flom with Ken Wyniemko

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#247 Jason Flom with Ken Wyniemko · Wrongful Conviction

0:03
Speaker 1: On April thirtieth, nineteen ninety four, a man in a
0:06
Speaker 1: nylon stocking mass broke into a twenty eight year old
0:08
Speaker 1: woman's home in Michigan while she slept. He blindfolded and
0:12
Speaker 1: raped her over the course of several hours before leaving.
0:15
Speaker 1: Since the victim was blindfold and it had only caught
0:17
Speaker 1: a few glimpses of her attacker, the composite sketch she
0:20
Speaker 1: created with investigators was deemed only sixty percent accurate when
0:24
Speaker 1: the sketch hit the media. A bowling alley manager named
0:27
Speaker 1: Ken win Nemko was named by a disgruntled X as
0:30
Speaker 1: a potential culprit. Ken had recently ejected an off duty
0:34
Speaker 1: cop from his bowling alley for being drunken disorderly, which
0:37
Speaker 1: was not taken kindly by the officer's friends on the force.
0:41
Speaker 1: With this grudge looming, and despite Ken not matching the
0:44
Speaker 1: physical description, detectives acted on this dubious tip and manipulated
0:48
Speaker 1: a lineup to produce his identification. DNA testing was available,
0:53
Speaker 1: but not done yet. Even the rology testing of the
0:56
Speaker 1: biological evidence from the attack was again not a match
0:59
Speaker 1: for Ken. However, while Can awaited trial in jail, the
1:03
Speaker 1: assistant prosecutor offered his cell made a deal to join
1:06
Speaker 1: the lead detective in giving false testimony that Ken had
1:09
Speaker 1: confessed to the rape. His hastily appointed defense attorney did
1:13
Speaker 1: not have time to prepare, and between the false testimony,
1:16
Speaker 1: the shaky composite sketch, and the bogus lineup, the jury
1:19
Speaker 1: ignored the exculpatory roology and sent Ken away to prison
1:23
Speaker 1: for forty to sixty years. With the help of the
1:26
Speaker 1: Cooley Innocence Project in Michigan, Ken was finally able to
1:30
Speaker 1: obtain the biological evidence, including an unopened rape kit, to
1:33
Speaker 1: find out who had really committed this horrific crime nearly
1:37
Speaker 1: a decade prior. This is wrongful conviction. Welcome back to
1:54
Speaker 1: wrongful conviction. Today's story is one that I've heard whispered
1:58
Speaker 1: about ever since it happened, in hush tones in the
2:02
Speaker 1: innocence community, where people talk about how this was one
2:07
Speaker 1: of the worst examples of our criminal legal system. And
2:12
Speaker 1: also people have talked to me for a long time
2:14
Speaker 1: about this man and the incredible work that he's done
2:17
Speaker 1: evil from inside the walls of prison. You got to
2:20
Speaker 1: hear this story to believe it. And I'm talking about
2:24
Speaker 1: the man who's on the air with us right now,
2:28
Speaker 1: Ken way Namko, thank you for being here. Welcome to
2:31
Speaker 1: Wronful Conviction.
2:32
Speaker 2: Jason, it is my pleasure. Thank you for inviting.
2:35
Speaker 1: Us, and with him is an awesome character in her
2:37
Speaker 1: own right. Gail Palmakoff, attorney with the Kooli Innocence Project
2:41
Speaker 1: based out of Michigan, where this horrible crime happened. Gail,
2:44
Speaker 1: first of all, thank you for all the incredible work
2:46
Speaker 1: you're doing, and welcome to the show. I'm so glad
2:48
Speaker 1: to have you here.
2:49
Speaker 3: Oh, thank you for having me.
2:51
Speaker 1: So this case goes all the way back to the
2:56
Speaker 1: early mid nineties. But Ken, what was your life like
2:59
Speaker 1: before you got wrapped up in this well.
3:03
Speaker 2: I started with GM right after high school. I was
3:05
Speaker 2: working with my two brothers and my dad were all
3:07
Speaker 2: skilled trade workers. I was married from nineteen seventy five
3:10
Speaker 2: to nineteen eighty and my father in law owned a
3:14
Speaker 2: nightclub and a bowling center in Detroit. It's called Falcon Lanes.
3:18
Speaker 2: So I was working for a GM during the day
3:20
Speaker 2: and I was working at the bowling yelly in nightclub
3:23
Speaker 2: at night. Then I went out on my own and
3:26
Speaker 2: I was just managing bowling Centers, and I was managing
3:29
Speaker 2: at center at the time at Kingswood Lane's in Macomb County, Michigan,
3:33
Speaker 2: and that's how this whole incident started.
3:36
Speaker 1: So it sounds like you've got a good thing going there,
3:39
Speaker 1: managing this bowling alley, a good peaceful life. But here's
3:42
Speaker 1: where the seed of this story is planted with you
3:45
Speaker 1: and the police, right, so please take us through this.
3:49
Speaker 2: It was on a Friday night. We had a family
3:50
Speaker 2: bowling night. Okay, the parents would bringing their kids in.
3:53
Speaker 2: We get free pizza everyone, and the place was jammed.
3:57
Speaker 2: So I was sitting in my office. One of my waitresses, Kelly,
3:59
Speaker 2: came into my office and she says, Kenny, there's a
4:02
Speaker 2: guy bowling on Lane twelve. She thought he was drunk,
4:05
Speaker 2: and she said that she noticed that the guy had
4:07
Speaker 2: two bowling bags. One he had two bowling balls in
4:11
Speaker 2: and the other bag he had cans of Miller Lite.
4:14
Speaker 2: So I came out of my office and there was
4:16
Speaker 2: a father, mother, and two kids on Leane eleven and
4:18
Speaker 2: this guy was getting an argument with him. So I
4:21
Speaker 2: walked down there and I said, excuse me, do these
4:24
Speaker 2: two bags belong to you? He says, who the hell
4:26
Speaker 2: are you. I said, my name is Kenny. I'm the
4:29
Speaker 2: manager's place. I said what's your name? And he said
4:32
Speaker 2: my name is John. So I said, well, John, I said,
4:34
Speaker 2: do you mind if I take a look into the
4:36
Speaker 2: second bag over here? He said why, what's the problem.
4:38
Speaker 2: I said, that's my right, I'm doing my job. Opened
4:41
Speaker 2: up the second bag. He hit eleven cans of Miller
4:44
Speaker 2: Lite in that bag. So I said, John, do yourself
4:47
Speaker 2: a favor. I said, take your bulling shoes back to
4:49
Speaker 2: the counter, get your refunder. You're all done bullings for tonight.
4:53
Speaker 2: You brought this beer into my establishment, and that's illegal.
4:55
Speaker 2: He said, I bought that beer here. I said, John,
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Speaker 2: I know you're lying to me because we don't sell
5:00
Speaker 2: canned beer. All the beer that we sell are in bottles.
5:02
Speaker 2: And I grabbed the bag with the beer in it.
5:05
Speaker 2: He said, where you go? And that's you know, that's mine.
5:07
Speaker 2: I said, well, you come back and talk to me tomorrow. John.
5:09
Speaker 2: The place is packed. I don't want to argue with you.
5:11
Speaker 2: So I got the bag, took any office with me,
5:13
Speaker 2: put it on our floor. About ten minutes later, this
5:15
Speaker 2: guy comes in the office. He said, what do you
5:17
Speaker 2: say your name was? I said, my name is ken One.
5:20
Speaker 2: He said, well, can I just want you to know
5:22
Speaker 2: that I'm not leaving here until I get my beer bag.
5:25
Speaker 2: And his voice started getting louder and louder. I said, look, John,
5:27
Speaker 2: I told you I'm not going to argue with you tonight.
5:30
Speaker 2: One way or another. You're leaving this building. If you
5:32
Speaker 2: don't want to leave on your own, I'll throw you out.
5:34
Speaker 2: And he said you can't throw me out of here,
5:36
Speaker 2: and he reached in his pocket and he pulled out
5:37
Speaker 2: a putting down to police bands. And I said, you
5:40
Speaker 2: should know better that you cannot bring alcohol into establishment
5:43
Speaker 2: that has a LOOKU license. He said, I'm not leaving
5:46
Speaker 2: until I get that beer. So I got up, got
5:48
Speaker 2: him in a headlocked and he's still holding on to
5:50
Speaker 2: this bag with his bowling balls in it, and I
5:52
Speaker 2: started dragging him towards the front door, two double glass
5:54
Speaker 2: doors and a vestibule leading out in the parking lot.
5:57
Speaker 2: And as I'm dragging him up, he takes the bag
5:59
Speaker 2: with a bullying balls and he shatters the glass doors,
6:02
Speaker 2: dragged him outside, threw him out of parking lot. I
6:04
Speaker 2: told him I'll see you later. So on the way back,
6:07
Speaker 2: I told one of my porters to get a broom
6:09
Speaker 2: and sleep up the glass. I go back in the office.
6:12
Speaker 2: About twenty minutes after that, carry the counterman comes in.
6:15
Speaker 2: He says, Kenny, there's two uniform cops out here whant
6:17
Speaker 2: to talk to you. So they come in and asked me,
6:19
Speaker 2: I heard you had a problem over here about a
6:21
Speaker 2: half hour ago. So I told him the same thing
6:23
Speaker 2: I just told you. I tried to be as nice
6:25
Speaker 2: as I could to him, but he didn't want to listen,
6:28
Speaker 2: and I repeated to them the same thing I told John.
6:30
Speaker 2: If he was a cop, you know better than to
6:32
Speaker 2: bring alcohol and to establishment that has a liquor license.
6:35
Speaker 2: His partner says, is your liquor license up to date?
6:37
Speaker 2: I said, yes, it is. I said it's posted on
6:39
Speaker 2: the wall behind our bar, where it's supposed to be
6:41
Speaker 2: by law. And he said, well, do you matter if
6:43
Speaker 2: I take a look at it. I said no, as
6:45
Speaker 2: a matter of fact, I'll take a walk with you.
6:47
Speaker 2: So we walked inside the bar. I pulled a license
6:49
Speaker 2: off the wall and our shoulder to him. In meantime,
6:52
Speaker 2: his partner started walking around the whole bar, up and
6:55
Speaker 2: down the lanes, looking around, and he finally came back,
6:57
Speaker 2: says everything okay, officer, And he said, well, Kenny, to
7:00
Speaker 2: be honest with you, and we'll come back to check
7:02
Speaker 2: on your five or six months down the road, make
7:04
Speaker 2: sure you're okay. Is that some kind of a threat
7:07
Speaker 2: his partnership. We don't make threats. We keep promises. And
7:10
Speaker 2: he walked out the door. So that's how this whole
7:13
Speaker 2: thing began. I believe.
7:15
Speaker 1: Wow, that's such a sinister scenario. Just I mean, I
7:19
Speaker 1: don't think anybody who wanted to be in your shoes
7:22
Speaker 1: at that point. And Gail, I want to turn to
7:24
Speaker 1: you now. Can you take us back to the crime
7:26
Speaker 1: itself and how they managed to get anyone in their
7:29
Speaker 1: right mind to believe that Ken was involved.
7:32
Speaker 3: The basic facts are is that on April thirtieth of
7:35
Speaker 3: nineteen ninety four, the woman the complainant, had been at
7:39
Speaker 3: a party earlier in the day. She came home, She
7:41
Speaker 3: went to bed at about two am. Later in the morning,
7:44
Speaker 3: closer to five, she wakes up and there's a masked
7:48
Speaker 3: man in her room. He had a nylon over his head.
7:52
Speaker 3: He went and got underwear out of her drawer, put
7:54
Speaker 3: panties over her head, and then over the course of
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Speaker 3: the next couple of hours engaged in multiple full acts
8:00
Speaker 3: of sexual penetration. She never really saw the perpetrator. She
8:06
Speaker 3: said that when he took his mask off, she couldn't
8:09
Speaker 3: see him, and that when he lifted the mask at all,
8:12
Speaker 3: she only got glimpses of him. He left, he had
8:16
Speaker 3: secured her hands to the bed. She was able to
8:18
Speaker 3: get herself extricated. She went to the neighbors sought help.
8:22
Speaker 3: She was taken to the hospital. A rape kip was performed.
8:25
Speaker 3: The police got involved in investigation, and on the day
8:29
Speaker 3: that this occurred, they took her statements, and she told
8:32
Speaker 3: the officers that she really did not get a good
8:36
Speaker 3: look at this perpetrator. He was masked, she was masked.
8:41
Speaker 3: They said, can you help with the composite. She didn't
8:43
Speaker 3: think that she would be very helpful because she didn't
8:45
Speaker 3: see the man.
8:46
Speaker 2: She said. At one point, the guy's mask had risen
8:50
Speaker 2: above his chin. She said he had a deep cleft chin.
8:54
Speaker 2: She could tell he was a smoker at times he
8:57
Speaker 2: had thought she heard and an inhaler, and she estimated
9:01
Speaker 2: that he was about six one six foot two, about
9:04
Speaker 2: two hundred and twenty and thirty pounds. I was five
9:06
Speaker 2: foot eleven, one hundred and eighty five pounds, never had
9:09
Speaker 2: a cleft chain in my life. Didn't smoke back then, okay,
9:13
Speaker 2: And so I smoke until I got to Jackson Prison.
9:15
Speaker 2: Now those are the facts.
9:16
Speaker 3: So she gave a composite, and on the composite it's
9:19
Speaker 3: a sixty percent accurate. She was not able to identify
9:23
Speaker 3: critical features. He was masked with a nylon. She was
9:26
Speaker 3: blindfolded with panties that were later secured with a necktie.
9:29
Speaker 3: But the composite was out in the media and one
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Speaker 3: of Ken's ex girlfriend, a very disgruntled ex girlfriend, thought
9:36
Speaker 3: the composite looked like Ken. Contacted the Clinton Township Police Department,
9:41
Speaker 3: and that's how Ken gets involved is through the composite.
9:45
Speaker 2: This is July fourteenth. I'm home in bed, sleeping by
9:47
Speaker 2: eight thirty in the morning, and there's a knockout my
9:49
Speaker 2: front door. So I got up to answer the door
9:52
Speaker 2: and there's a young lady setting in my porch and
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Speaker 2: I said, can I help you? And she said, is
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Speaker 2: your name Kenny? I said, yes it is. What can
9:58
Speaker 2: I do for you? Well? She moved on a side.
10:00
Speaker 2: Four playing clothes officers rushed me, attacking me toy threw
10:03
Speaker 2: me down on the floor in my living room and
10:04
Speaker 2: handcuffed me behind my back, and I'm rolling around saying,
10:07
Speaker 2: what the hell's going up? This woman was a detective
10:10
Speaker 2: and she told me that they have a warrant for
10:13
Speaker 2: my arrest. I'm going to be taken down to the
10:15
Speaker 2: Mcomb County Jail to be placed in the lineup because
10:18
Speaker 2: I'm suspected of being the person that committed to Bee
10:21
Speaker 2: I'm Robbie in a rape back in April, and I said,
10:23
Speaker 2: what the hell are you talking about? So they took
10:26
Speaker 2: me down to the McComb County Jail and Detective Oastin
10:30
Speaker 2: was the lead detective at the time. He told me
10:32
Speaker 2: how was we replaced in a lineup? Because they had
10:34
Speaker 2: received an anonymous phone call that Ken, when im Goo,
10:37
Speaker 2: the manager at Kingsworth lanees looks like a deposit that
10:40
Speaker 2: was issued in the paper about this woman who was
10:43
Speaker 2: robbed in a rape.
10:45
Speaker 3: So at that point the detectives bring Ken in, they
10:48
Speaker 3: put them in a lineup. They bring in the complainant
10:50
Speaker 3: in the rape case and she's in the lineup room.
10:53
Speaker 3: She looks at the six folks is unable to identify Ken,
10:57
Speaker 3: goes out speaks with members of the prospect Tuter's office.
11:01
Speaker 3: Comes back in the people in the lineup rass to say,
11:05
Speaker 3: I don't remember what the words are, Ken, you probably do.
11:08
Speaker 2: What time does your husband come home? Right? There are
11:11
Speaker 2: six of us, and there are all five guys had mustaches.
11:14
Speaker 2: I'd never had a mustache in my life. And when
11:17
Speaker 2: they first put us in the lineup together, I was
11:19
Speaker 2: in number six position. They took her out to talk
11:22
Speaker 2: to the prosecutor and her assistant and Detective Osten. During
11:27
Speaker 2: that time, an officer brought in a riser like a
11:30
Speaker 2: three inch high riser had a wood. They brought it in.
11:33
Speaker 2: They put it under the number two spot. They moved
11:35
Speaker 2: the guy that was a number two spot to the
11:37
Speaker 2: number six spot. They moved me and made me stand
11:39
Speaker 2: in that riser in number two position.
11:42
Speaker 3: And after that she says Ken is the one, and
11:45
Speaker 3: that's how Ken gets roped into this whole thing.
11:58
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12:34
Speaker 3: The complainant reported in her written statements that the perpetrator
12:38
Speaker 3: ejaculated three times, one of which was oral, and with
12:42
Speaker 3: respect to the oral ejaculation, you wiped her mouth out
12:46
Speaker 3: with a pair of panties and they were left at
12:48
Speaker 3: the scene. The point is is that there was an
12:50
Speaker 3: enormous amount of biological evidence, including a ratekit, that was
12:54
Speaker 3: collected after this crime at the hospital that day.
12:58
Speaker 1: Some of it was tested, some of it wasn't. But
13:00
Speaker 1: the biological evidence that was tested was tested using techniques
13:05
Speaker 1: that were not the best techniques available sorology testing I'm
13:08
Speaker 1: talking about. They didn't use DNA, and furthermore, the testing
13:11
Speaker 1: that was done didn't help their case at all because
13:14
Speaker 1: it didn't match ken.
13:16
Speaker 2: Yeah.
13:17
Speaker 3: In fact, there was nothing at all that tied came
13:20
Speaker 3: to this rape except that composite.
13:22
Speaker 1: This composite sketch, which even the victim said was only
13:25
Speaker 1: sixty percent accurate, and no one could have created an
13:28
Speaker 1: accurate sketch from this for the reason we've already talked about,
13:31
Speaker 1: and of course this bogus lineup which they tried to
13:34
Speaker 1: use every thirty trick in the book in order to
13:37
Speaker 1: get hurt to identify you in the lineup.
13:39
Speaker 2: Well, they released me. After the lineup was done, I
13:42
Speaker 2: had called my dad to come and pick me up,
13:44
Speaker 2: you know from the gail. My dad was seventy six
13:46
Speaker 2: years old. Who went back to my house and pulled
13:48
Speaker 2: in a driveway in. I could see all the lights around.
13:51
Speaker 2: Their doors were open, and I'm thinking, what the hell
13:53
Speaker 2: is going on? So walk inside the house. It looked
13:56
Speaker 2: like a tornado had gone through my house. Everything was
13:59
Speaker 2: tossed and turned. The cops were so arrogant. They went
14:02
Speaker 2: inside my refrigerator. I had jars of pickles and peppers,
14:06
Speaker 2: and they broke the jars on my kitchen floor. My
14:09
Speaker 2: dad started crying, and guy said, Dad, I said, don't worry,
14:11
Speaker 2: go home and try to get some sleep. I'll clean up.
14:13
Speaker 2: So I stayed up mostly I trying to put everything
14:16
Speaker 2: back together. Got up next morning and I went to
14:18
Speaker 2: Myers to buy some of the stuff that the cops
14:21
Speaker 2: had broken. Come back home, pulling the driveway and Oastin
14:23
Speaker 2: and his partner Bart Myrlett, they pulled in behind my
14:26
Speaker 2: rear bumper like to try to block me off. So
14:29
Speaker 2: I get out of the car and I'm holding one
14:30
Speaker 2: bag the grocer's on my left hand, and Oastin says, one,
14:33
Speaker 2: I'm going to put that bag on a ground, put
14:35
Speaker 2: your hands on top of the car. So I put
14:37
Speaker 2: the bag on a driveway, put my hand on top
14:39
Speaker 2: of the car, and handcuffed me behind my back. And
14:41
Speaker 2: I said, you want to tell me what's going on now?
14:43
Speaker 2: He said, well, I'm under arrest for this bee armed
14:46
Speaker 2: robbery and the rape because I was identified the day
14:49
Speaker 2: before in that lineup. And I said, look, I'm not
14:51
Speaker 2: the smartest guy in the world, but I'm not stupid.
14:54
Speaker 2: If I was identified in that lineup, you guys would
14:57
Speaker 2: never let me go. You do arrest of me running
14:58
Speaker 2: on a spot, and I'll never forget this line as
15:01
Speaker 2: long as I live. Olsen said, you know what, one
15:04
Speaker 2: I'm going by the time I get done fucking with you,
15:07
Speaker 2: is going to cost you a million dollars to get
15:09
Speaker 2: your ass out of prison. Quote unquote.
15:12
Speaker 1: It's really sick thing. I mean, who are you supposed
15:14
Speaker 1: to call when the cops are the criminals. So here
15:17
Speaker 1: you are. You've never been in trouble a day in
15:19
Speaker 1: your life. Now you're sent into a jail. What was
15:23
Speaker 1: that experience? Like?
15:24
Speaker 2: That was hell step below prison, that's for sure. But
15:28
Speaker 2: I wouldn't wish that on anyone. You know. I had
15:31
Speaker 2: a quote opponent attorney. His name is Lawrence Peppler. Guy
15:34
Speaker 2: wouldn't take my phone calls. So I filed a grievance
15:37
Speaker 2: against him to try to get another attorney. We have
15:40
Speaker 2: a hearing on a Friday afternoon in front of Judge Schwartz,
15:43
Speaker 2: and Judge Schwartz said that he's not in the habit
15:46
Speaker 2: of changing attorneys, and he told me that he's going
15:49
Speaker 2: to give me a new Attorney's name is Albert Markowski.
15:52
Speaker 2: And if I don't like him, I could defend myself.
15:56
Speaker 2: And I told him Grunner, I don't know the first
15:58
Speaker 2: thing about the law. But he's says, come Monday morning,
16:01
Speaker 2: we're picking a jury. So what that means is this,
16:04
Speaker 2: mister Markowski is going to have Saturday and Sunday to
16:08
Speaker 2: prepare for a case. Fifteen counts of CSC. What kind
16:12
Speaker 2: of b what kind of I'm robbery.
16:14
Speaker 1: Gail, you got a way in on this. I mean,
16:16
Speaker 1: did judge really appointed attorney on Friday who starts the
16:19
Speaker 1: case on Monday, and explain CSC in these initials as well?
16:22
Speaker 1: If you could.
16:23
Speaker 3: A CSC one case, which is a criminal sexual assault
16:26
Speaker 3: case first degree, involves acts of penetration, it's a life offense.
16:32
Speaker 3: Anyone would need a lot of time to prepare for that,
16:35
Speaker 3: particularly in this case because the rape itself was factually complex,
16:39
Speaker 3: and then the process and procedure afterwards required a lot
16:43
Speaker 3: of analysis. So two days a week doesn't matter, is
16:48
Speaker 3: just totally insufficient.
16:50
Speaker 1: So you go to trial, if you can even call
16:52
Speaker 1: it that, it's a show trial in effect, right, I mean,
16:56
Speaker 1: they gave you no hope in hell. I don't know
16:59
Speaker 1: what was on the judge his mind, but one would
17:02
Speaker 1: have hoped that the judge would have been an arbiter
17:06
Speaker 1: in this and would have actually wanted to see justice done,
17:10
Speaker 1: even though it seems like nobody else on that side
17:12
Speaker 1: did or had any interest in it. But nonetheless, you're
17:16
Speaker 1: now screwed. You've got this attorney who you've just met,
17:19
Speaker 1: who hasn't had any time to do any investigation or
17:22
Speaker 1: preparation of any kind, and now you go to trial.
17:24
Speaker 1: So how long did the trial take? And did anyone
17:28
Speaker 1: do anything to help you during this process?
17:31
Speaker 2: No, mister Barkowski, I think I talked to him twice.
17:35
Speaker 2: They picked a jury on Monday afternoon. The trial lasted
17:39
Speaker 2: the rest of the week. The following week, jury came
17:42
Speaker 2: back on Wednesday.
17:44
Speaker 1: So, despite the victim's uncertainty regarding the composite sketch and
17:49
Speaker 1: her glimpses of the attacker, the composite sketch was admitted
17:52
Speaker 1: into evidence and the prosecution's case was centered on this
17:57
Speaker 1: composite sketch because remember, Ken wasn't right, so there was
18:02
Speaker 1: no forensic evidence connecting him to the crime, and of
18:05
Speaker 1: course the zerology testing didn't connect into it either, So
18:09
Speaker 1: the composite sketch, they realized, wasn't going to be enough
18:12
Speaker 1: on its own, which brings us to this character named
18:15
Speaker 1: Glenn McCormick. Gail, please tell us who this guy was
18:20
Speaker 1: and the role that he played.
18:22
Speaker 3: Glenn McCormick shared a cell with Ken for a little
18:24
Speaker 3: while when he was in the Macomb County Jail. He
18:27
Speaker 3: was released, he was contacted by Detective Oustin. He was
18:30
Speaker 3: asked to come to the Clinton Township Police Department, and
18:34
Speaker 3: he was told by Linda Davis, the prosecutor, that he
18:38
Speaker 3: was in a world of hurt. He was charged with
18:41
Speaker 3: armed robbery obstructing a police officer. He was a fourth
18:44
Speaker 3: habitual so he had potentially a life sentence and that
18:48
Speaker 3: if he would testify against Ken, you know, something could
18:50
Speaker 3: be worked out with respect to his charges. And the
18:54
Speaker 3: deal was his charges would be changed to attempt unarmed
18:59
Speaker 3: robbery with It's a recommendation for a year in the
19:02
Speaker 3: county jail, which is a whole lot different than a
19:04
Speaker 3: potential life offense.
19:06
Speaker 2: He was told by Lynda Davis and Ostin that if
19:09
Speaker 2: he didn't testify to what they had in their reports,
19:12
Speaker 2: Linda Davis guaranteed him that he would not see the
19:15
Speaker 2: lighted date.
19:16
Speaker 3: McCormick was in an interview room this discussion occurred, the
19:20
Speaker 3: police report was placed in front of him. Linda Davis
19:23
Speaker 3: and Detective Oston left the room. McCormick had an opportunity
19:28
Speaker 3: to read the police report and that's how he learned
19:31
Speaker 3: the facts of Ken's case. They came back into the
19:33
Speaker 3: room and they did a recording of him. He testified
19:37
Speaker 3: at trial that Ken said that, yeah, I did it.
19:40
Speaker 3: They ain't got shit on me. I hit all the
19:42
Speaker 3: evidence and so on. McCormick lied under oath during the trial.
19:46
Speaker 3: It was pretty egregious.
19:48
Speaker 1: So everybody knows you can't bribe a witness, right, you
19:50
Speaker 1: get five years or more for bribing a witness. But
19:53
Speaker 1: the government comes along and says to this guy, he's
19:55
Speaker 1: very simple. You could choose door one, door number two.
19:58
Speaker 1: Door number one you spend the the rest of your
20:00
Speaker 1: life in prison, or door number two, which you might
20:03
Speaker 1: find more pleasurable. You can simply lie in exactly the
20:08
Speaker 1: ways that we tell you to, and we'll leave you
20:10
Speaker 1: this document as we just sort of slink out of
20:12
Speaker 1: the room, so you can learn about this case that
20:15
Speaker 1: you know absolutely nothing about, and then you can lie
20:19
Speaker 1: on the stand and then only spend about a year
20:22
Speaker 1: in county jail. I mean, you make the decision, and
20:25
Speaker 1: this guy, who was apparently not a terrific guy to
20:28
Speaker 1: start with, was a very easy decision for him to make,
20:31
Speaker 1: and so he got up on the stand and lied
20:33
Speaker 1: under oath. Another crime. So the crimes just keep piling up,
20:36
Speaker 1: but none of them are yours. It's amazing. So the
20:39
Speaker 1: jury goes out, how long did they deliberate for?
20:43
Speaker 2: They got the case on Friday afternoon, game back Wednesday,
20:47
Speaker 2: November ninth. They're guilty in all counts.
20:50
Speaker 1: So that moment when they came back and declared you
20:53
Speaker 1: guilty and ultimately sends you to forty to sixty years
20:55
Speaker 1: in prison, So a life sentenced because you weren't a
20:58
Speaker 1: young man. I was forty three, right, A living death
21:01
Speaker 1: send I mean, can you take us back to that
21:04
Speaker 1: probably worst one way of your life.
21:05
Speaker 2: I can. I can remember my dad was sitting right
21:09
Speaker 2: behind me when it furdicure was announced and I could
21:12
Speaker 2: hear my dad said no, no. He started crying and
21:15
Speaker 2: I tried to get up to give him a hug,
21:17
Speaker 2: and the court officers were stating right behind me. He
21:19
Speaker 2: pushed me back down in the chair. I'll never forget
21:21
Speaker 2: that day as long as I live. That moment. That's
21:24
Speaker 2: one of the things that motivates me to do what
21:27
Speaker 2: I've been doing for the last eighteen years, and I'll
21:30
Speaker 2: never stop. When they put me in my first cell, Jason,
21:44
Speaker 2: I was scared to that. I was shaking, I was crying,
21:47
Speaker 2: and I sat down my bunk. I started to tear
21:50
Speaker 2: the bed sheets into strips. I was going to hang myself.
21:53
Speaker 2: That's how desponded I felt. I remember getting down on
21:56
Speaker 2: my knees and praying, Lord, please show me the weight.
21:59
Speaker 2: Please told me what to do. And as God is
22:02
Speaker 2: my witness, I swear this is the truth. I could
22:04
Speaker 2: feel like a hand touch my right shoulder and I
22:07
Speaker 2: heard her voice say, Genny, You're going to be just fine.
22:12
Speaker 2: And when I heard those words, something came over me.
22:15
Speaker 2: I stood up and I just made my mind out.
22:17
Speaker 2: I'm going to do whatever I have to do with
22:19
Speaker 2: God's help to prove my innocence.
22:22
Speaker 1: Well, you had God and Gail right so, and you
22:25
Speaker 1: needed both.
22:26
Speaker 2: Not only got in Gail, I had catch a sweatloaf
22:28
Speaker 2: from the Innocence Project Kim Shine, who is a reporter
22:31
Speaker 2: from the Detroit News. You know I've been blessed with
22:34
Speaker 2: three angels and Gail.
22:36
Speaker 1: We know it's so easy to get wrongfully convicted, and
22:40
Speaker 1: the barriers to getting an innocent person out are incredibly high.
22:45
Speaker 1: How did you get involved in the case, How did
22:48
Speaker 1: you win it against all these obstacles? And this was
22:52
Speaker 1: the first exoneration for the Coolie Center at the Michigan
22:55
Speaker 1: Instance Project right it was.
22:58
Speaker 3: What happened was is I had gone to a Criminal
23:00
Speaker 3: Defense Attorney of Michigan conference to hear Barry Shock speak
23:04
Speaker 3: and the people from the Innisonce Project were there. So
23:07
Speaker 3: I went out. I signed up and I said, you know,
23:10
Speaker 3: you get a case in McComb County, call me. I'd
23:11
Speaker 3: be happy to do it, and they did so. In
23:15
Speaker 3: April or May of two thousand and two, I went
23:17
Speaker 3: to the Cooley Law School, I picked up the file.
23:20
Speaker 3: I read it over the summer. I met Ken and
23:23
Speaker 3: decided to file the motion in November, and when I
23:27
Speaker 3: was putting the motion together, it became pretty glaring that
23:31
Speaker 3: something terribly wrong had happened. The identification was so bad
23:37
Speaker 3: that it's hard to imagine that it formed the basis
23:41
Speaker 3: for Ken's involvement and ultimate conviction because there wasn't anything
23:45
Speaker 3: else to work with. Frankly, and at the time of trial.
23:49
Speaker 3: What happens is is that the complainant points to Ken
23:53
Speaker 3: and says, I'm one hundred percent sure he's the perpetrator.
23:57
Speaker 3: So you have that, you have the snitch witness, and
24:00
Speaker 3: you know it's pretty compelling testimony. So I filed the
24:04
Speaker 3: motion to get the biological evidence tested, the court granted it.
24:09
Speaker 3: The detective Ouston was vehemently opposed to the testing and
24:13
Speaker 3: said so on the record. Judge Serveto said he was
24:16
Speaker 3: going to have the evidence tested, and I went to
24:19
Speaker 3: the Clinton Chownship Police Department with the Assistant prosecutor and
24:23
Speaker 3: Detective Oustin was there. We went through all the biological evidence.
24:26
Speaker 3: There was an enormous amount. The rape kit had never
24:29
Speaker 3: been opened, and so we did a chain of evidence
24:33
Speaker 3: on all that. It was sent up to the Michigan
24:34
Speaker 3: State Police Crime Lab and then we waited for the results.
24:38
Speaker 3: And then on June eleventh, I got a phone call
24:40
Speaker 3: from the county prosecutor that the DNA results are coming
24:43
Speaker 3: in and they looked favorable to Ken. And when they
24:45
Speaker 3: came in, indeed they were. A cigarette butt at the
24:49
Speaker 3: scene showed salava from an unknown donor, a fingernail scraping
24:54
Speaker 3: from the complainant showed an unknown donor. And then there
24:59
Speaker 3: was semen a extracted from a pantyhose that was used
25:02
Speaker 3: to secure her that also showed semen from an unknown donor.
25:07
Speaker 3: So there were three pieces of evidence that corroborated that
25:10
Speaker 3: Ken was factually not the perpetrator and innocent.
25:14
Speaker 1: Yeah, when you got this evidence, you must have been
25:17
Speaker 1: jumping for joy. I was how did you get the
25:21
Speaker 1: message to Ken? And what was that moment like for both?
25:25
Speaker 1: Did you call him? Did you go visit him?
25:27
Speaker 3: You know, it happened like late in the afternoon when
25:30
Speaker 3: I got the call, and I couldn't even believe it.
25:31
Speaker 3: I was so excited, so I got in my car
25:34
Speaker 3: to drive down to the prison. You know, I wanted
25:36
Speaker 3: him to hear it directly from me. And as I
25:38
Speaker 3: was driving to the prison, I started to get so
25:41
Speaker 3: sad because almost ten years of his life was gone.
25:44
Speaker 3: His dad had died, his son had grown up. You know,
25:48
Speaker 3: families are blown apart by these things. It's hard to
25:51
Speaker 3: repair all the things that happened and all this time, so,
25:54
Speaker 3: you know, those thoughts are going through my mind. I
25:56
Speaker 3: finally get through security at the prison and I meet Ken,
25:59
Speaker 3: and I think my face was such that Ken was
26:02
Speaker 3: afraid I was bringing bad news instead of good news.
26:05
Speaker 2: You know, Jason, I can remember that moment like it
26:08
Speaker 2: was yesterday. I was in my bunk and the guards
26:10
Speaker 2: came to get me and he said, you have to
26:12
Speaker 2: get up front right away. Your attorney's waiting for you
26:14
Speaker 2: up front, and I'm thinking my dad had passed away
26:16
Speaker 2: and my mom wasn't doing very well herself. So when
26:20
Speaker 2: the guards telling me I have to get up there asap,
26:22
Speaker 2: I'm thinking, geez, don't tell me that my mom passed away,
26:25
Speaker 2: because I had a rough time losing my dad and
26:28
Speaker 2: not being allowed to go to the funeral. And I
26:30
Speaker 2: remember when Gail walked in and she had this look
26:33
Speaker 2: on her face and said, Gale, what's the matter. And
26:35
Speaker 2: she said, Kenny, I don't know how to tell you this.
26:38
Speaker 2: I said, Gail, please don't tell me something happened to
26:41
Speaker 2: my mother. And Gail said, Kenny, I just talked to
26:43
Speaker 2: your mom about a hour ago. She's real happy. I said, then,
26:46
Speaker 2: what's going on? Why are you here? And she said
26:48
Speaker 2: that she got word from the prosecutor's office. I am
26:50
Speaker 2: an innocent man, and Parrel Melinga wants me released. And
26:54
Speaker 2: I don't know if you remember this, Gail. I got
26:56
Speaker 2: up and I picked you up by your waist and
26:59
Speaker 2: I was swinging around Jason. I said, what happened? What happened?
27:03
Speaker 2: And she said, Ken, if you put my ass down,
27:04
Speaker 2: I'll tell you what happened. And the rest is history.
27:07
Speaker 2: I why, I'll tell you what. That's one moment that
27:09
Speaker 2: I'll never forget as long as I've lived. Never And
27:12
Speaker 2: then he.
27:13
Speaker 3: Was released on June seventeen, two thousand and three.
27:15
Speaker 1: So after you were released, Glenn McCormick recanted his testimony
27:20
Speaker 1: and then a sworn affidavit told the story of his
27:23
Speaker 1: coercion by Linda Davis and Detective Oaston, and later you
27:27
Speaker 1: file the federal civil rights lawsuit that was eventually settled
27:30
Speaker 1: for three point seven million. Now we got to talk
27:33
Speaker 1: about the work that you're doing. I think it's one
27:36
Speaker 1: of the reasons why people in the innocence community can
27:38
Speaker 1: have so much respect for you, and why I've really
27:41
Speaker 1: been looking forward to this podcast, not because of your
27:45
Speaker 1: amazing sense of humor, but more because what's that great saying?
27:51
Speaker 1: This applies right to you. You ready, Yep? The saying
27:54
Speaker 1: is from somebody they've Stephanie Sparkles. She said, I love
27:58
Speaker 1: when people that have been through hell walked out of
28:00
Speaker 1: the flames carrying buckets of water for those still consumed
28:03
Speaker 1: by the fire. Can that is you to a t
28:08
Speaker 1: You could be doing anything at all. No one would
28:11
Speaker 1: fault you if you wanted to go be out on
28:13
Speaker 1: an island somewhere with your toes in the sand and
28:16
Speaker 1: a drink in each hand. You know, but that's not
28:20
Speaker 1: the reality at all. You have hit the ground running
28:23
Speaker 1: that have been making an impact on not just individual cases,
28:28
Speaker 1: but on the macro issues that have already effected and
28:31
Speaker 1: are going to continue effect even long after you're gone
28:34
Speaker 1: people in Michigan and even in the broader movement. So
28:38
Speaker 1: talk to us about the work that you've been doing.
28:40
Speaker 1: And would I mean seal.
28:41
Speaker 2: Well, I meet myself an agenda. I was still locked up,
28:43
Speaker 2: but I knew it was just a matter of time
28:45
Speaker 2: before the truth would come out. And one thing I
28:47
Speaker 2: wanted to do. I wanted to have a wrawful compensation
28:50
Speaker 2: build passed here in Michigan because we didn't have one
28:53
Speaker 2: at the time. And as a matter of fact, in
28:55
Speaker 2: the state of Michigan, if you were in prison for
28:56
Speaker 2: a crime that you did commit and your release from prison,
29:00
Speaker 2: state will help you get housing, job, trading clothing, food stamps, Okay,
29:03
Speaker 2: you have to get your back on your feet. If
29:05
Speaker 2: you are someone like myself or my fellow of Eanna
29:08
Speaker 2: rees who are totally innocent and released from prison, you
29:11
Speaker 2: don't get a penny. That's just ridiculous. So I worked
29:15
Speaker 2: twelve and a half years to have that bill passed
29:18
Speaker 2: and another bill that I worked on. There are so
29:20
Speaker 2: many unsolved, untested rate cases in the state of Michigan,
29:23
Speaker 2: especially in Wayne County in the Detroit area. I had
29:26
Speaker 2: this idea that before someone can be released from prison
29:30
Speaker 2: on parole, they have to submit a DNA sample. That
29:33
Speaker 2: DNA sample will go into the National Code system and
29:36
Speaker 2: maybe they get one hit they take. It's all one
29:38
Speaker 2: rape of one murder. It'll be good. It's a good thing.
29:41
Speaker 2: So that bill is passed in the middle of two
29:43
Speaker 2: thousand and eight, and ironically, that was how they caught
29:47
Speaker 2: the actual rapist in my case because of that bill. Wow,
29:51
Speaker 2: the actual rapist his name is Craig Gonzer. He was
29:55
Speaker 2: about to be released from prison. He gave a DNA sample.
29:59
Speaker 2: That's how he was found. Now, one thing I want
30:01
Speaker 2: to make perfectly clear how bad wrongful misidentifications are. The
30:06
Speaker 2: victim said, you know, she never saw guy's face. She
30:08
Speaker 2: thought he was sixty two or sixty three, two hundred
30:10
Speaker 2: and twenty two hundred and thirty pounds deep left chin At
30:14
Speaker 2: the time, I was five foot eleven, one hundred and
30:16
Speaker 2: eighty five pounds. Okay, mister Gonzer. The actual rapist is
30:22
Speaker 2: six foot six, two hundred and ninety pounds. Wow, So
30:28
Speaker 2: I was only eight inches off in height and one
30:31
Speaker 2: hundred and five pounds in weight. You know. To me,
30:33
Speaker 2: that shows more definite proof that the police knew that
30:36
Speaker 2: they were framing an innocent man. So I'm happy about
30:39
Speaker 2: doing that. I'm working on something the last three or
30:41
Speaker 2: four years about the qualified immunity issue that has to go.
30:45
Speaker 2: This testimony has to go, and I don't care how
30:48
Speaker 2: long is that take me. I'll get it done.
30:51
Speaker 1: So there's some new development as we're speaking now that
30:54
Speaker 1: I know you were so excited about. Tell us quickly
30:57
Speaker 1: about that.
30:58
Speaker 2: Well. The good news is this deals direct with Gail,
31:01
Speaker 2: and I'm so proud of her. She is the most
31:03
Speaker 2: remarkable w and I've ever met in my life. We
31:06
Speaker 2: have a new prosecutor Mcoon County's name is Pete Licito,
31:08
Speaker 2: and you know more about it than I do.
31:11
Speaker 3: Pete has started and gotten the budget to start up
31:15
Speaker 3: what's known as a Conviction Integrity Unit, and the idea
31:19
Speaker 3: is is once it's up and running, it will review
31:22
Speaker 3: cases to determine whether or not innocent people are in prison.
31:27
Speaker 2: The good thing is the good news is Pete Licito
31:29
Speaker 2: has named Gail the director of the mcleoon County CiU.
31:34
Speaker 2: Gail told me the news about that that could be
31:37
Speaker 2: a miracle in itself.
31:38
Speaker 3: The whole idea is the fair administration of justice, and
31:41
Speaker 3: that exists on both ends, both on the prosecutorial and
31:44
Speaker 3: on the side of innocence and wrongful convictions to right
31:48
Speaker 3: those wrongs. And Pete has a definite interest in making
31:52
Speaker 3: sure that the right people are in prison.
31:54
Speaker 2: The prosecutor, in my opinion, should be not only the
31:57
Speaker 2: sort of justice he or she has to be the
31:59
Speaker 2: shield of justice.
32:01
Speaker 1: Also well said, and Ken, if people want to know
32:03
Speaker 1: more about you or your story, you have a book
32:06
Speaker 1: now right You have a book that's available right now.
32:09
Speaker 1: How can our audience find that?
32:10
Speaker 2: In case anyone would like to read my book, my
32:12
Speaker 2: book is called Deliberate Injustice, the run Full Conviction of
32:15
Speaker 2: Ken Whinemko. You can go online. The website is Deliberate
32:20
Speaker 2: injusticethebook dot com. You can also watch a story about
32:24
Speaker 2: my case on Netflix. The series is called The Innocence Files.
32:28
Speaker 2: My episode is number nine is called the Million Dollar Man.
32:31
Speaker 1: We'll have that link in the bio. And now we
32:34
Speaker 1: go to the closing of our show, which is always
32:36
Speaker 1: my favorite part. We call it closing Arguments, where first
32:39
Speaker 1: of all, I think are two incredible guests. Of course, Ken,
32:44
Speaker 1: Whyemko You are a hero, and I'm so proud of
32:49
Speaker 1: you and all the work you've done, and I'm looking
32:51
Speaker 1: forward to continuing to work together to make the system
32:54
Speaker 1: fairer and better for everyone. And of course, Gil Palm
32:56
Speaker 1: a coff, I know how much this case meant to you,
32:59
Speaker 1: so it's so great that you're here to share this
33:02
Speaker 1: sort of triumphant retelling of this awful saga and of
33:06
Speaker 1: course a good that came from it. So how this
33:08
Speaker 1: segment of the show works is very very simple. I'm
33:11
Speaker 1: going to turn off my microphone, kick back in my chair,
33:14
Speaker 1: leave my headphones on, and probably close my eyes, and
33:17
Speaker 1: then closing arguments. Basically, you could just say anything else
33:20
Speaker 1: you want to say anything. We haven't covered anything you
33:23
Speaker 1: want to share with our audience. GAILI you start with
33:26
Speaker 1: all due respect to you, but to save the best
33:28
Speaker 1: for last, well.
33:29
Speaker 3: Thank you so much for inviting me and Ken to
33:32
Speaker 3: talk on your show. This is a really important subject
33:35
Speaker 3: and from the standpoint of a lawyer, it's an exciting
33:37
Speaker 3: area to be in. It's also in heartbreaking area to
33:40
Speaker 3: work in. Just to give your listeners some context in
33:45
Speaker 3: terms of the degree of the problem, the Department of
33:48
Speaker 3: Justice reports that in twenty nineteen, there were two million,
33:52
Speaker 3: eighty six thousand people in prison in the United States.
33:56
Speaker 3: The Innocence Project of West Virginia says that between three
34:00
Speaker 3: and six percent of those in prison are wrongfully convicted.
34:03
Speaker 3: Three percent is sixty two thousand, five hundred and eighty
34:06
Speaker 3: people and six percent are one hundred and twenty five thousand,
34:09
Speaker 3: one hundred and sixty people at any given time. And
34:12
Speaker 3: the truth is, I don't think anybody really knows the
34:15
Speaker 3: real numbers. These are extrapolations of these different programs. The
34:20
Speaker 3: National Registry of Exoneration and keeps tracks of all the
34:23
Speaker 3: exonerations in the United States reports that since nineteen eighty nine,
34:28
Speaker 3: there have best two nine hundred and thirty seven ex generations.
34:31
Speaker 3: Think about that, when at any moment in time, there's
34:35
Speaker 3: up to one hundred and twenty five thousand people wrongfully
34:37
Speaker 3: convicted in prison. It's an astounding problem. People think that
34:41
Speaker 3: those in prison they're guilty, and people that make claims
34:44
Speaker 3: of innocent are just blowing smoke. It's not true. The
34:47
Speaker 3: wrongfully convicted, in the innocent are truly sitting in prisons.
34:51
Speaker 3: So I hope that your audience takes away that this
34:54
Speaker 3: does happen, can happen to you. It can happen to
34:57
Speaker 3: your neighbor, your son, your father, your daughter, or your mother.
35:01
Speaker 3: It happens, and it's a tragedy. It's almost an irreparable tragedy.
35:05
Speaker 3: In Ken's case, he lost almost ten years of his life.
35:08
Speaker 3: He is out, and he has done an amazing job
35:11
Speaker 3: over these almost twenty years. He's an extraordinary human, but
35:15
Speaker 3: he lost a lot too. And so I hope that
35:18
Speaker 3: your audience takes away the large scope of the problem
35:22
Speaker 3: and can also contribute locally and nationally in terms of
35:27
Speaker 3: pressing politicians to create more conviction integrity units, support innocence projects,
35:34
Speaker 3: support criminal justice reform, and that type of thing.
35:37
Speaker 2: Thank you, Thank you, Gail. She is the epitome of
35:40
Speaker 2: what an attorney should be. Jason, thank you for giving
35:44
Speaker 2: me the opportunity to tell my story. It's only due
35:47
Speaker 2: to people like you that AXA to reseuch as myself,
35:49
Speaker 2: can't share their stories with the entire country with the
35:53
Speaker 2: hopes of enlightening people to the truth. Wrongful convictions happen
35:57
Speaker 2: every day in this country. They have to stop. They
36:01
Speaker 2: must stop. I don't consider myself a hero, and I'm
36:04
Speaker 2: just a good guy who wants to do the right thing.
36:07
Speaker 2: And I don't want anyone to have to go through
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Speaker 2: what I or my family had to go through. It's
36:12
Speaker 2: not fair, it's not right, it's not the way America
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Speaker 2: is supposed to be. We can change it. It takes
36:18
Speaker 2: all of us to change it, each and every one
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Speaker 2: of us. Again, I want to thank you, Jason Gail.
36:22
Speaker 2: I love you both. Let's keep up to fight. God
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Speaker 2: bless you, God bless everyone, and make God bless America.
36:28
Speaker 1: Thank you, Thank you for listening to Wrongful Conviction. I'd
36:38
Speaker 1: like to thank our production team Connor Hall, Justin Golden,
36:41
Speaker 1: Jeff Cliburn, and Kevin Wartis. With research by Lyla Robinson.
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Speaker 1: The music in this production was supplied by three time
36:47
Speaker 1: Oscar nominated composer Jay Ralph. Be sure to follow us
36:51
Speaker 1: on Instagram at Wrongful Conviction, on Facebook at Wrongful Conviction Podcast,
36:56
Speaker 1: and on Twitter. At Wrong Conviction as well as at
36:59
Speaker 1: Lava for Good on all three platforms. You can also
37:02
Speaker 1: follow me on both TikTok and Instagram at it's Jason
37:06
Speaker 1: flam Ravel. Conviction is the production of Lava for Good
37:09
Speaker 1: podcasts and association with Signal Company Number one