Latest / Wrongful Conviction / #557 Jason Flom with Dennis Maher

Transcript

#557 Jason Flom with Dennis Maher · Wrongful Conviction

0:05
Speaker 1: With the police banging on the door open up.
0:10
Speaker 2: The choice to be in that lineup was the last
0:12
Speaker 2: choice I made as a free man.
0:14
Speaker 3: A year later, I ended up writing the system.
0:18
Speaker 4: I'm going to be one of those people who everyone
0:20
Speaker 4: in the world is going to think as a monster
0:21
Speaker 4: or suspect as a monster for the rest of my life,
0:24
Speaker 4: and I'm just going to have to come to peace
0:25
Speaker 4: with that.
0:27
Speaker 5: Somebody was able to look at my picture in the
0:29
Speaker 5: database and say that I was somewhere where I definitely wasn't.
0:34
Speaker 6: I overheard three of the jailers discussing what part they might.
0:37
Speaker 1: Have to play in my hanging.
0:39
Speaker 6: They had been told that two prison officers would have
0:42
Speaker 6: to participate in my execution. Now I walked back inside
0:46
Speaker 6: that prison for the last time. Man, all help broke loose.
0:49
Speaker 7: But welcome back to Wrongful Conviction with Jason Flamm. Today
1:07
Speaker 7: we have a very special episode, not only because of
1:10
Speaker 7: our amazing guest, Dennis Mayer. First of all, Dennis, welcome
1:14
Speaker 7: to the show.
1:15
Speaker 6: Thank you for having me.
1:16
Speaker 7: Dennis will get into his story in a minute, but
1:18
Speaker 7: let's suffice it to say that he was a sergeant
1:21
Speaker 7: in the United States Army. When he was wrongfully convicted
1:23
Speaker 7: of three rapes and served almost twenty years in prison.
1:27
Speaker 7: I also want to introduce Hannah Riley, who's the director
1:31
Speaker 7: of communications for the New England Innocence Project, and she's
1:34
Speaker 7: the first time on the show, hopefully not the last.
1:37
Speaker 7: And then we have a very close friend of mine,
1:40
Speaker 7: Alex Spiro.
1:41
Speaker 1: He is a former criminal.
1:43
Speaker 7: Prosecutor in New York and currently a defense attorney. He's
1:47
Speaker 7: also a professor at Harvard Law School. Alex, it's great
1:51
Speaker 7: to have you on the show as well.
1:52
Speaker 2: Thanks.
1:53
Speaker 7: So Dennis, let's start with you. Your case is of
1:58
Speaker 7: great interest, I think, to anyone who's interested in this genre,
2:02
Speaker 7: because it touches on a number of really important and
2:05
Speaker 7: tragically common problems in the wrongful conviction world. The mistake
2:10
Speaker 7: and I winness identification is unique in your case because
2:13
Speaker 7: of the fact that there were three different women who
2:15
Speaker 7: identified you under dubious circumstances, but nonetheless that identified you.
2:19
Speaker 7: It touches on the storage of evidence because in your
2:21
Speaker 7: case the evidence had been supposedly lost but actually it wasn't.
2:25
Speaker 7: And that's something that is really disturbing to anyone who's
2:29
Speaker 7: interested in justice. It deals with incompetent defense counsel. And
2:35
Speaker 7: also it also has an element of willful wrongful prosecution.
2:41
Speaker 7: So you really hit the jackpot of causes of getting
2:46
Speaker 7: locked up for something you didn't do. So let's go back,
2:49
Speaker 7: and this is a while ago, right, we're talking nineteen
2:51
Speaker 7: eighty three when this all came down.
2:53
Speaker 6: That's when it started.
2:54
Speaker 7: Yeah, So nineteen eighty three, paint a picture for us.
2:58
Speaker 7: You were were you active to a you in the
3:00
Speaker 7: military at this time.
3:01
Speaker 6: Yes, I was stationed at Fort Devons.
3:03
Speaker 7: Right, and you had been in in the airborne Right.
3:06
Speaker 7: I was a paratrooper paraterooper station in Italy.
3:10
Speaker 6: Well, first I was at Fort Bragg, then I volunteered
3:13
Speaker 6: to serve overseas. Then I re enlisted to come home
3:16
Speaker 6: to Massachusetts, and then I got off a jump status
3:20
Speaker 6: to work in my field, which was a diesel mechanic.
3:23
Speaker 1: And that's another thing.
3:25
Speaker 7: It's it's really upsetting to me, as someone who loves
3:28
Speaker 7: his country and respects.
3:30
Speaker 1: The men and women of our military. Here you are.
3:32
Speaker 1: You're twenty three years old at the time.
3:34
Speaker 6: Yep.
3:35
Speaker 1: And what happened. Let's go back to that.
3:38
Speaker 6: Well, I graduated from high school in seventy eight and
3:40
Speaker 6: enlisted in the Army right out of high school. You know.
3:43
Speaker 6: I went through Basic training, Advanced Individual Training, Jump school,
3:47
Speaker 6: then went to Fort Bragg, then to Vicenza, Italy in
3:50
Speaker 6: the five or nine, and then to ten Special Forces
3:53
Speaker 6: up at Fort Devons. Then I got off of jump
3:55
Speaker 6: status to work as a diesel mechanic because what I
3:58
Speaker 6: worked on doesn't drop out of. And then from there
4:02
Speaker 6: I was living at home and Lowell with my parents.
4:05
Speaker 6: I was walking down Westword Street and I was stopped
4:08
Speaker 6: by the police. They asked me for identification, so I
4:11
Speaker 6: gave him my driver's license, which was outdated because when
4:15
Speaker 6: you're in the military you get a cod on the
4:17
Speaker 6: back of it that says your license never expires, and
4:20
Speaker 6: so well, I asked me for identification. They ran my name,
4:23
Speaker 6: which came back negative because I had never been in trouble.
4:26
Speaker 6: No speed and tickets, no nothing. He gave me back
4:29
Speaker 6: my ID and then he searched me and he arrested
4:32
Speaker 6: me for possession of marijuana. So they brought me to
4:36
Speaker 6: the police station and booked me and put me in
4:39
Speaker 6: a hold and sell. A couple of hours later, they
4:41
Speaker 6: came out and questioned me and they said, where were
4:44
Speaker 6: you on the night of November sixteenth, at five point thirty. Well,
4:48
Speaker 6: I said, I was in my CEO's office getting yelled
4:50
Speaker 6: at because we failed a nuclear biological chemical test. And
4:53
Speaker 6: I didn't leave the base till almost quarter past five,
4:57
Speaker 6: so I didn't get home till almost six o'clock. And
5:00
Speaker 6: then he put me back in the cell. And then
5:03
Speaker 6: the other cop come in a couple of hours later
5:06
Speaker 6: and asked me the same questions. I gave him the
5:07
Speaker 6: same answers. On a night of November seventeenth, I was
5:11
Speaker 6: I left the base early to get my car inspected,
5:14
Speaker 6: and I went home and took a nap, and then
5:16
Speaker 6: I went over to my friend's house to watch the
5:18
Speaker 6: Bruins game. And then they brought me into court the
5:20
Speaker 6: next day and arranged me for possession of marijuana. And
5:24
Speaker 6: then they did what's called an in court identification. They
5:27
Speaker 6: took me out of the box and sat me on
5:28
Speaker 6: the bench, and they brought one of the victims in
5:31
Speaker 6: and she identified someone else.
5:33
Speaker 7: Wait, did you even know what was going on at
5:35
Speaker 7: this point? I mean, you were being booked for possession
5:37
Speaker 7: of marijuana, but now they're bringing a victim. There's no
5:39
Speaker 7: victim of possession of marijuana.
5:41
Speaker 6: True. What I missed was the second time they started
5:44
Speaker 6: questioning me, I got mad, you know, why what are
5:47
Speaker 6: you questioning me about? And he said, well, we're questioning
5:50
Speaker 6: you about a rape that happened on November sixteenth, and
5:53
Speaker 6: then attempted rape that happened on November seventeenth. So I said, well,
5:56
Speaker 6: I guess I need a lawyer. And then next day
6:00
Speaker 6: in court they did an in court identification. Now I
6:03
Speaker 6: was never arraigned for the rapes or anything. They just
6:05
Speaker 6: did an in court identification and the victim I need
6:09
Speaker 6: someone else, and the judge said, you have no grounds
6:11
Speaker 6: to go forward.
6:12
Speaker 1: Seems like case closes right there, I mean.
6:15
Speaker 6: So they gave me six months probation and said I
6:17
Speaker 6: could leave now they had my boots. So I was
6:20
Speaker 6: in stocking feet and going to have to walk home
6:23
Speaker 6: and stalking feet. As I was leaving the courtroom, they
6:26
Speaker 6: arrested me and charged me with the rape and the
6:28
Speaker 6: attempted rape that the judge said there was no grounds
6:31
Speaker 6: to go forward on.
6:33
Speaker 7: Okay, Alex, do you want to jump in here because
6:35
Speaker 7: this whole story is pretty surreal.
6:36
Speaker 2: Right.
6:36
Speaker 7: First of all, the thing with the boots, we'll get
6:38
Speaker 7: back to that. Like why they're making you walk home
6:41
Speaker 7: and this is in Uh it's cold outside, It's it's November.
6:45
Speaker 7: It's November. Yeah, walking home? Okay, Well that's that's a
6:48
Speaker 7: little surreal. Then you've just spent the night in jail
6:50
Speaker 7: for the first time in your life, so I'm sure
6:51
Speaker 7: you're a little whacked out anyway at that point. What's
6:55
Speaker 7: going on here, Alex? Can you get into this?
6:57
Speaker 2: I mean, obviously, the use of that sort of identify
7:00
Speaker 2: procedure raises serious questions because just presenting him alone or
7:04
Speaker 2: him in that sort of a setting when he's already
7:06
Speaker 2: being accused of some other crime, is not the right
7:09
Speaker 2: way to conduct I think we know now identification procedures,
7:12
Speaker 2: but I guess what must have happened is twofold one.
7:15
Speaker 2: No doubt that the members of law enforcement were under
7:18
Speaker 2: pressure to make an arrest in this case, and secondarily
7:21
Speaker 2: during the time in which mister Mayor was incarcerated on
7:24
Speaker 2: the initial charge, I'm sure that they noticed things articles
7:27
Speaker 2: of clothing putting him near the scene, and other indisha
7:31
Speaker 2: that they believed to be corroboration. And so the lack
7:34
Speaker 2: of identification obviously did not set this record straight.
7:38
Speaker 7: Right and There's a very interesting point that you touch
7:41
Speaker 7: on there, which is that there was one of the victims,
7:44
Speaker 7: or I guess one of the victims, had said that
7:46
Speaker 7: the attacker had had a red hooded sweatshirt, right, and
7:50
Speaker 7: that became one of the only sort of circumstantial piece
7:54
Speaker 7: of evidence that was even something that they could put
7:56
Speaker 7: a hook on.
7:56
Speaker 1: Right.
7:57
Speaker 6: That's why I think they stopped me, because they saw
8:00
Speaker 6: was wearing a red hooded sweatshirt, you know, and they
8:03
Speaker 6: were two hundred feet away from me, and they said
8:06
Speaker 6: I fit the out of conception, but I believe it
8:08
Speaker 6: was just I had a red hooded sweatshirt on.
8:10
Speaker 1: Right.
8:10
Speaker 7: So seven o'clock at night, two hundred fet away, it's
8:12
Speaker 7: pretty hard to decide. I mean, you'd have to have
8:13
Speaker 7: sort of like really superhuman vision to be able to
8:16
Speaker 7: match a suspect at night, seven o'clock in November in Massachusetts.
8:23
Speaker 7: I'm not a meteorologist, but I'm guessing it was dark,
8:25
Speaker 7: and so it was dark, and you were two hundred
8:28
Speaker 7: feet away, and they managed to magically figure out that
8:30
Speaker 7: it was you. Now, this goes back to the thing
8:32
Speaker 7: I talk about often, which is that this is a
8:34
Speaker 7: small town. Right, you have a rapist out there who's
8:37
Speaker 7: just attacked two women, raped one of them, sexually assaulted
8:40
Speaker 7: and tempted to wape the other one. They got to
8:42
Speaker 7: find somebody there. You are walking around in a red
8:45
Speaker 7: hooded sweatshirt. It's like, oh, bingo, this is great. We
8:48
Speaker 7: can get this off our desks to an extent, right,
8:50
Speaker 7: And so Alex, go back to what you were saying before.
8:53
Speaker 2: Yeah, I mean, obviously we don't know sort of verbat
8:56
Speaker 2: him the back and forth. But no, that is not
8:58
Speaker 2: a sound identify procedure. I could say that quite assuredly.
9:02
Speaker 7: And what point did you you had requested a lawyer,
9:05
Speaker 7: At what point did you get assigned a lawyer.
9:07
Speaker 6: A lawyer approached my parents and asked if he could
9:10
Speaker 6: represent me. Now, this is the lawyer who ended up
9:12
Speaker 6: representing me at trial. He approached my parents the same
9:15
Speaker 6: day I had one to appoint it to me for possession.
9:19
Speaker 6: You know, I got six months probation. But then another
9:21
Speaker 6: lawyer approached my parents asking if he could represent me,
9:25
Speaker 6: and they said yes, yes, because they knew nothing about
9:28
Speaker 6: the law like me, you know, they'd never been in
9:30
Speaker 6: trouble or anything. And he said it'd represent me for
9:34
Speaker 6: five thousand dollars on a rape case.
9:37
Speaker 7: Now nineteen eighty three, five thousand dollars, five thousand dollars, right,
9:40
Speaker 7: I mean that's a lot of money back then, so
9:43
Speaker 7: you would hope that this guy would be a real star.
9:46
Speaker 7: But that's not the way it worked out at all,
9:48
Speaker 7: is it. Back to the scene, So now you're about
9:51
Speaker 7: to walk home in your socks stocking feet as New
9:55
Speaker 7: Englanders call it, and then you get pulled back in
9:59
Speaker 7: and you get charged with two counts.
10:02
Speaker 6: Of rape and an attempted rape. Right, Well, I didn't
10:05
Speaker 6: get charged then, they just arrested me, and then they
10:07
Speaker 6: took me back to the police station and kept me
10:09
Speaker 6: in the station over the weekend and brought me into
10:13
Speaker 6: Cambridge Court House and that's where they charged me with
10:15
Speaker 6: rape and put me on ten thousand dollars bail, which
10:19
Speaker 6: is one thousand dollars cash. So my parents bailed me
10:22
Speaker 6: out and then I went to the first lineup, which
10:25
Speaker 6: was me six police officers. They were all standing behind
10:28
Speaker 6: a railing. I was standing behind a chair and I
10:31
Speaker 6: was ided that was the first one.
10:34
Speaker 1: That kind of stuff always blows me away. Let's just
10:37
Speaker 1: reflect back on that.
10:38
Speaker 7: So they were standing behind a railing and you were
10:40
Speaker 7: standing behind a chair, so there was really no reason
10:42
Speaker 7: that anyone would think there'd be anything different about you, right,
10:45
Speaker 7: And there were six police officers in you okay?
10:47
Speaker 1: And then the victim, one of the victims, comes in.
10:50
Speaker 6: And identified me. You know, it was probably obvious to her,
10:54
Speaker 6: you know, I'm standing behind a chair. I really don't
10:57
Speaker 6: remember the second lineup, but I think when along the
11:00
Speaker 6: same lines, it was me, six police officers, my brother,
11:04
Speaker 6: and this time I wasn't standing behind a chair, and
11:07
Speaker 6: she id'd me, what.
11:08
Speaker 1: Does your brother have to do with it?
11:09
Speaker 6: Well, he was just in the line. He was there,
11:11
Speaker 6: and they just wanted to stick him in the lineup.
11:13
Speaker 1: That seems odd, doesn't it.
11:16
Speaker 2: I think that, you know, law enforcement would say that
11:18
Speaker 2: later they can assert that they did everything in their
11:22
Speaker 2: power to find people that look like him and who looks.
11:24
Speaker 3: More like a person than their own brother.
11:26
Speaker 7: And that's an interesting thing too, because I would this identification,
11:30
Speaker 7: as everyone who listens to the show knows, is the
11:32
Speaker 7: leading cause of wrongful conviction. And what we also know
11:38
Speaker 7: is that in cases where there's a weapon involved and
11:41
Speaker 7: someone is in close proximity and really fearing for their life,
11:44
Speaker 7: in a very real way, the instance of mistaken identification
11:48
Speaker 7: goes up. And that's logical, right as an amateur psychologist,
11:52
Speaker 7: if you're freaking out, literally like you're adrenaline is on,
11:56
Speaker 7: you know ten, you know your mind's not going to
12:00
Speaker 7: function in the way that it would if you were
12:02
Speaker 7: just calmly sitting here and just look at somebody. But
12:05
Speaker 7: when someone's got a knife to your throat and is
12:08
Speaker 7: either raping or attempting to rape you, your faculties are
12:11
Speaker 7: not going to be operating in a normal passion, to
12:14
Speaker 7: say the least. And so this case had that as
12:18
Speaker 7: well because the victims were in that exact situation.
12:22
Speaker 4: Have you seen the Gorilla basketball video?
12:25
Speaker 1: Yes, okay, have you guys seen that?
12:27
Speaker 4: The idea of being we just aren't able to focus
12:30
Speaker 4: really clearly on a lot of things at once. So
12:33
Speaker 4: if you haven't seen this, I'm completely going to ruin.
12:36
Speaker 1: It for you. But no, just watch it. Everyone should watch.
12:39
Speaker 4: It, right Google, It's on YouTube's a selective attention.
12:42
Speaker 7: Test, right, there's a selective attention test. It involves a
12:45
Speaker 7: basketball I strongly recommend that everybody listening to the show
12:48
Speaker 7: watched this because it'll give you an idea of just
12:51
Speaker 7: how easy it is for your mind to play tricks
12:54
Speaker 7: on you. So let's go back to the scene, right.
12:56
Speaker 7: So you end up now with this high priced, fancy lawyer, right,
12:59
Speaker 7: and you didn't get what you paid for.
13:02
Speaker 6: No, I didn't. He never visited where the crime happened.
13:04
Speaker 6: He never interrogated witnesses or talked to the witnesses or
13:08
Speaker 6: anything like that. We went to trial in March of
13:13
Speaker 6: two thousand and four. Well before that, January fifth, nineteen
13:17
Speaker 6: eighty four, the police came and arrested me again and
13:20
Speaker 6: brought me down to the police station. I said, well,
13:23
Speaker 6: what are you arresting me for? They wouldn't say anything,
13:25
Speaker 6: and they handed me over to the Air Police department.
13:29
Speaker 6: So they brought me back to Air and on the way,
13:32
Speaker 6: I asked the cop you know what am I under
13:35
Speaker 6: arrest for? She said, just shut up. So I asked
13:37
Speaker 6: her again and she said just shut up. I says,
13:40
Speaker 6: can you please tell me what I'm under arrest for?
13:42
Speaker 6: And she said, well, you're under arrest for a rape
13:44
Speaker 6: that happened at the Casa Mano Hotel. I said, where's
13:48
Speaker 6: the Casa Mana Hotel? Because I never knew where it
13:52
Speaker 6: was until two years ago when I went and spoke
13:54
Speaker 6: in air and she said, well, you committed a rape there.
13:58
Speaker 6: I said, no, I didn't. And then they brought me
14:00
Speaker 6: in the air and put my bail at fifty thousand
14:04
Speaker 6: dollars cash. So that was my last day of freedom,
14:07
Speaker 6: was January fifth, nineteen eighty four. And then we went
14:11
Speaker 6: through another lineup and I was idd again. And in
14:14
Speaker 6: March of nineteen eighty four we went to trial.
14:17
Speaker 1: Going back to your lawyer.
14:18
Speaker 7: So your lawyer didn't visit the crime scene, big red
14:21
Speaker 7: flag there. Yeah, didn't interview the witnesses. That seems even
14:25
Speaker 7: more insane. Okay, what else did he forget to do
14:28
Speaker 7: or neglect to do?
14:29
Speaker 6: I should say he didn't show up for some hearings
14:32
Speaker 6: at the trial. He presented most of the case for
14:36
Speaker 6: the prosecutor. You know, he's standing next to me. Are
14:38
Speaker 6: you sure this is the person? Are you sure? There's
14:41
Speaker 6: an point at me saying are you sure this is
14:43
Speaker 6: the person who raped you? And of course I got
14:46
Speaker 6: found guilty.
14:48
Speaker 1: I mean, anybody as well to say are you sure
14:49
Speaker 1: that this rapist is the one who raped you?
14:51
Speaker 7: Right? I mean it's like, I mean, it's crazy. So
14:53
Speaker 7: it's incomprehensible. I mean, Alex jump in here because I'm
14:56
Speaker 7: freaking out.
14:57
Speaker 3: Yeah, this is not does not sound like good LORI that.
15:00
Speaker 7: Now, let's talk about what good lawyering might have looked like,
15:03
Speaker 7: because this is an unusual situation we have here where
15:06
Speaker 7: we actually have somebody on the show who can give
15:09
Speaker 7: us that type of idea.
15:10
Speaker 2: I guess I'd break it down into two parts. In
15:12
Speaker 2: terms of the identification, I think you have to remember that,
15:15
Speaker 2: in terms of Lowell, the women were approached from behind.
15:18
Speaker 2: You already mentioned the distraction of a weapon, a high
15:21
Speaker 2: tense situation affecting the ability to accurately picture somebody and
15:25
Speaker 2: recall it. For one, she had already seen the individual
15:29
Speaker 2: that she would later pick out, because she had seen
15:31
Speaker 2: him in a courtroom setting on a bench, and so
15:33
Speaker 2: even if she just remembered that she would falsely identify him.
15:36
Speaker 2: It also wasn't a double blind procedure, meaning that the
15:39
Speaker 2: investigator ostensibly knew who she was trying to pick out,
15:43
Speaker 2: put him in a unique setting within the lineup and
15:45
Speaker 2: everything else. In addition, all of the witnesses were shown
15:49
Speaker 2: photographs in which they identified as I understand it, mister
15:53
Speaker 2: mayor before they viewed a live lineup, and so what
15:56
Speaker 2: often happens is that you end up picking out the
15:59
Speaker 2: person that you saw in the photo array, not necessarily
16:01
Speaker 2: the person who saw on the night in question. And
16:04
Speaker 2: sort of all of that, coupled with law enforcements, desire
16:08
Speaker 2: from perhaps a very good place of trying to solve
16:10
Speaker 2: this crime, can lead to a series of identification procedures
16:14
Speaker 2: not being pristine and not being correctly done, and the
16:17
Speaker 2: taint from one bleeds over into the next, because once
16:20
Speaker 2: he's identified in these initial cases, the air case becomes
16:23
Speaker 2: a foregone conclusion, and I think you have to attack
16:26
Speaker 2: that in all of those different ways. I also think
16:29
Speaker 2: they used corroborative evidence that is a bit of a
16:31
Speaker 2: red herring. They see him in the vicinity near the
16:35
Speaker 2: time of the initial rapes and Lowell, but the truth
16:38
Speaker 2: is he's from that area. It's not like finding somebody
16:41
Speaker 2: in some remote location or finding somebody far away from
16:43
Speaker 2: where they normally travel. They see a knife and a
16:46
Speaker 2: jacket in his car, but that's military issued, where that
16:49
Speaker 2: most of the men in his age demographic in a
16:52
Speaker 2: military town might very well have, and he might be
16:55
Speaker 2: wearing a red sweatshirt. But as US folks from Boston know,
16:57
Speaker 2: a lot of the sports teams there have red sweatshirt,
17:00
Speaker 2: and I don't think that is that unique of an item.
17:02
Speaker 2: And so there were all of those things that needed
17:05
Speaker 2: to be investigated. And on top of that, he had
17:08
Speaker 2: an alibi that wasn't properly vetted, that could have been
17:11
Speaker 2: properly vetted that would suggest he couldn't have been where
17:13
Speaker 2: they say that he was. And the crimes themselves, the
17:16
Speaker 2: air crime versus the lower crimes, don't have the same
17:19
Speaker 2: fact pattern and don't necessarily suggest that the same person
17:23
Speaker 2: perpetrated them. And that wasn't really tested or explored, and
17:26
Speaker 2: I think that could have been used effectively to suggest
17:29
Speaker 2: law enforcements, tunnel vision.
17:30
Speaker 7: Were any of these factors brought up by your attorney
17:33
Speaker 7: at trial.
17:34
Speaker 1: Or at any other time.
17:36
Speaker 6: Well, he brought up part of my alibi because where
17:38
Speaker 6: I was at the base for the November sixteenth crime,
17:41
Speaker 6: and they just dismissed it. They said, do you have
17:44
Speaker 6: that and write And even though I had NCOs the
17:46
Speaker 6: sergeants they are testifying on my behalf that they were
17:49
Speaker 6: with me.
17:50
Speaker 7: So the sergeants actually testified at trial and said that
17:53
Speaker 7: you were there. Yeah, those would seem to be relatively
17:56
Speaker 7: We're not talking about crackheads, right, We're talking about sergeants
17:59
Speaker 7: in the ends United States Army who are saying this
18:02
Speaker 7: guy was here.
18:04
Speaker 1: Again, I'm not.
18:05
Speaker 7: A professor of metaphysics, but you can't be in two
18:07
Speaker 7: places at one time. Everybody knows that.
18:10
Speaker 2: And the Starhouse had a reason to remember, right. The
18:12
Speaker 2: sergeants said that there had been a test failure and
18:15
Speaker 2: that it was an intense meeting, and so it wasn't
18:17
Speaker 2: a standard meeting. It was a meeting that they would
18:19
Speaker 2: have one would think remember, and they remembered him there.
18:22
Speaker 7: Yeah, that's an excellent point again that a good defense
18:25
Speaker 7: lawyer would have brought up. And this is very different
18:28
Speaker 7: than some of the cases we see where a guy's
18:29
Speaker 7: alibi or a woman's alibi is that they were home
18:32
Speaker 7: with their parents watching TV or with their wife or something.
18:35
Speaker 7: And then they say, wow, the lie for anybody would
18:37
Speaker 7: lie to protect their family. This is not family, right.
18:40
Speaker 7: These guys are not your uncles or brothers or anything else.
18:44
Speaker 7: I mean, these are guys you work with, and in fact,
18:47
Speaker 7: they were bitsed at you at this particular time. On
18:49
Speaker 7: top of that, So that's just that's just nuts.
18:51
Speaker 2: I think what the prosecutor may have countered is, even
18:54
Speaker 2: if they were to be believed, he still had enough
18:56
Speaker 2: time from five point fifteen to five thirty to make
19:00
Speaker 2: to the scene.
19:01
Speaker 3: But of course, if you did your job and you
19:03
Speaker 3: did an.
19:03
Speaker 2: Investigation, you would drive a car from one location to another,
19:08
Speaker 2: and you would show what the traffic patterns were at
19:09
Speaker 2: that time and show that it was feasibly impossible. And
19:12
Speaker 2: so there was a way to draw that out and
19:15
Speaker 2: tighten up that alibi that it does not appear what's done.
19:18
Speaker 7: Well, yeah, I mean, and we'd also don't know how
19:20
Speaker 7: long that meeting went on for. But how long would
19:22
Speaker 7: it have taken you Even if you had left immediately,
19:24
Speaker 7: you had had to walk to get to your car,
19:26
Speaker 7: you would have had to drive off the base. I
19:28
Speaker 7: imagine there's some you know, some elapsed time there. And
19:32
Speaker 7: then how long would it have taken you on a
19:34
Speaker 7: typical day to drive from there to where the rape occurred.
19:37
Speaker 6: Probably half hour to forty five minutes.
19:39
Speaker 7: Case closed, right, I mean, that just doesn't match your honor.
19:44
Speaker 7: He wasn't there because he was somewhere else.
19:58
Speaker 2: One of the things is you know, he was rested
20:00
Speaker 2: so close in time, it's much easier to figure out
20:02
Speaker 2: where you were since you were arrested within forty eight
20:05
Speaker 2: hours of when.
20:05
Speaker 3: The accusation was right.
20:07
Speaker 2: So the sergeant's memories would have also been sharp. If
20:10
Speaker 2: he was arrested two or three years later, one could say,
20:12
Speaker 2: you don't really remember where you were in the night
20:14
Speaker 2: of November fifteenth or sixteenth, But because it happened so
20:16
Speaker 2: close afterwards, he really did have an independent memory, and
20:20
Speaker 2: so did the other individuals that were interviewed.
20:22
Speaker 7: Alex brings up a very good point, which is that
20:24
Speaker 7: it's contemporaneous. It's like, right now, this is what happened,
20:28
Speaker 7: this is where you were. You should be out of
20:30
Speaker 7: there at that moment in time with any sort of
20:32
Speaker 7: competent defense. What about the prosecutor at that point, I mean,
20:35
Speaker 7: how does a prosecutor, having been a prosecutor, you obviously
20:38
Speaker 7: have insight that nobody else that's ever been on this
20:40
Speaker 7: show does. What is it that causes a prosecutor to
20:44
Speaker 7: continue to prosecute somebody and I ultimately lock them up
20:49
Speaker 7: or sends them to death when they have real hard
20:53
Speaker 7: evidence that it wasn't the guy.
20:56
Speaker 2: Well, the notion that they had hard evidence may be
20:59
Speaker 2: a bit of an over statement. I guess this is
21:01
Speaker 2: why you need to have a strong defense, because what
21:03
Speaker 2: the prosecutor's seeing is multiple identifications and seeing evidence that's
21:07
Speaker 2: corroberative put before him, right, and we went through the identification,
21:11
Speaker 2: and we went through the corroboration, and when you peel
21:13
Speaker 2: away at it, it doesn't seem as strong.
21:15
Speaker 3: Now, what did he make of the alibi witnesses.
21:18
Speaker 2: I have a feeling that he probably thought to himself, well,
21:21
Speaker 2: if he left it, if he knew he was going
21:22
Speaker 2: to be at that meeting, and he knew that the
21:24
Speaker 2: meeting was over at five ish, it gave him exactly
21:26
Speaker 2: the right amount of time, not just to little time,
21:29
Speaker 2: but exactly the right amount of time to both have
21:31
Speaker 2: a supposed alibi and to commit the crimes in question.
21:34
Speaker 2: And so he would take facts in the world that
21:38
Speaker 2: you might look through a different lens at, and he
21:40
Speaker 2: would look through them at a lens that he's guilty.
21:42
Speaker 2: I know that he's guilty, So what else proves that
21:44
Speaker 2: he's guilty?
21:45
Speaker 7: But in this case, as in many other rawful convictions,
21:47
Speaker 7: there was no physical evidence connecting him to the crime.
21:50
Speaker 2: But in the nineteen eighties, if you were to commit
21:53
Speaker 2: a crime in the woods, there usually wasn't forensic evidence.
21:57
Speaker 2: So the counter to that would be, you wouldn't expect
21:59
Speaker 2: to find forensic evidence outdoors, and you wouldn't expect to
22:02
Speaker 2: find videotape because it's not like New York in twenty seventeen,
22:05
Speaker 2: And you wouldn't expect to find DNA because it was
22:08
Speaker 2: prior to the modernization of DNA technology. And so what
22:13
Speaker 2: you have here is exactly what you'd expect to have.
22:15
Speaker 2: You have a woman who is a credible witness who
22:17
Speaker 2: swears under oath that he did it, and you have
22:19
Speaker 2: other factors such as the clothing, the time and place,
22:23
Speaker 2: and the repetition of the events, suggesting that he's a good.
22:26
Speaker 7: Suspect, circumstantial but nonetheless enough to be able in a
22:30
Speaker 7: prosecutor's mind to rationalize the continued prosecution or persecution in
22:35
Speaker 7: this case of somebody like you. So fast forward to
22:39
Speaker 7: the trial. We know that this attorney mounted a feeble
22:44
Speaker 7: would be a nice way of putting it. In competent
22:46
Speaker 7: would probably be a better description of the representation. Horrible
22:51
Speaker 7: and overpaid. Those are the ways I would describe the
22:53
Speaker 7: defense that you received in this case, which is again typical.
22:57
Speaker 7: The only thing that's not typical about is that most
22:59
Speaker 7: of the peopleople that are wrongfully convicted are represented by
23:02
Speaker 7: public defenders. In this case, you had to pay for
23:04
Speaker 7: the privilege of this guy acting like a prosecutor, which
23:07
Speaker 7: is beyond reprehensible. It's disgusting. Ultimately, the jury goes out,
23:12
Speaker 7: what were you feeling? I mean when they how long
23:14
Speaker 7: did they deliberate for?
23:16
Speaker 6: I think it was like two hours, an hour and
23:18
Speaker 6: a half something like that. They didn't they didn't deliberate
23:20
Speaker 6: a real long time.
23:21
Speaker 1: No, that's a very short time.
23:22
Speaker 7: So again, it's an unimaginable circumstance to anybody on the outside.
23:28
Speaker 7: What did you think when they came back in? Did
23:32
Speaker 7: you think you were going to be exonerate? You knew
23:34
Speaker 7: you were innocent.
23:36
Speaker 6: I thought I was going to be found guilty because
23:38
Speaker 6: of the way the lawyer represented me. Even though the
23:42
Speaker 6: court office was saying, you're going to get found guilty.
23:45
Speaker 6: I didn't feel that way because my lawyer was so horrible.
23:48
Speaker 6: You know, I had visions of going to prison, being stabbed,
23:50
Speaker 6: being raped, being beat up because it was a sex.
23:54
Speaker 7: Offense, and you knew that those you know, typically those
23:58
Speaker 7: will land you in real hot water once you get
24:00
Speaker 7: on the inside. Yeah, so they come back and sure
24:04
Speaker 7: enough they find you guilty.
24:06
Speaker 6: I was. I was pissed, you know, and I stood
24:12
Speaker 6: up in the courtroom. Well, after you get found guilty,
24:14
Speaker 6: they asked if you have anything to say. You know,
24:18
Speaker 6: I was a soldier, you know, I was a defender
24:20
Speaker 6: of my country, and they want to say that I
24:23
Speaker 6: did this. So I got up and after the judge
24:27
Speaker 6: asked if anything to say, of course I did. I said,
24:30
Speaker 6: your honor, if you call this justice, I think you
24:32
Speaker 6: when you hold judicial system or a crock of shit.
24:35
Speaker 6: And he doubled my sentence to twenty to thirty years. Wow,
24:39
Speaker 6: because the DA years later told me that he was
24:43
Speaker 6: going to give me a ten to fifteen. Then I
24:46
Speaker 6: said that, and he said to the clerk, did you
24:48
Speaker 6: sign that ye? And he goes no, he said double
24:50
Speaker 6: the sentence.
24:51
Speaker 1: In front of you.
24:52
Speaker 6: Yeah.
24:53
Speaker 1: Oh shit.
24:54
Speaker 6: I didn't hear him say that, but the DA did,
24:57
Speaker 6: and he told me later on that he heard tell
24:59
Speaker 6: the clerk to double the sentence.
25:01
Speaker 7: And we know now that the DA had his own
25:04
Speaker 7: doubts about this right yes, and that I mean, I
25:07
Speaker 7: want to get into the prison experience. But your case
25:10
Speaker 7: is unusual for another reason, which is that you actually,
25:13
Speaker 7: ultimately twenty something years later, received an apology from the
25:18
Speaker 7: person who actually put you in there. It seems like
25:21
Speaker 7: this was a guy. And it's hard to say based
25:24
Speaker 7: on what we've just heard, but it seems like the
25:25
Speaker 7: guy who actually had a conscience, well, it is a guy.
25:27
Speaker 7: At least he has one now, right, because he tried
25:30
Speaker 7: to make amends to you, which is impossible to do,
25:32
Speaker 7: but he tried, right, And this was the first case
25:35
Speaker 7: that this guy had tried as a prosecutor, right.
25:37
Speaker 6: See. I believe it was his first case as a prosecutor.
25:40
Speaker 1: Right, which is another factor, right, Alex, I mean as
25:42
Speaker 1: the first case.
25:43
Speaker 3: Even in the criminal realm.
25:44
Speaker 2: I think for this to be your first case as
25:46
Speaker 2: a prosecutor is a tricky want.
25:49
Speaker 7: Now you get taken off to prison. Where were you
25:51
Speaker 7: in prison? The first off was an an mci walpole.
25:54
Speaker 7: It's called cate of Junction now, but it smacked some
25:56
Speaker 7: security and I went in there to be booked and.
26:00
Speaker 6: Then they transfer me from there to Conckered. That's where
26:03
Speaker 6: they decide where they're going to send you where I
26:05
Speaker 6: had a twenty to thirty, I would be behind the walls,
26:09
Speaker 6: because anything over eighteen years you've got to do time
26:11
Speaker 6: behind the walls. They call it behind the walls, being
26:14
Speaker 6: maximum security. Right.
26:16
Speaker 7: So on top of the fact that your sentence was doubled,
26:18
Speaker 7: and we know typically in a rape case, you know,
26:21
Speaker 7: fifteen years would be the general guideline that I've seen.
26:25
Speaker 7: But because you trying to stand up for yourself and
26:27
Speaker 7: say something, which after what you'd been through, I guess
26:30
Speaker 7: it's hard to follow you for wanting to actually speak
26:32
Speaker 7: your mind. So this had another negative consequence, not only
26:36
Speaker 7: doubling your sense, but putting you in a more dangerous
26:39
Speaker 7: and worse in every imaginable way facility than you would
26:42
Speaker 7: have been in otherwise. So you end up in Walpole. Walpole,
26:47
Speaker 7: What can you tell us about that? Because was it
26:50
Speaker 7: as bad as you expected it to be?
26:52
Speaker 6: Was it? Well? When you first walk into the prison,
26:56
Speaker 6: you get on a long hallway and you go through
26:59
Speaker 6: this big door and the door slams behind you, and
27:02
Speaker 6: you're in a it's probably twelve by twelve with a
27:05
Speaker 6: god up the top with a rifle in his hand,
27:07
Speaker 6: with a shotgun in his hand, until you go through
27:10
Speaker 6: the next which takes you through the wall and you
27:12
Speaker 6: get into the prison itself. And then as you go
27:15
Speaker 6: into the prison you could smell the fear in the building.
27:18
Speaker 6: Most prisons strive on fear, you know, fear that well,
27:22
Speaker 6: someone's going to raip me, someone's going to stab me,
27:24
Speaker 6: and that if I do it first, then no one's
27:26
Speaker 6: going to do it to me. And that's the way
27:29
Speaker 6: prison works, a lot of it, you know. And then
27:31
Speaker 6: I was going in there as a sex offender and
27:35
Speaker 6: I didn't know what was going to happen. I would
27:38
Speaker 6: go walk in the yard and see other people getting
27:40
Speaker 6: beat up that was sex offenders and stuff. And then
27:43
Speaker 6: I was only there a couple of days and then
27:45
Speaker 6: they took me to conquer it, which was less stressful
27:49
Speaker 6: than Wallpole. But then when I got my life sentence,
27:53
Speaker 6: I went back to Wallpole and was going to ended
27:56
Speaker 6: up doing almost a year there. Right before I got
27:59
Speaker 6: back there, there was a riot where they broke through
28:02
Speaker 6: one of the walls, and for orientation, you go in
28:05
Speaker 6: and it's gas. You could smell the gas still in
28:08
Speaker 6: the air from when they had gassed the inmates. And
28:12
Speaker 6: they put me on an essex Blocks, which was for
28:15
Speaker 6: people who were prone to violence. They broke it down
28:19
Speaker 6: into Essex, Bristol, and Suffolk, which was Essex would be
28:23
Speaker 6: for the ones who rarely acted up, Bristol would be
28:26
Speaker 6: for the lesser ones, and then Suffolk would be even
28:28
Speaker 6: for lesser than that. So while I was on Essex,
28:31
Speaker 6: I got cut. I got three stitches hare and fourteen
28:34
Speaker 6: stitches across the back of my neck because I was
28:37
Speaker 6: a sexophone. I did really nothing wrong, but that's the
28:42
Speaker 6: way it was. You know. The guy called me down.
28:46
Speaker 6: I was talking to him and he reached out and
28:47
Speaker 6: grabbed me. I had hair down to my shoulders and
28:50
Speaker 6: he grabbed me by my hair and pulled me up
28:52
Speaker 6: against the jail bars and with a razor blade he
28:55
Speaker 6: cut me hair. And then I ducked down to get
28:57
Speaker 6: out of the way, and he sliced me across the
28:59
Speaker 6: back of the neck. So I went back up into
29:03
Speaker 6: my cell and I pushed the skin back in and
29:07
Speaker 6: I reached behind my neck and my finger went inside,
29:09
Speaker 6: and I says, well, I got to go to the hospital.
29:13
Speaker 6: So I went downstairs and I said to the CEO.
29:15
Speaker 6: I says, yeah, I got to go down to the hospital.
29:19
Speaker 6: He goes why, I says, I caught myself shaven. He
29:21
Speaker 6: didn't know that I had to cut that was bleeding
29:23
Speaker 6: on the back of my neck. He just knew I
29:25
Speaker 6: had the one here. And so I went down there
29:29
Speaker 6: and they said what happened. I said, well, I caught
29:31
Speaker 6: myself shaven. He says, well, we're not going to do
29:33
Speaker 6: anything till you tell us what happened, you know, And
29:35
Speaker 6: I'm saying, you know, I got this huge cot on
29:37
Speaker 6: the back of my neck. So I told him. I says, yeah,
29:40
Speaker 6: the guy caught me. And then he stitched up my
29:43
Speaker 6: face with no no anesthesia or nothing, just I could
29:47
Speaker 6: feel the thread going through my skin and the needle
29:50
Speaker 6: going through my skin. He used anesthesia on the back
29:54
Speaker 6: because it was so long. I did another probably five
29:59
Speaker 6: months there, and there were fights all the time, people
30:03
Speaker 6: getting stabbed. Christmas Eve, there was a racial fight on
30:09
Speaker 6: the block between like ten people. Early in January there
30:14
Speaker 6: was Blacks and the Muslims. They hate each other in prison,
30:18
Speaker 6: and I walk into chow hall, they run around on
30:20
Speaker 6: the table stabbing each other. And so you just lean
30:24
Speaker 6: up against the wall and hold your steel tray in
30:27
Speaker 6: front of you so that you can't get stabbed the
30:30
Speaker 6: day shield. Yeah, so the day that I was supposed
30:33
Speaker 6: to leave there, there were shots fight in the od
30:36
Speaker 6: because there was going to be another race riot in
30:39
Speaker 6: the prison. And finally I went to Gardner, which they
30:42
Speaker 6: called skin a Mountain because all the sex offenders were there,
30:46
Speaker 6: and so there it was less stressful and I could
30:50
Speaker 6: do more things. I started lifting weights, and then while
30:55
Speaker 6: I was there there was almost another race riot between
30:58
Speaker 6: the blacks and the Porto rics. There was like one
31:02
Speaker 6: hundred and fifty Puerto Ricans on top of the hill
31:05
Speaker 6: and run the same amount of Blacks that were going
31:07
Speaker 6: to fight. They evacuated the prison. Nothing happened. But and
31:12
Speaker 6: then from there I went to the treatment center where
31:15
Speaker 6: I got one day to natural life civil commitment, which
31:19
Speaker 6: was just people supposedly in treatment. But while there they
31:24
Speaker 6: brought people from the prison system down and one of them,
31:27
Speaker 6: who was just about ready to get out, I mean
31:30
Speaker 6: he was going to get he was going to minimum,
31:32
Speaker 6: he would have been out within two months, he brutally
31:35
Speaker 6: raped a woman, and which was horrible, you know, because
31:40
Speaker 6: I worked in a staff kitchen, so I dealt with
31:43
Speaker 6: all the staff and she was a really nice person.
31:47
Speaker 1: Oh, he raped someone in the prison.
31:49
Speaker 6: He raped a staff member in the prison.
31:51
Speaker 4: Wow.
31:52
Speaker 6: You know, but in the prison people would get raped.
31:56
Speaker 6: Not all the time, but you know, at least once
31:59
Speaker 6: a twe a month someone would get raped by another guy.
32:02
Speaker 6: You know. I didn't because I lifted. By then, I
32:06
Speaker 6: was benching three point fifty and squatting five hundred pounds
32:10
Speaker 6: and nobody bothered me, you know. And I treated everyone good,
32:15
Speaker 6: you know, And I kept my job in the staff
32:18
Speaker 6: kitchen so I could eat good. And when I left
32:21
Speaker 6: the staff kitchen, they were disappointed because I was leaving,
32:24
Speaker 6: because who was going to cook for him?
32:28
Speaker 1: Wow.
32:28
Speaker 7: It takes a minute to process all that. Let's get
32:33
Speaker 7: to the good part of the story. Let's call it
32:35
Speaker 7: right where things start to turn around.
32:39
Speaker 6: Well, in nineteen ninety four, I left work and was
32:43
Speaker 6: heading back to the block and someone said, Dennis put
32:47
Speaker 6: on the Phil Donahue Show, and Barryshek was on there.
32:51
Speaker 6: He had like six or seven ex honorees at that time,
32:55
Speaker 6: it was either ninety three or ninety four, and he
32:59
Speaker 6: was talking about how he had used DNA to prove
33:01
Speaker 6: their innocence. And I knew the only way that I
33:03
Speaker 6: was going to be proven innocent was through the use
33:05
Speaker 6: of DNA. So my friend Bob Cameron, who has since died,
33:09
Speaker 6: helped me find the address to Yeshiva University in a
33:12
Speaker 6: Kadoza School of Law, and I wrote them a letter
33:15
Speaker 6: asking for help. And I got a twenty six page
33:18
Speaker 6: questionnaire back from them, and I filled all that out
33:20
Speaker 6: and sent it back and I got another questionairback the
33:23
Speaker 6: same thing. I guess they were going to compare it
33:26
Speaker 6: to see if they were both the same, if I
33:27
Speaker 6: was just making up stories. And then I got a
33:30
Speaker 6: letter back from them asking for all my transcripts. Now
33:33
Speaker 6: you got to imagine I hadn't had a lawyer since
33:36
Speaker 6: nineteen eighty five.
33:38
Speaker 1: Nine years earlier.
33:39
Speaker 6: Yeah, and I wanted to keep things going on in
33:42
Speaker 6: the court. Well, first, my lawyer got the spot when
33:46
Speaker 6: I was at Walpole, so I had to learn how
33:48
Speaker 6: to do a motion for appointment of counsel and motion
33:52
Speaker 6: for indigency and whatever else I had to do to
33:56
Speaker 6: get an appeals lawyer. So I got an appeals lawyer
33:59
Speaker 6: and he didn't represent me the way I wanted him
34:02
Speaker 6: to do. I wanted him to raise illegal search and
34:05
Speaker 6: seizure because they went and broke into my car and
34:07
Speaker 6: took evidence, but he wouldn't, so he just raised that
34:11
Speaker 6: the two cases shouldn't have been tried together, and a
34:14
Speaker 6: bunch of crap. And so I didn't have a lawyer
34:17
Speaker 6: after that, so I learned to file things on my own.
34:21
Speaker 6: I filed Rule thirties and whatever I could. I filed
34:23
Speaker 6: emotion for a paternity test, just to see if there
34:26
Speaker 6: was evidence that they could match against me. But everything
34:30
Speaker 6: I ever filed had to go in front of my
34:32
Speaker 6: sentence and judge, who didn't think kindly of me because
34:36
Speaker 6: I told him him and this whole judicial system were
34:39
Speaker 6: a crocod shit and he was a former marine. So
34:44
Speaker 6: I send all the stuff to the Innocence Project, which
34:48
Speaker 6: was probably twelve hundred pages of information between appeals and
34:52
Speaker 6: motions and stuff like that, and they started looking for evidence,
34:57
Speaker 6: and they called the police department, and they called the
35:01
Speaker 6: courthouse asking for evidence, and they're telling him the evidence
35:05
Speaker 6: is lost, the evidence is destroyed. And this goes on
35:08
Speaker 6: for like three years, because you know that the Innocence Project,
35:12
Speaker 6: the students come in and they work on the cases
35:15
Speaker 6: and they try and find the evidence. So in nineteen
35:18
Speaker 6: ninety seven, Barry had an attorney in Boston file emotion
35:22
Speaker 6: for DNA testing in front of my sentence and judge
35:26
Speaker 6: who denied it without a hearing, like had denied everything
35:28
Speaker 6: else without a hearing. So at that time I was hopeless.
35:33
Speaker 6: You know, I made peace with myself that I was
35:36
Speaker 6: going to die in prison as an innocent man. And
35:39
Speaker 6: then out of the blue, a reporter from the Boston
35:43
Speaker 6: Globe named John Elleman asked if he could come interview me,
35:47
Speaker 6: so just as a piece of hope. So I said, yeah, okay,
35:51
Speaker 6: you can interview me. And we started talking about it,
35:56
Speaker 6: and finally I said to him, I said, who's saying?
36:00
Speaker 6: He goes, oh, you know who sent me. I says, no,
36:02
Speaker 6: I don't, and he says, well, I was at Boston
36:06
Speaker 6: Superior Court and I saw J. W. Connie. Now this
36:09
Speaker 6: is the person who prosecuted me back in nineteen eighty four,
36:13
Speaker 6: and I said, Jay, you know, give me someone to
36:16
Speaker 6: do an article on He goes, Now, at this time,
36:20
Speaker 6: Jay was a private attorney, and he had represented the
36:23
Speaker 6: guy who shot up an abortion clinic in Boston and
36:26
Speaker 6: another guy who killed his wife. And he says, I'll
36:30
Speaker 6: tell you what if I believe this is right, and
36:34
Speaker 6: you do the article on this guy, you may get
36:35
Speaker 6: a Pulitzer prize out of it. So he sent him
36:41
Speaker 6: to interview me, and so we were talking and he says,
36:45
Speaker 6: here's a piece of news I'm going to give you.
36:47
Speaker 6: Your judge's retiring in six months. The day he retired,
36:53
Speaker 6: I called the New York Innocence Project and asked if
36:58
Speaker 6: they could help me again, and he said, I really
37:01
Speaker 6: shouldn't take this phone call, but I will. What you
37:04
Speaker 6: need to do is contact the New England Innosence Project
37:07
Speaker 6: at Testa, Herroitz and Tebow. So I did that, and
37:11
Speaker 6: I contacted Neepe and they sent me the twenty six
37:15
Speaker 6: page questionnaire, which I had to fill out again. And
37:18
Speaker 6: then they asked me for all my things I've ever filed,
37:22
Speaker 6: so I got to send them another twelve hundred pages
37:24
Speaker 6: of stuff. And then all of a sudden, the lawyer
37:27
Speaker 6: shows up and well, I heading back to the walk
37:30
Speaker 6: and the lawyer says, may her, you haven't an attorney
37:32
Speaker 6: visit He said, I haven't had an attorney in fifteen
37:36
Speaker 6: sixteen years. He says, well you do now. So I
37:41
Speaker 6: went up and I met with Elisa Kaplan and Karen Burns.
37:46
Speaker 6: As you can imagine. I was quite emotional because this
37:49
Speaker 6: is my hopes and dreams coming together. And so we
37:54
Speaker 6: start talking and introducing ourselves and then Eliza says to me,
37:59
Speaker 6: who's the copp the traps. I don't know why. She says, well,
38:02
Speaker 6: when we came in, he asked who we were. We
38:05
Speaker 6: told him Elisa Kaplan and Karen Burns. He goes, where
38:08
Speaker 6: are you from? And we said the New England Innocence
38:10
Speaker 6: Project and he goes, who are you here to see?
38:13
Speaker 6: And they said Dennis Mayor, And the god said it's
38:17
Speaker 6: about time. If anyone in here was innocent, it's Dennis.
38:23
Speaker 6: So that was her introduction to me. So they accepted
38:39
Speaker 6: the case and they start looking for evidance and Karen's
38:42
Speaker 6: calling the courthouse and she's calling the police station. They
38:45
Speaker 6: tell him that the evidence has been destroyed or lost.
38:48
Speaker 6: She says, well, do you have records of this being
38:50
Speaker 6: destroyed a lost? And they said no. So Karen got
38:53
Speaker 6: really frustrated at Cambridge Courthouse and she went knocking on
38:58
Speaker 6: doors asking for help, and she found a clerk to
39:02
Speaker 6: help her. Now, this clerk went down into the evidence
39:04
Speaker 6: room and found the evidence. And so Eliza calls me
39:08
Speaker 6: and says, we found the evidence. And she says, well,
39:14
Speaker 6: you're not too excited. I says, well, I've had so
39:16
Speaker 6: many downs that if something really good happens, then I'll
39:20
Speaker 6: get excited. But we're sending it to doctor Blake out
39:23
Speaker 6: in California, who's one of the foremost forensic scientists in
39:26
Speaker 6: the country, but he's not accepted by the government because
39:31
Speaker 6: he hates the government. And so they sent that to him.
39:35
Speaker 6: And then they came in to take my blood. So
39:36
Speaker 6: they bring me down to HSU and they start talking
39:39
Speaker 6: to me, and then in walks someone from the DA's office,
39:43
Speaker 6: someone from the AG's office, an attorney for me, Karen Burns,
39:48
Speaker 6: the superintendent of the prison, in a perimeterive security people
39:52
Speaker 6: in a phlebotomus. So they did the chain of evidence.
39:56
Speaker 6: They took my blood, took pictures of it, took a
39:58
Speaker 6: mouth swab, took pictures of that, handed the evidence to
40:01
Speaker 6: a state trooper who went back to the police lab,
40:04
Speaker 6: handed it to the chemist who got on a plane
40:06
Speaker 6: and hand delivered it to doctor Blake because she didn't
40:09
Speaker 6: want to do the testing because the evidence was so
40:12
Speaker 6: old and the Lowell cases and so now I have
40:16
Speaker 6: to wait so on Christmas Eve two thousand and two,
40:21
Speaker 6: Eliza said to call her. So I called her. Now
40:24
Speaker 6: she had moved from the New England Innocence Project to
40:26
Speaker 6: New York. I called her about twenty five times and
40:29
Speaker 6: there was no answer, and so I went outside to
40:33
Speaker 6: cool off, you know, because she told me to call
40:35
Speaker 6: her on Christmas Eve. And so I went back in
40:38
Speaker 6: and the block office says, may her call your attorney.
40:41
Speaker 6: I said, I've been calling her all day. So finally
40:44
Speaker 6: I call her and I get a hold of her
40:46
Speaker 6: and I said, where have you been. She says, oh,
40:48
Speaker 6: we were out celebrating. I said, why, She goes, we
40:52
Speaker 6: got two test results back today and the DNA's didn't match.
40:56
Speaker 6: But they had to talk to the victims because they
41:00
Speaker 6: had to find out if the victim had sex with
41:02
Speaker 6: their boyfriend or whatever the night before. So now Matha
41:06
Speaker 6: Cockley's got to go talk to the victim after nineteen
41:09
Speaker 6: years until her she may have sent an innocent man
41:11
Speaker 6: to prison. So they went and talked and she was
41:15
Speaker 6: freaked out, which I don't blame it. You know, nineteen
41:18
Speaker 6: years you on top of being raped, now you're being
41:21
Speaker 6: told you may have sent an innocent and to prison.
41:23
Speaker 6: That's got to be devastating. So they went and saw
41:26
Speaker 6: her a second tang and she was still freaked out,
41:31
Speaker 6: but she gave him permission to get the hospital wreckage,
41:33
Speaker 6: which can only be gotten through a court order or
41:35
Speaker 6: permission from the victim. So they gave her a permission
41:38
Speaker 6: and that ended up that she was a virgin when
41:41
Speaker 6: she was raped. So now I'm cleared of the Lowell cases.
41:45
Speaker 6: My twenty to thirtyer sentence is going to be gone,
41:48
Speaker 6: and I have the air case. So they start looking
41:51
Speaker 6: for the air evidence and they're getting the same run around.
41:54
Speaker 6: We don't know where the evidence is. The evidence has
41:57
Speaker 6: been destroyed, the evidence has been lost. So Matha Cokeley
42:01
Speaker 6: called Elizer and said, do you want to make a deal.
42:03
Speaker 6: We'll give them time served, and Eliza says no and
42:07
Speaker 6: had some choice words for Matha Cochley that we're going
42:10
Speaker 6: to prove he's innocent. And all of a sudden, a
42:14
Speaker 6: slide shows up on Matha Cochley's desk from the case
42:17
Speaker 6: that they've been looking for. So they sent the slide
42:20
Speaker 6: to Maryland to be tested. So I called Eliza on
42:23
Speaker 6: April Fool's Day and I says hi and she says,
42:29
Speaker 6: when do you want to go home? This is April
42:32
Speaker 6: Fool's Day.
42:35
Speaker 7: Yeah, the universe has a strange sense of humor, so
42:37
Speaker 7: go ahead.
42:39
Speaker 6: She says, no, when do you want to go home?
42:43
Speaker 6: The test came back and they were two different DNAs
42:45
Speaker 6: on it, and neither one of them was yours. I says, wow.
42:49
Speaker 6: I says, well, you better make it Thursday because it's
42:52
Speaker 6: going to take my parents at least a day to adjust.
42:55
Speaker 6: And so I called my parents and told them. My
42:58
Speaker 6: mother says, I'm not going to be in the car room.
43:00
Speaker 6: So I called back later on and she says, I
43:02
Speaker 6: might be in the court room. And then I called
43:05
Speaker 6: her the night before I was going to court and said,
43:08
Speaker 6: and she goes, I'll be there. So on April third,
43:11
Speaker 6: two thousand and three, I got my last strip search
43:14
Speaker 6: went to Cambridge Courthouse in Boston. Now this Zakembridge had
43:17
Speaker 6: just opened. Traffic was a nightmare because all the roads
43:20
Speaker 6: were dirt and everything else. We get to the courthouse.
43:23
Speaker 6: They put me in a two man cell and they
43:25
Speaker 6: had the tank on the right side, and there's a
43:28
Speaker 6: guy in there whining ned he's getting a three to five.
43:31
Speaker 6: So I told him, well, we just shut up. I'm
43:34
Speaker 6: going home after doing nineteen years and I'm proven innocent.
43:36
Speaker 6: I never heard another peep out of her. So I
43:39
Speaker 6: went up to the courtroom. Aliza reads her motion. I
43:42
Speaker 6: had told her, I said, you need to file a
43:43
Speaker 6: motion to get rid of the civil sentence. She says why,
43:47
Speaker 6: I said, just do it. So she files all the motions.
43:50
Speaker 6: Martha Cokeley says we're not going to oppose this, and
43:53
Speaker 6: Judge says, all I have to do is sign this
43:56
Speaker 6: and he can go home. And he said yeah. She says,
43:59
Speaker 6: well I'm signing he can leave. So I went back in.
44:01
Speaker 6: They took the ankle chains off, they took the waist
44:04
Speaker 6: chains off, and they let me go. I walked out
44:07
Speaker 6: the first door and met with my parents, went to
44:10
Speaker 6: the second door and met with my brothers and friends.
44:12
Speaker 6: Walked out the third door into five TV cameras, about
44:16
Speaker 6: fifteen microphones, and of course their first question was how
44:19
Speaker 6: do you feel? You want to say, how do you
44:21
Speaker 6: think I feel? And here comes a leizer and she says, well,
44:27
Speaker 6: there's going to be a press conference at Tester Hurwitz
44:29
Speaker 6: and Tbow at noontime and we'll see us all there.
44:32
Speaker 6: And then I as I was leaving the Senior Court office,
44:36
Speaker 6: comes over and says, JW. Connie would like to speak
44:38
Speaker 6: with you.
44:40
Speaker 1: That's the prosecutor.
44:41
Speaker 6: Yeah, the former prosecutor. And so we met in the
44:43
Speaker 6: hallway and he apologized and asked for forgiveness. So I
44:51
Speaker 6: forgave him, which had a huge effect on me because
44:58
Speaker 6: I'm not angry, you know, I'm not bitter. Afterwards, Jay
45:03
Speaker 6: told me that if I didn't forgive him, he might
45:05
Speaker 6: have stopped being a lawyer, and it still affects him
45:09
Speaker 6: to this day because he told me he was in
45:12
Speaker 6: his office one day and Barryshak called him and said,
45:15
Speaker 6: Dennis May has just been clad and lowell. He said,
45:19
Speaker 6: So I sat at my desk and cried, and he
45:23
Speaker 6: told me that he called him again and said, Dennis
45:26
Speaker 6: May has gone home Thursday. What I didn't know is
45:30
Speaker 6: that before I got there, he went and apologized to
45:34
Speaker 6: my parents and my brothers, which was my brother is
45:42
Speaker 6: still angry. And that's when I went home.
45:46
Speaker 7: Alex, it's hard to say anything after hearing that story,
45:49
Speaker 7: But since we have you here, you can't get a
45:53
Speaker 7: better spokesman for the cause than Dennis. For people listening,
45:57
Speaker 7: what kind of insight can you bring.
46:00
Speaker 2: I mean, I guess I'll start at the end, which
46:01
Speaker 2: is with the prosecutor. You know, I think this is
46:03
Speaker 2: a very good case example, because I think we've become
46:06
Speaker 2: too focused on the rogue actor, or focusing on that
46:10
Speaker 2: there are bad players in the system, because.
46:13
Speaker 3: Those variables affect all systems and all walks of life.
46:17
Speaker 2: The prosecutor in this case clearly did the honorable thing,
46:20
Speaker 2: and I think that prosecutors by and large are honorable
46:24
Speaker 2: and are trying to do the right thing. And if
46:25
Speaker 2: you start with that premise rather than the premise of
46:28
Speaker 2: this is good versus evil in one direction or another,
46:32
Speaker 2: you start to be able to unwind. Where are the
46:34
Speaker 2: implicit biases in the system, Where are the false positives?
46:38
Speaker 3: Where are the errors?
46:39
Speaker 2: And this is a good example of that because I
46:41
Speaker 2: don't think he, knowing what I know, did this on purpose.
46:44
Speaker 2: And if you can get past that, I think you
46:46
Speaker 2: can look at it with a deeper lens. My other reaction,
46:49
Speaker 2: initial reaction is this man is a hero, and that
46:52
Speaker 2: the work that the Innocence Project is remarkable not just
46:56
Speaker 2: for setting people free, but because it creates a system
46:59
Speaker 2: of t and balances and creates good law and creates
47:03
Speaker 2: people asking the hard questions. But then at the end
47:05
Speaker 2: of the day, I go back to being a trial lawyer,
47:07
Speaker 2: and I look at the facts of this case, and
47:10
Speaker 2: there's only DNA in so many cases, and only so
47:12
Speaker 2: many letters get read, and only so many people can
47:14
Speaker 2: get exonerated. If everybody in the first instance would fight
47:19
Speaker 2: smart and hard for everybody accused of crimes, I think
47:22
Speaker 2: that that would create the best checks in the system.
47:25
Speaker 3: And you know, hearing this case and.
47:27
Speaker 2: Going back, and I'll start with the man that mister
47:30
Speaker 2: Mayor is. You know, he's You can just tell that
47:32
Speaker 2: he's a good person by being around him. And he
47:34
Speaker 2: was a family man at the time, still living with
47:36
Speaker 2: his parents when most twenty year olds weren't. He was
47:39
Speaker 2: a soldier when most of us wouldn't be. He had
47:42
Speaker 2: never been in trouble before when many of us had been.
47:45
Speaker 2: And I don't know if the story of him as
47:47
Speaker 2: a person was told, because when you think about it,
47:50
Speaker 2: he makes an awfully unlikely suspect if you really get
47:52
Speaker 2: into his humanity, and to the lawyers defending people and
47:57
Speaker 2: advocating on the ground, you have to look at that
48:00
Speaker 2: alibi and not just throw it into a courtroom, but
48:02
Speaker 2: really firm it up, because that could have just like
48:05
Speaker 2: DNA can now essentially prove innocence because of the metaphysical
48:08
Speaker 2: comment you made earlier, and I.
48:10
Speaker 3: Would have called other soldiers.
48:12
Speaker 2: I would have impressed the fact that while Vlahm might
48:15
Speaker 2: have a meeting where he shows up around five, when
48:18
Speaker 2: military folks say that he didn't leave the base until
48:20
Speaker 2: seventeen twenty, that means five twenty, and it means precisely
48:23
Speaker 2: five to twenty.
48:24
Speaker 3: And there's probably a.
48:25
Speaker 2: Logbook that could have been used to show what time
48:28
Speaker 2: he actually physically checked out. And then the next thing
48:30
Speaker 2: you know, it's not all the resources and the tiers
48:33
Speaker 2: and the decades behind bars.
48:34
Speaker 3: It's an acquittal because he couldn't have done it.
48:37
Speaker 2: And so those are the things I focus on and
48:39
Speaker 2: that I come back to in the end.
48:41
Speaker 1: But what do we do?
48:42
Speaker 7: Because I've always said that I believe most cops are
48:46
Speaker 7: good cops, and most prosecutors are good prosecutors. But the
48:49
Speaker 7: ones that aren't they wreck a path of destruction that
48:52
Speaker 7: is wide and big and devastating to so many people.
48:56
Speaker 7: But there are a number of systemic problems, right, I mean,
48:58
Speaker 7: it's easy for us to sit here and say this
49:00
Speaker 7: is what should have been done, this is what could
49:01
Speaker 7: have been done. The system is stacked against Dennis, right,
49:05
Speaker 7: It was stacked against Dennis. It's stacked against guys like Dennis. Today.
49:09
Speaker 7: Somebody's being wrongfully convicted in America. Hopefully it's only one person, right.
49:13
Speaker 7: What can we do? What can people listening do to
49:16
Speaker 7: help prevent these things from happening, to prevent the next
49:18
Speaker 7: Dennis Mayor from ever having to go through this?
49:20
Speaker 3: To me, it all goes back to the role of
49:22
Speaker 3: the prosecutor.
49:23
Speaker 2: There are tens of thousands of NYPD officers. You're going
49:27
Speaker 2: to have good ones, you're going to have bad ones.
49:29
Speaker 2: But the office that oversees them, which is a politically
49:31
Speaker 2: accountable office, or the offices of the district attorney. And
49:35
Speaker 2: when I say politically accountable, I don't mean to suggest
49:37
Speaker 2: that any of them are doing anything wrong. It's just
49:39
Speaker 2: they are political positions, and the will of the public
49:43
Speaker 2: and what people think and concerns people have certainly do
49:47
Speaker 2: influence those offices. And those offices have to serve as
49:50
Speaker 2: checks and balances not only on the police department, but
49:53
Speaker 2: on themselves. And it's very easy to put a lot
49:57
Speaker 2: into a case. The adversary process is competitive. You do
50:00
Speaker 2: want to win, you do think you are on the
50:02
Speaker 2: right side of things, and so it's easy to get
50:04
Speaker 2: caught up on that and not pause and say, are
50:06
Speaker 2: we sure not pause, especially after a jury says he's guilty,
50:11
Speaker 2: to not go back and look at it, and it
50:13
Speaker 2: can create a wall, a wall between accountability and the prosecutors,
50:17
Speaker 2: in a wall in the person's own mind that doesn't
50:20
Speaker 2: allow them to sort of self assess and learn from
50:23
Speaker 2: these mistakes.
50:25
Speaker 7: But there's so much more awareness now. It's at a peak.
50:27
Speaker 7: Right now, we see the rise of conviction integrity units.
50:31
Speaker 7: We're starting to see some public activism in terms of
50:33
Speaker 7: throwing bad prosecutors out of office, right because ultimately you
50:37
Speaker 7: can vote, and I think that's one sort of activism
50:41
Speaker 7: that's very simple. That is before we sign off, And
50:43
Speaker 7: this is for you too, Hannah. You've spoken so eloquently
50:47
Speaker 7: and so powerfully about your experience, the tragedy, ultimately the triumph,
50:52
Speaker 7: the grace that you've shown is just sort of mind
50:56
Speaker 7: blowing to me and I'm sure to everyone who's listening.
50:58
Speaker 7: Is there anything else that either of you would like
51:01
Speaker 7: to share?
51:01
Speaker 1: With our audience.
51:03
Speaker 4: Sure, the vast majority of prosecutors and police are just human.
51:08
Speaker 4: You know, this is a human system. Like any other
51:11
Speaker 4: human system, there is going to be fault. And I
51:14
Speaker 4: find it really interesting that with other human run systems,
51:18
Speaker 4: Aviation and medicine are good examples, people expect mistakes to happen. So,
51:24
Speaker 4: you know, at a hospital, if a patient dies in
51:26
Speaker 4: somebody's care, they're going to have an M and M conference.
51:29
Speaker 4: They have all the people who worked on the case
51:31
Speaker 4: get together and they pinpoint where a mistake was made.
51:35
Speaker 4: It's not blaming, it's saying, you're a human, you did
51:37
Speaker 4: your best, something went wrong. We're going to use this
51:39
Speaker 4: as a learning moment. And because of these things, the
51:43
Speaker 4: aviation field the medical field have improved hugely. We don't
51:48
Speaker 4: really have something like that in the legal field right now.
51:51
Speaker 4: And Alex maybe you can attest to this, but that
51:53
Speaker 4: lawyers and especially people who are going to go into
51:57
Speaker 4: prosecution are told you're going to run fully convict someone.
52:01
Speaker 4: You know, they're expected somehow to not be human, to
52:04
Speaker 4: not make mistakes, and when they do make mistakes, they're
52:08
Speaker 4: often covered up. It's seen as shameful. The incentives justice
52:12
Speaker 4: is a moving target, and it's kind of an ethereal concept.
52:16
Speaker 4: Whereas a conviction is something that you can count, it
52:19
Speaker 4: actually takes a pretty rare case to have enough evidence
52:23
Speaker 4: to be really fool proof. You know, we forget that
52:25
Speaker 4: obviously it's innocent until proven guilty. A lot of people
52:28
Speaker 4: think that even if you get to the point of
52:30
Speaker 4: a trial, like they must have done something to get there.
52:33
Speaker 4: And I think the fact that most cases don't have
52:37
Speaker 4: DNA like we talked about, you know, the vast majority
52:39
Speaker 4: of wrongful convictions are probably people who are forced to
52:42
Speaker 4: take guilty please at a misdemeanor level.
52:45
Speaker 7: Right with Dennis, I don't know that there's really what
52:47
Speaker 7: could somebody add to what you've already said, but I
52:49
Speaker 7: want to turn it over to you to.
52:50
Speaker 1: Wrap up this episode of wrongful conviction.
52:53
Speaker 6: Well, for us, I want to say hi to my
52:54
Speaker 6: kids with my wife names Melissa, Joshua and Eliza. She's
53:03
Speaker 6: named after the women who got me out.
53:05
Speaker 1: Wow.
53:06
Speaker 6: What can people do to help? There are a lot
53:08
Speaker 6: of bills and there's different states that are trying to
53:11
Speaker 6: get passed. They can call the a politician, or they
53:14
Speaker 6: can go on the state house website and look up
53:16
Speaker 6: the bills and talk about that and tell them that
53:19
Speaker 6: they want to get behind it so that their senators
53:22
Speaker 6: or representatives would vote to make changes. You know, there's
53:26
Speaker 6: preserving evidence. We already changed witness identification in Massachusetts, which
53:31
Speaker 6: I was involved with, and things like that that can help.
53:34
Speaker 7: You know.
53:35
Speaker 6: I do a lot of public speaking. I speak at colleges.
53:38
Speaker 6: I'm going to go speak at a high school next week.
53:40
Speaker 7: How could people reach you if they want you to
53:41
Speaker 7: come and speak? Do you have a website? Do you
53:43
Speaker 7: have a contact that you want to share with the audience?
53:45
Speaker 4: Honestly, if you want to have dnnis come to anything,
53:48
Speaker 4: you can email me directly because I would love to
53:50
Speaker 4: make that happen.
53:51
Speaker 1: What's your email?
53:52
Speaker 4: Hiley at New England Innocence dot org.
53:56
Speaker 7: And that's ri I l e y okay, Dennis. Well,
53:59
Speaker 7: all I can say is I really appreciate you being here.
54:02
Speaker 7: Same for you Alex and Hannah. It's been an extraordinary
54:06
Speaker 7: experience being with you. All I can tell you is
54:10
Speaker 7: we'll never stop fighting. You give us just more and
54:13
Speaker 7: more inspiration from just being yourself, So keep being you.
54:23
Speaker 5: Don't forget to give us a fantastic review. Wherever you
54:26
Speaker 5: get your podcasts.
54:27
Speaker 6: It really helps.
54:28
Speaker 7: And I'm a proud donor to the Ennessis Project and
54:31
Speaker 7: I really hope you'll join me in supporting this very
54:34
Speaker 7: important cause and helping to prevent future wrongful convictions. Go
54:38
Speaker 7: to Innocenceproject dot org to learn how to donate and
54:41
Speaker 7: get involved. I'd like to thank our production team, Connor
54:44
Speaker 7: Hall and Kevin Wartis. The music in the show is
54:47
Speaker 7: by three time OSCAR nominated composer Jay Ralph. Be sure
54:51
Speaker 7: to follow us on Instagram at Wrongful Conviction and on
54:54
Speaker 7: Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason Flamm
54:58
Speaker 7: is a production of Lava for Good Podcasts and association
55:02
Speaker 7: with Signal Company Number one