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521: #521 Jason Flom with John "Divine G" Whitfield · Wrongful Conviction Podcasts

• 00:00:02 Speaker 1: On March twenty fifth, nineteen eighty eight, outside of the Brookline Housing Project, a drug deal went bad, resulting in the shooting death of a guy named Jimmy CALIBERA Soon, a notorious thief and cyrial informant named Richard Doyle ran into one of the assailants, a guy named Howard Wesley, and after their encounter, Doyle claimed that a guy who lived at the Brookline Houses named John Whitfield, also known as Divine G, was one of his shooters, and while Harold Wesley admitted his own involvement, he vehemently denied Divines, but Wesley died in jail before getting to say so at Divines trial. This is wrongful Conviction. You're listening to Wrongful Conviction. You can listen to this and all the LoVa for Good podcasts one week early and ad free by subscribing to Lava for Good Plus on Apple Podcasts. All right, welcome to a very special edition of Wrongful Conviction. And I say that in all sincerity. We have not one but two of my personal heroes here today. Jeffrey Deskovic, who's been on the show before as an exonery. Now he's back as the attorney for a man who's yet to be exonerated, but is as innocent as could be and will be exonerated with your expert help. Is that fair to say, Jeff, you're to say, Jeff Deskovic, welcome back to wrongful conviction. 00:01:38 Speaker 2: Thank you very much. And I do want to share that I do represent the Vine also in collaboration with Oscar Michelin. 00:01:44 Speaker 1: And that's ironic that as other lawyers named Oscar because the Vine was just nominated for an Oscar for his film Sing Sing, So he's got Oscar covered in every direction. Were you actually nominated for an Oscar or the film was nominated? 00:01:57 Speaker 3: No, I was nominated for Adaptive screen Well that's why I went to the Oscars. You can't go to the Oscars unless you're nominated, right, specifically, Yeah, sat next to Ray find during the class photos. 00:02:08 Speaker 4: It's incredible. 00:02:09 Speaker 1: I mean, this man is just different. Twenty five years in prison, Oscar nominated, accomplished author, playwright. I mean he's a healer, right, I mean, this is a guy who brought peace to a place that desperately needed it through creativity. Divine is out shopping a number of new screenplays that he's written. All of us are looking forward to seeing where you go next, because this guy is truly the limit. Sorry if I'm embarrassing you right now, but Divine, I'm just really honored that you're here on our show. 00:02:39 Speaker 4: I'm honored to be here, man, thank you for inviting me. And this is a New York story. You were born in New York, right like me? 00:02:46 Speaker 3: Absolutely, East New York is where I actually was born and had lived in Kanas and Brownsville. 00:02:53 Speaker 4: I'm a Brooklyn Night one hundred percent. 00:02:55 Speaker 1: And you grew up in a time when New York, especially in those areas, was experiencing a lot of turmoil. But you, somehow or other, even back then, were working on developing your artistic side. Right, Can you can tell us a little bit about growing up in your teenage years and what that was all like before everything went off the rails. 00:03:15 Speaker 3: I was kind of like a good kid. I was one of them adventurous kids. I was all into really positive and productive things. And I was around about eleven twelve years old. I was so fascinated with Bruce Lee. I used to make eight millimeters karate movies. Me and my friend Frank Johnson, we used to make these karate movies in charge our friends like a quarter a dollar. That was an early state of my artistic energy. And then I eventually started dancing. I became a really efficient dancer. I actually I was recruited by a dance group called Realism, and it was a semi professional group. I appeared on television with Stephanie Mills. Y'all probably may remember the show called Soap Factory Disco. 00:03:54 Speaker 4: In nineteen seventy nine. It was an old show. 00:03:57 Speaker 3: I appeared on two episodes with Stephanie Mills when she was singing her song put Your Body in It. 00:04:02 Speaker 4: I did shows with Neil. 00:04:04 Speaker 3: Ward, Instant Funk, and a variety of other popular groups, and I was pretty good at dancing. 00:04:10 Speaker 4: Then. 00:04:10 Speaker 3: At that time I also became a DJ and eventually became probably one of Brookline's most famous DJs. It was a group I had called mix Machine. Actually in the movie sing scene they mentioned it. Coleman Domingo says, yeah, they used to call me mix Machine, and they mentioned that name several times. And because of the dancing, eventually I went to High School Performing Arts, and for those who know high School Performing Arts, that's the fame school, the famous Fame. 00:04:36 Speaker 4: School from the movie Fan Yeah, from the movie Fame. 00:04:39 Speaker 3: They filmed it in that particular school where I was at. I really wanted to go there for acting, so I got in with dance and I wanted to switch over to acting. But eventually I left high school performing arts. I just couldn't deal with all of the teasing, the bullying, and I wasn't the type of person who really respond well to abuse. I mean, I knew martial arts, I got into a lot of so eventually I moved on and went to Kanarsi High School, where I ultimately graduated. 00:05:06 Speaker 4: While all that was going on, I. 00:05:08 Speaker 3: Always kept a after school job, worked on the weekends because as a DJ, I needed money to buy the records, to buy the equipment, to keep things updated. That was basically my life before my life, like you said, went off the rails. And then I got into this accident. It was severe, woke up in the hospital. It was really damaged pretty bad. I couldn't work, and eventually I even tried to go back to work. I started delivering pizzas. I was Abdomino's pizza delivery boy, and eventually I had to quit that job because of the injuries. It was so much on me and the doctors telling them, you can't work. My lawyer's telling me, you can't work. You gotta let these injuries heal. Time go by, I couldn't get unemployment, I couldn't get certain monies, and then I made probably the biggest mistake of my life. 00:05:52 Speaker 4: All my friends was in the game. 00:05:54 Speaker 3: Hustling out in the street, and I was always able to avoid it. But after that accident, I said, you know, when I'm a sneak, out sell some drugs, and it backfired on me. I didn't last two weeks on the streets because I had no idea what I was doing. I had copped out to the drug possession. I went up state for one to three and out of the clear blue Scott They brought me back down the Riker's Allen and recharged me for a homicide, a homicide I had absolutely nothing to do with. 00:06:19 Speaker 1: It was about two months before Divine began his one to three year bid for possession that this homicide had occurred on March twenty fifth, nineteen eighty eight, somewhere along the stretch of one hundred and eighth Street that ran through the Brookline Projects and much of what we know comes from a recorded statement with one of the assailants, a guy named Harold Wesley. 00:06:38 Speaker 3: From what I understand, it was a drug deal gone bad. It was between Shatik, Harold Wesley, an individual named Patrick, and this guy named Jim. Harold Wesley calls him Jim Carabella, but his actual name, according to the police reports, was Rudolph MIGLARISI. What happened is the old Shatique drugs or something, and Shatik wanted to drug ugs or the money, and they started arguing over it, and Shatig says that he pulls the gun, shoots him in the head, and then he made Patrick stand there and pull the trigger. Then they run and Harold Wessey says that he sees a woman who was dressed in some sort of green coat or something. That was Marjorie Shack, whom he says she lived in that building on the third floor. 00:07:20 Speaker 1: Divine only found out about this recording and Marjorie Shack long after he had been convicted. 00:07:26 Speaker 4: Come to find out. 00:07:27 Speaker 3: We eventually tracked her down and Marjorie Shack also confirms that she told the. 00:07:32 Speaker 4: Police it wasn't me. 00:07:33 Speaker 3: The police kept showing up pictures of me trying to convince her that it was me, and she said, no, it's not him, it's not him. The night that had happened, I was across town at my stepfather's house over there on Buffalo Avenue, and that night I remember coming in and because the crime happened in the back of my building, I've seen all the police ropes and police cars in the back of my building, so obviously I knew something happened. Next day, I'm hearing rumors in the neighborhood. Yo, some guys from out of the neighborhood shots guy in the back of the building. 00:08:01 Speaker 1: So the neighborhood was buzzing. But it doesn't appear that anyone cooperated until Harold Wesley had a run in with police that June. 00:08:10 Speaker 3: Harold Wesley had got arrested for possession of drugs, a shotgun and the weed, and when the police pulled him over, he was about to have a shootout with the police. Somehow the shootout was avoided. Howld Wessey goes in custody. Now he wants to cut a deal with the Feds. So now atf steps in and this is how the audio tape came about. He's on this audio tape trying to cut this deal with the Feds, and now this guy starts talking about every crime and everything he knew in the neighborhood. And he's jumping all over the place too. He's not focusing on one thing. He's talking about this thing. Then he jumps to this, then he jumps from here. He's jumping from there, and it's kind of discombobulated when you read the tape. And onside one of the tape he mentions me he's mentioned me about a conflict with drugs, had been with some guy named R and Jr. That he was trying to get me to pay him to deal with JR and R. So somehow the police thought that he was saying that the JR and R was Jim Carabella. 00:09:14 Speaker 4: So they got that whole thing all screwed up. 00:09:17 Speaker 3: So by the time you get to side to of the tape, you can see that they're confused. See, the police already knew that it was Shatique and Patrick that did it, so they confirmed that. But then he said, well then what about Divine, Well did Divine order it? And then Harold West They cleared it up conclusively. By the end of the tape, he said, no, Divine didn't order it. Even he was getting frustrated with ATF agent. His name is Bob Hamilton. He was getting really frustrated with him, like, well, why you keep bringing up this divine character when I'm talking about something else. 00:09:50 Speaker 1: And while this recording happened and Wesley was in custody, a guy named Richard Doyle and his friend Scott Bell were arrested for burglarizing the home of someone named mar Sigliano as for a possession of crack. And Doyle knew Divine from the projects, but they never got along, so that's a bit of bad luck. When Doyle ran into Harold Wesley. 00:10:10 Speaker 3: Richard Doyle saw Harold Wesley's shatik in the ballpins, and because they knew each other, they started talking. Now, I guess what Shatik must have told him. Yo, They must have thinked, this is the vine, because you can see on the tape that they actually kept pressing Harold, that kept mentioning my name, and Harold kept telling him no, not the vine, not the vine. Then Richard Doyle came to Scott Belly and said, yo, listen, I got a way for us to get out, we can say we saw Devine did this crime. 00:10:40 Speaker 2: Richard Doyle got the idea that he was going to get both of them out of jail by falsely implicating Divine for a homicide. 00:10:46 Speaker 3: Because Richard Doyle is a professional informant, He's been doing this for a while. He testified in Pencil and Jeffrey's case, he testified and Gary Reedy's case, but he testified in multiple cases. 00:10:56 Speaker 4: So he has a history of this and he knows that if you. 00:10:59 Speaker 3: Come up with this type of information that prosecutors love you for this and you can get out of jail. So Scott Bello says, no, I'm not doing that, No, I'm not doing that. So Richard Doyle goes on about his business and Scott Belli sees him talking to a man in a suit and the next thing you know, they walking out of prison. Then, after Richard Doyle gets out a week later, miraculously, he goes to the police station claiming to be an eye witness to this. 00:11:24 Speaker 1: So, on the strength of this serial informants word, Divine was transferred from Upstate to Rikers to face this homicide charge, even though Harold Wesley had already cleared his name. 00:11:35 Speaker 3: The minute I went on Rikers Island, like about three days later, he committed suicide in Brooklyn House of Detention. Well, they say he committed suicide. I did a four year request and got all of the documents. They said that they found him with the rope that allegedly hung him under his mattress. So in essence, he hung himself, took the rope off his neck and put it under his mattress. 00:11:57 Speaker 4: So you figure that out. 00:11:59 Speaker 1: But like I said, I didn't even know about Harold was the or this confession tape until after his conviction, let alone what he was about to face a trial. 00:12:07 Speaker 4: I didn't know who actually was accusing me of it. And to the day of trial. 00:12:12 Speaker 3: It was a tactic that they used called trial by ambush. 00:12:15 Speaker 4: They would hide. 00:12:16 Speaker 3: All of the evidence from you and then on a day of trial they come in there with a two foot stack of documents and say here. And that's when I discovered that it was this notorious crackhead. I mean, he was the crackhead extraordinary in Brookline projects and he accused me of this homicide. 00:12:33 Speaker 2: And here's where discovery laws being inadequate before, which is why we're fighting to try to maintain them now comes into play. Okay, because this tape that Divine has mentioned, the tape went missing many years later they claimed it was missing. But if it had been automatic discovery right away, very early in the process, then Divine's lawyer could have had that tape, It could have used that at the trial and almost certainly would have gotten an acquittal. 00:12:58 Speaker 4: Absolutely. 00:13:00 Speaker 1: Discovery laws in New York changed from trial by ambush to automatic discovery in twenty twenty, and right now various nefarious forces are working to repeal this vital reform. They want to take us back to an era when a request for discovery was both over and underwhelming. As Divine described, a defendant would literally receive a volume of documents that would be near impossible or impossible even to digest on the eve of or during trial. But also the prosecutor would get to decide what was going to be given to the defense. Right. I mean, it's the wolf guarding the henhouse, and I don't have to tell our audience what a Brady violation is. And in Divine's case, that meant Carol Wesley's confession, any mention of Marjorie Shack or the deal made with Richard Doyle, who claimed that he'd witness Wesley and Divine shoot MILLIASI under a street lamp from thirty five feet away, and then he'd run to a nearby stay order to retrieve receipts for some unknown reason, and returned to the scene with a store clerk named Wayne Harris. 00:14:06 Speaker 2: And Wayne Harris says, no, I never saw him that night, But in terms of his credibility here in this case, there's three provable lies. There's another twelve very likely lies. 00:14:17 Speaker 1: Doyle testified that his burglary charges had been dismissed before he'd come forward because the burglary victim's nephew, sal Mar Sigliano, had directed he and Scott Bell to do it. He also testified that he'd received no benefit for his testimony, even though it was later discovered that the burglary charge was pending through his grand jury testimony, as well as an armed robbery charge in Nassau County that also just poof went away. He also said that after he'd gotten out of jail in June of eighty eight, that he was approached by armed men who he didn't know, implying possible witness tampering, but according to police reports written by the lead detective, Robert Lincoln, he knew who that armed person was and was unrelated to this case. Doyle also claimed to have been sober for months, but on the night he been arrested, one of the charges was for possession of crack. In addition to Doyle, the jury heard from the medical examiner about the cause of death, Harold Wesley's arresting officer about the gun he found in Wesley's trunk, and then a ballistic expert linked that gun to bullets recovered from the scene. 00:15:20 Speaker 2: The whole case against the Vines is based on this one and formant the trial judge, you know, Judge Edgido at the sentencing even says that this whole case just comes down to Richard Doyle's credibility. 00:15:31 Speaker 4: He said, without Richard Doyle, there was no case. 00:15:34 Speaker 1: And you end up getting sentenced to concurrent terms right of twenty five years to life, five to fifteen years, and two to a third to seven years. 00:15:46 Speaker 3: I mean, listen, man, it's a nightmare beyond description. You know when they read it out, you know, the whole courtroom exploded. I exploded, you know I didn't do it, screaming it was just a nightmare. 00:15:58 Speaker 4: I couldn't believe it. 00:16:00 Speaker 3: Family was crying, I was crying. It was just the shark of all sharks. At the time in Clinton, Attica, green Haven, that was a very racist jail. They got active clanmen in Greenhn and at the time in Auburn. 00:16:30 Speaker 4: I did my rounds. 00:16:31 Speaker 3: But when I got to Sing Sing Sing Sing was terrible too because they had a lot of drug wars, a lot of gang violence, a lot of just a lot. 00:16:39 Speaker 4: Of prisons are just violent, period. 00:16:41 Speaker 3: But when I got to Sing Sing, it was a blessing in disguise because Sing Sing is close to the city, so they were more acclimated to have programs and people were more able from the city to come up to the jails. So I seen it as an opportunity. I was on an all out mission. Being sentenced to twenty five years to life can bring something to you that you don't even know that you got waking up every morning into a nightmare. When you go to sleep, you out of the nightmare, you dreaming you free, and then you wake up. 00:17:12 Speaker 4: It was like every morning, Uh, here go this nightmare again. Here we go again. 00:17:16 Speaker 3: So that gave me that fire. I got into the NAACPA. I eventually went to college, eventually got a master's degree, started. 00:17:24 Speaker 4: RTA and rehabilitation through RTA is rehabilitation through the arts. You know. 00:17:29 Speaker 3: It was just a lot going on, and I became a jail house lawyer man that was very efficient. 00:17:35 Speaker 4: I learned how to do motions. 00:17:36 Speaker 3: I learned how to do this because at that point I knew that my entire life depended on me finding a way to do it. And I'm not rich. I'm a poor person. My family's poor. We don't have lawyers, we don't have money for that. So I went in that lawyer liberry and I learned, and ultimately I do legal writing. I ended up becoming a very efficient novelist writer because I said, once the court thought rubber stamping it, I said, I gotta come up with some kind of way to fight this. 00:18:03 Speaker 4: Well writing, what can I do? I can write, and ultimately my. 00:18:07 Speaker 3: Memoir The Whitfield Files, won a National Writing Award. 00:18:10 Speaker 4: It's a Pen award, right, Yeah, there's a Pen Award. 00:18:13 Speaker 1: In addition to his Oscar nomination, Divine won the prestigious Pan Award four count of four times. So we're gonna link all of that in the episode description. He was and still is stunningly prolific. 00:18:26 Speaker 3: It shocked me at times when I sat back and realized one time, I wrote three novels in one year, did a four to forty article seventy eight, and was running RTA, and was the president of the NAACP sponsoring culture war in his classes Black History Month classes GED classes. People used to ask how do you do it? And one of the ways I used to do it. I had a meticulous checklist system. Every year I would write out what I'm gonna do for this year, and then every month I would break them down into months, a checklist in months, and then a checkliss in weeks, and a checklist in days, and every day I would check off those. So every day of my life that was living, breathing. It was about doing something. If there was a moment I wasn't doing something, was it was misery. It was like I lived by just staying proactive and moving. 00:19:18 Speaker 1: And he brought that drive and organizational prowess to his appellate fight as a pro say litigant, meaning he was on his own without an attorney, and after his initial appeals were denied, his first post conviction motion, known as a four to forty in New York, was based on Doyle's perjured testimony that his burglary charges had been dismissed before he even spoke to police about this, and that he'd received no benefit. But Divine found out that Doyle's charges hadn't been dismissed until after his grand jury testimony. This was a Brady violation as well as false testimony, and in addition, Scott Bell gave an affidavit about Doyle's plan to falsely accused Divine who he didn't like, to get their charges dismissed, and there was also an affidavit from the burglary victim, Salmar Sigliano about how he tried to press charges but nothing ever materialized. Yet somehow, the motion was denied in nineteen ninety six, so Divine moved on to federal habeas and filed a Foyer request with the King County DA, which turned up a disclosure for him that mentioned a tape. 00:20:20 Speaker 3: When I finally realized that there was a tape, they adamantly insist that there was no tape that exists. I did an article seventy eight to try to compel them Finally, a judge in King's County said, you either have to produce that tape or you're going to have to do a very detailed APPI dated explaining why this tape doesn't exist. These documents says that this tape exists. I eventually had to do a motion to have him held in contempt the court. I was doing all of this pro say, and the judge granted it. 00:20:51 Speaker 4: Then and only then did all. 00:20:54 Speaker 3: Of a sudden, out of the clear blue sky the mailman that does the mail, the mail officer comes to my gate with a tape and lays it here and have me signed for it. 00:21:02 Speaker 4: I'm like, wow, so they did have the tape. 00:21:05 Speaker 3: They lied to The judge kept telling the no tape exists, No tape exists. Yah, this is nothing, and I'm looking and then we finally, when I listened to the tape, I said, I see why they did this. 00:21:18 Speaker 2: Day Harold Wesley, when he was being questioned by the HF, he mentioned that he did the crime with Patrick from Queen's Divines from Brooklyn. His name's not Patrick. 00:21:28 Speaker 3: I couldn't sleep for three days after listening to this tape, shocked by the fact that these people had this tape in their possession, with this man telling them I wasn't a shooter and I didn't order it. So that's what turns this case until a grecious misconduct. You're listening to this tape. This man is exonerating me, and you're hiding it, and this is malicious. 00:21:50 Speaker 1: So they had that tape, and they had every reason to believe that they should go look for this guy Patrick. Of course, from the very beginning, did they know Patrick's identity or just Patrick from Queen's. 00:22:01 Speaker 3: Nobody was able to track them down. I mean, that's the full extent of what we know Patrick from Queens. 00:22:07 Speaker 1: At this point, Divine pursued a success of four forty with Brady material that would have definitely changed the verdict. It should have been a slam dunk, but it was inexplicably denied, as was his amended federal habeas and a slough of successive four forties. But Divine was able to put the demoralizing legal system in the background, not only for himself but for others as well, when he co founded what turned out to be the subject of his OSCAR nominated screenplay, And of course I'm referring to RTA or rehabilitation through the arts. 00:22:40 Speaker 3: One of the things that I vowed that if I got to stay here in this place, I'm gonna find every way in my powers to make sure that any and everybody that I can touch make sure that they get out and don't come back. 00:22:52 Speaker 4: I'm gonna find a way. 00:22:53 Speaker 3: To strip the system of the thing that they needed most. That was kind of like my fire, like, if I can help them, these guys stay out because Gods was coming back and it was hurting me. It was like, Wow, I'm trying so hard to get out of this place, and so you guys are coming right back. So that was the creation of RTA, finding a way to make sure that when these guys got out, they stayed out. 00:23:15 Speaker 1: And our audience will recall hearing about RTA from Jermaine Archer, Eric Clisson, Johnny and Capier JJ Velasquez JJ, who actually plays himself in the Oscar nominated film Sing Sing. It's a theater group in the most unlikely place, a maximum security prison where guys have to do more than just wear a tough face to survive. 00:23:36 Speaker 4: I saw the power of art. 00:23:38 Speaker 3: You got to remember, like I explained to you earlier, I've been in entertainer, My Whole Life, movies, dancing on TV DJ. 00:23:45 Speaker 4: And the whole work. 00:23:46 Speaker 3: So arts are what I describe as an explosive expression of humanity. It has this amazing way of allowing people to relax and to be comfortable with each other, to sometimes take the mass off. 00:24:01 Speaker 4: It wasn't easy. Now they don't think it was a walk in the park. But we had a strong steering committee, the founders of this program. We had some good guys and we will shout them out, which man. 00:24:10 Speaker 3: Dino Belaud, David Wayne Peto, Shorty King, Herm. 00:24:17 Speaker 4: You know, this is just quite a few, It's a few more. 00:24:19 Speaker 3: It was we had a strong network of good, solid people that were well respected in the system. So when you've seen a guy like Diano or Blaud or Shorty King and me update, they're like, wow, these guys was walking the yards of Attica and Clinton and these guys as stand up dudes, And it would give other people permission to say, damn, if they can do it, we want to do it because subconsciously a lot of people really want to do like things that's open, and we give them permission to explore. 00:24:51 Speaker 4: Then in our program, since it's about. 00:24:53 Speaker 3: Healing, it's about brotherhood, it's about camaraderie. 00:24:57 Speaker 4: When you came in, we kind of. 00:24:59 Speaker 3: Prepped you that, bruh, you're gonna be dealing with some unfamiliar behavior around here because you're gonna have to open up. We're gonna have to learn how to work with each other. And once we've built it into the program, it just started to blossom and work. And one of the criterias that we always had that was built into the program is that if anybody leaves Sing Sing, go start it up wherever you go. We want to share it with as many people as we can. And we got like eight different facilities with RTA, and now it's expanded all the way to Ohio and in California based. 00:25:33 Speaker 4: On the movie, so it's expanded. 00:25:35 Speaker 3: We really would love to have this thing available all across the country if it was up to me. 00:25:40 Speaker 1: And what have been the results of this program in terms of violence and recidivism. 00:25:45 Speaker 3: Listen, RTA has a recidivism level of three percent in comparison to sixty percent of the national average of prisoners who leave and don't get this type of program or this type of involvement. Sixty percent of them come back with than three years. So I think RTA gave certain segments of society something to live for, because when they wanted to get into RTA, we used to kind of tell them, Okay, you got to stay out of trouble for this amount of time, and we would give them an incentive they want to stay out of trouble. 00:26:16 Speaker 1: Three recentivism made I want to just let that linger for a second. 00:26:21 Speaker 4: Yeah, why you think I wrote so much? 00:26:23 Speaker 3: Because every time when I started writing a novel, I was enmeshed in those stories, creating these characters in these worlds and these images. I was escaping, and every time I touched the stage it was therapeutic. 00:26:34 Speaker 4: It was cathartic. 00:26:35 Speaker 3: It was like that moment when I'm becoming the character on stage, in that world of the character, I was free. 00:26:43 Speaker 4: I had to have that freedom. 00:26:45 Speaker 3: Because when we had to go back to ourselves, it was like, well, the nightmare begins again. 00:26:50 Speaker 4: And RTA was that escapism. 00:26:53 Speaker 3: And the beautiful thing about RTA we were able to find love amongst so much hate, plain and simpers. Ultimately, as the movie sing scene depicts, I eventually got a clemency heart from Governor Elliot, Spitzer, who was considering me for a full parton. If you could get a governor to look at this and consider you for a full parton, it has to be something there. 00:27:27 Speaker 1: And according to Divine, the clemency board was confused as to what they were missing about this evidence. Why hadn't an appellate court granted belief, which, by the way, are great fucking questions. But they let their disbelief and uncertainty lead them to deny clemency for Divine. And so again Divine went back to the drawing board, hiring an investigator who found out about Richard Doyle's arm robbery charge in Nasau County that was also dismissed around the time of his testimony. So a success of four point forty was filed, and you guessed it, that was denied too, at which point Divine wrote to the newly formed Deskovic Foundation. 00:28:04 Speaker 2: Divine had wrote, my organization. I mean, people remember me from other episode, but in brief, I did sixteen years in prison myself for a murdering rate before DNA exonerated me, and eventually I went to law school and became an attorney, started the Jeffrey Deskovic Foundation for justice. 00:28:20 Speaker 4: So with your own money, with. 00:28:22 Speaker 2: My own money, Yes, that's true. So Divine wrote us, and we evaluated his case and we determined he was innocent, and we saw a potential route to exoneration. But while we were doing investigative work, he had a parole board appearance coming. And it's always our policy to try to get our clients out however it is we can, so that they could be free while the long, often uncertain road to exoneration takes place. So we wrote a letter to the parole board which outlined all the primary and secondary reasons why we believed in Divine's innocence. And as people probably know listening to your podcast, if you maintain your innocence rather than expressing remorse and take responsibility, you'd almost always denied parole. So it already unjust prison stay gets extended. 00:29:04 Speaker 1: But he was paroled, and that was twenty twelve. So while an attorney with Jeff's Foundation, Rita Deve hired an investigator and worked on his case, Divine continued some of the work he'd been doing inside as a youth counselor. When his past connection to the arts scene in New York afforded him an incredible, almost unreal opportunity. 00:29:27 Speaker 3: When I got out of prison right in twenty twelve, Lil Wayne's road manager approached me. 00:29:33 Speaker 4: It's this guy named Ei. 00:29:34 Speaker 3: Actually, when I was a DJ, I used to look out for him and his little sister let him come behind the ropes and stuff, and e I knew I was innocent too, and everybody knew I caught a bad deal. So when I got out, he came and picked me up a Bentley, gave me some money and said, yo, you want to go on my tour with Lil Wayne. I said, damn right, I want to go. He said, listen, I'll let you be a stage manager. If you can get on, this tour is yours. At first, they wasn't gonna let me go. The pro office admits, you crazy. You just got out of prison for murder. 00:30:02 Speaker 4: You think you going on a tour with a famous rapper? Are you crazy? I said, man, all right, cool. 00:30:08 Speaker 3: I've did an article seventy eight folled a major lawsuit. Then I got some media people involved, and I did emergency court for seeding, which is called an injunction. So they did it like within a week. I was in front of the judge and I went on that tour. 00:30:22 Speaker 1: Man. 00:30:22 Speaker 4: It was like the best seven months of my life. Man. 00:30:25 Speaker 3: And all that came about just because when I was a DJ, when I was young, I had this history of just looking out for people. 00:30:33 Speaker 1: And thankfully Jeff and Rider were looking out for Divine as well. Obviously, Harold Wesley was deceased, but they got in touch with his brother Ralph, who gave an affid David that his brother told him the same story that he killed familiar Racey with Patrick from Queen's. They'd also tracked down the woman in the green coat and Divine's ali by witness by Endevory. 00:30:52 Speaker 2: So in terms of Divine's innocence, there's a tape we just mentioned Wesley confessed to his brother. Okay, there's also Divine's alibi. He was with Bryant Devery Marjorie Shack, who knew Divine from the neighborhood. She said she heard the gunshots and people running, that they passed by her, that it was not Divine. Her story is corroborated by another witness who also didn't see anybody, but corroborated the direction that the perpetrators were running from. So we got all this evidence of his innocence juxtaposed with one informant Okay crackhead, three lies, many other lies contradicted by witnesses. I mean, it doesn't make any sense. 00:31:31 Speaker 1: But instead of filing another four to forty, they applied to the King's County Conviction Integrity Unit in twenty eighteen, who allegedly reinvestigated Divine's case. But by twenty twenty three there was still no relief. And at this point Oscar michelin enjoined the team. 00:31:48 Speaker 2: Five years had passed by without the Conviction Review Unit doing anything. So from there we had a meeting with the then head of the Conviction Review Unit, Charles Lenahan, and the line attorney, and Elenahan said, look, I haven't read the case, but I took the meeting as a courtesy, but I have the line attorney here, and she was intimating like they just hit brick walls, and like she wanted to say. She was on the verge of saying we're going to close the case. But I'm fast on my feet sometimes, and I saw what she was about to do, and if she had gotten that sentence out, politically it would have been hard for the unit chief to overrule her. So I jumped in and I said, well, what about this witness? What about that witness? Did you talk to this one? Did you talk to that one? 00:32:31 Speaker 1: No? 00:32:32 Speaker 2: So I ignore her and say that the unit chief, Well, how can you guys be about ready to close his case when there's all these witnesses that you haven't spoken to. Look, can we submit a twelfth page report to you outlining all the evidence of Divine's innocence. We'll have complete references to the record, and we'll contrast that with this one informant. So he gave us the okay, and so sixty hours later, you know, a twelve page memo was sent to the conviction review unit. A year goes by and again nothing happens. And the next thing we know, we're getting word that he's leaving the unit, going to go into a private practice, And we naturally reached out to him again, kind of in desperation because we really don't know who the new unit chief is going to be. And so we just read the report and at the end of the day, he did nothing. The most he did was had the case assigned to a different lawyer. The lawyer that had did nothing left the unit. I guess she was never enthusiastic about doing conviction review to begin with, but he assigned it to somebody else and Oscar emailed him. I piggybacked off of it. I did like a short reiteration of all the evidence of his innocence. I reattached the report and we heard nothing. And so it's been two years. They appear to not be working at all on Divine's case. So our strategy at this point is we're doing as much media as we can. We have a petition for Divine which calls for the Brooklyn District Attorney to order his conviction of unit, just to make a decision. It's been seven years. Just make a decision. It's been seven years already now, So people listening like to sign the petition, spread it around. We certainly need that. The website is fredivine g dot org. We're hoping that if we get enough petition signatures that die Gonzalez will order the unit to make a decision. We could pull his case from the unit right now if we wanted to, and file a post conviction motion and litigate. That's going to take about two years, okay, and maybe we win. We're supposed to win by everything, that's right, but he might not. But we don't want Divine to walk around with this conviction for another two years that it's going to take. Hence trying to gather petition signatures. 00:34:46 Speaker 1: It's freedivineg dot org. We'll have it linked in the episode description as well. So sign the petition in the hopes that Kings County will finally do right by Divine and if not, they'll move on to another four to forty to resolve a case for which Divine should have never gone to trial in the first place. Additionally, a case in which the current discovery laws might have given Divine a fighting chance. 00:35:09 Speaker 2: We helped myself in many organizations and advocates when we helped improve the discovery laws. All the information had to be turned over automatically within the first two weeks, and if the prosecutor didn't have everything together in the first two weeks, they had another two weeks. Anything passed a month they would have to get a court order to extend. Okay. So that's how we improved it. 00:35:32 Speaker 1: Laws that are right now under attack. 00:35:34 Speaker 2: Well, the District Attorney's Association and a lot of law enforcement they did a campaign of fear mongering all of a sudden, Now we're not can build of solve crimes. People aren't going to want to come forward. Now we're going to have witness intimidation, witnesses being killed. Which was all just a bunch of rhetoric. Because New Jersey, a border state to New York Okay, has had automatic open file discovery for many years, and as I often joke in order to make the policy point, we don't have bodies floating up and down the Hudson River, Okay. So there's all a bunch of fear mongering. 00:36:06 Speaker 4: Now. 00:36:06 Speaker 2: Aside from the fear mongering, the other complaint is they're trying to say that because of the discovery laws, that many cases are being dismissed by judges because the prosecutors are not turning over the information and timely manner. So, first of all, that's not true statistically, and second of all, to the extent that any case gets dismissed, why not get on the prosecutor meet your deadlines, right. And so the latest and greatest on that Governor Hokele now wants to repeal the discovery law. They want to try to modify it. First of all, they want to say that a defense attorney would only have thirty five days now to complain that you haven't gotten all the evidence turned over. Right, that makes no sense because to me, whether it's on day one or day two hundred, whenever it is that you realize that you haven't been given all the discovery material, you should be able to make a complaint, put that on the record, object, etc. So that's one aspect of it. Second thing is they want to go back to where instead of turning over everything, they want the prosecutors to look through the file and determine what can be helpful to the defense and turn that over, which is part of the problem. 00:37:21 Speaker 4: Before the wolf was guarding the henhouse. 00:37:23 Speaker 2: Exactly right, and that was all under Brady. 00:37:25 Speaker 4: Now. 00:37:26 Speaker 2: The second aspect of it is called Rosario material, and in a common sense way of talking about it, the prosecutor would only have to turn over information pertaining to witnesses that they were planning to call at a hearing or at a trial. They would often do that on the eve of a hearing, on the eve of a trial, So not only is there not enough time to read through the material, investigate, interview witnesses, incorporate that into your strategy. But also if they didn't want you to know about a witness, just don't call them at the hearing or the trial, and they wouldn't have to turn anything over. So that's the way that. 00:38:03 Speaker 1: It was as opposed to a civil case where you have to turn over everything. 00:38:07 Speaker 4: Correct, if you and I have a business dispute. 00:38:09 Speaker 1: Literally you have to turn over everything, and all that systake is money, And here you're dealing with somebody's freedom, their life right. 00:38:17 Speaker 2: When I brought a federal civil rights lawsuit in connection with my being wrongfully imprisoned, I had more discovery rights as a plaintiff bringing the lawsuit than what I did when I was a criminal defendant defending myself against the false charges. 00:38:33 Speaker 4: Exactly. 00:38:34 Speaker 1: So we're going to put links in the episode description for people to sign petitions, call the governor. 00:38:41 Speaker 2: They can also email their elected official, the assemblymen, their senators that represent them and say, look, we don't want discovery rollbacks, okay, we want the system to be fair. We want people who are charged to know exactly what the evidence is against them so that they can prepare a defense, so that we can reduce the likelihood of wrongful convictions. 00:38:59 Speaker 1: Exactly, because I could happen to Jeff, if it could happen to Divine, it could happen to you. I mean, that's really the truth or somebody you love. Correct, So if you do it for no other reason than that, do it. But we should all care about making the system fairer and better for everyone. And now return to closing arguments. I'm going to just kick back and. 00:39:18 Speaker 4: Not say another word. 00:39:19 Speaker 1: Just listen to anything else you feel is left unsaid, and tradition holds that, Jeff, since you're the attorney this time, you go first, and then Divine will take us off into the sunset. 00:39:31 Speaker 2: Seven years to wait for a conviction review unit to make a decision. Are you going to agree to overturn or not? It's simply not justice. That's unreasonable. Diaganzalis order your conviction review unit to make a decision on Divine with Field's case. 00:39:49 Speaker 3: I would like to echo that seven years is a bit extreme. It doesn't take that much time to just simply make a decision. 00:39:58 Speaker 4: Seven years. 00:39:59 Speaker 3: I'm quite sure if you had any intentions of investigating this, you've had sufficient amount of time to do it. I also want to just put great emphasis on the fact that Arts is life saving. Also, I want to remind everyone the site is fredivindg dot org. 00:40:17 Speaker 4: Please read the evidence of the. 00:40:18 Speaker 3: Innocence, sign the petition and encourage others to sign that petition. 00:40:23 Speaker 4: It's not a hard task to do. That would be highly appreciated. Thank you. 00:40:34 Speaker 1: Thank you for listening to Ron for Conviction. You can listen to this and all the Lava for Good podcasts one week early and ad free by subscribing to Lava for Good Plus on Apple Podcasts. I want to thank our production team Connor Hall and Kathleen Fink, as well as my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Kleiber. The music in this production was supplied by three time OSCAR nominated composer Jay Ralph. Be sure to follow us across all social media platforms Alava for Good and at Wrongful Conviction. You can also follow me on Instagram at It's Jason Flamm. Wrongful Conviction is a production of Lava for Good Podcasts and association with Signal Company Number One. 00:41:10 Speaker 4: We have worked hard to ensure that all facts reported in this show are accurate. The views and opinions expressed by the individuals featured in this show are their own and do not necessarily reflect those of Lava for Good.