Latest / Wrongful Conviction / #001 Jason Flom and Barry Scheck with Barry Gibbs

Transcript

#001 Jason Flom and Barry Scheck with Barry Gibbs · Wrongful Conviction

0:01
Speaker 1: You know, every episode of this show has been a
0:06
Speaker 1: roller coaster ride and a powerful emotional experience for me,
0:10
Speaker 1: none more so in the episode I recorded with Barry Gibbs,
0:14
Speaker 1: a beautiful, wonderful, warm, teddy bear of a man who
0:20
Speaker 1: was wrongfully convicted in one of the most egregious cases
0:25
Speaker 1: that any of us have ever seen, and exonerated in
0:28
Speaker 1: one of the most amazing twists of fate. You have
0:31
Speaker 1: to listen to his episode to hear the whole thing.
0:34
Speaker 1: I can't even paraphrase it, but the sad news is
0:38
Speaker 1: Barry died after battling an illness on March twenty third,
0:42
Speaker 1: twenty eighteen. Barry, rest in peace, my friend. You're gone
0:48
Speaker 1: but not forgotten. Now please listen to the incredible Barry Gibbs.
1:01
Speaker 2: I came from a beautiful neighborhood. I had a beautiful life.
1:06
Speaker 2: I went to sleep because September seventh was the first
1:09
Speaker 2: day of my high school year. I was gonna be
1:11
Speaker 2: a senior at twenty two, I was set to start college.
1:15
Speaker 3: I woke up and my life was never the same again.
1:18
Speaker 2: Cops came out with guns drawn, and I never saw
1:22
Speaker 2: freedom ever since after that. It's like roach Mo, Tom
1:25
Speaker 2: once you get in, you and I can't mounted.
1:29
Speaker 1: In nineteen eighty six, a woman was strangled and her
1:31
Speaker 1: body was dumb from a car on the belt Parkway
1:34
Speaker 1: in Brooklyn, New York City. In order to protect the
1:37
Speaker 1: known mafia associate who was the real suspect in the case,
1:40
Speaker 1: the detective Louis Eppolito Cohre's two eyewitnesses into changing their
1:44
Speaker 1: story and placing Barry Gibbs at the scene of the crime.
1:47
Speaker 1: Based on this false eyewitness testimony, Barry Gibbs was convicted
1:51
Speaker 1: and served almost two decades in prison before he was exonerated.
1:55
Speaker 2: Guys, alright, I made a seventery plot wife in Sherwan's poste.
2:04
Speaker 1: The corrupt cop who was responsible for coercing these eyewitnesses
2:08
Speaker 1: was ultimately convicted of eight murders that he carried out
2:11
Speaker 1: for the mafia. He's currently serving life in prison.
2:16
Speaker 3: To say corrupt is the understatement of all time. Lewis
2:20
Speaker 3: Eppolito was working at this point in time for a
2:24
Speaker 3: crime family in New York City.
2:27
Speaker 1: This is wrongful conviction. With Jason Flomm, we have a
2:42
Speaker 1: very special guest today, Actually we have three very special
2:45
Speaker 1: guests today. The number one is Barry Gibbs. Barry's an
2:49
Speaker 1: exignery who served almost two decades in prison for a
2:52
Speaker 1: murder he didn't commit, and his story will rock your world,
2:57
Speaker 1: to say the least. And in addition to Havingry on
3:00
Speaker 1: the show, we have another Barry. We have Barry times
3:03
Speaker 1: two today. Barry Sheck, the co founder of the Innocence
3:06
Speaker 1: Project and a personal hero of mine, is here. And
3:09
Speaker 1: we also have Vanessa Popkins. Vanessa is the newly promoted
3:14
Speaker 1: and anointed director of post conviction Litigation for the Innocence
3:18
Speaker 1: Project and she's been a long time lawyer with the
3:22
Speaker 1: innocentce Project, long serving lawyer with the Ennoconce Project. We're
3:25
Speaker 1: thrilled to have both of you, all three of you
3:26
Speaker 1: here on the show today, So welcome. So Barry Gibbs,
3:31
Speaker 1: Let's start at the beginning, which is where did you
3:34
Speaker 1: Where were you born? Let's start with that. Let's go
3:36
Speaker 1: all the way back.
3:38
Speaker 2: We can go all the ways back. I was born
3:42
Speaker 2: in Brooklyn. I was raised in cheaps at Bay. I
3:48
Speaker 2: worked in a post office. I came from a beautiful neighborhood,
3:54
Speaker 2: had a beautiful life, beautiful wife, had a house, had
3:59
Speaker 2: a family, had a car. Every two years had a
4:03
Speaker 2: good job.
4:04
Speaker 1: American dream pretty much right, I mean, until it wasn't.
4:07
Speaker 1: So you served honorably served your country in a war
4:10
Speaker 1: that we won't get into the politics of that war,
4:12
Speaker 1: but the fact there is a crazy situation for any
4:15
Speaker 1: young man to find himself in. Now you come back and.
4:19
Speaker 2: I wind up, I wind up, I'm young, I get married,
4:23
Speaker 2: I find a beautiful woman. All along sitting in an
4:26
Speaker 2: office I was. I was show intimidated by a beauty
4:31
Speaker 2: that it took me a year and a half to
4:33
Speaker 2: get up the courage to just ask her out for
4:35
Speaker 2: a couple of coffee.
4:36
Speaker 1: This sounds very romantic, by the way. I just wants
4:38
Speaker 1: to know truth. I know, but I'm feeling a little misty.
4:41
Speaker 1: It's like in the movies when you get that you know,
4:43
Speaker 1: foggy thing and you go back in time. So you
4:45
Speaker 1: finally got the courage up, you asked her coffee.
4:48
Speaker 2: I used to deliver mail toward she'd sit in that
4:50
Speaker 2: office on a dictive pharmer. I never saw a woman
4:54
Speaker 2: type as quickly as she did, and I was amazed.
4:57
Speaker 1: So you charmed her and you eventually married her. Right,
5:00
Speaker 1: because otherwise we wouldn't be talking about it right now.
5:03
Speaker 2: Yeah, she was. She was a gift from God, she
5:05
Speaker 2: really was.
5:06
Speaker 1: And you married the girl of your dreams. So that's again,
5:08
Speaker 1: it sounds like an American American dream story up until
5:12
Speaker 1: it's not. And I want to get into that because
5:14
Speaker 1: we have we have Barry and Vanessa here, which is
5:17
Speaker 1: really a treat for the show, and I want to
5:20
Speaker 1: talk about your your your Kafka esque journey through the
5:24
Speaker 1: criminal justice system, because yours, is saying to Barry before,
5:29
Speaker 1: it's like the triple crown of malfeasance. Right, you had
5:33
Speaker 1: jail house snitches, you have police miss and prosecutorial misconduct,
5:39
Speaker 1: and then you have a situation where they either can't
5:41
Speaker 1: find or won't or won't turn over the evidence that
5:43
Speaker 1: could have exonerated you long before your two decades in prison,
5:47
Speaker 1: and it was it was a life sentence, was that right? Yes,
5:53
Speaker 1: So so let's let's turn it over to uh to
5:56
Speaker 1: the lawyers for a second. Here, When did you first
5:59
Speaker 1: become aware? And can you give us a little background
6:01
Speaker 1: on how this happened in the first place, because this
6:03
Speaker 1: should never happen.
6:04
Speaker 4: So basically, in the mid nineteen eighties, a woman from
6:07
Speaker 4: Brooklyn was murdered She was an African American woman. She
6:11
Speaker 4: was strangled and her body was disposed of on the
6:14
Speaker 4: side of a road on the Belt Parkway, and there
6:17
Speaker 4: were a couple of witnesses who actually saw there. It
6:20
Speaker 4: was a white man who was dumping the body essentially, and.
6:25
Speaker 1: So there are two witnesses.
6:26
Speaker 4: There was two witnesses. One was a park police officer and.
6:29
Speaker 1: The Belt Parkway is a major thoroughfare in Brooklyn just
6:32
Speaker 1: for people who around the country who don't know the geographics,
6:35
Speaker 1: so go ahead, right.
6:36
Speaker 4: And there was a park police officer who had driven
6:40
Speaker 4: by and saw the person the perpetrator, getting out of
6:43
Speaker 4: the car. And there was also a guy, Peter Mitchell,
6:48
Speaker 4: a witness who was jogging in the area who also
6:52
Speaker 4: witnessed kind of the same set of occurrences. And so
6:57
Speaker 4: the victim had been strangled. She was later discovered to
7:03
Speaker 4: have hairs on her body. And you know, there was
7:05
Speaker 4: a lot of evidence later on that we could have
7:07
Speaker 4: done DNA testing on if we would have found to
7:10
Speaker 4: show who did this. But Barry, you know, there was
7:14
Speaker 4: this detective Lewis Epilito who wasn't even on duty at
7:19
Speaker 4: the time, you know, wasn't wasn't on shift, but ended
7:22
Speaker 4: up showing up at the crime scene and basically took
7:25
Speaker 4: charge of the investigation.
7:27
Speaker 1: And why did he do that? I mean, that seems
7:29
Speaker 1: very irregular, right.
7:30
Speaker 3: Something's wrong with him, Something's wrong with the whole way
7:34
Speaker 3: this case goes down. He sweeps in to take over
7:37
Speaker 3: this case, right, and all of a sudden it's his case.
7:42
Speaker 3: And he goes and finds Peter Mitchell and he.
7:44
Speaker 1: Creates this Peter Witchell's the jogger.
7:46
Speaker 2: The jogger.
7:48
Speaker 3: All of a sudden, this guy is identifying Barry. He
7:53
Speaker 3: takes care of the whole thing.
7:54
Speaker 1: And why did Barry even come? I mean, he wasn't
7:56
Speaker 1: anywhere near the crime scene? How did his name even
7:58
Speaker 1: come into the picture? Here?
8:00
Speaker 3: We we we now know, right, you see, at the
8:03
Speaker 3: time that we're doing this case, we don't know exactly
8:08
Speaker 3: why Epilito was doing all these things. And of course
8:11
Speaker 3: this is a house snitch that emerges in all of this,
8:14
Speaker 3: so it goes to Trolie gets convicted. We don't have
8:16
Speaker 3: the DNA evidence, and frankly, as you know well Jason,
8:19
Speaker 3: you know at this time with the Innocence project, if
8:22
Speaker 3: we couldn't find the biological evidence to do a DNA test.
8:26
Speaker 3: We had to close the case.
8:27
Speaker 1: Right, because that was that was the mission of the charter,
8:30
Speaker 1: basically the INNOSCE project that we work on DNA cases. Now,
8:33
Speaker 1: of course this change is afoot, but that's beside the
8:35
Speaker 1: point way.
8:35
Speaker 3: So, but we we even though we had pretty much
8:39
Speaker 3: established that we couldn't find the hares and the clothing
8:42
Speaker 3: or anything like this, we just couldn't close the.
8:45
Speaker 1: Case, which is odd, right because by definition it's the
8:49
Speaker 1: type of one way you go well of it that should.
8:50
Speaker 3: Have been closed. So what happened was what Barry is
8:55
Speaker 3: getting emotional about is that we were essentially saying to him,
8:58
Speaker 3: we're going to have to drop this case, right, but
9:01
Speaker 3: we couldn't.
9:01
Speaker 2: What you did, I'm going to tell you what you did.
9:04
Speaker 2: You broke my heart. You really did. You guys broke
9:08
Speaker 2: my heart. I made a cemetery plot a life of
9:13
Speaker 2: Shurman's policy.
9:18
Speaker 3: And then all of a sudden we wake up and
9:21
Speaker 3: in the front page of all the newspapers in New
9:23
Speaker 3: York City, what.
9:24
Speaker 1: Year, what year?
9:26
Speaker 4: What year was two thousand and four.
9:28
Speaker 1: So this has been going on now for this has
9:30
Speaker 1: probably been about for eleven years now, twelve years, yeah,
9:33
Speaker 1: two thousand and four, you opened the newspaper.
9:35
Speaker 3: Opened the newspaper, and there's a story that a former
9:39
Speaker 3: New York City Police detective, Lewis Epalito, who was famous
9:43
Speaker 3: in his time because he wrote a book called Mafia Cop,
9:47
Speaker 3: where he described how his parents had been The father
9:51
Speaker 3: had been involved in the organized crime, but he hadn't been,
9:53
Speaker 3: and he was a great hero cop, uh, you know,
9:57
Speaker 3: and got a lot of publicity. He was the cop
10:00
Speaker 3: that arrested Barry and took over suddenly swoops in and
10:03
Speaker 3: takes over this case. So Vanessa and I look at
10:06
Speaker 3: this and we go, oh my god, it's we got
10:11
Speaker 3: to call them up and say whatever. They had arrested Epallito.
10:16
Speaker 1: Right, That's why the story was.
10:17
Speaker 2: They had arrested.
10:18
Speaker 3: Epallito and Kara Kappa, another detective with whom he worked,
10:22
Speaker 3: because it was alleged that he had become involved with
10:27
Speaker 3: the mafia.
10:28
Speaker 1: I remember reading the story and he.
10:31
Speaker 3: The two of them had begun doing hits for a
10:34
Speaker 3: crime family, right, and they literally were killing people one
10:37
Speaker 3: after another.
10:38
Speaker 1: You know, this sounds like it's straight out of a
10:40
Speaker 1: Hollywood movie.
10:41
Speaker 2: Right.
10:41
Speaker 1: It's we have we have guys in blue wearing badges,
10:44
Speaker 1: doing hits for the mafia in New York City in
10:46
Speaker 1: two thousand.
10:46
Speaker 3: It's all true, and it's crazier than that, Jason, because
10:49
Speaker 3: Lewis Epolito, the so called mafia cop, was in the
10:53
Speaker 3: first scene right of Goodfellas, very first scene of Goodfellas.
10:58
Speaker 1: Like art imitating life imitating art. Years before he was
11:02
Speaker 1: exposed as being a hitman for the mafia and disgraced
11:05
Speaker 1: Louis Eppalito appeared on Sally Jesse Rappa out.
11:10
Speaker 3: What do you do now, Big lou Well.
11:13
Speaker 5: I've acted in nine movies. I've been in Goodfellas, State
11:16
Speaker 5: of Grace, Predator, to I tried writing a screenplay. Gene
11:20
Speaker 5: Hackman has been really great with me and Mikhail Vershnikov
11:23
Speaker 5: and I did a movie with them called Company Business,
11:26
Speaker 5: and I wrote a screenplay and it was brought by
11:28
Speaker 5: New Line Cinema and I just finished the second screenplay.
11:31
Speaker 4: It's better than policing.
11:33
Speaker 5: Pe getting shot out any day.
11:34
Speaker 3: Yeah, as far back as I could remember, I always
11:39
Speaker 3: wanted to be a gangster.
11:46
Speaker 1: And meanwhile, if that's not ironic enough, he's also writing
11:49
Speaker 1: a book about how he's not doing what he is
11:51
Speaker 1: exactly is doing. Right, So it's like the whole thing
11:54
Speaker 1: is a circle of madness. That's, you know, hard to believe.
11:57
Speaker 3: So we write into the US his office and we
12:00
Speaker 3: called them and they say, would you please look into
12:03
Speaker 3: the Barry Gibbs case because something's wrong with this case.
12:07
Speaker 3: We've always thought that Barry was innocent, that he was framed,
12:12
Speaker 3: and unbeknownst to us, and they say, yes, we're going
12:16
Speaker 3: to do that.
12:17
Speaker 1: Get ready for this.
12:17
Speaker 3: By the way, unbeknownst to us, the day that they
12:21
Speaker 3: arrested Epolito in his apartment in Las Vegas, right, they
12:26
Speaker 3: found the original New York City Police Department file on
12:33
Speaker 3: the on the Barry Gibbs case. I mean, the original one.
12:37
Speaker 3: One of the reasons that we couldn't find a lot
12:39
Speaker 3: of things is that it's unprecedented. You know, he's a
12:42
Speaker 3: copy retires, he goes to the police department and he
12:45
Speaker 3: takes the original file.
12:47
Speaker 1: Well maybe he too. I mean, is it your theory
12:49
Speaker 1: that he took the file so that it would never
12:51
Speaker 1: get discovered, and then ironically again, he put it in
12:54
Speaker 1: a place where it could get discovered.
12:57
Speaker 2: A second wording to that, I was sitting in the
13:02
Speaker 2: car with the DA agents. I don't remember their names.
13:07
Speaker 2: I'm not giving you guys up. And I said to them,
13:10
Speaker 2: how many files did you find in the house? And
13:13
Speaker 2: he said three? And I says, well, I'm on my
13:17
Speaker 2: way down. What happened to the two water files? You
13:19
Speaker 2: know what? He said to me, don't worry about them,
13:22
Speaker 2: their career criminals. I said to myself, you got that.
13:26
Speaker 2: I'm not going to say nothing, but I really wanted
13:28
Speaker 2: to say something. Why don't you do your job properly? Well,
13:31
Speaker 2: they did what I didn't.
13:32
Speaker 3: Let's be let's let's be straight about this. So these
13:35
Speaker 3: DEA agents and the US attorneys in the Eastern District,
13:40
Speaker 3: they went out and they started reinvestigating Barry's case. And
13:44
Speaker 3: they went and they talked to Peter Mitchell, right the jogger,
13:49
Speaker 3: and he's living someplace in Queens and they walk in
13:52
Speaker 3: the door and he said, I've been waiting, you know,
13:56
Speaker 3: twenty years.
13:57
Speaker 1: I'm getting the jails right now.
13:59
Speaker 3: For somebody to say this to me. And he bursts
14:01
Speaker 3: into tears and he describes how Epillito threatened him. He himself,
14:07
Speaker 3: Peter Mitchell had been an army veteran, right he had
14:10
Speaker 3: a felony conviction, and Epilitos was threatening him, you know,
14:15
Speaker 3: both physically and to expose him and destroy him. And
14:19
Speaker 3: he brought him into the precinct and he showed him
14:22
Speaker 3: who Barry was, and then they held this ridiculous, bogus
14:26
Speaker 3: lineup and you know, he identified Barry Gibbs.
14:31
Speaker 1: So, yeah, he was given basically no option.
14:34
Speaker 3: Yeah, I mean, it was a force.
14:36
Speaker 1: So what about the other witness Barry? Who was the
14:39
Speaker 1: park the park police officer he said, a park ranger or.
14:42
Speaker 4: Something, officer Gentilly. He You know, the crazy thing about
14:46
Speaker 4: him is that nobody, you know, he would have been
14:48
Speaker 4: the most reliable witness, right, He's an officer, he's trained
14:51
Speaker 4: to make identifications. Nobody ever asked him that we know of,
14:57
Speaker 4: to look at Barry Gibbs and say, is that the
14:59
Speaker 4: person you saw?
15:00
Speaker 1: Because they didn't want to know.
15:02
Speaker 2: They didn't want to know.
15:03
Speaker 3: When you go back and you look at this case,
15:06
Speaker 3: this is one of the Yeah, I mean, this is
15:09
Speaker 3: what makes Barry Gibbs' case extraordinary in one respect is
15:14
Speaker 3: that it was a completely corrupt cop. And to say
15:19
Speaker 3: corrupt is the understatement of all time. Lewis Eppolito was
15:23
Speaker 3: working at this point in time for a crime family
15:27
Speaker 3: in New York City. He and Kara Kappa I think
15:31
Speaker 3: we're involved in the assassination of eleven people. There's a
15:35
Speaker 3: terrific book written about Lewis Epolito case, and it's called
15:39
Speaker 3: The Good Rat by Jimmy Breslin, you know, perhaps the greatest,
15:45
Speaker 3: you know, Pulitzerprise winning columnist that we've ever had in
15:49
Speaker 3: this town. And he talks about Barry's case. But they
15:52
Speaker 3: were running around killing people, you know, and the Lucasy
15:56
Speaker 3: crime family would say, well, why don't you go kill Guido,
16:00
Speaker 3: and they killed the wrong Nicki Guido they.
16:02
Speaker 1: Did right Nick.
16:05
Speaker 3: They're all contract killings. And so what we have been
16:08
Speaker 3: able to figure out through litigation after Barry was uh exonerated,
16:16
Speaker 3: essentially through the work of these DEA agents who went
16:19
Speaker 3: out and found Peter Mitchell and you know, showed that
16:22
Speaker 3: the whole case was a frame up. We now know
16:26
Speaker 3: that the day that the witnesses saw this body of
16:30
Speaker 3: this poor woman being dumped on the belt Parkway right
16:34
Speaker 3: that the description matched somebody that worked at a chop
16:37
Speaker 3: shop in Brooklyn.
16:41
Speaker 1: Who was known to the cops, who was known to the.
16:44
Speaker 3: And and Epolito mysteriously shows up the next day the
16:49
Speaker 3: next day, we found out this guy who was suspected
16:54
Speaker 3: who to meet the description, right, shows up at the
16:58
Speaker 3: police precinct with his died because originally they described it
17:02
Speaker 3: as somebody with salt and pepper hair. He shows up
17:04
Speaker 3: with his hair dyed black and a lawyer to talk
17:06
Speaker 3: to Epolito. Nothing appears about that, which appears in no
17:10
Speaker 3: police reports.
17:11
Speaker 1: No, there's no reason to take a look at that.
17:13
Speaker 3: I wouldn't you know, when you look back at this,
17:16
Speaker 3: it's unbelievable.
17:31
Speaker 1: So let's go back to the case. So nine years
17:34
Speaker 1: after Varie's conviction, a Brooklyn judge ordered the state to
17:37
Speaker 1: submit evidence from the case for DNA testing, and then
17:40
Speaker 1: what happens, right, It would seem like at that point, Okay,
17:43
Speaker 1: now we got a break. Right now, we're going to
17:45
Speaker 1: get this guy out. Some of the evidence had apparently
17:47
Speaker 1: been destroyed and other items couldn't be found.
17:49
Speaker 2: Okay, that's their side of the case. But my side
17:53
Speaker 2: the case is different from that version.
17:55
Speaker 1: Right there, Okay, let's hear it.
17:57
Speaker 2: Okay, when I was in jail at Riker's Island six
18:04
Speaker 2: months later or whatever, I can't remember exactly how many
18:08
Speaker 2: months later, the district attorney wanted me to give hair
18:12
Speaker 2: samples again. My attorney came up to me and I
18:17
Speaker 2: said to him, I'm not giving it. And he says why.
18:21
Speaker 2: He says, because I'm being framed. I'm not giving it.
18:25
Speaker 2: He says. Listen, Barry, he says, I'm there to represent you. Now,
18:30
Speaker 2: he said, pay attorney, I'm there to represent you. He says.
18:35
Speaker 2: I says, you're gonna be there to represent me when
18:38
Speaker 2: they take these heirs and they're done together, Like, are
18:42
Speaker 2: you gonna be physically right there? He said to me. No,
18:45
Speaker 2: he says, I'm gonna be there when they take the
18:47
Speaker 2: hair samples and the heat seal it and they're gonna
18:51
Speaker 2: give the evidence to who epilto.
18:55
Speaker 4: The chain of custody really fell off with Epilito himself
18:58
Speaker 4: in terms of having handle the evidence, and it was
19:01
Speaker 4: just am I A.
19:03
Speaker 3: You know, And the funny thing that Barry Gibbs is
19:05
Speaker 3: saying is that, you know, he doesn't even want to
19:08
Speaker 3: give his hairs because he doesn't trust trust Lay And
19:12
Speaker 3: you know, from the lawyer's point of view, he's going, oh,
19:15
Speaker 3: I got this Mischugan client, this Tracy client. It doesn't
19:18
Speaker 3: even want to give up airs.
19:19
Speaker 1: But one of the greatest frame ups in the history
19:22
Speaker 1: of New York City.
19:22
Speaker 3: And what's crazy is that you'd look at him and go,
19:25
Speaker 3: you're you're convinced that you're going to be framed, and
19:28
Speaker 3: you won't even give your hairs, and you're saying that
19:31
Speaker 3: we can't trust the detective to even take them to
19:35
Speaker 3: the crime lab and give it a straight up examination.
19:38
Speaker 3: And it turns out everything he suspects is completely true.
19:43
Speaker 3: It is a complete frame. The guy is working for
19:46
Speaker 3: the mafia, he is assassinating people. He probably played around
19:50
Speaker 3: with all of this evidence. We can't prove all of that,
19:53
Speaker 3: but we proved the hell of a lot of it.
19:55
Speaker 1: So for opostal worker, for oppostal worker, Barry turns out
19:57
Speaker 1: to be a pretty good scientist, huh, I mean, or
20:00
Speaker 1: at least a psychologist. Let me ask you this. Also so,
20:03
Speaker 1: the New York City crime laft has faced criticism for
20:05
Speaker 1: its difficulty difficulty is a strange word for its difficulty
20:09
Speaker 1: handling and put that in quotes and storing evidence. In
20:12
Speaker 1: twenty thirteen, the New York City Medical Examiner's Office announced
20:15
Speaker 1: that it had discovered more than fifty cases in which
20:17
Speaker 1: the office failed to upload critical DNA evidence from crime
20:20
Speaker 1: scenes to the state's DNA database, which prevented those samples
20:24
Speaker 1: from being compared to genetic material from convicted defenders. This
20:28
Speaker 1: discovery led to the firing of the office's deputy director
20:30
Speaker 1: of quality assurance, which sounds kind of like a fall
20:33
Speaker 1: guy to me. I mean, the deputy director of quality assurance.
20:35
Speaker 1: That sounds like somebody who works at a snack food
20:39
Speaker 1: company or something like that. You know, so can we
20:42
Speaker 1: can you tell me more about that? Because people like
20:44
Speaker 1: to think that these people are doing their jobs, right.
20:47
Speaker 1: I think the public likes to think that when you have,
20:50
Speaker 1: you know, a crime lab that these people are on.
20:53
Speaker 1: Is now, of course, after making a murderer and after
20:56
Speaker 1: the different things that have come out recently, I think
20:59
Speaker 1: that has generated so much attention that people probably have
21:02
Speaker 1: a little more skeptical view. But even as a lay person,
21:05
Speaker 1: before getting involved in this project, I thought so too.
21:08
Speaker 1: I thought that these people do their jobs. These are
21:10
Speaker 1: honest actors. Right.
21:11
Speaker 3: Number one, what Barry and Vanessa were describing about the
21:16
Speaker 3: search for his evidence, right, It is true that in
21:21
Speaker 3: the old days, at the time that Barry was convicted,
21:25
Speaker 3: they had a terrible system for keeping track of the evidence.
21:29
Speaker 3: It was a mess, and that's not unlike places all
21:33
Speaker 3: across the country. It was a total mess. And they
21:36
Speaker 3: did have fires and asbestos and floods, and they did
21:41
Speaker 3: recently after Sandy, have a problem. But you know, having
21:45
Speaker 3: said that, we did have a problem for years in
21:51
Speaker 3: trying to get a fair search because the evidence custodians really,
21:56
Speaker 3: you know, they were being deliberately indifferent to the need
22:00
Speaker 3: to go look for evidence, even when people were asking,
22:03
Speaker 3: go find my evidence. A DNA test could prove me innocent.
22:06
Speaker 3: They really weren't trying hard. But now I do believe
22:11
Speaker 3: that that part of the operation has been professionalized. They
22:15
Speaker 3: have a limbs system, you know, it's sort of like
22:18
Speaker 3: a barcode system, laboratory information.
22:21
Speaker 1: Welcome to twenty sixteen.
22:22
Speaker 4: They have got they haven't gone back completely, so there's
22:26
Speaker 4: evidence from decades ago. You know, that's still a mass.
22:30
Speaker 4: So it's still it's still incredibly hard for innocent people
22:32
Speaker 4: today in New York City to get access to evidence
22:35
Speaker 4: to prove their innocence.
22:36
Speaker 1: They didn't go back and cleaned up. And it's odd
22:38
Speaker 1: because married and I talked about this before. You know,
22:40
Speaker 1: our clients. I sometimes think of them and I hope
22:44
Speaker 1: you take this the right way as some of the
22:46
Speaker 1: luckiest of the unluckiest people on earth, right, because you
22:49
Speaker 1: can't be unluckier than to have well, it's tragic and
22:53
Speaker 1: an unlucky as there's an understatement than to have yourself found,
22:57
Speaker 1: find yourself in a situation where you wrongfully convey and
23:01
Speaker 1: then you know there's we know that there's you know,
23:03
Speaker 1: tens of thousands maybe more people in prison who are innocent,
23:08
Speaker 1: and then for them to be fortunate enough to get
23:10
Speaker 1: the innocent s part, to have the Innostance Project take
23:12
Speaker 1: their case, and then to have the evidence found as
23:15
Speaker 1: it was in Barry's case is really something that could
23:18
Speaker 1: only be described as, you know, half a sot, like
23:21
Speaker 1: a miracle.
23:22
Speaker 2: Were blessed. We've punched. I don't know what it is.
23:27
Speaker 2: You kind of surrendered to everything and anything to be
23:31
Speaker 2: at the place, oh man, because whatever it is, it's
23:37
Speaker 2: it's unbelievable.
23:38
Speaker 1: In order to move on with your life.
23:40
Speaker 2: Yeah, I did angels as angels, you don't want to
23:42
Speaker 2: believe it. The Zames.
23:57
Speaker 1: I want to talk about the misconduct because, according to
24:00
Speaker 1: a study done by the Endissis Project of Minnesota, official
24:03
Speaker 1: misconduct meaning police or prosecutorium misconduct was a contributing factor
24:07
Speaker 1: in forty six percent of all DNA exonerations. On records,
24:10
Speaker 1: it's nineteen eighty nine. Police suppressed evidence that might support
24:13
Speaker 1: a defend its innocence in over one third of the
24:16
Speaker 1: first seventy four exoneration cases. So that's what's one group
24:19
Speaker 1: that we studied. And nine percent of exoneration cases involved
24:22
Speaker 1: allegations of police coerciing witnesses into testifying, as was allegedly
24:26
Speaker 1: the case in your trial. Well we know it was
24:28
Speaker 1: the case in your trial, Burry. So Barry, I know
24:31
Speaker 1: you and I talk about this a lot, and Vanessa,
24:33
Speaker 1: I'd love to hear what you have to say about it.
24:35
Speaker 1: You know, the prosecutor of misconduct is this? I mean,
24:38
Speaker 1: is it just blind ambition that drives these prosecutors? And
24:42
Speaker 1: how is it? Like it always blows my mind that
24:45
Speaker 1: a prosecutor can be so morally bankrupt that they can
24:49
Speaker 1: be and ethically that they can be comfortable and sleep
24:53
Speaker 1: well at night while deliberately knowingly prosecuting and convicting and
24:58
Speaker 1: sometimes sentencing to death the person who they know to
25:00
Speaker 1: be innocent. But then the other problem.
25:04
Speaker 3: Is but that's see, that's where I would take some
25:09
Speaker 3: issue right, and that is that I think much of
25:13
Speaker 3: it the misconduct is something that has been termed noble
25:19
Speaker 3: cause corruption and that no corruption because they actually believe
25:26
Speaker 3: that they're prosecuting a guilty person, and then when the
25:32
Speaker 3: exculpatory evidence seems to pop up right, left and right,
25:36
Speaker 3: because it turns out they're actually prosecuting an innocent person,
25:40
Speaker 3: unbeknownst to them, it gets hidden. And that's why it's
25:44
Speaker 3: so important for lawyers to play by the rules, and
25:49
Speaker 3: that we're talking about prosecutors playing by the rules that
25:52
Speaker 3: even if you think you've got a guilty guy who
25:55
Speaker 3: committed a horrible crime, you still have to play by
25:58
Speaker 3: the rules of our system and disclose exculpatory evidence and
26:04
Speaker 3: not push witnesses beyond what they really are really saw
26:10
Speaker 3: or heard or want to say. That you have to
26:15
Speaker 3: somehow control you know, the kinds.
26:18
Speaker 1: Of impulses, right, impulses to.
26:20
Speaker 3: Win that you know are so prevalent in the system.
26:23
Speaker 3: That's on the one hand. On the other hand, you
26:26
Speaker 3: need strong defense. You need lawyers that are educated, that
26:31
Speaker 3: are well funded, you know, that are going to do
26:34
Speaker 3: the job because unless the defense plays by the rules
26:38
Speaker 3: and does its job and exposes the problems in the
26:41
Speaker 3: case the system implodes.
26:43
Speaker 1: Well, you have and you have the perfect storm there, right.
26:45
Speaker 1: You have over ambitious prosecutors who become blinded by by
26:50
Speaker 1: their belief in the noble cause what do you call it,
26:54
Speaker 1: noble cause, corruption or and or their own ambition. And
26:58
Speaker 1: then you have a public defense who may be not
27:02
Speaker 1: up to the task, they may not be qualified, or
27:04
Speaker 1: they may just be overworked and overwhelmed. Yeah, because some
27:10
Speaker 1: of them are some of them are dealing with a
27:11
Speaker 1: hundred or more cases at a time, right, so they
27:13
Speaker 1: can't possibly devote the type of time that they would
27:16
Speaker 1: need to do to mount a robust defense. But the
27:19
Speaker 1: other thing that always, you know, boggles my mind is
27:23
Speaker 1: that as if a prosecutor does let's let's assume the
27:27
Speaker 1: worst in this case. And we know there are those
27:28
Speaker 1: cases right where prosecutors are just like, we got a guy,
27:32
Speaker 1: we're just gonna nail them, We're gonna get it off
27:34
Speaker 1: our desk, we're gonna close this case, and we're gonna
27:36
Speaker 1: move on. We see that, and it's and and of
27:39
Speaker 1: course it happens, and sometimes it's noble class corruption and
27:42
Speaker 1: sometimes it's that. But in those cases, what I can't
27:46
Speaker 1: understand is how they could. Well, Well, what we know
27:51
Speaker 1: is that when you convict the wrong guy, by definition,
27:53
Speaker 1: you stop looking for the right guy right. And so
27:55
Speaker 1: if a prosecutor is motivated by nothing other than selfish interest,
27:58
Speaker 1: especially in a small community, to do the math and say, well, look,
28:01
Speaker 1: if the right guy's still out there, and he's going
28:04
Speaker 1: to go almost invariably or inevitably and go and commit
28:08
Speaker 1: more terrible crimes, it could happen to your own family
28:11
Speaker 1: or somebody you know, or somebody you love. As a
28:13
Speaker 1: prospect of talking about right, So wouldn't you think that,
28:16
Speaker 1: as a public service, if nothing else motivated them to
28:18
Speaker 1: do the right thing, that they would want to get
28:21
Speaker 1: the real perpetrator off the street. And of course we
28:23
Speaker 1: know that in many of our cases, I don't know
28:25
Speaker 1: the exact percentage when we've exonerately did as a guy,
28:28
Speaker 1: we find out that the guilty guy has actually gone
28:31
Speaker 1: and committed terrible crimes against people who never needed to
28:34
Speaker 1: be hurt or killed in the first place.
28:36
Speaker 3: Among the DNA exonerations, close to half involved cases where
28:41
Speaker 3: we've been able to identify the person who really committed
28:44
Speaker 3: the crime.
28:45
Speaker 4: But in a lot of cases too, it's just you know,
28:47
Speaker 4: there really aren't incentives. There need to be more incentives
28:51
Speaker 4: on prosecutors, you know, taking on if they get a
28:53
Speaker 4: case that's brought to them by the police and it
28:55
Speaker 4: doesn't seem right or they're getting you know, some exculpatory
28:58
Speaker 4: information to reinvent instigated and not just to see their
29:01
Speaker 4: jobs to go forward with the case that the police
29:04
Speaker 4: brought them and to prosecute it. And you know right
29:07
Speaker 4: now is the incentive is to win, not necessarily to
29:11
Speaker 4: reevaluate the case, you know, built into the prosecutor's offices
29:14
Speaker 4: and just in terms of you know, how they're evaluated
29:18
Speaker 4: what's considered to be a successful prosecutor. And in working
29:21
Speaker 4: with some of the conviction integrity units where you know, prosecutors'
29:24
Speaker 4: offices are going back and looking at the cases themselves.
29:27
Speaker 4: You know, we've heard some of from some of the
29:29
Speaker 4: leaders you know in this area that you know, when
29:32
Speaker 4: you're a prosecutor, you completely dehumanize the person who's accused.
29:37
Speaker 4: You know, that's how you do your job. And so
29:40
Speaker 4: it also I think takes a you know, we need
29:43
Speaker 4: a reevaluation in our system we don't treat people who
29:46
Speaker 4: are coming through the criminal justice system with any sense
29:49
Speaker 4: of humanity, and that allows prosecutors to kind of put
29:53
Speaker 4: blinders on, and you know, it's not somebody that they
29:55
Speaker 4: can relate to. You're not seeing what the devastation that's
29:58
Speaker 4: happening to the individual to or family. You know, that
30:01
Speaker 4: is completely.
30:02
Speaker 1: Missing for their people. And I think sometimes we lose
30:05
Speaker 1: track of that. They're they're not They're not just subjects
30:10
Speaker 1: or people who are accused of something or numbers or whatever.
30:15
Speaker 1: They're actual people. And we see that over and over again.
30:18
Speaker 1: So the conviction review units, this is a relatively new things.
30:21
Speaker 1: It's sort of what I think for about five five
30:25
Speaker 1: to ten years now, right.
30:26
Speaker 3: Well, it really started in earnest in two thousand and
30:31
Speaker 3: seven in Dallas, Texas, when an African American defense attorney
30:37
Speaker 3: at the age in his thirties was elected District Attorney
30:40
Speaker 3: of Dallas.
30:41
Speaker 1: Pretty unlikely scenario all right around, and.
30:45
Speaker 3: You know, it was kind of a fluke or unexpected
30:49
Speaker 3: and he came into office, Craig Watkins, and among the
30:52
Speaker 3: first things that he did is that he created this
30:56
Speaker 3: conviction integrity unit. The Innocence Project actually went to a
30:59
Speaker 3: foundation that got him put up half the money because
31:03
Speaker 3: it was a matching thing of the Dallas City Council
31:06
Speaker 3: and this foundation in the Jet Foundation, and he put
31:11
Speaker 3: in charge of the conviction Integrity unit a guy named
31:14
Speaker 3: Mike Ware who came from an innocence organization in Lubbock, Texas.
31:20
Speaker 3: So the Innocence Project of Texas, working with our Innocence
31:23
Speaker 3: Project based in New York, started working with the Dallas
31:28
Speaker 3: District Attorney's Office and their conviction Integrity Unit and reviewed
31:32
Speaker 3: all the cases where they had been resisting requests for
31:37
Speaker 3: DNA testing and reviewed them all. I mean, we literally
31:40
Speaker 3: got the entire prosecutor file, looked at it, reviewed the
31:43
Speaker 3: case sometimes when there was no DNA evidence, although in Dallas,
31:49
Speaker 3: as opposed to New York, they were able to find it.
31:51
Speaker 3: That's why there's more exonerations in Dallas than in most states.
31:55
Speaker 3: If we had been able to find the evidence in
31:58
Speaker 3: New York the way we've discussed before were and when
32:00
Speaker 3: we were searching for it in Barry Gibbs's case, if
32:03
Speaker 3: we could find more of it, New York would have hundreds,
32:08
Speaker 3: hundreds of exonerations. I think any fair minded person would agree.
32:12
Speaker 3: We just couldn't find the evidence of.
32:13
Speaker 1: Many Dallas go from the county with the highest execution
32:16
Speaker 1: rate to the county with the highest exoneration rate just about, Yeah,
32:19
Speaker 1: which is an incredible Let's think about that for a second, right,
32:22
Speaker 1: And what that conviction review unit has meant to these
32:25
Speaker 1: people who were some of them would have been executed there.
32:27
Speaker 2: Could you imagine on death row?
32:29
Speaker 1: No, you can't imagine. Anyone can imagine it. Maybe maybe
32:33
Speaker 1: you can imagine, right, but no one else that hasn't
32:35
Speaker 1: been there can imagine. And that's one of the reasons
32:37
Speaker 1: why we do the work that we do. So these
32:39
Speaker 1: conviction review units, I believe there's not twenty four of
32:41
Speaker 1: them around the country, right, Well, some of some are affected.
32:43
Speaker 3: Summer not some some are for real and some aren't.
32:45
Speaker 3: But some are for show, right, some are for show.
32:48
Speaker 3: But one of the telltale signs is will they bring
32:53
Speaker 3: somebody in to that conviction integrity unit or conviction review
32:58
Speaker 3: unit who has a background as a defense lawyer? Rightly,
33:03
Speaker 3: because the cognitive bias is very, very hard. I mean,
33:07
Speaker 3: you know, I do not believe that there are you know,
33:11
Speaker 3: most prosecutors. I think it's a rare, rare exception you know,
33:15
Speaker 3: actually get up in the morning and say I'm now
33:17
Speaker 3: going to convict an innocent person. I don't, you know,
33:20
Speaker 3: I don't think that really happens. But I think what
33:22
Speaker 3: does happen is, you know, you get what they call
33:26
Speaker 3: hard charging, people who lose track of playing by the
33:30
Speaker 3: rules or the humanity of the defendants or the gravity
33:33
Speaker 3: of their responsibilities. That can happen. And it's a question
33:39
Speaker 3: of you know, cognitive bias. Right, you have to change
33:43
Speaker 3: the whole orientation of how prosecutors look at their job.
33:46
Speaker 3: And by the way, you know, overwhelmed institutional defenders. Right,
33:52
Speaker 3: you know, you have so many cases you begin to
33:54
Speaker 3: look at them and go, well, you know, I got
33:56
Speaker 3: to get through my docket, right, and every case this
34:00
Speaker 3: looks the same, you know, and you don't put in
34:03
Speaker 3: the effort because you.
34:04
Speaker 1: Can't and you don't have the money to hire the
34:07
Speaker 1: type of people that you would need to go and
34:08
Speaker 1: prove you as whereas the government can parade out a
34:10
Speaker 1: forensic thing or design as we saw it again and
34:13
Speaker 1: making a murderer. I just had two more questions I
34:16
Speaker 1: wanted to ask you one, you know, back to the prosecutors.
34:19
Speaker 1: So we need to have as Vanessa was saying, a
34:21
Speaker 1: higher standard or a better way of evaluating prosecutors so
34:26
Speaker 1: that they are more driven to achieve results that are
34:31
Speaker 1: based in fact, let's just call it that as opposed
34:33
Speaker 1: to achieving convictions, to achieve justice as opposed to convictions.
34:37
Speaker 1: But we also need, in my view, we need to
34:40
Speaker 1: have a much stronger system a prosecuting proscutor holy prosecutors
34:45
Speaker 1: accountable in this country. As far as I know, you know,
34:49
Speaker 1: we've had, with all the prosecutorial mist conduct we've seen
34:55
Speaker 1: throughout the decades, there's only really been two cases of
34:58
Speaker 1: any prosecutors being held accountable in a way that winds
35:02
Speaker 1: that lands them up in jail. Barry, can you just
35:04
Speaker 1: speak for a second about the prosecutorial misconduct and how
35:07
Speaker 1: they can be held a constable. What channel changes have
35:09
Speaker 1: to be made for these guys to be thrown out
35:12
Speaker 1: or thrown in jail.
35:13
Speaker 3: Well, there's some simple things that might be done. One
35:19
Speaker 3: is that the Justice Department could bring prosecutions when we
35:24
Speaker 3: find out years later that a prosecutor engaged in deliberate
35:28
Speaker 3: misconduct that led to the conviction of an innocent person
35:32
Speaker 3: intentionally deprived them of their civil rights. The problem that
35:36
Speaker 3: we've had in the past is when we go to
35:38
Speaker 3: the Department of Justice and say, look, we have DNA evidence,
35:42
Speaker 3: we have all kinds of evidence that showed that somebody
35:45
Speaker 3: was deliberately framed. This prosecutor should be prosecuted. They say
35:49
Speaker 3: to us, look, the statute of limitations under federal law
35:54
Speaker 3: is five years, and it's very hard to conjure an
35:59
Speaker 3: ongoing conspiracy to conceal it in most of these cases,
36:03
Speaker 3: so there would be no jurisdiction for the federal government
36:07
Speaker 3: to do that. It's possible to amend the laws, so
36:12
Speaker 3: I think that might make a big difference. The other
36:16
Speaker 3: aspect is that there has to be a concerted effort
36:20
Speaker 3: to hold lawyers to their ethical responsibilities. One of the
36:24
Speaker 3: things we found is that even in bar discipline, there
36:29
Speaker 3: are statual limitations problems, and the bar discipline system does
36:33
Speaker 3: not take seriously those prosecutors who break the rules, and frankly,
36:39
Speaker 3: the defense layers who simply you know, have given up
36:43
Speaker 3: and are just collecting checks and are not providing effective
36:48
Speaker 3: assistance of counsel. And so one of the things we
36:51
Speaker 3: have to do is change that system so that people
36:55
Speaker 3: take that seriously. They can lose their licenses, they can
37:00
Speaker 3: can actually be prosecuted in the most egregious of cases.
37:03
Speaker 3: And if that happens, I think that, you know, you
37:05
Speaker 3: will begin to see change. And we have to we
37:08
Speaker 3: can't talk past each other, and we can't say, you know, demonize.
37:13
Speaker 3: You know, it's not all prosecutors that you know are
37:17
Speaker 3: engaged in this kind of conduct. Far from it.
37:20
Speaker 1: No, there's a lot of good guys out there, you know.
37:22
Speaker 1: And I've always admired that the fact that you managed
37:24
Speaker 1: to keep your sanity through all the things that you've
37:27
Speaker 1: gone through with these crazy cases and the people you've
37:29
Speaker 1: had to deal with. So before we wrap up, Barry,
37:33
Speaker 1: what can you share with us? You served nineteen years
37:35
Speaker 1: in prison for something you didn't do. Your presence always
37:39
Speaker 1: lights up a room, you know. I know that when
37:42
Speaker 1: you all can't see him through the radio, but when
37:44
Speaker 1: you're at the Ennoceince Project dinner, I know I always
37:47
Speaker 1: look forward to seeing you. He's he Barry is a guy.
37:51
Speaker 1: He's I don't even know how to describe him, but
37:54
Speaker 1: he's just a larger than life character. Who is you know,
37:59
Speaker 1: who really drives that It really motivates I still want
38:01
Speaker 1: to do more. You know, when we meet somebody like
38:03
Speaker 1: you who's just got an incredible spirit and uh, you know,
38:07
Speaker 1: who has overcome so much and been and really served
38:10
Speaker 1: the country honorably and done so much, you know good,
38:14
Speaker 1: it's it's a fantastic guy.
38:15
Speaker 2: I suffer to this day, you know, because you took
38:20
Speaker 2: me out of a beautiful home. You threw me into
38:23
Speaker 2: the military. I did a good life for a few years,
38:28
Speaker 2: had a beautiful life, and this happens to me and
38:31
Speaker 2: you throw me in jail. Do you really expect me
38:35
Speaker 2: to feel like other people? I doubt it. I'll never
38:40
Speaker 2: feel that way.
38:40
Speaker 1: You know.
38:41
Speaker 2: I've been through therapy. I've you know, I've I've been
38:45
Speaker 2: through a lot just to survive. I mean, I was
38:49
Speaker 2: in the hospital. I was messed up. I thought I
38:52
Speaker 2: was gonna die. I'm here, I've been saved. I don't
38:56
Speaker 2: know why I got angels around me. If I need
38:59
Speaker 2: a brockram spot it stay up for me. You know,
39:03
Speaker 2: I don't know what it is. You know what I'm saying,
39:07
Speaker 2: And those.
39:07
Speaker 6: Are my angels. Those are my angels that are around me.
39:12
Speaker 6: But the Innocence Project to me is more than just
39:15
Speaker 6: a family. There are hearts. You know there were hearts.
39:28
Speaker 1: Don't forget to give us a fantastic review wherever you
39:30
Speaker 1: get your podcasts, it really helps. And I'm a proud
39:34
Speaker 1: donor to the Innocence Project and I really hope you'll
39:37
Speaker 1: join me in supporting this very important cause and helping
39:40
Speaker 1: to prevent future wrongful convictions. Go to Innocence Project dot
39:44
Speaker 1: org to learn how to donate and get involved. I'd
39:47
Speaker 1: like to thank our production team, Connor Hall and Kevin Wartis.
39:50
Speaker 1: The music in the show is by three time OSCAR
39:53
Speaker 1: nominated composer Jay Ralph. Be sure to follow us on
39:56
Speaker 1: Instagram at Wrongful Conviction and on Facebook at Wrongful Podcast.
40:01
Speaker 1: Wrongful Conviction with Jason Flamm is a production of Lava
40:04
Speaker 1: for Good Podcasts and association with Signal Company Number one