Latest / Wrongful Conviction / #551 Lauren Bright Pacheco with Marvin Grimm Jr.

Transcript

#551 Lauren Bright Pacheco with Marvin Grimm Jr. · Wrongful Conviction

0:00
Speaker 1: This episode of Wrongful Conviction contains discussion of sexual assault
0:04
Speaker 1: and suicidal ideation. Please listen with caution and care. On
0:10
Speaker 1: November twenty second, nineteen seventy five, a three year old
0:14
Speaker 1: boy was reported missing in Richmond, Virginia. A twenty year
0:19
Speaker 1: old neighbor named Marvin Grimm joined the search party, mentioning
0:23
Speaker 1: that he may have seen the boy while running an
0:25
Speaker 1: errand after the body was recovered, investigators question Marvin, threatening
0:32
Speaker 1: him with the death penalty until they got a statement
0:34
Speaker 1: that corroborated what they already believed that the boy had
0:39
Speaker 1: died by exphyxiation related to a sexual assault, and any
0:44
Speaker 1: evidence that arose to the contrary was summarily ignored. This
0:51
Speaker 1: is wrongful conviction. The Fox Foundation is proud to support
0:59
Speaker 1: this episode of wrongful Conviction and the work of After Innocence,
1:03
Speaker 1: a nonprofit that helps hundreds of people nationwide rebuild their
1:07
Speaker 1: lives after wrongful incarceration. Each year, innocent people are released
1:12
Speaker 1: after spending years behind bars for crimes they didn't commit.
1:15
Speaker 1: Nearly all of them leave prison with nothing more than
1:18
Speaker 1: the clothes on their backs, with no help or compensation
1:21
Speaker 1: from the state, as they face the steep challenges of
1:24
Speaker 1: rebuilding their lives after wrongful imprisonment. After Innocence is changing
1:29
Speaker 1: that After Innocence helps exoneries get and make good use
1:33
Speaker 1: of essential services like health care, dental care, mental health support,
1:38
Speaker 1: legal aid, financial counseling, and more. Since twenty sixteen, they've
1:43
Speaker 1: brought that help to more than eight hundred exoneries across
1:47
Speaker 1: forty six states, working tirelessly to ensure that no one
1:51
Speaker 1: released after wrongful incarceration is left behind. Learn more at
1:55
Speaker 1: after dashinnocence dot org and join after Innocence to set
2:00
Speaker 1: support exoneries as they rebuild their lives. I'm Lauren Bright Pacheco.
2:14
Speaker 1: Welcome back to Wrongful Conviction, where we have a Virginia
2:17
Speaker 1: case related to the subject of a twenty twenty three
2:20
Speaker 1: podcast called Admissible. They covered twelve wrongful convictions related to
2:25
Speaker 1: one Virginia forensic examiner named Mary Jane Burton, some of
2:29
Speaker 1: which have been covered here, Thomas Hainsworth, Marvin Anderson, and
2:33
Speaker 1: the list is longer than twelve.
2:36
Speaker 2: Well now several on the list. I knew Julius Ruffin,
2:39
Speaker 2: I used to play ball with him, and I can't
2:41
Speaker 2: think of the other ones I only knew if Thomas Haynesworth.
2:43
Speaker 2: I met him at the AG's office when I was
2:45
Speaker 2: brought in after right after my exoneration, and he was
2:48
Speaker 2: working in the Attorney General's office.
2:51
Speaker 1: That is our guest of honor, Marvin Grimm Junior, welcome
2:55
Speaker 1: and to help tell his story. We have this attorney
2:58
Speaker 1: from Arnold and Porter Angelique celebrity.
3:02
Speaker 3: Thank you for having us.
3:03
Speaker 1: So, Marvin, you're from Richmond, Virginia and had three sisters.
3:08
Speaker 1: Where did you fall in the sibling lineup? I was
3:11
Speaker 1: top dog, so three little sisters, all right, I thought,
3:17
Speaker 1: So tell me a little bit about yourself as a kid.
3:20
Speaker 2: I played hardball as a kid. I played up about
3:23
Speaker 2: the fifteen year old. Because we were moving around, I
3:25
Speaker 2: couldn't get it to stay situated. Because my father, he
3:30
Speaker 2: was a salesman. We had time in Richmond, Georgia, Iowa, Minnesota, Pennsylvania, Ohio,
3:36
Speaker 2: back to Richmond, being up to Mason City, Iowa, and Moorhead, Minnesota.
3:40
Speaker 2: That's where mom and Dad divorced. And when we came
3:42
Speaker 2: back to Richmond, and I felt that I was going
3:44
Speaker 2: to be a drain on the resources. So I said,
3:46
Speaker 2: I'll just go in the Navy. I'm old enough to
3:48
Speaker 2: do it. So that's what I did.
3:50
Speaker 1: And this was in nineteen seventy three, when the Vietnam
3:53
Speaker 1: War was still ongoing.
3:55
Speaker 2: Yeah, so I'm going in boot camp getting ready to graduate. Says, hey,
3:58
Speaker 2: we need some people go to Japan. I said, cool,
4:00
Speaker 2: I'll go to Japan because I did not want to
4:03
Speaker 2: wind up in Vietnam. Well, I didn't know at the
4:05
Speaker 2: time when I volunteered for Japan it's just across the
4:08
Speaker 2: bay from Vietnam. Well, I was impulsive. Our first cruise,
4:13
Speaker 2: we went to the Philippines and while we were in dock,
4:16
Speaker 2: there was an explosion in one of the engine rooms
4:18
Speaker 2: and a couple of the guys that were working in
4:21
Speaker 2: the electricians got burned alive. And I've witnessed it all
4:25
Speaker 2: because I passed right through it. I don't care how
4:28
Speaker 2: strong of a person you are. You see somebody on fire,
4:31
Speaker 2: it can rattle your brain.
4:33
Speaker 1: I can't even imagine that. You started having panic attacks
4:38
Speaker 1: and anxiety. So you were honorably discharged because the anxiety
4:44
Speaker 1: and the panic attacks were getting worse.
4:48
Speaker 2: That's what the psychologist said.
4:50
Speaker 1: So Marvin returned from the Navy, got married to his
4:53
Speaker 1: wife Jan and with a baby on the way. Marvin
4:56
Speaker 1: picked up a second job doing maintenance work at their
4:59
Speaker 1: apartm and complex, and they lived across the hall from
5:03
Speaker 1: the victim and his family, with whom Marvin had two
5:07
Speaker 1: trivial run ins, like accidentally running over a few small
5:11
Speaker 1: toys with the lawnmower. The family also had a dog.
5:15
Speaker 2: I was going back here with the ride lawnmower, and
5:17
Speaker 2: I knocked on the door and asked him to take
5:19
Speaker 2: the dog in because I didn't want to run him
5:21
Speaker 2: over the lawnmower. So that night and I came back,
5:24
Speaker 2: the stepfather was standing there on the car and he
5:27
Speaker 2: threatened me behind, saying I'm going to run his dog over.
5:30
Speaker 2: And I said I adn't saying running your dog over.
5:33
Speaker 2: I walked away from him and kept going. The running
5:36
Speaker 2: over the toys was an accident by the lawnmower too.
5:39
Speaker 1: Later on, this interaction became an alleged motive in the
5:45
Speaker 1: death of the neighbor's three year old son, who was
5:48
Speaker 1: reported missing by the mother on November twenty second, nineteen
5:51
Speaker 1: seventy five.
5:53
Speaker 3: She calls the Richmond Police and she says that she
5:56
Speaker 3: last saw her boy at about one point thirty headed
6:01
Speaker 3: into a wooded area behind the apartment complex. She caused
6:04
Speaker 3: the cops to report him missing at two forty pm.
6:08
Speaker 3: The officers respond pretty quickly and they show up at
6:11
Speaker 3: the apartment complex at two forty five pm. They don't
6:14
Speaker 3: know the exact location, so they just randomly happened to
6:17
Speaker 3: knock on Marvin's door, who lived in the same apartment
6:20
Speaker 3: complex as the boys family.
6:22
Speaker 2: So I'm watching the game when I get a knock
6:25
Speaker 2: on the door. This guy doesn't identify himself. He just
6:27
Speaker 2: asked me who in the building has children? I said, well,
6:30
Speaker 2: the only ones across the hall. After the game, that's
6:33
Speaker 2: when I go out straight down the road to the highway.
6:36
Speaker 2: I thought I saw the victim and his a dog
6:40
Speaker 2: jump out from behind a car. I didn't think of anything.
6:43
Speaker 2: So when I come back, Channel twelve is set up
6:46
Speaker 2: and there's people running around everywhere. So I go over
6:48
Speaker 2: and see what's going on. They told me the victim
6:50
Speaker 2: was missing. I said, well, I just thought I saw
6:52
Speaker 2: him such and such. Well take us there and then
6:55
Speaker 2: we searched all around the area, and then I was
6:58
Speaker 2: going down to see my wife at night hospital. So
7:00
Speaker 2: we did it for about an hour. Then they thanked
7:02
Speaker 2: me and I went home got ready to go down
7:04
Speaker 2: to the hospital.
7:05
Speaker 1: Marvin's pregnant wife, jan was dealing with preclampsia, sometimes known
7:10
Speaker 1: back then as toxemia, so she was being monitored at
7:13
Speaker 1: the hospital. Meanwhile, a massive search operation was underway, which
7:19
Speaker 1: ended four days later when the little boy was found
7:22
Speaker 1: lying face up, fully clothed in shallow water in the
7:26
Speaker 1: James River, about nine miles from the apartment complex.
7:31
Speaker 3: The medical examiner saw what she described to be a
7:35
Speaker 3: white gelatinate material at the back of the boy's throat,
7:39
Speaker 3: so she swabs the boy's throat, puts it under a
7:41
Speaker 3: microscope and reports seeing sperm and so she ultimately concludes
7:45
Speaker 3: that the boy asphyxiated, with the implication being that he
7:49
Speaker 3: was orally sodomized and choked to death during the assault.
7:53
Speaker 3: Detectives were under a lot of pressure to solve this crime.
7:57
Speaker 3: I know the father of the boy had provided a
8:00
Speaker 3: list of individuals upon the request of the officers, but
8:04
Speaker 3: when they went weeks without any suspects or leads, they
8:08
Speaker 3: zeroed in on Marvin because he was a neighbor to
8:10
Speaker 3: the boys family.
8:12
Speaker 1: And Marvin had mentioned to the initial responders that he
8:16
Speaker 1: thought he had seen the boy while driving that afternoon.
8:19
Speaker 2: That and plus the even parents had told him that
8:21
Speaker 2: we'd had problems in the past. Here's the FBI knocking
8:24
Speaker 2: on my door. Write this statement saying you saw this,
8:27
Speaker 2: victims such and such, such and such, no problem. Then
8:30
Speaker 2: all of a sudden, the Richmond Police Department kept coming
8:33
Speaker 2: over to my house talking to me, and they kept
8:35
Speaker 2: trying to get me to say something about somebody else,
8:39
Speaker 2: and I said, I don't know anything about this. I
8:41
Speaker 2: can't say who did what or did not do what.
8:44
Speaker 1: Unwilling to create a different target, Marvin was asked to
8:48
Speaker 1: take a polygraph.
8:50
Speaker 2: I had nothing to hide, but that polygraph was strange
8:53
Speaker 2: because they gave me asked me about five questions. Then
8:56
Speaker 2: he just started strutting the thing off, jerking things around
8:59
Speaker 2: and said, man, you're lying. The police come running in
9:01
Speaker 2: and start screaming at me. So I took it as
9:03
Speaker 2: a setup, and that's when I figured out, hey, there
9:06
Speaker 2: after me, can.
9:07
Speaker 1: You also explain to me, just for somebody who doesn't
9:10
Speaker 1: really understand what it's like to deal with panic disorder,
9:15
Speaker 1: what goes through your body, like how your heart.
9:18
Speaker 2: Rate will increase, you will sweat, so you know, the
9:22
Speaker 2: polograph takes your breathing. It does your heart and everything.
9:25
Speaker 2: So if I got a racing heart and I'm breathing
9:28
Speaker 2: heavy and sweat, and They're going to think I'm lying
9:30
Speaker 2: about something. So that's when I told the police I
9:34
Speaker 2: have problems with anxiety depression and I forget things. The
9:38
Speaker 2: Navy they call them blackouts, because I call them blackouts.
9:41
Speaker 2: I don't know if I can explain that exactly I
9:44
Speaker 2: would be doing stuff. Then I come back. Oh man,
9:46
Speaker 2: I didn't know was that time like that? So that's
9:49
Speaker 2: when I told the police about it, and I guess
9:51
Speaker 2: that's when everything changed.
9:53
Speaker 1: However, Marvin's momentary alertness lapses, as well as police allegations
9:59
Speaker 1: of deceit fullness, were not enough to make an arrest.
10:03
Speaker 1: After all, our audience is quite familiar with the use
10:06
Speaker 1: of polygraphs as cudgeled to coerce false confessions, and it
10:11
Speaker 1: hadn't worked, so they took another stab a few days
10:14
Speaker 1: later when they picked up Marvin from work at around
10:17
Speaker 1: four forty pm for more questioning.
10:20
Speaker 3: Marvin had worked a nine hour shift and they proceeded
10:23
Speaker 3: to interrogate him for nearly ten hours without ever turning
10:27
Speaker 3: on the tape recorder.
10:29
Speaker 2: We was in a room about the size of your bathroom,
10:31
Speaker 2: four of them sitting around me. I was fenced in.
10:35
Speaker 2: All they said was, you know you're being questioned. You
10:37
Speaker 2: can have a lawyer if you wanted. I knew I
10:39
Speaker 2: hadn't done anything, so why do I need a lawyer.
10:42
Speaker 2: They started getting upset with me, getting loud, hollering at
10:46
Speaker 2: you don't tell us what happened. If we convict you,
10:48
Speaker 2: we're going to give you a death penalty and all
10:49
Speaker 2: that stuff like that. So I started having a panic
10:53
Speaker 2: attack at that time. So it was around eleven o'clock.
10:56
Speaker 2: They just finally said, man, I'm trying to get out
10:58
Speaker 2: of here. I want to get away from this. What
11:00
Speaker 2: do you want me to say?
11:01
Speaker 3: At this point, Marvin, who is twenty years old, he's young,
11:05
Speaker 3: He's been awake for nearly twenty four hours.
11:08
Speaker 1: And suffering with PTSD and anxiety.
11:11
Speaker 3: Attacks exactly, he just wants to go home. So he
11:14
Speaker 3: finally tells them what they want to hear.
11:17
Speaker 1: And not only that, but parents back details that only
11:22
Speaker 1: they knew at that point or thought they knew.
11:26
Speaker 3: If you listen to the confession, even if you read
11:29
Speaker 3: the transcript, there are several red flags that stand out
11:33
Speaker 3: that this is not a reliable confession. So, for example,
11:38
Speaker 3: Marvin is unable to supply any of the details, and
11:41
Speaker 3: so the officer has to supply the details of the act.
11:45
Speaker 2: They asked me, did you sexual assaultant? I'm like what
11:49
Speaker 2: that was? When I was stuttering, but la la la lah,
11:51
Speaker 2: and he said, you put his mouth over your privates.
11:54
Speaker 2: I didn't even know he was sex and exulted.
11:56
Speaker 3: To that moment, the officers ask Marvin what he did
12:00
Speaker 3: to the boy, and Marvin responds, I forced sexual assault.
12:06
Speaker 3: To me, that sounds like language that a detective would
12:09
Speaker 3: use rather than a twenty year old man.
12:12
Speaker 2: And by the way, I never took them to where
12:13
Speaker 2: the body was found. They played it up that I
12:15
Speaker 2: took them, but they really took.
12:17
Speaker 1: Me right after the interrogation.
12:19
Speaker 2: Right, this is two about two thirty in the morning.
12:22
Speaker 2: I've been up almost twenty four hours.
12:25
Speaker 1: And when do you realize that you've confessed to something
12:28
Speaker 1: you didn't do?
12:29
Speaker 2: The next day, when they pulled me in the rain me,
12:32
Speaker 2: I guess it was around six o'clock. They took me
12:33
Speaker 2: over to a courtroom in front of the magistrate and
12:36
Speaker 2: he told me I'm charged with murder and asked me
12:39
Speaker 2: in my financial situations before appointing me an attorney. My
12:43
Speaker 2: son was born ten days before I was arrested. I
12:46
Speaker 2: only knew him for ten days.
12:48
Speaker 1: How did you explain the fact that you had confessed
12:51
Speaker 1: to something that you didn't do to your family, to
12:54
Speaker 1: your wife.
12:56
Speaker 2: They visited me in the jail, I think the second
12:59
Speaker 2: day I was there. I told him I didn't have
13:00
Speaker 2: nothing to do with it, and I said, I don't
13:02
Speaker 2: understand how they can charge me. And then Jan spoke
13:05
Speaker 2: up and said, you know, they came through and took
13:06
Speaker 2: all their medication.
13:08
Speaker 3: So in Virginia, it's not enough to have a confession
13:12
Speaker 3: from somebody to achieve a conviction. You also have to
13:15
Speaker 3: have evidence that corroborates the confession. So after they got
13:19
Speaker 3: what they wanted from Marvin, they had to go execute
13:22
Speaker 3: a search board and then they collected the evidence that
13:24
Speaker 3: they would then use to corroborate the confession in the
13:28
Speaker 3: autopsy report. The toxicology report that came back showed high
13:32
Speaker 3: levels of alcohol and Cler's oxyzone, which is a prescription
13:35
Speaker 3: muscle relaxant in the boys' system.
13:38
Speaker 2: My wife had toxemia, but they took all of her
13:40
Speaker 2: medication at the hospital that gave her for that.
13:43
Speaker 1: Because they wanted to claim that.
13:45
Speaker 2: The drugs and the alcohol, which I had no idea
13:48
Speaker 2: what happened.
13:49
Speaker 3: Marvin never mentioned that in his confession. We think that
13:53
Speaker 3: the officers were trying to get that information out of
13:56
Speaker 3: him by asking, well, how did you get the boy
13:58
Speaker 3: to comply? But Marvin never makes any mention of the
14:01
Speaker 3: drugs or the alcohol.
14:02
Speaker 1: Remember, the victim's mother had reported that the last time
14:06
Speaker 1: she'd seen her son was around one thirty PM, and
14:10
Speaker 1: then first responders knocked on Marvin's door just seventy five
14:14
Speaker 1: minutes later, around two forty five PM.
14:18
Speaker 3: So we worked with a toxicologist to calculate how long
14:21
Speaker 3: it would have taken for the alcohol to reach the
14:24
Speaker 3: levels that it did in the boy's system, and a
14:28
Speaker 3: toxicologist puts that time period at ninety to one hundred
14:31
Speaker 3: and fifty minutes, which is well outside the seventy five
14:33
Speaker 3: minutes that Marvin would have had to commit all the
14:36
Speaker 3: acts that he states in his false confession.
14:39
Speaker 1: The police search turned up a few other items, a
14:42
Speaker 1: pair of shoes which Marvin said were torn up while
14:45
Speaker 1: dumping the body. There's also blonde hairs from Marvin's car
14:50
Speaker 1: and the pea coat.
14:51
Speaker 3: So he says that he wrapped the boy in a
14:55
Speaker 3: pea coat and tossed the boy forty feet into the river.
15:00
Speaker 2: I don't care. Arnold Schwarzenegger couldn't throw a dead body
15:02
Speaker 2: forty five feet. It was physically impossible.
15:05
Speaker 3: The other thing is that the boy's body was found
15:08
Speaker 3: with his arms crossed, as though he had been placed
15:11
Speaker 3: in the river. So it doesn't make sense that the
15:13
Speaker 3: body would land with its arms crossed if tossed in
15:16
Speaker 3: the way that Marvin described.
15:18
Speaker 2: And then when my lawyers first brought me the statement
15:21
Speaker 2: I had seen where I had said something about the
15:23
Speaker 2: pea coat and the shoes, and I explained them my
15:25
Speaker 2: shoes were destroyed at work. And then I says that
15:28
Speaker 2: pea coat was not even in my possession. My sisters
15:31
Speaker 2: had been using and my mom would wear it was
15:33
Speaker 2: my pea coat from the Navy. My sister's Patty used
15:36
Speaker 2: it to most. Now she's blind, and so is my
15:38
Speaker 2: little sister Lisa.
15:40
Speaker 1: But this was nineteen seventy five. DNA testing was not
15:44
Speaker 1: available yet, so the state's expert, Mary Jane Burton, sent
15:49
Speaker 1: the throat swabs for serological testing to find the blood
15:53
Speaker 1: type and then examine the hares under a microscope.
15:57
Speaker 3: Hair of my cross copee has now been debunked. It's
16:00
Speaker 3: a junk science, but at the time it was considered valid,
16:03
Speaker 3: and so Mary Jane Burton concluded that the hairs matched
16:06
Speaker 3: the three year old boy, placing the boy in Marvin's car.
16:10
Speaker 3: The other evidence that they obtained from Marvin was two
16:14
Speaker 3: towels from his car, and Mary Jane Burton said that
16:17
Speaker 3: there was ejaculate on one of the towels, which would
16:19
Speaker 3: seemingly corroborate the sexual assault theory.
16:22
Speaker 1: So, while they awaited the results of the serological testing
16:26
Speaker 1: from the victim's throat swabs, Marvin awaited trial under the
16:31
Speaker 1: care of a state appointed psychiatrist, all while his appointed
16:35
Speaker 1: attorney failed to develop any of the issues that discredit
16:40
Speaker 1: his statement or the state's theory.
16:43
Speaker 2: My lead attorney he was Robert Dooling. The police chief's
16:46
Speaker 2: name was Frank Louling. He was the family member of
16:49
Speaker 2: the police chief that was prosecuting me.
16:51
Speaker 1: That would seem like a bit of a conflict.
16:53
Speaker 2: Right at the time that he was representing me, he
16:56
Speaker 2: was up for judgeship in Virginia.
16:58
Speaker 1: And then the prology results came back.
17:01
Speaker 2: My attorney said, ed the saliva, and here's samples that
17:04
Speaker 2: it took from you. Inconclusive, they can't make a determination.
17:09
Speaker 2: Beth was the reason I entered the guilty piece. Said
17:10
Speaker 2: we didn't have anything to prove your innocence with. So
17:13
Speaker 2: he said, what's the only way we will save your life?
17:15
Speaker 2: So you should take the plead.
17:17
Speaker 1: But there are two issues with this advice to plead guilty,
17:21
Speaker 1: one of which we'll address now.
17:24
Speaker 3: So in Virginia at this time, the death penalty was
17:27
Speaker 3: only available for certain types of murder, murder for higher
17:31
Speaker 3: murder where there is extortion, and then murder by an
17:33
Speaker 3: inmate in prison. The crime that Marvin was accused of
17:37
Speaker 3: very obviously did not fall into any of those categories,
17:40
Speaker 3: and so there was no way death penalty would have
17:42
Speaker 3: ever been on the table for this crime.
17:44
Speaker 1: So the threat of death touted by both his interrogators
17:48
Speaker 1: and now by his own attorney didn't exist. Nonetheless, to
17:53
Speaker 1: seal the deal, the evidence underlying his guilty plea still
17:57
Speaker 1: needed to be heard by a judge, so hearing was
18:00
Speaker 1: held in March nineteen seventy six, where the medical examiner,
18:04
Speaker 1: Doctor Fierro, testified about the existence of sperm on the
18:09
Speaker 1: throat swabs as well as the towel, followed by Mary
18:13
Speaker 1: Jane Burton's findings that the hair from the pea coat
18:17
Speaker 1: and car were consistent with the victims, at which point
18:21
Speaker 1: the serological report was submitted to evidence, and importantly, doctor
18:27
Speaker 1: Fierro represented that the report did not change her conclusions
18:32
Speaker 1: from the preliminary report. Additionally, Marvin's attorney, Robert Doolan, did
18:37
Speaker 1: not challenge that assertion, and Mary Jane Burton was not
18:41
Speaker 1: called to testify about her findings or the sorology report.
18:46
Speaker 1: Then a detective took the stand to testify about Marvin's confession.
18:50
Speaker 3: The prosecution at the hearing describe how Marvin took the
18:55
Speaker 3: officers to the boy's body, but really it was the
18:57
Speaker 3: officers who took Marvin to where the box was found.
19:01
Speaker 3: The other point is that this was a highly publicized crime.
19:04
Speaker 3: There were details about the crime and the newspapers, including
19:08
Speaker 3: a detailed map of where the body was found.
19:11
Speaker 1: But Marvin's attorney didn't point that out either, or any
19:15
Speaker 1: of the other issues that could have discredited his false confession,
19:19
Speaker 1: and somehow an already terrible situation was made worse during
19:25
Speaker 1: that time.
19:26
Speaker 2: I was not in touch with reality. The psychiatrists I
19:29
Speaker 2: was seeing appointed by the state and he was keeping
19:31
Speaker 2: me on senequon value and something else. I forget what
19:34
Speaker 2: it is.
19:35
Speaker 1: Do you even remember the verdict?
19:38
Speaker 2: I remember as the judge was saying something, he seemed
19:41
Speaker 2: to be highly pissed. I want to say. During the
19:44
Speaker 2: guilty plea hearing, my attorneys warned me to keep my
19:47
Speaker 2: mouth shut, don't go in and a running my mouth
19:50
Speaker 2: because I was telling them I was innocent. They said,
19:52
Speaker 2: if you go and run in your mouth, the judge
19:54
Speaker 2: ain't going to accept you guilty, please, and you go
19:57
Speaker 2: get the death penalty.
19:58
Speaker 3: But the death plony was never on the table. It
20:00
Speaker 3: wasn't available for the crime with which he was charged.
20:03
Speaker 3: But Marvin, he was afraid of dying, and he was
20:07
Speaker 3: promised that he would be out in fifteen years. Of
20:09
Speaker 3: course we know that didn't happen.
20:11
Speaker 2: I was promised orally promised by both sides I'd be
20:16
Speaker 2: out in fifteen years, but they didn't put it in writing.
20:34
Speaker 2: I tried to keep the emotions out of it, because
20:36
Speaker 2: I knew if I got the emotions in anxiety would
20:39
Speaker 2: come about, and so with my depression, I was trying
20:43
Speaker 2: to stay away from that because during that time I
20:47
Speaker 2: had thought about it and actually tried at the city
20:49
Speaker 2: jail to commit suicide. Remember I told you Amy on Senequan.
20:54
Speaker 2: So I figured if I kept enough huh saved up,
20:57
Speaker 2: then i'd take it all one time. There I could
21:00
Speaker 2: probably get out of this situation. And don't ever think
21:03
Speaker 2: people are doing it because they're guilty of something they're not.
21:07
Speaker 2: You've ever been in a situation where nothing seems to
21:09
Speaker 2: go right, No matter what you do, it goes wrong.
21:13
Speaker 2: That was the kind of situation where I was living
21:15
Speaker 2: in at that time. So I was tired of life.
21:18
Speaker 2: I didn't want anything more to do with life. But
21:21
Speaker 2: all I did was sleep for two days and then
21:23
Speaker 2: I woke up. I spent my first five or six
21:27
Speaker 2: years in protective custody the administration. They didn't want my
21:31
Speaker 2: death on their head.
21:33
Speaker 1: I would assume that you're looked at as a bit
21:36
Speaker 1: of a pariah by the other inmates. With a much
21:41
Speaker 1: more uncomfortable than typical prison experience, Marvin began studying the
21:46
Speaker 1: law god his trial transcripts as well as the related
21:50
Speaker 1: records in which he found the serology report for the
21:53
Speaker 1: throat swabs.
21:54
Speaker 3: When Mary Jane Burton did that blood testing, Marvin is
21:58
Speaker 3: type A, the boys type Oh, the results come back
22:02
Speaker 3: showing type of secretions excluding Marvin, and that's something that
22:06
Speaker 3: they knew back in seventy six.
22:09
Speaker 1: Yet Marvin's own attorney never raised this clearly exculpatory report
22:14
Speaker 1: while advising him to plead guilty and save himself from
22:18
Speaker 1: certain death. I think it's worth mentioning that this attorney,
22:22
Speaker 1: Robert Doolan, accepted a judgeship in Virginia soon after Marvin's conviction. Anyway,
22:29
Speaker 1: this sorology report seems like it should have been very
22:32
Speaker 1: useful on appeal.
22:34
Speaker 2: Yeah.
22:34
Speaker 3: So, I think one of the most fascinating facts about
22:38
Speaker 3: Marvin's case, in equally infuriating, is that Marvin had raised
22:43
Speaker 3: a lot of the same arguments that we ultimately raised
22:46
Speaker 3: in the petition in twenty twenty three that ultimately led
22:50
Speaker 3: to his exoneration, but he was denied on procedural grounds,
22:54
Speaker 3: or because that there were certain archaic statutes still on
22:59
Speaker 3: the books that made it very difficult for somebody like
23:01
Speaker 3: Marvin to prove his innocence. So for example, in Virginia,
23:06
Speaker 3: it used to be that if you had fled guilty,
23:09
Speaker 3: you could not petition for a writ of actual innocence.
23:12
Speaker 3: Of course, we know there are lots of reasons why
23:15
Speaker 3: somebody might plead guilty to a crime. They did it too,
23:18
Speaker 3: and that hurdle was not removed until twenty twenty.
23:21
Speaker 1: And here it was barely creeping into the nineteen eighties.
23:26
Speaker 1: But by the end of that decade we had the
23:29
Speaker 1: advent of DNA testing, at which point Marvin petitioned to
23:33
Speaker 1: test his evidence, but Virginia did not have a statute
23:36
Speaker 1: that allowed for it until two thousand and one, and
23:39
Speaker 1: Marvin hired an attorney named Mike Brickhill to handle his proceedings.
23:44
Speaker 2: By this time, my father had passed and he left
23:47
Speaker 2: me a bit of an inheritance, so I paid mister
23:50
Speaker 2: Brickhill to get my first runt of DNA testing done.
23:53
Speaker 2: And the judge that was presiding over the case for
23:56
Speaker 2: the DNA testing, he didn't know me, but he's telling
23:59
Speaker 2: my attorney all about the case. Well, then Brickhill found
24:03
Speaker 2: out Robert Dooling, my ex attorney. It was now judge
24:06
Speaker 2: was sitting in the back of the courtroom so the
24:09
Speaker 2: judge wasn't going to grant it, but the Commonwealth job
24:13
Speaker 2: said no, no, no, y're are we agree. Let's get this
24:15
Speaker 2: settle once and for all.
24:17
Speaker 1: The first round of testing for the throat swabs either
24:20
Speaker 1: excluded Marvin or were inconclusive, but the victim could be
24:26
Speaker 1: excluded from the hares on the PEA code they were
24:29
Speaker 1: all female, but the hares from the car could not
24:33
Speaker 1: yet be excluded.
24:34
Speaker 2: The problem was is they didn't get a sample of
24:37
Speaker 2: the victims, so they couldn't identify whose DNA it was
24:40
Speaker 2: they had. So the Commonwealth said they were not going
24:43
Speaker 2: to recognize the results of the DNA testing. Furthermore, they're
24:48
Speaker 2: going to oppose any more DNA testing that you request.
24:51
Speaker 3: And so the Supreme Court of Virginia denied the relief
24:54
Speaker 3: a on a procedural grounds as untimely. But then they
24:57
Speaker 3: also pointed to the fact that Marvin had pled guilty
25:00
Speaker 3: and that there were still some swabs that hadn't been
25:03
Speaker 3: excluded by DNA tests, and it still some of the
25:06
Speaker 3: hairs hadn't been excluded as the boys.
25:09
Speaker 1: Soon mister brick Hill enlisted the Innocence Project, who tried
25:12
Speaker 1: to access a vial of blood that could provide a
25:15
Speaker 1: DNA profile for the victim. But still the fact that
25:19
Speaker 1: Marvin pled guilty was a major obstacle to relief. So
25:23
Speaker 1: they also went to work on lobbying for legislation and
25:27
Speaker 1: eventually the team at Arnold and Porter also came on board.
25:32
Speaker 3: When we joined forces with the Nison's project on this case,
25:35
Speaker 3: our first goal was to prepare the clemency petition, but
25:38
Speaker 3: we knew that that was a long shot, and so
25:41
Speaker 3: we continued to collaborate with the ennosonce project working to
25:44
Speaker 3: get Marvin released on a role while we would continue
25:48
Speaker 3: to fight for his innocence. And so our strategy was
25:53
Speaker 3: really to understand the facts of the case, not just
25:56
Speaker 3: the DNA what was the timeline?
25:59
Speaker 1: So they I enlisted renowned false confession expert doctor Richard
26:03
Speaker 1: Leo to develop the evidence that discredited the false confession,
26:07
Speaker 1: as well as the toxicology expert who we mentioned earlier. Meanwhile,
26:12
Speaker 1: Marvin visited the parole board for the twenty seventh time
26:16
Speaker 1: in twenty twenty, where perhaps some of the new evidence
26:19
Speaker 1: had an effect as he was released after nearly forty
26:23
Speaker 1: five years.
26:24
Speaker 2: Well, I went in December and I came out in November,
26:28
Speaker 2: so it's forty four years and eleven months.
26:31
Speaker 1: That is your entire adult life to a certain extent.
26:38
Speaker 1: I know that you were compensated ultimately, right, But money.
26:44
Speaker 2: I don't care about the money. They should take the
26:46
Speaker 2: money to build the time machine and take me back
26:48
Speaker 2: to the day before I've arrested and leave me the
26:51
Speaker 2: hell alone. That's the way I think about it. I'd
26:54
Speaker 2: rather have the time back than the money. I wasn't
26:56
Speaker 2: at here as the world evolved when I came out
26:59
Speaker 2: in April twenty twenty. I was still thinking it was
27:01
Speaker 2: nineteen seventy five. Perfect example was when I made parole
27:05
Speaker 2: in Virginia. If you're a registered sex offender and they
27:07
Speaker 2: drop you off at your parole office, she gives me
27:10
Speaker 2: the rules and then they put a monitoring ankle bracelet
27:13
Speaker 2: on me and gave me this box GPS trackers, and
27:17
Speaker 2: she was explaining how it can pinpoint you on the map.
27:20
Speaker 2: So we go to leave take off down the road.
27:22
Speaker 2: The thing starts ringing and I don't know what it is,
27:26
Speaker 2: so I hit the button turned it off. It started
27:28
Speaker 2: ringing again, so I turned it off again. All of
27:31
Speaker 2: a sudden, my sister's phone rings and if my parole
27:35
Speaker 2: officer telling her tell him to answer that phone. I
27:37
Speaker 2: said that he' supposed to have the phone. He's been
27:40
Speaker 2: in prison for the last forty five years. So anyway,
27:43
Speaker 2: she called me again and I answered it, and we
27:46
Speaker 2: talked for a minute, and then she said, by the way,
27:47
Speaker 2: tell your sister to.
27:48
Speaker 1: Slow down, because they knew exactly how fast she was driving.
28:05
Speaker 1: After Marvin was paroled in twenty twenty, the fight to
28:09
Speaker 1: clear his name continued, and through the efforts of the
28:12
Speaker 1: Innocence Project in New York as well as the UVA
28:15
Speaker 1: School of Law to educate legislators on the issues facing
28:19
Speaker 1: many of the wrongfully convicted. New legislation passed first in
28:23
Speaker 1: twenty twenty, making Marvin's guilty plea no longer an obstacle
28:28
Speaker 1: to a wrint of actual innocence, and then another breakthrough
28:32
Speaker 1: happened in twenty twenty one.
28:35
Speaker 3: In Virginia, they would only consider DNA testing done by
28:39
Speaker 3: the state lab. And that's problematic because private laboratories sometimes
28:45
Speaker 3: have more advanced technology and they might be able to
28:49
Speaker 3: extract a DNA sample when the state lab might not
28:53
Speaker 3: be able to. And so that law changed in twenty
28:57
Speaker 3: twenty one and Virginia would allow for DNA testing by
29:00
Speaker 3: a private laboratory. So we had three labs look at
29:04
Speaker 3: the swaps that the medical examiner had taken from the
29:06
Speaker 3: boy's mouth that they said at that time had sperm
29:10
Speaker 3: on them, suggesting that the boy had been sexually assaulted.
29:14
Speaker 3: Three different labs looked at the swabs and could not
29:17
Speaker 3: find sperm, and that is problematic because sperm is one
29:24
Speaker 3: of the hardiest cells in the human body, and so
29:28
Speaker 3: experts have said that you can find sperm on a
29:32
Speaker 3: degraded sample long after the epithelial skin cells have degraded.
29:37
Speaker 3: You will find it on a sample that has been
29:39
Speaker 3: poorly kept. And so the fact that it wasn't there
29:44
Speaker 3: even though there was DNA from skin cells on the swabs,
29:47
Speaker 3: that DNA just happened to match the boy, not Marvin.
29:51
Speaker 3: That means that the boy likely wasn't sexually assaulted, and
29:55
Speaker 3: that the substance in the boy's throat was likely his
29:58
Speaker 3: own phlegm. So that was one piece of new evidence
30:01
Speaker 3: that we used in our petition. The same labs had
30:04
Speaker 3: also looked at the towel that Mary Jane Burton had
30:07
Speaker 3: said contained sperm on it. And had concluded there was
30:10
Speaker 3: also no sperm on the towel.
30:12
Speaker 2: The towel it was in my car, but I used
30:14
Speaker 2: on cold days wipe down the windshield instead of waiting
30:17
Speaker 2: for the defrostr I'd wipe the windshield down. That's what
30:19
Speaker 2: that towel was.
30:20
Speaker 1: So it appears that the state's experts presented false testimony
30:25
Speaker 1: to support the exphyxiation by sexual assault theory.
30:30
Speaker 3: And then the other DNA piece of evidence that we used.
30:34
Speaker 3: Modern DNA testing of the eight hares found in Marvin's
30:37
Speaker 3: car excluded the boy as the source from those hair,
30:41
Speaker 3: so no longer placing the boy and Marvin's car.
30:45
Speaker 1: Not only were the hares not the boy in.
30:49
Speaker 3: Question, they belonged to six six different people. Yes, yes,
30:53
Speaker 3: which just shows you how junk science hair microscopy is.
30:57
Speaker 3: Some of the hairs were female and the co Marvin's
31:00
Speaker 3: sisters had been wearing. The new evidence shows that Marvin
31:04
Speaker 3: confessed to an impossibility. What he pleaded to, what he
31:07
Speaker 3: confessed to did not happen. There's no evidence of a
31:10
Speaker 3: sexual assault. The new toxicology report shows that Marvin couldn't
31:15
Speaker 3: have done everything that he said in his statement in
31:18
Speaker 3: the seventy five minute window really is an impossible feat.
31:23
Speaker 1: As was the alleged forty foot launch of the body
31:27
Speaker 1: into a riverbed where the victim was found with his
31:29
Speaker 1: hands neatly folded on his chest. So they piled this
31:34
Speaker 1: new evidence into their filing in April of twenty twenty three.
31:39
Speaker 3: After we filed the petition in twenty twenty three, we
31:42
Speaker 3: had met with the Attorney General's office, had presented our case,
31:45
Speaker 3: answered some of the questions that they had, and I
31:48
Speaker 3: think left feeling good. But in these cases, you never
31:51
Speaker 3: want to assume that the other side is going to
31:54
Speaker 3: join your petition, no matter how strong of the case
31:56
Speaker 3: you think you have. And I should say that the
32:00
Speaker 3: Virginia Attorney General's Office did a fantastic job at doing
32:04
Speaker 3: their own investigation and in fact uncovered exculpatory evidence that
32:09
Speaker 3: we had no idea existed. So in Marvin's statement, he
32:13
Speaker 3: says that he tore his shoe on the river bank
32:17
Speaker 3: throwing the body into the river, And so they had
32:19
Speaker 3: taken his shoe and done testing of the dirt on
32:22
Speaker 3: the shoe to see if it matched the soil from
32:25
Speaker 3: where the body was found. And there is a report
32:28
Speaker 3: showing that it doesn't match, which is exculpatory.
32:32
Speaker 1: And while the state's reinvestigation continued through the spring of
32:36
Speaker 1: twenty twenty three, a podcast called Admissible Shreds of Evidence
32:41
Speaker 1: released twelve episodes covering twelve wrongful conviction cases tied to
32:47
Speaker 1: one Virginia LabTech Mary Jane Burton, who was initially lauded
32:52
Speaker 1: as a hero for having saved physical evidence from decades
32:55
Speaker 1: old cases that would have otherwise been destroyed.
32:59
Speaker 3: Yeah, so it's unfortunate because people viewed her as a
33:02
Speaker 3: hero because her preservation of this evidence allowed people to
33:07
Speaker 3: test that evidence later on and clear their name. But
33:11
Speaker 3: then it also begs the question, well, were they wrongfully
33:13
Speaker 3: convicted in the first place because of Mary Jane Burton?
33:16
Speaker 1: And a whistleblower came forward who was positing exactly that
33:21
Speaker 1: one who had also tipped the podcasters to Marvin's case.
33:26
Speaker 2: Did you ever hear the thirteenth episode called the Fallout,
33:29
Speaker 2: where the podcaster found out through the whistleblower about my case.
33:33
Speaker 2: She described the whole case and she said that Mary
33:36
Speaker 2: Jane Burton is being under pressure to come to these conclusions.
33:39
Speaker 2: And they talked to the Attorney General and he told
33:41
Speaker 2: them about the investigation they did. They basically said they
33:44
Speaker 2: came away from the labs standing was this really a crime?
33:48
Speaker 1: After all, there was no evidence of sexual assault. There
33:52
Speaker 1: was the presence of prescription drugs and alcohol which may
33:55
Speaker 1: have been accidentally ingested, potentially leading to an unfortunate series
34:00
Speaker 1: of events ending in death, and perhaps the Attorney General's
34:04
Speaker 1: office came to the same conclusion, and they reached out
34:08
Speaker 1: to Marvin's team.
34:09
Speaker 2: They told my attorneys that they're one hundred percent behind me.
34:13
Speaker 2: I'm innocent. I need to be granted rit of actual innocence.
34:15
Speaker 2: And then we finally got the oral arguments and I
34:18
Speaker 2: sat in I was very very unhappy with what I heard,
34:21
Speaker 2: and the judges when they got ready to close it,
34:23
Speaker 2: and he says, well, you'll be hearing from us soon
34:26
Speaker 2: rather than later. And sure enough, like twenty eight days later,
34:29
Speaker 2: here comes the decision of the court.
34:31
Speaker 3: Marvin got the order from the Virginia Court of Appeals
34:34
Speaker 3: that he was exonerated.
34:36
Speaker 1: So when was the first time that you really truly
34:38
Speaker 1: felt free?
34:40
Speaker 2: I was about two weeks later. I decided I'm going
34:43
Speaker 2: down to visit my friend in Virginia Beach. He's another
34:46
Speaker 2: Exgonnery that was in Greensville with me. He hasn't been
34:48
Speaker 2: officially exonerated yet, but he was granted parole based upon
34:52
Speaker 2: DNA testing. So I went down to seem and as
34:55
Speaker 2: far out as I'd been from the city was the airport.
34:58
Speaker 2: So as I passed by the exit, I was a
35:00
Speaker 2: little nervous. I kept I kept thinking, oh man, what's
35:04
Speaker 2: going to happen here? But that finally hit me by
35:07
Speaker 2: the time I got to the Virginia Beach. Hey, I
35:09
Speaker 2: can do anything I want to you now except break
35:13
Speaker 2: the law.
35:14
Speaker 1: Well, there's the first time for everything, right, since you
35:17
Speaker 1: hadn't broken the law ever before in your entire life. Right,
35:20
Speaker 1: So you know there are people who were at fault
35:23
Speaker 1: in this case, right, Mary Jane Burton, your attorney, those
35:27
Speaker 1: police officers who lied to you during the ten hour interrogation.
35:32
Speaker 1: What would accountability look like?
35:35
Speaker 2: That's a good question. I thought, maybe, okay, maybe they
35:38
Speaker 2: made a mistake. But when you find out how intentional
35:42
Speaker 2: it was. The time I was finally exonerated of the judge,
35:47
Speaker 2: three of the detectives, Mary Jane Burton, and one of
35:50
Speaker 2: my attorneys had already passed. One of the guys asked
35:54
Speaker 2: me he being a Christian, like I'm being a Christian.
35:57
Speaker 2: You know, they say that someday everybody's going to be
35:59
Speaker 2: judged by Guy. He asked me, what are you going
36:02
Speaker 2: to do when your attorney steps up in front of
36:04
Speaker 2: God to be judged. I said, I'm going to step
36:07
Speaker 2: back a few steps. Kay's lightning hits him.
36:10
Speaker 3: I mean, Marvin will never get those forty nine years
36:13
Speaker 3: of his life back. His family will never get that
36:16
Speaker 3: time back, and the same is true for the victim
36:18
Speaker 3: and the victim's family. Right the victim's family may never
36:21
Speaker 3: know what happened to their loved one given the passage
36:25
Speaker 3: of time. But I think we still try to achieve accountability. First,
36:31
Speaker 3: I think we need acknowledgment from the state, and as
36:33
Speaker 3: part of that, I think we need a public examination
36:36
Speaker 3: into the decisions, the incentives, the culture that led to
36:41
Speaker 3: this wrongful conviction in the first place, so that we
36:46
Speaker 3: can prevent it from happening in the future. And alongside
36:50
Speaker 3: of that, frankly, we need awareness of wrongful convictions, which
36:55
Speaker 3: is why I think conversations like this are so important,
36:58
Speaker 3: because we need people to understand that people confess to
37:01
Speaker 3: crimes that they don't do. We need people to understand
37:04
Speaker 3: that there is junk science being used in courtrooms to
37:08
Speaker 3: convict people. And we also need justice reform to change
37:12
Speaker 3: some of the archaic laws that are still on the
37:14
Speaker 3: books that make it difficult for people like Marvin to
37:18
Speaker 3: fight for the innocence.
37:20
Speaker 1: And so what do you hope that people take away
37:23
Speaker 1: from Marvin's case in particular?
37:26
Speaker 3: I think an open mind. There is still a lot
37:30
Speaker 3: of disbelief over the fact that somebody could confess to
37:35
Speaker 3: a crime that they didn't do, and so I think
37:39
Speaker 3: being aware of these cases and recognizing that it does happen,
37:42
Speaker 3: and that there are certain circumstances and that create an
37:45
Speaker 3: environment that is ripe for somebody to give a false confession.
37:49
Speaker 2: I'm like this. I believe that most wrongful convictions happen
37:53
Speaker 2: because you have a public defender, the state. They have
37:57
Speaker 2: ample amount of funds to prosecute you, and they only
38:01
Speaker 2: give attorneys ay fifteen hundred dollars to defend you, and
38:06
Speaker 2: they're not going to investigate the case. They're just going
38:08
Speaker 2: to assume you're guilty because the state charged you. So
38:12
Speaker 2: that's where I think most wrongful convictions come about. Thanks
38:16
Speaker 2: to DNA and other things, it's coming up. A lot
38:19
Speaker 2: of innocent people are sitting in prison.
38:27
Speaker 1: Thank you for listening to Wrongful Conviction. You can listen
38:29
Speaker 1: to this and all Lava for Good podcasts one week
38:32
Speaker 1: early and add free by subscribing to Lava for Good
38:35
Speaker 1: Plus on Apple Podcasts. I'd like to thank our production team,
38:39
Speaker 1: Connor Hall and Kathleen Fink, as well as executive producers
38:42
Speaker 1: Jason Vlahm, Jeff Kempler, Kevin Wardis, and Jeff Clyburn. The
38:46
Speaker 1: music in this production was supplied by three time Oscar
38:49
Speaker 1: nominated composer Jay Ralph. Be sure to follow us across
38:52
Speaker 1: all social media platforms at Lava for Good and at
38:55
Speaker 1: Wrongful Conviction. You can also follow me on Instagram at
38:58
Speaker 1: Lauren Brightfchecko. Wrongful Conviction is a production of Lava for
39:01
Speaker 1: Good Podcasts and association with Signal Company Number One. We
39:05
Speaker 1: have worked hard to ensure that all facts reported in
39:07
Speaker 1: this show are accurate. The views and opinions expressed by
39:10
Speaker 1: the individuals featured in this show are their own and
39:12
Speaker 1: do not necessarily reflect those of Lava for Good.