Latest / Wrongful Conviction / #015 Jason Flom with Dennis Maher

Transcript

#015 Jason Flom with Dennis Maher · Wrongful Conviction

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