Speaker 1: Married couple. Cal and Michelle Harris were living separate lives
Speaker 1: under the same roof as their divorce proceedings began in
Speaker 1: two thousand and one. When Michelle didn't return from work
Speaker 1: one September night, it was assumed that she'd stayed with
Speaker 1: friends or with her boyfriend, but when her van was
Speaker 1: found at the edge of their property, the police focused
Speaker 1: on her estranged husband, developing circumstantial evidence as well as
Speaker 1: what appears to have been total fabrications, while dragging Cal
Speaker 1: Harris through four trials over the course of fifteen years.
Speaker 1: This is wrongful Conviction. You're listening to Wrongful Conviction. You
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Speaker 1: Lava for Good Plus on Apple Podcasts. Welcome back to
Speaker 1: Ron with Conviction, where we're heading to Tioga County, New York,
Speaker 1: where our guests today. Cal Harris worked for his family's
Speaker 1: auto dealership business while raising his four kids until it
Speaker 1: was all derailed, first by marital troubles, followed by the
Speaker 1: disappearance of his estrange wife, Michelle. Cal I'm sorry you're
Speaker 1: here because of what you've gone through, but I'm very
Speaker 1: happy and honored to have you with us. Welcome, we
Speaker 1: thank you, and to help him tell this story. We're
Speaker 1: joined by two of his attorneys from Barquette Epstein, Aida
Speaker 1: elyisen Ring and Bruce Barquette.
Speaker 2: Thanks for having us.
Speaker 3: I'm very happy to be here.
Speaker 1: So Cal, We've got a lot of ground to cover.
Speaker 1: Let's rewind all the way back to where you grew up,
Speaker 1: the family, the auto business, and then of course we'll
Speaker 1: turn to the tale of you and Michelle.
Speaker 4: I grew up in the Binghamton area, about an hour
Speaker 4: north of Scranton, Pennsylvania, and about an hour hours south
Speaker 4: of Syracuse, New York. My father started the business back
Speaker 4: in nineteen sixty seven with a small Ford dealership in Awego,
Speaker 4: New York. And when my brothers and I were of
Speaker 4: age and got in the family business, we grew. We
Speaker 4: had eight dealerships in four different locations. We represented almost
Speaker 4: every major franchise, domestic in import. We had a very
Speaker 4: good marketing system, we had a very good business plan,
Speaker 4: and we grew exponentially.
Speaker 1: And when and how did you meet Michelle?
Speaker 4: Well, Michelle and I started dating in the late eighties,
Speaker 4: got married in August of nineteen ninety. Built our home
Speaker 4: in ninety two, and then our first child, Taylor, was
Speaker 4: born in ninety four, and then the next year Kayla,
Speaker 4: and then Jenna was born in ninety seven, and then
Speaker 4: Tanner was born in ninety nine. Michelle is a great mother. Obviously,
Speaker 4: having four young children was a big task for Michelle.
Speaker 4: I was working a lot of hours at the family business,
Speaker 4: so we had two part time nannies, and then we
Speaker 4: had a handful of babysitters, so the kids were well
Speaker 4: taken care. We lived on a very beautiful piece of
Speaker 4: property and it was a small lake surrounded by two
Speaker 4: hundred and fifty acres. We purchased it from Binghamton University
Speaker 4: and it was a newdist camp for Binghamton University.
Speaker 3: See I finally learned something new.
Speaker 1: Cal Yeah, that.
Speaker 4: Was back in the sixties and the seventies. And then
Speaker 4: when the newdiest thing kind of ran its course, it
Speaker 4: sat empty for years and somebody on the board of
Speaker 4: Binghamton University knew my dad and cut us a deal.
Speaker 4: We don't live there anymore. I had to sell the
Speaker 4: property to pay my legal bills. We'll never be able
Speaker 4: to replace that property, but we had our own little
Speaker 4: sanctuary out there, all kinds of woods and nature, and
Speaker 4: I taught my kids how to water ski and wakeboard
Speaker 4: on the lake behind the jet ski, and we fished
Speaker 4: and it was a great run while it lasted.
Speaker 1: And during the happier years for the Harris family. The
Speaker 1: New York State Police, specifically Troops C that operated in
Speaker 1: the southern tier of the state, was while they were
Speaker 1: experiencing discord, and that began what a detective named Harding
Speaker 1: was interviewing with the CIA, and when he was asked
Speaker 1: if he'd break the law for his country, Harding admitted
Speaker 1: to manipulating or fabricating evidence against folks that they believed
Speaker 1: to be guilty. That kicked off a fourteen month investigation.
Speaker 4: A special prosecutor get an investigation on Troop C, and
Speaker 4: he uncovers forty instances of evidence tampering by Troop C.
Speaker 4: In his conclusion, he says everyone at Troop C was
Speaker 4: either directly involved or had firsthand knowledge on it, and
Speaker 4: he said it was generational that they were passing on
Speaker 4: this behavior to new recruits. And even after that report,
Speaker 4: Sue Malby, the lead investigator on my case, gets caught
Speaker 4: coercing a false confession out of a fifteen year old boy.
Speaker 4: It sends that to prison, and the only reason that
Speaker 4: boy gets out is because the adult male that committed
Speaker 4: the crime confessed to it.
Speaker 1: And it appears that this pattern of misconduct was applied
Speaker 1: to Cal, whose once happy marriage by March of two
Speaker 1: thousand and one, had devolved, as these things sometimes do,
Speaker 1: into divorce proceedings. Cal and Michelle, meanwhile, we're cope parenting
Speaker 1: and remained in the home together, but they were living
Speaker 1: separate lives. Michelle began socializing more and eventually began working
Speaker 1: at a bar called Lefties in an area known as
Speaker 1: the Valley.
Speaker 4: So she's been going down to the Valley and hanging
Speaker 4: out at these dive bars and she's partying pretty hard.
Speaker 4: She knows what Lefties is, she knows they're dealing drugs
Speaker 4: out of there. But she made it clear to me
Speaker 4: that what she does outside the home is none of
Speaker 4: my business. So the only people that know what's going
Speaker 4: on in her life are the nanny barb there, Michelle's
Speaker 4: sister in law, Shannon Taylor, and she also had a
Speaker 4: friend named Nicki Burdick that was a friend that she
Speaker 4: would go out with at night. And party with, and
Speaker 4: she had a boyfriend at the time. Through the investigation,
Speaker 4: she was also involved with apparently several other guys at
Speaker 4: the same time. And I noticed from March two thousand
Speaker 4: and one, when she starts to work there till September
Speaker 4: of two thousand and one, things get really bad and
Speaker 4: she's living a lifestyle that's not healthy for her, not
Speaker 4: healthy for the kids. And she'd go to work, but
Speaker 4: she wouldn't come home. She would always go out afterwards.
Speaker 4: Sometimes she'd go over to her boyfriend's house. Most of
Speaker 4: the time she would go out and party and hang
Speaker 4: out with these other guys that she's involved with. She
Speaker 4: had been frequently not coming home until five or six
Speaker 4: o'clock in the morning, and there were some mornings that
Speaker 4: she was so hungover she couldn't even watch the kids
Speaker 4: and barb theair than nanny had to come over and
Speaker 4: take that responsibility.
Speaker 1: But despite the erratic lifestyle, by the summer of two
Speaker 1: thousand and one, tensions between Call and Michelle had died
Speaker 1: down and it appeared that they were going to settle
Speaker 1: the divorce. Michelle had borrowed money from her boyfriend approachases
Speaker 1: a home, so things were looking up when all of
Speaker 1: a sudden they took a terrible turn.
Speaker 2: So the chronology is September eleventh, she wakes up, the
Speaker 2: events take place down in New York City. She works
Speaker 2: that night at Lefties. Her boyfriend testified that she visited
Speaker 2: him and left around eleven or eleven fifteen pm. Nobody
Speaker 2: else saw her that we are certain of, other than
Speaker 2: potentially whoever was at the foot of the driveway with
Speaker 2: her the following morning.
Speaker 1: A witness named Kevin Tubbs later came forward describing this
Speaker 1: scenario and a man who may have been a guy
Speaker 1: named Stacy Stewart.
Speaker 2: Stacy Stewart knew Michelle because they would frequent the bar Lefties,
Speaker 2: and the degree to which they got to know each other,
Speaker 2: I think is up for some debate, but it's purported
Speaker 2: to us by number of witnesses Stewart was interested in
Speaker 2: Michelle romantically. We have evidence that she was at the
Speaker 2: foot of the driveway around roughly five o'clock in the
Speaker 2: morning with somebody who matches Stacy Stewart's description to a
Speaker 2: t and was driving the type of truck that Stacy
Speaker 2: Stewart owned.
Speaker 1: But that wasn't known until after his first conviction. At
Speaker 1: least not by the defense. So after this alleged sighting
Speaker 1: on the driveway on the morning of September twelfth, the
Speaker 1: morning began as usual for Cal the kids. When Cal
Speaker 1: noticed Michelle was out of the couch, he continued about
Speaker 1: his routine getting the older kids ready for school, and
Speaker 1: a little after seven am, when he hadn't seen Michelle yet,
Speaker 1: he called Barblayer for help with their youngest, Tanner, while
Speaker 1: everyone else was set to leave and start their day.
Speaker 4: So I called Barb and I said, Michelle's not home yet.
Speaker 4: I'm not sure what's going on. Can you help me
Speaker 4: get the kids to school because someone's got to stay
Speaker 4: home with Tanner. So she said, yep, I'm available. And
Speaker 4: a few minutes after I called Barb, Barb, I call
Speaker 4: Michelle's cell phone, and because we live in a remote area,
Speaker 4: our cell phone coverage cuts out in about a ten
Speaker 4: mile radius around our house. And I didn't leave a
Speaker 4: message because I just assumed, years and years of doing that,
Speaker 4: that she was on her way home, she was within
Speaker 4: that ten mile radius, so I don't leave a message.
Speaker 1: Years later, at the first trial, Barb Fayer testified that
Speaker 1: she was the one who made that phone call, even
Speaker 1: though that was impossible.
Speaker 4: I called Barb and then four minutes later I called
Speaker 4: Michelle's cell phone.
Speaker 2: If you track where she was, she could not have
Speaker 2: gotten to Cal's house in time to make the call.
Speaker 1: And when Barb actually did arrive, she discovered Michelle's van
Speaker 1: at the end of the driveway.
Speaker 4: Barb comes in through the garage and she walks into
Speaker 4: the kitchen. It says to me, is Michelle here? And
Speaker 4: I say no. She says, well, her van's at the
Speaker 4: end of the driveway. It's unlocked. I looked in it
Speaker 4: and she's not in there. And then I said, well,
Speaker 4: are the keys in it? And she says yes. So
Speaker 4: we hop in my truck and we go out to
Speaker 4: the end of the driveway, and Barb's not upset. In fact,
Speaker 4: we had some small conversation on the way out to
Speaker 4: the end of the driveway, and Barb's saying things like, well,
Speaker 4: maybe she's hungover at at friend's house.
Speaker 1: After Cal drove off with the kids, Michelle's party friend,
Speaker 1: Nicki Burdick, called and according to Barb, there she explained
Speaker 1: to Nicky about Michelle's van.
Speaker 2: There's a voice message from Burdick on Michelle's cell phone,
Speaker 2: You're scaring me, Where are you? What's going on?
Speaker 4: That kind of thing, And then Nicky calls Michelle's divorce attorney,
Speaker 4: who in turn calls the state police, and that's when
Speaker 4: the investigation starts. The lead investigator on this case was
Speaker 4: Sue Andrew's Mulvey of New York State Police Troops c.
Speaker 4: As soon as my name came up, she immediately put
Speaker 4: herself on as the lead investigator because for her this
Speaker 4: was personal. And the reason it was personal was because
Speaker 4: her father, John Andrews, used to work for me back
Speaker 4: in the day in one of the dealerships and I
Speaker 4: fired him and it was bad blood ever since.
Speaker 2: So you had the lead investigator's father having worked for
Speaker 2: Cal and being fired, and the lead prosecutor, Gerald Keene,
Speaker 2: his wife was part of the team representing Michelle in
Speaker 2: the divorce.
Speaker 4: Well, it's the classic case of the small town everybody
Speaker 4: it's related to somebody.
Speaker 2: So her divorce lawyer turned his file over right away
Speaker 2: to the state police and it didn't take much for
Speaker 2: the divorce lawyer, Nikki's there and I think the in
Speaker 2: laws the tailors to assume that Cal had something to
Speaker 2: do with this.
Speaker 1: Now, at that point, there was no body. In fact,
Speaker 1: her body to this day has still never been found.
Speaker 1: So the investigators began searching her van, the house, the garage,
Speaker 1: trying to find something incriminating.
Speaker 4: Steve Anderson, he's supposed to be the forensic expert. He
Speaker 4: immediately comes in and starts testing the sub millimeter stains.
Speaker 4: There's like a dozen altogether sub millimeter stains in the
Speaker 4: garage and in the kitchen as you come into the house.
Speaker 2: The first thing that he did is he saw what
Speaker 2: he thought was blood spattered on the wall in the garage.
Speaker 2: It turned out that was non human dog's blood.
Speaker 3: Well there is the cookie or pasta sauce on the
Speaker 3: ceiling as well. It's very disappointing that it turned out
Speaker 3: out to be blood.
Speaker 1: But Anderson eventually did find some human blood stains.
Speaker 4: So he tests these stains, and the protocol that he's
Speaker 4: supposed to follow is that when he comes down to
Speaker 4: what he believes to be a crime scene, he's supposed
Speaker 4: to observe and take notes, then photograph, and then he's
Speaker 4: supposed to test with his cotton swab and his solution.
Speaker 4: But that's not what he does in my house. He's
Speaker 4: taking his cotton swab, which he admits one of the
Speaker 4: stains he totally consumes as he's testing it, but he
Speaker 4: doesn't take a photograph before he does it, so we
Speaker 4: have to take his word for it. But the reality
Speaker 4: is he's the one that's altering the stains, and then
Speaker 4: he says it's me trying to clean up these sub
Speaker 4: millimeter stains.
Speaker 1: So Anderson's missteps were eventually presented as evidence of some
Speaker 1: alleged post murder cleanup effort, when in reality that blood
Speaker 1: had likely been there for quite a while.
Speaker 2: They said that the blood was red, therefore fresh, that
Speaker 2: it had to be depositive within a few days. That
Speaker 2: was two lies. One, the blood wasn't that color, and two,
Speaker 2: it doesn't matter what color it is, because the scientific
Speaker 2: community agrees you can't age blood based upon its color.
Speaker 2: Sometimes it turns brown very quickly, and sometimes it stays
Speaker 2: red for an inordinate amount of time, and they haven't
Speaker 2: been able to figure out the variables that would cause
Speaker 2: the blood to turn colors in some amount of time.
Speaker 1: It turns out that there was a known explanation for
Speaker 1: that blood spatter as well, and we're going to hear
Speaker 1: more about that later. Now, without any known witnesses. The
Speaker 1: police began interviewing family, friends and community members, not about
Speaker 1: what you would expect them to ask about, which is
Speaker 1: anything they may have seen regarding Michelle's disappearance, but instead
Speaker 1: they sort of narrow focused on Cal.
Speaker 3: I think that the way the police conducted their investigation
Speaker 3: throughout the entire community, they led everyone to we think
Speaker 3: Cal did it.
Speaker 4: I had friends of mine who didn't buy into the
Speaker 4: state police narrative and questioned the state police, well, what
Speaker 4: do you mean you know that Cal did it? And
Speaker 4: when the state police wouldn't answer, you know how they knew,
Speaker 4: then my friends were like, well then what are you doing?
Speaker 3: Then they had random people and witnesses fill out FBI
Speaker 3: profiles like does he ever get mad? Has he ever
Speaker 3: done this? Has he ever done that? Day after day,
Speaker 3: multiple witness interviews, the news, the chatter, the town talking.
Speaker 3: Another day goes by where her body isn't recovered, and
Speaker 3: the zealousness with which they tried to investigate Cal, Like
Speaker 3: that gets you in the entire community in the mindset
Speaker 3: of let's get him. He's getting away with murder. Because
Speaker 3: the police believed that.
Speaker 2: There the babysitter who came over right away started to
Speaker 2: create a diary documenting the things that were going on
Speaker 2: at the house, thinking she was helping the police.
Speaker 3: One of his former neighbor's friends says, let me rack
Speaker 3: my brain. I do remember, and this is one of
Speaker 3: my favorite little details. I do remember. He kept trying
Speaker 3: to clean his glasses and the natural implication was that
Speaker 3: there was blood spatter on them, and it's like Macbeth
Speaker 3: trying to clean the blood off the hands. They interviewed
Speaker 3: people in Canada, like, oh, he was on vacation in Canada.
Speaker 3: We hear that the jet skier got into a verbal
Speaker 3: dispute with him. They interviewed girlfriends from high school. I mean,
Speaker 3: they turned his entire life upside down and found nothing.
Speaker 3: But when you have all of these little, tiny pieces
Speaker 3: of nothing burgers together and they've completely assassinated his character,
Speaker 3: and in a.
Speaker 1: Case that is largely circumstantial, those elements become admissible, contrary
Speaker 1: to a case with direct evidence of guilt, in which
Speaker 1: the defense has a better idea of what the issues are.
Speaker 1: But in circumstantial cases, the state weaves a web from
Speaker 1: these disparate elements that would normally be inadmissible but together
Speaker 1: and create an appearance of guilt and that can overwhelm
Speaker 1: a traditional defense. And by two thousand and five, sure enough,
Speaker 1: cal was indicted. And it seems that the prosecution felt that
Speaker 1: they had enough to do that, but the first two judges, well,
Speaker 1: they disagreed.
Speaker 3: The first judge reviewed the grand jury minutes and the
Speaker 3: transcripts and gave a heads up to the prosecutor and
Speaker 3: to the defense attorney, I'm dismissing this case. It's insufficient.
Speaker 3: What does the prosecutor do? The next day he files
Speaker 3: a formal motion to recuse the judge, stating that he's
Speaker 3: given the appearance that he favors the defense, and ultimately
Speaker 3: pits his oath of office against that of the judge,
Speaker 3: as the judge claims, sort of requiring at that point
Speaker 3: the judge to get off the case because of the
Speaker 3: animosity and the claims that are made by the prosecutor.
Speaker 3: So he did, and a new judge was assigned, and
Speaker 3: that judge also dismissed the case, indicating that the previous
Speaker 3: judge's decision stands and it's insufficient. So it got dismissed,
Speaker 3: and then they went on to represent the case and
Speaker 3: put on more witnesses. In two thousand and seven, they
Speaker 3: try the case in front of a jury pull frankly
Speaker 3: that have been polluted by the police investigation, no Cal,
Speaker 3: and have strong opinions about the case.
Speaker 1: Ultimately, the state's trial narrative was that Cal killed Michelle
Speaker 1: sometime late on September eleventh, citing no signs of forced entry,
Speaker 1: the alleged blood evidence, the looming divorce and custody proceedings,
Speaker 1: as well as some circumstantial witness testimony, some of which
Speaker 1: were just outright lies. Now, as we mentioned, the morning
Speaker 1: of Michelle's disappearance, Cal called Barb Thayer for help with
Speaker 1: the kids and then called Michelle, but didn't leave a voicemail.
Speaker 2: So Keen, the prosecutor, in a deposition that we took
Speaker 2: about four years ago, admitted that if Cal had placed
Speaker 2: the call at seven point fifteen, and had he been
Speaker 2: the killer, in other words, he knows he's calling a
Speaker 2: dead person's phone, he would have left some contrived message
Speaker 2: about I'm worried about you, where are you, why aren't
Speaker 2: you home with the kids, something like that. And Keene
Speaker 2: admitted if he made the call and didn't leave a message,
Speaker 2: he couldn't have committed this crown because there's no way
Speaker 2: he would have made the call and not left the
Speaker 2: message had he did it. Once they realized that they
Speaker 2: got there to say she got there in time to
Speaker 2: have made the call, despite the fact that they had
Speaker 2: asked her about this multiple times and she never said
Speaker 2: she made the call, and in fact denied it, and
Speaker 2: then got on the stand and testified that she had,
Speaker 2: and it was clear that they had convinced her that
Speaker 2: she had to say that otherwise the case against Cal
Speaker 2: would kind of blow up in the first instance.
Speaker 1: This is what pisses me off about circumstantial cases. Now
Speaker 1: we're talking about voicemails, the cell signal for a ten
Speaker 1: mile radius Barb's location when Cal called. Instead of tackling
Speaker 1: direct evidence of what happened to Michelle, the defense is
Speaker 1: left scrambling trying to fight a ghost. Almost they're trying
Speaker 1: to defend against an image of guilt that the prosecutor
Speaker 1: is only just sort of peeling away the layers of
Speaker 1: and revealing during the trial.
Speaker 3: With circumstantial evidence, lay people go, oh, it's just a
Speaker 3: circumstantial case, and there's a stigma associated with that word
Speaker 3: that there's not much evidence. But they can be some
Speaker 3: of the most falsely convincing cases because the government or
Speaker 3: the prosecution is permitted to use otherwise impermissible, non relevant evidence,
Speaker 3: often negative character evidence, and they stay to the court, Oh,
Speaker 3: this is one of the little pieces of the puzzle
Speaker 3: that we need to build up this case because it's circumstantial,
Speaker 3: and the judge goes, well, i'll allow it. I'll give
Speaker 3: them some leeway. And then it's every single rock that
Speaker 3: builds this massive mound that you can't escape from.
Speaker 1: When in reality it's nothing but an exhaustive climb straight
Speaker 1: up bullshit mountain where you have to dispel this minutia
Speaker 1: or discover the misconduct underlying it before it's too late.
Speaker 1: And this case has plenty more like Col's a legend motive.
Speaker 2: If you look at the summations from the trials, you'll
Speaker 2: see that they ascribe the mode of the cow. The
Speaker 2: divorce case, there was a trial date set for November
Speaker 2: of that year, and so they said he had to
Speaker 2: kill her because he was about to go to trial
Speaker 2: and all these fees were going to come do and
Speaker 2: there was a thirty thousand dollars appraisal fee that he
Speaker 2: was going to have to pay, and he was going
Speaker 2: to have to pay his lawyers, and he was going
Speaker 2: to lose everything, and that couldn't happen. That was all false,
Speaker 2: and I think knowingly false. The divorce case had just started.
Speaker 2: There wasn't a single deposition taken, very little, if any
Speaker 2: discovery had been traded. That was no more ready for
Speaker 2: trial than I am ready to fly a jet. It
Speaker 2: just wasn't ripe yet. And the worst part of that
Speaker 2: whole fabricated motive was that the case had been resolved.
Speaker 2: In the fourth trial, we had Cal's lawyer come on
Speaker 2: and testify that Michelle had accepted the offer, that the
Speaker 2: case was resolved, and as I need to point it out,
Speaker 2: she bought a house. This was done. And even Barbara
Speaker 2: Thayer and Burdick, who were adamant that Cal had done this,
Speaker 2: admitted that by the summer of two thousand and one
Speaker 2: things had calmed down. They weren't fighting at all, and
Speaker 2: Michelle had resolved that she was going to buy a
Speaker 2: house in town and it's was over.
Speaker 1: But without this context, at the first trial, the prosecution
Speaker 1: had created an urgency for Cal to act that was unimpeached.
Speaker 1: Then we move on to the blood evidence, if you
Speaker 1: can call it that, and as we mentioned, they had
Speaker 1: said the blood was fresh because it was still red,
Speaker 1: when not only was it not red, but color canton
Speaker 1: doesn't indicate age. And then it got even more misleading.
Speaker 2: Henry Lee, who was their expert, famous from the OJ
Speaker 2: case and several others. Keene asks him could this have
Speaker 2: come from a cut on her finger? And Lee says,
Speaker 2: of course it could have, but the jury will want
Speaker 2: to see a cut in the finger, and they go
Speaker 2: back and forth, laughing about the burden of proof.
Speaker 1: Obviously, the dark joke here is that there is nobody
Speaker 1: so good luck with proving that this was from a
Speaker 1: simple cut. But remember the prosecutor, Gerald Keene, his wife
Speaker 1: was on Michelle's divorce team, and so Keene asked that
Speaker 1: question about a cut finger, having seen the file from
Speaker 1: Michelle's divorce attorney.
Speaker 2: He doesn't tell Lee what he knows, which is that
Speaker 2: Michelle fell or if you believe her, was pushed by
Speaker 2: cal into the snow, cut her hand a few months
Speaker 2: before this and walked back in through the garage, which
Speaker 2: is where the blood was. So he didn't ask that
Speaker 2: question randomly, kind of speculating he knew that Michelle cut
Speaker 2: her finger because his wife drew up the affid David
Speaker 2: that Michelle filed in court, saying that she cut her hand.
Speaker 3: And there's more. The prosecutor then goes on to profer
Speaker 3: evidence from every single witness that ever knew Michelle. Did
Speaker 3: you ever see her bleed?
Speaker 1: No?
Speaker 3: Did you ever see her with a cut on her hand? No?
Speaker 3: Was she bleeding during the time of September of two
Speaker 3: thousand and one. No, So he knew that she'd cut
Speaker 3: her hand. He knew that her path to enter the
Speaker 3: home was where the droplets were found, and he was
Speaker 3: aware that there was a plausible explanation for it. He
Speaker 3: hid that plausible explanation, and then he went a step
Speaker 3: further and created opposite in culpatory information that he knew
Speaker 3: to be false.
Speaker 1: But the jury was unaware of this context, so they
Speaker 1: were left with the appearance that this blood was fresh
Speaker 1: and that it had been shed on the night Michelle disappeared.
Speaker 3: They convict Cal within hours, and a witness comes forward
Speaker 3: who hadn't really thought about the case, but then sees
Speaker 3: the reports of the conviction and he reaches out to
Speaker 3: Cal's defense attorney, who's now a judge, Joseph Colly, and
Speaker 3: he says Hey, I didn't think it was Michelle that
Speaker 3: I saw, because everyone said she disappeared. But I think
Speaker 3: it was because it looked just like her, and it
Speaker 3: was at the foot of that driveway, and it was
Speaker 3: with an individual, but it wasn't Cal. And he describes him,
Speaker 3: his height, his build, his hair color, he describes what
Speaker 3: they're doing, he describes her vehicle, he describes his vehicle
Speaker 3: model to a t.
Speaker 1: So this was Kevin Tubbs describing what he claims to
Speaker 1: have seen around five am on September twelfth, Michelle standing
Speaker 1: with a man and his truck, matching the description of
Speaker 1: Stacy Stewart, who was believed to have been romantically interested
Speaker 1: in Michelle. So Cal's lawera filews what's called a three
Speaker 1: thirty motion presenting Kevin Tubbs as well as another person
Speaker 1: who described a similar scene that morning.
Speaker 3: The prosecution went furiously after both of them in a
Speaker 3: three point thirty hearing, going as far as using sealed
Speaker 3: documents to cross examine one of the witnesses who had
Speaker 3: previously a case dismissed, but ultimately that conviction is overturned
Speaker 3: after a three thirty hearing.
Speaker 4: I get out in November of two thousand and seven,
Speaker 4: and then my next trial is two years later.
Speaker 3: They retry the case in two thousand and nine and
Speaker 3: he is new trial council should have seen it coming.
Speaker 4: I tried this guy from Albany, Terry Kinlin. There were
Speaker 4: certain things I wanted done in the second trial that
Speaker 4: we didn't do in the first trial. Promised me he
Speaker 4: was going to do him never did so.
Speaker 1: Even with two witnesses who claimed to have seen Michelle
Speaker 1: with a man who was not cal and knowing how
Speaker 1: the circumstantial evidence came together, his attorney just simply didn't
Speaker 1: effectively dismantle the building blocks of this circumstantial smoke screen,
Speaker 1: some of which were provable lies.
Speaker 4: And I testified in my second trial and Jerry Keene
Speaker 4: doing his closing argument, he says as to the jury
Speaker 4: that cal Harris wants you to believe that all these
Speaker 4: witnesses came in here today and lied to you, and
Speaker 4: that he's the only one telling the truth. And the
Speaker 4: reality is that's exactly what happened. All the key witnesses
Speaker 4: were lying. But you know, there's nothing you can do
Speaker 4: waiting for the jury's verdict that moment. I had to
Speaker 4: go through that four times. I still have nightmares about
Speaker 4: those moments, and I can't watch another crime show. They
Speaker 4: always show the verdict. I can't watch it. I'm incarcerated
Speaker 4: a month in two thousand and five, for six months
Speaker 4: after my conviction in two thousand and seven, while the
Speaker 4: three point thirty hearing was being processed. And then I'm
Speaker 4: convicted again in two thousand and nine, and this time
Speaker 4: I wind up going to the Auburn Correctional Facility. Every
Speaker 4: time I was incarcerated and I'm sitting in my cell,
Speaker 4: time comes to a complete stop. Every minute is an hour, right,
Speaker 4: and you're ripped away from your kids and you're worried
Speaker 4: about them. My first conviction in two thousand and seven,
Speaker 4: Taylor would have been eleven, Kayla would have been ten,
Speaker 4: Jenna was eight, and Tanner was six. I think at
Speaker 4: the time, and I'm the only parent they've got. My
Speaker 4: kids were young and at that time in their life
Speaker 4: is as a parent, it is the most joyful when
Speaker 4: they're young and growing up and you do all these
Speaker 4: fun things together and we couldn't. We couldn't do anything,
Speaker 4: We couldn't plan anything. Every special moment when I wasn't
Speaker 4: in prison, every birthday, every holiday, Christmas, whatever. We're sitting
Speaker 4: around and I'm sick to my stomach right, I can't
Speaker 4: enjoy moment. I'm trying to put up a good front
Speaker 4: for my kids so that they can enjoy the moment.
Speaker 4: But I'm sick to my stomach every single minute of
Speaker 4: every day because I don't know what's going to happen.
Speaker 4: It was torture for fifteen years having to live that way.
Speaker 1: But during that time, cal learned a great deal about
Speaker 1: the evidence rules that paved the way for circumstantial evidence cases,
Speaker 1: and it appears to have had roots in the prosecution
Speaker 1: of other bodyless murder cases.
Speaker 4: In eighteen fifty, it was the first time that New
Speaker 4: York allowed a bodyless murder case. Prior that you couldn't
Speaker 4: convict somebody in New York without a body. The mentality
Speaker 4: was that they didn't want someone who was cunning enough
Speaker 4: to dispose of the body to get away with that,
Speaker 4: so they changed the rules of evidence. And one of
Speaker 4: the things that one of my previous attorneys built, so
Speaker 4: Easton argued in the appeal, was the pendulum has swung
Speaker 4: too far in New York. It went from eighteen fifty
Speaker 4: where you couldn't convict somebody unless you had a body
Speaker 4: to the Cal Harris case now in two thousand and nine,
Speaker 4: where you went too far. There's no evidence here, and of.
Speaker 1: Course it didn't hurt to have alternate suspects that upended
Speaker 1: the state's theory. Nevertheless, the conviction was overturned an insufficiency
Speaker 1: of evidence, making way for a third trial. And that's
Speaker 1: when Cal hired Barquette Epstein.
Speaker 2: Remember now we got the case and had seen the
Speaker 2: movie already, right, so we had two trial transcripts to
Speaker 2: go off of, and Aida and I and Donna Eldea,
Speaker 2: who tried the case with us. We talked about the
Speaker 2: fact that you have all these facts and I'll put
Speaker 2: that in quotes, facts that the prosecutor used to build
Speaker 2: a circumstantial case. And then we said, we have to
Speaker 2: challenge all of the ones that we know to be
Speaker 2: false or that are challengeable. And the jury, when we
Speaker 2: did that, are looking at you because they don't understand
Speaker 2: why we arguing about who made a phone call or
Speaker 2: why are we arguing about where certain things were the
Speaker 2: divorce proceedings, Because they didn't understand how this is supposedly
Speaker 2: all going to come together for the government. In neither
Speaker 2: of the first two lawyers, frankly, because they didn't have
Speaker 2: the preview that we had, so they just kind of
Speaker 2: let that stuff go. For the most part, we had
Speaker 2: to dig in and fight each one of those facts.
Speaker 2: So you could say that's not what happened. You can't
Speaker 2: use that as a building block because it's false or
Speaker 2: flawed in some way.
Speaker 1: So in addition to presenting the alternate suspect witnesses, they
Speaker 1: exposed Barb Thayer's deceit as well as the alleged motive.
Speaker 1: And then there was the alleged freshness of the blood
Speaker 1: and alleged cleaning efforts, all supported by the state's quote
Speaker 1: unquote expert Henry Lee.
Speaker 2: So we called up all these lawyers that had either
Speaker 2: hired him or dealt with him, and pulled all these transcripts,
Speaker 2: and you realize that the guy is nothing more than
Speaker 2: a really a whole. He would say anything for anybody.
Speaker 2: And the end of the cross I had transcripts from
Speaker 2: a trial he did in the Carolinas where his justification
Speaker 2: for that theory was in opposite of what he was
Speaker 2: saying about cal like literally, you couldn't held both opinions,
Speaker 2: and so he essentially gave up and said you're right,
Speaker 2: and that was it. And it went so well with
Speaker 2: Henry Lee on the third trial they never brought him
Speaker 2: back again.
Speaker 1: Unfortunately, a fourth trial was necessary. Despite dismantling the circumstantial
Speaker 1: evidence and exposing them as conduct, the jury was hung,
Speaker 1: so they considered waving a jury. But not all judges
Speaker 1: are created equal.
Speaker 4: I mean, for me, it was clear that a circumstantial
Speaker 4: case like mine was too complicated for a jury, and
Speaker 4: I just felt that I'm zero for three. What do
Speaker 4: you do? It's worth a try.
Speaker 3: It was a big risk. But we wanted to judge
Speaker 3: who had conviction.
Speaker 4: In balls balls.
Speaker 3: I wanted to say ball, I don't know why, I'm
Speaker 3: like hiding words. We wanted to judge who had balls,
Speaker 3: and we wanted to judge who was really smart. He
Speaker 3: had both of those things. And we looked up decisions
Speaker 3: he had issued in the past, and we did more.
Speaker 2: Than read his decisions. If you remember, I eate it.
Speaker 2: We spoke to people who knew him. He had been
Speaker 2: a defense attorney for a long time, tried about a
Speaker 2: dozen murder cases, so he was experienced, and they said
Speaker 2: to us, he's going to do what he thinks is right.
Speaker 2: Trust us. If he thinks your guy's guilty, he's going
Speaker 2: to go down. And we were in the back talking
Speaker 2: about jury selection and I eat it. Donna and I
Speaker 2: looked at each other and I'm like, okay, let's do this.
Speaker 2: And I literally went like this. I said, come out.
Speaker 2: He's like, what do you What do you mean? I said,
Speaker 2: you're it, judge. He says, what do you mean? I'm it?
Speaker 2: So we're waiving a jury and he lost his temper.
Speaker 2: What started yelling at me? You think because I was
Speaker 2: a defense attorney, I'm going to quit your guy. I'll
Speaker 2: tell you something. I'll convict him. Quicker just went off
Speaker 2: on me. I'll be honest. He scared me enough. If
Speaker 2: I was there alone, i'd have backed off. I think
Speaker 2: Aida was like, no, we can still do this, and
Speaker 2: Donna was, now, he's just blowing smoke. He'll be fine.
Speaker 3: There have been so many judges that had said this
Speaker 3: case was insufficient to go forward that we thought a
Speaker 3: smart judge with balls will finally put this to rest.
Speaker 2: He comes out and he says, there's one count in
Speaker 2: the indictment, murdering the second degree. I'm the soul trial
Speaker 2: or fact in this case. I find the defendant not guilty.
Speaker 2: Bales exonerated, bangs his hand on the bench, and I
Speaker 2: turned to my left to see Cal and Aida and Donna,
Speaker 2: and by the time I turned back, he was gone.
Speaker 3: And Cal turned to me and said, what just happened?
Speaker 3: Is it not guilty or guilty?
Speaker 4: I couldn't even hear. I couldn't hear you.
Speaker 3: Yeah, head, but your kids heard it.
Speaker 4: Yeah, It's just like a ton of bricks come on
Speaker 4: my shoulders. Finally, after fifteen years, we're able to look
Speaker 4: at each other and know that we're going to be
Speaker 4: a family, and we can start making plans going forward,
Speaker 4: which we couldn't do for fifteen years.
Speaker 2: His oldest son got in the cornel that day, May
Speaker 2: twenty fourth, twenty sixteen.
Speaker 4: But the damage is done. We're all suffering in one
Speaker 4: form or another. It's never gonna go away, only because
Speaker 4: this case has garnered so much attention and she's still missing.
Speaker 4: You know, That's what keeps everybody watching, is that she's
Speaker 4: still missing. And I'm getting death threats to this day.
Speaker 4: I've been assaulted several times now since my acquittal. I
Speaker 4: have to look over my shoulder every day I leave
Speaker 4: the house.
Speaker 1: All because a circumstantial case can be that falsely convincing. Meanwhile,
Speaker 1: the team held a May twenty twenty five press conference
Speaker 1: where Cal and his children offered a one hundred thousand
Speaker 1: dollars reward for information that would lead to finding Michelle's remains.
Speaker 2: We have a pretty good idea of what happened to her,
Speaker 2: at least who was involved, and there are people who
Speaker 2: know what happened, and we're hoping that the money will
Speaker 2: be the incentive that they need. Just for a moment,
Speaker 2: imagine that we do this, that we find her. It
Speaker 2: would be unbelievable. And we've looked. It's not that we
Speaker 2: haven't been looking. I aid it was with me in
Speaker 2: twenty fourteen, this summer, digging up an outhouse with a
Speaker 2: couple of investigators in a backo.
Speaker 4: Oh boy.
Speaker 3: I used to be an editor at l magazine before
Speaker 3: I decided to go to law school. I used to
Speaker 3: get free loot, go to runway shows and there I
Speaker 3: am surrounded by five retired detectives and Bruce and a
Speaker 3: couple of shovels going through an outhouse.
Speaker 1: But I'd say it's arguably more meaningful work. So we're
Speaker 1: going to go ahead and link ways to contact bark
Speaker 1: at Epstein in the episode descript as any new information
Speaker 1: could also help them in their next fight.
Speaker 2: October twenty seventh, we have the federal Civil Rights trial,
Speaker 2: and this is where the hunters have become the prey.
Speaker 2: The defendants are Gerald Keene, Steve Anderson, and Susan Mulvey
Speaker 2: State police in the County of Tioga. We hope to
Speaker 2: put on a persuasive case not only is Cal obviously innocent,
Speaker 2: but that what happened to him was fundamentally wrong, a
Speaker 2: violation of his constitutional rights, and they should be held
Speaker 2: to account for that.
Speaker 1: And with that, we're going to go to closing arguments,
Speaker 1: where first of all, I'm thanking you all from the
Speaker 1: bottom of my heart for being here today and courageously
Speaker 1: sharing this harrowing story. I don't know how else to
Speaker 1: put it. And then I'm just going to kick back
Speaker 1: in my chair and listen to anything else you feel
Speaker 1: is left to be said. So let's do it in
Speaker 1: alphabetical order. Aida. Let's start with you, then Bruce, and
Speaker 1: then Cal can take us off into the sunset.
Speaker 3: It has been such an eye opening experience to see
Speaker 3: the level at which lawyers have to work it's a
Speaker 3: herculean task to actually exonerate somebody, especially when the prosecution
Speaker 3: and the police make it personal. And we left no
Speaker 3: single piece of paper unturned. And I remember seeing cal
Speaker 3: angry during moments of the trial, and there's no question
Speaker 3: to me who actually knows the evidence as opposed to
Speaker 3: a lay person that watched forty eight hours that he's innocent,
Speaker 3: and his anger and his bitterness and his love for
Speaker 3: his kids and his grace and compassion while he was
Speaker 3: actually incarcerated is all a testament to that. So it's
Speaker 3: been an incredible teaching moment. I'm very grateful that he
Speaker 3: trusted us and that I got to participate in it,
Speaker 3: not just for him, but for is four incredible, spectacular kids.
Speaker 2: We've been lucky enough to handle a number of cases
Speaker 2: that involved wrongful convictions, and a product of that is
Speaker 2: we get solicitations regularly from people who are in prison
Speaker 2: saying that they're innocent. And one of the things that
Speaker 2: you see is people who are innocent look at the
Speaker 2: process as an obstacle. People who are guilty who are
Speaker 2: looking for a way out look at the process as
Speaker 2: an opportunity. So you meet with somebody and they tell you,
Speaker 2: I didn't do it, and then they start talking to
Speaker 2: you about all the evidentiary issues that come up. What
Speaker 2: was wrong the grand jury, this didn't happen, they didn't
Speaker 2: do that right, the four persons didn't sign the indictment
Speaker 2: and all this stuff. The people who are innocent are
Speaker 2: a an open book, and b say, I don't give
Speaker 2: a damn about the rules of evidence. They are obstructing me.
Speaker 2: They're screwing me. They're stopping me from proving that I
Speaker 2: didn't commit this crime. And that was cal from the
Speaker 2: moment I met him until this day. He's been an
Speaker 2: open book and said, what do you want to know?
Speaker 2: Where do you want to look? Search my house, search
Speaker 2: anything you want to do, any question you ask is
Speaker 2: fine with me. And had no patience for the intricacies
Speaker 2: of the courtroom and the rules of evidence. I think
Speaker 2: he kind of touched on it here that he feels
Speaker 2: screwed by them, and rightly so.
Speaker 4: And for me at this stage, I want justice. I
Speaker 4: want Sue OVI and Steve Anderson and Jerry Keen held accountable.
Speaker 4: I want to see them in that courtroom. I want
Speaker 4: to see them on the witness stand. I want them
Speaker 4: to know what it feels like, I mean, they're never
Speaker 4: going to go to prison. Well, they're never going to
Speaker 4: be held accountable. If we do win. If and there's
Speaker 4: damages awarded, they're not going to have to pay. But
Speaker 4: I want them to know what it feels like to
Speaker 4: be on the hot seat, whether we win we don't.
Speaker 4: I'm hoping that we're able to show the public what
Speaker 4: they did behind the scenes. There's a lot of people
Speaker 4: right now that have switched their opinion of me, and
Speaker 4: I'm hoping that more people will switch their opinion once
Speaker 4: they see the evidence that we're going to present, and
Speaker 4: I've already put it out there on my podcast episode three.
Speaker 4: You're gonna see most of the evidence that we're putting on.
Speaker 4: But then I know there's people out there they're never
Speaker 4: gonna believe anything. Even if we do find her, They'll
Speaker 4: still think I'm guilty. But I want justice for me
Speaker 4: and my kids, and that's all I can ask for
Speaker 4: at this point.
Speaker 1: Thank you for listening to Wrongful Conviction. You can listen
Speaker 1: to this and all the Lava for Good podcasts one
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Speaker 1: Good Plus on Apple Podcasts. I want to thank our
Speaker 1: production team Connor Hall and Kathleen Fink, as well as
Speaker 1: my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Clive.
Speaker 1: The music in this production was supplied by three time
Speaker 1: OSCAR nominated composer Jay Ralph. Be sure to follow us
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Speaker 1: at Wrongful Conviction. You can also follow me on Instagram
Speaker 1: at It's Jason Flamm. Wrongful Conviction is a production of
Speaker 1: Lava for Good Podcasts and association with Signal Company Number One.
Speaker 1: We have worked hard to ensure that all facts reported
Speaker 1: in this show are accurate. The views and opinions expressed
Speaker 1: by the individuals featured in this show are their own
Speaker 1: and do not necessarily reflect those of Lava for Good.