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Speaker 1: On October sixteenth, twenty fifteen, twenty four year old Courtney

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Speaker 1: Tolliver was struck by a blunt object in her Portage County,

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Speaker 1: Ohio trailer home. After running to the neighbors for help,

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Speaker 1: she was rushed to the hospital and put into a

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Speaker 1: medically induced coma. When she regained consciousness, her memory was unclear.

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Speaker 1: Soon detectives suggested David Smith, a man who had texted

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Speaker 1: her that day, but she said it wasn't David until

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Speaker 1: she was facing her own charges. Then her memory made room.

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Speaker 2: For that possibility.

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Speaker 1: This is Wrongful Conviction. Welcome back to Wrongful Conviction, where

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Speaker 1: we returned to Portage County, Ohio. Now, the last time

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Speaker 1: we covered a case out of there was Tyrone Noling

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Speaker 1: and that one lives rent free in my head, and

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Speaker 1: we're going to link to his story in the episode description. Tragically,

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Speaker 1: he's still on death row to this very day in Ohio,

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Speaker 1: and we're only aware of the wrongful conviction epidemic in

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Speaker 1: that state because of the incredible attorneys who also call

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Speaker 1: Ohio home, not least of which is Kim Kral Kim.

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Speaker 3: Welcome back, Yeah, thanks for having me back.

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Speaker 1: And she's here to help tell the story of the

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Speaker 1: man himself, David Smith. Thank you for joining.

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Speaker 2: Us, right, thank you. I appreciate you.

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Speaker 1: And typically we like to hear about our guest lives.

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Speaker 1: You know, before all this insanity came to pass. And

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Speaker 1: with David, that's forty seven years. I mean, he wasn't

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Speaker 1: he wasn't a youngster when he went to prison. But

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Speaker 1: those forty seven years they weren't easy ones, were they.

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Speaker 2: I was taken from my real parents at the age

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Speaker 2: of six, giving up for adoption. I had eight brothers

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Speaker 2: and sisters, and I went from foster home to group home,

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Speaker 2: foster home to group home, and finally a man picked

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Speaker 2: me up as someone that he wanted as his son.

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Speaker 2: In order for him to adopt me, he had to

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Speaker 2: have a wife, so he married my mother under false

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Speaker 2: tensus for real. Because fast forward, it was a whole

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Speaker 2: lot of abuse in the home, I mean extreme abuse,

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Speaker 2: physical abuse. So where I got upset with my mother

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Speaker 2: was there couldn't have been nothing in that home that

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Speaker 2: could have been worse where you would have to give

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Speaker 2: me away. If it wasn't good enough for you, then

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Speaker 2: why should it be good enough for me? Why didn't

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Speaker 2: you take me with you? And a judge also made

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Speaker 2: that statement to her, and she said she couldn't because

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Speaker 2: that would have been kidnapping. In my head, I'm saying,

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Speaker 2: how could that be? You can prove the abuse by

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Speaker 2: the markings on my body, by me warning myself back

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Speaker 2: to the state. But I wasn't good enough to take

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Speaker 2: with you.

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Speaker 1: So after his mother left him in this man's custody,

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Speaker 1: he found a way to get himself out of that

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Speaker 1: awful situation.

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Speaker 2: At the age of ten, I warded myself back to

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Speaker 2: the state. We went in to see the judge on

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Speaker 2: some kind of official business dealing with the adoption park, and

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Speaker 2: I told the judge I'm not going back there, and

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Speaker 2: he looked at me and he couldn't figure out why.

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Speaker 2: And I said, I'm just not going back with that man,

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Speaker 2: while he was sitting right next to me. And that

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Speaker 2: day forward, my life began by myself, without me having

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Speaker 2: any kind of guidance or direction. The only thing I

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Speaker 2: knew to do was to survive. It didn't tailed me

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Speaker 2: committing crimes. I didn't know any better, and all it

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Speaker 2: did was grew until it grew out of control. I

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Speaker 2: was constantly detention centers, juvenile facilities. I was numb. I

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Speaker 2: was just a mechanical animal out here, just trying to

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Speaker 2: survive my life. At that time, I was just a

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Speaker 2: car thief boy, and then that grew to the life

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Speaker 2: of crime as the adult. I had a robbery case,

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Speaker 2: a boloneyssault case, and then twenty fourteen, I had got

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Speaker 2: into the trade selling drugs. That's all I've known up

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Speaker 2: until ten years ago, when I actually started getting my

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Speaker 2: life together. I had opened up two small businesses. I

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Speaker 2: moved out of Portage County and moved to Trumble County,

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Speaker 2: Newton Folls.

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Speaker 1: And that's where he lived with his girlfriend, Margaret Austin,

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Speaker 1: while both getting his cleaning business off the ground and

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Speaker 1: remaining in touch with friends in Portage County, including the

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Speaker 1: victim in this case, a twenty four year old woman

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Speaker 1: named Portney Tolliver who was also involved in the drug trade.

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Speaker 1: And on the night before the incident, she had texted

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Speaker 1: David for a ride to Cleveland, and so they were

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Speaker 1: in contact earlier that day, that fateful day of October sixteen,

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Speaker 1: twenty fifteen, and then she suddenly stopped texting David right

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Speaker 1: around the time that she had been struck with the

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Speaker 1: blunt object inside of her trailer home.

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Speaker 3: Nine one one gets a call from a neighbor that

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Speaker 3: Courtney Tolliver is wandering around sort of between trailers and

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Speaker 3: collapses on the ramp of her trailer and and they

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Speaker 3: believe she's muttered something about being hit with a hammer.

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Speaker 3: The police arrive, she is taken by EMS and then

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Speaker 3: life light. She is put into a medically induced coma

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Speaker 3: and during this time the Portage County Sheriff's Office begins

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Speaker 3: an investigation. I'm using the term investigation very lightly because

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Speaker 3: they gathered I mean, I think five items of physical evidence,

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Speaker 3: all of which have since been lost. So they take

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Speaker 3: a few photographs. They gather five items of physical evidence,

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Speaker 3: and they swab a number of things for DNA. There

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Speaker 3: is a hammer on site that is not collected as evidence.

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Speaker 3: The photograph of it, it appears to have no blood

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Speaker 3: on it. What is most interesting is there is a

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Speaker 3: stool absolutely covered in blood. When you zoom in you

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Speaker 3: can see a hair fiber on it. There is a

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Speaker 3: massive puddle of blood around this stool. Now, this stool

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Speaker 3: is not swabbed, it's not collected, it's hardly photographed. There

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Speaker 3: is a set of keys that are moved onto a

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Speaker 3: puddle of blood, so someone touched those keys after the incident.

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Speaker 3: Those were not gathered or swabbed or finger printed.

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Speaker 2: And it was a size six footprint that was inside

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Speaker 2: the blood, a woman's size six shot. The detective said

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Speaker 2: that they didn't step into blood, They didn't do none

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Speaker 2: of that. So whose size six shoot was this?

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Speaker 3: There was a lock box which someone opened, whoever did this,

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Speaker 3: that was not swabbed or fingerprinted. It was gathered but

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Speaker 3: never used as evidence and has since been lost. There

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Speaker 3: was a laptop that the contents of which were never investigated,

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Speaker 3: that was lost. And she had two cell phones.

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Speaker 1: Courtney described one cell phone as her family phone and

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Speaker 1: the other as her drug phone, but at the time

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Speaker 1: of trial, the state claimed to only have the records

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Speaker 1: for the family phone, which she had used to text

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Speaker 1: David about a ride to Cleveland.

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Speaker 3: And so throughout that evening they go back and forth

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Speaker 3: with text about a ride to Cleveland, and throughout the

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Speaker 3: next morning, Dave says, I have a job interview. We

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Speaker 3: know from the location of his cell phone. He goes

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Speaker 3: to a job interview, and then there's text back and forth,

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Speaker 3: and then she drops off the texting and he says,

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Speaker 3: what do you want to do? I'm pulling up and

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Speaker 3: then no response.

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Speaker 2: But she was text messaging people steal on that other

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Speaker 2: phone when this crime was supposed to have occurred with me. Anyway,

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Speaker 2: they say it has happened between ten thirty and ten

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Speaker 2: forty five with me. But at ten forty something she

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Speaker 2: was still on the phone, text messaging and making calls

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Speaker 2: with whoever she was talking to.

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Speaker 1: But the drug phone record and this exculpatory context were

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Speaker 1: not discovered for many years. Nevertheless, the police visited David,

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Speaker 1: who confirmed his number, and they probably visited the people

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Speaker 1: on the other phone log too, And soon Courtney came

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Speaker 1: out of the coma.

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Speaker 3: She cannot speak because she's intubated, and she writes down

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Speaker 3: who did this to me? She had been engaged in

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Speaker 3: a number of drug transactions the night before and the

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Speaker 3: next day early in the morning before this attack. They

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Speaker 3: don't investigate any of those people in any manner whatsoever.

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Speaker 3: They don't investigate any other person she contacts or calls.

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Speaker 1: Or they did, but they just didn't keep any record

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Speaker 1: of it. Now, when Courtney's intubation tube came out, they

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Speaker 1: interviewed her again and again she said that she had

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Speaker 1: no recollection of what had happened, and in between that

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Speaker 1: visit and the following one, they ran some of the

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Speaker 1: crime scene evidence through CODIS, the national database, and they

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Speaker 1: came up with a possible match, not a true match,

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Speaker 1: but a possible match for David Smith. So while waiting

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Speaker 1: for confirmation of that, they visited Courtney once again, this

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Speaker 1: time recording the interaction and telling her whose DNA they

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Speaker 1: believed that they had found at the scene.

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Speaker 3: When they go interview her on December ninth, they hold

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Speaker 3: up a single photo of David Smith and tell her

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Speaker 3: this man is a dangerous man. We already spoke to him.

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Speaker 3: He did this to you. He wanted you dead. He

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Speaker 3: doesn't care about you. And she does not identify him

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Speaker 3: as her attacker. She says, why would he do this

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Speaker 3: to me?

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Speaker 1: And she seems to have some foggy recollection of her attacker.

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Speaker 2: She states that the guy had blue tip Dreds. I

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Speaker 2: don't have blue tip Dreds. I think I've been bald

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Speaker 2: for twenty five years at least. And the blue tip

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Speaker 2: Dreds is the person that their mother called and asks

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Speaker 2: did you try to kill me? And his name is Hood.

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Speaker 3: In a recording, her mother says, we called and asked

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Speaker 3: him why he did this?

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Speaker 2: And this is a person that she been known forever,

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Speaker 2: good friends, they do business together, they kick it together.

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Speaker 2: They was like peanut, butter and jelly. Why would you

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Speaker 2: call him and ask him did he try to kill you?

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Speaker 1: So Corney and her mother had their own suspects. They

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Speaker 1: even mentioned others in that recording, some of whom were

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Speaker 1: on that other call log. But at this point the

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Speaker 1: police appeared to be hoping for their possible codus match

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Speaker 1: with David was going to be confirmed, but it wasn't,

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Speaker 1: so now they began to scream.

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Speaker 3: What we found later with these alternative suspects is detector

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Speaker 3: Johnson's calling the BCI, people who handle the DNA testing

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Speaker 3: and telling them we have these alternative suspects. They could

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Speaker 3: have been involved. Here's why they actually let Courtney Tolliver's

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Speaker 3: children's father out of jail to help investigate for them.

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Speaker 2: Our baby daddy was talking to his mother and his

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Speaker 2: aunt on the phone in the county jail and said

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Speaker 2: that she said who did it to her?

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Speaker 3: And then they don't disclose the information they get from him.

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Speaker 3: And then as BCI is calling back saying these other

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Speaker 3: people's DNA. Most of his DNA isn't matching to anyone,

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Speaker 3: almost all of it. Then Johnson starts to just narrow

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Speaker 3: in on David. Smith refuses to give anyone else's DNA

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Speaker 3: and refuses to turn over any discovery about these other

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Speaker 3: alternative suspects.

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Speaker 1: At this point, they returned to the DNA that had

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Speaker 1: been a possible match to David. And if you've ever

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Speaker 1: seen a DNA analysis graph also known as an electro pharah,

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Speaker 1: it looks like a series of little peaks marking genetic

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Speaker 1: alleles that are present in a given sample, which are

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Speaker 1: measured in relative fluorescence units or RFUs, And it seems

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Speaker 1: like there were enough peaks in common with David and

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Speaker 1: this DNA sample to trigger a possible match in codis,

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Speaker 1: but not an actual match. And there are ways to

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Speaker 1: enhance the quantity of a sample as well as the

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Speaker 1: height of the peaks or what lies between the peaks,

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Speaker 1: what is called static to see if potentially there is

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Speaker 1: other genetic information.

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Speaker 3: It's an amplification process, which was a process they used

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Speaker 3: for the first time in Portage County in his case,

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Speaker 3: and they're only supposed to amplify a certain number of

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Speaker 3: times and that amplification creates static, and those static points

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Speaker 3: either can cause you to misteray actual alleles as static,

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Speaker 3: or you can have static so high, which is nothing.

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Speaker 3: It's not real information. It's created from the amplification process

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Speaker 3: that can be read as an allele, a marker in

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Speaker 3: a certain space. They enlarged that possible match to Dave Smith,

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Speaker 3: and it was still not a match to Dave Smith.

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Speaker 3: So they enlarged it a second time, and it was

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Speaker 3: still not a match to Dave Smith. And they enlarged

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Speaker 3: it a third time and it was a match in

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Speaker 3: equal parts to Dave Smith and the victim.

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Speaker 1: This triple amplification process produced an electro pharagram that differed

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Speaker 1: from previous iterations in order to produce this result, and

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Speaker 1: it's unknown whether these differences may have been actual genetic

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Speaker 1: information or nothing at all. So there's a potential here

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Speaker 1: for subjectivity, false positives and negatives, and definitely a lot

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Speaker 1: of room for doubt.

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Speaker 3: But an unreliable process in this case produced a result

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Speaker 3: that there's a one in one fifty chance it's anyone

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Speaker 3: but David Smith or Courtney Tolliver, which is not a

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Speaker 3: match at all. So one in one fifty chance means

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Speaker 3: it could have been twenty seven thousand other people in

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Speaker 3: Portage County.

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Speaker 1: So at this point they returned to court me for

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Speaker 1: an identification, and they doubled.

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Speaker 2: Down on David.

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Speaker 3: Obviously, without that identification, they had some trash DNA and

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Speaker 3: that's about it. She continues to not identify David Smith

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Speaker 3: as her attacker for several more months until February of

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Speaker 3: twenty sixteen. She had I believe eight or nine felony

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Speaker 3: drug counts pending. In February, those counts are resolved with

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Speaker 3: the same judge who tried David's case. Those are resolved

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Speaker 3: to a term of probation, and she walks directly out

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Speaker 3: of the courtroom into a little room immediately to the

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Speaker 3: left and explains to Detective Johnson that she now remembers

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Speaker 3: that she had a dream while in her coma she's

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Speaker 3: as a baal black man mased her, and she now

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Speaker 3: interprets that to me that David Smith hit her with

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Speaker 3: a hammer in October of twenty fifteen.

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Speaker 1: So no more assailant with blue dreads and no more

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Speaker 1: felony drug charges. Maybe she had no idea who had

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Speaker 1: hit her, but now at least she found a way

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Speaker 1: that she could get something out of it.

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Speaker 2: No, I think she has an idea, and I think

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Speaker 2: that what really transpired is something that her and the

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Speaker 2: person that did it is going to take to the grade.

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Speaker 2: I mean, if somebody beat me like that, I'm gonna

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Speaker 2: know who it was beat me.

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Speaker 1: Nevertheless, it was enough for an arrest warrant on April first,

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Speaker 1: twenty sixteen.

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Speaker 2: That morning, I have my cell phone in one hand

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Speaker 2: and my car keys and the other. I chirked my

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Speaker 2: truck and I stepped one foot in and when I

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Speaker 2: look in the rearview mirror, it's a black, undercovered car

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Speaker 2: bumper to bumper with me. He pulled out his gun.

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Speaker 2: He's like, free, stick your hands out, and I stick

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Speaker 2: my hands out and I said, what's this about? Officer?

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Speaker 2: He put the handcuffs on me, and then he said,

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Speaker 2: you have a warren for a tempted murder. And I

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Speaker 2: damn that passed out. Like what.

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Speaker 1: You're listening to, wrongful Conviction. You can listen to this

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Speaker 1: and all the Lava for Good podcasts one week early

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00:15:10,280 --> 00:15:13,600
Speaker 1: and ad free by subscribing to Lava for Good Plus

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Speaker 1: on Apple Podcasts.

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Speaker 2: It was the biggest case of Portish County. Everybody at

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Speaker 2: that time at Portish County Jail tried to get on

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Speaker 2: that witness list to testify against me so they could

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Speaker 2: get out of jail. The detectives was pulling up on people,

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Speaker 2: talking about you ain't gonna get in trouble. All you

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Speaker 2: got to do is just tell us you was down

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Speaker 2: there witting. I mean, all this is video and recording.

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Speaker 1: Eventually, the investigators came upon some willing participants who they

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Speaker 1: could actually use, starting with a couple who knew David

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Speaker 1: from the drug trade, Randy Milem and Florence Fontanella. And

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Speaker 1: Randy was the one who made the first statement.

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Speaker 2: I mean, if you looked at the video of this interview,

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Speaker 2: be like, this is a dope fiend trying to get

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Speaker 2: out because she's telling the the detectives all these ale

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Speaker 2: Lander's statements. But he's also saying, are you going to

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Speaker 2: go to the judge and tell her to let me out?

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Speaker 2: He came up with a story that I told him

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Speaker 2: I did it. I told him I left the hammer

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Speaker 2: at the house, that me and this girl did it together.

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Speaker 1: Then Florence Fontanella, who was facing her own charges, was

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Speaker 1: approached about being in Randy's car during the alleged confession.

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Speaker 2: The DEA went to her house and asked her up

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Speaker 2: and she said, I don't know nothing about that. She said,

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Speaker 2: I was in the vehicle, Winnie, and I never heard

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Speaker 2: that man say he did anything. And the very next

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Speaker 2: day they had a warned for her arrest. When back

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Speaker 2: picked her up brought it to Forty County jail, she

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Speaker 2: wrote a statement, I was in the car and I

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Speaker 2: didn't hear none of that. She made recorded calls on

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Speaker 2: the phone and said Randy must be in trouble and

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Speaker 2: I didn't hear none of that. But two weeks later

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Speaker 2: she spent around and said I as a forthcoming. She said,

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Speaker 2: I didn't hear nothing but him say got the bitch

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Speaker 2: with a hammer.

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Speaker 1: And then once Florence hopped on board, Randy recanted. So

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Speaker 1: now they couldn't afford to lose Florence as well.

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Speaker 2: Florence found it Tello. She was scheduled to go for

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Speaker 2: sentencing a week before my trial. They postponed her sentencing

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Speaker 2: to make sure that she testified for the deal that

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Speaker 2: they gave her. She went to treatment facility by Addings.

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Speaker 3: Instead of prison. Yet she switched her story quite literally

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Speaker 3: when she.

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Speaker 1: Got the deal, and they pulled a similar stunt with

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Speaker 1: another acquaintance of David's who was named Lisa Frame. Ironic

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Speaker 1: name much, Lisa Frame, Come on now.

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Speaker 3: Lisa Frame was in Jefferson County jail and Lisa Frame

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Speaker 3: drove a black car. A black car can be seen

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Speaker 3: driving in and out of the trailer park around the

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Speaker 3: time they believe the crime happened. And to me, it's

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Speaker 3: pretty clear if they knew someone. It was a known

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Speaker 3: associate of David Smith with a black car. She was

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Speaker 3: in jail. They went to the jail threatened to charge

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Speaker 3: her with conspiracy to commit attempted murder unless she told

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Speaker 3: them that she drove Dave Smith there.

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Speaker 2: And so she said, would tell me what you want

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Speaker 2: me to say then, and I'll say it.

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Speaker 1: And this insanity is on tape.

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Speaker 2: Yeah.

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Speaker 3: She says there was a day she gave Dave Smith

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Speaker 3: a ride, but she wasn't sure what day it was.

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Speaker 3: She took him to the trailer park. He was in

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Speaker 3: there a couple minutes and he came back. He had

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Speaker 3: no blood on him or anything. He wasn't in any

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Speaker 3: state of outrage or upset or panic or anything. She

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Speaker 3: doesn't say anything about having a hammer on him, but

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Speaker 3: she says he has something and wrapped up in his shirt,

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Speaker 3: which she thinks is a gun, and she reiterates she

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Speaker 3: has no idea what Dave this happened.

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Speaker 2: Lisa Frame said, I called him several times that would

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Speaker 2: have blocked me and Lisa Frame into that day that time.

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Speaker 2: But they said that they took her phone and plugged

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Speaker 2: it into the computer and they couldn't get nothing out

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Speaker 2: of it.

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Speaker 1: Oh, I'm sure.

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Speaker 3: And not only did they plug it in and decide

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Speaker 3: that it wasn't computering, but they then thought, should we

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Speaker 3: keep it?

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Speaker 2: Should we keep it?

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Speaker 3: Should we store it somewhere important? Nobody knows it has

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00:19:14,520 --> 00:19:17,600
Speaker 3: disappeared into thin air. And in all of the phone

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Speaker 3: records that were available in this case, they got one

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00:19:19,880 --> 00:19:23,080
Speaker 3: set of phone records which helped the tail they were spinning,

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Speaker 3: and then everything else was unavailable.

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Speaker 1: So to shore up Lisa Frames date and time, they

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00:19:27,840 --> 00:19:31,040
Speaker 1: pulled surveillance footage from a Walmart parking lot showing two

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Speaker 1: black cars traveling in the direction of the trailer homes

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Speaker 1: around the time of the last text message from David,

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Speaker 1: and then only one leaving shortly after. And we could

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Speaker 1: get into how possible or impossible it was that these

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Speaker 1: were even her car, and how long it would take

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Speaker 1: for the round trip plus the bludgeoning. But why unpack

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Speaker 1: a bunch of meaningless bullshit that's masquerading as evidence when

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Speaker 1: the logical framework is built on the word of someone

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Speaker 1: who said a recording, tell me what you want me

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Speaker 1: to say, and I'll say it. So they went ahead

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Speaker 1: to trial with Lisa Frame, Florence Fontanello, Courtney Tolliver and

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Speaker 1: the bogus DNA evidence, which magically seemed to have gotten

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Speaker 1: a boost of credibility in the lead up to the trial.

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Speaker 3: Before twenty sixteen, when they come up with the electro faarrograms,

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Speaker 3: the peak had to be taller than seventy five RFUs

378
00:20:25,119 --> 00:20:28,000
Speaker 3: otherwise it could have been static and it's too risky

379
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Speaker 3: to consider it. But in between October twenty fifteen to

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Speaker 3: Fall twenty sixteen, BCI published a paper saying, now, just

381
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Speaker 3: in the nick of time, they're allowed to lower the

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Speaker 3: threshold to fifty RFUs and count peaks that really fall

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Speaker 3: in that high risk static range.

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Speaker 1: So this lowering of standards allowed for the triple amplified

385
00:20:50,680 --> 00:20:53,960
Speaker 1: DNA sample to be presented as a partial match to

386
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Speaker 1: both David and Courtney, which is a confusing result, and

387
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Speaker 1: implied that it could have been David, but it eventually

388
00:21:00,920 --> 00:21:03,560
Speaker 1: turned out it could have also been so many others.

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Speaker 3: Yes, the neighbor across the street, in fact, when we

390
00:21:07,280 --> 00:21:10,560
Speaker 3: compared it, had more alleles in common with this sample

391
00:21:10,600 --> 00:21:12,879
Speaker 3: than Dave Smith did, and had blood on his pants

392
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Speaker 3: and was present when the police arrived. And I'm not

393
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Speaker 3: saying he did it, but I'm evidencing how we manipulate

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00:21:20,119 --> 00:21:22,400
Speaker 3: DNA to say what we wanted to say, and that's

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Speaker 3: what they did in this case.

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Speaker 1: And the steak got one last helping hand. David's attorney

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Speaker 1: filed to suppress the victim's identification because if you remember,

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Speaker 1: the December ninth, twenty fifteen, interaction was recorded when Lieutenant

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Speaker 1: Johnson was suggestive with the witness.

400
00:21:40,520 --> 00:21:43,960
Speaker 3: Yes, he literally is saying, this man is dangerous, he

401
00:21:44,080 --> 00:21:47,119
Speaker 3: wanted you dead. We know that he did this, and

402
00:21:47,160 --> 00:21:50,159
Speaker 3: she's still not identifying him. And what is crazy is

403
00:21:50,560 --> 00:21:53,280
Speaker 3: Tolliver's mother is in that same interview, and in the

404
00:21:53,320 --> 00:21:57,200
Speaker 3: course of the conversation, Tlliver's mother is talking about other

405
00:21:57,240 --> 00:21:58,760
Speaker 3: people that they believe did this.

406
00:21:58,840 --> 00:22:02,879
Speaker 1: By name specifically Hood with the blue tipped dreads. But

407
00:22:02,960 --> 00:22:06,120
Speaker 1: the motion to suppress the id was denied, and by.

408
00:22:06,040 --> 00:22:08,280
Speaker 3: The time we get to the first trial, they don't

409
00:22:08,320 --> 00:22:11,560
Speaker 3: allow that to be played in court. Instead, the court says, well,

410
00:22:11,600 --> 00:22:14,119
Speaker 3: they have the transcript of it. The jury's going to

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00:22:14,200 --> 00:22:15,120
Speaker 3: get the transcript.

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00:22:15,520 --> 00:22:18,360
Speaker 2: But it took me ten years to find out that

413
00:22:18,400 --> 00:22:21,000
Speaker 2: those transcripts wasn't even accurate. In the first place.

414
00:22:21,240 --> 00:22:26,400
Speaker 3: The transcript had the names of the other potential suspects redacted,

415
00:22:26,760 --> 00:22:29,080
Speaker 3: and it had it redacted in such a manner that

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00:22:29,240 --> 00:22:32,240
Speaker 3: it then sounded like his mother was still talking about

417
00:22:32,280 --> 00:22:34,879
Speaker 3: David Smith. We called him and asked him why he

418
00:22:34,960 --> 00:22:38,320
Speaker 3: did this, implicating that they believed it was Dave Smith,

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Speaker 3: when really what they said about Dave Smith was why

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Speaker 3: would he do that to me? She said, he gave

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00:22:43,000 --> 00:22:44,760
Speaker 3: me a ride once? Why would he do this?

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Speaker 1: So even if the jury planned on reading them, they'd

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00:22:48,000 --> 00:22:51,320
Speaker 1: be misled by the redacted text anyway. And that's how

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00:22:51,320 --> 00:22:54,920
Speaker 1: both Lieutenant Johnson and Courtney Tolliver testified about the identification

425
00:22:55,320 --> 00:23:00,000
Speaker 1: without being irreparably impeached. Instead, the cross examination was new.

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00:23:00,680 --> 00:23:02,040
Speaker 1: While Courtney took the.

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Speaker 3: Stand, she testifies with one hundred percent certainty that David

428
00:23:05,560 --> 00:23:08,240
Speaker 3: Smith came to her door and attacked her with a hammer.

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Speaker 1: And despite cross examination, this was still a bludgeoning victim

430
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Speaker 1: naming her attacker.

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00:23:13,640 --> 00:23:17,160
Speaker 2: But this is the key to a one hundred percent

432
00:23:17,280 --> 00:23:21,639
Speaker 2: sure This dream summary never came up to that detective

433
00:23:22,040 --> 00:23:25,520
Speaker 2: shoulder that picture. And then now she's saying, in my dream,

434
00:23:25,840 --> 00:23:28,040
Speaker 2: I dreamt it was him. But there was never a

435
00:23:28,119 --> 00:23:32,320
Speaker 2: dream summary in the hospital on November seventh. But whatever

436
00:23:32,359 --> 00:23:34,959
Speaker 2: it was that the detectives came to the hospital and

437
00:23:35,080 --> 00:23:37,560
Speaker 2: asked you, and you say it, I have no memory of.

438
00:23:37,520 --> 00:23:41,560
Speaker 1: That, perhaps having not heard the contextual audio recording or

439
00:23:41,920 --> 00:23:44,200
Speaker 1: having not heard a word about the deal she got

440
00:23:44,240 --> 00:23:48,359
Speaker 1: for her nine felony drug charges. Sadly unsurprising that the

441
00:23:48,440 --> 00:23:52,760
Speaker 1: jury accepted the bogus idea as truth and then came

442
00:23:52,880 --> 00:23:57,960
Speaker 1: the quote unquote supporting evidence. Like Florence Fontanello, who had

443
00:23:58,000 --> 00:23:58,719
Speaker 1: her own issues.

444
00:23:59,080 --> 00:24:02,800
Speaker 3: Initially, she says that David Smith had nothing to do

445
00:24:02,880 --> 00:24:05,879
Speaker 3: with this, and she says it in these Facebook communications

446
00:24:05,920 --> 00:24:09,840
Speaker 3: with Margaret Austin. Randy Mulam comes forward and tells them

447
00:24:09,840 --> 00:24:11,960
Speaker 3: what they want to hear. Then she all of a

448
00:24:11,960 --> 00:24:16,480
Speaker 3: sudden switches to Team State and She says David Smith

449
00:24:16,960 --> 00:24:18,000
Speaker 3: made an admission to her.

450
00:24:18,160 --> 00:24:21,800
Speaker 2: When my attorney actor, well, what did you hear in

451
00:24:21,800 --> 00:24:25,240
Speaker 2: the conversation, she said, I didn't hear nothing but him say,

452
00:24:25,480 --> 00:24:26,680
Speaker 2: got the bitch with a hammer.

453
00:24:26,720 --> 00:24:30,439
Speaker 3: And she's confronted with these Facebook texts, but maintains that

454
00:24:30,520 --> 00:24:32,200
Speaker 3: David Smith made an admission to her.

455
00:24:32,440 --> 00:24:35,360
Speaker 2: She told the jury the reason why she didn't come

456
00:24:35,440 --> 00:24:36,920
Speaker 2: forward because she was scared.

457
00:24:37,520 --> 00:24:40,000
Speaker 1: The jury was also unaware of the deal that she

458
00:24:40,240 --> 00:24:43,920
Speaker 1: had received, as well as the threat that Lisa Frame

459
00:24:44,000 --> 00:24:47,919
Speaker 1: had sidestepped with her testimony, which was supported by surveillance

460
00:24:47,920 --> 00:24:51,640
Speaker 1: footage of random black cars traveling toward the trailer park.

461
00:24:52,040 --> 00:24:55,680
Speaker 3: There's not a single photo of what her actual black

462
00:24:55,680 --> 00:24:58,680
Speaker 3: Cadillac looks like. Even though they had a search, weren't

463
00:24:58,720 --> 00:25:01,720
Speaker 3: for it, and they searched it all. They took not

464
00:25:01,800 --> 00:25:05,160
Speaker 3: a photo of anything. But they did take a floor

465
00:25:05,240 --> 00:25:08,000
Speaker 3: mat and they tested the floor mat for either Dave's

466
00:25:08,080 --> 00:25:11,080
Speaker 3: DNA or blood or any blood splatter at all. Because

467
00:25:11,080 --> 00:25:13,040
Speaker 3: this was one of the bloodiest crime scenes I've seen.

468
00:25:13,119 --> 00:25:16,760
Speaker 3: There's not a drop respect of blood on the matt

469
00:25:17,200 --> 00:25:19,760
Speaker 3: note of Dave's DNA. But then since we have no

470
00:25:19,920 --> 00:25:21,800
Speaker 3: photo of the car to say whether that was the

471
00:25:21,840 --> 00:25:25,719
Speaker 3: car pulling into the trailer park or not. They just

472
00:25:26,280 --> 00:25:28,960
Speaker 3: infer to the jury that it is, and that Lisa

473
00:25:29,000 --> 00:25:30,840
Speaker 3: Frame doesn't remember the day, but that was the day,

474
00:25:30,960 --> 00:25:33,080
Speaker 3: and that also she must just be confused about how

475
00:25:33,160 --> 00:25:35,920
Speaker 3: Dave Smith didn't by any stretch looked like he had

476
00:25:35,960 --> 00:25:38,160
Speaker 3: just hammered someone nearly to death.

477
00:25:38,560 --> 00:25:42,160
Speaker 1: So after hearing only some of the impeaching issues about

478
00:25:42,160 --> 00:25:44,960
Speaker 1: every single one of the state's witnesses, and having heard

479
00:25:45,000 --> 00:25:48,160
Speaker 1: the identification of the attacker without the context of how

480
00:25:48,200 --> 00:25:52,040
Speaker 1: that identification came to be, the jury went to deliverate.

481
00:25:52,960 --> 00:25:56,240
Speaker 2: I mean, there's a lot of evidence that the jury

482
00:25:56,560 --> 00:26:00,000
Speaker 2: wasn't able to deliver right on, and they came back

483
00:26:00,080 --> 00:26:03,639
Speaker 2: two days later with a guilty burden twenty three years flat.

484
00:26:04,119 --> 00:26:05,840
Speaker 2: They told me I wasn't coming home till I was

485
00:26:05,880 --> 00:26:08,640
Speaker 2: seventy one years old, and I just started it at

486
00:26:09,000 --> 00:26:26,480
Speaker 2: forty seven. I was angry about it, but I wasn't

487
00:26:26,520 --> 00:26:30,760
Speaker 2: bitter because before I left out of that court room,

488
00:26:31,280 --> 00:26:35,080
Speaker 2: I told the detective Lieutenant Johnson, I'll see you again

489
00:26:35,480 --> 00:26:38,520
Speaker 2: in trial, and he said to me, I'll be there.

490
00:26:39,080 --> 00:26:42,199
Speaker 2: And for ten years I made sure that I was

491
00:26:42,200 --> 00:26:46,119
Speaker 2: going to be there to see him again. While the

492
00:26:46,160 --> 00:26:48,800
Speaker 2: appeal was going on, I was in a law library

493
00:26:48,840 --> 00:26:49,640
Speaker 2: every single day.

494
00:26:50,800 --> 00:26:53,440
Speaker 1: Like so many of our guests, David learned the law,

495
00:26:53,840 --> 00:26:57,760
Speaker 1: and after his direct appeal failed, he began fining motions

496
00:26:57,800 --> 00:27:00,200
Speaker 1: pro se, meaning on his own, without the up of

497
00:27:00,240 --> 00:27:00,800
Speaker 1: an attorney.

498
00:27:01,080 --> 00:27:04,840
Speaker 2: I did a post conviction on ineffect assistance of council

499
00:27:05,200 --> 00:27:09,720
Speaker 2: for the not playing those audios in court. They shut

500
00:27:09,760 --> 00:27:12,719
Speaker 2: that down. She said that there was nothing outside the

501
00:27:12,720 --> 00:27:15,840
Speaker 2: records because these transcripts and audios went back to the jury.

502
00:27:16,760 --> 00:27:19,440
Speaker 2: Subsequently we found out they never went to the jury.

503
00:27:20,000 --> 00:27:23,720
Speaker 1: Did never happened, And subsequently he filed his federal habias

504
00:27:23,800 --> 00:27:28,399
Speaker 1: based on the impermissibly suggestive identification, citing the transcript of

505
00:27:28,480 --> 00:27:31,960
Speaker 1: the December ninth, twenty fifteen recording, a transcript that they

506
00:27:32,000 --> 00:27:35,359
Speaker 1: had thought was both complete and seen by the jury,

507
00:27:35,680 --> 00:27:37,520
Speaker 1: and the filing made its way to the Sixth Circuit

508
00:27:37,520 --> 00:27:40,320
Speaker 1: by twenty twenty two, by which point Kim had already

509
00:27:40,359 --> 00:27:40,920
Speaker 1: joined the fight.

510
00:27:41,320 --> 00:27:45,000
Speaker 2: By this time, Kim had set me the audio and

511
00:27:45,040 --> 00:27:50,360
Speaker 2: the original transcripts of Courtney Tolliver's interview with Lieutenant Johnson,

512
00:27:50,520 --> 00:27:52,080
Speaker 2: and when she said it to me and I was

513
00:27:52,119 --> 00:27:55,680
Speaker 2: reading it, I said, Kim, these transcripts, it's not accurate.

514
00:27:55,720 --> 00:27:58,160
Speaker 2: She like, what you mean? I said, they took evidence

515
00:27:58,200 --> 00:28:01,879
Speaker 2: out of these transcripts. Send me to audio. I marked

516
00:28:01,920 --> 00:28:05,160
Speaker 2: off where all the meat was, taking out the transcripts,

517
00:28:05,640 --> 00:28:08,359
Speaker 2: the identification to somebody else and everything else, and I

518
00:28:08,440 --> 00:28:10,600
Speaker 2: sent it back to her. She tended to an independent

519
00:28:10,640 --> 00:28:14,280
Speaker 2: transcriber and they put all of it back inside the transcripts.

520
00:28:14,520 --> 00:28:19,480
Speaker 2: They're authenticating through another transcriber, but they're not authenticating through

521
00:28:19,480 --> 00:28:23,119
Speaker 2: the courts. Also, I didn't use these transcripts in my

522
00:28:23,200 --> 00:28:25,960
Speaker 2: federal aid. So now we're in the six certain Court

523
00:28:25,960 --> 00:28:28,439
Speaker 2: of Appeals and I bugging Kim and saying, how are

524
00:28:28,400 --> 00:28:32,360
Speaker 2: we going to get these transcripts in the evidence. What's difficult?

525
00:28:32,400 --> 00:28:34,400
Speaker 3: Though, We were procedurally in a place where you can't

526
00:28:34,400 --> 00:28:37,359
Speaker 3: expand the record, and so knowing that they weren't going

527
00:28:37,400 --> 00:28:39,320
Speaker 3: to allow me to expand the record at that time,

528
00:28:39,440 --> 00:28:42,040
Speaker 3: I was just like making up other things to file

529
00:28:42,520 --> 00:28:44,840
Speaker 3: that i'd have a reason to attach the transcripts.

530
00:28:45,120 --> 00:28:47,160
Speaker 2: So when they read the motion, they're going to read

531
00:28:47,200 --> 00:28:49,280
Speaker 2: the transcripts. And that's what we.

532
00:28:49,240 --> 00:28:52,360
Speaker 3: Did, without regard to the fact that they removed a

533
00:28:52,360 --> 00:28:55,920
Speaker 3: part of the transcript which contained exculpatory information and identified

534
00:28:56,200 --> 00:29:01,160
Speaker 3: an alternative suspect. The court was just like, this wild

535
00:29:01,400 --> 00:29:05,680
Speaker 3: identification procedure overly influenced her, and it's so bad. It's

536
00:29:05,720 --> 00:29:07,680
Speaker 3: to such an extent that there's no way it can

537
00:29:07,840 --> 00:29:11,880
Speaker 3: overcome even the stringent protections of EDPATH.

538
00:29:12,320 --> 00:29:15,280
Speaker 1: EDPA is the Anti Terrorism and Effective Death Penalty Act,

539
00:29:15,400 --> 00:29:17,560
Speaker 1: which was signed into law in the wake of the

540
00:29:17,640 --> 00:29:21,160
Speaker 1: nineteen ninety six Oklahoma City bombing. And in order to

541
00:29:21,240 --> 00:29:25,680
Speaker 1: reverse a state court decision quote, every fair minded jurist

542
00:29:25,840 --> 00:29:29,720
Speaker 1: would have to agree end quote. So what they're saying

543
00:29:29,840 --> 00:29:33,960
Speaker 1: is that not a single quote unquote fair minded judge

544
00:29:34,120 --> 00:29:37,440
Speaker 1: in existence could have seen this another way. And the

545
00:29:37,440 --> 00:29:41,800
Speaker 1: Sixth Circuit ruled that this seemingly impossibly high standard had

546
00:29:41,840 --> 00:29:43,240
Speaker 1: actually been met, and.

547
00:29:43,200 --> 00:29:46,000
Speaker 3: That's when they awarded him a habeous corpus on the

548
00:29:46,040 --> 00:29:48,480
Speaker 3: condition that they have to release him if they don't

549
00:29:48,520 --> 00:29:52,760
Speaker 3: retry him without that identification within six months.

550
00:29:52,920 --> 00:29:55,680
Speaker 2: And it was just hard that it took me all

551
00:29:55,800 --> 00:30:01,719
Speaker 2: this time. Quote just see where really happened to that case. Yeah,

552
00:30:02,000 --> 00:30:05,720
Speaker 2: evidence didn't change, nothing changed, but it was jud just

553
00:30:05,960 --> 00:30:09,120
Speaker 2: that seeing, hey, but this may did to this do

554
00:30:09,480 --> 00:30:11,720
Speaker 2: this a right? You should have never went.

555
00:30:11,640 --> 00:30:14,680
Speaker 1: To trial, so the state tried to stay the decision,

556
00:30:14,760 --> 00:30:17,680
Speaker 1: which brought them about six weeks against the six months

557
00:30:17,680 --> 00:30:20,920
Speaker 1: they were given, meaning they had to retry him by

558
00:30:20,960 --> 00:30:24,160
Speaker 1: March thirteenth, twenty twenty five, and with the clock ticking,

559
00:30:24,440 --> 00:30:27,000
Speaker 1: the state appealed to the denial of the stay as

560
00:30:27,040 --> 00:30:30,240
Speaker 1: well as filed for sir tierrari with the US Supreme Court,

561
00:30:30,480 --> 00:30:34,640
Speaker 1: both of which were almost unanimously denied in January of

562
00:30:34,640 --> 00:30:35,520
Speaker 1: twenty twenty five.

563
00:30:36,160 --> 00:30:39,960
Speaker 3: Since the ruling in July of twenty twenty four, I'd

564
00:30:40,000 --> 00:30:43,840
Speaker 3: been actively filing defense motions, all of which went ignored

565
00:30:44,000 --> 00:30:48,160
Speaker 3: until January for a trial that had to start by

566
00:30:48,200 --> 00:30:50,880
Speaker 3: mid February, and so by the time they were responded to,

567
00:30:50,920 --> 00:30:53,440
Speaker 3: like our emotions for expert, all of those deadlines that

568
00:30:53,560 --> 00:30:57,360
Speaker 3: expired for us. And then two days before trial, they

569
00:30:57,520 --> 00:31:00,400
Speaker 3: find a box labeled Detective Johnson. It was in the

570
00:31:00,440 --> 00:31:04,640
Speaker 3: back of some garage and it contained exculpatory information. It

571
00:31:04,720 --> 00:31:07,440
Speaker 3: referenced confidential informants.

572
00:31:06,800 --> 00:31:10,680
Speaker 1: And this confirmed suspicions that Kim had raised before the

573
00:31:10,760 --> 00:31:12,240
Speaker 1: July twenty twenty four ruling.

574
00:31:12,600 --> 00:31:16,120
Speaker 3: While I'm working on David's case, I am randomly working

575
00:31:16,200 --> 00:31:20,520
Speaker 3: another federal drug case and I'm in the trial and

576
00:31:20,560 --> 00:31:24,840
Speaker 3: a confidential informants name is disclosed, which is wildly protected,

577
00:31:25,160 --> 00:31:27,920
Speaker 3: but it is a name I recognize. So I go

578
00:31:27,960 --> 00:31:30,960
Speaker 3: back to Portage County and I say, I have documentations

579
00:31:30,960 --> 00:31:35,240
Speaker 3: signed by Portage County Sheriff's office indicating that this person

580
00:31:35,320 --> 00:31:38,440
Speaker 3: was paid as a confidential informant right around the same

581
00:31:38,480 --> 00:31:41,000
Speaker 3: time of this case, that they were on the payroll

582
00:31:41,480 --> 00:31:45,520
Speaker 3: by the Portage County Sheriffs. And the sheriffs continually and

583
00:31:45,560 --> 00:31:49,720
Speaker 3: repeatedly stated, we have no record of that, while I'm

584
00:31:49,760 --> 00:31:52,960
Speaker 3: holding documentation signed by their office on their letterhead.

585
00:31:53,840 --> 00:31:58,680
Speaker 2: The people that they had on the list suspects are

586
00:31:58,720 --> 00:32:00,640
Speaker 2: confidential informants, and that.

587
00:32:00,600 --> 00:32:04,160
Speaker 3: Would explain why they never even called them into interview them,

588
00:32:04,240 --> 00:32:06,719
Speaker 3: not one of them. Did they identify their whereabouts at

589
00:32:06,720 --> 00:32:08,560
Speaker 3: the time of the crime, did they get their cell

590
00:32:08,600 --> 00:32:11,280
Speaker 3: phone records to see their location or their communication with

591
00:32:11,680 --> 00:32:12,960
Speaker 3: Courtney Tolliger.

592
00:32:12,880 --> 00:32:16,120
Speaker 1: Which definitely adds context as to why this second phone

593
00:32:16,200 --> 00:32:21,280
Speaker 1: long was allegedly never gathered into evidence. And additionally, there

594
00:32:21,320 --> 00:32:25,240
Speaker 1: was new context for how David's and only David's cell

595
00:32:25,240 --> 00:32:27,840
Speaker 1: phone location had been obtained.

596
00:32:27,640 --> 00:32:31,680
Speaker 2: When he got the warrant from my cell phone tower evidence.

597
00:32:32,080 --> 00:32:36,160
Speaker 2: He told the judge that his DNA is on this

598
00:32:36,280 --> 00:32:39,360
Speaker 2: scene and that's what he used to get a search WARM.

599
00:32:39,720 --> 00:32:43,520
Speaker 2: When the people from BCIs and you have to do

600
00:32:43,640 --> 00:32:47,840
Speaker 2: further investigation. This is not evidence, but he took it

601
00:32:47,880 --> 00:32:50,680
Speaker 2: to the judge and the judge gave me a search

602
00:32:50,760 --> 00:32:53,520
Speaker 2: WARM from my cell phone tower evidence.

603
00:32:53,800 --> 00:32:55,000
Speaker 3: The big part of the first trial I was like,

604
00:32:55,040 --> 00:32:58,600
Speaker 3: her last text message was to David Smith, she never

605
00:32:59,080 --> 00:33:01,360
Speaker 3: texted anybody again. F that well, her other phone makes

606
00:33:01,440 --> 00:33:05,080
Speaker 3: clear she's continuing texting and engaging with people for fifteen

607
00:33:05,160 --> 00:33:10,280
Speaker 3: or twenty minutes after they believe the crime occurred, and

608
00:33:10,760 --> 00:33:13,479
Speaker 3: that she has constant contact with one person more than

609
00:33:13,480 --> 00:33:16,520
Speaker 3: one hundred times that day. That was another aspect of

610
00:33:16,560 --> 00:33:18,280
Speaker 3: the case that was not a part of the first trial,

611
00:33:18,360 --> 00:33:20,080
Speaker 3: and then they tried so hard not to make it

612
00:33:20,120 --> 00:33:22,080
Speaker 3: a part of the second trial by arguing that we

613
00:33:22,160 --> 00:33:25,920
Speaker 3: could not authenticate it because the records were ten years old.

614
00:33:25,640 --> 00:33:28,480
Speaker 1: And that was an issue for everything that was found

615
00:33:28,640 --> 00:33:32,400
Speaker 1: in Lieutenant Johnson's garage as they moved into the retrial

616
00:33:32,520 --> 00:33:33,880
Speaker 1: in February twenty twenty five.

617
00:33:34,320 --> 00:33:36,560
Speaker 3: Another one of the big issues at the retrial is

618
00:33:36,600 --> 00:33:40,440
Speaker 3: that the state investigator who photographed the crime scene has

619
00:33:40,480 --> 00:33:43,800
Speaker 3: retired and literally told them, sorry, I'm not coming in,

620
00:33:44,160 --> 00:33:47,720
Speaker 3: So we were denied the opportunity to cross examine him

621
00:33:48,040 --> 00:33:51,320
Speaker 3: about the photos on scene. You literally can't question anyone

622
00:33:51,360 --> 00:33:53,600
Speaker 3: about anything you see in the scene. How can you

623
00:33:53,640 --> 00:33:56,040
Speaker 3: develop arguments when you can't even point things out.

624
00:33:56,120 --> 00:33:58,280
Speaker 1: Like whether or not the hammer was even the murder

625
00:33:58,320 --> 00:34:01,840
Speaker 1: weapon at all. When the stool in the photo, well,

626
00:34:02,320 --> 00:34:03,880
Speaker 1: it was an interesting alternative.

627
00:34:04,080 --> 00:34:06,800
Speaker 3: What's interesting about it is someone touched it after it

628
00:34:06,840 --> 00:34:09,360
Speaker 3: was used, because there's both blood under it that it

629
00:34:09,440 --> 00:34:12,120
Speaker 3: is resting on top of and blood on top of it,

630
00:34:12,400 --> 00:34:14,239
Speaker 3: so that is going to have meaningful evidence on it.

631
00:34:14,280 --> 00:34:16,319
Speaker 3: Did they collect it? No, you didn't pick up the

632
00:34:16,360 --> 00:34:17,880
Speaker 3: only hammer on scene, and you didn't pick up the

633
00:34:17,880 --> 00:34:20,400
Speaker 3: thing that looks like a bludgeoning object covered in blood.

634
00:34:20,880 --> 00:34:23,720
Speaker 3: You didn't pick up the plastic bag which was sitting

635
00:34:23,760 --> 00:34:26,319
Speaker 3: on top of pile blood and also blood spleater on it.

636
00:34:26,719 --> 00:34:28,960
Speaker 3: So it was moved after. You know, it was touched

637
00:34:29,000 --> 00:34:31,400
Speaker 3: in some way in the course of this attack.

638
00:34:32,080 --> 00:34:35,640
Speaker 1: But without that witness or a more well documented crime scene,

639
00:34:35,680 --> 00:34:38,799
Speaker 1: the defense was hamstrung in this regard. But that was

640
00:34:38,880 --> 00:34:42,040
Speaker 1: not the case when they confronted the DNA evidence at

641
00:34:42,040 --> 00:34:45,600
Speaker 1: a pre trial hearing. As we discussed earlier, the triple

642
00:34:45,680 --> 00:34:49,600
Speaker 1: amplification process on the DNA sample drew into question what

643
00:34:49,719 --> 00:34:52,640
Speaker 1: were peaks and what was just static, which brings in

644
00:34:52,719 --> 00:34:55,960
Speaker 1: room for subjectivity to something that should just be an

645
00:34:56,040 --> 00:34:59,440
Speaker 1: objective science. And then Kim proceeded to present what this

646
00:34:59,520 --> 00:35:02,280
Speaker 1: process meant for a neighbor's DNA When.

647
00:35:02,120 --> 00:35:04,239
Speaker 3: I compared it to the neighbor, he had moraleles in

648
00:35:04,280 --> 00:35:07,759
Speaker 3: common with that sample than David Smith did. When you

649
00:35:07,880 --> 00:35:12,319
Speaker 3: bastardize the process, you get shit in, shit out. And

650
00:35:13,040 --> 00:35:16,160
Speaker 3: to watch these experts sit up there and try and

651
00:35:16,239 --> 00:35:21,520
Speaker 3: make sense of a senseless DNA procedure was just It

652
00:35:21,600 --> 00:35:22,200
Speaker 3: was painful.

653
00:35:22,560 --> 00:35:25,680
Speaker 2: The way she went in there and took the evidence

654
00:35:25,719 --> 00:35:28,680
Speaker 2: and threw it in the trash. The prosecutor came walked

655
00:35:28,719 --> 00:35:31,239
Speaker 2: over and said, listen, I'm gonna ask my boss if

656
00:35:31,239 --> 00:35:32,759
Speaker 2: we could just walk him out of here with time

657
00:35:32,920 --> 00:35:35,920
Speaker 2: serve and let him go. So the day before the

658
00:35:36,000 --> 00:35:39,000
Speaker 2: trial started on February to twenty four, and they put

659
00:35:39,040 --> 00:35:42,680
Speaker 2: it on the record time served. I said, no, I

660
00:35:42,719 --> 00:35:44,480
Speaker 2: didn't fight like this just to go in there and

661
00:35:44,480 --> 00:35:47,160
Speaker 2: plead guilty to somebody didn't do. I want my name

662
00:35:47,239 --> 00:35:50,720
Speaker 2: clear for this. And the prosecutor looked at me and said,

663
00:35:50,920 --> 00:35:53,520
Speaker 2: you got balls, and I looked at him and said, no,

664
00:35:53,640 --> 00:35:56,719
Speaker 2: you have bulls because the sixth Circred Quarter of Appeals

665
00:35:56,760 --> 00:36:00,520
Speaker 2: told you that you can't use this identification, and you

666
00:36:00,640 --> 00:36:03,480
Speaker 2: have televised that's what you're going to do. Anyway.

667
00:36:03,920 --> 00:36:06,640
Speaker 3: It is a habeas corpus in which he has to

668
00:36:06,680 --> 00:36:11,800
Speaker 3: be released unless they try him within six months without

669
00:36:12,000 --> 00:36:18,200
Speaker 3: using Tolliver's identification of Smith, which is suppressed and excluded.

670
00:36:18,520 --> 00:36:20,720
Speaker 3: I have read it and retyped it so many.

671
00:36:20,560 --> 00:36:23,719
Speaker 1: Times, and they were trying to interpret those words to

672
00:36:23,800 --> 00:36:26,920
Speaker 1: make it permissible to have the victims identified David but

673
00:36:27,280 --> 00:36:30,120
Speaker 1: not expressly as her attacker, right.

674
00:36:30,320 --> 00:36:32,360
Speaker 3: Like, no, it doesn't say that. Like these are the

675
00:36:32,440 --> 00:36:35,680
Speaker 3: highest judges in the country. They weren't confused. They meant

676
00:36:35,719 --> 00:36:37,840
Speaker 3: to press and excluded. And when she woke up, she

677
00:36:37,880 --> 00:36:41,479
Speaker 3: didn't remember anything about the day. So any identification which

678
00:36:41,480 --> 00:36:44,120
Speaker 3: includes an identification of David Smith from that day would

679
00:36:44,120 --> 00:36:49,400
Speaker 3: be the result of their overly influential, impermissible identification tactics.

680
00:36:49,680 --> 00:36:53,960
Speaker 2: The day before trial we found emotion. And as for clarification,

681
00:36:54,120 --> 00:36:56,680
Speaker 2: the Norther distrect Court of Appeals than not it summarily,

682
00:36:57,120 --> 00:36:59,120
Speaker 2: because what is do to clarify?

683
00:36:59,560 --> 00:37:02,600
Speaker 3: They said, we can't interpret what the six circuit means.

684
00:37:02,640 --> 00:37:05,880
Speaker 3: What the six circuit means is you cannot use Tolliver's

685
00:37:05,920 --> 00:37:09,319
Speaker 3: identification of Smith, which is suppressed and excluded. When that

686
00:37:09,440 --> 00:37:11,719
Speaker 3: order comes out, I think, oh, thank god, this explains

687
00:37:11,719 --> 00:37:13,200
Speaker 3: it to them. But they take it the other way.

688
00:37:13,200 --> 00:37:16,000
Speaker 3: They're like, see, they said, we can't interpret what the

689
00:37:16,000 --> 00:37:19,480
Speaker 3: six circuit does. So obviously the six circuit means she

690
00:37:19,680 --> 00:37:22,640
Speaker 3: just can't identify him as her attacker. So she's allowed

691
00:37:22,640 --> 00:37:26,480
Speaker 3: to say, that's David Smith, the ball black man and

692
00:37:26,520 --> 00:37:30,560
Speaker 3: the yellow sweater. He came to my door and then

693
00:37:30,600 --> 00:37:33,239
Speaker 3: I was struck with a hammer, and that's not an identification.

694
00:37:33,719 --> 00:37:38,240
Speaker 1: And it would be hilarious if it wasn't so freaking sinister.

695
00:37:38,680 --> 00:37:41,280
Speaker 1: And then they found a second way to bring it in.

696
00:37:41,280 --> 00:37:46,000
Speaker 2: In the opening statements, he says, Courtney, Tolliver is going

697
00:37:46,040 --> 00:37:49,840
Speaker 2: to come in here and tell you that David Smith

698
00:37:50,239 --> 00:37:51,720
Speaker 2: hit her in the head with a hammer.

699
00:37:52,000 --> 00:37:53,480
Speaker 1: And then Courtney took a stand.

700
00:37:53,719 --> 00:37:56,600
Speaker 2: They say, well, can you identify the person that you

701
00:37:56,680 --> 00:37:59,839
Speaker 2: said came to your house? She said, yes, that ball

702
00:38:00,239 --> 00:38:02,880
Speaker 2: guy over there with a yellow shirt to brown souno

703
00:38:03,280 --> 00:38:06,839
Speaker 2: and they said, well, let the record reflect she identified

704
00:38:06,920 --> 00:38:10,400
Speaker 2: David Smith and it just said no. And she said,

705
00:38:10,880 --> 00:38:13,800
Speaker 2: he was just standing on my porch. Okay, now what happened.

706
00:38:14,120 --> 00:38:16,520
Speaker 2: I hit the legs and he opened the door and

707
00:38:16,640 --> 00:38:18,840
Speaker 2: came in, and this thing I felt with a stroke

708
00:38:19,160 --> 00:38:20,600
Speaker 2: and I woke up in the hospital.

709
00:38:20,840 --> 00:38:25,360
Speaker 1: But somehow, in their minds this skirted the Sixth Circuits

710
00:38:25,480 --> 00:38:29,600
Speaker 1: order that her identification was to be suppressed and excluded

711
00:38:30,000 --> 00:38:32,960
Speaker 1: due to Lieutenant Johnson's impermissible procedure.

712
00:38:33,400 --> 00:38:36,239
Speaker 3: And then after they get her to do this whull identification,

713
00:38:36,320 --> 00:38:38,759
Speaker 3: I got to cross examine on the fact that it

714
00:38:38,880 --> 00:38:44,040
Speaker 3: was a wildly prejudicial identification procedure. And they're like, oh, no,

715
00:38:45,120 --> 00:38:47,399
Speaker 3: you can't cross him on that. You'd be opening the.

716
00:38:47,400 --> 00:38:52,439
Speaker 1: Door, meaning the door to allowing her identification. It's unfucking real.

717
00:38:52,760 --> 00:38:55,120
Speaker 3: And I'm like, is it genuinely your takeaway from the

718
00:38:55,160 --> 00:38:59,200
Speaker 3: Sixth Circuits order that her identification is allowed? But I

719
00:38:59,239 --> 00:39:02,960
Speaker 3: can't cross exams on the unreliability of the identification. You

720
00:39:03,000 --> 00:39:04,960
Speaker 3: think their point was to make it worse than it

721
00:39:05,040 --> 00:39:05,600
Speaker 3: was before.

722
00:39:06,680 --> 00:39:08,000
Speaker 2: Yep, they did.

723
00:39:07,719 --> 00:39:10,520
Speaker 1: They thought that, and then they found a way to

724
00:39:10,560 --> 00:39:14,480
Speaker 1: make it even worse with Florence Fontanello, who by this

725
00:39:14,560 --> 00:39:18,239
Speaker 1: time had recanted, but they weren't interested in hearing that,

726
00:39:18,760 --> 00:39:22,080
Speaker 1: so they claimed they just couldn't find her.

727
00:39:22,360 --> 00:39:25,279
Speaker 3: They got the court to admit her testimony from the

728
00:39:25,320 --> 00:39:28,680
Speaker 3: first trial again, even though she had issued an affidavit

729
00:39:28,760 --> 00:39:29,720
Speaker 3: saying that she had lied.

730
00:39:30,239 --> 00:39:33,840
Speaker 2: They took the twenty sixteen transcripts and read them into

731
00:39:33,880 --> 00:39:36,080
Speaker 2: a twenty twenty trial.

732
00:39:36,120 --> 00:39:39,799
Speaker 3: So we can't cross examine her. They just read her

733
00:39:39,840 --> 00:39:44,759
Speaker 3: testimony and everyone reads their own part, same prosecutor, same judge,

734
00:39:44,880 --> 00:39:47,680
Speaker 3: And I'm like, I'm refusing to participate in this display

735
00:39:47,680 --> 00:39:49,520
Speaker 3: of injustice. Like I'm not going to sit here like

736
00:39:49,600 --> 00:39:52,120
Speaker 3: the defense attorney from ten years ago and read his part.

737
00:39:52,520 --> 00:39:54,040
Speaker 3: I would make it very clear to the court that

738
00:39:54,080 --> 00:39:56,640
Speaker 3: I'm not a part of this. We're just re enacting

739
00:39:57,160 --> 00:39:59,920
Speaker 3: the same trial that was considered to be on constitution.

740
00:40:00,000 --> 00:40:02,520
Speaker 2: Well, what if we did was set there without being

741
00:40:02,560 --> 00:40:03,960
Speaker 2: able to say anything.

742
00:40:04,640 --> 00:40:06,960
Speaker 3: I was so pissed off as I sat there in court,

743
00:40:07,080 --> 00:40:11,239
Speaker 3: I ordered little Oscar statues and gave them to the

744
00:40:11,320 --> 00:40:13,560
Speaker 3: judge and the prosecutors the next day, like here, since

745
00:40:13,600 --> 00:40:16,520
Speaker 3: this is just a play, congrats on your acting.

746
00:40:17,960 --> 00:40:21,920
Speaker 1: Nobody liked them, So the jury heard Florence Fontanellez recanted

747
00:40:21,960 --> 00:40:26,200
Speaker 1: twenty sixteen testimony as well as the state's non identification

748
00:40:26,400 --> 00:40:30,760
Speaker 1: identification right, and despite being threatened with opening the door

749
00:40:30,800 --> 00:40:33,920
Speaker 1: to the full force of the unconstitutional evidence, they were

750
00:40:34,000 --> 00:40:37,840
Speaker 1: able to provide some evidence about Courtney's two phones, and

751
00:40:37,880 --> 00:40:40,000
Speaker 1: the records for the drug phone revealed that she had

752
00:40:40,040 --> 00:40:45,040
Speaker 1: been active after the state had contended that this crime occurred,

753
00:40:45,200 --> 00:40:48,320
Speaker 1: and that she had been contacted by an alternate suspect

754
00:40:48,680 --> 00:40:52,400
Speaker 1: over one hundred times that morning. But with the passage

755
00:40:52,400 --> 00:40:55,920
Speaker 1: of time, getting those records authenticated was the real problem.

756
00:40:56,040 --> 00:40:59,600
Speaker 1: So Kim asked the investigators about these records and why

757
00:40:59,640 --> 00:41:02,360
Speaker 1: they had gotten lost or what had happened to Lisa

758
00:41:02,400 --> 00:41:04,759
Speaker 1: Frame's cell phone or for that matter, any of the

759
00:41:04,800 --> 00:41:06,200
Speaker 1: physical evidence in this case.

760
00:41:06,400 --> 00:41:10,879
Speaker 2: The detectives was saying they don't remember anything, and then

761
00:41:10,920 --> 00:41:14,880
Speaker 2: with Kim refreshed their memory with their reports, they steer

762
00:41:14,920 --> 00:41:16,560
Speaker 2: with Sam, I don't recall.

763
00:41:16,320 --> 00:41:18,719
Speaker 3: That we had all this testimony about how they lost

764
00:41:18,760 --> 00:41:22,000
Speaker 3: all the evidence, and then after they realized it was lost,

765
00:41:22,719 --> 00:41:25,359
Speaker 3: sought a destruction order from the judge to destroy it

766
00:41:25,400 --> 00:41:27,480
Speaker 3: so that we couldn't use it I could get one

767
00:41:27,520 --> 00:41:30,719
Speaker 3: person to testify about some of the timing of the

768
00:41:30,760 --> 00:41:33,319
Speaker 3: text and the second set of cell phone records. And

769
00:41:33,360 --> 00:41:36,840
Speaker 3: because I wasn't allowed to admit those records, I was

770
00:41:36,920 --> 00:41:39,160
Speaker 3: allowed to publish them in front of the jury. So

771
00:41:39,200 --> 00:41:41,520
Speaker 3: I'm on a giant post it like writing down the

772
00:41:41,520 --> 00:41:44,120
Speaker 3: evidence I hope they can consider, so that when they

773
00:41:44,160 --> 00:41:46,960
Speaker 3: go back with half of the phone records, only the

774
00:41:47,000 --> 00:41:49,680
Speaker 3: half that benefit the state, they'll remember having seen me

775
00:41:49,800 --> 00:41:53,320
Speaker 3: write down the content of what mattered from the second set.

776
00:41:53,960 --> 00:41:57,520
Speaker 3: And so I thought that if we attacked the quality

777
00:41:57,560 --> 00:41:59,840
Speaker 3: of the investigation enough, it would be enough.

778
00:42:00,120 --> 00:42:03,160
Speaker 2: Kim fought everything tooth and nail, and they went in

779
00:42:03,200 --> 00:42:07,680
Speaker 2: there and came back at twelve o'clock with a guilty verdict, but.

780
00:42:07,920 --> 00:42:10,640
Speaker 1: A plan to return the Sixth Circuit was already in motion.

781
00:42:11,080 --> 00:42:14,840
Speaker 1: After all, these fucking people acted like they couldn't properly

782
00:42:14,880 --> 00:42:18,800
Speaker 1: comprehend the Sixth Circuit's order. But if the conviction was vacated,

783
00:42:18,960 --> 00:42:22,880
Speaker 1: then technically the Sixth Circuit no longer had jurisdiction, so

784
00:42:23,040 --> 00:42:27,120
Speaker 1: David would have to start his appeal all over again.

785
00:42:27,480 --> 00:42:31,560
Speaker 1: So David made sure that a copy of the Ohio

786
00:42:31,600 --> 00:42:34,640
Speaker 1: Department of corrections docket was taken for evidence.

787
00:42:35,000 --> 00:42:38,919
Speaker 2: When we filed the motion back to the court, they saying, hey,

788
00:42:38,960 --> 00:42:41,920
Speaker 2: this case was vacated. The federal court don't have jurisdiction

789
00:42:42,000 --> 00:42:45,400
Speaker 2: no more. My evidence was the docket, which there's no

790
00:42:45,480 --> 00:42:48,640
Speaker 2: general wintry in there, that the case was vacated. Two

791
00:42:49,200 --> 00:42:54,400
Speaker 2: the transport order. Three the ODRC website still said that

792
00:42:54,480 --> 00:42:57,360
Speaker 2: I was convicted, that I was still under conviction, that

793
00:42:57,400 --> 00:43:01,160
Speaker 2: it was never vacated. We fouled that most marks the twelve.

794
00:43:01,320 --> 00:43:04,080
Speaker 2: After they found me guilty, the Jews answered they gave

795
00:43:04,160 --> 00:43:06,719
Speaker 2: us a court day for April the first. They transported

796
00:43:06,760 --> 00:43:11,360
Speaker 2: me back to Cleveland to the federal courthouse and Attorney General.

797
00:43:11,760 --> 00:43:13,560
Speaker 2: It was kind of ugly because I've never seen the

798
00:43:13,640 --> 00:43:17,560
Speaker 2: Jews treat nobody in the courtroom like that, especially attorney General.

799
00:43:17,800 --> 00:43:18,759
Speaker 2: They were I mean, he was.

800
00:43:18,760 --> 00:43:21,400
Speaker 3: Not shy and saying how could you guys have done this,

801
00:43:21,560 --> 00:43:24,439
Speaker 3: like you touched the third rail, and not being from

802
00:43:24,520 --> 00:43:26,399
Speaker 3: New York, he then had to explain what the third

803
00:43:26,480 --> 00:43:29,839
Speaker 3: railmant to get into opposing council, like it's the thing

804
00:43:29,880 --> 00:43:32,000
Speaker 3: you don't touch. That's how you get electrocuted. You don't

805
00:43:32,000 --> 00:43:34,000
Speaker 3: touch the third rail, and you guys danced on the

806
00:43:34,040 --> 00:43:35,960
Speaker 3: third rail. What did you put me in a position?

807
00:43:36,000 --> 00:43:36,600
Speaker 2: What am I going to do?

808
00:43:37,160 --> 00:43:40,359
Speaker 1: And even though the Northern District Court initially had a

809
00:43:40,360 --> 00:43:44,000
Speaker 1: differing opinion than the higher six Circuit, they had no

810
00:43:44,120 --> 00:43:47,279
Speaker 1: choice but to honor the higher court's ruling because the

811
00:43:47,280 --> 00:43:50,799
Speaker 1: state's jurisdiction argument held no water. The conviction had not

812
00:43:50,880 --> 00:43:55,320
Speaker 1: been vacated, but rather only a new trial had been ordered.

813
00:43:55,600 --> 00:43:58,319
Speaker 2: On May to twelve, he called his back to the

814
00:43:58,360 --> 00:43:59,239
Speaker 2: Northern District Court of.

815
00:43:59,239 --> 00:44:01,840
Speaker 3: Appeals and I thank god the District Court did not

816
00:44:01,920 --> 00:44:05,840
Speaker 3: agree with them, and they ordered that David Smith be

817
00:44:05,920 --> 00:44:09,840
Speaker 3: granted an unconditional habeas corpus and that he'd be released.

818
00:44:10,040 --> 00:44:13,120
Speaker 3: But then he stayed his order for seventy five days

819
00:44:13,360 --> 00:44:16,239
Speaker 3: through the use of an administrative stay, which we appealed,

820
00:44:16,600 --> 00:44:19,440
Speaker 3: and the Sixth Circuit basically said, there's no such procedure

821
00:44:19,600 --> 00:44:22,399
Speaker 3: as an administrative stay in this context and he has

822
00:44:22,440 --> 00:44:24,239
Speaker 3: to be let out. And that was on July third.

823
00:44:24,719 --> 00:44:27,000
Speaker 2: Now it's a lot of third I was free on

824
00:44:27,160 --> 00:44:28,800
Speaker 2: July four if I was on a boat with my

825
00:44:28,880 --> 00:44:29,919
Speaker 2: attorneys and.

826
00:44:29,840 --> 00:44:32,920
Speaker 3: We took a picture from the boat of the Federal Courthouse.

827
00:44:33,520 --> 00:44:35,560
Speaker 3: Like everything that's happened. Now you get to view it

828
00:44:35,560 --> 00:44:39,239
Speaker 3: from this side. Yeah, and I sent it to the prosecutor.

829
00:44:39,520 --> 00:44:41,520
Speaker 2: When I first got out, I didn't want to live

830
00:44:41,560 --> 00:44:44,480
Speaker 2: with nobody, to deal with nobody. So we have a

831
00:44:44,520 --> 00:44:47,960
Speaker 2: guy who was also exonerated, who has an exign of

832
00:44:48,000 --> 00:44:49,480
Speaker 2: ree house in Cleveland.

833
00:44:49,520 --> 00:44:50,960
Speaker 3: We have so much injustice, so we have a lot

834
00:44:51,000 --> 00:44:53,319
Speaker 3: of exgneries and they take care of each other. So

835
00:44:53,440 --> 00:44:55,560
Speaker 3: one of them bought a house for all ex honeries

836
00:44:55,600 --> 00:44:57,400
Speaker 3: to live in when they're in this position when they

837
00:44:57,400 --> 00:44:59,920
Speaker 3: first get out, Charles, Checks and Raymond.

838
00:45:00,880 --> 00:45:03,520
Speaker 1: We had the good fortune of covering Charles's story with

839
00:45:03,680 --> 00:45:06,279
Speaker 1: Maggie Feeling, and we'll make sure to link it in

840
00:45:06,480 --> 00:45:08,480
Speaker 1: the episode descriptions, so check it out.

841
00:45:08,680 --> 00:45:11,000
Speaker 2: I've been doing Charles for a long time, so I

842
00:45:11,040 --> 00:45:13,440
Speaker 2: mean he was familiar with me, But for like the

843
00:45:13,480 --> 00:45:16,200
Speaker 2: first three weeks, the only thing I did was went

844
00:45:16,280 --> 00:45:19,759
Speaker 2: from my bedroom to the bathroom, to the kitchen back

845
00:45:19,800 --> 00:45:23,840
Speaker 2: to my bedroom, like I was steal in a sale.

846
00:45:24,239 --> 00:45:26,600
Speaker 2: Since I've been home, Kim gave me a job with

847
00:45:26,680 --> 00:45:27,680
Speaker 2: the law firm.

848
00:45:27,880 --> 00:45:30,879
Speaker 3: So right now on the docket, it's his appeal. I'm

849
00:45:30,880 --> 00:45:33,520
Speaker 3: confident we're going to win. We've already had rulings from

850
00:45:33,560 --> 00:45:36,520
Speaker 3: the Sixth Circuit when they released him, saying that they

851
00:45:36,560 --> 00:45:40,319
Speaker 3: don't believe that the warden has a winnable position, so

852
00:45:40,400 --> 00:45:43,400
Speaker 3: that's really favorable. Nonetheless, we're going full steam ahead and

853
00:45:43,520 --> 00:45:45,040
Speaker 3: that's submitted to the court and it's going to be

854
00:45:45,040 --> 00:45:47,880
Speaker 3: decided without oral argument. And so as soon as we

855
00:45:47,960 --> 00:45:50,719
Speaker 3: get a decision, that ankle monitor is going to come

856
00:45:50,760 --> 00:45:54,360
Speaker 3: off and he will be free. Hopefully he'll decide to

857
00:45:54,400 --> 00:45:56,760
Speaker 3: pursue his civil remedies because a lot has been taken

858
00:45:56,800 --> 00:46:01,080
Speaker 3: from him. In the meantime, he's doing everything can. He's

859
00:46:01,160 --> 00:46:04,720
Speaker 3: been working. He's gotten himself an ID. He has MS

860
00:46:04,800 --> 00:46:07,560
Speaker 3: and diabetes, so he's gotten his medical setup and taken

861
00:46:07,600 --> 00:46:09,640
Speaker 3: care of which is a lot of steps. But he

862
00:46:09,680 --> 00:46:12,240
Speaker 3: could use all the support in the world. So if

863
00:46:12,520 --> 00:46:15,040
Speaker 3: anybody has anything to offer, he's been saving to get

864
00:46:15,040 --> 00:46:19,080
Speaker 3: a vehicle, he certainly needs business clothes for job interviews

865
00:46:19,160 --> 00:46:20,960
Speaker 3: or stuff like that, and he desperately wants to go

866
00:46:21,000 --> 00:46:23,560
Speaker 3: back to school, and so people have resources that they

867
00:46:23,560 --> 00:46:27,080
Speaker 3: could lend to him to give him support. We would

868
00:46:27,120 --> 00:46:30,280
Speaker 3: be happy to help facilitate those resources directly to him.

869
00:46:30,320 --> 00:46:33,360
Speaker 1: And we'll link ways to contact Kim and get David

870
00:46:33,400 --> 00:46:37,080
Speaker 1: to support he needs, and with that we're going to

871
00:46:37,120 --> 00:46:40,840
Speaker 1: go to closing arguments. Closing arguments, everyone knows is my

872
00:46:40,880 --> 00:46:43,680
Speaker 1: favorite part of the show, where I'm going to kick

873
00:46:43,719 --> 00:46:45,960
Speaker 1: back in my chair, turn my microphone off and leave

874
00:46:46,000 --> 00:46:50,000
Speaker 1: my headphones on and just listen to anything else you

875
00:46:50,040 --> 00:46:55,080
Speaker 1: want to share with our amazing audience. And so Kim,

876
00:46:55,360 --> 00:46:59,120
Speaker 1: you go first, and then just hand the microphone off

877
00:46:59,280 --> 00:47:01,800
Speaker 1: to David. Then he could take us off into the sunset.

878
00:47:02,600 --> 00:47:05,120
Speaker 3: This is a case with one of the most egregious

879
00:47:05,120 --> 00:47:08,960
Speaker 3: identification procedures I've ever seen. Which is so appalling about

880
00:47:08,960 --> 00:47:12,200
Speaker 3: it is how many courts justified and upheld the conduct,

881
00:47:12,560 --> 00:47:15,440
Speaker 3: who gave it a pass in the state court at

882
00:47:15,480 --> 00:47:18,120
Speaker 3: the appellate level, at the Ohio Supreme Court level, at

883
00:47:18,120 --> 00:47:20,879
Speaker 3: the district court level, and federal court. It took eight

884
00:47:20,960 --> 00:47:24,040
Speaker 3: years to get any justice, and then when we finally

885
00:47:24,080 --> 00:47:26,719
Speaker 3: got that justice by way of an order, the state

886
00:47:26,760 --> 00:47:30,640
Speaker 3: court threw it out in totally ignored it conduct that, frankly,

887
00:47:30,719 --> 00:47:33,319
Speaker 3: if any of us engaged in would be criminalized. Were

888
00:47:33,360 --> 00:47:36,759
Speaker 3: all required to follow the law, and the trial court

889
00:47:36,800 --> 00:47:39,360
Speaker 3: thought they were above that. They stopped all over his

890
00:47:39,480 --> 00:47:42,840
Speaker 3: rights through a second trial, and then used an unconstitutional

891
00:47:42,880 --> 00:47:47,480
Speaker 3: second conviction to justify their misconduct. We're so thankful that

892
00:47:47,520 --> 00:47:50,480
Speaker 3: the district court sought through it. But if you imagine

893
00:47:50,680 --> 00:47:54,000
Speaker 3: being responsible for someone's life and freedom as their attorney,

894
00:47:54,320 --> 00:47:56,760
Speaker 3: he turned down a flea he could have been free,

895
00:47:57,120 --> 00:47:59,359
Speaker 3: and then for four months he lived with a twenty

896
00:47:59,440 --> 00:48:02,000
Speaker 3: year cent hanging over his head and just the hope

897
00:48:02,120 --> 00:48:04,440
Speaker 3: that the federal court would step in and enforce its

898
00:48:04,440 --> 00:48:07,400
Speaker 3: prior ruling. We're so thankful it did, but here we

899
00:48:07,440 --> 00:48:10,040
Speaker 3: are still up against it in the Federal Court of Appeals.

900
00:48:10,080 --> 00:48:13,960
Speaker 3: And this case is a story of even when you

901
00:48:14,080 --> 00:48:18,000
Speaker 3: get justice through your immediate appellate procedure, it can take

902
00:48:18,239 --> 00:48:21,640
Speaker 3: a full decade, And even when you find a judge

903
00:48:21,640 --> 00:48:24,640
Speaker 3: who's willing to say and do the right thing, there's

904
00:48:24,680 --> 00:48:27,160
Speaker 3: a slew of judges below them who aren't.

905
00:48:27,480 --> 00:48:30,600
Speaker 2: In Ohio, we have a feal that's on the ballot

906
00:48:30,800 --> 00:48:34,760
Speaker 2: called the absolute Immunity View. If it's passed in Ohio

907
00:48:34,800 --> 00:48:38,120
Speaker 2: would be the very first time that anything like this

908
00:48:38,239 --> 00:48:46,040
Speaker 2: has been passed. And that deal makes judges, prosecutors, detectives, police,

909
00:48:46,600 --> 00:48:49,759
Speaker 2: anything of authority can be prosecuted for what they do

910
00:48:50,360 --> 00:48:54,440
Speaker 2: for violding the person's constitutional rights because right now, like

911
00:48:54,520 --> 00:48:57,360
Speaker 2: it is so thick where they don't have to answer

912
00:48:57,360 --> 00:48:59,319
Speaker 2: to nobody, they could do what they want and put

913
00:48:59,360 --> 00:49:02,800
Speaker 2: it up under job duties. You cannot turn over evidence

914
00:49:02,800 --> 00:49:05,640
Speaker 2: and say it was part of my investigation. The judge

915
00:49:05,680 --> 00:49:08,000
Speaker 2: can violate your constitutional rights and know that there's no

916
00:49:08,040 --> 00:49:10,520
Speaker 2: consequences for these people. Them. People need to be held

917
00:49:10,520 --> 00:49:14,880
Speaker 2: accountable because if I watched so and so take a

918
00:49:14,880 --> 00:49:17,640
Speaker 2: piece of paper from so and so, and the detective

919
00:49:17,640 --> 00:49:19,520
Speaker 2: come and ask me and say did you see that happen?

920
00:49:19,760 --> 00:49:22,840
Speaker 2: And I say no, I got a case because I lied.

921
00:49:23,000 --> 00:49:26,040
Speaker 2: But a prosecutor and a jug can lie all day long,

922
00:49:26,360 --> 00:49:29,440
Speaker 2: can withhold evidence, can cover up whatever they want to

923
00:49:29,640 --> 00:49:32,359
Speaker 2: because there's no consequences for them. That's why this bill

924
00:49:32,440 --> 00:49:36,080
Speaker 2: in Ohio is so important. And when I spoke at

925
00:49:36,120 --> 00:49:38,799
Speaker 2: the Wrongful Conviction Days, that was one of the things

926
00:49:38,840 --> 00:49:42,360
Speaker 2: I spoke about. All this is beautiful, but if people

927
00:49:42,360 --> 00:49:45,880
Speaker 2: don't get out and vote on that bill, we're going

928
00:49:45,960 --> 00:49:49,480
Speaker 2: to continue to have wrongful Conviction Days.

929
00:49:55,120 --> 00:49:57,720
Speaker 1: Thank you for listening to Wrongful Conviction. You can listen

930
00:49:57,760 --> 00:50:00,200
Speaker 1: to this and all the Lava for Good podcast one

931
00:50:00,239 --> 00:50:03,160
Speaker 1: week early and ad free by subscribing to Lava for

932
00:50:03,239 --> 00:50:06,040
Speaker 1: Good plus on Apple Podcasts. I want to thank our

933
00:50:06,040 --> 00:50:09,200
Speaker 1: production team Connor Hall and Kathleen Fink, as well as

934
00:50:09,200 --> 00:50:13,040
Speaker 1: my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Cliber.

935
00:50:13,120 --> 00:50:15,239
Speaker 1: The music in this production was supplied by three time

936
00:50:15,280 --> 00:50:18,360
Speaker 1: OSCAR nominated composer Jay Ralph. Be sure to follow us

937
00:50:18,400 --> 00:50:21,239
Speaker 1: across all social media platforms at Lava for Good and

938
00:50:21,520 --> 00:50:24,480
Speaker 1: at Wrongful Conviction. You can also follow me on Instagram

939
00:50:24,520 --> 00:50:27,360
Speaker 1: at It's Jason Flamm. Wrongful Conviction is a production of

940
00:50:27,440 --> 00:50:31,160
Speaker 1: Lava for Good Podcasts and association with Signal Company Number One.

941
00:50:31,200 --> 00:50:33,640
Speaker 1: We have worked hard to ensure that all facts reported

942
00:50:33,640 --> 00:50:34,960
Speaker 1: in this show are accurate.

943
00:50:35,040 --> 00:50:37,759
Speaker 2: The views and opinions expressed by the individuals featured in

944
00:50:37,800 --> 00:50:40,440
Speaker 2: this show are their own and do not necessarily reflect

945
00:50:40,520 --> 00:50:42,160
Speaker 2: those of Lava for Good.