WEBVTT - #546 Jason Flom with David Smith 0:00:02.880 --> 0:00:06.880 On October sixteenth, twenty fifteen, twenty four year old Courtney 0:00:06.920 --> 0:00:10.799 Tolliver was struck by a blunt object in her Portage County, 0:00:10.800 --> 0:00:15.160 Ohio trailer home. After running to the neighbors for help, 0:00:15.280 --> 0:00:17.560 she was rushed to the hospital and put into a 0:00:17.680 --> 0:00:22.520 medically induced coma. When she regained consciousness, her memory was unclear. 0:00:23.120 --> 0:00:27.520 Soon detectives suggested David Smith, a man who had texted 0:00:27.520 --> 0:00:30.920 her that day, but she said it wasn't David until 0:00:30.960 --> 0:00:35.680 she was facing her own charges. Then her memory made room. 0:00:35.640 --> 0:00:36.800 For that possibility. 0:00:37.640 --> 0:00:51.520 This is Wrongful Conviction. Welcome back to Wrongful Conviction, where 0:00:51.640 --> 0:00:54.760 we returned to Portage County, Ohio. Now, the last time 0:00:54.760 --> 0:00:57.200 we covered a case out of there was Tyrone Noling 0:00:57.320 --> 0:01:00.400 and that one lives rent free in my head, and 0:01:00.440 --> 0:01:03.280 we're going to link to his story in the episode description. Tragically, 0:01:03.360 --> 0:01:06.800 he's still on death row to this very day in Ohio, 0:01:06.840 --> 0:01:09.800 and we're only aware of the wrongful conviction epidemic in 0:01:09.840 --> 0:01:12.880 that state because of the incredible attorneys who also call 0:01:12.959 --> 0:01:16.559 Ohio home, not least of which is Kim Kral Kim. 0:01:16.840 --> 0:01:19.200 Welcome back, Yeah, thanks for having me back. 0:01:19.240 --> 0:01:21.280 And she's here to help tell the story of the 0:01:21.319 --> 0:01:25.040 man himself, David Smith. Thank you for joining. 0:01:24.800 --> 0:01:26.560 Us, right, thank you. I appreciate you. 0:01:27.000 --> 0:01:29.840 And typically we like to hear about our guest lives. 0:01:30.319 --> 0:01:34.040 You know, before all this insanity came to pass. And 0:01:34.160 --> 0:01:37.000 with David, that's forty seven years. I mean, he wasn't 0:01:37.560 --> 0:01:39.280 he wasn't a youngster when he went to prison. But 0:01:39.319 --> 0:01:42.039 those forty seven years they weren't easy ones, were they. 0:01:42.440 --> 0:01:46.280 I was taken from my real parents at the age 0:01:46.280 --> 0:01:49.520 of six, giving up for adoption. I had eight brothers 0:01:49.520 --> 0:01:52.520 and sisters, and I went from foster home to group home, 0:01:52.600 --> 0:01:55.720 foster home to group home, and finally a man picked 0:01:55.720 --> 0:01:59.360 me up as someone that he wanted as his son. 0:02:00.040 --> 0:02:02.240 In order for him to adopt me, he had to 0:02:02.320 --> 0:02:06.400 have a wife, so he married my mother under false 0:02:06.440 --> 0:02:09.760 tensus for real. Because fast forward, it was a whole 0:02:09.800 --> 0:02:13.000 lot of abuse in the home, I mean extreme abuse, 0:02:13.200 --> 0:02:15.959 physical abuse. So where I got upset with my mother 0:02:16.200 --> 0:02:18.720 was there couldn't have been nothing in that home that 0:02:18.760 --> 0:02:21.160 could have been worse where you would have to give 0:02:21.200 --> 0:02:25.200 me away. If it wasn't good enough for you, then 0:02:25.200 --> 0:02:27.640 why should it be good enough for me? Why didn't 0:02:27.639 --> 0:02:30.640 you take me with you? And a judge also made 0:02:30.639 --> 0:02:33.639 that statement to her, and she said she couldn't because 0:02:33.639 --> 0:02:36.520 that would have been kidnapping. In my head, I'm saying, 0:02:36.520 --> 0:02:40.720 how could that be? You can prove the abuse by 0:02:40.760 --> 0:02:43.600 the markings on my body, by me warning myself back 0:02:43.639 --> 0:02:47.040 to the state. But I wasn't good enough to take 0:02:47.080 --> 0:02:47.360 with you. 0:02:48.680 --> 0:02:51.359 So after his mother left him in this man's custody, 0:02:51.400 --> 0:02:54.360 he found a way to get himself out of that 0:02:54.440 --> 0:02:55.400 awful situation. 0:02:55.880 --> 0:02:57.920 At the age of ten, I warded myself back to 0:02:57.960 --> 0:03:00.560 the state. We went in to see the judge on 0:03:00.680 --> 0:03:04.440 some kind of official business dealing with the adoption park, and 0:03:04.520 --> 0:03:06.799 I told the judge I'm not going back there, and 0:03:06.840 --> 0:03:10.280 he looked at me and he couldn't figure out why. 0:03:10.520 --> 0:03:13.080 And I said, I'm just not going back with that man, 0:03:13.360 --> 0:03:15.560 while he was sitting right next to me. And that 0:03:15.680 --> 0:03:19.640 day forward, my life began by myself, without me having 0:03:19.760 --> 0:03:23.160 any kind of guidance or direction. The only thing I 0:03:23.240 --> 0:03:26.440 knew to do was to survive. It didn't tailed me 0:03:26.639 --> 0:03:30.520 committing crimes. I didn't know any better, and all it 0:03:30.600 --> 0:03:34.880 did was grew until it grew out of control. I 0:03:35.000 --> 0:03:40.960 was constantly detention centers, juvenile facilities. I was numb. I 0:03:41.080 --> 0:03:43.600 was just a mechanical animal out here, just trying to 0:03:43.640 --> 0:03:46.840 survive my life. At that time, I was just a 0:03:46.880 --> 0:03:50.440 car thief boy, and then that grew to the life 0:03:50.440 --> 0:03:53.760 of crime as the adult. I had a robbery case, 0:03:53.920 --> 0:03:58.680 a boloneyssault case, and then twenty fourteen, I had got 0:03:58.760 --> 0:04:02.960 into the trade selling drugs. That's all I've known up 0:04:03.040 --> 0:04:07.320 until ten years ago, when I actually started getting my 0:04:07.360 --> 0:04:10.560 life together. I had opened up two small businesses. I 0:04:10.680 --> 0:04:13.000 moved out of Portage County and moved to Trumble County, 0:04:13.160 --> 0:04:15.040 Newton Folls. 0:04:14.600 --> 0:04:17.640 And that's where he lived with his girlfriend, Margaret Austin, 0:04:17.760 --> 0:04:20.360 while both getting his cleaning business off the ground and 0:04:20.680 --> 0:04:24.360 remaining in touch with friends in Portage County, including the 0:04:24.480 --> 0:04:27.120 victim in this case, a twenty four year old woman 0:04:27.200 --> 0:04:31.080 named Portney Tolliver who was also involved in the drug trade. 0:04:31.160 --> 0:04:33.560 And on the night before the incident, she had texted 0:04:33.600 --> 0:04:36.080 David for a ride to Cleveland, and so they were 0:04:36.080 --> 0:04:39.560 in contact earlier that day, that fateful day of October sixteen, 0:04:39.600 --> 0:04:43.080 twenty fifteen, and then she suddenly stopped texting David right 0:04:43.120 --> 0:04:45.359 around the time that she had been struck with the 0:04:45.360 --> 0:04:47.480 blunt object inside of her trailer home. 0:04:48.120 --> 0:04:51.640 Nine one one gets a call from a neighbor that 0:04:51.760 --> 0:04:55.640 Courtney Tolliver is wandering around sort of between trailers and 0:04:55.680 --> 0:05:00.640 collapses on the ramp of her trailer and and they 0:05:00.640 --> 0:05:03.560 believe she's muttered something about being hit with a hammer. 0:05:03.880 --> 0:05:07.280 The police arrive, she is taken by EMS and then 0:05:07.360 --> 0:05:10.920 life light. She is put into a medically induced coma 0:05:11.320 --> 0:05:15.560 and during this time the Portage County Sheriff's Office begins 0:05:15.560 --> 0:05:19.400 an investigation. I'm using the term investigation very lightly because 0:05:19.440 --> 0:05:22.560 they gathered I mean, I think five items of physical evidence, 0:05:22.640 --> 0:05:25.920 all of which have since been lost. So they take 0:05:25.960 --> 0:05:29.359 a few photographs. They gather five items of physical evidence, 0:05:29.400 --> 0:05:32.600 and they swab a number of things for DNA. There 0:05:32.640 --> 0:05:36.120 is a hammer on site that is not collected as evidence. 0:05:36.800 --> 0:05:39.279 The photograph of it, it appears to have no blood 0:05:39.279 --> 0:05:41.880 on it. What is most interesting is there is a 0:05:41.960 --> 0:05:46.039 stool absolutely covered in blood. When you zoom in you 0:05:46.080 --> 0:05:48.040 can see a hair fiber on it. There is a 0:05:48.080 --> 0:05:51.920 massive puddle of blood around this stool. Now, this stool 0:05:52.120 --> 0:05:56.400 is not swabbed, it's not collected, it's hardly photographed. There 0:05:56.480 --> 0:06:01.520 is a set of keys that are moved onto a 0:06:01.520 --> 0:06:04.839 puddle of blood, so someone touched those keys after the incident. 0:06:04.960 --> 0:06:09.000 Those were not gathered or swabbed or finger printed. 0:06:09.480 --> 0:06:12.479 And it was a size six footprint that was inside 0:06:12.480 --> 0:06:16.360 the blood, a woman's size six shot. The detective said 0:06:16.360 --> 0:06:18.240 that they didn't step into blood, They didn't do none 0:06:18.279 --> 0:06:20.520 of that. So whose size six shoot was this? 0:06:21.000 --> 0:06:25.359 There was a lock box which someone opened, whoever did this, 0:06:25.680 --> 0:06:29.159 that was not swabbed or fingerprinted. It was gathered but 0:06:29.200 --> 0:06:32.200 never used as evidence and has since been lost. There 0:06:32.240 --> 0:06:36.160 was a laptop that the contents of which were never investigated, 0:06:36.240 --> 0:06:38.919 that was lost. And she had two cell phones. 0:06:39.400 --> 0:06:42.599 Courtney described one cell phone as her family phone and 0:06:42.640 --> 0:06:45.560 the other as her drug phone, but at the time 0:06:45.600 --> 0:06:48.320 of trial, the state claimed to only have the records 0:06:48.320 --> 0:06:51.039 for the family phone, which she had used to text 0:06:51.160 --> 0:06:52.640 David about a ride to Cleveland. 0:06:52.960 --> 0:06:55.240 And so throughout that evening they go back and forth 0:06:55.279 --> 0:06:57.000 with text about a ride to Cleveland, and throughout the 0:06:57.040 --> 0:06:59.919 next morning, Dave says, I have a job interview. We 0:07:00.200 --> 0:07:02.320 know from the location of his cell phone. He goes 0:07:02.360 --> 0:07:05.000 to a job interview, and then there's text back and forth, 0:07:05.040 --> 0:07:07.640 and then she drops off the texting and he says, 0:07:07.680 --> 0:07:10.320 what do you want to do? I'm pulling up and 0:07:10.360 --> 0:07:11.800 then no response. 0:07:12.440 --> 0:07:16.800 But she was text messaging people steal on that other 0:07:16.880 --> 0:07:21.800 phone when this crime was supposed to have occurred with me. Anyway, 0:07:21.920 --> 0:07:24.280 they say it has happened between ten thirty and ten 0:07:24.400 --> 0:07:27.960 forty five with me. But at ten forty something she 0:07:28.040 --> 0:07:31.320 was still on the phone, text messaging and making calls 0:07:31.600 --> 0:07:32.840 with whoever she was talking to. 0:07:33.200 --> 0:07:36.600 But the drug phone record and this exculpatory context were 0:07:36.600 --> 0:07:40.520 not discovered for many years. Nevertheless, the police visited David, 0:07:40.800 --> 0:07:43.880 who confirmed his number, and they probably visited the people 0:07:43.960 --> 0:07:47.960 on the other phone log too, And soon Courtney came 0:07:47.960 --> 0:07:48.680 out of the coma. 0:07:49.040 --> 0:07:52.840 She cannot speak because she's intubated, and she writes down 0:07:53.000 --> 0:07:56.600 who did this to me? She had been engaged in 0:07:56.640 --> 0:07:59.160 a number of drug transactions the night before and the 0:07:59.200 --> 0:08:02.480 next day early in the morning before this attack. They 0:08:02.480 --> 0:08:05.520 don't investigate any of those people in any manner whatsoever. 0:08:05.720 --> 0:08:09.800 They don't investigate any other person she contacts or calls. 0:08:09.760 --> 0:08:12.360 Or they did, but they just didn't keep any record 0:08:12.360 --> 0:08:15.280 of it. Now, when Courtney's intubation tube came out, they 0:08:15.400 --> 0:08:18.680 interviewed her again and again she said that she had 0:08:18.720 --> 0:08:21.600 no recollection of what had happened, and in between that 0:08:21.720 --> 0:08:23.960 visit and the following one, they ran some of the 0:08:24.000 --> 0:08:28.200 crime scene evidence through CODIS, the national database, and they 0:08:28.240 --> 0:08:31.000 came up with a possible match, not a true match, 0:08:31.080 --> 0:08:34.480 but a possible match for David Smith. So while waiting 0:08:34.559 --> 0:08:39.080 for confirmation of that, they visited Courtney once again, this 0:08:39.160 --> 0:08:42.960 time recording the interaction and telling her whose DNA they 0:08:43.320 --> 0:08:46.080 believed that they had found at the scene. 0:08:46.440 --> 0:08:49.040 When they go interview her on December ninth, they hold 0:08:49.120 --> 0:08:51.880 up a single photo of David Smith and tell her 0:08:51.960 --> 0:08:54.559 this man is a dangerous man. We already spoke to him. 0:08:54.600 --> 0:08:56.760 He did this to you. He wanted you dead. He 0:08:56.800 --> 0:08:59.839 doesn't care about you. And she does not identify him 0:08:59.840 --> 0:09:02.400 as her attacker. She says, why would he do this 0:09:02.440 --> 0:09:02.640 to me? 0:09:03.120 --> 0:09:07.000 And she seems to have some foggy recollection of her attacker. 0:09:07.640 --> 0:09:11.600 She states that the guy had blue tip Dreds. I 0:09:11.640 --> 0:09:14.600 don't have blue tip Dreds. I think I've been bald 0:09:14.640 --> 0:09:18.000 for twenty five years at least. And the blue tip 0:09:18.120 --> 0:09:22.200 Dreds is the person that their mother called and asks 0:09:22.320 --> 0:09:24.680 did you try to kill me? And his name is Hood. 0:09:25.000 --> 0:09:28.600 In a recording, her mother says, we called and asked 0:09:28.640 --> 0:09:29.640 him why he did this? 0:09:30.160 --> 0:09:32.920 And this is a person that she been known forever, 0:09:33.280 --> 0:09:37.400 good friends, they do business together, they kick it together. 0:09:37.480 --> 0:09:39.720 They was like peanut, butter and jelly. Why would you 0:09:39.840 --> 0:09:42.400 call him and ask him did he try to kill you? 0:09:42.800 --> 0:09:45.800 So Corney and her mother had their own suspects. They 0:09:45.880 --> 0:09:48.959 even mentioned others in that recording, some of whom were 0:09:49.000 --> 0:09:51.240 on that other call log. But at this point the 0:09:51.280 --> 0:09:54.040 police appeared to be hoping for their possible codus match 0:09:54.160 --> 0:09:57.880 with David was going to be confirmed, but it wasn't, 0:09:58.240 --> 0:10:00.000 so now they began to scream. 0:10:00.679 --> 0:10:03.720 What we found later with these alternative suspects is detector 0:10:03.760 --> 0:10:07.400 Johnson's calling the BCI, people who handle the DNA testing 0:10:07.800 --> 0:10:10.920 and telling them we have these alternative suspects. They could 0:10:10.960 --> 0:10:15.480 have been involved. Here's why they actually let Courtney Tolliver's 0:10:15.720 --> 0:10:19.440 children's father out of jail to help investigate for them. 0:10:19.760 --> 0:10:23.640 Our baby daddy was talking to his mother and his 0:10:23.760 --> 0:10:26.760 aunt on the phone in the county jail and said 0:10:27.200 --> 0:10:29.360 that she said who did it to her? 0:10:29.600 --> 0:10:32.840 And then they don't disclose the information they get from him. 0:10:33.040 --> 0:10:35.959 And then as BCI is calling back saying these other 0:10:35.960 --> 0:10:39.679 people's DNA. Most of his DNA isn't matching to anyone, 0:10:40.040 --> 0:10:42.760 almost all of it. Then Johnson starts to just narrow 0:10:42.840 --> 0:10:45.560 in on David. Smith refuses to give anyone else's DNA 0:10:45.960 --> 0:10:49.120 and refuses to turn over any discovery about these other 0:10:49.160 --> 0:10:50.360 alternative suspects. 0:10:50.880 --> 0:10:53.720 At this point, they returned to the DNA that had 0:10:53.760 --> 0:10:56.120 been a possible match to David. And if you've ever 0:10:56.160 --> 0:10:59.959 seen a DNA analysis graph also known as an electro pharah, 0:11:01.120 --> 0:11:04.559 it looks like a series of little peaks marking genetic 0:11:04.640 --> 0:11:07.920 alleles that are present in a given sample, which are 0:11:07.960 --> 0:11:11.720 measured in relative fluorescence units or RFUs, And it seems 0:11:11.760 --> 0:11:14.200 like there were enough peaks in common with David and 0:11:14.280 --> 0:11:18.239 this DNA sample to trigger a possible match in codis, 0:11:18.400 --> 0:11:21.760 but not an actual match. And there are ways to 0:11:22.000 --> 0:11:24.720 enhance the quantity of a sample as well as the 0:11:24.720 --> 0:11:27.840 height of the peaks or what lies between the peaks, 0:11:27.880 --> 0:11:31.160 what is called static to see if potentially there is 0:11:31.280 --> 0:11:32.839 other genetic information. 0:11:33.200 --> 0:11:35.920 It's an amplification process, which was a process they used 0:11:35.920 --> 0:11:37.800 for the first time in Portage County in his case, 0:11:37.960 --> 0:11:39.920 and they're only supposed to amplify a certain number of 0:11:39.960 --> 0:11:44.920 times and that amplification creates static, and those static points 0:11:45.040 --> 0:11:48.360 either can cause you to misteray actual alleles as static, 0:11:48.920 --> 0:11:51.760 or you can have static so high, which is nothing. 0:11:51.840 --> 0:11:55.640 It's not real information. It's created from the amplification process 0:11:56.160 --> 0:11:58.439 that can be read as an allele, a marker in 0:11:58.480 --> 0:12:03.120 a certain space. They enlarged that possible match to Dave Smith, 0:12:03.320 --> 0:12:05.120 and it was still not a match to Dave Smith. 0:12:05.160 --> 0:12:07.640 So they enlarged it a second time, and it was 0:12:07.640 --> 0:12:09.560 still not a match to Dave Smith. And they enlarged 0:12:09.600 --> 0:12:13.240 it a third time and it was a match in 0:12:13.320 --> 0:12:17.160 equal parts to Dave Smith and the victim. 0:12:17.440 --> 0:12:23.320 This triple amplification process produced an electro pharagram that differed 0:12:23.840 --> 0:12:27.440 from previous iterations in order to produce this result, and 0:12:27.480 --> 0:12:31.199 it's unknown whether these differences may have been actual genetic 0:12:31.240 --> 0:12:35.760 information or nothing at all. So there's a potential here 0:12:35.800 --> 0:12:41.360 for subjectivity, false positives and negatives, and definitely a lot 0:12:41.360 --> 0:12:42.160 of room for doubt. 0:12:42.559 --> 0:12:45.160 But an unreliable process in this case produced a result 0:12:45.160 --> 0:12:48.000 that there's a one in one fifty chance it's anyone 0:12:48.040 --> 0:12:50.840 but David Smith or Courtney Tolliver, which is not a 0:12:50.840 --> 0:12:53.760 match at all. So one in one fifty chance means 0:12:53.800 --> 0:12:56.200 it could have been twenty seven thousand other people in 0:12:56.240 --> 0:12:57.000 Portage County. 0:12:57.880 --> 0:13:00.480 So at this point they returned to court me for 0:13:00.520 --> 0:13:03.120 an identification, and they doubled. 0:13:02.760 --> 0:13:03.720 Down on David. 0:13:03.920 --> 0:13:08.679 Obviously, without that identification, they had some trash DNA and 0:13:08.720 --> 0:13:11.839 that's about it. She continues to not identify David Smith 0:13:11.840 --> 0:13:15.439 as her attacker for several more months until February of 0:13:15.480 --> 0:13:18.960 twenty sixteen. She had I believe eight or nine felony 0:13:19.040 --> 0:13:22.600 drug counts pending. In February, those counts are resolved with 0:13:22.679 --> 0:13:25.960 the same judge who tried David's case. Those are resolved 0:13:26.000 --> 0:13:29.000 to a term of probation, and she walks directly out 0:13:29.000 --> 0:13:31.480 of the courtroom into a little room immediately to the 0:13:31.559 --> 0:13:36.439 left and explains to Detective Johnson that she now remembers 0:13:37.040 --> 0:13:41.200 that she had a dream while in her coma she's 0:13:41.200 --> 0:13:44.440 as a baal black man mased her, and she now 0:13:44.480 --> 0:13:47.679 interprets that to me that David Smith hit her with 0:13:47.679 --> 0:13:50.680 a hammer in October of twenty fifteen. 0:13:51.280 --> 0:13:55.880 So no more assailant with blue dreads and no more 0:13:55.920 --> 0:13:58.960 felony drug charges. Maybe she had no idea who had 0:13:59.000 --> 0:14:02.640 hit her, but now at least she found a way 0:14:02.640 --> 0:14:04.120 that she could get something out of it. 0:14:04.320 --> 0:14:07.079 No, I think she has an idea, and I think 0:14:07.640 --> 0:14:11.880 that what really transpired is something that her and the 0:14:11.960 --> 0:14:14.520 person that did it is going to take to the grade. 0:14:14.600 --> 0:14:17.880 I mean, if somebody beat me like that, I'm gonna 0:14:18.160 --> 0:14:19.720 know who it was beat me. 0:14:20.400 --> 0:14:23.520 Nevertheless, it was enough for an arrest warrant on April first, 0:14:23.560 --> 0:14:24.320 twenty sixteen. 0:14:24.760 --> 0:14:27.720 That morning, I have my cell phone in one hand 0:14:28.040 --> 0:14:30.480 and my car keys and the other. I chirked my 0:14:30.560 --> 0:14:33.120 truck and I stepped one foot in and when I 0:14:33.120 --> 0:14:36.280 look in the rearview mirror, it's a black, undercovered car 0:14:36.720 --> 0:14:39.080 bumper to bumper with me. He pulled out his gun. 0:14:39.200 --> 0:14:41.320 He's like, free, stick your hands out, and I stick 0:14:41.400 --> 0:14:44.040 my hands out and I said, what's this about? Officer? 0:14:44.240 --> 0:14:46.440 He put the handcuffs on me, and then he said, 0:14:46.520 --> 0:14:50.360 you have a warren for a tempted murder. And I 0:14:50.680 --> 0:14:53.040 damn that passed out. Like what. 0:15:04.560 --> 0:15:07.400 You're listening to, wrongful Conviction. You can listen to this 0:15:07.520 --> 0:15:10.160 and all the Lava for Good podcasts one week early 0:15:10.280 --> 0:15:13.600 and ad free by subscribing to Lava for Good Plus 0:15:13.920 --> 0:15:15.040 on Apple Podcasts. 0:15:20.480 --> 0:15:23.960 It was the biggest case of Portish County. Everybody at 0:15:24.000 --> 0:15:27.840 that time at Portish County Jail tried to get on 0:15:28.160 --> 0:15:31.280 that witness list to testify against me so they could 0:15:31.320 --> 0:15:34.400 get out of jail. The detectives was pulling up on people, 0:15:34.440 --> 0:15:37.320 talking about you ain't gonna get in trouble. All you 0:15:37.360 --> 0:15:38.840 got to do is just tell us you was down 0:15:38.880 --> 0:15:42.120 there witting. I mean, all this is video and recording. 0:15:43.000 --> 0:15:47.000 Eventually, the investigators came upon some willing participants who they 0:15:47.000 --> 0:15:50.040 could actually use, starting with a couple who knew David 0:15:50.040 --> 0:15:53.760 from the drug trade, Randy Milem and Florence Fontanella. And 0:15:53.840 --> 0:15:56.320 Randy was the one who made the first statement. 0:15:56.720 --> 0:15:59.360 I mean, if you looked at the video of this interview, 0:16:00.120 --> 0:16:02.000 be like, this is a dope fiend trying to get 0:16:02.040 --> 0:16:05.040 out because she's telling the the detectives all these ale 0:16:05.160 --> 0:16:09.080 Lander's statements. But he's also saying, are you going to 0:16:09.160 --> 0:16:12.120 go to the judge and tell her to let me out? 0:16:13.200 --> 0:16:15.880 He came up with a story that I told him 0:16:15.920 --> 0:16:17.760 I did it. I told him I left the hammer 0:16:17.800 --> 0:16:20.920 at the house, that me and this girl did it together. 0:16:21.560 --> 0:16:24.480 Then Florence Fontanella, who was facing her own charges, was 0:16:24.520 --> 0:16:28.000 approached about being in Randy's car during the alleged confession. 0:16:28.400 --> 0:16:31.880 The DEA went to her house and asked her up 0:16:31.920 --> 0:16:34.120 and she said, I don't know nothing about that. She said, 0:16:34.280 --> 0:16:36.440 I was in the vehicle, Winnie, and I never heard 0:16:36.440 --> 0:16:39.720 that man say he did anything. And the very next 0:16:39.800 --> 0:16:42.480 day they had a warned for her arrest. When back 0:16:42.600 --> 0:16:45.600 picked her up brought it to Forty County jail, she 0:16:45.680 --> 0:16:48.200 wrote a statement, I was in the car and I 0:16:48.240 --> 0:16:51.920 didn't hear none of that. She made recorded calls on 0:16:52.000 --> 0:16:54.840 the phone and said Randy must be in trouble and 0:16:54.920 --> 0:16:57.680 I didn't hear none of that. But two weeks later 0:16:58.000 --> 0:17:01.560 she spent around and said I as a forthcoming. She said, 0:17:01.600 --> 0:17:04.000 I didn't hear nothing but him say got the bitch 0:17:04.040 --> 0:17:04.600 with a hammer. 0:17:05.200 --> 0:17:08.240 And then once Florence hopped on board, Randy recanted. So 0:17:08.520 --> 0:17:11.320 now they couldn't afford to lose Florence as well. 0:17:11.800 --> 0:17:15.560 Florence found it Tello. She was scheduled to go for 0:17:15.720 --> 0:17:20.080 sentencing a week before my trial. They postponed her sentencing 0:17:20.680 --> 0:17:23.919 to make sure that she testified for the deal that 0:17:24.000 --> 0:17:27.159 they gave her. She went to treatment facility by Addings. 0:17:27.000 --> 0:17:30.400 Instead of prison. Yet she switched her story quite literally 0:17:30.640 --> 0:17:31.000 when she. 0:17:31.000 --> 0:17:34.399 Got the deal, and they pulled a similar stunt with 0:17:34.560 --> 0:17:38.960 another acquaintance of David's who was named Lisa Frame. Ironic 0:17:39.080 --> 0:17:42.120 name much, Lisa Frame, Come on now. 0:17:42.160 --> 0:17:46.840 Lisa Frame was in Jefferson County jail and Lisa Frame 0:17:46.920 --> 0:17:50.080 drove a black car. A black car can be seen 0:17:50.280 --> 0:17:53.879 driving in and out of the trailer park around the 0:17:53.960 --> 0:17:58.240 time they believe the crime happened. And to me, it's 0:17:58.240 --> 0:18:00.679 pretty clear if they knew someone. It was a known 0:18:00.720 --> 0:18:03.639 associate of David Smith with a black car. She was 0:18:03.680 --> 0:18:05.879 in jail. They went to the jail threatened to charge 0:18:05.880 --> 0:18:09.760 her with conspiracy to commit attempted murder unless she told 0:18:09.800 --> 0:18:12.000 them that she drove Dave Smith there. 0:18:12.600 --> 0:18:14.840 And so she said, would tell me what you want 0:18:14.880 --> 0:18:16.560 me to say then, and I'll say it. 0:18:17.000 --> 0:18:19.439 And this insanity is on tape. 0:18:19.800 --> 0:18:20.159 Yeah. 0:18:20.640 --> 0:18:23.280 She says there was a day she gave Dave Smith 0:18:23.280 --> 0:18:25.280 a ride, but she wasn't sure what day it was. 0:18:25.640 --> 0:18:27.280 She took him to the trailer park. He was in 0:18:27.320 --> 0:18:29.199 there a couple minutes and he came back. He had 0:18:29.200 --> 0:18:31.640 no blood on him or anything. He wasn't in any 0:18:31.680 --> 0:18:36.080 state of outrage or upset or panic or anything. She 0:18:36.080 --> 0:18:38.560 doesn't say anything about having a hammer on him, but 0:18:38.640 --> 0:18:40.920 she says he has something and wrapped up in his shirt, 0:18:40.920 --> 0:18:43.919 which she thinks is a gun, and she reiterates she 0:18:43.960 --> 0:18:45.680 has no idea what Dave this happened. 0:18:46.160 --> 0:18:50.000 Lisa Frame said, I called him several times that would 0:18:50.080 --> 0:18:54.280 have blocked me and Lisa Frame into that day that time. 0:18:54.480 --> 0:18:57.840 But they said that they took her phone and plugged 0:18:57.840 --> 0:19:00.520 it into the computer and they couldn't get nothing out 0:19:00.520 --> 0:19:00.760 of it. 0:19:00.840 --> 0:19:01.679 Oh, I'm sure. 0:19:02.000 --> 0:19:04.480 And not only did they plug it in and decide 0:19:04.520 --> 0:19:09.119 that it wasn't computering, but they then thought, should we 0:19:09.160 --> 0:19:09.399 keep it? 0:19:09.440 --> 0:19:10.119 Should we keep it? 0:19:10.160 --> 0:19:14.400 Should we store it somewhere important? Nobody knows it has 0:19:14.520 --> 0:19:17.600 disappeared into thin air. And in all of the phone 0:19:17.680 --> 0:19:19.840 records that were available in this case, they got one 0:19:19.880 --> 0:19:23.080 set of phone records which helped the tail they were spinning, 0:19:23.160 --> 0:19:24.920 and then everything else was unavailable. 0:19:25.480 --> 0:19:27.800 So to shore up Lisa Frames date and time, they 0:19:27.840 --> 0:19:31.040 pulled surveillance footage from a Walmart parking lot showing two 0:19:31.119 --> 0:19:34.040 black cars traveling in the direction of the trailer homes 0:19:34.080 --> 0:19:36.359 around the time of the last text message from David, 0:19:36.440 --> 0:19:40.480 and then only one leaving shortly after. And we could 0:19:40.480 --> 0:19:44.720 get into how possible or impossible it was that these 0:19:44.800 --> 0:19:48.040 were even her car, and how long it would take 0:19:48.080 --> 0:19:51.640 for the round trip plus the bludgeoning. But why unpack 0:19:51.680 --> 0:19:55.200 a bunch of meaningless bullshit that's masquerading as evidence when 0:19:55.560 --> 0:19:58.679 the logical framework is built on the word of someone 0:19:58.880 --> 0:20:02.600 who said a recording, tell me what you want me 0:20:02.680 --> 0:20:05.480 to say, and I'll say it. So they went ahead 0:20:05.520 --> 0:20:10.600 to trial with Lisa Frame, Florence Fontanello, Courtney Tolliver and 0:20:11.040 --> 0:20:14.720 the bogus DNA evidence, which magically seemed to have gotten 0:20:14.720 --> 0:20:17.560 a boost of credibility in the lead up to the trial. 0:20:17.520 --> 0:20:21.080 Before twenty sixteen, when they come up with the electro faarrograms, 0:20:21.119 --> 0:20:24.600 the peak had to be taller than seventy five RFUs 0:20:25.119 --> 0:20:28.000 otherwise it could have been static and it's too risky 0:20:28.000 --> 0:20:32.720 to consider it. But in between October twenty fifteen to 0:20:32.840 --> 0:20:37.879 Fall twenty sixteen, BCI published a paper saying, now, just 0:20:37.960 --> 0:20:40.320 in the nick of time, they're allowed to lower the 0:20:40.320 --> 0:20:44.200 threshold to fifty RFUs and count peaks that really fall 0:20:44.600 --> 0:20:47.080 in that high risk static range. 0:20:47.440 --> 0:20:50.600 So this lowering of standards allowed for the triple amplified 0:20:50.680 --> 0:20:53.960 DNA sample to be presented as a partial match to 0:20:54.000 --> 0:20:57.480 both David and Courtney, which is a confusing result, and 0:20:57.680 --> 0:21:00.920 implied that it could have been David, but it eventually 0:21:00.920 --> 0:21:03.560 turned out it could have also been so many others. 0:21:04.000 --> 0:21:07.199 Yes, the neighbor across the street, in fact, when we 0:21:07.280 --> 0:21:10.560 compared it, had more alleles in common with this sample 0:21:10.600 --> 0:21:12.879 than Dave Smith did, and had blood on his pants 0:21:13.040 --> 0:21:15.560 and was present when the police arrived. And I'm not 0:21:15.600 --> 0:21:20.040 saying he did it, but I'm evidencing how we manipulate 0:21:20.119 --> 0:21:22.400 DNA to say what we wanted to say, and that's 0:21:22.400 --> 0:21:23.760 what they did in this case. 0:21:24.240 --> 0:21:27.600 And the steak got one last helping hand. David's attorney 0:21:27.640 --> 0:21:31.120 filed to suppress the victim's identification because if you remember, 0:21:31.520 --> 0:21:35.720 the December ninth, twenty fifteen, interaction was recorded when Lieutenant 0:21:35.800 --> 0:21:39.840 Johnson was suggestive with the witness. 0:21:40.520 --> 0:21:43.960 Yes, he literally is saying, this man is dangerous, he 0:21:44.080 --> 0:21:47.119 wanted you dead. We know that he did this, and 0:21:47.160 --> 0:21:50.159 she's still not identifying him. And what is crazy is 0:21:50.560 --> 0:21:53.280 Tolliver's mother is in that same interview, and in the 0:21:53.320 --> 0:21:57.200 course of the conversation, Tlliver's mother is talking about other 0:21:57.240 --> 0:21:58.760 people that they believe did this. 0:21:58.840 --> 0:22:02.879 By name specifically Hood with the blue tipped dreads. But 0:22:02.960 --> 0:22:06.120 the motion to suppress the id was denied, and by. 0:22:06.040 --> 0:22:08.280 The time we get to the first trial, they don't 0:22:08.320 --> 0:22:11.560 allow that to be played in court. Instead, the court says, well, 0:22:11.600 --> 0:22:14.119 they have the transcript of it. The jury's going to 0:22:14.200 --> 0:22:15.120 get the transcript. 0:22:15.520 --> 0:22:18.360 But it took me ten years to find out that 0:22:18.400 --> 0:22:21.000 those transcripts wasn't even accurate. In the first place. 0:22:21.240 --> 0:22:26.400 The transcript had the names of the other potential suspects redacted, 0:22:26.760 --> 0:22:29.080 and it had it redacted in such a manner that 0:22:29.240 --> 0:22:32.240 it then sounded like his mother was still talking about 0:22:32.280 --> 0:22:34.879 David Smith. We called him and asked him why he 0:22:34.960 --> 0:22:38.320 did this, implicating that they believed it was Dave Smith, 0:22:38.320 --> 0:22:40.679 when really what they said about Dave Smith was why 0:22:40.760 --> 0:22:42.960 would he do that to me? She said, he gave 0:22:43.000 --> 0:22:44.760 me a ride once? Why would he do this? 0:22:45.280 --> 0:22:48.000 So even if the jury planned on reading them, they'd 0:22:48.000 --> 0:22:51.320 be misled by the redacted text anyway. And that's how 0:22:51.320 --> 0:22:54.920 both Lieutenant Johnson and Courtney Tolliver testified about the identification 0:22:55.320 --> 0:23:00.000 without being irreparably impeached. Instead, the cross examination was new. 0:23:00.680 --> 0:23:02.040 While Courtney took the. 0:23:02.000 --> 0:23:05.520 Stand, she testifies with one hundred percent certainty that David 0:23:05.560 --> 0:23:08.240 Smith came to her door and attacked her with a hammer. 0:23:08.119 --> 0:23:11.960 And despite cross examination, this was still a bludgeoning victim 0:23:12.200 --> 0:23:13.240 naming her attacker. 0:23:13.640 --> 0:23:17.160 But this is the key to a one hundred percent 0:23:17.280 --> 0:23:21.639 sure This dream summary never came up to that detective 0:23:22.040 --> 0:23:25.520 shoulder that picture. And then now she's saying, in my dream, 0:23:25.840 --> 0:23:28.040 I dreamt it was him. But there was never a 0:23:28.119 --> 0:23:32.320 dream summary in the hospital on November seventh. But whatever 0:23:32.359 --> 0:23:34.959 it was that the detectives came to the hospital and 0:23:35.080 --> 0:23:37.560 asked you, and you say it, I have no memory of. 0:23:37.520 --> 0:23:41.560 That, perhaps having not heard the contextual audio recording or 0:23:41.920 --> 0:23:44.200 having not heard a word about the deal she got 0:23:44.240 --> 0:23:48.359 for her nine felony drug charges. Sadly unsurprising that the 0:23:48.440 --> 0:23:52.760 jury accepted the bogus idea as truth and then came 0:23:52.880 --> 0:23:57.960 the quote unquote supporting evidence. Like Florence Fontanello, who had 0:23:58.000 --> 0:23:58.719 her own issues. 0:23:59.080 --> 0:24:02.800 Initially, she says that David Smith had nothing to do 0:24:02.880 --> 0:24:05.879 with this, and she says it in these Facebook communications 0:24:05.920 --> 0:24:09.840 with Margaret Austin. Randy Mulam comes forward and tells them 0:24:09.840 --> 0:24:11.960 what they want to hear. Then she all of a 0:24:11.960 --> 0:24:16.480 sudden switches to Team State and She says David Smith 0:24:16.960 --> 0:24:18.000 made an admission to her. 0:24:18.160 --> 0:24:21.800 When my attorney actor, well, what did you hear in 0:24:21.800 --> 0:24:25.240 the conversation, she said, I didn't hear nothing but him say, 0:24:25.480 --> 0:24:26.680 got the bitch with a hammer. 0:24:26.720 --> 0:24:30.439 And she's confronted with these Facebook texts, but maintains that 0:24:30.520 --> 0:24:32.200 David Smith made an admission to her. 0:24:32.440 --> 0:24:35.360 She told the jury the reason why she didn't come 0:24:35.440 --> 0:24:36.920 forward because she was scared. 0:24:37.520 --> 0:24:40.000 The jury was also unaware of the deal that she 0:24:40.240 --> 0:24:43.920 had received, as well as the threat that Lisa Frame 0:24:44.000 --> 0:24:47.919 had sidestepped with her testimony, which was supported by surveillance 0:24:47.920 --> 0:24:51.640 footage of random black cars traveling toward the trailer park. 0:24:52.040 --> 0:24:55.680 There's not a single photo of what her actual black 0:24:55.680 --> 0:24:58.680 Cadillac looks like. Even though they had a search, weren't 0:24:58.720 --> 0:25:01.720 for it, and they searched it all. They took not 0:25:01.800 --> 0:25:05.160 a photo of anything. But they did take a floor 0:25:05.240 --> 0:25:08.000 mat and they tested the floor mat for either Dave's 0:25:08.080 --> 0:25:11.080 DNA or blood or any blood splatter at all. Because 0:25:11.080 --> 0:25:13.040 this was one of the bloodiest crime scenes I've seen. 0:25:13.119 --> 0:25:16.760 There's not a drop respect of blood on the matt 0:25:17.200 --> 0:25:19.760 note of Dave's DNA. But then since we have no 0:25:19.920 --> 0:25:21.800 photo of the car to say whether that was the 0:25:21.840 --> 0:25:25.719 car pulling into the trailer park or not. They just 0:25:26.280 --> 0:25:28.960 infer to the jury that it is, and that Lisa 0:25:29.000 --> 0:25:30.840 Frame doesn't remember the day, but that was the day, 0:25:30.960 --> 0:25:33.080 and that also she must just be confused about how 0:25:33.160 --> 0:25:35.920 Dave Smith didn't by any stretch looked like he had 0:25:35.960 --> 0:25:38.160 just hammered someone nearly to death. 0:25:38.560 --> 0:25:42.160 So after hearing only some of the impeaching issues about 0:25:42.160 --> 0:25:44.960 every single one of the state's witnesses, and having heard 0:25:45.000 --> 0:25:48.160 the identification of the attacker without the context of how 0:25:48.200 --> 0:25:52.040 that identification came to be, the jury went to deliverate. 0:25:52.960 --> 0:25:56.240 I mean, there's a lot of evidence that the jury 0:25:56.560 --> 0:26:00.000 wasn't able to deliver right on, and they came back 0:26:00.080 --> 0:26:03.639 two days later with a guilty burden twenty three years flat. 0:26:04.119 --> 0:26:05.840 They told me I wasn't coming home till I was 0:26:05.880 --> 0:26:08.640 seventy one years old, and I just started it at 0:26:09.000 --> 0:26:26.480 forty seven. I was angry about it, but I wasn't 0:26:26.520 --> 0:26:30.760 bitter because before I left out of that court room, 0:26:31.280 --> 0:26:35.080 I told the detective Lieutenant Johnson, I'll see you again 0:26:35.480 --> 0:26:38.520 in trial, and he said to me, I'll be there. 0:26:39.080 --> 0:26:42.199 And for ten years I made sure that I was 0:26:42.200 --> 0:26:46.119 going to be there to see him again. While the 0:26:46.160 --> 0:26:48.800 appeal was going on, I was in a law library 0:26:48.840 --> 0:26:49.640 every single day. 0:26:50.800 --> 0:26:53.440 Like so many of our guests, David learned the law, 0:26:53.840 --> 0:26:57.760 and after his direct appeal failed, he began fining motions 0:26:57.800 --> 0:27:00.200 pro se, meaning on his own, without the up of 0:27:00.240 --> 0:27:00.800 an attorney. 0:27:01.080 --> 0:27:04.840 I did a post conviction on ineffect assistance of council 0:27:05.200 --> 0:27:09.720 for the not playing those audios in court. They shut 0:27:09.760 --> 0:27:12.719 that down. She said that there was nothing outside the 0:27:12.720 --> 0:27:15.840 records because these transcripts and audios went back to the jury. 0:27:16.760 --> 0:27:19.440 Subsequently we found out they never went to the jury. 0:27:20.000 --> 0:27:23.720 Did never happened, And subsequently he filed his federal habias 0:27:23.800 --> 0:27:28.399 based on the impermissibly suggestive identification, citing the transcript of 0:27:28.480 --> 0:27:31.960 the December ninth, twenty fifteen recording, a transcript that they 0:27:32.000 --> 0:27:35.359 had thought was both complete and seen by the jury, 0:27:35.680 --> 0:27:37.520 and the filing made its way to the Sixth Circuit 0:27:37.520 --> 0:27:40.320 by twenty twenty two, by which point Kim had already 0:27:40.359 --> 0:27:40.920 joined the fight. 0:27:41.320 --> 0:27:45.000 By this time, Kim had set me the audio and 0:27:45.040 --> 0:27:50.360 the original transcripts of Courtney Tolliver's interview with Lieutenant Johnson, 0:27:50.520 --> 0:27:52.080 and when she said it to me and I was 0:27:52.119 --> 0:27:55.680 reading it, I said, Kim, these transcripts, it's not accurate. 0:27:55.720 --> 0:27:58.160 She like, what you mean? I said, they took evidence 0:27:58.200 --> 0:28:01.879 out of these transcripts. Send me to audio. I marked 0:28:01.920 --> 0:28:05.160 off where all the meat was, taking out the transcripts, 0:28:05.640 --> 0:28:08.359 the identification to somebody else and everything else, and I 0:28:08.440 --> 0:28:10.600 sent it back to her. She tended to an independent 0:28:10.640 --> 0:28:14.280 transcriber and they put all of it back inside the transcripts. 0:28:14.520 --> 0:28:19.480 They're authenticating through another transcriber, but they're not authenticating through 0:28:19.480 --> 0:28:23.119 the courts. Also, I didn't use these transcripts in my 0:28:23.200 --> 0:28:25.960 federal aid. So now we're in the six certain Court 0:28:25.960 --> 0:28:28.439 of Appeals and I bugging Kim and saying, how are 0:28:28.400 --> 0:28:32.360 we going to get these transcripts in the evidence. What's difficult? 0:28:32.400 --> 0:28:34.400 Though, We were procedurally in a place where you can't 0:28:34.400 --> 0:28:37.359 expand the record, and so knowing that they weren't going 0:28:37.400 --> 0:28:39.320 to allow me to expand the record at that time, 0:28:39.440 --> 0:28:42.040 I was just like making up other things to file 0:28:42.520 --> 0:28:44.840 that i'd have a reason to attach the transcripts. 0:28:45.120 --> 0:28:47.160 So when they read the motion, they're going to read 0:28:47.200 --> 0:28:49.280 the transcripts. And that's what we. 0:28:49.240 --> 0:28:52.360 Did, without regard to the fact that they removed a 0:28:52.360 --> 0:28:55.920 part of the transcript which contained exculpatory information and identified 0:28:56.200 --> 0:29:01.160 an alternative suspect. The court was just like, this wild 0:29:01.400 --> 0:29:05.680 identification procedure overly influenced her, and it's so bad. It's 0:29:05.720 --> 0:29:07.680 to such an extent that there's no way it can 0:29:07.840 --> 0:29:11.880 overcome even the stringent protections of EDPATH. 0:29:12.320 --> 0:29:15.280 EDPA is the Anti Terrorism and Effective Death Penalty Act, 0:29:15.400 --> 0:29:17.560 which was signed into law in the wake of the 0:29:17.640 --> 0:29:21.160 nineteen ninety six Oklahoma City bombing. And in order to 0:29:21.240 --> 0:29:25.680 reverse a state court decision quote, every fair minded jurist 0:29:25.840 --> 0:29:29.720 would have to agree end quote. So what they're saying 0:29:29.840 --> 0:29:33.960 is that not a single quote unquote fair minded judge 0:29:34.120 --> 0:29:37.440 in existence could have seen this another way. And the 0:29:37.440 --> 0:29:41.800 Sixth Circuit ruled that this seemingly impossibly high standard had 0:29:41.840 --> 0:29:43.240 actually been met, and. 0:29:43.200 --> 0:29:46.000 That's when they awarded him a habeous corpus on the 0:29:46.040 --> 0:29:48.480 condition that they have to release him if they don't 0:29:48.520 --> 0:29:52.760 retry him without that identification within six months. 0:29:52.920 --> 0:29:55.680 And it was just hard that it took me all 0:29:55.800 --> 0:30:01.719 this time. Quote just see where really happened to that case. Yeah, 0:30:02.000 --> 0:30:05.720 evidence didn't change, nothing changed, but it was jud just 0:30:05.960 --> 0:30:09.120 that seeing, hey, but this may did to this do 0:30:09.480 --> 0:30:11.720 this a right? You should have never went. 0:30:11.640 --> 0:30:14.680 To trial, so the state tried to stay the decision, 0:30:14.760 --> 0:30:17.680 which brought them about six weeks against the six months 0:30:17.680 --> 0:30:20.920 they were given, meaning they had to retry him by 0:30:20.960 --> 0:30:24.160 March thirteenth, twenty twenty five, and with the clock ticking, 0:30:24.440 --> 0:30:27.000 the state appealed to the denial of the stay as 0:30:27.040 --> 0:30:30.240 well as filed for sir tierrari with the US Supreme Court, 0:30:30.480 --> 0:30:34.640 both of which were almost unanimously denied in January of 0:30:34.640 --> 0:30:35.520 twenty twenty five. 0:30:36.160 --> 0:30:39.960 Since the ruling in July of twenty twenty four, I'd 0:30:40.000 --> 0:30:43.840 been actively filing defense motions, all of which went ignored 0:30:44.000 --> 0:30:48.160 until January for a trial that had to start by 0:30:48.200 --> 0:30:50.880 mid February, and so by the time they were responded to, 0:30:50.920 --> 0:30:53.440 like our emotions for expert, all of those deadlines that 0:30:53.560 --> 0:30:57.360 expired for us. And then two days before trial, they 0:30:57.520 --> 0:31:00.400 find a box labeled Detective Johnson. It was in the 0:31:00.440 --> 0:31:04.640 back of some garage and it contained exculpatory information. It 0:31:04.720 --> 0:31:07.440 referenced confidential informants. 0:31:06.800 --> 0:31:10.680 And this confirmed suspicions that Kim had raised before the 0:31:10.760 --> 0:31:12.240 July twenty twenty four ruling. 0:31:12.600 --> 0:31:16.120 While I'm working on David's case, I am randomly working 0:31:16.200 --> 0:31:20.520 another federal drug case and I'm in the trial and 0:31:20.560 --> 0:31:24.840 a confidential informants name is disclosed, which is wildly protected, 0:31:25.160 --> 0:31:27.920 but it is a name I recognize. So I go 0:31:27.960 --> 0:31:30.960 back to Portage County and I say, I have documentations 0:31:30.960 --> 0:31:35.240 signed by Portage County Sheriff's office indicating that this person 0:31:35.320 --> 0:31:38.440 was paid as a confidential informant right around the same 0:31:38.480 --> 0:31:41.000 time of this case, that they were on the payroll 0:31:41.480 --> 0:31:45.520 by the Portage County Sheriffs. And the sheriffs continually and 0:31:45.560 --> 0:31:49.720 repeatedly stated, we have no record of that, while I'm 0:31:49.760 --> 0:31:52.960 holding documentation signed by their office on their letterhead. 0:31:53.840 --> 0:31:58.680 The people that they had on the list suspects are 0:31:58.720 --> 0:32:00.640 confidential informants, and that. 0:32:00.600 --> 0:32:04.160 Would explain why they never even called them into interview them, 0:32:04.240 --> 0:32:06.719 not one of them. Did they identify their whereabouts at 0:32:06.720 --> 0:32:08.560 the time of the crime, did they get their cell 0:32:08.600 --> 0:32:11.280 phone records to see their location or their communication with 0:32:11.680 --> 0:32:12.960 Courtney Tolliger. 0:32:12.880 --> 0:32:16.120 Which definitely adds context as to why this second phone 0:32:16.200 --> 0:32:21.280 long was allegedly never gathered into evidence. And additionally, there 0:32:21.320 --> 0:32:25.240 was new context for how David's and only David's cell 0:32:25.240 --> 0:32:27.840 phone location had been obtained. 0:32:27.640 --> 0:32:31.680 When he got the warrant from my cell phone tower evidence. 0:32:32.080 --> 0:32:36.160 He told the judge that his DNA is on this 0:32:36.280 --> 0:32:39.360 scene and that's what he used to get a search WARM. 0:32:39.720 --> 0:32:43.520 When the people from BCIs and you have to do 0:32:43.640 --> 0:32:47.840 further investigation. This is not evidence, but he took it 0:32:47.880 --> 0:32:50.680 to the judge and the judge gave me a search 0:32:50.760 --> 0:32:53.520 WARM from my cell phone tower evidence. 0:32:53.800 --> 0:32:55.000 The big part of the first trial I was like, 0:32:55.040 --> 0:32:58.600 her last text message was to David Smith, she never 0:32:59.080 --> 0:33:01.360 texted anybody again. F that well, her other phone makes 0:33:01.440 --> 0:33:05.080 clear she's continuing texting and engaging with people for fifteen 0:33:05.160 --> 0:33:10.280 or twenty minutes after they believe the crime occurred, and 0:33:10.760 --> 0:33:13.479 that she has constant contact with one person more than 0:33:13.480 --> 0:33:16.520 one hundred times that day. That was another aspect of 0:33:16.560 --> 0:33:18.280 the case that was not a part of the first trial, 0:33:18.360 --> 0:33:20.080 and then they tried so hard not to make it 0:33:20.120 --> 0:33:22.080 a part of the second trial by arguing that we 0:33:22.160 --> 0:33:25.920 could not authenticate it because the records were ten years old. 0:33:25.640 --> 0:33:28.480 And that was an issue for everything that was found 0:33:28.640 --> 0:33:32.400 in Lieutenant Johnson's garage as they moved into the retrial 0:33:32.520 --> 0:33:33.880 in February twenty twenty five. 0:33:34.320 --> 0:33:36.560 Another one of the big issues at the retrial is 0:33:36.600 --> 0:33:40.440 that the state investigator who photographed the crime scene has 0:33:40.480 --> 0:33:43.800 retired and literally told them, sorry, I'm not coming in, 0:33:44.160 --> 0:33:47.720 So we were denied the opportunity to cross examine him 0:33:48.040 --> 0:33:51.320 about the photos on scene. You literally can't question anyone 0:33:51.360 --> 0:33:53.600 about anything you see in the scene. How can you 0:33:53.640 --> 0:33:56.040 develop arguments when you can't even point things out. 0:33:56.120 --> 0:33:58.280 Like whether or not the hammer was even the murder 0:33:58.320 --> 0:34:01.840 weapon at all. When the stool in the photo, well, 0:34:02.320 --> 0:34:03.880 it was an interesting alternative. 0:34:04.080 --> 0:34:06.800 What's interesting about it is someone touched it after it 0:34:06.840 --> 0:34:09.360 was used, because there's both blood under it that it 0:34:09.440 --> 0:34:12.120 is resting on top of and blood on top of it, 0:34:12.400 --> 0:34:14.239 so that is going to have meaningful evidence on it. 0:34:14.280 --> 0:34:16.319 Did they collect it? No, you didn't pick up the 0:34:16.360 --> 0:34:17.880 only hammer on scene, and you didn't pick up the 0:34:17.880 --> 0:34:20.400 thing that looks like a bludgeoning object covered in blood. 0:34:20.880 --> 0:34:23.720 You didn't pick up the plastic bag which was sitting 0:34:23.760 --> 0:34:26.319 on top of pile blood and also blood spleater on it. 0:34:26.719 --> 0:34:28.960 So it was moved after. You know, it was touched 0:34:29.000 --> 0:34:31.400 in some way in the course of this attack. 0:34:32.080 --> 0:34:35.640 But without that witness or a more well documented crime scene, 0:34:35.680 --> 0:34:38.799 the defense was hamstrung in this regard. But that was 0:34:38.880 --> 0:34:42.040 not the case when they confronted the DNA evidence at 0:34:42.040 --> 0:34:45.600 a pre trial hearing. As we discussed earlier, the triple 0:34:45.680 --> 0:34:49.600 amplification process on the DNA sample drew into question what 0:34:49.719 --> 0:34:52.640 were peaks and what was just static, which brings in 0:34:52.719 --> 0:34:55.960 room for subjectivity to something that should just be an 0:34:56.040 --> 0:34:59.440 objective science. And then Kim proceeded to present what this 0:34:59.520 --> 0:35:02.280 process meant for a neighbor's DNA When. 0:35:02.120 --> 0:35:04.239 I compared it to the neighbor, he had moraleles in 0:35:04.280 --> 0:35:07.759 common with that sample than David Smith did. When you 0:35:07.880 --> 0:35:12.319 bastardize the process, you get shit in, shit out. And 0:35:13.040 --> 0:35:16.160 to watch these experts sit up there and try and 0:35:16.239 --> 0:35:21.520 make sense of a senseless DNA procedure was just It 0:35:21.600 --> 0:35:22.200 was painful. 0:35:22.560 --> 0:35:25.680 The way she went in there and took the evidence 0:35:25.719 --> 0:35:28.680 and threw it in the trash. The prosecutor came walked 0:35:28.719 --> 0:35:31.239 over and said, listen, I'm gonna ask my boss if 0:35:31.239 --> 0:35:32.759 we could just walk him out of here with time 0:35:32.920 --> 0:35:35.920 serve and let him go. So the day before the 0:35:36.000 --> 0:35:39.000 trial started on February to twenty four, and they put 0:35:39.040 --> 0:35:42.680 it on the record time served. I said, no, I 0:35:42.719 --> 0:35:44.480 didn't fight like this just to go in there and 0:35:44.480 --> 0:35:47.160 plead guilty to somebody didn't do. I want my name 0:35:47.239 --> 0:35:50.720 clear for this. And the prosecutor looked at me and said, 0:35:50.920 --> 0:35:53.520 you got balls, and I looked at him and said, no, 0:35:53.640 --> 0:35:56.719 you have bulls because the sixth Circred Quarter of Appeals 0:35:56.760 --> 0:36:00.520 told you that you can't use this identification, and you 0:36:00.640 --> 0:36:03.480 have televised that's what you're going to do. Anyway. 0:36:03.920 --> 0:36:06.640 It is a habeas corpus in which he has to 0:36:06.680 --> 0:36:11.800 be released unless they try him within six months without 0:36:12.000 --> 0:36:18.200 using Tolliver's identification of Smith, which is suppressed and excluded. 0:36:18.520 --> 0:36:20.720 I have read it and retyped it so many. 0:36:20.560 --> 0:36:23.719 Times, and they were trying to interpret those words to 0:36:23.800 --> 0:36:26.920 make it permissible to have the victims identified David but 0:36:27.280 --> 0:36:30.120 not expressly as her attacker, right. 0:36:30.320 --> 0:36:32.360 Like, no, it doesn't say that. Like these are the 0:36:32.440 --> 0:36:35.680 highest judges in the country. They weren't confused. They meant 0:36:35.719 --> 0:36:37.840 to press and excluded. And when she woke up, she 0:36:37.880 --> 0:36:41.479 didn't remember anything about the day. So any identification which 0:36:41.480 --> 0:36:44.120 includes an identification of David Smith from that day would 0:36:44.120 --> 0:36:49.400 be the result of their overly influential, impermissible identification tactics. 0:36:49.680 --> 0:36:53.960 The day before trial we found emotion. And as for clarification, 0:36:54.120 --> 0:36:56.680 the Norther distrect Court of Appeals than not it summarily, 0:36:57.120 --> 0:36:59.120 because what is do to clarify? 0:36:59.560 --> 0:37:02.600 They said, we can't interpret what the six circuit means. 0:37:02.640 --> 0:37:05.880 What the six circuit means is you cannot use Tolliver's 0:37:05.920 --> 0:37:09.319 identification of Smith, which is suppressed and excluded. When that 0:37:09.440 --> 0:37:11.719 order comes out, I think, oh, thank god, this explains 0:37:11.719 --> 0:37:13.200 it to them. But they take it the other way. 0:37:13.200 --> 0:37:16.000 They're like, see, they said, we can't interpret what the 0:37:16.000 --> 0:37:19.480 six circuit does. So obviously the six circuit means she 0:37:19.680 --> 0:37:22.640 just can't identify him as her attacker. So she's allowed 0:37:22.640 --> 0:37:26.480 to say, that's David Smith, the ball black man and 0:37:26.520 --> 0:37:30.560 the yellow sweater. He came to my door and then 0:37:30.600 --> 0:37:33.239 I was struck with a hammer, and that's not an identification. 0:37:33.719 --> 0:37:38.240 And it would be hilarious if it wasn't so freaking sinister. 0:37:38.680 --> 0:37:41.280 And then they found a second way to bring it in. 0:37:41.280 --> 0:37:46.000 In the opening statements, he says, Courtney, Tolliver is going 0:37:46.040 --> 0:37:49.840 to come in here and tell you that David Smith 0:37:50.239 --> 0:37:51.720 hit her in the head with a hammer. 0:37:52.000 --> 0:37:53.480 And then Courtney took a stand. 0:37:53.719 --> 0:37:56.600 They say, well, can you identify the person that you 0:37:56.680 --> 0:37:59.839 said came to your house? She said, yes, that ball 0:38:00.239 --> 0:38:02.880 guy over there with a yellow shirt to brown souno 0:38:03.280 --> 0:38:06.839 and they said, well, let the record reflect she identified 0:38:06.920 --> 0:38:10.400 David Smith and it just said no. And she said, 0:38:10.880 --> 0:38:13.800 he was just standing on my porch. Okay, now what happened. 0:38:14.120 --> 0:38:16.520 I hit the legs and he opened the door and 0:38:16.640 --> 0:38:18.840 came in, and this thing I felt with a stroke 0:38:19.160 --> 0:38:20.600 and I woke up in the hospital. 0:38:20.840 --> 0:38:25.360 But somehow, in their minds this skirted the Sixth Circuits 0:38:25.480 --> 0:38:29.600 order that her identification was to be suppressed and excluded 0:38:30.000 --> 0:38:32.960 due to Lieutenant Johnson's impermissible procedure. 0:38:33.400 --> 0:38:36.239 And then after they get her to do this whull identification, 0:38:36.320 --> 0:38:38.759 I got to cross examine on the fact that it 0:38:38.880 --> 0:38:44.040 was a wildly prejudicial identification procedure. And they're like, oh, no, 0:38:45.120 --> 0:38:47.399 you can't cross him on that. You'd be opening the. 0:38:47.400 --> 0:38:52.439 Door, meaning the door to allowing her identification. It's unfucking real. 0:38:52.760 --> 0:38:55.120 And I'm like, is it genuinely your takeaway from the 0:38:55.160 --> 0:38:59.200 Sixth Circuits order that her identification is allowed? But I 0:38:59.239 --> 0:39:02.960 can't cross exams on the unreliability of the identification. You 0:39:03.000 --> 0:39:04.960 think their point was to make it worse than it 0:39:05.040 --> 0:39:05.600 was before. 0:39:06.680 --> 0:39:08.000 Yep, they did. 0:39:07.719 --> 0:39:10.520 They thought that, and then they found a way to 0:39:10.560 --> 0:39:14.480 make it even worse with Florence Fontanello, who by this 0:39:14.560 --> 0:39:18.239 time had recanted, but they weren't interested in hearing that, 0:39:18.760 --> 0:39:22.080 so they claimed they just couldn't find her. 0:39:22.360 --> 0:39:25.279 They got the court to admit her testimony from the 0:39:25.320 --> 0:39:28.680 first trial again, even though she had issued an affidavit 0:39:28.760 --> 0:39:29.720 saying that she had lied. 0:39:30.239 --> 0:39:33.840 They took the twenty sixteen transcripts and read them into 0:39:33.880 --> 0:39:36.080 a twenty twenty trial. 0:39:36.120 --> 0:39:39.799 So we can't cross examine her. They just read her 0:39:39.840 --> 0:39:44.759 testimony and everyone reads their own part, same prosecutor, same judge, 0:39:44.880 --> 0:39:47.680 And I'm like, I'm refusing to participate in this display 0:39:47.680 --> 0:39:49.520 of injustice. Like I'm not going to sit here like 0:39:49.600 --> 0:39:52.120 the defense attorney from ten years ago and read his part. 0:39:52.520 --> 0:39:54.040 I would make it very clear to the court that 0:39:54.080 --> 0:39:56.640 I'm not a part of this. We're just re enacting 0:39:57.160 --> 0:39:59.920 the same trial that was considered to be on constitution. 0:40:00.000 --> 0:40:02.520 Well, what if we did was set there without being 0:40:02.560 --> 0:40:03.960 able to say anything. 0:40:04.640 --> 0:40:06.960 I was so pissed off as I sat there in court, 0:40:07.080 --> 0:40:11.239 I ordered little Oscar statues and gave them to the 0:40:11.320 --> 0:40:13.560 judge and the prosecutors the next day, like here, since 0:40:13.600 --> 0:40:16.520 this is just a play, congrats on your acting. 0:40:17.960 --> 0:40:21.920 Nobody liked them, So the jury heard Florence Fontanellez recanted 0:40:21.960 --> 0:40:26.200 twenty sixteen testimony as well as the state's non identification 0:40:26.400 --> 0:40:30.760 identification right, and despite being threatened with opening the door 0:40:30.800 --> 0:40:33.920 to the full force of the unconstitutional evidence, they were 0:40:34.000 --> 0:40:37.840 able to provide some evidence about Courtney's two phones, and 0:40:37.880 --> 0:40:40.000 the records for the drug phone revealed that she had 0:40:40.040 --> 0:40:45.040 been active after the state had contended that this crime occurred, 0:40:45.200 --> 0:40:48.320 and that she had been contacted by an alternate suspect 0:40:48.680 --> 0:40:52.400 over one hundred times that morning. But with the passage 0:40:52.400 --> 0:40:55.920 of time, getting those records authenticated was the real problem. 0:40:56.040 --> 0:40:59.600 So Kim asked the investigators about these records and why 0:40:59.640 --> 0:41:02.360 they had gotten lost or what had happened to Lisa 0:41:02.400 --> 0:41:04.759 Frame's cell phone or for that matter, any of the 0:41:04.800 --> 0:41:06.200 physical evidence in this case. 0:41:06.400 --> 0:41:10.879 The detectives was saying they don't remember anything, and then 0:41:10.920 --> 0:41:14.880 with Kim refreshed their memory with their reports, they steer 0:41:14.920 --> 0:41:16.560 with Sam, I don't recall. 0:41:16.320 --> 0:41:18.719 That we had all this testimony about how they lost 0:41:18.760 --> 0:41:22.000 all the evidence, and then after they realized it was lost, 0:41:22.719 --> 0:41:25.359 sought a destruction order from the judge to destroy it 0:41:25.400 --> 0:41:27.480 so that we couldn't use it I could get one 0:41:27.520 --> 0:41:30.719 person to testify about some of the timing of the 0:41:30.760 --> 0:41:33.319 text and the second set of cell phone records. And 0:41:33.360 --> 0:41:36.840 because I wasn't allowed to admit those records, I was 0:41:36.920 --> 0:41:39.160 allowed to publish them in front of the jury. So 0:41:39.200 --> 0:41:41.520 I'm on a giant post it like writing down the 0:41:41.520 --> 0:41:44.120 evidence I hope they can consider, so that when they 0:41:44.160 --> 0:41:46.960 go back with half of the phone records, only the 0:41:47.000 --> 0:41:49.680 half that benefit the state, they'll remember having seen me 0:41:49.800 --> 0:41:53.320 write down the content of what mattered from the second set. 0:41:53.960 --> 0:41:57.520 And so I thought that if we attacked the quality 0:41:57.560 --> 0:41:59.840 of the investigation enough, it would be enough. 0:42:00.120 --> 0:42:03.160 Kim fought everything tooth and nail, and they went in 0:42:03.200 --> 0:42:07.680 there and came back at twelve o'clock with a guilty verdict, but. 0:42:07.920 --> 0:42:10.640 A plan to return the Sixth Circuit was already in motion. 0:42:11.080 --> 0:42:14.840 After all, these fucking people acted like they couldn't properly 0:42:14.880 --> 0:42:18.800 comprehend the Sixth Circuit's order. But if the conviction was vacated, 0:42:18.960 --> 0:42:22.880 then technically the Sixth Circuit no longer had jurisdiction, so 0:42:23.040 --> 0:42:27.120 David would have to start his appeal all over again. 0:42:27.480 --> 0:42:31.560 So David made sure that a copy of the Ohio 0:42:31.600 --> 0:42:34.640 Department of corrections docket was taken for evidence. 0:42:35.000 --> 0:42:38.919 When we filed the motion back to the court, they saying, hey, 0:42:38.960 --> 0:42:41.920 this case was vacated. The federal court don't have jurisdiction 0:42:42.000 --> 0:42:45.400 no more. My evidence was the docket, which there's no 0:42:45.480 --> 0:42:48.640 general wintry in there, that the case was vacated. Two 0:42:49.200 --> 0:42:54.400 the transport order. Three the ODRC website still said that 0:42:54.480 --> 0:42:57.360 I was convicted, that I was still under conviction, that 0:42:57.400 --> 0:43:01.160 it was never vacated. We fouled that most marks the twelve. 0:43:01.320 --> 0:43:04.080 After they found me guilty, the Jews answered they gave 0:43:04.160 --> 0:43:06.719 us a court day for April the first. They transported 0:43:06.760 --> 0:43:11.360 me back to Cleveland to the federal courthouse and Attorney General. 0:43:11.760 --> 0:43:13.560 It was kind of ugly because I've never seen the 0:43:13.640 --> 0:43:17.560 Jews treat nobody in the courtroom like that, especially attorney General. 0:43:17.800 --> 0:43:18.759 They were I mean, he was. 0:43:18.760 --> 0:43:21.400 Not shy and saying how could you guys have done this, 0:43:21.560 --> 0:43:24.439 like you touched the third rail, and not being from 0:43:24.520 --> 0:43:26.399 New York, he then had to explain what the third 0:43:26.480 --> 0:43:29.839 railmant to get into opposing council, like it's the thing 0:43:29.880 --> 0:43:32.000 you don't touch. That's how you get electrocuted. You don't 0:43:32.000 --> 0:43:34.000 touch the third rail, and you guys danced on the 0:43:34.040 --> 0:43:35.960 third rail. What did you put me in a position? 0:43:36.000 --> 0:43:36.600 What am I going to do? 0:43:37.160 --> 0:43:40.359 And even though the Northern District Court initially had a 0:43:40.360 --> 0:43:44.000 differing opinion than the higher six Circuit, they had no 0:43:44.120 --> 0:43:47.279 choice but to honor the higher court's ruling because the 0:43:47.280 --> 0:43:50.799 state's jurisdiction argument held no water. The conviction had not 0:43:50.880 --> 0:43:55.320 been vacated, but rather only a new trial had been ordered. 0:43:55.600 --> 0:43:58.319 On May to twelve, he called his back to the 0:43:58.360 --> 0:43:59.239 Northern District Court of. 0:43:59.239 --> 0:44:01.840 Appeals and I thank god the District Court did not 0:44:01.920 --> 0:44:05.840 agree with them, and they ordered that David Smith be 0:44:05.920 --> 0:44:09.840 granted an unconditional habeas corpus and that he'd be released. 0:44:10.040 --> 0:44:13.120 But then he stayed his order for seventy five days 0:44:13.360 --> 0:44:16.239 through the use of an administrative stay, which we appealed, 0:44:16.600 --> 0:44:19.440 and the Sixth Circuit basically said, there's no such procedure 0:44:19.600 --> 0:44:22.399 as an administrative stay in this context and he has 0:44:22.440 --> 0:44:24.239 to be let out. And that was on July third. 0:44:24.719 --> 0:44:27.000 Now it's a lot of third I was free on 0:44:27.160 --> 0:44:28.800 July four if I was on a boat with my 0:44:28.880 --> 0:44:29.919 attorneys and. 0:44:29.840 --> 0:44:32.920 We took a picture from the boat of the Federal Courthouse. 0:44:33.520 --> 0:44:35.560 Like everything that's happened. Now you get to view it 0:44:35.560 --> 0:44:39.239 from this side. Yeah, and I sent it to the prosecutor. 0:44:39.520 --> 0:44:41.520 When I first got out, I didn't want to live 0:44:41.560 --> 0:44:44.480 with nobody, to deal with nobody. So we have a 0:44:44.520 --> 0:44:47.960 guy who was also exonerated, who has an exign of 0:44:48.000 --> 0:44:49.480 ree house in Cleveland. 0:44:49.520 --> 0:44:50.960 We have so much injustice, so we have a lot 0:44:51.000 --> 0:44:53.319 of exgneries and they take care of each other. So 0:44:53.440 --> 0:44:55.560 one of them bought a house for all ex honeries 0:44:55.600 --> 0:44:57.400 to live in when they're in this position when they 0:44:57.400 --> 0:44:59.920 first get out, Charles, Checks and Raymond. 0:45:00.880 --> 0:45:03.520 We had the good fortune of covering Charles's story with 0:45:03.680 --> 0:45:06.279 Maggie Feeling, and we'll make sure to link it in 0:45:06.480 --> 0:45:08.480 the episode descriptions, so check it out. 0:45:08.680 --> 0:45:11.000 I've been doing Charles for a long time, so I 0:45:11.040 --> 0:45:13.440 mean he was familiar with me, But for like the 0:45:13.480 --> 0:45:16.200 first three weeks, the only thing I did was went 0:45:16.280 --> 0:45:19.759 from my bedroom to the bathroom, to the kitchen back 0:45:19.800 --> 0:45:23.840 to my bedroom, like I was steal in a sale. 0:45:24.239 --> 0:45:26.600 Since I've been home, Kim gave me a job with 0:45:26.680 --> 0:45:27.680 the law firm. 0:45:27.880 --> 0:45:30.879 So right now on the docket, it's his appeal. I'm 0:45:30.880 --> 0:45:33.520 confident we're going to win. We've already had rulings from 0:45:33.560 --> 0:45:36.520 the Sixth Circuit when they released him, saying that they 0:45:36.560 --> 0:45:40.319 don't believe that the warden has a winnable position, so 0:45:40.400 --> 0:45:43.400 that's really favorable. Nonetheless, we're going full steam ahead and 0:45:43.520 --> 0:45:45.040 that's submitted to the court and it's going to be 0:45:45.040 --> 0:45:47.880 decided without oral argument. And so as soon as we 0:45:47.960 --> 0:45:50.719 get a decision, that ankle monitor is going to come 0:45:50.760 --> 0:45:54.360 off and he will be free. Hopefully he'll decide to 0:45:54.400 --> 0:45:56.760 pursue his civil remedies because a lot has been taken 0:45:56.800 --> 0:46:01.080 from him. In the meantime, he's doing everything can. He's 0:46:01.160 --> 0:46:04.720 been working. He's gotten himself an ID. He has MS 0:46:04.800 --> 0:46:07.560 and diabetes, so he's gotten his medical setup and taken 0:46:07.600 --> 0:46:09.640 care of which is a lot of steps. But he 0:46:09.680 --> 0:46:12.240 could use all the support in the world. So if 0:46:12.520 --> 0:46:15.040 anybody has anything to offer, he's been saving to get 0:46:15.040 --> 0:46:19.080 a vehicle, he certainly needs business clothes for job interviews 0:46:19.160 --> 0:46:20.960 or stuff like that, and he desperately wants to go 0:46:21.000 --> 0:46:23.560 back to school, and so people have resources that they 0:46:23.560 --> 0:46:27.080 could lend to him to give him support. We would 0:46:27.120 --> 0:46:30.280 be happy to help facilitate those resources directly to him. 0:46:30.320 --> 0:46:33.360 And we'll link ways to contact Kim and get David 0:46:33.400 --> 0:46:37.080 to support he needs, and with that we're going to 0:46:37.120 --> 0:46:40.840 go to closing arguments. Closing arguments, everyone knows is my 0:46:40.880 --> 0:46:43.680 favorite part of the show, where I'm going to kick 0:46:43.719 --> 0:46:45.960 back in my chair, turn my microphone off and leave 0:46:46.000 --> 0:46:50.000 my headphones on and just listen to anything else you 0:46:50.040 --> 0:46:55.080 want to share with our amazing audience. And so Kim, 0:46:55.360 --> 0:46:59.120 you go first, and then just hand the microphone off 0:46:59.280 --> 0:47:01.800 to David. Then he could take us off into the sunset. 0:47:02.600 --> 0:47:05.120 This is a case with one of the most egregious 0:47:05.120 --> 0:47:08.960 identification procedures I've ever seen. Which is so appalling about 0:47:08.960 --> 0:47:12.200 it is how many courts justified and upheld the conduct, 0:47:12.560 --> 0:47:15.440 who gave it a pass in the state court at 0:47:15.480 --> 0:47:18.120 the appellate level, at the Ohio Supreme Court level, at 0:47:18.120 --> 0:47:20.879 the district court level, and federal court. It took eight 0:47:20.960 --> 0:47:24.040 years to get any justice, and then when we finally 0:47:24.080 --> 0:47:26.719 got that justice by way of an order, the state 0:47:26.760 --> 0:47:30.640 court threw it out in totally ignored it conduct that, frankly, 0:47:30.719 --> 0:47:33.319 if any of us engaged in would be criminalized. Were 0:47:33.360 --> 0:47:36.759 all required to follow the law, and the trial court 0:47:36.800 --> 0:47:39.360 thought they were above that. They stopped all over his 0:47:39.480 --> 0:47:42.840 rights through a second trial, and then used an unconstitutional 0:47:42.880 --> 0:47:47.480 second conviction to justify their misconduct. We're so thankful that 0:47:47.520 --> 0:47:50.480 the district court sought through it. But if you imagine 0:47:50.680 --> 0:47:54.000 being responsible for someone's life and freedom as their attorney, 0:47:54.320 --> 0:47:56.760 he turned down a flea he could have been free, 0:47:57.120 --> 0:47:59.359 and then for four months he lived with a twenty 0:47:59.440 --> 0:48:02.000 year cent hanging over his head and just the hope 0:48:02.120 --> 0:48:04.440 that the federal court would step in and enforce its 0:48:04.440 --> 0:48:07.400 prior ruling. We're so thankful it did, but here we 0:48:07.440 --> 0:48:10.040 are still up against it in the Federal Court of Appeals. 0:48:10.080 --> 0:48:13.960 And this case is a story of even when you 0:48:14.080 --> 0:48:18.000 get justice through your immediate appellate procedure, it can take 0:48:18.239 --> 0:48:21.640 a full decade, And even when you find a judge 0:48:21.640 --> 0:48:24.640 who's willing to say and do the right thing, there's 0:48:24.680 --> 0:48:27.160 a slew of judges below them who aren't. 0:48:27.480 --> 0:48:30.600 In Ohio, we have a feal that's on the ballot 0:48:30.800 --> 0:48:34.760 called the absolute Immunity View. If it's passed in Ohio 0:48:34.800 --> 0:48:38.120 would be the very first time that anything like this 0:48:38.239 --> 0:48:46.040 has been passed. And that deal makes judges, prosecutors, detectives, police, 0:48:46.600 --> 0:48:49.759 anything of authority can be prosecuted for what they do 0:48:50.360 --> 0:48:54.440 for violding the person's constitutional rights because right now, like 0:48:54.520 --> 0:48:57.360 it is so thick where they don't have to answer 0:48:57.360 --> 0:48:59.319 to nobody, they could do what they want and put 0:48:59.360 --> 0:49:02.800 it up under job duties. You cannot turn over evidence 0:49:02.800 --> 0:49:05.640 and say it was part of my investigation. The judge 0:49:05.680 --> 0:49:08.000 can violate your constitutional rights and know that there's no 0:49:08.040 --> 0:49:10.520 consequences for these people. Them. People need to be held 0:49:10.520 --> 0:49:14.880 accountable because if I watched so and so take a 0:49:14.880 --> 0:49:17.640 piece of paper from so and so, and the detective 0:49:17.640 --> 0:49:19.520 come and ask me and say did you see that happen? 0:49:19.760 --> 0:49:22.840 And I say no, I got a case because I lied. 0:49:23.000 --> 0:49:26.040 But a prosecutor and a jug can lie all day long, 0:49:26.360 --> 0:49:29.440 can withhold evidence, can cover up whatever they want to 0:49:29.640 --> 0:49:32.359 because there's no consequences for them. That's why this bill 0:49:32.440 --> 0:49:36.080 in Ohio is so important. And when I spoke at 0:49:36.120 --> 0:49:38.799 the Wrongful Conviction Days, that was one of the things 0:49:38.840 --> 0:49:42.360 I spoke about. All this is beautiful, but if people 0:49:42.360 --> 0:49:45.880 don't get out and vote on that bill, we're going 0:49:45.960 --> 0:49:49.480 to continue to have wrongful Conviction Days. 0:49:55.120 --> 0:49:57.720 Thank you for listening to Wrongful Conviction. You can listen 0:49:57.760 --> 0:50:00.200 to this and all the Lava for Good podcast one 0:50:00.239 --> 0:50:03.160 week early and ad free by subscribing to Lava for 0:50:03.239 --> 0:50:06.040 Good plus on Apple Podcasts. I want to thank our 0:50:06.040 --> 0:50:09.200 production team Connor Hall and Kathleen Fink, as well as 0:50:09.200 --> 0:50:13.040 my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Cliber. 0:50:13.120 --> 0:50:15.239 The music in this production was supplied by three time 0:50:15.280 --> 0:50:18.360 OSCAR nominated composer Jay Ralph. Be sure to follow us 0:50:18.400 --> 0:50:21.239 across all social media platforms at Lava for Good and 0:50:21.520 --> 0:50:24.480 at Wrongful Conviction. You can also follow me on Instagram 0:50:24.520 --> 0:50:27.360 at It's Jason Flamm. Wrongful Conviction is a production of 0:50:27.440 --> 0:50:31.160 Lava for Good Podcasts and association with Signal Company Number One. 0:50:31.200 --> 0:50:33.640 We have worked hard to ensure that all facts reported 0:50:33.640 --> 0:50:34.960 in this show are accurate. 0:50:35.040 --> 0:50:37.759 The views and opinions expressed by the individuals featured in 0:50:37.800 --> 0:50:40.440 this show are their own and do not necessarily reflect 0:50:40.520 --> 0:50:42.160 those of Lava for Good.