1 00:00:03,560 --> 00:00:06,120 Speaker 1: At ten pm on September third, two thousand and eight, 2 00:00:06,200 --> 00:00:09,000 Speaker 1: forty six year old Dwayne Done returned to his Elkhart, 3 00:00:09,039 --> 00:00:13,000 Speaker 1: Indiana apartment. He joined his girlfriend, Leitha Simms and their 4 00:00:13,039 --> 00:00:15,520 Speaker 1: next door neighbor, sixty year old Angel Torres, who were 5 00:00:15,560 --> 00:00:19,200 Speaker 1: having a few beers. The men's friendly conversation eventually turned 6 00:00:19,200 --> 00:00:22,239 Speaker 1: into an argument, and Angel pulled out a bat. It 7 00:00:22,280 --> 00:00:25,439 Speaker 1: should have ended when Dwayne and Leitha left Angel's apartment, 8 00:00:25,680 --> 00:00:28,240 Speaker 1: but a few minutes later, Dwayne and Angel found each 9 00:00:28,280 --> 00:00:31,360 Speaker 1: other again on their shared second story deck, abutted by 10 00:00:31,360 --> 00:00:34,520 Speaker 1: a rickety set of stairs. Angel began swinging the bat 11 00:00:34,560 --> 00:00:37,879 Speaker 1: at Dwayne, who was overheard telling Angel to stop, just 12 00:00:37,920 --> 00:00:41,440 Speaker 1: before a series of audible thumps and thuds the sounds 13 00:00:41,440 --> 00:00:44,800 Speaker 1: of Angel falling down the stairs. Police soon arrived to 14 00:00:44,840 --> 00:00:48,120 Speaker 1: find Dwayne hovering over Angel as blood began to pool. 15 00:00:48,760 --> 00:00:51,159 Speaker 1: He was rushed to the hospital, where he succumbed to 16 00:00:51,159 --> 00:00:54,680 Speaker 1: his injuries a few days later. For two years, Dwayne 17 00:00:54,720 --> 00:00:57,560 Speaker 1: swore in police statements and again a trial that he 18 00:00:57,600 --> 00:01:00,840 Speaker 1: had neither pushed Angel Torres nor beaten at the bottom 19 00:01:00,840 --> 00:01:05,320 Speaker 1: of those stairs. Yet the States expert witnesses disagreed, which 20 00:01:05,720 --> 00:01:10,680 Speaker 1: appeared to be ironclad proof of Dwayne Dunn's guilt, but 21 00:01:10,800 --> 00:01:27,759 Speaker 1: this is wrongful conviction. Welcome back to romful Conviction. Today, 22 00:01:27,800 --> 00:01:30,640 Speaker 1: we're going to go back to Elkhart County, Indiana, a 23 00:01:30,720 --> 00:01:34,080 Speaker 1: place once known as the r V capital of the world, 24 00:01:34,120 --> 00:01:36,840 Speaker 1: but after what we've seen going on there, it could 25 00:01:37,000 --> 00:01:40,840 Speaker 1: arguably be called the per capita wrongful conviction capital of 26 00:01:40,880 --> 00:01:43,440 Speaker 1: the world. We're going to link some of the Elkhard 27 00:01:43,480 --> 00:01:47,440 Speaker 1: cases we've covered so far in the episode bio. Not surprisingly, 28 00:01:47,680 --> 00:01:50,960 Speaker 1: many of the same bad actors and troubling patterns are 29 00:01:51,000 --> 00:01:55,080 Speaker 1: present once again in the case of Dwayne Dunn. And Dwayne, 30 00:01:55,120 --> 00:01:57,680 Speaker 1: welcome to the show. Thank you. You know you got 31 00:01:57,720 --> 00:01:59,840 Speaker 1: caught up in the Elkhart system, convicted for a murder 32 00:01:59,880 --> 00:02:03,760 Speaker 1: that never happened. Right, People always like roll their eyes, like, 33 00:02:03,760 --> 00:02:06,160 Speaker 1: what do you mean? The crime never happened. It never happened. 34 00:02:06,680 --> 00:02:10,040 Speaker 1: A man named Angel Torres did, however, tragically lose his life. 35 00:02:10,080 --> 00:02:12,920 Speaker 1: That's true, but that tragedy did not need to be 36 00:02:12,960 --> 00:02:15,560 Speaker 1: compounded by yet another. And with us to cover this 37 00:02:16,000 --> 00:02:19,800 Speaker 1: crazy story is an Indiana Deputy State Public defender. Dwayne's 38 00:02:19,840 --> 00:02:23,520 Speaker 1: post conviction attorney, John Chenawi. So John welcome to the show. 39 00:02:23,680 --> 00:02:27,840 Speaker 1: Thank you, and John. You're not the only person responsible 40 00:02:27,880 --> 00:02:30,919 Speaker 1: for Dwayne's freedom, least of which is Dwayne, who had 41 00:02:30,919 --> 00:02:33,760 Speaker 1: done a lot of pro sayliticant work on his own. 42 00:02:33,800 --> 00:02:36,200 Speaker 1: But we'll also be joined later on by two more 43 00:02:36,240 --> 00:02:38,840 Speaker 1: attorneys who fought for Dwayne in federal court. The director 44 00:02:38,880 --> 00:02:42,000 Speaker 1: of the Indiana University School of Law Federal habeas Project, 45 00:02:42,160 --> 00:02:45,440 Speaker 1: Michael Osbrook, and a public defender who was Michael's student 46 00:02:45,480 --> 00:02:48,320 Speaker 1: at the time, Alex Doland, who Michael had tapped to 47 00:02:48,360 --> 00:02:51,920 Speaker 1: handle oral arguments for Dwayne and ultimately was successful. So 48 00:02:52,000 --> 00:02:53,920 Speaker 1: we're looking forward to speaking with them as well. But 49 00:02:53,960 --> 00:02:56,160 Speaker 1: before we get into any of that, before your friend 50 00:02:56,240 --> 00:03:00,959 Speaker 1: Angel's tragic demise, Dwayne, you had been leading an honorable 51 00:03:01,080 --> 00:03:05,160 Speaker 1: life by anybody's definition, and you weren't originally from the 52 00:03:05,200 --> 00:03:06,240 Speaker 1: Elkhart area, right. 53 00:03:06,760 --> 00:03:09,079 Speaker 2: I grew up in Annapolis, went to George Washington High 54 00:03:09,080 --> 00:03:12,880 Speaker 2: School and liked it, playing football, fishing, just stuff like that. 55 00:03:13,240 --> 00:03:16,639 Speaker 2: Then I came to Elkhart later after I graduated and 56 00:03:16,880 --> 00:03:20,519 Speaker 2: come up to Elkhart to work at the jobs. Back then, 57 00:03:20,600 --> 00:03:22,200 Speaker 2: you can quit a job and go get a job 58 00:03:22,240 --> 00:03:23,000 Speaker 2: the same day. 59 00:03:23,440 --> 00:03:25,639 Speaker 1: So you were working in the RV industry. 60 00:03:25,800 --> 00:03:28,840 Speaker 2: Yeah, Rby trailers tripping and receiving all that Forkliffe. I 61 00:03:29,040 --> 00:03:31,440 Speaker 2: used to move those side walls for RB's, the big 62 00:03:31,560 --> 00:03:34,000 Speaker 2: Rby's used to move the walls, the roof and the floors, 63 00:03:34,080 --> 00:03:36,360 Speaker 2: all that. Just working and raising my family. 64 00:03:36,560 --> 00:03:39,000 Speaker 1: Yep, you and your girlfriend Lea the Sims were raising 65 00:03:39,040 --> 00:03:42,880 Speaker 1: two kids. And so in two thousand and eight, you're 66 00:03:43,040 --> 00:03:45,160 Speaker 1: forty six years old and you're living in an apartment 67 00:03:45,160 --> 00:03:47,240 Speaker 1: building at Elkhart and Angel Torre has lived in the 68 00:03:47,280 --> 00:03:50,160 Speaker 1: apartment next door where both of your second story apartments 69 00:03:50,160 --> 00:03:53,480 Speaker 1: shared a deck and the same rickety set of stairs 70 00:03:53,560 --> 00:03:55,360 Speaker 1: leading up to or down from it. 71 00:03:55,720 --> 00:03:58,280 Speaker 2: That's right. It's a normal stairs, like say if you're 72 00:03:58,280 --> 00:04:01,480 Speaker 2: going up to a second floor apartment. But the railing 73 00:04:01,640 --> 00:04:05,280 Speaker 2: was loose wooden stairs, and you know, we was always 74 00:04:05,360 --> 00:04:07,000 Speaker 2: putting something on it because we were staring for the 75 00:04:07,000 --> 00:04:08,680 Speaker 2: little kids when they were up there, that they were 76 00:04:08,720 --> 00:04:11,040 Speaker 2: going to fall through the railing. So I had get 77 00:04:11,080 --> 00:04:13,600 Speaker 2: some other kind of fencing to put up through there, 78 00:04:13,720 --> 00:04:15,240 Speaker 2: and the metal poles were broke. 79 00:04:15,840 --> 00:04:19,520 Speaker 1: Sounds pretty dicey, but okay, so you were you two 80 00:04:19,560 --> 00:04:20,520 Speaker 1: guys friends? 81 00:04:20,800 --> 00:04:22,760 Speaker 2: Oh yeah, well, we used to hang out, sit out, 82 00:04:22,800 --> 00:04:25,440 Speaker 2: on the porch, drink beer. Sometime I'll have cookouts. He 83 00:04:25,480 --> 00:04:27,680 Speaker 2: would come over sometime. He would cook come over, just 84 00:04:27,760 --> 00:04:28,840 Speaker 2: doing navally. 85 00:04:28,560 --> 00:04:31,760 Speaker 1: Things okay, and so on this particular night, the night 86 00:04:31,800 --> 00:04:34,080 Speaker 1: of September thirty, two thousand and eight, what happened. 87 00:04:34,960 --> 00:04:38,000 Speaker 2: Went out to walk the dog and came back. It 88 00:04:37,839 --> 00:04:39,400 Speaker 2: was it was in the evening. It was late, probably 89 00:04:39,400 --> 00:04:42,360 Speaker 2: around ten, and for some reason I went over his house. 90 00:04:42,400 --> 00:04:44,360 Speaker 2: And I don't know if he was just drunk or wasn't. 91 00:04:44,400 --> 00:04:46,640 Speaker 2: He got upset, got mad and asked me to leave. 92 00:04:47,160 --> 00:04:49,159 Speaker 2: So I left, and then he went to go get 93 00:04:49,160 --> 00:04:51,960 Speaker 2: his baseball bat of something. We tussled a little while 94 00:04:52,480 --> 00:04:55,320 Speaker 2: and I left went in the house. For some reason, 95 00:04:55,360 --> 00:04:57,400 Speaker 2: I just came back out on the porch, and I 96 00:04:57,440 --> 00:04:59,719 Speaker 2: guess he seen me. He comes out on the porch, 97 00:04:59,720 --> 00:05:02,520 Speaker 2: he had the bat in his hand. He reached and 98 00:05:02,640 --> 00:05:05,720 Speaker 2: splut me across the bat with the bat. I said, man, 99 00:05:05,760 --> 00:05:07,400 Speaker 2: you hit me with that bat again, We're gonna have 100 00:05:07,480 --> 00:05:10,839 Speaker 2: a problem. And he reached to go hit again, and 101 00:05:10,880 --> 00:05:15,200 Speaker 2: when I turned, he tumbled backwards down the stairs. He 102 00:05:15,279 --> 00:05:17,560 Speaker 2: hit his head a couple of times going down the stairs, 103 00:05:17,760 --> 00:05:20,839 Speaker 2: and when I seen him hit the bottom, I was like, man, damn, 104 00:05:21,200 --> 00:05:23,279 Speaker 2: are you all right? And he didn't say nothing. So 105 00:05:23,360 --> 00:05:25,599 Speaker 2: I walked down the stairs to go check on him. 106 00:05:25,960 --> 00:05:27,400 Speaker 2: And when I checked on him, I was trying to 107 00:05:27,400 --> 00:05:29,400 Speaker 2: step over the blood, but it was nothing I could do, 108 00:05:29,520 --> 00:05:32,479 Speaker 2: so I shook him see if he moved. He didn't move. 109 00:05:32,640 --> 00:05:35,840 Speaker 2: I came back upstairs at Lisa said what happened? I said, 110 00:05:35,880 --> 00:05:38,400 Speaker 2: he tumbled down the stairs, he fell, and then Willie 111 00:05:38,400 --> 00:05:40,719 Speaker 2: came out. He got on the cell phone and he 112 00:05:40,800 --> 00:05:41,600 Speaker 2: called the police. 113 00:05:42,040 --> 00:05:45,200 Speaker 1: And Willie is Leada's son, a teenager at the time, 114 00:05:45,240 --> 00:05:48,120 Speaker 1: who also cased by the name of Jamar. So then 115 00:05:48,160 --> 00:05:48,799 Speaker 1: what happened. 116 00:05:49,240 --> 00:05:51,400 Speaker 2: Me and him walked down the stairs, went around his 117 00:05:51,440 --> 00:05:54,160 Speaker 2: body and we stood on the street and I checked 118 00:05:54,200 --> 00:05:55,840 Speaker 2: on him a couple of times, and then I would 119 00:05:55,839 --> 00:05:57,480 Speaker 2: walk to the edge of the street to see if 120 00:05:57,480 --> 00:06:01,719 Speaker 2: the police were coming. One police offer came and kept going, 121 00:06:02,320 --> 00:06:04,560 Speaker 2: maybe another half a minute or so later. Then one 122 00:06:04,600 --> 00:06:06,800 Speaker 2: come up to side street. He stopped and we waved 123 00:06:06,880 --> 00:06:09,760 Speaker 2: him on. Then he came and pulled over. Then they 124 00:06:09,800 --> 00:06:11,920 Speaker 2: went to check it on him, asked me what was 125 00:06:11,960 --> 00:06:14,039 Speaker 2: going on, what had happened, and all this there and 126 00:06:14,120 --> 00:06:15,159 Speaker 2: took pictures and all that. 127 00:06:15,880 --> 00:06:19,360 Speaker 3: So when the police arrived at the scene, The paramedics 128 00:06:19,360 --> 00:06:23,440 Speaker 3: are called and mister Torres is taken to the hospital 129 00:06:23,600 --> 00:06:28,480 Speaker 3: for treatment. Some investigators from the police department arrive at 130 00:06:28,480 --> 00:06:32,599 Speaker 3: the scene, They take photos, they collect evidence. So he 131 00:06:32,680 --> 00:06:36,640 Speaker 3: was very severely injured and was taken off life support 132 00:06:36,839 --> 00:06:40,440 Speaker 3: a couple of days after he was taken to the hospital. 133 00:06:40,960 --> 00:06:45,119 Speaker 3: Back at the crime scene, the investigators when they first 134 00:06:45,200 --> 00:06:49,640 Speaker 3: arrived had found a baseball bat underneath mister Torres's body, 135 00:06:49,720 --> 00:06:53,480 Speaker 3: which they collected his evidence, and they spoke to the witnesses, 136 00:06:53,480 --> 00:06:56,440 Speaker 3: and they spoke to Duwayne. They found some blood spatter 137 00:06:57,040 --> 00:06:59,040 Speaker 3: at the scene which they photographed. 138 00:06:59,240 --> 00:07:02,040 Speaker 1: Let's talk about that blood spatter. From what I've read 139 00:07:02,080 --> 00:07:05,159 Speaker 1: about your case, the state's theory eventually became that Dwayne 140 00:07:05,200 --> 00:07:08,000 Speaker 1: had beaten him with an unknown object after the fall, 141 00:07:08,160 --> 00:07:11,520 Speaker 1: and there were what were categorized as cast off patterns 142 00:07:11,520 --> 00:07:15,760 Speaker 1: on surrounding objects and surfaces from the alleged repeated swings 143 00:07:15,800 --> 00:07:20,600 Speaker 1: from this sole edged, unidentified bludgeting tool. Now, curiously, though 144 00:07:20,800 --> 00:07:24,600 Speaker 1: there was no cast off on your clothing, when anybody 145 00:07:24,640 --> 00:07:27,480 Speaker 1: would know the most amateur sleuth in the world would 146 00:07:27,520 --> 00:07:29,800 Speaker 1: know that you would have been covered in blood had 147 00:07:29,840 --> 00:07:33,000 Speaker 1: you repeatedly struck Angel, but of course that was not 148 00:07:33,120 --> 00:07:34,200 Speaker 1: the case, nothing like it. 149 00:07:34,680 --> 00:07:37,920 Speaker 3: They found a little bit of blood on Duayne's shoe 150 00:07:38,240 --> 00:07:40,360 Speaker 3: and a little bit of blood on the inside of 151 00:07:40,440 --> 00:07:43,360 Speaker 3: the shorts that you were wearing. And there was no 152 00:07:43,440 --> 00:07:45,760 Speaker 3: doubt that Dwayne had been at the bottom of the 153 00:07:45,760 --> 00:07:49,360 Speaker 3: staircase trying to help mister Torres, and mister Torres was 154 00:07:49,360 --> 00:07:52,440 Speaker 3: bleeding at that time, so if blood ended up on Dwayne, 155 00:07:52,440 --> 00:07:53,960 Speaker 3: that would not have been surprising. 156 00:07:54,560 --> 00:07:58,360 Speaker 1: So not only is that blood easily explainable, but so 157 00:07:58,480 --> 00:08:01,480 Speaker 1: are the spatter patterns. And as it turns out, while 158 00:08:01,520 --> 00:08:04,679 Speaker 1: Angel Torres's blood was in fact pooling on the ground, 159 00:08:05,320 --> 00:08:07,600 Speaker 1: quite a few people had trampled through the scene. 160 00:08:07,760 --> 00:08:10,720 Speaker 2: Yeah, the paramedics walked through it. All the police were 161 00:08:10,760 --> 00:08:13,560 Speaker 2: in it. They took the baseball battis and picked it 162 00:08:13,640 --> 00:08:15,400 Speaker 2: up and leaned it up against the car. 163 00:08:15,600 --> 00:08:18,800 Speaker 1: And the bat was the only freaking thing they ever found. 164 00:08:19,080 --> 00:08:21,760 Speaker 1: As we mentioned, it was under his body with no spatter, 165 00:08:22,520 --> 00:08:25,920 Speaker 1: and a thorough search was conducted. There were no other 166 00:08:26,040 --> 00:08:29,000 Speaker 1: implements on the scene. So anyway, the police brought you 167 00:08:29,040 --> 00:08:29,920 Speaker 1: in for questioning. 168 00:08:30,280 --> 00:08:32,800 Speaker 2: The first two detectives that were on the case. They 169 00:08:32,880 --> 00:08:35,199 Speaker 2: kept me down there, and they went to every place 170 00:08:35,240 --> 00:08:37,120 Speaker 2: I told them I went. They went to go check. 171 00:08:37,240 --> 00:08:39,360 Speaker 2: Then they came back and they said all right. Then 172 00:08:39,400 --> 00:08:41,840 Speaker 2: they came back the next day. The clothes. They put 173 00:08:41,880 --> 00:08:43,640 Speaker 2: it all in bags, and they said, well, we're going 174 00:08:43,679 --> 00:08:45,480 Speaker 2: to go send this to the lab and test it. 175 00:08:45,840 --> 00:08:46,880 Speaker 2: I said, no problem. 176 00:08:47,040 --> 00:08:49,840 Speaker 1: And as we mentioned, there was a droplet of Angel's 177 00:08:49,880 --> 00:08:53,800 Speaker 1: blood discovered on your shoe and on the inside leg 178 00:08:53,880 --> 00:08:57,079 Speaker 1: of your shorts, which was consistent with you having entered 179 00:08:57,120 --> 00:09:00,800 Speaker 1: the scene having tried to help your friend, but definitely 180 00:09:00,880 --> 00:09:04,520 Speaker 1: not consistent with multiple swings of a blunt object and 181 00:09:04,600 --> 00:09:08,880 Speaker 1: blood flying everywhere. In fact, you were the only one, ironically, 182 00:09:08,920 --> 00:09:10,560 Speaker 1: that was hit with a blunt object. 183 00:09:10,920 --> 00:09:14,480 Speaker 3: When they took Dwayne in for questioning, they took photographs 184 00:09:14,520 --> 00:09:17,640 Speaker 3: of his body and they found injuries where Dwayne had 185 00:09:17,640 --> 00:09:20,880 Speaker 3: been hit by the baseball bat by mister Torres. They 186 00:09:20,880 --> 00:09:23,400 Speaker 3: found clear evidence that he had been struck at least 187 00:09:23,440 --> 00:09:26,320 Speaker 3: several times. Everything they found at the scene in terms 188 00:09:26,360 --> 00:09:29,320 Speaker 3: of the physical evidence, was matching up with what Dwayne 189 00:09:29,520 --> 00:09:31,640 Speaker 3: and Letha and Jamar were saying that happened. 190 00:09:31,840 --> 00:09:34,640 Speaker 1: Now, the police had also questioned Letha and her son, 191 00:09:34,679 --> 00:09:38,120 Speaker 1: who were the only two witnesses to what happened. What 192 00:09:38,160 --> 00:09:39,320 Speaker 1: did they tell the police? 193 00:09:40,000 --> 00:09:42,280 Speaker 2: Nothing that Dwayne ever touched them, That that was what 194 00:09:42,520 --> 00:09:45,480 Speaker 2: was said. They investigated for a while. Look, I say, 195 00:09:45,559 --> 00:09:50,199 Speaker 2: maybe thirty forty days later, maybe two months, the two 196 00:09:50,320 --> 00:09:52,440 Speaker 2: detectives came back to my house one day. I said, 197 00:09:52,480 --> 00:09:55,720 Speaker 2: mister dumfar as we concerned, this case is closed because 198 00:09:55,880 --> 00:09:57,000 Speaker 2: we can't find anything. 199 00:09:57,400 --> 00:09:59,679 Speaker 1: I said, all right, right at this point, Letha and 200 00:09:59,720 --> 00:10:02,319 Speaker 1: Jami saying that you hadn't touched him, that they had 201 00:10:02,360 --> 00:10:05,000 Speaker 1: heard him fall down the stairs, and had come rushing 202 00:10:05,040 --> 00:10:08,520 Speaker 1: out to see what the commotion was and hadn't witnessed 203 00:10:08,679 --> 00:10:12,400 Speaker 1: any beating. After that, even the autopsy hadn't ruled that 204 00:10:12,480 --> 00:10:15,080 Speaker 1: the cause of death was homicide, but rather the cause 205 00:10:15,080 --> 00:10:18,000 Speaker 1: of death was deemed uncertain. So for all of the 206 00:10:18,040 --> 00:10:22,880 Speaker 1: reasons I just mentioned, signs pointed clearly to an unfortunate accident. 207 00:10:23,000 --> 00:10:27,560 Speaker 1: But the chief deputy prosecuting Attorney, Vicki Becker, wasn't taking 208 00:10:27,559 --> 00:10:28,480 Speaker 1: that as an answer. 209 00:10:28,880 --> 00:10:31,240 Speaker 2: I say, maybe six months after that, she put us 210 00:10:31,280 --> 00:10:34,880 Speaker 2: somebody else in the case. He brings me downtown and we. 211 00:10:34,840 --> 00:10:37,360 Speaker 1: Saw the same thing in Andy Royer, Atlanta Canan's case, 212 00:10:37,360 --> 00:10:39,840 Speaker 1: where after their case went cold, A new detective was 213 00:10:39,840 --> 00:10:43,920 Speaker 1: assigned to close it, and again, just like Andy, they 214 00:10:43,920 --> 00:10:45,320 Speaker 1: tried to get a confession out of you. 215 00:10:45,840 --> 00:10:48,160 Speaker 2: He's the one that started pushing the issue. Are you 216 00:10:48,240 --> 00:10:50,720 Speaker 2: hitting you did this? You did that? Just you know 217 00:10:50,760 --> 00:10:52,960 Speaker 2: you kicked him? You did that? I said, man, I 218 00:10:52,960 --> 00:10:54,920 Speaker 2: don't know what you're talking about. I ain't did nothing. 219 00:10:55,440 --> 00:10:57,640 Speaker 2: He said, well, what if we got a witness to say, 220 00:10:57,720 --> 00:10:59,600 Speaker 2: is that you kicked him? I said, well, your witness 221 00:10:59,640 --> 00:11:02,600 Speaker 2: is lying. He said, well today you're going home, he said, 222 00:11:02,600 --> 00:11:05,079 Speaker 2: but I want you to know it. We're still owing this. 223 00:11:05,200 --> 00:11:07,240 Speaker 2: So I guess at the same time where they were 224 00:11:07,240 --> 00:11:08,839 Speaker 2: bringing me, I guess they would bring at least to 225 00:11:08,920 --> 00:11:11,800 Speaker 2: them in. And that's who he was really trying to pressure. 226 00:11:12,240 --> 00:11:14,960 Speaker 2: She said. The officer told her that you know the 227 00:11:15,000 --> 00:11:17,160 Speaker 2: Wayne kicked him. You know the Wayne hit him, don't you? 228 00:11:17,200 --> 00:11:19,559 Speaker 2: And she said, well, they've kept pressing her so tough 229 00:11:19,840 --> 00:11:22,960 Speaker 2: that she went on to say it. She said what 230 00:11:23,080 --> 00:11:25,240 Speaker 2: he told her to say. She even said it at 231 00:11:25,240 --> 00:11:27,560 Speaker 2: the trough. I believe that's how they got the warm. 232 00:11:28,200 --> 00:11:30,560 Speaker 1: Now they had enough to get an arrest warrant, but 233 00:11:30,640 --> 00:11:32,760 Speaker 1: they needed to find some way to support what they 234 00:11:32,840 --> 00:11:36,680 Speaker 1: knew was a shaky and patently false statement. I mean 235 00:11:37,160 --> 00:11:40,640 Speaker 1: Letha eventually went on to RecA the trial. So now 236 00:11:40,640 --> 00:11:42,640 Speaker 1: we see another move that we've seen before in Elkhart, 237 00:11:42,640 --> 00:11:45,240 Speaker 1: in Andy Royer's case, when the Indiana Police Lab wasn't 238 00:11:45,280 --> 00:11:49,080 Speaker 1: giving Vicky Becker the fingerprint analysis that she wanted, so 239 00:11:49,160 --> 00:11:53,520 Speaker 1: she tapped fingerprint analysis, knowing fingerprint analysis fraud David Chapman 240 00:11:53,720 --> 00:11:56,160 Speaker 1: for a second opinion. In this case, the person who 241 00:11:56,160 --> 00:11:59,920 Speaker 1: had performed the original autopsy, doctor Blair Trenkett, had grew 242 00:12:00,160 --> 00:12:03,439 Speaker 1: the cause of death uncertain not a homicide, so they 243 00:12:03,520 --> 00:12:07,199 Speaker 1: fished around for two years to find a second opinion, 244 00:12:07,280 --> 00:12:10,520 Speaker 1: or rather an opinion they liked from doctor Scott Wagner. 245 00:12:11,360 --> 00:12:14,720 Speaker 2: He said it was a homicide, but all he ever 246 00:12:14,720 --> 00:12:16,839 Speaker 2: seen was the pictures. He never looked at the body 247 00:12:16,920 --> 00:12:17,400 Speaker 2: or anything. 248 00:12:18,000 --> 00:12:21,360 Speaker 3: Doctor Wagner agreed that the cause of death was blunt 249 00:12:21,360 --> 00:12:24,640 Speaker 3: for its trauma and that mister Torres had died as 250 00:12:24,679 --> 00:12:27,920 Speaker 3: a result of skull fractures and other injuries. Where he 251 00:12:28,000 --> 00:12:31,600 Speaker 3: disagreed with doctor Trnka is that whereas doctor Trenka said 252 00:12:31,600 --> 00:12:34,960 Speaker 3: that the manner of death couldn't be determined because he 253 00:12:35,000 --> 00:12:37,280 Speaker 3: didn't know whether it was a fall or whether mister 254 00:12:37,280 --> 00:12:39,719 Speaker 3: Torres had been injured at the bottom of the staircase. 255 00:12:40,120 --> 00:12:43,439 Speaker 3: Doctor Wagner was certain that mister Torres had been injured 256 00:12:43,520 --> 00:12:46,840 Speaker 3: at the bottom of the staircase. The staircase at Dwayne's 257 00:12:46,880 --> 00:12:51,280 Speaker 3: place was about six seven feet down to the pavement, 258 00:12:51,600 --> 00:12:54,959 Speaker 3: and doctor Wagner didn't believe that the injuries suffered by 259 00:12:54,960 --> 00:12:58,440 Speaker 3: mister Torres could have been caused by a fall down 260 00:12:58,520 --> 00:13:01,480 Speaker 3: a staircase of that length. He thought the injuries were 261 00:13:01,520 --> 00:13:03,600 Speaker 3: so severe they must have been caused by a beating. 262 00:13:04,000 --> 00:13:06,520 Speaker 3: So he determined that the manner of death was homicide. 263 00:13:06,960 --> 00:13:09,160 Speaker 2: But when I kept trying to tell them and explain 264 00:13:09,280 --> 00:13:13,160 Speaker 2: to him that when he slipped, he tumbled at least twice, 265 00:13:13,200 --> 00:13:15,800 Speaker 2: he flipped head over foot at least twice before he 266 00:13:15,920 --> 00:13:16,840 Speaker 2: hit the ground. 267 00:13:16,840 --> 00:13:20,400 Speaker 3: I mean mister Torres suffered severe injuries. There was no 268 00:13:20,440 --> 00:13:24,360 Speaker 3: doubt about that. But there was an explanation, There was 269 00:13:24,480 --> 00:13:28,679 Speaker 3: a scientific, medical explanation for why those injuries were so serious, 270 00:13:28,840 --> 00:13:32,239 Speaker 3: and they were due to the condition of mister Torres. 271 00:13:32,440 --> 00:13:35,360 Speaker 3: He was out of shape, he was an alcoholic, he 272 00:13:35,360 --> 00:13:38,760 Speaker 3: had a pacemaker, His bones were weak, he bled easily, 273 00:13:38,880 --> 00:13:41,760 Speaker 3: his liver was susceptible to being injured because it was 274 00:13:41,760 --> 00:13:45,320 Speaker 3: so swollen from the alcoholism, and a fall down even 275 00:13:45,320 --> 00:13:48,720 Speaker 3: a short staircase can cause really severe injuries, especially to 276 00:13:48,760 --> 00:13:52,680 Speaker 3: someone who's susceptible to injuries like mister Torres was, and 277 00:13:52,800 --> 00:13:55,440 Speaker 3: the nature of the injuries were such that they looked 278 00:13:55,480 --> 00:13:58,040 Speaker 3: like they had been caused by a fall. They weren't 279 00:13:58,080 --> 00:13:59,120 Speaker 3: consistent with a beating. 280 00:13:59,400 --> 00:14:02,680 Speaker 1: Dwayne, did you know now they had what they needed 281 00:14:02,679 --> 00:14:03,560 Speaker 1: to get a conviction. 282 00:14:03,800 --> 00:14:05,840 Speaker 2: Yeah. I remember the morning that they came to the door. 283 00:14:06,400 --> 00:14:08,520 Speaker 2: I got ready to go to work and uh knot 284 00:14:08,520 --> 00:14:10,360 Speaker 2: came on the door. My brother went and got it. 285 00:14:10,600 --> 00:14:12,440 Speaker 2: He said. The police come to the door and they said, 286 00:14:12,440 --> 00:14:14,720 Speaker 2: a Dwayne done here. He said, Bro, they looking for you. 287 00:14:14,840 --> 00:14:16,680 Speaker 2: I said, open the door, let him in. I ain't 288 00:14:16,679 --> 00:14:19,200 Speaker 2: dead none. So he came to the door. He said you Dwayne. 289 00:14:19,240 --> 00:14:21,240 Speaker 2: He said, well, I need you to step outside. Said 290 00:14:21,240 --> 00:14:23,000 Speaker 2: we got a warrant for your arrest. I said, a 291 00:14:23,040 --> 00:14:26,360 Speaker 2: warrant A warmth for what he said, murder? I said, 292 00:14:26,400 --> 00:14:29,200 Speaker 2: oh my god, turn around and put my hands up, 293 00:14:29,240 --> 00:14:30,360 Speaker 2: cuffed me, put me in the car. 294 00:14:30,720 --> 00:14:33,840 Speaker 1: So you were charged with first degree murder and awaited 295 00:14:33,880 --> 00:14:37,680 Speaker 1: trial in jail for nine long months, and you were 296 00:14:37,680 --> 00:14:41,280 Speaker 1: assigned Cliff Williams, the chief public defender for Elkhart County. 297 00:14:41,920 --> 00:14:45,000 Speaker 3: I don't think much of anything was done for Dwayne 298 00:14:45,200 --> 00:14:48,280 Speaker 3: in terms of investigation prior to going to trial, and 299 00:14:48,360 --> 00:14:50,200 Speaker 3: in fact, Cliff Williams, there's a lot he could have 300 00:14:50,240 --> 00:14:51,240 Speaker 3: done that he did not do. 301 00:14:51,880 --> 00:14:53,960 Speaker 2: The trial started on a Monday. He came to see 302 00:14:53,960 --> 00:14:56,120 Speaker 2: me on that Friday. This was one of only two 303 00:14:56,160 --> 00:14:58,080 Speaker 2: times he came to see me the whole time I 304 00:14:58,160 --> 00:15:00,120 Speaker 2: was in the jail. And then he was telling tell 305 00:15:00,240 --> 00:15:02,680 Speaker 2: me that he's going to prepare over the weekend, and 306 00:15:02,720 --> 00:15:05,400 Speaker 2: he had another attorney with him. She was as an assistant. 307 00:15:05,440 --> 00:15:07,840 Speaker 2: I don't remember her name, but she was there. So 308 00:15:07,880 --> 00:15:09,960 Speaker 2: we were talking and he was talking about, well, the 309 00:15:09,960 --> 00:15:12,720 Speaker 2: state's going to have experts. We're gonna let them talk. 310 00:15:12,760 --> 00:15:14,960 Speaker 2: I'm not going to question them too much. I kept 311 00:15:14,960 --> 00:15:17,960 Speaker 2: looking at him and I'm like, man, And she asked him, well, 312 00:15:17,960 --> 00:15:20,440 Speaker 2: why don't we have experts, and he looked at her 313 00:15:20,440 --> 00:15:22,440 Speaker 2: and told her something to do with the money or 314 00:15:22,480 --> 00:15:24,440 Speaker 2: something like that. I looked back, man, hold up, wait 315 00:15:24,440 --> 00:15:27,240 Speaker 2: a minute, you'd be telling me who's going to testify 316 00:15:27,320 --> 00:15:29,400 Speaker 2: on my side? He said, well, right now, this is 317 00:15:29,440 --> 00:15:31,680 Speaker 2: just gonna be us. I looked at him, I'm like, 318 00:15:31,720 --> 00:15:32,200 Speaker 2: oh my. 319 00:15:32,280 --> 00:15:43,400 Speaker 1: God, We're going to take a quick break and we'll 320 00:15:43,440 --> 00:15:47,240 Speaker 1: be right back. The Pacers Foundation is a proud supporter 321 00:15:47,280 --> 00:15:49,880 Speaker 1: of this episode of Rawful Conviction and of the Last 322 00:15:49,920 --> 00:15:53,320 Speaker 1: Mile organization, which provides business and tech training to help 323 00:15:53,320 --> 00:15:58,280 Speaker 1: incarcerated individuals successfully and permanently reenter the workforce. The Pacers 324 00:15:58,280 --> 00:16:01,880 Speaker 1: Foundation is committed to improving the of Hoosiers across Indiana, 325 00:16:02,040 --> 00:16:05,840 Speaker 1: supporting organizations that are dedicated primarily to helping young people 326 00:16:05,880 --> 00:16:08,560 Speaker 1: and students. For more information on the work of the 327 00:16:08,600 --> 00:16:12,720 Speaker 1: Pacers Foundation or the Last Mile program, visit Pacersfoundation dot 328 00:16:12,840 --> 00:16:23,360 Speaker 1: org or the Lastmile dot org. So all you've got 329 00:16:23,480 --> 00:16:25,760 Speaker 1: is your girlfriend and her son, and we know, and 330 00:16:25,960 --> 00:16:28,960 Speaker 1: listeners of the show know that loved ones are usually 331 00:16:29,520 --> 00:16:33,680 Speaker 1: explained or rationalized away very easily by the state. So 332 00:16:33,720 --> 00:16:37,640 Speaker 1: it almost sounds like he planned on losing, so that process. 333 00:16:37,720 --> 00:16:40,600 Speaker 1: The trial began in January twenty eleven in front of 334 00:16:40,680 --> 00:16:45,960 Speaker 1: Judge Terry Schumacher. The prosecution presented the questionable second opinion 335 00:16:46,200 --> 00:16:49,200 Speaker 1: of doctor Wagner and then a guy named Dean Marx 336 00:16:49,240 --> 00:16:49,640 Speaker 1: as well. 337 00:16:50,640 --> 00:16:54,680 Speaker 3: Dean Marx is a blood spatter expert, and he testified 338 00:16:54,880 --> 00:16:58,200 Speaker 3: that there were numerous areas of blood spatter at the 339 00:16:58,240 --> 00:17:02,800 Speaker 3: scene and that's some of that blood spatter had been 340 00:17:03,000 --> 00:17:07,399 Speaker 3: caused by cast off, meaning that there was an object 341 00:17:07,920 --> 00:17:11,200 Speaker 3: that had blood on it that had been swung, and 342 00:17:11,240 --> 00:17:13,600 Speaker 3: that the blood had been cast off of this object 343 00:17:13,640 --> 00:17:17,520 Speaker 3: and landed on different surfaces side of the building, a car, 344 00:17:17,880 --> 00:17:22,480 Speaker 3: and that indicated that mister Torres had been killed with 345 00:17:22,760 --> 00:17:26,199 Speaker 3: a blunt object and that the blood spatter at the 346 00:17:26,240 --> 00:17:29,120 Speaker 3: scene was caused by the swinging of this object. And 347 00:17:29,960 --> 00:17:33,520 Speaker 3: the state conceded at trial that the baseball bat was 348 00:17:33,680 --> 00:17:36,119 Speaker 3: not the weapon that had been used because there was 349 00:17:36,160 --> 00:17:37,520 Speaker 3: no blood on the baseball bat. 350 00:17:37,920 --> 00:17:41,520 Speaker 1: And as we now know, blood spatter analysis has been 351 00:17:41,760 --> 00:17:45,720 Speaker 1: totally debunked as what it is, which is junk science. 352 00:17:45,800 --> 00:17:48,600 Speaker 1: It's not science at all. In fact, we did a 353 00:17:48,600 --> 00:17:51,240 Speaker 1: deep dive into this kind of quote unquote evidence and 354 00:17:51,280 --> 00:17:54,359 Speaker 1: testimony in our podcast Wrongful Conviction Junk Science, which of 355 00:17:54,359 --> 00:17:56,840 Speaker 1: course was hosted by the great Josh Dubin. So we'll 356 00:17:56,840 --> 00:17:58,280 Speaker 1: have a linked in the bio and which you'll find 357 00:17:58,320 --> 00:18:00,680 Speaker 1: out that most of these quote unquote the lists are 358 00:18:00,880 --> 00:18:03,800 Speaker 1: other cops who have taken just a forty hour course, 359 00:18:03,960 --> 00:18:06,719 Speaker 1: yes you heard that right, A forty hour course about 360 00:18:06,800 --> 00:18:11,520 Speaker 1: how to testify convincingly about the fluid dynamics of blood, 361 00:18:11,680 --> 00:18:15,359 Speaker 1: a subject that they don't know shit about nothing. So 362 00:18:15,400 --> 00:18:18,119 Speaker 1: it's almost like an acting course more than anything else. 363 00:18:18,240 --> 00:18:20,720 Speaker 1: It would be laughable if it wasn't so sinister. 364 00:18:21,320 --> 00:18:23,200 Speaker 3: And you have to keep in mind we talked about 365 00:18:23,200 --> 00:18:26,560 Speaker 3: this previously, but at the scene, there are pools of 366 00:18:26,600 --> 00:18:31,920 Speaker 3: blood near mister Torres's body, and multiple people are stepping 367 00:18:32,080 --> 00:18:36,400 Speaker 3: in these pools and they're causing blood to splash, They're 368 00:18:36,400 --> 00:18:39,119 Speaker 3: getting blood on their shoes, which is then being cast 369 00:18:39,200 --> 00:18:43,440 Speaker 3: off as they walk. Numerous people, paramedics, police officers, maybe 370 00:18:43,520 --> 00:18:45,920 Speaker 3: even Dwayne when he was trying to help mister Torres 371 00:18:46,119 --> 00:18:51,480 Speaker 3: at the bottom of the staircase. And as this progresses, 372 00:18:51,920 --> 00:18:56,200 Speaker 3: and as the investigation continues, immediately after, it begins to rain. 373 00:18:56,800 --> 00:18:59,239 Speaker 3: So now you've got rain and the rain drops are 374 00:18:59,280 --> 00:19:01,439 Speaker 3: coming down, and any one of these things could have 375 00:19:01,520 --> 00:19:05,719 Speaker 3: caused the spatter, and Marx did not consider any of 376 00:19:05,760 --> 00:19:07,680 Speaker 3: that in his testimony. 377 00:19:08,040 --> 00:19:10,960 Speaker 1: And unfortunately, most people serviana jury are going to be 378 00:19:11,040 --> 00:19:14,520 Speaker 1: unaware that this so called expert was merely jumping to 379 00:19:14,640 --> 00:19:19,320 Speaker 1: conclusions and not ruling out all of these other possibilities. Instead, 380 00:19:19,400 --> 00:19:23,000 Speaker 1: this expert was only an expert in testifying or test 381 00:19:23,040 --> 00:19:25,359 Speaker 1: the lying. Let's call it what it is, to whatever 382 00:19:25,400 --> 00:19:29,040 Speaker 1: the state's theory was, and it'll become clear that Wagner 383 00:19:29,160 --> 00:19:32,480 Speaker 1: was no different. Yet, this really was all they had 384 00:19:32,520 --> 00:19:36,160 Speaker 1: against the word of what, unfortunately can be considered two 385 00:19:36,920 --> 00:19:41,359 Speaker 1: interested parties. So what did Litha and Willie say on 386 00:19:41,400 --> 00:19:41,879 Speaker 1: the stand? 387 00:19:42,119 --> 00:19:47,520 Speaker 3: Willie testified that he had seen mister Torres go after 388 00:19:47,600 --> 00:19:53,560 Speaker 3: Dwayne with the baseball bat, and that Dwayne was defending himself, 389 00:19:53,680 --> 00:19:57,440 Speaker 3: and that during this struggle, mister Torres lost his balance 390 00:19:58,000 --> 00:20:03,680 Speaker 3: and fell backwards down the steps, and as he was falling, 391 00:20:04,320 --> 00:20:08,359 Speaker 3: his back hit the banister of the steps, and he 392 00:20:08,480 --> 00:20:11,639 Speaker 3: sort of flipped over and landed on the pavement at 393 00:20:11,640 --> 00:20:16,920 Speaker 3: the bottom of the staircase. Leitha testified that she heard 394 00:20:16,960 --> 00:20:20,200 Speaker 3: the commotion. She comes out of the apartment and she's 395 00:20:20,200 --> 00:20:23,199 Speaker 3: standing on the balcony and she sees mister Torres at 396 00:20:23,200 --> 00:20:27,840 Speaker 3: the bottom of the staircase, and she sees Dwayne trying 397 00:20:27,880 --> 00:20:31,959 Speaker 3: to help mister Torres and trying to help him up 398 00:20:31,960 --> 00:20:35,200 Speaker 3: to his feet, and neither one of them ever testified 399 00:20:35,240 --> 00:20:39,080 Speaker 3: that they saw Dwayne striking mister Torres while he was 400 00:20:39,160 --> 00:20:41,720 Speaker 3: laying on the pavement. They didn't see anything other than 401 00:20:41,800 --> 00:20:44,520 Speaker 3: Dwayne trying to help mister Torres after he fell down 402 00:20:44,520 --> 00:20:45,080 Speaker 3: the steps. 403 00:20:45,160 --> 00:20:47,720 Speaker 1: And not only did they corroborate Dwayne's verdic of events, 404 00:20:47,760 --> 00:20:51,320 Speaker 1: but also Leva testified that the detective had bullied her 405 00:20:51,359 --> 00:20:53,960 Speaker 1: into saying Dwayne was guilty just in order to get 406 00:20:53,960 --> 00:20:56,920 Speaker 1: the arrest warrant. And Cliff Williams did and back point 407 00:20:56,960 --> 00:20:57,320 Speaker 1: that out. 408 00:20:57,520 --> 00:21:00,119 Speaker 2: Yeah, So he said, now, you said, the detective that 409 00:21:00,280 --> 00:21:02,560 Speaker 2: forced you and made you say that, is he here? And 410 00:21:02,640 --> 00:21:05,639 Speaker 2: she said yeah, and she pointed him out. But the jury, 411 00:21:05,720 --> 00:21:07,320 Speaker 2: I guess they just overlooked it. 412 00:21:07,880 --> 00:21:11,159 Speaker 1: So it appears mister William's efforts were just not enough. 413 00:21:11,640 --> 00:21:15,280 Speaker 3: You have two lay people who were not scientists, testifying 414 00:21:15,320 --> 00:21:18,119 Speaker 3: about what they saw, and the state has two experts 415 00:21:18,119 --> 00:21:20,800 Speaker 3: with all sorts of degrees and training going to testify 416 00:21:20,880 --> 00:21:24,320 Speaker 3: that this was a homicide. You can't take the risk 417 00:21:25,119 --> 00:21:28,040 Speaker 3: of the jury believing the experts over the lay people. 418 00:21:28,440 --> 00:21:30,560 Speaker 3: You have to prepare the case such that you have 419 00:21:30,720 --> 00:21:34,240 Speaker 3: your own experts. Then you can combine the eyewitness testimony 420 00:21:34,240 --> 00:21:37,959 Speaker 3: with the expert testimony and have a full defense, and 421 00:21:38,000 --> 00:21:40,919 Speaker 3: the only party that had expert testimony was the state. 422 00:21:40,880 --> 00:21:43,720 Speaker 1: And unfortunately he was facing Vicky Becker, who was willing 423 00:21:43,800 --> 00:21:45,480 Speaker 1: to go even farther than that. 424 00:21:45,960 --> 00:21:48,160 Speaker 3: There was a line that the prosecutor used in their 425 00:21:48,160 --> 00:21:50,960 Speaker 3: closing argument to the jury in which they were referring 426 00:21:51,000 --> 00:21:54,440 Speaker 3: to Litha and Jamar and their testimonies, and the prosecutor 427 00:21:54,480 --> 00:21:57,719 Speaker 3: said to the jury, you don't find swans in a sewer. 428 00:21:58,800 --> 00:22:02,840 Speaker 1: Wow, not only had one of your friends died, but 429 00:22:03,040 --> 00:22:07,440 Speaker 1: now you your girlfriend, life partner, and young Willie. All 430 00:22:07,480 --> 00:22:13,880 Speaker 1: black people were being called by this white prosecutor human waste, 431 00:22:14,560 --> 00:22:18,720 Speaker 1: certainly not swans in her telling, white as the driven snow. 432 00:22:19,160 --> 00:22:21,240 Speaker 1: And she said this just as the jury was sent 433 00:22:21,280 --> 00:22:23,800 Speaker 1: out to deliberate. So what was it like when they 434 00:22:23,840 --> 00:22:24,439 Speaker 1: came back in. 435 00:22:24,960 --> 00:22:28,199 Speaker 2: Well, at first I kind of looked at him, and 436 00:22:28,240 --> 00:22:30,040 Speaker 2: then I kind of had that feeling like, man, they 437 00:22:30,119 --> 00:22:32,800 Speaker 2: getting ready to come back with a guilty verty. They 438 00:22:32,880 --> 00:22:35,920 Speaker 2: sentenced me to fifty eight years, first time ever been 439 00:22:35,960 --> 00:22:39,760 Speaker 2: in prison, almost fifty years old. Now I'm here, I 440 00:22:39,760 --> 00:22:44,359 Speaker 2: am on my way to prison, and I couldn't wonder 441 00:22:44,359 --> 00:22:47,360 Speaker 2: what my mother was thinking, my kids are thinking. I mean, 442 00:22:47,400 --> 00:22:49,520 Speaker 2: I mean, and they talked about be bad on TV 443 00:22:49,680 --> 00:22:52,160 Speaker 2: the news. I mean, it's like I was someone a murderer. 444 00:22:52,400 --> 00:22:55,520 Speaker 2: Then the newspapers talking like, oh I didn't robe him 445 00:22:55,520 --> 00:22:57,280 Speaker 2: and beat him and did all this. I ain't never 446 00:22:57,320 --> 00:23:00,479 Speaker 2: even touched him, man, And now I'm going to prison. 447 00:23:01,000 --> 00:23:03,320 Speaker 1: But you didn't take this lying down. From what I understand, 448 00:23:03,440 --> 00:23:05,840 Speaker 1: just like on the outside, you went to work. You're 449 00:23:05,840 --> 00:23:08,240 Speaker 1: a worker, that's what you've always done, and now you 450 00:23:08,320 --> 00:23:09,560 Speaker 1: had your life at stake. 451 00:23:10,080 --> 00:23:12,000 Speaker 2: So I had to learn how to do the law work, 452 00:23:12,119 --> 00:23:14,760 Speaker 2: learn how to look up, how to look up cases, 453 00:23:14,800 --> 00:23:16,720 Speaker 2: because I couldn't let that go. I kept thinking in 454 00:23:16,760 --> 00:23:19,479 Speaker 2: my mind, man, I can't let them get away with this. 455 00:23:19,640 --> 00:23:22,080 Speaker 2: You know this can't happen like this. So I just 456 00:23:22,119 --> 00:23:24,480 Speaker 2: went to work. I had an attorney in mister Walker. 457 00:23:24,640 --> 00:23:27,199 Speaker 2: She did the direct appeal, but she already told me 458 00:23:27,240 --> 00:23:30,000 Speaker 2: that if you don't have something blunt, it just turns around, 459 00:23:30,000 --> 00:23:31,840 Speaker 2: it's going to, you know, smack them in the face. 460 00:23:32,119 --> 00:23:34,800 Speaker 2: That they're going to shoot that down. And they did. 461 00:23:35,160 --> 00:23:37,800 Speaker 1: And it's worth noting that the hearing was held in 462 00:23:37,840 --> 00:23:41,520 Speaker 1: front of the same judge, Terry Shoemaker. So now the 463 00:23:41,560 --> 00:23:44,479 Speaker 1: appeal moved on from direct appeal to state post conviction, 464 00:23:44,600 --> 00:23:47,320 Speaker 1: and Dwaine, you were working on your own at that point, 465 00:23:47,440 --> 00:23:50,160 Speaker 1: filing your own motions before John got involved. 466 00:23:50,520 --> 00:23:53,720 Speaker 2: So my best issue was there expert witness. Why didn't 467 00:23:53,720 --> 00:23:56,280 Speaker 2: I have an expert witness? And then the jury to me, 468 00:23:56,400 --> 00:23:58,720 Speaker 2: it wasn't a fair jury. Now I'm a black man, 469 00:23:58,920 --> 00:24:02,400 Speaker 2: Neil cart Why any black jewors? There was forty nine 470 00:24:02,520 --> 00:24:06,040 Speaker 2: prospective jurors and there was only one black juror. When 471 00:24:06,040 --> 00:24:09,320 Speaker 2: they got to the black juror, Shoemaker struck him down, 472 00:24:09,440 --> 00:24:12,360 Speaker 2: the judge himself because he said he knew him when 473 00:24:12,359 --> 00:24:14,840 Speaker 2: he was a prosecutor. So now I'm looking up there me, 474 00:24:15,000 --> 00:24:17,000 Speaker 2: I'm like, man, this can't be right. It can't be fair. 475 00:24:17,240 --> 00:24:19,399 Speaker 1: And while that is a very important issue, one of 476 00:24:19,400 --> 00:24:21,639 Speaker 1: the crux of so much of the injustice in our system, 477 00:24:21,680 --> 00:24:24,119 Speaker 1: it can be very difficult to get traction in court 478 00:24:24,680 --> 00:24:27,680 Speaker 1: rather than the ineffectiveness of your trial counsel, which John 479 00:24:27,960 --> 00:24:30,560 Speaker 1: latched onto when the case fell on his desk. And 480 00:24:30,640 --> 00:24:33,359 Speaker 1: John finally did what your trial attorney simply did not, 481 00:24:33,520 --> 00:24:36,439 Speaker 1: which was to look for a forensic pathologist who was 482 00:24:36,560 --> 00:24:39,720 Speaker 1: not part of the Elkhart machine to review the case. 483 00:24:40,240 --> 00:24:42,800 Speaker 3: And I found someone, a forensic pathologist by the name 484 00:24:43,160 --> 00:24:48,600 Speaker 3: of doctor Thomas Sosio. He was unequivocal that all of 485 00:24:48,600 --> 00:24:53,120 Speaker 3: the injuries suffered by mister Torres had been caused by 486 00:24:53,160 --> 00:24:55,479 Speaker 3: a fall down the steps. He knew from the witness 487 00:24:55,520 --> 00:24:59,240 Speaker 3: testimony that there had been an altercation. He didn't know 488 00:24:59,480 --> 00:25:02,680 Speaker 3: if mister Torres had lost his balance and fallen down 489 00:25:02,680 --> 00:25:04,600 Speaker 3: the steps. He didn't know if mister Torres had been 490 00:25:04,680 --> 00:25:08,440 Speaker 3: pushed down the steps. But he knew that the injuries 491 00:25:08,480 --> 00:25:12,639 Speaker 3: that mister Torres suffered had been caused by the fall, 492 00:25:12,920 --> 00:25:16,000 Speaker 3: not by a beating. And he knew that for several reasons. 493 00:25:16,160 --> 00:25:20,520 Speaker 3: Number one, all of mister Torres's injuries occurred in a 494 00:25:20,560 --> 00:25:24,520 Speaker 3: straight line across his body. So the skull fractures, the 495 00:25:24,560 --> 00:25:30,280 Speaker 3: broken shoulder, the broken ribs, the lacerated liver all occurred 496 00:25:30,440 --> 00:25:35,280 Speaker 3: in a straight line down his body. And to doctor Sosio, 497 00:25:35,359 --> 00:25:38,920 Speaker 3: that indicated that all of those injuries had occurred when 498 00:25:38,960 --> 00:25:42,680 Speaker 3: that side of mister Torres's body hit the pavement. If 499 00:25:42,720 --> 00:25:46,720 Speaker 3: mister Torres had been beaten with a blunt object, doctor 500 00:25:46,720 --> 00:25:52,200 Speaker 3: Sosio would have expected to see injuries on various parts 501 00:25:52,240 --> 00:25:55,320 Speaker 3: of his body, not in a line but more random, 502 00:25:55,800 --> 00:25:58,560 Speaker 3: you know, as if someone had hit him in his 503 00:25:58,640 --> 00:26:01,480 Speaker 3: head there, hit him in his rear there. When someone 504 00:26:01,560 --> 00:26:03,600 Speaker 3: is beaten with an object, you don't see all of 505 00:26:03,600 --> 00:26:06,600 Speaker 3: the injuries in a straight line across the body. They're 506 00:26:06,600 --> 00:26:08,399 Speaker 3: more varied across the body. 507 00:26:08,720 --> 00:26:11,040 Speaker 1: In addition to that, though, there were even more reasons, 508 00:26:11,040 --> 00:26:14,280 Speaker 1: which we mentioned earlier, that the States expert doctor Wagner 509 00:26:14,520 --> 00:26:19,520 Speaker 1: hadn't considered, or just you know, put blinders on and ignored. 510 00:26:19,400 --> 00:26:22,280 Speaker 3: The level of alcohol that was in mister Torres' system. 511 00:26:22,520 --> 00:26:27,119 Speaker 3: The alcoholism, long term had made mister Torres susceptible to 512 00:26:27,320 --> 00:26:32,080 Speaker 3: severe injuries. It had caused osteoporosis, which made his bones 513 00:26:32,119 --> 00:26:35,480 Speaker 3: more susceptible to breaking. It had caused his liver to 514 00:26:35,560 --> 00:26:39,560 Speaker 3: be enlarged and more susceptible to damage. There was only 515 00:26:39,720 --> 00:26:43,399 Speaker 3: one laceration on the skull, which is consistent with the fall. 516 00:26:43,960 --> 00:26:46,080 Speaker 3: If mister Torres had been beat with the bat, doctor 517 00:26:46,119 --> 00:26:49,479 Speaker 3: Sosio would have expected to see more lacerations on the skull. 518 00:26:50,520 --> 00:26:53,960 Speaker 3: And so for all of those reasons, doctor Sosio was 519 00:26:54,440 --> 00:26:57,520 Speaker 3: adamant that his death and his injuries had been caused 520 00:26:57,520 --> 00:26:58,720 Speaker 3: by a fall, not by a beating. 521 00:26:58,880 --> 00:27:01,320 Speaker 1: So you guys were able to get an evidentiary hearing. 522 00:27:01,520 --> 00:27:05,200 Speaker 1: You got an expert whose summation destroyed the state's case. 523 00:27:05,880 --> 00:27:07,639 Speaker 1: And by now, of course, it's all the way up 524 00:27:07,680 --> 00:27:11,679 Speaker 1: to twenty seventeen, and blood spatter analysis had been fully 525 00:27:12,400 --> 00:27:16,320 Speaker 1: debunked and exposed as a junk science, and Judge Shoemaker 526 00:27:16,359 --> 00:27:18,520 Speaker 1: had retired, so he was out of the way. 527 00:27:18,800 --> 00:27:21,040 Speaker 3: The new judge who had been elected to take Judge 528 00:27:21,080 --> 00:27:25,520 Speaker 3: Shoemaker's place, had been a public defender in prior practice, 529 00:27:25,640 --> 00:27:28,200 Speaker 3: and so I was cautiously optimistic that the new judge 530 00:27:28,240 --> 00:27:30,000 Speaker 3: was going to give us a fair shake. But when 531 00:27:30,000 --> 00:27:33,199 Speaker 3: we arrived at the hearing date, the new judge was 532 00:27:33,240 --> 00:27:36,439 Speaker 3: away at the new judge training session, and so, much 533 00:27:36,520 --> 00:27:39,480 Speaker 3: to my surprise, the hearing starts, court is called the 534 00:27:39,640 --> 00:27:43,560 Speaker 3: order and Judge Shoemaker walks out from the chambers and 535 00:27:43,640 --> 00:27:46,320 Speaker 3: sits down on the bench. And that was that was 536 00:27:46,359 --> 00:27:48,760 Speaker 3: an unpleasant surprise as far as I was concerned. 537 00:27:48,880 --> 00:27:51,879 Speaker 1: Yeah, unpleasant to say the least. I mean, he ruled 538 00:27:51,880 --> 00:27:54,240 Speaker 1: that you failed to establish that this new evidence would 539 00:27:54,280 --> 00:27:57,120 Speaker 1: have changed the outcome and trial, and the Indiana Court 540 00:27:57,119 --> 00:28:03,400 Speaker 1: of Appeals upheld the decision, even though this testimony refuted 541 00:28:03,400 --> 00:28:04,320 Speaker 1: the state's. 542 00:28:03,960 --> 00:28:06,439 Speaker 2: Case during the trial. There was no time that they 543 00:28:06,520 --> 00:28:11,240 Speaker 2: hurt anything like that. They were always kept hearing beating, beating, beating, beating. 544 00:28:11,320 --> 00:28:14,159 Speaker 2: And the thing that we needed, all we needed was 545 00:28:14,240 --> 00:28:17,840 Speaker 2: one juror. So who's to say what one juror would 546 00:28:17,840 --> 00:28:18,120 Speaker 2: have said? 547 00:28:19,040 --> 00:28:19,240 Speaker 4: Right? 548 00:28:19,280 --> 00:28:23,080 Speaker 3: So, the question is not does this new evidence prove 549 00:28:23,640 --> 00:28:26,200 Speaker 3: that the jury would have acquitted Dwayne? The question is 550 00:28:26,200 --> 00:28:30,080 Speaker 3: whether it's there's a reasonable probability that this evidence would 551 00:28:30,080 --> 00:28:32,280 Speaker 3: have made a difference to at least one juror. So 552 00:28:32,560 --> 00:28:35,119 Speaker 3: Judge Shoemaker and the Indiana Court of Appeals were applying 553 00:28:35,160 --> 00:28:38,120 Speaker 3: a much more stringent standard than what the law calls for. 554 00:28:38,360 --> 00:28:41,400 Speaker 1: Not only that, but Shoemaker also stuck his head right 555 00:28:41,440 --> 00:28:44,080 Speaker 1: in the sand when Cliff Williams took the stand to 556 00:28:44,200 --> 00:28:45,880 Speaker 1: admit his ineffectiveness. 557 00:28:46,160 --> 00:28:48,680 Speaker 3: Cliff Williams was still with us at the time that 558 00:28:48,720 --> 00:28:51,760 Speaker 3: we presented our case to Judge Shoemaker, and he testified 559 00:28:52,560 --> 00:28:56,960 Speaker 3: that he never deposed the state's experts, He never tried 560 00:28:57,000 --> 00:29:00,080 Speaker 3: to consult with an expert of his own, and he 561 00:29:00,080 --> 00:29:03,000 Speaker 3: didn't have any reasons for that. It wasn't a matter 562 00:29:03,040 --> 00:29:05,480 Speaker 3: of strategy, it was just something that he had overlooked, 563 00:29:05,840 --> 00:29:07,680 Speaker 3: and he admitted it. He admitted that he had made 564 00:29:07,720 --> 00:29:11,120 Speaker 3: a mistake, and that's something that Judge Shoemaker and the 565 00:29:11,160 --> 00:29:14,360 Speaker 3: Indiana courts paid insufficient attention to, and it's something that 566 00:29:14,400 --> 00:29:16,080 Speaker 3: the federal courts really relied on. 567 00:29:16,600 --> 00:29:18,960 Speaker 1: So now you had to file your federal haby's appeal 568 00:29:18,960 --> 00:29:21,720 Speaker 1: in twenty eighteen, and you finally didn't have to deal 569 00:29:21,760 --> 00:29:22,840 Speaker 1: with Shoemaker anymore. 570 00:29:22,960 --> 00:29:24,760 Speaker 2: I said, well, maybe we can get a break now 571 00:29:24,800 --> 00:29:26,880 Speaker 2: now that we're not in front of him. It's out 572 00:29:26,880 --> 00:29:30,040 Speaker 2: of his court and it's out of Elkhart period. 573 00:29:30,480 --> 00:29:33,920 Speaker 3: And what you have to remember is that Dwayne was 574 00:29:34,000 --> 00:29:37,479 Speaker 3: on his own. I don't practice in federal courts. Dwayne 575 00:29:37,520 --> 00:29:40,680 Speaker 3: was not represented by an attorney. He was representing himself, 576 00:29:40,960 --> 00:29:47,920 Speaker 3: and his federal habeas petition was dismissed as untimely. Dwayne 577 00:29:47,960 --> 00:29:51,320 Speaker 3: by himself, got it back on track, got his petition 578 00:29:51,800 --> 00:29:56,200 Speaker 3: back in front of district court judge. Then, working by himself, 579 00:29:56,560 --> 00:29:59,280 Speaker 3: he convinces the judge that he's entitled to a new trial, 580 00:30:00,160 --> 00:30:03,200 Speaker 3: that the Indiana courts have got it wrong. He's not 581 00:30:03,240 --> 00:30:06,160 Speaker 3: a lawyer, he's in prison. He's having to do all 582 00:30:06,160 --> 00:30:08,640 Speaker 3: this by mail, and he made it happen for himself. 583 00:30:19,640 --> 00:30:21,920 Speaker 1: This brings us up to December of twenty twenty and 584 00:30:21,960 --> 00:30:26,560 Speaker 1: you're going up in front of Judge Philip Simon. Judge 585 00:30:26,560 --> 00:30:29,560 Speaker 1: Simon refused the case. Everything you brought up in your 586 00:30:29,600 --> 00:30:32,320 Speaker 1: appeal and all the ways the trial went wrong, which 587 00:30:32,320 --> 00:30:37,000 Speaker 1: are considerable as we've already seen. And then on top 588 00:30:37,040 --> 00:30:40,800 Speaker 1: of that, he agrees that Judge Shoemaker applied the wrong 589 00:30:40,920 --> 00:30:43,880 Speaker 1: legal standard when he denied your petition for a new trial. 590 00:30:44,000 --> 00:30:46,520 Speaker 3: If you apply the right standard, it's pretty clear that 591 00:30:46,640 --> 00:30:50,800 Speaker 3: doctor Sosio's testimony there's a reasonable probability it would havemit 592 00:30:50,840 --> 00:30:52,440 Speaker 3: a difference for the jury. 593 00:30:52,240 --> 00:30:55,920 Speaker 1: And it certainly shows that there was in effective assistance 594 00:30:55,960 --> 00:30:58,920 Speaker 1: of counsel in Dwayne's case. So at this point things 595 00:30:58,920 --> 00:31:00,560 Speaker 1: were finally starting to look up. 596 00:31:00,800 --> 00:31:04,280 Speaker 2: Well, yeah, man, I start to see daylight again. I 597 00:31:04,320 --> 00:31:07,240 Speaker 2: mean I might, I might have a chance. But then 598 00:31:07,280 --> 00:31:10,240 Speaker 2: you know, they got to go through the appeal process 599 00:31:10,240 --> 00:31:12,720 Speaker 2: because they get the same their sade gets the same 600 00:31:12,760 --> 00:31:15,200 Speaker 2: appeals that we do. So now I'm going my way 601 00:31:15,200 --> 00:31:17,360 Speaker 2: to the Seventh Circuit and this is where you got 602 00:31:17,400 --> 00:31:21,280 Speaker 2: three judges. So I didn't know really what to expect 603 00:31:21,280 --> 00:31:23,160 Speaker 2: there because so when you know I wouldn't know a 604 00:31:23,240 --> 00:31:25,680 Speaker 2: federal lawyer. That's when Michael took over. 605 00:31:26,120 --> 00:31:30,160 Speaker 1: And that would be Michael Hosbrook, director of Indiana University 606 00:31:30,240 --> 00:31:34,000 Speaker 1: Morror School of Law's Federal Habeas program. And as it happens, 607 00:31:34,040 --> 00:31:39,080 Speaker 1: he's right here with us today. Michael, it's about time. Welcome. 608 00:31:39,320 --> 00:31:41,320 Speaker 1: I'm so glad to welcome you to a wrongful conviction. 609 00:31:41,840 --> 00:31:42,640 Speaker 4: Thanks Jason. 610 00:31:43,000 --> 00:31:44,840 Speaker 1: We also have Alex Dolan, who at the time was 611 00:31:44,880 --> 00:31:47,080 Speaker 1: one of your law students, I understand, and then went 612 00:31:47,120 --> 00:31:50,720 Speaker 1: on to become a public defender. Alex, Welcome, Thanks Jason. 613 00:31:50,920 --> 00:31:52,960 Speaker 1: So let's pick up the story here with you guys. 614 00:31:52,960 --> 00:31:55,240 Speaker 1: It's twenty twenty and Dwayne is getting ready to file 615 00:31:55,280 --> 00:31:57,920 Speaker 1: his appeal, the federal Habey's appeal. How did you two 616 00:31:58,000 --> 00:31:58,680 Speaker 1: get involved? 617 00:31:58,920 --> 00:32:01,560 Speaker 4: It was sort of an insight job. I got an 618 00:32:01,680 --> 00:32:06,440 Speaker 4: RSS feed of everything that's filed in the Southern and 619 00:32:06,480 --> 00:32:09,320 Speaker 4: Northern districts of Indiana, and I look at them every day. 620 00:32:09,360 --> 00:32:12,640 Speaker 4: That's that's thirteen hundred filings, but I know which are 621 00:32:12,640 --> 00:32:18,080 Speaker 4: the habeas cases. And I saw Judge Simon's order granting 622 00:32:18,200 --> 00:32:22,160 Speaker 4: Dwayne relief and said to myself, well, the state's going 623 00:32:22,240 --> 00:32:26,600 Speaker 4: to appeal that. And I arranged for the Seventh Circuit 624 00:32:26,840 --> 00:32:28,440 Speaker 4: to appoint us in the case. 625 00:32:28,720 --> 00:32:32,239 Speaker 5: Michael called me not long after the Seventh Circuit had 626 00:32:32,240 --> 00:32:34,560 Speaker 5: appointed us and he told me, Hey, I have this 627 00:32:34,720 --> 00:32:37,160 Speaker 5: case and I want you to argue for it. And 628 00:32:37,240 --> 00:32:39,280 Speaker 5: as we went through it and I was reading everything 629 00:32:39,320 --> 00:32:44,120 Speaker 5: about Dwayne's case, I remember thinking what an injustice it was, 630 00:32:44,480 --> 00:32:48,000 Speaker 5: and how frustrated I was, and how at that point 631 00:32:48,040 --> 00:32:50,440 Speaker 5: he was basically losing every step of the way in 632 00:32:50,480 --> 00:32:54,280 Speaker 5: the state courts due to some misapplication of the law, 633 00:32:54,480 --> 00:32:56,480 Speaker 5: misunderstanding of the facts. 634 00:32:56,480 --> 00:33:02,320 Speaker 4: From the start, Cliff Williams, Dwayne's trial lawyer, misunderstood the 635 00:33:02,360 --> 00:33:05,440 Speaker 4: cases being about the bat. As we put in our brief, 636 00:33:06,000 --> 00:33:09,320 Speaker 4: this case was never about the bat. Then, one of 637 00:33:09,320 --> 00:33:11,280 Speaker 4: the lines that sticks with me from this case is 638 00:33:12,320 --> 00:33:16,480 Speaker 4: doctor sozio on Cross saying to me, it's a fall 639 00:33:16,600 --> 00:33:17,160 Speaker 4: all day. 640 00:33:17,760 --> 00:33:20,080 Speaker 5: And if I could just talk about Dean Marx for 641 00:33:20,120 --> 00:33:22,720 Speaker 5: a second and sort of this category of what they 642 00:33:22,800 --> 00:33:27,320 Speaker 5: call blood splatter science. Dean Marx himself had actually been 643 00:33:27,360 --> 00:33:31,120 Speaker 5: involved in another wrongful conviction case of a man named 644 00:33:31,200 --> 00:33:35,000 Speaker 5: David Cam from southern Indiana who was accused of murdering 645 00:33:35,000 --> 00:33:38,920 Speaker 5: his wife and his children. Mister Cam had a significant defense. 646 00:33:39,120 --> 00:33:41,400 Speaker 5: But one of the reasons why he was convicted was 647 00:33:41,400 --> 00:33:44,840 Speaker 5: his testimony of a blood sploider expert, and Dean Marx 648 00:33:44,960 --> 00:33:47,680 Speaker 5: was on that panel of experts who made that determination. 649 00:33:47,880 --> 00:33:50,400 Speaker 5: So not only is this guy a junk scientist, but 650 00:33:50,440 --> 00:33:54,000 Speaker 5: he's actually been involved in a different case that that 651 00:33:54,200 --> 00:33:55,560 Speaker 5: was also a wrongful conviction. 652 00:33:56,000 --> 00:34:00,640 Speaker 4: So Judge Simon absolutely dismantled in his opinion the state's 653 00:34:00,680 --> 00:34:04,520 Speaker 4: case against Dune and then Alex in the Seventh Circuit. 654 00:34:04,880 --> 00:34:08,440 Speaker 4: I mean, I cannot tell you how terrific his preparation 655 00:34:08,600 --> 00:34:11,840 Speaker 4: and presentation this was. He laid out all the pieces 656 00:34:12,120 --> 00:34:16,280 Speaker 4: of the state's dismantled case and showed the Seventh Circuits 657 00:34:16,320 --> 00:34:18,759 Speaker 4: that they could not be put back together again. But 658 00:34:18,880 --> 00:34:22,680 Speaker 4: Judge Kirsch, who dissented in the Seventh Circuit opinion, was 659 00:34:22,800 --> 00:34:28,719 Speaker 4: convinced that all the injuries to Angel Torres were the 660 00:34:28,760 --> 00:34:33,320 Speaker 4: result of a severe beating, and he misunderstood the case. 661 00:34:34,360 --> 00:34:38,200 Speaker 4: The state never argued that the rib fractures and the 662 00:34:38,680 --> 00:34:43,440 Speaker 4: damage to Torres's liver, for example, were the result of 663 00:34:43,440 --> 00:34:46,560 Speaker 4: a beating. The state's case was only that he'd been 664 00:34:46,680 --> 00:34:50,200 Speaker 4: hit over the head. So you have Cliff Williams. He 665 00:34:50,239 --> 00:34:52,840 Speaker 4: doesn't understand that it's not about the bat. You have 666 00:34:53,000 --> 00:34:57,719 Speaker 4: the Indiana Court of Appeals misunderstanding what undetermined means, and 667 00:34:57,760 --> 00:35:01,800 Speaker 4: then you have Judge Kirsch misunderstands that this was a beating. 668 00:35:02,080 --> 00:35:05,120 Speaker 5: There was one moment where I got to very forcefully 669 00:35:05,160 --> 00:35:12,799 Speaker 5: say no, no to him misstating a fact. And you know, 670 00:35:13,000 --> 00:35:17,920 Speaker 5: to me, from the public defender mindset, the best thing 671 00:35:17,960 --> 00:35:21,040 Speaker 5: that I can ever do for a client is push 672 00:35:21,239 --> 00:35:27,239 Speaker 5: back when somebody in authority is incorrect or attempting to, 673 00:35:27,960 --> 00:35:29,760 Speaker 5: you know, violate my client's' rights. 674 00:35:30,040 --> 00:35:31,960 Speaker 1: So after Alex gets up in front of this three 675 00:35:32,080 --> 00:35:35,840 Speaker 1: judge panel arguing all the points that we've been talking about, Dwayne, 676 00:35:36,000 --> 00:35:40,359 Speaker 1: you tell us what ultimately happens. We win, right, They 677 00:35:40,480 --> 00:35:42,680 Speaker 1: actually upheld Judge Simon's ruling. 678 00:35:42,840 --> 00:35:46,120 Speaker 2: That's right that there should have been another expert witness 679 00:35:46,239 --> 00:35:48,279 Speaker 2: on our side. The jury should have hurt, you know, 680 00:35:48,400 --> 00:35:49,120 Speaker 2: something different. 681 00:35:49,200 --> 00:35:50,920 Speaker 1: So you've had your victory in the seventh circle. But 682 00:35:51,000 --> 00:35:52,719 Speaker 1: now they have an opportunity to take this to the 683 00:35:52,840 --> 00:35:57,040 Speaker 1: US Supreme Court or potentially retry Dwayne if they chose to. 684 00:35:57,239 --> 00:36:00,920 Speaker 1: And again, this is Vicky Becker. She'd been willing to 685 00:36:00,920 --> 00:36:03,520 Speaker 1: do a lot, and so they had sixty days to 686 00:36:03,600 --> 00:36:06,239 Speaker 1: decide or you'd be released, which would have been just 687 00:36:06,280 --> 00:36:10,479 Speaker 1: before election day twenty twenty two, when Becker was running unopposed, which, 688 00:36:10,520 --> 00:36:13,719 Speaker 1: by the way, someone needs to do something about that 689 00:36:13,880 --> 00:36:16,160 Speaker 1: next time around. Somebody, if you're out there and you're 690 00:36:16,160 --> 00:36:18,880 Speaker 1: a listener and you're a lawyer and you're thinking about running, 691 00:36:20,080 --> 00:36:23,319 Speaker 1: give us a call. At wrongful conviction, we got you. 692 00:36:23,680 --> 00:36:27,040 Speaker 1: But that's a topic for another time. The point is here, 693 00:36:27,840 --> 00:36:30,759 Speaker 1: she had nothing to lose or gain by releasing him 694 00:36:30,920 --> 00:36:32,239 Speaker 1: or choosing to retry you. 695 00:36:32,880 --> 00:36:36,000 Speaker 4: I think it was Friday afternoon before we were going 696 00:36:36,040 --> 00:36:38,680 Speaker 4: to go up the following Monday night, and I saw 697 00:36:38,960 --> 00:36:41,960 Speaker 4: Vicky Becker had filed. Noticed they weren't going to reprosecute him. 698 00:36:42,040 --> 00:36:45,319 Speaker 2: So here's two officers come up to Maya door. I'm 699 00:36:45,360 --> 00:36:49,080 Speaker 2: sitting in a sale. They talking about pack up. I said, 700 00:36:49,120 --> 00:36:51,239 Speaker 2: pack up for what you got to leave you going? 701 00:36:51,280 --> 00:36:53,520 Speaker 2: I said, go on where? And they wouldn't say nothing. 702 00:36:53,920 --> 00:36:55,520 Speaker 2: So I said, well, man, don't you touch nothing in 703 00:36:55,520 --> 00:36:57,720 Speaker 2: the sale. So I go down talk to the sergeant. 704 00:36:57,760 --> 00:37:00,319 Speaker 2: I said where am I going? He said you going home? 705 00:37:00,440 --> 00:37:02,879 Speaker 2: I said what I said? For real? He said, yeah, 706 00:37:02,880 --> 00:37:03,920 Speaker 2: you've been set free. 707 00:37:04,400 --> 00:37:09,040 Speaker 1: So you've only been out since just recently November twenty 708 00:37:09,080 --> 00:37:12,520 Speaker 1: twenty two. How are things going for you. I understand 709 00:37:12,520 --> 00:37:14,080 Speaker 1: it's been a little rough finding work. 710 00:37:14,520 --> 00:37:18,040 Speaker 2: Well, because that's on my record seeing a lot of 711 00:37:18,120 --> 00:37:20,680 Speaker 2: jobs out here? Now, is that the decent ones? You 712 00:37:20,760 --> 00:37:23,120 Speaker 2: got to get background checks. And when they run the 713 00:37:23,160 --> 00:37:25,279 Speaker 2: background check, the first thing they go they see this 714 00:37:25,440 --> 00:37:27,560 Speaker 2: sixty year old man that's been all of work for 715 00:37:27,640 --> 00:37:31,720 Speaker 2: so long, and Danny comes up. He was convicted of murder. 716 00:37:32,920 --> 00:37:34,960 Speaker 2: So that doesn't look good on the background check. 717 00:37:35,160 --> 00:37:37,200 Speaker 1: Well, maybe there's someone out there listening who might have 718 00:37:37,200 --> 00:37:38,719 Speaker 1: a job for you. What kind of gear are you 719 00:37:38,800 --> 00:37:39,239 Speaker 1: looking for? 720 00:37:39,680 --> 00:37:42,480 Speaker 2: Well, anything in the factory, something, you know, something positive, 721 00:37:42,840 --> 00:37:44,640 Speaker 2: something to keep me busy right now, just so I 722 00:37:44,640 --> 00:37:46,680 Speaker 2: can get back on my feet. If they're out there 723 00:37:46,680 --> 00:37:49,040 Speaker 2: in the Soalbin area, you sure I'll take the help. 724 00:37:49,080 --> 00:37:50,480 Speaker 2: I'm not too proud to you anyhow. 725 00:37:50,800 --> 00:37:53,120 Speaker 1: Great. Well, yeah, if there's anyone out there listening who 726 00:37:53,120 --> 00:37:55,840 Speaker 1: could put Dwayne onto a job lead, we'd really appreciate it, 727 00:37:55,880 --> 00:37:58,160 Speaker 1: of course. And you know, one of our listeners whatever 728 00:37:58,239 --> 00:38:00,560 Speaker 1: avid listeners, and one of our great sponsors is Stephen 729 00:38:00,600 --> 00:38:03,719 Speaker 1: Simon of the Indiana Pacers Organization he's one of the 730 00:38:03,760 --> 00:38:07,080 Speaker 1: owners of the team. And Steven, if you're listening, this 731 00:38:07,120 --> 00:38:09,319 Speaker 1: is a great guy here, you know, and maybe you 732 00:38:09,360 --> 00:38:12,600 Speaker 1: have something for him. So I'm talking directly to you, 733 00:38:13,239 --> 00:38:15,440 Speaker 1: and yeah, we appreciate everything you do for us, and 734 00:38:15,480 --> 00:38:17,000 Speaker 1: we'll have links to get in touch with Dwayne in 735 00:38:17,040 --> 00:38:19,359 Speaker 1: our bio. So thanks so much in advance. And now 736 00:38:19,400 --> 00:38:20,799 Speaker 1: we come to the part of the show that I 737 00:38:20,840 --> 00:38:23,560 Speaker 1: love the most, and of course it's called closing arguments, 738 00:38:23,560 --> 00:38:25,799 Speaker 1: and this is where I turn off my MI, kick 739 00:38:25,880 --> 00:38:28,240 Speaker 1: back in my chair, close my eyes and just listen 740 00:38:28,600 --> 00:38:31,160 Speaker 1: to whatever else you all have to say. Let's kick 741 00:38:31,200 --> 00:38:33,960 Speaker 1: it off with Michael Osbrook and Alex Dolan and then 742 00:38:33,960 --> 00:38:36,880 Speaker 1: of course John Chenna with and then to you Dwaine. 743 00:38:37,080 --> 00:38:38,560 Speaker 1: So Michael, why don't you go first? 744 00:38:38,719 --> 00:38:42,640 Speaker 4: I think what I want to say in closing is, again, 745 00:38:42,719 --> 00:38:47,160 Speaker 4: this should have ended in Judge Shoemaker's court, and the 746 00:38:47,280 --> 00:38:55,479 Speaker 4: delay and getting Dwayne released is terrible, and obviously we're 747 00:38:55,600 --> 00:39:00,840 Speaker 4: incredibly happy at it it worked out the end, but 748 00:39:01,719 --> 00:39:04,000 Speaker 4: in a way it didn't to me. 749 00:39:04,320 --> 00:39:11,920 Speaker 5: There are injustices happening in trial courtrooms every day. As 750 00:39:11,920 --> 00:39:14,720 Speaker 5: somebody who's been at this trial level and has seen 751 00:39:14,800 --> 00:39:20,959 Speaker 5: what goes on. There might be dozens of people in courtrooms, 752 00:39:21,200 --> 00:39:24,520 Speaker 5: hundreds of people, thousands of people across the country who 753 00:39:24,520 --> 00:39:29,120 Speaker 5: are going through this process and are being wrongfully prosecuted 754 00:39:29,600 --> 00:39:32,959 Speaker 5: ultimately convicted for a crime they didn't commit. It's really 755 00:39:33,000 --> 00:39:37,880 Speaker 5: important to be vigilant about stuff like that. Anytime that 756 00:39:38,000 --> 00:39:40,520 Speaker 5: somebody is at home and they're watching the news and 757 00:39:40,560 --> 00:39:45,160 Speaker 5: they see somebody accused of a terrible crime, my best 758 00:39:45,200 --> 00:39:49,440 Speaker 5: piece of advice is to never jump to conclusions. So 759 00:39:49,600 --> 00:39:51,879 Speaker 5: I would just encourage people to always have an open 760 00:39:51,920 --> 00:39:54,920 Speaker 5: mind when somebody is charged with the crime. Charges are 761 00:39:54,920 --> 00:39:58,040 Speaker 5: not convictions, and you never know if they have the 762 00:39:58,120 --> 00:40:02,000 Speaker 5: right person or not, so it's extreme important to be skeptical. 763 00:40:02,320 --> 00:40:06,560 Speaker 3: I just want to emphasize that Dwayne deserves all the 764 00:40:06,600 --> 00:40:10,439 Speaker 3: credit in the world for going into federal court by 765 00:40:10,560 --> 00:40:14,319 Speaker 3: himself and winning himself a new trial. I have all 766 00:40:14,360 --> 00:40:18,160 Speaker 3: the admiration and respect for what he did. You know, 767 00:40:18,200 --> 00:40:20,400 Speaker 3: I have to say that with Judge Simon made his 768 00:40:20,480 --> 00:40:23,480 Speaker 3: decision and I heard about it, I was thrilled for him, 769 00:40:23,640 --> 00:40:25,640 Speaker 3: but at the same time, it was sad to me 770 00:40:25,840 --> 00:40:29,360 Speaker 3: that it had taken so long to get to that point. 771 00:40:29,680 --> 00:40:35,080 Speaker 3: Justice delayed is justice denied and it's a continuing injustice 772 00:40:35,120 --> 00:40:38,120 Speaker 3: that Dwayne is having trouble finding work because of a 773 00:40:38,200 --> 00:40:42,000 Speaker 3: conviction for a crime that he's been exonerated of and 774 00:40:42,040 --> 00:40:44,000 Speaker 3: that never existed in the first place. 775 00:40:45,120 --> 00:40:46,839 Speaker 2: First of all, I just like to say thank you, man, 776 00:40:46,920 --> 00:40:48,520 Speaker 2: just thank you for this time. Thank you for a 777 00:40:48,640 --> 00:40:52,239 Speaker 2: chance for y'all to give me a chance to say 778 00:40:52,280 --> 00:40:55,640 Speaker 2: a little bit about what happened. But a lot still 779 00:40:55,680 --> 00:40:57,560 Speaker 2: needs to be done, man, because there's a lot of 780 00:40:57,560 --> 00:41:00,320 Speaker 2: guys that are still in prison that it didn't commit 781 00:41:00,360 --> 00:41:02,560 Speaker 2: a crime, that are just as innocent as I was. 782 00:41:03,280 --> 00:41:07,720 Speaker 2: And our justice system, man, is it works for those 783 00:41:08,320 --> 00:41:10,720 Speaker 2: that are capable and able to get the right people 784 00:41:10,719 --> 00:41:12,960 Speaker 2: to work with them. Other than that, man, our system 785 00:41:13,040 --> 00:41:16,160 Speaker 2: is not right, man, It's not right because they're putting 786 00:41:16,160 --> 00:41:18,600 Speaker 2: people in prison. Some guys don't even get a fair shake, 787 00:41:19,000 --> 00:41:21,799 Speaker 2: just like what happened in my trial. How many other 788 00:41:21,840 --> 00:41:25,239 Speaker 2: people are in prison and locked up because they didn't 789 00:41:25,239 --> 00:41:28,360 Speaker 2: have an expert witness on their side. And this is 790 00:41:28,440 --> 00:41:30,319 Speaker 2: the reason why I say something needs to be done. 791 00:41:30,440 --> 00:41:32,400 Speaker 2: But I thank you for my time, and I thank. 792 00:41:32,239 --> 00:41:41,880 Speaker 1: You, thank you for listening to Wrawful Conviction Special thanks 793 00:41:41,880 --> 00:41:45,920 Speaker 1: to our Wonderful production team Connor hall, Any Chelsea, Jeff Clyburn, 794 00:41:45,960 --> 00:41:49,400 Speaker 1: and Kevin Watis, with research by Lyla Robinson. The music 795 00:41:49,400 --> 00:41:52,280 Speaker 1: in this production was supplied by three time OSCAR nominated 796 00:41:52,280 --> 00:41:55,480 Speaker 1: composer Jay Ralph. Make sure to follow us on Instagram 797 00:41:55,520 --> 00:41:59,480 Speaker 1: at Wrawful Conviction, on Facebook at Wrongful Conviction Podcast, and 798 00:41:59,560 --> 00:42:03,280 Speaker 1: on Twitter at wrong Conviction, as well as at Lava 799 00:42:03,320 --> 00:42:06,720 Speaker 1: for Good. On all three platforms, you can also follow 800 00:42:06,800 --> 00:42:10,880 Speaker 1: on TikTok and Instagram at its Jason Flamm. Wrongful Conviction 801 00:42:11,160 --> 00:42:14,200 Speaker 1: is a production of Lava for Good Podcasts in association 802 00:42:14,440 --> 00:42:17,640 Speaker 1: with Signal Company Number one