Speaker 1: At ten pm on September third, two thousand and eight,
Speaker 1: forty six year old Dwayne Dunn returned to his Elkhart,
Speaker 1: Indiana apartment. He joined his girlfriend, Litha Sims, and their
Speaker 1: next door neighbor, sixty year old Angel Torres, who were
Speaker 1: having a few beers. The men's friendly conversation eventually turned
Speaker 1: into an argument, and Angel pulled out a bat. It
Speaker 1: should have ended when Duane and Litha left Angel's apartment,
Speaker 1: but a few minutes later, Dwayne and Angel found each
Speaker 1: other again on their shared second story deck, abutted by
Speaker 1: a rickety set of stairs. Angel began swinging the bat
Speaker 1: at Duane, who was overheard telling Angel to stop, just
Speaker 1: before a series of audible thumps and thuds the sounds
Speaker 1: of Angel falling down the stairs. Police soon arrived to
Speaker 1: find Duane hovering over Angel as blood began to pool.
Speaker 1: He was rushed to the hospital, where he succumbed to
Speaker 1: his injuries a few days later. For two years, Duane
Speaker 1: swore in police statements and again at trial that he
Speaker 1: had neither pushed Angel Torres nor beaten at the bottom
Speaker 1: of those stairs. Yet the state's expert witnesses disagreed. Which
Speaker 1: appeared to be ironclad proof of Dwayne Dunn's guilt. But
Speaker 1: this is wrongful conviction. Welcome back to ronful Conviction. Today,
Speaker 1: we're gonna go back to Elkhart County, Indiana, a place
Speaker 1: once known as the RV capital of the world, but
Speaker 1: after what we've seen going on there, it could arguably
Speaker 1: be called the per capita wrongful conviction capital of the world.
Speaker 1: We're gonna link some of the Elkhart cases we've covered
Speaker 1: so far in the episode bio. Not surprisingly, many of
Speaker 1: the same bad actors and troubling patterns are present once
Speaker 1: again in the case of Dwayne Dunn. And Dwayne, welcome
Speaker 1: to the show. Thank you. You know you got caught
Speaker 1: up in the Elkhard system, convicted for a murder that
Speaker 1: never happened, Right, People always like roll their eyes, like,
Speaker 1: what do you mean the crime never happened. It never happened.
Speaker 1: A man named Angel Torres did, however, tragically lose his life.
Speaker 1: That's true, but that tragedy did not need to be
Speaker 1: compounded by yet another. And with us to cover this
Speaker 1: crazy story is an Indiana Deputy State Public defender. Dwayne's
Speaker 1: post conviction attorney, John Chennawith. So, John, welcome to the show.
Speaker 1: Thank you, and John, You're not the only person responsible
Speaker 1: for Dwayne's freedom, least of which is Dwayne, who had
Speaker 1: done a lot of pro say litigant work on his own.
Speaker 1: But we'll also be joined later on by two more
Speaker 1: attorneys who fought for Dwayne in federal court, the director
Speaker 1: of the Indiana University School of Law Federal habeas Project,
Speaker 1: Michael Osbrook, and a public defender who was Michael's student
Speaker 1: at the time, Alex Doland, who Michael had tapped to
Speaker 1: handle oral arguments for Dwayne and ultimately was successful. So
Speaker 1: we're looking forward to speaking with them as well. But
Speaker 1: before we get into any of that, before your friend
Speaker 1: Angel's tragic demise, Dwayne, you had been leading an honorable
Speaker 1: life by anybody's definition, and you weren't originally from the
Speaker 1: Elkhart area, right. I grew up in Inniapolis, went to
Speaker 1: George Washington High School and liked it, playing football, fishing,
Speaker 1: just stuff like that. Then I came to Elkhart later
Speaker 1: after I graduated and come up to Elkhart to work
Speaker 1: at the jobs. Back then, you can quit a job
Speaker 1: and go get a job the same day. So you
Speaker 1: were working in the RV industry. Yeah, RB trailers, tipping
Speaker 1: and receiving all that forkliff. I used to move those
Speaker 1: sidewalls for RBS. The big RBS used to move the walls,
Speaker 1: the roof and the floors, all the just working and
Speaker 1: raising my family. Yep, you and your girlfriend Leatha SAMs
Speaker 1: were raising two kids. And so in two thousand and eight,
Speaker 1: you're forty six years old and you're living an apartment
Speaker 1: building in Elkhart and Angel Torres lived in the apartment
Speaker 1: next door where both of your second story apartments shared
Speaker 1: at deck and the same rickety set of stairs leading
Speaker 1: up to or down from it. That's right, it's the
Speaker 1: normal stair. It's like say, if you're going up to
Speaker 1: a second floor apartment. But the railing was loose wooden stairs,
Speaker 1: and you know, we was always putting something on because
Speaker 1: we were scared for the little kids when they were
Speaker 1: up there, that they were going to fall through the railing.
Speaker 1: So I had to get some other kind of fencing
Speaker 1: that put up through there, and the metal poles were broke.
Speaker 1: Sounds pretty dicey, but okay, so you will you do guys? Friends?
Speaker 1: Oh yeah, well, we used to hang out, sit out
Speaker 1: on the porch, drink beer. Sometime I'll have cookouts. He
Speaker 1: would come over sometime. He would cook come over, just
Speaker 1: doing navally things okay, and so on this particular night,
Speaker 1: the night of September thirty, two thousand and eight, what happened.
Speaker 1: Went out to walk the dog and came back. It
Speaker 1: was it was in the evening. It was late, probably
Speaker 1: around ten, and for some reason I went over his
Speaker 1: house and I don't know if he was just drunk
Speaker 1: or what, and he got upset, got mad and asked
Speaker 1: me to leave. So I left, and then he would
Speaker 1: to go get his baseball bat of something. We tussled
Speaker 1: a little while and I left went in the house.
Speaker 1: For some reason. I just came back out on the
Speaker 1: porch and yeah, I guess he seen me. He comes
Speaker 1: out on the porch, he had the bat in his hand.
Speaker 1: He reached and slapped me across the bat with the bat.
Speaker 1: I said, man, you hit me with that bat again.
Speaker 1: We're gonna have a problem. And he reached the go
Speaker 1: hit again, and when I turned, he tumbled backwards down
Speaker 1: the stairs. He hit his head a couple of times
Speaker 1: going down the stairs. And when I seen him hit
Speaker 1: the bottom. I was like, man, damn you all right?
Speaker 1: And he didn't say nothing. So I walked down the
Speaker 1: stairs to go check on him. And when I checked
Speaker 1: on him, I was trying to step over the blood,
Speaker 1: but it was not doctor do so I shook him
Speaker 1: see if he had moved. He didn't move. I came
Speaker 1: back upstairs. Lisa said, what happened? I said, he tumbled
Speaker 1: down the stairs. He fell, and then Willie came out.
Speaker 1: He got on the cell phone and he called the police.
Speaker 1: And Willie as lead the Sun a teenager at the
Speaker 1: time who also cased by the name of Jamar. So
Speaker 1: then what happened? The man him walked down the stairs,
Speaker 1: went around his body, and we stood on the street
Speaker 1: and I checked on him a couple of times, and
Speaker 1: then I would walk to the edge of the street
Speaker 1: to see if the police were coming. One police offer
Speaker 1: came ass and kept going, maybe another half a minute
Speaker 1: or so later. Then one come up to side street.
Speaker 1: He stopped and we waved him on. Then he came
Speaker 1: and pored over. Then they went to check it on him,
Speaker 1: asked me what was going on, what had happened? And
Speaker 1: all this there and took pictures and all that so
Speaker 1: when the police arrive at the scene, the paramedics are
Speaker 1: called and mister Torres is taken to the hospital for treatment.
Speaker 1: Some investigators from the police department arrive at the scene,
Speaker 1: They take photos, they collect evidence. So he was very
Speaker 1: severely injured and was taken off life support a couple
Speaker 1: of days after he was taken to the hospital. Back
Speaker 1: at the crime scene, the investigators when they first arrived
Speaker 1: had found a baseball bat underneath mister Torres's body, which
Speaker 1: they collected his evidence, and they spoke to the witnesses,
Speaker 1: and they spoke to Dwayne. They found some blood spatter
Speaker 1: at the scene which they photographed. Let's talk about out
Speaker 1: that blood spatter. From what I've read about your case,
Speaker 1: the States theory eventually became that Dwayne had beaten him
Speaker 1: with an unknown object after the fall, and there were
Speaker 1: what were categorized as cast off patterns on surrounding objects
Speaker 1: and surfaces from the alleged repeated swings from this alleged
Speaker 1: unidentified bludgeoning tool. Now, curiously, though there was no cast
Speaker 1: off on your clothing, when any body would know the
Speaker 1: most amateur sleuth in the world would know that you
Speaker 1: would have been covered in blood had you repeatedly struck Angel,
Speaker 1: But of course that was not the case, nothing like it.
Speaker 1: They found a little bit of blood on Duyne's shoe
Speaker 1: and a little bit of blood on the inside of
Speaker 1: the shorts that you were wearing. Yeah, and there was
Speaker 1: no doubt that Duayne had been at the bottom of
Speaker 1: the staircase trying to help mister Torres, and mister Torres
Speaker 1: was bleeding at that time, so if blood ended up
Speaker 1: on Duayne, that would not have been surprising. So not
Speaker 1: only is that blood easily explainable, but so are the
Speaker 1: spatter patterns. And as it turns out, while Angel Torres's
Speaker 1: blood was in fact pulling on the ground, quite a
Speaker 1: few people had trampled through the scene. Yeah, the paramedics
Speaker 1: walked through it, all the police were in it. They
Speaker 1: took the baseball batters and picked it up and leaned
Speaker 1: it up against the car. And the bat was the
Speaker 1: only freaking thing they ever found. As we mentioned, it
Speaker 1: was under his body with no spatter, and a thorough
Speaker 1: search was conducted. There were no other implements on the scene.
Speaker 1: So anyway, the police brought you in for questioning. The
Speaker 1: first two detectives that were on the case They kept
Speaker 1: me down there, and they went to every place I
Speaker 1: told him I went. They went to go check and
Speaker 1: they came back and they said all right. Then they
Speaker 1: came back the next day. The clothes. They put it
Speaker 1: all in bags and they said, well, we're going to
Speaker 1: go sitting this to the lab and test it. I said,
Speaker 1: no problem. And as we mentioned, there was a droplet
Speaker 1: of Angel's blood discovered on your shoe and on the
Speaker 1: inside the leg of your shorts, which was consistent with
Speaker 1: you having entered the scene having tried to help your friend,
Speaker 1: but definitely not consistent with multiple swings of a blunt
Speaker 1: object and blood flying everywhere. In fact, you were the
Speaker 1: only one, ironically, that was hit with a blunt object.
Speaker 1: When they took Duyne in for questioning, they took photographs
Speaker 1: of his body and they found injuries where Dwayne had
Speaker 1: been hit by the baseball bat by mister Torres. They
Speaker 1: found clear evidence that he had been struck at least
Speaker 1: several times. Everything they found at the scene in terms
Speaker 1: of the physical evidence, was matching up with what Duane
Speaker 1: and Litha and Jamar were saying it happened. Now. The
Speaker 1: police had also questioned Litha and her son, who were
Speaker 1: the only two witnesses to what happened. What did they
Speaker 1: tell the police? Nothing? That Dwayne never touched him, That
Speaker 1: that was what was said. They investigated for a while,
Speaker 1: but I say, maybe thirty forty days later, maybe two
Speaker 1: months don't two detectives came back to my house one day,
Speaker 1: said mister dunfar as we concerned. This case is closed
Speaker 1: because we can't find anything. I said, all right, right,
Speaker 1: at this point, Litha and Jama are saying that you
Speaker 1: hadn't touched him, that they had heard him fall down
Speaker 1: the stairs and had come rushing out to see what
Speaker 1: the commotion was, and hadn't witnessed any beating after that,
Speaker 1: even the autopsy hadn't ruled that the cause of death
Speaker 1: was homicide, but rather the cause of death was deemed uncertain.
Speaker 1: So for all of the reasons I just mentioned, signs
Speaker 1: pointed clearly to an unfortunate accident. But the chief Deputy
Speaker 1: prosecuting Attorney, Vicky Becker, wasn't taking that as an answer.
Speaker 1: I say, maybe six months after that, she put us
Speaker 1: somebody else on the case. He brings me downtown and
Speaker 1: we saw the same thing in Andy roy or Atlanta,
Speaker 1: Canan's case, where after their case when cold, a new
Speaker 1: detective was assigned to close it. And again, just like Andy,
Speaker 1: they tried to get a confession out of you. He's
Speaker 1: the one that started pushing the issue. Oh you hitting,
Speaker 1: you did this, you did that? Just you know you
Speaker 1: kicked him? You did that? I said, man, I don't
Speaker 1: know what you're talking about. Any did nothing. He said, well,
Speaker 1: what if we got a witness this says that you
Speaker 1: kicked him. I said, well, your witness is lying. He said,
Speaker 1: well today you're going home, he said, but I want
Speaker 1: you to know it. We're still on this. So I
Speaker 1: guess at the same time where they were bringing me,
Speaker 1: I guess they were bringing at leasting them in. And
Speaker 1: that's who he was really trying to press her. She said.
Speaker 1: The officer told her that you know the Wayne kicked him.
Speaker 1: You know the Wayne hit him, don't you? And she
Speaker 1: said when they've kept pressing her so tough that she
Speaker 1: went on and said it. She said what he told
Speaker 1: her to say. She even said it at the trial.
Speaker 1: I believe that's how they got the warm. Now they
Speaker 1: had enough to get in a rest warrant, but they
Speaker 1: needed to find some way to support what they knew
Speaker 1: was a shaky and patently false statement. I mean, Lipa
Speaker 1: eventually went on to recant a trial. So now we
Speaker 1: see another move that we've seen before in Elkhart and
Speaker 1: Andy Royer's case, when the Indiana Police Lab wasn't giving
Speaker 1: Vicky Becker the fingerprint analysis that she wanted, so she
Speaker 1: tapped fingerprint analysis known fingerprint analysis fraud David Chapman for
Speaker 1: a second opinion. In this case, the person who had
Speaker 1: performed the original autopsy, doctor Blair Trencat, had the cause
Speaker 1: of death uncertain, not a homicide, so they fished around
Speaker 1: for two years to find a second opinion, or rather
Speaker 1: an opinion they liked from doctor Scott Wagner. He said
Speaker 1: it was a homicide, but all he ever seen was
Speaker 1: to pictures. He never looked at the body or anything.
Speaker 1: Doctor Wagner agreed that the cause of death was blunt
Speaker 1: for it's trauma, and that mister Torres had died as
Speaker 1: a result of skull fractures and other injuries. Where he
Speaker 1: disagreed with doctor Tranca is that whereas doctor Tranca said
Speaker 1: that the manner of death couldn't be determined because he
Speaker 1: didn't know whether it was a fall or whether mister
Speaker 1: Torres had been injured at the bottom of the staircase.
Speaker 1: Doctor Wagner was certain that mister Torres had been injured
Speaker 1: at the bottom of the staircase. The staircase at Duane's
Speaker 1: place was about six seven feet down to the pavement,
Speaker 1: and doctor Wagner didn't believe that the injuries suffered by
Speaker 1: mister Torres could have been caused by a fall down
Speaker 1: a staircase of that length. He thought the injuries were
Speaker 1: so severe they must have been caused by a beating.
Speaker 1: So he determined that the manner of death was homicide.
Speaker 1: But when I kept trying to tell them, and it's
Speaker 1: flaying to him that when he slipped, he tumbled at
Speaker 1: least twice. He took head over foot at least twice
Speaker 1: before he hit the grim. I mean mister Torres suffered
Speaker 1: severe injuries. There was no doubt about that. But there
Speaker 1: was an explanation, There was a scientific, medical explanation for
Speaker 1: why those injuries were so serious, and they were due
Speaker 1: to the condition of mister Torres. He was out of shape,
Speaker 1: he was an alcoholic, he had a pacemaker, His bones
Speaker 1: were weak, he bled easily, his liver was susceptible to
Speaker 1: being injured because it was so swollen from the alcoholism,
Speaker 1: and a fall down even a short staircase can cause
Speaker 1: really severe injuries, especially to someone who's susceptible to injuries
Speaker 1: like mister Torres was, and the nature of the injuries
Speaker 1: were such that they looked like they had been caused
Speaker 1: by a fall. They weren't consistent with a beating, Dwayne,
Speaker 1: did you know now they had what they needed to
Speaker 1: get a conviction. Yeah. I remember the morning that they
Speaker 1: came to the door. I get ready to go to
Speaker 1: work and knock came on the door. My brother went
Speaker 1: and get it. He said. The police come to the
Speaker 1: door and they said, Dway, ain't done here. He said, bro,
Speaker 1: they're looking for you. I said, open the door to
Speaker 1: let him in. I ain't did none. So he came
Speaker 1: to the the door, said you, Dwayne. He said, well, I
Speaker 1: need you to step outside, sail. We got a warrant
Speaker 1: for your arrest. I said, a warrant A warrant for
Speaker 1: what he said, murder? I said, oh my god, turn
Speaker 1: around and put my hands up, company putting me in
Speaker 1: the car. So you were charged with first degree murder
Speaker 1: and awaited trial in jail. For nine long months, and
Speaker 1: you were assigned Cliff Williams, the chief public defender for
Speaker 1: Elkhart County. I don't think much of anything was done
Speaker 1: for Dwayne in terms of investigation prior to going to trial,
Speaker 1: and in fact, Cliff Williams, there's a lot he could
Speaker 1: have done that he did not do. And the trial
Speaker 1: started on the Monday. He came to see me on
Speaker 1: that Friday. This was one of only two times he
Speaker 1: came to see me the whole time I was in
Speaker 1: the jail. And then he was tell me that he's
Speaker 1: going to prepare over the weekend, and he had another
Speaker 1: attorney with him. She was as assistant. I don't remember
Speaker 1: her name, but she was there. So we were talking
Speaker 1: and he was talking about what the state's gonna have experts.
Speaker 1: We're gonna let them talk. I'm not gonna question him
Speaker 1: too much. I kept looking at him and I'm like, man,
Speaker 1: And she asked him, well, why don't we have experts,
Speaker 1: and then he looked at her and told her something
Speaker 1: to do with the money or something like that. I
Speaker 1: looked like, man, hold up, wait a minute, you be
Speaker 1: telling me who's going to testify on my side? He said, well, right,
Speaker 1: now this is just gonna be us. I looked at
Speaker 1: him and I'm like, oh my god, We're gonna take
Speaker 1: a quick break and we'll be right back. The Pacers
Speaker 1: Foundation is a proud supporter of this episode of Rawful Conviction,
Speaker 1: the end of the Last Mile organization, which provides business
Speaker 1: and tech training to help incarcerated individuals successfully and permanently
Speaker 1: re enter the workforce. The Pacers Foundation is committed to
Speaker 1: improving the lives of Hoosiers across Indiana, supporting organizations that
Speaker 1: are dedicated primarily to helping young people and students. For
Speaker 1: more information on the work of the Pacers Foundation or
Speaker 1: the Last Mile Program, visit Pacers Foundation dot org or
Speaker 1: the Last Mile dot org. So all you've got is
Speaker 1: your girlfriend and her son, and we know, and listeners
Speaker 1: of the show know that loved ones are usually explained
Speaker 1: or rationalized away very easily by the state, So it
Speaker 1: almost sounds like he planned on losing, so that process.
Speaker 1: The trial began in January twenty eleven in front of
Speaker 1: Judge Terry Shoemaker. The prosecution presented the questionable second opinion
Speaker 1: of doctor Wagner and then a guy named Dean Marx
Speaker 1: as well Dean Marx is a blood spatter expert, and
Speaker 1: he testified that there were numerous areas of blood spatter
Speaker 1: at the scene and that some of that blood spatter
Speaker 1: had been caused by cast off, meaning that there was
Speaker 1: an object that had blood on it that had been swung,
Speaker 1: and that the blood had been cast off of this
Speaker 1: object and landed on different surfaces side of the building,
Speaker 1: a car, and that indicated that mister Torres had been
Speaker 1: killed with a blunt object and that the blood spatter
Speaker 1: the scene was caused by the swinging of this object.
Speaker 1: And the state conceded at trial that the baseball bat
Speaker 1: was not the weapon that had been used because there
Speaker 1: was no blood on the baseball bat. And as we
Speaker 1: now know, blood spatter analysis has been totally debunked as
Speaker 1: what it is, which is junk science. It's not science
Speaker 1: at all. In fact, we did a deep dive into
Speaker 1: this kind of quote unquote evidence and testimony in our
Speaker 1: podcast Wrongful Conviction Junk Science, which of course was hosted
Speaker 1: by the great Josh Dubin. So we'll have a linked
Speaker 1: in the bio in which you'll find out that most
Speaker 1: of these quote unquote the lists are other cops who
Speaker 1: have taken just a forty hour course, yes you heard
Speaker 1: that right, a forty hour course about how to testify
Speaker 1: convincingly about the fluid dynamics of blood, a subject that
Speaker 1: they don't know shit about nothing. So it's like almost
Speaker 1: like an acting course more than anything else. It would
Speaker 1: be laughable if it wasn't so sinister. But then you
Speaker 1: have to keep in mind we talked about this previously,
Speaker 1: but at the scene, there are pools of blood near
Speaker 1: mister Torres's body, and multiple people are stepping in these
Speaker 1: pools and they're causing blood to splash, They're getting blood
Speaker 1: on their shoes, which is then being cast off as
Speaker 1: they walk. Numerous people, paramedics, police officers, maybe even Duane
Speaker 1: when he was trying to help mister Torres at the
Speaker 1: bottom of the staircase. And as this progresses, and as
Speaker 1: the investigation continues, immediately after, it begins to rain. So
Speaker 1: now you've got rain and the rain drops are coming down,
Speaker 1: and any one of these things could have caused the spatter,
Speaker 1: and Marx did not consider any of that in his testimony.
Speaker 1: And unfortunately, most people serving on a jury are going
Speaker 1: to be unaware that this so called expert was merely
Speaker 1: jumping to conclusions and not ruling out all of these
Speaker 1: other possibilities. Instead, this expert was only an expert in
Speaker 1: testifying or testi lying. Let's call it what it is,
Speaker 1: to whatever the state's theory was, and it'll become clear
Speaker 1: that Wagner was no different. Yet, this really was all
Speaker 1: they had against the word of what unfortunately can be
Speaker 1: considered two interested parties. So what did Litha and Willie
Speaker 1: say on the stand? Willie testified that he had seen
Speaker 1: mister Torres go after Duayne with the baseball bat, and
Speaker 1: that Duyne was defending himself, and that during this struggle,
Speaker 1: mister Torres lost his balance and fell backwards down the steps,
Speaker 1: and as he was falling, his back hit the banister
Speaker 1: of the steps, and he sort of flipped over and
Speaker 1: landed on the pavement at the bottom of the staircase.
Speaker 1: Letha testified that she heard the commotion. She comes out
Speaker 1: of the apartment and she's standing on the balcony and
Speaker 1: she sees mister Torres at the bottom of the staircase,
Speaker 1: and she sees Dwayne trying to help mister Torres and
Speaker 1: trying to help him up to his feet, and neither
Speaker 1: one of them ever, testified that they saw Dwayne striking
Speaker 1: mister Torres while he was laying on the pavement. They
Speaker 1: didn't see anything other than Dwayne trying to help mister
Speaker 1: Torres after he fell down the steps. And not only
Speaker 1: did they corroborate Dwayne's virtual events, but also Leva testified
Speaker 1: that the detective had bullied her into saying Dwayne was
Speaker 1: guilty just in order to get the arrestaurant. And Cliff
Speaker 1: Williams did, in fact point that out. Yeah, So he said, now,
Speaker 1: you said, the detective did forced you and made you
Speaker 1: say that is he here? And she said, yeah, she
Speaker 1: pointed him out. But the jury, I guess they just
Speaker 1: overlooked it. So it appears mister William's efforts were just
Speaker 1: not enough. You have two lay people who are not scientists,
Speaker 1: testifying about what they saw, and the state has two
Speaker 1: experts with all sorts of degrees and training going to
Speaker 1: testify that this was a homicide. You can't take the
Speaker 1: risk of the jury believing the experts over the lay people.
Speaker 1: You have to prepare the case such that you have
Speaker 1: your own experts. Then you can combine the eyewitness testimony
Speaker 1: with the expert testimony and have a full defense. And
Speaker 1: the only party that had expert testimony was the state,
Speaker 1: And unfortunately he was facing Vickie Becker, who was willing
Speaker 1: to go even farther than that. There was a line
Speaker 1: that the prosecutor used in their closing argument to the
Speaker 1: jury in which they were referring to Litha and Jamar
Speaker 1: and their testimonies, and the prosecutor said to the jury,
Speaker 1: you don't find swans in a sewer. Wow, not only
Speaker 1: had one of your friends died, but now you your girlfriend,
Speaker 1: life partner, and young Willie. All black people were being
Speaker 1: called by this white prosecutor human waste, certainly not swans
Speaker 1: in her telling, white as a driven snow. And she
Speaker 1: said this just as the jury was sent out to deliberate.
Speaker 1: So what was it like when they came back in. Well,
Speaker 1: at first I kind of looked at him, and then
Speaker 1: I kind of had that feeling like, man, they're getting
Speaker 1: ready to come back with a guilty verdict. They sentenced
Speaker 1: me to fifty eight years. First time I've ever been
Speaker 1: in prison, almost fifty years old. I'm here, I am
Speaker 1: on my way to prison, and I couldn't wonder when
Speaker 1: my mother was thinking my kids were thinking, I mean,
Speaker 1: I mean, and they talked about me bad on TV,
Speaker 1: the news. I mean, it's like I was somewhere a murderer.
Speaker 1: Then the newspapers talking like, oh, I didn't rob him
Speaker 1: and beat him and did all this. I ain't never
Speaker 1: even touched him, man, And now I'm going to prison.
Speaker 1: But you didn't take this lying down. From what I understand,
Speaker 1: just like on the outside, you went to work. You're
Speaker 1: a worker, that's what you've always done, and now you
Speaker 1: had your life at stake. So I had to learn
Speaker 1: how to do the law work, learned how to look
Speaker 1: up law, how to look up cases, because I couldn't
Speaker 1: let that go. I kept thinking in my mind, man,
Speaker 1: I can't let them get away with this. You know
Speaker 1: this can't happen like this. So I just went to work.
Speaker 1: I had an attorney in mister Walker. She did the
Speaker 1: direct appeal, but she'd already told me that if you
Speaker 1: don't have something blunt that just turned around, it's gonna
Speaker 1: you know, a smack them in the face. That they're
Speaker 1: going to shoot that down. And they did. And it's
Speaker 1: worth noting that the hearing was held in front of
Speaker 1: the same judge, Terry Shoemaker. So now the appeal moved
Speaker 1: on from direct appeal to state post conviction, and Dwayne,
Speaker 1: you were working on your own at that point, filing
Speaker 1: your own motions before John got involved. So my best
Speaker 1: issue was their expert witness. Why didn't I have an
Speaker 1: expert witness? And in the jury. To me, it wasn't
Speaker 1: a fair jury. Now I'm a black man, nell cart,
Speaker 1: Why an't there any black jurors? There were forty nine
Speaker 1: perspective jurors and there was only one black juror. When
Speaker 1: they got to the black juror, Shoemaker struck him down,
Speaker 1: the judge himself because he said he knew him when
Speaker 1: he was a prosecutor. So now I'm looking up dear me,
Speaker 1: I'm like, man, this can't be right. It can't be fair.
Speaker 1: And while that is a very important issue, one of
Speaker 1: the crux of so much of the injustice in our system,
Speaker 1: it can be very difficult to get traction in court.
Speaker 1: Rather than the ineffectiveness of your trial counsel, which John
Speaker 1: latched onto when the case fell on his desk. And
Speaker 1: John finally did what your trial attorney simply did not,
Speaker 1: which was to look for a forensic pathologist who was
Speaker 1: not part of the Elkhart machine to review the case,
Speaker 1: and I found someone affrins of pathologist by the name
Speaker 1: of doctor Thomas Sozio. He was unequivocal that all of
Speaker 1: the injuries suffered by mister Torres had been caused by
Speaker 1: a fall down the steps. He knew from the witness
Speaker 1: testimony that there had been an altercation. He didn't know
Speaker 1: f mister Torres had lost his balance and fallen down
Speaker 1: the steps. He didn't know if mister Torres had been
Speaker 1: pushed down the steps, but he knew that the injuries
Speaker 1: that mister Torres suffered had been caused by the fall,
Speaker 1: not by a beating. And he knew that for several reasons.
Speaker 1: Number one, all of mister Torres's injuries occurred in a
Speaker 1: straight line across his body. So the skull fractures, the
Speaker 1: broken shoulder, the broken ribs, the lacerated liver all occurred
Speaker 1: in a straight line down his body. And to doctor Sosio,
Speaker 1: that indicated that all of those injuries had occurred when
Speaker 1: that side of mister Torres's body hit the pavement. If
Speaker 1: mister Torres had been beaten with a blunt object, doctor
Speaker 1: Sosio would have expected to see injuries on various parts
Speaker 1: of his body, not in a line, but more random,
Speaker 1: you know, as if someone had hit him in his
Speaker 1: head there, hit him in his there. When someone is
Speaker 1: beaten with an object, you don't see all of the
Speaker 1: injuries in a straight line across the body. They're more
Speaker 1: varied across the body. In addition to that, though, there
Speaker 1: were even more reasons, which we mentioned earlier, that the
Speaker 1: States expert doctor Wagner hadn't considered or just you know,
Speaker 1: put blinders on and ignored the level of alcohol that
Speaker 1: was in mister Torres' system. The alcoholism long term had
Speaker 1: made mister Torres susceptible to severe injuries. It had caused osteoporosis,
Speaker 1: which made his bones more susceptible to breaking. It had
Speaker 1: caused his liver to be enlarged and more susceptible to damage.
Speaker 1: There was only one laceration on the skull, which is
Speaker 1: consistent with a fall. If mister Torres had been beat
Speaker 1: with a bat, doctor Sosio would have expected to see
Speaker 1: more lacerations on the skull. And so for all of
Speaker 1: those reasons, doctor Sosio was adamant that his death and
Speaker 1: his injuries had been caused by fall, not by a beating,
Speaker 1: So you guys were able to get an evidentiary hearing.
Speaker 1: You got an expert whose summation destroyed the state's case.
Speaker 1: And by now, of course, it's all the way up
Speaker 1: to twenty seventeen, and Blood's batter analysis had been fully
Speaker 1: debunked and exposed as a junk science, and Judge Shoemaker
Speaker 1: had retired, so he was out of the way. The
Speaker 1: new judge who had been elected to take Judge Shoemaker's place,
Speaker 1: had been a public defender in prior practice, and so
Speaker 1: I was cautiously optimistic that the new judge was going
Speaker 1: to give us a fair shake. But when we arrived
Speaker 1: at the hearing date, the new judge was away at
Speaker 1: the new judge training session, and so much to my surprise,
Speaker 1: the hearing starts, courts called to order and Judge Shoemaker
Speaker 1: walks out from the chambers and sits down on the bench.
Speaker 1: And that was an unpleasant surprise as far as I
Speaker 1: was concerned. Yeah, unpleasant to say the least. I mean,
Speaker 1: he ruled that you failed to establish that this new
Speaker 1: evidence would have changed the outcome at trial, and the
Speaker 1: Indiana Court of Appeals upheld the decision even though this
Speaker 1: testimony refuted the state's case. During the trial, there was
Speaker 1: no time that they heard anything like that. They were
Speaker 1: always kept hearing beating, beating, beating, beating. And the thing
Speaker 1: that we needed, all we needed was one juror. So
Speaker 1: who's to say what one juror would have said? Right? So,
Speaker 1: the question is not does this new evidence prove that
Speaker 1: the jury would have acquitted Dwayne? The question is whether
Speaker 1: it's there's a reasonable probability that this evidence would have
Speaker 1: made a difference to at least one juror. So. Judge
Speaker 1: Shoemaker in the Indiana Court of Appeals were applying a
Speaker 1: much more stringent standard than what the law calls for.
Speaker 1: Not only that, but Shoemaker also stuck his head right
Speaker 1: in the sand when Cliff Williams took the stand to
Speaker 1: admit his ineffectiveness. Cliff Williams was still with us at
Speaker 1: the time that we presented our case to Judge Shoemaker,
Speaker 1: and he testified that he never deposed the state's experts,
Speaker 1: he never tried to consult with an expert of his own,
Speaker 1: and he didn't have any reasons for that. It wasn't
Speaker 1: a matter of strategy. It was just something that he
Speaker 1: had overlooked and he admitted it. He admitted that he
Speaker 1: had made a mistake. And that's something that Judge Shoemaker
Speaker 1: in the Indiana courts paid insufficient attention to, and it's
Speaker 1: something that the federal courts really relied on. So now
Speaker 1: now you had to file your federal habas appeal in
Speaker 1: twenty eighteen, and you finally didn't have to deal with
Speaker 1: Shoemaker anymore. I said, well, maybe we can get a
Speaker 1: break now now that we're not in front of him.
Speaker 1: It's out of his court and it's out the Elkhart period.
Speaker 1: And what you have to remember is that Duayane was
Speaker 1: on his own. I don't practice in federal courts. Duyanne
Speaker 1: was not represented by an attorney. He was representing himself,
Speaker 1: and his federal habeas petition was dismissed as untimely. Duayne
Speaker 1: by himself got it back on track, got his petition
Speaker 1: back in front of district court judge. Then, working by himself,
Speaker 1: he convinces the judge that he's entitled to a new
Speaker 1: trial and that the Indian Accords have got it wrong.
Speaker 1: He's not a lawyer, he's in prison. He's having to
Speaker 1: do all this by mail, and he made it happen
Speaker 1: for himself. This brings us up to December of twenty
Speaker 1: twenty and you're going up in front of Judge Philip Simon.
Speaker 1: Judge Simon reviews the case, everything you brought up in
Speaker 1: your appeal and all the ways the trial went wrong,
Speaker 1: which are considerable as we've already seen. And then on
Speaker 1: top of that, he agrees that Judge Shoemaker applied the
Speaker 1: wrong legal standard when he denied your petition for a
Speaker 1: new trial. If you apply the right standard, it's pretty
Speaker 1: clear the doctor Sozio's testimony there's a reasonable probability it
Speaker 1: would have made a difference for the jury, and it
Speaker 1: certainly shows that there was ineffective assistance of counsel in
Speaker 1: Dwayne's case. So at this point things were finally starting
Speaker 1: to look up, where yeah, man, I start to see
Speaker 1: daylight again. I mean I might, I might have a chance.
Speaker 1: But then you know, they got to go through the
Speaker 1: peel process because they get the same They're saying, I
Speaker 1: guess the same appeals that we do. So now I'm
Speaker 1: going my way to the Seventh Circuit. And this is
Speaker 1: where you got three judges, so I didn't know really
Speaker 1: what to expect there. So when you know, I wouldn't
Speaker 1: no federal lawyer, That's when Michael took over, and that
Speaker 1: would be Michael Hossbrook, director of Indiana University Morror School
Speaker 1: of Laws, Federal Habeas program, And as it happens, he's
Speaker 1: right here with us today. Michael, it's about time. Welcome.
Speaker 1: I'm so glad to welcome you to a wrongful conviction.
Speaker 1: Thanks Jason. We also have Alex Doland, who at the
Speaker 1: time was one of your law students, I understand, and
Speaker 1: then went on to become a public defender. Alex. Welcome,
Speaker 1: Thanks Jason. So let's pick up the story here with
Speaker 1: you guys. It's twenty twenty and Dwayne is getting ready
Speaker 1: to file his appeal, the federal habeas appeal. How did
Speaker 1: you two get involved? It was sort of an inside job.
Speaker 1: I get an RSS feed of everything that's filed in
Speaker 1: the Southern and Northern districts of Indiana, and I look
Speaker 1: at them every day. That's that's thirteen hundred filings, but
Speaker 1: I know which are the habeas cases. And I saw
Speaker 1: Judge Simon's order granting Dwayne relief and said to myself, well,
Speaker 1: the state's going to appeal that, and I arranged for
Speaker 1: the Seventh Circuit to appoint us in the case. Michael
Speaker 1: called me not long after the Seventh Circuit had appointed
Speaker 1: us and he told me, Hey, I have this case
Speaker 1: and I want you to argue for it. And as
Speaker 1: we went through it and I was reading everything about
Speaker 1: Dwayne's case, I remember your thinking what an injustice it was,
Speaker 1: and how frustrated I was, and how at that point
Speaker 1: he was basically losing every step of the way in
Speaker 1: the state courts due to some misapplication of the law,
Speaker 1: misunderstanding of the facts. From the start, Cliff Williams, Dwayne's
Speaker 1: try lawyer, misunderstood the case is being about the bat.
Speaker 1: As we put in our brief, this case was never
Speaker 1: about the bat. Then, one of the lines that sticks
Speaker 1: with me from this case is doctor Socio on Cross
Speaker 1: saying to me, it's a fall all day. And if
Speaker 1: I could just talk about Dean Marx for a second
Speaker 1: and sort of this category of what they call blood
Speaker 1: splatter science. Dean Marx himself had actually been involved in
Speaker 1: another wrongful conviction case of a man named David cam
Speaker 1: from southern Indiana who was accused of murdering his wife
Speaker 1: and his children. Mister cam had a significant defense, but
Speaker 1: one of the reasons why he was convicted was this
Speaker 1: testimony of a blood spladder expert, and Dean Marx was
Speaker 1: on that panel of experts who made that determination. So
Speaker 1: not only is this guy a junk scientist, but he's
Speaker 1: actually been involved in a different case that there was
Speaker 1: also a wrongful conviction. So Judge Simon absolutely dismantled in
Speaker 1: his opinion the state's case against Dwayne and then Alex
Speaker 1: in the Seventh Circuit. I mean, I cannot tell you
Speaker 1: how terrific his preparation and presentation this was. He laid
Speaker 1: out all the pieces of the state's dismantled case and
Speaker 1: showed the Seventh Circuits that they could not be put
Speaker 1: back together again. But Judge Kirsch, who dissented in the
Speaker 1: Seventh Circuit opinion, was convinced that all the injuries to
Speaker 1: Angel Torres were the result of a severe beating, and
Speaker 1: he misunderstood the case. The state never argued that the
Speaker 1: rib fractures and the damage to Torres's liver, for example,
Speaker 1: were the result of a beating. The state's case was
Speaker 1: only that he'd been hit over the head. So you
Speaker 1: have Cliff Williams, he doesn't understand that it's not about
Speaker 1: the bat. You have the Indiana Court of Appeals misunderstanding
Speaker 1: what undetermined means. And then you have Judge Kirsch misunderstand
Speaker 1: that this was a beating. There was one moment where
Speaker 1: I got to very forcefully say no, no to him
Speaker 1: misstating a fact. And you know, to me, from from
Speaker 1: the public defender mindset, the best thing that I can
Speaker 1: ever do for a client is pushed back when somebody
Speaker 1: in authority is incorrect or attempting to violate my client's rights.
Speaker 1: So after Alex gets up in front of the three
Speaker 1: judge panel hardly all the points that we've been talking about, Dwayne,
Speaker 1: you tell us what ultimately happens. We win, right, they
Speaker 1: actually upheld Judge Simon's ruling. That's right that there should
Speaker 1: have been another expert witness on our side. Did jury
Speaker 1: should have heard you know something different? So you've had
Speaker 1: your victory in the Seventh circum But now they have
Speaker 1: an opportunity to take this to the US Supreme Court
Speaker 1: or potentially retry Dwayne if they chose to. And again
Speaker 1: this is Vicky Becker she'd been willing to do a lot,
Speaker 1: and so they had sixty days to decide or you'd
Speaker 1: be released, which would have been just before election day
Speaker 1: twenty twenty two, when Becker was running unopposed, which, by
Speaker 1: the way, someone needs to do something about that next
Speaker 1: time around. Somebody's if you're out there and you're a
Speaker 1: listener and you're a lawyer and you're thinking about running,
Speaker 1: give us a call. At wrongful conviction, we got you.
Speaker 1: But that's a topic for another time. The point is here,
Speaker 1: she had nothing to lose or gain by releasing him
Speaker 1: or choosing to retry you. I think it was Friday
Speaker 1: afternoon before we were going to go up the following
Speaker 1: Monday night, and I saw Vicky Becker at filed notice
Speaker 1: they weren't going to reprosecute him. So here's two officers
Speaker 1: come up to may Adore. I'm sitting in a sale.
Speaker 1: They talking about pack up. I say, a pack up
Speaker 1: for what you got to leave? You going? I say,
Speaker 1: going where? And they wouldn't say nothing. So I said, well, man,
Speaker 1: don't you touch nothing in the sale. So I go
Speaker 1: down talk to the sergeant. I said, where am I going?
Speaker 1: He said, you're going home? I see it what I
Speaker 1: said for real? He said, Yeah, you've been set free,
Speaker 1: so you've only been out since just recently, November twenty
Speaker 1: twenty two. How are things going for you. I understand
Speaker 1: it's been a little rough finding work. Well, because that's
Speaker 1: on my record. Seeing a lot of jobs out here now,
Speaker 1: is that the decent ones? You got to get background checks.
Speaker 1: And when they run the background check, the first thing
Speaker 1: they go they see this sixty year old man that's
Speaker 1: been out of work for so long, and Danny comes up.
Speaker 1: He was convicted of murder. So that doesn't look good
Speaker 1: on a background check. Well, maybe there's someone out there
Speaker 1: listening who might have a job for you. What kind
Speaker 1: of gear are you looking for? Well, anything in a factory, something,
Speaker 1: you know, sudden positive, something to keep me busy right now,
Speaker 1: just so I can get back on my feet. If
Speaker 1: they're out there in the Solid Bent area, sure I'll
Speaker 1: take to help. I'm not too proud to take anyhow great. Well, yeah,
Speaker 1: if there's anyone out there listening who could put Dwayne
Speaker 1: onto a job lead, we'd really appreciate it, of course.
Speaker 1: And you know, one of our listeners, whatever, our avid listeners,
Speaker 1: and one of our great sponsors is Stephen Simon of
Speaker 1: the Indiana Pacers organization. He's one of the owners of
Speaker 1: the team. And Steven, if you're listening, this is a
Speaker 1: great guy here, you know, and maybe you have something
Speaker 1: for him. So I'm talking directly to you, and yeah,
Speaker 1: we appreciate everything you do for us, and we'll have
Speaker 1: links to get in touch with Dwayne and our bio.
Speaker 1: So thanks so much in advance. And now we come
Speaker 1: to the part of the show that I love the most,
Speaker 1: and of course it's called closing arguments, and this is
Speaker 1: where I turn off my kick back in my chair,
Speaker 1: close my eyes and just listen to whatever else you
Speaker 1: all have to say. Let's kick it off with Michael
Speaker 1: Osbrook and Alex Doland and then of course John Chennawith
Speaker 1: and then to you, Dwayne. So Michael, why don't you
Speaker 1: go first think what I want to say? And closing
Speaker 1: is again, this should have ended in Judge Shoemaker's court
Speaker 1: and the delay and getting Dwayne released is terrible, and
Speaker 1: obviously we're incredibly happy it worked out the end, but
Speaker 1: in a way it didn't to me. There are injustices
Speaker 1: happening in trial courtrooms every day. As somebody who's been
Speaker 1: at this trial level and has seen what goes on.
Speaker 1: There might be dozens of people in courtrooms, hundreds of people,
Speaker 1: thousands of people across the country who are going through
Speaker 1: this process and are being wrongfully prosecuted ultimately convicted for
Speaker 1: a crime they didn't commit. It's really important to be
Speaker 1: vigilant about stuff like that. Any time that somebody's at
Speaker 1: home and they're watching the news and they see somebody
Speaker 1: accused of a terrible crime, my best piece of advice
Speaker 1: is to never jump to conclusions. So I would just
Speaker 1: encourage people to always have an open mind when somebody
Speaker 1: is charged with the crime. Charges are not convictions, and
Speaker 1: you never know if they have the right person or not,
Speaker 1: so it's extreme important to be skeptical. I just want
Speaker 1: to emphasize that Dwayne deserves all the credit in the
Speaker 1: world for going into federal court by himself and winning
Speaker 1: himself a new trial. I have all the admiration and
Speaker 1: respect for what he did. You know, I have to
Speaker 1: say that with Judge Simon made his decision and I
Speaker 1: heard about it, I was thrilled for him, but at
Speaker 1: the same time, it was sad to me that it
Speaker 1: had taken so long. To get to that point. Justice
Speaker 1: delayed is justice denied, and it's a continuing injustice that
Speaker 1: Dwayne is having trouble finding work because of a conviction
Speaker 1: for a crime that he's been exonerated of and that
Speaker 1: never existed in the first place. First of all, I
Speaker 1: just like to say thank you, man, just thank you
Speaker 1: for this time, thank you for a chance for y'alla
Speaker 1: give me a chance to say a little bit about
Speaker 1: what happened. But a lot still needs to be done, man,
Speaker 1: because there's a lot of guys that are still in
Speaker 1: prison that it didn't commit a crime, that are just
Speaker 1: as innocent as I was. And our justice system, manness,
Speaker 1: it works for those that are capable and able to
Speaker 1: get the right people to work with them. Other than that, man,
Speaker 1: our system it's not right, man, it's not right because
Speaker 1: they're putting people in prison. Some guys don't even get
Speaker 1: a fair shape, just like what happened in my trial.
Speaker 1: How many other people are in prison and locked up
Speaker 1: because they didn't have an expert witness on their side.
Speaker 1: And this is the reason why I say something needs
Speaker 1: to be done. But I thank you for my time,
Speaker 1: and I thank you, thank you for listening to Rawful
Speaker 1: Conviction Special thanks to our wonderful production team Connor Hall,
Speaker 1: Annie Chelsea, Jeff Clyburne and Kevin Wards, with research by
Speaker 1: Lyla Robinson. The music in this production was supplied by
Speaker 1: three time OSCAR nominated composer Jay Ralph. Make sure to
Speaker 1: follow us on Instagram at Rawful Conviction, on Facebook at
Speaker 1: Wrongful Conviction Podcast, and on Twitter at wrong Conviction, as
Speaker 1: well as at Lava for Good. On all three platforms,
Speaker 1: you can also follow on TikTok and Instagram at its
Speaker 1: Jason Flam. Wrongful Conviction is a production of Lava for
Speaker 1: Good Podcasts in association with Signal Company Number one