Speaker 1: Beloved couple Joe and Mickey Brian, who had no children
Speaker 1: of their own, instead dedicated their lives to educate the
Speaker 1: children of Clifton, Texas. But while Joe attended an annual
Speaker 1: high school principal conference a hundred and twenty miles away
Speaker 1: in Austin, tragedy struck on October fifteenth, after Mickey did
Speaker 1: not arrive at her fourth grade classroom and could not
Speaker 1: be reached, her principle went to the Brian home with
Speaker 1: Mickey's parents and found a gruesome crime scene. Gunshots had
Speaker 1: spattered the walls, ceiling, and betting with Mickey's blood, and
Speaker 1: friends drove a distraught Joe Brian home from Austin. There
Speaker 1: were no witnesses, a missing gun and jewelry, a cigarette,
Speaker 1: but in a non smoking home, it looked like a
Speaker 1: burglary gone bad until Mickey's brother Charlie borrowed Joe's car
Speaker 1: while home for the funeral and allegedly found a flashlight
Speaker 1: in the trunk that tested positive for a few specs
Speaker 1: of the most common blood type TYPO, same as Mickey's.
Speaker 1: The sheer absurdity of Joe racing from Austin to Clifton
Speaker 1: and back unseen, free and physical evidence, and without a motive,
Speaker 1: was overcome by this one object that was found outside
Speaker 1: of the crime scene, in a car that was not
Speaker 1: in Joe's possession. Despite DNA testing that cast out on
Speaker 1: the flashlights connection to the crime scene, and evidence that
Speaker 1: pointed squarely at a murderous police officer who later took
Speaker 1: his own life, Joe Bryant had to wait thirty five
Speaker 1: long years for parole to finally set him free. This
Speaker 1: is wrongful conviction with Jason Flom. Welcome back to wrongful
Speaker 1: conviction with Jason Flam. That's me, of course, I'm your host.
Speaker 1: And two and a half years ago I read a
Speaker 1: profoundly troubling series of articles in The New York Times,
Speaker 1: originally published in pro public on my Pam Koloff about
Speaker 1: the astounding case of Joe Brian, who served thirty five
Speaker 1: years in prison in Texas for a crime there is
Speaker 1: a zero percent possibility that he ever could have committed.
Speaker 1: And you'll find out why as we go along. And
Speaker 1: it has haunted me ever since that day, and so
Speaker 1: I'm just deeply honored to have the man himself, Joe Brian,
Speaker 1: all seventy nine years of age, of him Um with
Speaker 1: us today on the show. So Joe, Um, you missed
Speaker 1: it a year? Oh did I miss a year? Happy birthday?
Speaker 1: Eight years old? The congratulations. Well, I'm sorry you're here
Speaker 1: because of while you're here, but I'm very very happy
Speaker 1: and honored that you're here and with Joe is a
Speaker 1: renowned attorney Jesse Freud. Thank you also for being here
Speaker 1: today on Rafa Viction. Thank you for including me. Appreciate it.
Speaker 1: And I think this story is important for so many
Speaker 1: reasons because if anyone the audience is thinking, well, that
Speaker 1: could never happen to me, If it could happen to Joe,
Speaker 1: it can happen to you. And what I mean by
Speaker 1: that is, Joe, you lad not just an exemplary life,
Speaker 1: but really a rich fulfilling life up until this happened.
Speaker 1: And can you take us back all the way to
Speaker 1: your childhood and how you grew up a small town
Speaker 1: in Texas right, grew up in Waco, grew up on
Speaker 1: a farm around animals and family, and headed absolutely wonderful
Speaker 1: childhood Tendee Church regularly and looking back, I had very
Speaker 1: idyllic life. And how did you find your way into
Speaker 1: the field of education at which you excelled right, becoming
Speaker 1: ultimately a really loved and revered educator in Clifton, Texas.
Speaker 1: The principle of school, But how did you make your
Speaker 1: decision to get into education? Always lacked school, but at
Speaker 1: our church I started playing the piano full time when
Speaker 1: I was thirteen, and our church and our song leader
Speaker 1: was my principal at school, and I had tremendous respect
Speaker 1: for him, and I guess you could say that he
Speaker 1: is instrumental in guiding him in that direction. So I've
Speaker 1: always lived and breathed and thought education. Mickey and I
Speaker 1: were unfortunate enough not to be able to have children.
Speaker 1: We both lived and breathed education. I helped her with
Speaker 1: her lesson plans, with grading papers. We would discuss teaching
Speaker 1: objectives and goes and how to reach them. Then it
Speaker 1: was great, It sounds like it was. And from what
Speaker 1: I understand, the high school, middle and elementary schools were
Speaker 1: all in the same campus, and you were the high
Speaker 1: school principal and Mickey was the fourth grade teacher, and
Speaker 1: the two of you were obviously well known in the
Speaker 1: small town of Clifton, having had a hand in the
Speaker 1: education of so many of the people there. So your
Speaker 1: shared deducation had made you two revered by parents and
Speaker 1: students alike, which brings me back to my point that
Speaker 1: if a beloved figure like yourself, who was leading an upstanding,
Speaker 1: fulfilling life, if this could happen to you, then nobody
Speaker 1: out there is safe because it could happen to anyone.
Speaker 1: And that brings me to the next part of your story,
Speaker 1: which of course is October. Now, you were out of
Speaker 1: town at an annual Texas Secondary School's Principles conference a
Speaker 1: hundred and twenty miles away in Austin, Texas, and this
Speaker 1: is a conference would attended for the previous fourteen years.
Speaker 1: Mickey had seen her parents, Otis and Fear of Blue
Speaker 1: that afternoon, as well as spoken to you as you
Speaker 1: graded papers and watch the c m as in your
Speaker 1: hotel room the Country Music Awards in Austin around nine
Speaker 1: pm that night. So now the following day, October five, Mickey,
Speaker 1: who was usually the first one to arrive at school,
Speaker 1: never did. The elementary school principal, Rex Daniels, was obviously concerned,
Speaker 1: so he called your home and got no answer. So,
Speaker 1: knowing that you were in Austin, he called Mickey's parents,
Speaker 1: Otis and Vera who met him at your home with
Speaker 1: the spare Key and her mother, And this gives me
Speaker 1: the chills. Was the first to see the horrific and
Speaker 1: bloody crime scene in your bedroom. Her daughter's body, Mickey's
Speaker 1: body laid across the length of the bed. Her night
Speaker 1: gown was drawn up to her thighs, she was undressed
Speaker 1: from the waist down, and blood was spattered on the bed,
Speaker 1: the ceiling, and all four walls from apparent gunshots to
Speaker 1: the head and abdomen. And at this point Rex led
Speaker 1: the blues Otis e Vera to the living room where
Speaker 1: they called the police. And then, of course Joe, you
Speaker 1: received that awful, awful news. So Joe is alerted to
Speaker 1: the discovery of her body and to what happened to her.
Speaker 1: While he is in Austin, several friends from Clifton drive
Speaker 1: down to get him because of the distraught state he
Speaker 1: was in, and drive him back to Clifton. So the
Speaker 1: Texas Rangers led this investigation, as they often did in
Speaker 1: world towns like Clifton, and Texas Ranger Joe Wiley interviewed you, Joe,
Speaker 1: and you answered all the questions, telling them about the
Speaker 1: three fifty seven loaded with bird shot that you kept
Speaker 1: in the bedroom, as well as a cash box under
Speaker 1: the bed that usually held around a thousand dollars. Both
Speaker 1: of them were reported missing at the time, as we're
Speaker 1: Mickey's watch, wedding band, and diamond ring. There were no witnesses,
Speaker 1: no neighbors reported hearing anything, no obvious signs of fourth entry,
Speaker 1: no bloody fingerprints, No semen found the rape kits, so
Speaker 1: there was very little for the rangers to go on. Oddly,
Speaker 1: a cigarette, though, was found on the kitchen floor. Now
Speaker 1: this is important because Mickey didn't smoke, and neither did you.
Speaker 1: Joe looked like a burglary gone bed. Now, Mickey's brother,
Speaker 1: Charlie Blue, was the vice president an agrochemical firm out
Speaker 1: of Florida. He came to town with the investigator that
Speaker 1: the company kept on retainer, an x FBI agent named
Speaker 1: Bud Saunders. Now, while Charlie was in town from Mickey's funeral,
Speaker 1: Joe lent Charlie his car, and somewhere along the few
Speaker 1: days in which the car was in Charlie's possession, a
Speaker 1: flashlight with reddish brown specs was allegedly spontaneously found in
Speaker 1: the trunk of the car, and so Joe's car is
Speaker 1: out of his possession for a period of about five days,
Speaker 1: and then the flashlight had discovered when the car is
Speaker 1: in Joe's brother in law's possession. So the tipping point
Speaker 1: for and really the only point that supported Joe's arrest,
Speaker 1: was the discovery of the flashlight in his car, and
Speaker 1: later DNA testing cast out on whether this flashlight was
Speaker 1: every even at the crime scene at all. But nevertheless,
Speaker 1: unbeknownst to Joe at the time, a search warrant of
Speaker 1: the car was executed and the flashlight was sent to
Speaker 1: the state crime lab. Now this so there was no
Speaker 1: DNA testing, just prology, and the testing done at the
Speaker 1: time determined that some of us back actually were blood
Speaker 1: the most common blood type type OH, which also happened
Speaker 1: to be Mickey's blood type. Now, those speckles were found
Speaker 1: on an object that was not found at the crime scene,
Speaker 1: but in one of the couple's two cars, which was
Speaker 1: curiously not in Joe's possession when the flashlight was allegedly found.
Speaker 1: Buying you, if Joe had committed this crime, would he
Speaker 1: be using a flashlight to find his way around his
Speaker 1: own home to sneak up on his own wife. I mean,
Speaker 1: the state's theory is absolutely ridiculous, and this is just
Speaker 1: one of the many reasons why. So the car was
Speaker 1: not impounded, but rather released to Charlie Blue, who left
Speaker 1: it in Joe's driveway. So Joe has no idea that
Speaker 1: his car has been searched. And this flashlight is the
Speaker 1: crux of the state's case, supported by a few other
Speaker 1: pieces of extremely dubious evidence. So their case really rested
Speaker 1: on four facts. Um. The first and most important was
Speaker 1: the discovery of the flashlight. The second was a pair
Speaker 1: of what they said, we're semen stained underwear discovered in
Speaker 1: Mickey and Joe's bathroom. Um that at the time, in
Speaker 1: the eighties, they had said tested presumptively positive for the
Speaker 1: presence of semen, and that was Joe's blood type. And
Speaker 1: I mean it's his house, So to find what maybe
Speaker 1: Joe's bodily fluids in his own home doesn't really implicate him.
Speaker 1: I mean, it would incriminate an intruder, but it's his
Speaker 1: freaking house anyway. Continue, So we got flashlight underwear, a
Speaker 1: explanation that Joe had given regarding opportunities for when the
Speaker 1: keys to his vehicle were out of his possession um
Speaker 1: and then the final point was the discovery of money
Speaker 1: in the trunk of his car following its return to
Speaker 1: him from his brother in law. So the money that
Speaker 1: was initially reported missing from the cash box under the
Speaker 1: bed didn't turn up when the search of the car
Speaker 1: was conducted either, but rather Joe reported finding the cash
Speaker 1: after the fact. It was eight hundred and fifty dollars
Speaker 1: of the usual one thousand, and Joe reported this to
Speaker 1: the authorities, remembering that he and Mickey had taken the
Speaker 1: money to go shopping and wake up, and somehow they
Speaker 1: were like, wait, maybe he's hiding something, And so they
Speaker 1: try to use this to show motive that Joe wanted
Speaker 1: to either steal from his wife right or that he
Speaker 1: initially hit the cash to make it seem like there
Speaker 1: was a robbery. But neither of those theories holds any
Speaker 1: water whatsoever. I mean, he'd either be robbing himself because
Speaker 1: they're married, or if he wanted the crime scene to
Speaker 1: look like a robbery. Why in the world would he
Speaker 1: then tell the authorities about discovering the money. It makes
Speaker 1: no fucking sense whatsoever. He would have just kept it
Speaker 1: to himself. And so the state's theory of the case
Speaker 1: was that Joe had slipped out of his Austin hotel,
Speaker 1: driven home, let himself into his house with his key,
Speaker 1: shot mickey with the gun that they had kept by
Speaker 1: their bed, cleaned himself up after getting her blood all
Speaker 1: over him, changed clothes and shoes, and drove back to
Speaker 1: his hotel room in Austin, cleaned up again, and made
Speaker 1: it to his morning teachers conference meeting. So that's the
Speaker 1: state's theory, right, And this is a fantastical theory on
Speaker 1: so many levels. No one saw him do any of
Speaker 1: these things, right. No one saw him leave a hotel,
Speaker 1: no one saw him stopped for gas, and it was
Speaker 1: pouring rain that night, and no one saw him soaking
Speaker 1: wet coming or going. And Joe had a condition, right,
Speaker 1: immaculate condition, which meant that he couldn't drive at night anyway,
Speaker 1: you couldn't see to drive at night. And there was
Speaker 1: no physical evidence that any of the things that the
Speaker 1: police said happened actually happened. It's nonsensical, and it wasn't
Speaker 1: just the fact that he was a hundred and twenty
Speaker 1: miles away and couldn't have realistically gone there and back
Speaker 1: without being seen unless he was some sort of ghost,
Speaker 1: but also the idea that he would have had to
Speaker 1: magically been able to make all this blood disappear from
Speaker 1: his body and none of make his blood got into
Speaker 1: the car either, that he allegedly drove back to Austin
Speaker 1: that night except for the phantom flashlight that, if we're
Speaker 1: to believe the state's theory, he just totally fucked up
Speaker 1: and absent mindedly left it in the trunk while he
Speaker 1: meticulously managed to scrub everything else like some master crime
Speaker 1: scene manipulator, right, and then not to mention he had
Speaker 1: no motive. In fact, the opposite is true. They loved
Speaker 1: each other very much and everybody knew it. It wasn't
Speaker 1: a troubled marriage as we sometimes see. And just to
Speaker 1: the point of motive really quick um. The first trial
Speaker 1: was actually reversed for an improper insinuation that there was
Speaker 1: any financial motive for Joe to kill Mickey, and his
Speaker 1: defense attorneys tried to respond to that inaccuracy, they were
Speaker 1: denied by the trial court the right to do so.
Speaker 1: And that's actually the reason why Joe's case was reversed
Speaker 1: the first time, and why he was retribed so correct.
Speaker 1: There was never a motive established, and by the second trial,
Speaker 1: the state concedes that and talks to the jury panel
Speaker 1: about can you convict if we can't tell you what
Speaker 1: the motive is. So they were absolutely clear by the
Speaker 1: time the second trial rolls around that there was no
Speaker 1: motive because this didn't happen, right, And you know, it
Speaker 1: gets worse when you start to see the way that
Speaker 1: they smeared his character. And of course it's a very
Speaker 1: contemporaneous story when we come to find out later that
Speaker 1: in fact, the logical suspect and somebody who they knew
Speaker 1: to be the logical suspect at the time was in
Speaker 1: fact one of their own It was a police officer.
Speaker 1: Because we cannot leave out at this this is a
Speaker 1: small town of Clifton, Texas, and this was the second
Speaker 1: murder and unsolved for the time being in a very
Speaker 1: short period of time. And of course we know how
Speaker 1: that works, right, that creates the pressure. And so Joe,
Speaker 1: do you mind telling us about that murder and how
Speaker 1: that played a role in your wrongful conviction? Judy Whitley
Speaker 1: and high school student was murdered. They didn't know who
Speaker 1: did it. There were suspicions but no facts. People are
Speaker 1: alarmed that this could happen in our community to high
Speaker 1: school child. So the police department, so to speak, is
Speaker 1: put under a lot of pressure to find whoever killed
Speaker 1: Judy Whitley. Well, my opinion, based on what I know
Speaker 1: now is that Dennis Dunlap did it. Jesse, This Dennis
Speaker 1: Dunlap character is a very troubling and profound example of
Speaker 1: how the sort of blue wall protects itself. So tell
Speaker 1: us about that this Dunlap and what his role was
Speaker 1: in these two cases. So, Dennis Dunlop was a member
Speaker 1: of the Clifton Police Department in and he was originally
Speaker 1: a suspect in the Judy Whitley case, and that was
Speaker 1: because he had a connection to Judy's family and suspicious
Speaker 1: items found in his possession after he eventually leaves the
Speaker 1: police department at the direction of the then Clifton Police chief.
Speaker 1: And this was a situation where he tried to be
Speaker 1: very involved from the get go. I don't think that's
Speaker 1: very uncommon for actual perpetrators to try and find out
Speaker 1: as much information as they can about the crime that
Speaker 1: they did commit. He attracts understandable suspicion, and from what
Speaker 1: we can tell based on records at the time, he
Speaker 1: was encouraged by the then police chief to leave the
Speaker 1: community because of all of the suspicion growing around him
Speaker 1: and how it did look even back then that he
Speaker 1: was a good, strong suspect for the death of Judy Whitley.
Speaker 1: So he leaves the community, and we have so much
Speaker 1: evidence now that this Dunlap character he almost certainly killed
Speaker 1: in as Whitley, but also most likely was the murder
Speaker 1: in this case. He of course took his own life
Speaker 1: right and after Dennis Dunlap commits suicide on the front
Speaker 1: page of the Clifton Record, the Clifton Police Department in
Speaker 1: announces that they've solved the Judy Whitley case and that
Speaker 1: Dennis Dunlap was responsible. But Joe doesn't get access to
Speaker 1: that information beyond what's publicly reported until it's not until
Speaker 1: late that we won going through old files discover that
Speaker 1: while he did leave the department, he did not leave
Speaker 1: the area. He was reported to be in the Waco
Speaker 1: Clifton area the day that Vicky was murdered. Law enforcement
Speaker 1: knew it, and in his ex wife gives an interview
Speaker 1: to the Texas Rangers, as well as the then Clifton
Speaker 1: Police chief and Dennis's ex wife says that Dennis did
Speaker 1: admit to her that he was with Mickey the night
Speaker 1: she was killed. Of course, when Mickey got killed at
Speaker 1: everybody was shocked. She was very she was very popular
Speaker 1: grown up there, highly respected people wanted an answer. Them
Speaker 1: wanted to who killed Judy Whitley, and they wanted to
Speaker 1: who killed Nikki in the place. Under a great deal
Speaker 1: of pressure, I think jumped on the first wagon they
Speaker 1: could jump on. They got what they wanted, that solved
Speaker 1: the case, so the pressure was off. Dennis destroyed Mickey's
Speaker 1: life and they destroyed my life. This episode is underwritten
Speaker 1: by Paul Weiss Rifkin, Wharton and Garrison, a leading international
Speaker 1: law fer. Paul Weiss has long had an unwavering commitment
Speaker 1: to providing impactful, pro bono legal assistance to the most
Speaker 1: vulnerable members of our society and in support of the
Speaker 1: public interest, including extensive work in the criminal justice area.
Speaker 1: I mean we could spend this entire podcast talking about
Speaker 1: all the different pieces of exculpatory evidence. There was a
Speaker 1: cigarette but found in in the house. Neither Joe nor
Speaker 1: making smoked. Right. There was the fact that he was
Speaker 1: a hundred and twenty miles away. We've talked about that already.
Speaker 1: They can't get me there. We proved the molo joan
Speaker 1: our car. We proved were about guestoline. Right. That was
Speaker 1: the fact that the flashlight wasn't found at the crime scene.
Speaker 1: It was found in the trunk of the car. That
Speaker 1: wasn't in Joe's posession for several days. In fact, it
Speaker 1: was in the possession of somebody who we know. Light
Speaker 1: on the stand the fact that there was another likely
Speaker 1: or even obvious suspect, and they pushed it under the rug,
Speaker 1: and there was the absence of any blood anywhere on Joe,
Speaker 1: around Joe in his car, you know. So supposedly this
Speaker 1: flashlight somehow was the only blood. So they wanted us
Speaker 1: to believe that he was holding the flashlight in one
Speaker 1: hand while shooting the gun with the other hand in
Speaker 1: his own home and in his own right, because he
Speaker 1: didn't know the way around his own little home, right,
Speaker 1: It wasn't like he lived in of all of all
Speaker 1: the things, right, you need a flashlight in your own home, right,
Speaker 1: But then he would have cleaned up every single trace
Speaker 1: of blood from everything right, and then somehow or other
Speaker 1: spaced out and thrown this flashlight that had this tiny microscope.
Speaker 1: And then we get to the blood spatter, right of
Speaker 1: all the junk sciences, and you know, we have a
Speaker 1: whole show devoted to junk science. You know, blood spatter
Speaker 1: is a quote unquote scientific protocol which is used in
Speaker 1: courtrooms all over this country and as far back as
Speaker 1: Joe's trial eight five, probably further than that. It is
Speaker 1: a nonsensical practice in which these Charlottean's posing as scientists,
Speaker 1: pretend to be able to know by examining blood, as
Speaker 1: in Joe's case, where they just examined an empty room
Speaker 1: with blood all over it, and we're magically able to
Speaker 1: tell you what happened in there. You might as well
Speaker 1: just bring in a psychic while you're at it. But
Speaker 1: this practice is taught in a forty hour course that
Speaker 1: I don't know if anyone's ever failed. You just pay
Speaker 1: the money, you go take your forty hour course. If
Speaker 1: you failed, to give you your certificate anyway. In fact,
Speaker 1: so it doesn't matter if you fail, and then you
Speaker 1: can go testify in court as a supposed expert, and
Speaker 1: so talk to us Jesse, please about blood spatter and
Speaker 1: how it played a role in Joe's case. Specifically, blood
Speaker 1: stay pattern analysis is the scientific study of the static
Speaker 1: consequences resulting from dynamic blood shedding events, and it involves
Speaker 1: detecting and describing and analyzing the size, shape, distribution, number, location,
Speaker 1: and pattern of blood stains, as well as the nature
Speaker 1: of their target surfaces and the relationship among various stains
Speaker 1: in a particular scene. So as I understand it, and
Speaker 1: this is really mostly from preparing for the evidentiary hearing
Speaker 1: in Joe's case, is that blood stain pattern analysis is
Speaker 1: based in accepted and proven sciences. The problem with it
Speaker 1: is what you said, which is the training of practitioners
Speaker 1: and using it properly within its correct limits. And that's
Speaker 1: what happened here with detective Forman, a purported practitioner whose
Speaker 1: training was a single forty hour course, and the practitioner
Speaker 1: admitted that this was the first major complex san he
Speaker 1: had analyzed as a supposedly certified practitioner, who between our
Speaker 1: evidentiary hearing did eventually recant and admit that his methodologies
Speaker 1: and application were mostly incorrect and admitted that then a
Speaker 1: lot of his conclusions in testimony was incorrect, and so,
Speaker 1: like we talked about at the beginning, what was the
Speaker 1: state's theory and why is blood stain pattern analysis? Why
Speaker 1: was it important to the States securing a conviction twice
Speaker 1: against Joe? And it was used to explain why there
Speaker 1: was no physical evidence, Like you said, what was connecting him.
Speaker 1: The flashlight was discovered in complete isolation, with no context
Speaker 1: away from the crime scene. His car was clean. There's
Speaker 1: never anything on him physically discovered, not in his hotel room,
Speaker 1: not on his person later. And so the blood stain
Speaker 1: pattern analysis proffered eye Detective Foreman was used to fill
Speaker 1: the very clear gaps in the state's case and to
Speaker 1: make an impossible theory of the case seem. Yeah, I
Speaker 1: just want to quote from Pam Koloff's a wonderful article.
Speaker 1: But she actually went to her great credit to Yukon, Oklahoma,
Speaker 1: where she participated in one of these classes that she
Speaker 1: paid six and something dollars for, and she talks about
Speaker 1: I'm just going to quote now, armed with calipers, scientific calculators,
Speaker 1: and string we measured bloodstains, plugged our data into equations,
Speaker 1: and tried to trace the trajectories of individual droplets back
Speaker 1: towards their source. As was true with pattern classification, there
Speaker 1: were many ways to get this wrong. Small deviations with
Speaker 1: the calipers resulted in markedly different results. Still, Griffin, who
Speaker 1: was the instructor, had us pressed forward. He said, quote,
Speaker 1: we're not really going to focus on the math and physics.
Speaker 1: It just kind of bogs things down. Uh, that's me
Speaker 1: editorial lizing what okay? He told us. She goes on
Speaker 1: to say at the outset, quote, I'll teach you which
Speaker 1: keys on your calculator to press. It's not it's unbelievable,
Speaker 1: and then back to Pam. It was upon this shaky
Speaker 1: foundation that Thorman had tried to reverse engineer the shooting
Speaker 1: at the Brian home. Looking over report one night back
Speaker 1: at my hotel, I could see where his analysis went awry.
Speaker 1: According to his report, he believed he was determining the
Speaker 1: alleged height from which the shots were fired, a conclusion
Speaker 1: his data could not yield. I began to wonder if
Speaker 1: his assessment of the flashlight, too, was faulty when he
Speaker 1: asserted that the blood on the lens was back spatter
Speaker 1: from a close range shooting. Now it goes on because
Speaker 1: they teach you in this class as well, how to
Speaker 1: present testimony as if you're an expert. It's basically teach
Speaker 1: you how to act in court, to pretend better that
Speaker 1: you actually know what you're talking about, and to be
Speaker 1: more persuasive, and how to be able to dodge questions
Speaker 1: from you know, quality defense attorney. I mean, let's face it,
Speaker 1: not too many of these blood spattered people come in
Speaker 1: and testify for the defense. So they're teaching you, in essence,
Speaker 1: how to frame people. And that's exactly what they did
Speaker 1: in Joe's case, and it makes me sick. It's, I think,
Speaker 1: a perfect example of a situation where juries trust the
Speaker 1: prosecutors in their community and they trust law enforcement. And
Speaker 1: Joe's case, sadly isn't the only example of this. When
Speaker 1: prosecutors go to juries and paint a picture using like
Speaker 1: Joe said, fabricated evidence and an impossible narrative and show
Speaker 1: them awful photos of a crime that clearly did happen,
Speaker 1: and asked them to say, okay, either don't hold somebody
Speaker 1: responsible or hold somebody responsible, right, and especially in the
Speaker 1: context of what this community had just gone through, like
Speaker 1: you just said, with the loss of Judy Whitley just
Speaker 1: a few months prior and then the loss of Mickey
Speaker 1: and her brother in particular paid a special prosecutor to
Speaker 1: prosecute Joe. And so you've got somebody who's got a
Speaker 1: financial incentive to get a conviction, and you have a
Speaker 1: jury who's being told about that financial arrangement, right that
Speaker 1: knows this is what the victims family paid for. This
Speaker 1: is clearly what they believe. What jury was going to
Speaker 1: let him walk out of a courtroom. There just wasn't
Speaker 1: in any jurisdiction in night six and eighty nine that
Speaker 1: just sadly wasn't going to happen. So with this nonsensical
Speaker 1: blood spatter analysis and this flashlight that wasn't even found
Speaker 1: at the crime scene as the big smoking gun, and
Speaker 1: then the assassinations on his character, it was a almost
Speaker 1: a foregone conclusion. So can you take us back to
Speaker 1: that moment when the judge read the verdict. Well, it's
Speaker 1: very unreal. You already know your laugh has changed forever
Speaker 1: because of everything that's already happened. But then now people
Speaker 1: are gonna look at you like you orderer, and I'm
Speaker 1: going to end up at prison. There's something I didn't
Speaker 1: do and I'm gonna have to fight every day to
Speaker 1: maintain my personal integrity. You think, how can people do this?
Speaker 1: But what is really troubling is that you know that
Speaker 1: people know that what they've done is not right, and
Speaker 1: they don't have any trouble doing what's wrong. Everything that
Speaker 1: happened really hurts. I just don't go there very often.
Speaker 1: But God has a purpose for each of us. And
Speaker 1: when I was first went to prison, I was very
Speaker 1: angry with God and did not go to church. I
Speaker 1: didn't tell anybody I was a Christian or they even
Speaker 1: played the piano. And after I'd been there, probably eight weeks,
Speaker 1: the chaplain told me that I understand that you play
Speaker 1: the piano and that you're Christian, and I said, how
Speaker 1: do you know I haven't told anybody. Well, he wanted
Speaker 1: to hear me play the piano, so we went into
Speaker 1: chapel and I said, what do you want to hear?
Speaker 1: And he told me and I played the songs. When
Speaker 1: we went back to the chapel, and he asked if
Speaker 1: I would play the piano for the chapel services and
Speaker 1: I said, no, I will not, and I told him
Speaker 1: I was mad at God, And I said, but how
Speaker 1: did you know that I was a Christian, that I
Speaker 1: played the piano. And he comes up with a letter
Speaker 1: from my high school principle when I grew up, who
Speaker 1: led the singing at the church where I played, And
Speaker 1: he told Chaplain Pickett, I've done Joe since he was five.
Speaker 1: I believe he's innocent. I know he's hurt, and if
Speaker 1: you can get him to play the piano for your
Speaker 1: church services, you'll be blessed and it will help him.
Speaker 1: And I told him I'm not playing in that wise.
Speaker 1: Chaplain told me, well, you think about it tonight and
Speaker 1: you let me know in the morning. I got zero
Speaker 1: sleep that night because God was all over me, saying,
Speaker 1: you know, so to speak. Who do you think gave
Speaker 1: you that skill? I did. I want you to use
Speaker 1: it for me. So the next morning I called Chaplain
Speaker 1: pick It and told him I would play for the
Speaker 1: chapel services. And he says, good, we acquire practice today
Speaker 1: two o'clock. And I was in and busy for the
Speaker 1: rest of my stay. So we can do anything through Christ.
Speaker 1: And when I asked God for peace, he gave me peace. Well,
Speaker 1: I'm glad that you found that, and I'm glad you're
Speaker 1: here today. Because you are a living testament to the
Speaker 1: human spirits. So um yeah, So then here we are.
Speaker 1: You've now been sentenced to nine years in prison right
Speaker 1: with love life sentence because no one's ever lived that long,
Speaker 1: and you know you weren't going to be the first
Speaker 1: um again to me the idea that you're still here
Speaker 1: with with you know, three brain cells to rub together
Speaker 1: and be able to sit up right and have a
Speaker 1: laugh and have a smile on your face. It's it's inspiring,
Speaker 1: it's um you know, It's what I'll tell you right now.
Speaker 1: For those of us to do this work, it's what
Speaker 1: drives us forward is knowing that there are people like
Speaker 1: you who have this otherworldly uh you know, courage is
Speaker 1: the best way I can and grace and perseverance. You know,
Speaker 1: when I pick up this case in November as a
Speaker 1: law student, it's my whole life. Like my whole life,
Speaker 1: Joe had been fighting this fight, and it's an unbelievable
Speaker 1: set of strength and endurance to maintain your innocence and
Speaker 1: keep fighting for that period of time. It's unbelievable. And
Speaker 1: most people give up, right, we know, innocent people plead guilty,
Speaker 1: and innocent people end up giving up just to move
Speaker 1: on with their lives, and the fact that he hasn't,
Speaker 1: I think just speaks so much to the character that
Speaker 1: everybody in that community knows he has and knew he had,
Speaker 1: and just his spirit, which brings us to that long,
Speaker 1: long fight, the post conviction litigation, and all the things
Speaker 1: that were discovered along the way, not to mention what
Speaker 1: was already known which should have kept them from ever
Speaker 1: even bringing Joe to trial. I mean, the sheer breath
Speaker 1: of this, it's insane to believe that none of it
Speaker 1: was enough to spring him out of there with the
Speaker 1: state acknowledging his actual innocence. And I'm going to just
Speaker 1: list some of it now, Right, So, no one saw
Speaker 1: Joe leave the hotel in Austin, and no one saw
Speaker 1: him back in Clifton. I mean, it's a hundred and
Speaker 1: twenty mile journey. He would have had to stop for
Speaker 1: gas at some point, right, And then the mileage on
Speaker 1: Joe's car proved that he didn't not make the journey
Speaker 1: back and forth to Austin. According to the state's own admission,
Speaker 1: he had no motive to kill Mickey, So all that
Speaker 1: nonsense about the cash or stage robbery was just nonsense.
Speaker 1: And then Dennis Dunlap, okay, the main suspect in Judy
Speaker 1: Whitley's murder who was forced out of Clifton p D
Speaker 1: as a result, and who they laid blame for it
Speaker 1: on after he killed himself. But only after he killed
Speaker 1: himself his wife told the rangers and the Clifton police
Speaker 1: chief in that Dunlap admitted to being with Mickey on
Speaker 1: the night she was killed. I mean, what the funk?
Speaker 1: And he doesn't get to learn about that from until
Speaker 1: two thousand and twelve when they finally released these documents
Speaker 1: to him. So thirty five long years rolled by with
Speaker 1: no one acknowledging his innocence because of this flashlight that
Speaker 1: wasn't even found at the crime scene, but rather was
Speaker 1: found in the car, that wasn't in Joe's possession or control.
Speaker 1: Rather it was in the possession of the man that
Speaker 1: brought an investigator to his own sister's funeral and paid
Speaker 1: a special prosecutor to make sure that they nailed Joe.
Speaker 1: But Jesse DNA testing was finally done on that flashlight
Speaker 1: in two thousand eighteen, testing that wasn't available in hadn't
Speaker 1: been invented yet. What did they find out? Yeah, So,
Speaker 1: I think the simplest ways. The question that was asked
Speaker 1: at the evident you're hearing, which is, can the State
Speaker 1: of Texas prove that Mickey's DNA is on that flashlight?
Speaker 1: And the answer to that question by the states analyst was, now,
Speaker 1: there's two results from a set of DNA testing. One
Speaker 1: was on the lens of the flashlight that was an
Speaker 1: inconclusive result, and then there was a DNA test of
Speaker 1: the swab from the handle and the power button of
Speaker 1: the flashlight that excluded him and Mickey. So does modern
Speaker 1: testing prove that Mickey's DNA is on that flashlight? And
Speaker 1: the answer to that is new. So there was type
Speaker 1: OH blood, the most common blood type, on this flashlight,
Speaker 1: but not necessary early from the crime seat. That would
Speaker 1: be our position. The state's position would obviously be different,
Speaker 1: but modern testing cannot corroborate the state's position. And add
Speaker 1: that conclusion to the already patently ridiculous theory of this
Speaker 1: crime and what was discovered about Dunlap, and it's all
Speaker 1: just becomes very hard to swallow that it took this
Speaker 1: long for you, Joe, to finally be free, but all
Speaker 1: appeals were exhausted, and then despite an exemplary disciplinary record,
Speaker 1: you're involved in the chapel, playing piano, tutoring. The parole
Speaker 1: board denied you seven times? Is that right? Seven times?
Speaker 1: You and so your patients has tried and tried and tried.
Speaker 1: But finally, Joe, finally you were freed, Um just a
Speaker 1: short while ago. And what was that like? I mean, well,
Speaker 1: there are mini tears. You're so thankful to be out,
Speaker 1: and it's beautiful to see people who care for you
Speaker 1: and love you for you up there when you get outside.
Speaker 1: Jesse was one of those waiting, along with my family
Speaker 1: and other people who were interested in my case. Uh,
Speaker 1: A lot of people could not be there, and it
Speaker 1: was understandable. It's right at the beginning of Corona. It
Speaker 1: was because a couple of weeks after the world shut down. Yes,
Speaker 1: absolutely wonderful though to be able to hug your family
Speaker 1: and to get into the vehicle and go home. The
Speaker 1: young lady that we're watching right now is very instrumental well,
Speaker 1: and it's not definitely not only me, Um Walter. I
Speaker 1: know that Walter in Leon and Allison and Ye Shay
Speaker 1: and Alan Um. Joe has wonderful parole lawyers. Again, Joe
Speaker 1: is not free like we just talked about because the
Speaker 1: courts did their thing. Joe's free because thankfully he had
Speaker 1: parole lawyers that were able to explain the circumstances to
Speaker 1: the parole board in a way that clearly made sense.
Speaker 1: And so they are really the heroes. Thank God, I'm home.
Speaker 1: My brother and his wife had provided a home for me,
Speaker 1: and I am just fabulously grateful and it's encouraging, very
Speaker 1: humbling what others have done to help me. I know
Speaker 1: I speak on behalf of all of your supporters when
Speaker 1: I say that we wish you every blessing that life
Speaker 1: has to offer. Um, I hope you lived to be
Speaker 1: eighty and that uh that you can enjoy every moment
Speaker 1: of it. And we now have the closing segment of
Speaker 1: the show, which I think our audience has come to
Speaker 1: really expect and appreciate. I know, I it's my favorite
Speaker 1: part of the show because this is the part where
Speaker 1: again I thank you two amazing human being beings, UM,
Speaker 1: Jesse Freud and Joe Brian for for being here with
Speaker 1: me and sharing your stories. And then I get to
Speaker 1: turn my microphone off and leave yours on for a
Speaker 1: segment of the show we call closing arguments, and it
Speaker 1: works like this. We're gonna start with Jesse. We're gonna
Speaker 1: save all due respect Jesse, We're gonna save the best
Speaker 1: for last. The floor is yours, Jesse. Please just tell
Speaker 1: us whatever you got and then pass the mic off
Speaker 1: to Joe. I almost feel so unoriginal because I think
Speaker 1: I'm gonna end where you started, which is what can
Speaker 1: listeners learn from what happened to Joe? And obviously the
Speaker 1: injustice also that happened to Mickey, which and that still
Speaker 1: remains the wrong person, Um is still being legally held
Speaker 1: accountable for killing Mickey, and so that is a horrible injustice.
Speaker 1: And so what can the public learn from that? And
Speaker 1: I think the first thing is what you said, which is,
Speaker 1: if this can happen to Joe, Brian, this can happen
Speaker 1: to anyone. And I remember as a law student when
Speaker 1: I became fascinated with this case before I even got
Speaker 1: to know Joe. It really struck me that this is
Speaker 1: a case that can make people think that the problems
Speaker 1: of the criminal justice system, if they think those don't
Speaker 1: apply to them, after learning about what happened to Joe,
Speaker 1: they should think that these things apply to them. And
Speaker 1: so I hate that the injustice that remains for the
Speaker 1: wrong person being held accountable for Mickey's murder, and I
Speaker 1: hate that Joe's life was likewise stolen from him. But
Speaker 1: I hope what we can all as a society learn
Speaker 1: from that, which is cops and prosecutors or people too,
Speaker 1: and when they come before twelve random folks in a
Speaker 1: jury and they're asking members of the community to do something,
Speaker 1: have the courage to think critically about what you're being
Speaker 1: asked to do and truly hold the state to their burden.
Speaker 1: I think our community can do what sometimes and sadly
Speaker 1: cops and prosecutors don't do, which have the courage to
Speaker 1: say this isn't enough and we're not going to have
Speaker 1: two loss of lives because that's what we've got here.
Speaker 1: Mickey's life was taken and Joe's life was taken, and
Speaker 1: that is preventable. This was preventable. Our courts had an
Speaker 1: opportunity to fix it and refuse to do so. And
Speaker 1: so America can learn something from what happened to Joe
Speaker 1: and Mickey. It's go be good. Jurors, hold the state
Speaker 1: to their burden, um and have the courage to fight
Speaker 1: injustice from the jury box. Joe, over to you. Number one.
Speaker 1: I still respect law enforcement. I still respect courts and
Speaker 1: judges and district attorneys. What I want them to do
Speaker 1: is to work for justice, not conviction. If conviction is
Speaker 1: a part of that justice, then so be it. But
Speaker 1: if you're proven later that your decision was wrong after conviction,
Speaker 1: be man or a woman enough or judge enough or
Speaker 1: whatever enough of a person say hey, we mess this
Speaker 1: up and we need to correct it. Don't just stick
Speaker 1: your head in the sand and say that's not what
Speaker 1: I want to hear, and we're not going to change
Speaker 1: our opinion. Because even in in our discovery hearings, the
Speaker 1: judge had them test the flashlight again for the third
Speaker 1: or fourth time, and the state's lab came back with
Speaker 1: the report was and he said, there's two DNA profiles
Speaker 1: on the flash light. One is not Mickey Bryan and
Speaker 1: one is not Joe Brian. So whose DNA is on
Speaker 1: that flash light? And that was to me a key
Speaker 1: point and evidence they used against me, just like they said,
Speaker 1: you know, there's seemen on the underwear, and then when
Speaker 1: they were DN they tasted there's no seemen there. So
Speaker 1: who's lying? When did the last start? Who did it?
Speaker 1: And who backed up who in protecting that person's decision?
Speaker 1: Why are we not looking for the truth. And if
Speaker 1: you think it can happen to you in America, you
Speaker 1: are wrong. And it didn't happen to just the black
Speaker 1: people either. It happens to white people too, and people
Speaker 1: like Jesse and Walter in the Texas Innocence Project, and you, Jason,
Speaker 1: who worked with the Innocence people. If it weren't for you,
Speaker 1: we would have no hope. I sleep well at night
Speaker 1: because I'm innocent and I'm honest. I'm not perfect. But
Speaker 1: Mickey was my wife, and I loved her and I
Speaker 1: cherished her, I respected her, and I miss her, and
Speaker 1: I wish her family we'd be just as concerned about
Speaker 1: who actually killed her as we are, and I wish they.
Speaker 1: You know, hey, look, maybe we maybe we were misled,
Speaker 1: maybe we were used in that conviction process that somebody
Speaker 1: else won't it And we can do anything through Jesus Christ.
Speaker 1: I'm still living with him every day and I'm still
Speaker 1: relying on him to give me the strength and the hope,
Speaker 1: and I still on naving trouble going sleep at night.
Speaker 1: Thank you for listening to Wrongful Conviction with Jason Flam.
Speaker 1: Please support your local innocence projects and go to the
Speaker 1: link in our bio to see how you can help.
Speaker 1: I'd like to thank our production team Connor Hall, Jeff
Speaker 1: Clyburne and Kevin Warnas. The music on the show, as always,
Speaker 1: is by three time OSCAR nominated composer and Jay Ralph.
Speaker 1: Be sure to follow us on Instagram at Wrongful Conviction
Speaker 1: and on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with
Speaker 1: Jason Flam is a production of Lava for Good Podcasts
Speaker 1: in association with Signal Company Number one, n The Way,
Speaker 1: the Boy