Speaker 1: Beloved couple Joe and Mickey Bryan, who had no children
Speaker 1: of their own, instead dedicated their lives to educating the
Speaker 1: children of Clifton, Texas. But while Joe attended an annual
Speaker 1: high school principal conference one hundred and twenty miles away
Speaker 1: in Austin, tragedy struck on October fifteenth, nineteen eighty five.
Speaker 1: After Mickey did not arrive at her fourth grade classroom
Speaker 1: and could not be reached, her principal went to the
Speaker 1: Brian home with Mickey's parents and found a gruesome crime scene.
Speaker 1: Gunshots had spattered the walls, ceiling, and betting with Mickey's blood,
Speaker 1: and friends drove a distraught Joe Briant home from Austin.
Speaker 1: There 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 bat 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 specks
Speaker 1: of the most common blood type TYPEO, same as Mickey's.
Speaker 1: The sheer absurdity of Joe racing from Austin to Clifton
Speaker 1: and back unseen, free of 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, it cast doubt 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 Brian had to wait thirty five
Speaker 1: long years for parole to finally set him free. This
Speaker 1: is wrongful conviction with Jason Flamm. Welcome back to wrongful
Speaker 1: conviction with Jason Flamm. 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 of my Pam Collof, about
Speaker 1: the astounding case of Joe Bran, 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
Speaker 1: Brian all seventy nine years of age of him with
Speaker 1: us today on the show.
Speaker 2: So, Joe, you missed it a year? Oh did I
Speaker 2: miss a year? I'm oh, happy birthday. He's eighty years old.
Speaker 2: The congratulations.
Speaker 1: Well, I'm sorry you're here because of why you're here,
Speaker 1: but I'm very very happy and honored that you're here
Speaker 1: and with Joe is a renowned attorney Jesse Freud, thank
Speaker 1: you also for being here today on Raefel.
Speaker 3: 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 in the audist is thinking, well,
Speaker 1: that could never happen to me, If it could happen
Speaker 1: to Joe, it could happen to you. And what I
Speaker 1: mean by that is, Joe, you led not just an
Speaker 1: exemplary life, but really a rich fulfilling life up until
Speaker 1: this happened. And can you take us back all the
Speaker 1: way to your childhood and how you grew up in a
Speaker 1: small town in Texas, right.
Speaker 4: Grew up in Waco, grew up on a farm, ran
Speaker 4: animals and family, and headed absolutely wonderful childhood, tended church
Speaker 4: regularly and looking back, I had a very idyllic.
Speaker 1: Life, And how did you find your way into the
Speaker 1: field of education at which you excelled right becoming ultimately
Speaker 1: a really loved and revered educator in Clifton, Texas, the
Speaker 1: principal of the school. But how did you make your
Speaker 1: decision to get into education.
Speaker 4: I always liked school, but at our church I started
Speaker 4: playing the piano full time when I was thirteen, And
Speaker 4: our church and our song leader was my principal at school,
Speaker 4: and I had tremendous respect for him, and I guess
Speaker 4: you could say that he is instrumental in guiding me
Speaker 4: in that direction. So I've always lived and breathed and
Speaker 4: thought education. Mickey and I were unfortunate enough not to
Speaker 4: be able to have children. We both lived in breathed education.
Speaker 4: I helped her with our listening plans, with grading papers.
Speaker 4: We would discuss teaching objectives and gos and how to
Speaker 4: reach them. Then it was great.
Speaker 1: It sounds like it was. And from what I understand,
Speaker 1: the high school, middle and elementary schools were all on
Speaker 1: the same campus, and you were the high school principal
Speaker 1: and Mickey was the fourth grade teacher, and the two
Speaker 1: of you were obviously well known in the small town
Speaker 1: of Clifton, having had a hand to the education of
Speaker 1: so many of the people there. So your shared dedication
Speaker 1: had made you to revered by parents and students alike,
Speaker 1: which brings me back to my point that if a
Speaker 1: beloved figure like yourself, who was leading an upstanding, fulfilling life,
Speaker 1: if this could happen to you, then nobody out there
Speaker 1: is safe because it could happen to anyone. And that
Speaker 1: brings me to the next part of your story, which
Speaker 1: of course is October fourteenth, nineteen eighty five. Now you
Speaker 1: were out of town at an annual Texas Secondary School's
Speaker 1: Principals conference one hundred and twenty miles away in Austin, Texas,
Speaker 1: and this is a conference you who had attended for
Speaker 1: the previous fourteen years. Mickey had seen her parents Otis
Speaker 1: and Fira Blue that afternoon, as well as spoken to
Speaker 1: you as you graded papers and watched the cmas in
Speaker 1: your hotel room. The Country Music wards in Austin around
Speaker 1: nine pm that night. So now the following day, October fifteenth,
Speaker 1: nineteen eighty five, Mickey, who was usually the first one
Speaker 1: to arrive at school, never did. The elementary school principal,
Speaker 1: Rex Daniels, was obviously concerned so he called your home
Speaker 1: and got no answer, So, knowing that you were in Austin,
Speaker 1: he called Mickey's parents, Otis and Verra, who met him
Speaker 1: at your home with the spare Key and her mother.
Speaker 1: And this gives me the chills. Was the first to
Speaker 1: see the horrific and bloody crime scene in your bedroom,
Speaker 1: her daughter's body, Mickey's body laid across the length of
Speaker 1: the bed. Her nightgown was drawn up to her thighs,
Speaker 1: she was undressed from the waist down, and blood was
Speaker 1: spattered on the bed, the ceiling, and all four walls
Speaker 1: from apparent gunshots to the head and abdomen. And at
Speaker 1: this point Rex led the Blues ODIs Everra to the
Speaker 1: living room where they called the police. And then, of
Speaker 1: course Joe, you received that awful, awful news.
Speaker 3: So Joe is alerted to the discovery of her body
Speaker 3: and to what happened to her. While he is in Austin,
Speaker 3: several friends from Clifton drive down to get him because
Speaker 3: of the distraught state he was in, and drive him
Speaker 3: back to Clifton.
Speaker 1: So the Texas Rangers led this investigation, as they often
Speaker 1: did in rural towns like Clifton and Texas ranger Joe
Speaker 1: Wiley interviewed you, Joe, and you answered all the questions,
Speaker 1: telling them about the three fifty seven loaded with birdshot
Speaker 1: that you kept in the bedroom, as well as a
Speaker 1: cash box under the bed that usually held around one
Speaker 1: thousand dollars.
Speaker 2: Both of them were.
Speaker 1: Reported missing at the time, as were Mickey's watch, wedding band,
Speaker 1: and diamond ring. There were no witnesses, no neighbors reported
Speaker 1: hearing anything, no obvious signs of forced entry, no bloody fingerprints,
Speaker 1: no seamen found in the rake kit so there was
Speaker 1: very little for the rangers to go on. Oddly, a cigarette, though,
Speaker 1: was found on the kitchen floor. Now this is important
Speaker 1: because Mickey didn't smoke, and neither did you, Joe. It
Speaker 1: looked like a burglary gone bed. Now, Mickey's brother, Charlie Blue,
Speaker 1: was the vice president of an agrochemical firm out of Florida.
Speaker 1: He came to town with the investigator that the company
Speaker 1: kept on retainer, an ex FBI agent named Bud Saunders. Now,
Speaker 1: while Charlie was in town for Mickey's funeral, Joe lent
Speaker 1: Charlie his car and somewhere along the few days in
Speaker 1: which the car was in Charlie's possession. A flashlight with
Speaker 1: reddish brown specs was allegedly spontaneously found in the trunk
Speaker 1: of the.
Speaker 3: Car, and so Joe's car is out of his possession
Speaker 3: for a period of about five days, and then the
Speaker 3: flashlight is discovered when the car is in Joe's brother
Speaker 3: in law's possession. So the tipping point for and really
Speaker 3: the only point that supported Joe's arrest, was the discovery
Speaker 3: of the flashlight in his.
Speaker 1: Car, and later DNA testing cast out on whether this
Speaker 1: flashlight was ever even at the crime scene at all.
Speaker 1: But nevertheless, unbeknownst to Joe at the time, a search
Speaker 1: warrant of the car was executed and the flashlight was
Speaker 1: sent to the state crime lab. Now this was nineteen
Speaker 1: eighty five, so there was no DNA testing, just soroology,
Speaker 1: and the testing done at the time determined that some
Speaker 1: of us back actually were blood the most common blood type, oh,
Speaker 1: which also happened to be Mickey's blood type. Now, those
Speaker 1: speckles were found on an object that was not found
Speaker 1: at the crime scene, but in one of the couple's
Speaker 1: two cars, which was curiously not in Joe's possession. When
Speaker 1: the flashlight was allegedly found bind you if Joe had
Speaker 1: committed this crime, would he be using a flashlight to
Speaker 1: find his way around his own home to sneak up
Speaker 1: on his own wife. I mean, the state's theory is
Speaker 1: absolutely ridiculous, and this is just one of the many
Speaker 1: reasons why. So the car was not impounded, but rather
Speaker 1: released to Charlie Blue, who left it in Joe's driveway.
Speaker 1: So Joe has no idea that his car has been searched.
Speaker 1: And this flashlight is the crux of the state's case,
Speaker 1: supported by a few other pieces of extremely dubious evidence.
Speaker 3: So their case really rested on four facts. The first
Speaker 3: and most important was the discovery of the flashlight. The
Speaker 3: second was a pair of what they said were semen
Speaker 3: stained underwear discovered in Mickey and Joe's bathroom that at
Speaker 3: the time in the eighties, they had said tested presumptively
Speaker 3: positive for the presence of semen, and that was Joe's
Speaker 3: blood type.
Speaker 1: And I mean, it's his house, so to find what
Speaker 1: maybe Joe's bodily fluids in his own home doesn't really
Speaker 1: implicate him. I mean, it would incriminate an intruder, but
Speaker 1: it's his freaking house.
Speaker 3: Anyway continue, so it got flashlight underwear, a explanation that
Speaker 3: Joe had given regarding opportunities for when the keys to
Speaker 3: his vehicle were out of his possession. And then the
Speaker 3: final point was the discovery of money in the trunk
Speaker 3: of his car following its return to him from his
Speaker 3: brother in law.
Speaker 1: So the money that was initially reported missing from the
Speaker 1: cash box under the bed didn't turn up when the
Speaker 1: search of the car was conducted either, but rather Joe
Speaker 1: reported finding the cash after the fact. It was eight
Speaker 1: hundred and fifty dollars of the usual one thousand, and
Speaker 1: Joe reported this to the authorities, remembering that he and
Speaker 1: Mickey had taken the money to go shopping in Waco,
Speaker 1: and somehow they were like, wait, maybe he's hiding something,
Speaker 1: And so they try to use this to show motive
Speaker 1: that Joe wanted to either steal from his wife right
Speaker 1: or that he initially hid the cash to make it
Speaker 1: seem like.
Speaker 2: There was a robbery.
Speaker 1: But neither of those theories holds any water whatsoever. I mean,
Speaker 1: he'd either be robbing himself because they're married, or if
Speaker 1: he wanted the crime scene to look like a robbery,
Speaker 1: why in the world would he then tell the authorities
Speaker 1: about discovering the money. It makes no fucking sense whatsoever.
Speaker 1: He would have just kept it to himself.
Speaker 3: And so the state's theory of the case was that
Speaker 3: Joe had slipped out of his Austin hotel, driven home,
Speaker 3: let himself into his house with his key, shot mickey
Speaker 3: with the gun that they had kept by their bed,
Speaker 3: cleaned himself up after getting her blood all over him,
Speaker 3: changed clothes and shoes, and drove back to his hotel
Speaker 3: room in Austin, cleaned up again, and made it to
Speaker 3: his morning teachers conference meeting. So that's the state's theory, right.
Speaker 1: And this is a fantastical theory on so many levels.
Speaker 1: No one saw him do any of these things, right.
Speaker 1: No one saw him leave the hotel, no one saw
Speaker 1: him stop for gas, and it was pouring rain that night,
Speaker 1: and no one saw him soaking wet coming or going.
Speaker 1: And Joe had a condition, right, immacula condition which meant
Speaker 1: that he couldn't drive at night anyway, you couldn't see
Speaker 1: to drive at night. And there was no physical evidence
Speaker 1: that any of the things that the police said happened
Speaker 1: actually happened. It's nonsensical and it wasn't just the fact
Speaker 1: that he was one hundred and twenty miles away and
Speaker 1: couldn't have realistically gone there and back without being seen
Speaker 1: unless he was some sort of ghost, but also the
Speaker 1: idea that he would have had to magically been able
Speaker 1: to make all this blood disappear from his body, and
Speaker 1: none of Mickey's blood got into the car either, that
Speaker 1: he allegedly drove back to Austin that night except for
Speaker 1: the phantom flashlight that if were to believe the state's theory,
Speaker 1: he just totally fucked up and absentmindedly left it in
Speaker 1: the trunk while he meticulously managed to scrub everything else
Speaker 1: like some master crime scene manipulator, right, and then not
Speaker 1: to mention he had no motive. In fact, the opposite
Speaker 1: is true. They loved each other very much and everybody
Speaker 1: knew it. It wasn't a troubled marriage as we sometimes see.
Speaker 3: And just to the point of motive really quick. The
Speaker 3: first trial was at actually reversed for an improper insinuation
Speaker 3: that there was any financial motive for Joe to kill Mickey,
Speaker 3: and his defense attorneys tried to respond to that inaccuracy,
Speaker 3: they were denied by the trial court the right to
Speaker 3: do so, and that's actually the reason why Joe's case
Speaker 3: was reversed the first time and why he was retribed
Speaker 3: so correct. There was never a motive established, and by
Speaker 3: the second trial, the state concedes that and talks to
Speaker 3: the jury panel about can you convict if we can't
Speaker 3: tell you what the motive is. So they were absolutely
Speaker 3: clear by the time the second trial rolls around that
Speaker 3: there was no motive because this didn't happen.
Speaker 1: Right, And you know, it gets worse when you start
Speaker 1: to see the way that they smeared his character, and
Speaker 1: of course it's a very contemporaneous story when we come
Speaker 1: to find out later that, in fact, the logical suspect
Speaker 1: and somebody who they knew to be the logical suspect
Speaker 1: at the time was in fact one of their.
Speaker 2: Own It was a police officer.
Speaker 1: Because we cannot leave out at this this is the
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.
Speaker 2: And of course we.
Speaker 1: Know how that works, right, That creates the pressure. And
Speaker 1: so Joe, do you mind telling us about that murder
Speaker 1: and how that played a role in your wrongful conviction.
Speaker 4: Judy Whitley, a high school student, was murdered. They didn't
Speaker 4: know who did it. There were suspicions, but no facts.
Speaker 4: People are alarmed that this could happen in our community
Speaker 4: to a high school child. So the police department, so
Speaker 4: to speak, is put under a lot of pressure to
Speaker 4: find whoever killed Judy Whitley. Well, my opinion, based on
Speaker 4: what I know now is that Dennis Dunlap did it.
Speaker 1: Jesse, this Dennis Dunlop character is a very troubling and
Speaker 1: profound example of how the sort of blue wall protects itself.
Speaker 2: So tell us about.
Speaker 1: That Dunlap and what his role was in these two cases.
Speaker 3: So, Dennis Dunlap was a member of the Clifton Police
Speaker 3: Department in nineteen eighty five, and he was originally a
Speaker 3: suspect in the Judy Whitley case, and that was because
Speaker 3: he had a connection to Judy's family and suspicious items
Speaker 3: found in his possession after he eventually leaves the police
Speaker 3: department in the direction of the then Clifton Police chief.
Speaker 3: And this was a situation where he tried to be
Speaker 3: very involved from the get go. I don't think that's
Speaker 3: very uncommon for actual perpetrators to try and find out
Speaker 3: as much information as they can about the crime that
Speaker 3: they did commit. He attracts understandable suspicion, and from what
Speaker 3: we can tell based on records at the time, he
Speaker 3: was encouraged by the then police chief to leave the
Speaker 3: community because of all of the suspicion growing around him
Speaker 3: and how it did look even back then that he
Speaker 3: was a good, strong suspect for the death of Judy Whitley.
Speaker 3: So he leaves the community.
Speaker 1: And we have so much evidence now that this Dunlap
Speaker 1: character he almost certainly killed miss Whitley, but also most
Speaker 1: likely was the murder in this case. He of course
Speaker 1: took his own life right and.
Speaker 3: After Dennis Dunlap commits suicide on the front page of
Speaker 3: the Clifton Record, the Clifton Police Department in nineteen ninety
Speaker 3: nine announces that they've solved the Judy Whitley case and
Speaker 3: that Dennis Dunlap was responsible. But Joe doesn't get access
Speaker 3: to that information beyond what's publicly reported until twenty twelve.
Speaker 3: It's not until late twenty fourteen twenty fifteen that we
Speaker 3: won going through old files discover that while he did
Speaker 3: leave the department, he did not leave the area. He
Speaker 3: was reported to be in the Waco Clifton area the
Speaker 3: day that Nicky was murdered. Law enforcement knew it, and
Speaker 3: in nineteen ninety six, his ex wife gives an interview
Speaker 3: to the Texas Rangers as well as the then Clifton
Speaker 3: Police chief, and Dennis's ex wife says that Dennis did
Speaker 3: admit to her that he was with Mickey the night
Speaker 3: she was killed.
Speaker 4: Of course, when Mickey got killed, everybody was shocked. She
Speaker 4: was very she was very popular. I had grown up there,
Speaker 4: highly respected. People wanted an answer. They wanted to know
Speaker 4: who killed Judy Whitley, and they wanted to know who
Speaker 4: killed Nicky. And the police, under a great deal of pressure,
Speaker 4: I think, jumped on the first wagon they could jump on.
Speaker 4: They got what they wanted, that solved the case, so
Speaker 4: the pressure was off. Dennis destroyed Mickey's life and they
Speaker 4: destroyed my life.
Speaker 1: This episode is underwritten by Paul Weiss Rifkin, Porton and Garrison,
Speaker 1: a leading international law firm. Paul Weiss has long had
Speaker 1: an unwavering commitment to providing impactful, pro bono legal assistance
Speaker 1: to the most vulnerable members of our society and in
Speaker 1: support of the public interest, including extensive work in the
Speaker 1: criminal justice area. I mean, we could spend this entire
Speaker 1: podcast talking about all the different pieces of exculpatory evidence.
Speaker 2: There was a cigarette but found in the house. Neither
Speaker 2: Jone nor making smoked. Right.
Speaker 1: There was the fact that he was one hundred and
Speaker 1: twenty miles away. We've talked about that already.
Speaker 4: They can't get me there. We proved the model Joe
Speaker 4: mar Carr reproved ro about gasoline.
Speaker 2: Right.
Speaker 1: There was the fact that the flashlight wasn't found at
Speaker 1: the crime scene. It was found in the trunk of
Speaker 1: the car that wasn't in Joe's possession for several days.
Speaker 1: In fact, there was in the possession of somebody who
Speaker 1: we know light on the stand, the fact that there
Speaker 1: was another likely or even obvious suspect, and they pushed
Speaker 1: it under the rugged. There was the absence of any
Speaker 1: blood anywhere on Joe, around Joe in his car, you know,
Speaker 1: so supposedly this flashlight somehow was the only blood. So
Speaker 1: they wanted us to believe that he was holding the
Speaker 1: flashlight in one hand while shooting the gun with the
Speaker 1: other hand.
Speaker 3: In his own home, in his own right, because.
Speaker 1: He didn't know the way around his own little home.
Speaker 2: Right. Yeah, it wasn't like he lived in.
Speaker 3: So of all the things, right, you need a flashlight
Speaker 3: in your own home.
Speaker 1: Right, But then he would have cleaned up every single
Speaker 1: trace of blood from everything, right, And then somehow or
Speaker 1: other spaced out and thrown this flashlight that had this
Speaker 1: tiny microscop And then we get to the blood spatter,
Speaker 1: right of all the junk sciences, and you know, we
Speaker 1: have a whole show devoted to junk science.
Speaker 2: You know. Blood spatter is a quote unquote.
Speaker 1: Scientific protocol which is used in courtrooms all over this
Speaker 1: country and as far back as Joe's trial eighty five,
Speaker 1: probably more than that. It is a nonsensical practice in
Speaker 1: which these charlatans posing as scientists pretend to be able
Speaker 1: to know by examining blood, as in Joe's case, where
Speaker 1: they just examined an empty room with blood all over it,
Speaker 1: and we're magically able to tell you what happened in there.
Speaker 1: You might as well just bring in a psychic.
Speaker 2: While you're at it.
Speaker 1: But this practice is taught in a forty hour course
Speaker 1: that I don't know if anyone's ever failed. You just
Speaker 1: pay the money, you go take your forty hour course.
Speaker 1: If you fail, they 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.
Speaker 3: Specifically, bloodstain pattern analysis is the scientific study of the
Speaker 3: static consequences resulting from dynamic blood shedding events, and it
Speaker 3: involves detecting and describing and analyzing the size, shape, distribution, number, location,
Speaker 3: and pattern of bloodstains, as well as the nature of
Speaker 3: their target surfaces and the relationship among various stains at
Speaker 3: a particular scene. So as I understand it, and this
Speaker 3: is really mostly from preparing for the evidentiary hearing in
Speaker 3: Joe's case, is that bloodstain pattern analysis is based in
Speaker 3: accepted and proven sciences. The problem with it is what
Speaker 3: you said, which is the training of practitioners and using
Speaker 3: it properly within its correct limits. And that's what happened
Speaker 3: here with Detective Thorman, a purported practitioner whose training was
Speaker 3: a single forty hour course, and the practitioner admitted that
Speaker 3: this was the first major complex scene he had analyzed
Speaker 3: as a supposedly certified practitioner who between our evidentiary hearing
Speaker 3: did eventually recant and admit that his methodologies and application
Speaker 3: were mostly incorrect and admitted that then a lot of
Speaker 3: his conclusions in testimony was incorrect. And so, like we
Speaker 3: talked about at the beginning, what was the state's theory
Speaker 3: and why is bloodstain pattern analysis? Why was it important
Speaker 3: to the state securing a conviction twice against Joe? And
Speaker 3: it was used to explain why there was no physical evidence,
Speaker 3: like you said, what was connecting him. The flashlight was
Speaker 3: discovered in complete isolation, with no context away from the
Speaker 3: crime scene. His car was clean. There's never anything on
Speaker 3: him physically discovered, not in his hotel room, not on
Speaker 3: his person later And so the bloodstain pattern analysis proffered
Speaker 3: Detective Foreman was used to fill the very clear gaps
Speaker 3: in the state's case and to make an impossible theory
Speaker 3: of the case seem plausible.
Speaker 1: Yeah, and I just want to quote from Pam Koloff's
Speaker 1: a wonderful article where she actually went to her great
Speaker 1: credit to Yukon, Oklahoma, where she participated in one of
Speaker 1: these classes that she paid six hundred and something dollars
Speaker 1: for and she talks about I'm just going to quote now,
Speaker 1: armed with calipers, scientific calculators and string, we measured bloodstains,
Speaker 1: plugged our data into equations, and tried to trace the
Speaker 1: trajectories of individual droplets back towards their source. As was
Speaker 1: true with pattern classification, there were many ways to get
Speaker 1: this wrong. Small deviations with the calipers resulted in markedly
Speaker 1: different results. Still, Griffin, who was the instructor, had us
Speaker 1: press forward. He said, quote, We're not really going to
Speaker 1: focus on the math and physics. It just kind of
Speaker 1: bogs things down. Uh, that's me editorialzing.
Speaker 2: What okay? He told us.
Speaker 1: She goes on to say at the outset, quote, I'll
Speaker 1: teach you which keys under your calculator to press. It's unbelievable,
Speaker 1: And then back to PAMs. It was upon this shaky
Speaker 1: foundation that Dorman had tried to reverse engineer the shooting
Speaker 1: at the Brian home.
Speaker 2: Looking over his nineteen eighty.
Speaker 1: Five report one night back at my hotel, I could
Speaker 1: see where his analysis went awry. According to his report,
Speaker 1: he believed he was determining the alleged height from which
Speaker 1: the shots were fired, a conclusion his data could not yield.
Speaker 1: I began to wonder if his assessment of the flashlight, too,
Speaker 1: was faulty when he asserted that the blood on the
Speaker 1: lens was backspatter from a close range shooting. Now it
Speaker 1: goes on, because they teach you in this class as
Speaker 1: well how to present testimony as if you're an expert.
Speaker 1: Its basically teach you how to act in court, to
Speaker 1: pretend better that you actually know what you're talking about,
Speaker 1: and to be more persuasive, and how to be able
Speaker 1: to dodge questions from you know, quality defense attorney. I mean,
Speaker 1: let's face it, not too many of these blood spatter
Speaker 1: people come in and testify for the defense. So they're
Speaker 1: teaching you, in essence, how to frame people. And that's
Speaker 1: exactly what they did in Joe's case, and it makes
Speaker 1: me sick.
Speaker 3: It's, I think, a perfect example of a situation where
Speaker 3: juris trust the prosecutors in their community and they trust
Speaker 3: law enforcement, and Joe's case, sadly isn't the only example
Speaker 3: of this. When prosecutors go to juris and paint a
Speaker 3: picture using, like Joe said, fabricated evidence and an impossible
Speaker 3: narrative and show them awful photos of a crime that
Speaker 3: clearly did happen and ask them to say, okay, either
Speaker 3: don't hold somebody responsible or hold somebody responsible. Right, and
Speaker 3: especially in the context of what this community had just
Speaker 3: gone through, like you just said, with the loss of
Speaker 3: Judy Whitley just a few months prior, and then the
Speaker 3: loss of Mickey and her brother in particular, paid a
Speaker 3: special prosecutor to prosecute Joe. And so you've got somebody
Speaker 3: who's got a financial incentive to get a conviction, and
Speaker 3: you have a jury who's being told about that financial arrangement, right,
Speaker 3: that knows this is what the victim's family paid for.
Speaker 3: This is clearly what they believed what jury was going
Speaker 3: to let him walk out of a courtroom. There just
Speaker 3: wasn't in any jurisdiction in nineteen eighty five, eighty six,
Speaker 3: and eighty nine that just sadly wasn't going to happen.
Speaker 1: So with this nonsensical blood spatter analysis and this flashlight
Speaker 1: that wasn't even found at the crime scene as the
Speaker 1: big smoking gun, and then the assassinations on his character,
Speaker 1: it was a almost a foregone conclusion. So can you
Speaker 1: take us back to that moment when the judge read
Speaker 1: the verdict.
Speaker 4: Well, it's very unreal. You already know your life has
Speaker 4: changed forever because of everything that's already happened. But then
Speaker 4: now people are going to look at you like you
Speaker 4: and I'm going to end up in prison. There's something
Speaker 4: I didn't do, and I'm gonna have to fight every
Speaker 4: day to maintain my personal integrity. You think, how can
Speaker 4: people do this? But what is really troubling is that
Speaker 4: you know that people know that what they've done is
Speaker 4: not right, and they don't have any trouble doing what's wrong.
Speaker 4: Everything that happened really hurts. I just don't go there
Speaker 4: very often. But God has a purpose for each of us.
Speaker 4: And when I first went to prison, I was very
Speaker 4: angry with God and did not go to church and
Speaker 4: didn't tell anybody I was a Christian or even played
Speaker 4: the piano. And after I'd been there, probably eight weeks,
Speaker 4: the chaplain told me that I understand that you play
Speaker 4: the piano and that you're a Christian. And I said,
Speaker 4: how do you know I haven't told anybody. Well, he
Speaker 4: wanted to hear me play the piano, so we went
Speaker 4: into the chapel and I said, what do you want
Speaker 4: to hear, and he told me, and I played the
Speaker 4: songs when we went back to the chapel and he
Speaker 4: asked if I would play the piano for the chapel
Speaker 4: services and I said, no, I will not, And I
Speaker 4: told him I was mad at God, and I said,
Speaker 4: but how did you know that I was a Christian,
Speaker 4: that I played the piano? And he comes out with
Speaker 4: a letter from my high school principal when I grew up,
Speaker 4: who led the singing at the church where I play.
Speaker 4: And he told Chaplain Pickett, I've done Joe since he
Speaker 4: was five. I believe he's innocent. I know he's hurt,
Speaker 4: and if you can get him to play the piano
Speaker 4: for your church services, you'll be blessed and it will
Speaker 4: help him. And I told him I'm not playing, and
Speaker 4: that wise Chaplain told me, well, you think about it
Speaker 4: tonight and you let me know in the morning. I
Speaker 4: got zero sleep that night because God was all over me, saying,
Speaker 4: you so to speak, Who do you think gave you
Speaker 4: that skill? I did? I want you to use it
Speaker 4: for me. So the next morning I called Chaplain Picket
Speaker 4: and told him I would play for the chapel services,
Speaker 4: and he says, good, we at choir practice today at
Speaker 4: two o'clock and I was in and busy for the
Speaker 4: rest of my stay. So we can do anything through Christ.
Speaker 4: And when I asked God for peace, he gave me peace.
Speaker 1: Well, I'm glad that you found that, and I'm glad
Speaker 1: you're here today because you are a living testament to
Speaker 1: the human spirits.
Speaker 2: So yeah, so then here we are.
Speaker 1: You've now been sentenced to ninety nine years in prison. Right,
Speaker 1: I 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: Again to me, the idea that you're still here with
Speaker 1: you know, three brain cells to rub together and be
Speaker 1: able to sit up right and have a laugh and
Speaker 1: have a smile on your face, it's it's inspiring. It's
Speaker 1: you know, it's what I'll tell you right now. For
Speaker 1: those of us that do this work, it's what drives
Speaker 1: us forward is knowing that there are people like you
Speaker 1: who have this otherworldly uh uh. You know, courage is
Speaker 1: the best way I can and grace.
Speaker 3: And perseverance of of course, you know, when I pick
Speaker 3: up this case in November of twenty thirteen as a
Speaker 3: law student, it's my whole life, like my whole life.
Speaker 3: Joe had been fighting this fight, and it's an unbelievable
Speaker 3: set of strength and endurance to maintain your innocence and
Speaker 3: keep fighting for that period of time. It's unbelievable. And
Speaker 3: most people give up, right, we know, innocent people plead guilty,
Speaker 3: and innocent people end up giving up just to move
Speaker 3: on with their lives. And the fact that he hasn't,
Speaker 3: I think just speaks so much to the character that
Speaker 3: everybody in that community knows he has and knew he had,
Speaker 3: and just his spirit.
Speaker 1: Which brings us to that long, long fight, the post
Speaker 1: conviction litigation, and all the things that were discovered along
Speaker 1: the way, not to mention what was already known, which
Speaker 1: should have kept them from ever even bringing Joe to trial.
Speaker 1: I mean, the sheer breadth of this, it's insane to
Speaker 1: believe that none of it was enough to spring him
Speaker 1: out of there with the state acknowledging his actual innocence.
Speaker 1: And I'm going to just list some of it now, right, So,
Speaker 1: no one saw Joe leave the hotel in Austin, and
Speaker 1: no one saw him back in Clifton. I mean, it's
Speaker 1: one hundred and twenty mile journey he would have had
Speaker 1: to stop for gas at some point, right, And then
Speaker 1: the mileage on Joe's car proved that he did not
Speaker 1: make the journey back and forth to Austin. According to
Speaker 1: the state's own admission, he had no motive to kill Mickey,
Speaker 1: so all that nonsense about the cash or stage robbery
Speaker 1: was just nonsense. And then Dennis Dunlap, Okay, the main
Speaker 1: suspect in Judy Whitley's murder who was forced out of
Speaker 1: Clifton PD as a result, and who they laid blame
Speaker 1: for it on after he killed himself, But only after
Speaker 1: he killed himself. His wife told the rangers and the
Speaker 1: Clifton Police chief in nineteen ninety nine that Dunlap admitted
Speaker 1: to being with Mickey on the night she was killed.
Speaker 1: I mean, what the fuck? And he doesn't get to
Speaker 1: learn about that from nineteen ninety nine until twenty and
Speaker 1: twelve when they finally released these documents to him. So
Speaker 1: thirty five long years roll by with no one acknowledging
Speaker 1: his innocence because of this flashlight that wasn't even found
Speaker 1: at the crime scene, but rather was found in the car,
Speaker 1: that wasn't in Joe's possession or control. Rather it was
Speaker 1: in the possession of the man that brought an investigator
Speaker 1: to his own sister's funeral and paid a special prosecutor
Speaker 1: to make sure that they nailed Joe but Jesse. DNA
Speaker 1: testing was finally done on that flashlight in twenty eighteen,
Speaker 1: testing that wasn't available in nineteen eighty five. It hadn't
Speaker 1: been invented yet. What did they find out? Yeah?
Speaker 3: So I think the simplest way is the question that
Speaker 3: was asked at the evidentiary hearing, which is, can the
Speaker 3: State of Texas prove that Mickey's DNA is on that flashlight?
Speaker 3: And the answer to that question by the state's analyst
Speaker 3: was no. There's two results from a twenty eighteen set
Speaker 3: of DNA testing. One was on the lens of the
Speaker 3: flashlight that was an inconclusive result, and then there was
Speaker 3: a DNA test of the swab from the handle and
Speaker 3: the power button of the flashlight that excluded him and Mickey. So,
Speaker 3: does modern testing prove that Mickey's DNA is on that flashlight?
Speaker 3: And the answer to that is now.
Speaker 1: So there was Type O blood, the most common blood type,
Speaker 1: on this flashlight, but not necessary from the crime scene.
Speaker 3: That would be our position. The state's position would obviously
Speaker 3: be different, but modern testing cannot corroborate the state's position.
Speaker 1: And add that conclusion to the already patently ridiculous theory
Speaker 1: of this crime and what was discovered about Dunlap, and
Speaker 1: it's all just becomes very hard to swallow that it
Speaker 1: took this long for you, Joe, to finally be free,
Speaker 1: but all appeals were exhausted, and then despite an exemplary
Speaker 1: disciplinary record, you're involvement in the chapel, playing piano, tutoring,
Speaker 1: the parole board denied you seven times. Is that right?
Speaker 3: Yeah?
Speaker 4: Seven times?
Speaker 1: Yeah, So your patience has tried and tried and tried,
Speaker 1: but finally, Joe, finally you were freed just a short
Speaker 1: while ago.
Speaker 2: And what was that like?
Speaker 4: I mean, well, there are many tears. You're so thankful
Speaker 4: to be out and it's beautiful to see people who
Speaker 4: care for you and love youaiting for you out there
Speaker 4: when you get outside. Jesse was one of those waiting,
Speaker 4: along with my family and other people who were interested
Speaker 4: in in my case. A lot of people could not
Speaker 4: be there, and it was understandable.
Speaker 3: It was right at the beginning of Corona a couple
Speaker 3: of weeks after the world shut down.
Speaker 4: Yes, absolutely wonderful though to be able to hug your
Speaker 4: family and to get into the vehicle and go home.
Speaker 4: The young lady that we're watching right now is very instrumental.
Speaker 3: Well, and it's not definitely not only me, Walter.
Speaker 4: I know that, I know that Walter and Leon and
Speaker 4: Allison and Shay and Allen.
Speaker 3: Joe has wonderful parole lawyers. Yes, again, Joe is not
Speaker 3: free like we just talked about because the courts did
Speaker 3: their thing. Joe's free because thankfully he had parole lawyers
Speaker 3: that were able to explain the circumstances to the parole
Speaker 3: board in a way that clearly made sense. And so
Speaker 3: they are really the heroes.
Speaker 4: Thank God, I'm home. My brother and his wife have
Speaker 4: provided a home for me, and I am just fabulously
Speaker 4: grateful and it's encouraging, very humbling what others have done
Speaker 4: to help me.
Speaker 1: I know I speak on behalf of all of your
Speaker 1: supporters when I say that we wish you every blessing
Speaker 1: that life has to offer. I hope you live to
Speaker 1: be one hundred and eighty and that you can enjoy
Speaker 1: every moment of it. And we now have the closing
Speaker 1: segment of the show, which I think our audience has
Speaker 1: come to really expect and appreciate. I know it's my
Speaker 1: favorite part of the show because this is the part
Speaker 1: where again I thank you too amazing human beings, Jesse
Speaker 1: Freud and Joe Brian for being here with me and
Speaker 1: sharing your stories. And then I get to turn my
Speaker 1: microphone off and leave yours on for a segment of
Speaker 1: the show we call closing arguments, and it works like this.
Speaker 1: We're going to start with Jesse. We're going to save
Speaker 1: well due respect, Jesse. We're going to save the best
Speaker 1: for last. The floor is yours, so Jesse, please just
Speaker 1: tell us whatever you got and then pass the mic.
Speaker 2: Off to Joe.
Speaker 3: I almost feel so unoriginal because I think I'm going
Speaker 3: to end where you started, which is what can listeners
Speaker 3: learn from what happened to Joe? And obviously the injustice
Speaker 3: also that happened to Mickey, which and that still remains.
Speaker 3: The wrong person is still being legally held accountable for
Speaker 3: killing Mickey, and so that is a horrible injustice, and
Speaker 3: so what can the public learn from that? And I
Speaker 3: think the first thing is what you said, which is
Speaker 3: if this can happen to Joe Brian. This can happen
Speaker 3: to anyone. And I remember as a law student when
Speaker 3: I became fascinated with this case before I even got
Speaker 3: to know Joe. It really struck me that this is
Speaker 3: a case that can make people think that the problems
Speaker 3: of the criminal justice system, if they think those don't
Speaker 3: apply to them, after learning about what happened to Joe,
Speaker 3: they should think that these things apply to them. And
Speaker 3: so I hate that the injustice that remains for the
Speaker 3: wrong person being held accountable for Mickey's murder, and I
Speaker 3: hate that Joe's life was likewise stolen from him. But
Speaker 3: I hope what we can all as a society learn
Speaker 3: from that, which is cops and prosecutors are people too,
Speaker 3: and when they come before twelve random folks in a
Speaker 3: jury and they're asking members of the community to do something,
Speaker 3: have the courage to think critically about what you're being
Speaker 3: asked to do and truly hold the state to their burden.
Speaker 3: I think our community can do what sometimes and sadly
Speaker 3: cops and prosecutors don't do, which have the courage to
Speaker 3: say this isn't enough, and we're not going to have
Speaker 3: two loss of lives, because that's what we've got here.
Speaker 3: Mickey's life was taken and Joe's life was taken, and
Speaker 3: that is preventable. This was preventable. Our courts had an
Speaker 3: opportunity to fix it and refuse to do so. And
Speaker 3: so America can learn something from what happened to Joe
Speaker 3: and Mickey. It's go be good jurors, hold the state
Speaker 3: to their burden, and have the courage to fight injustice
Speaker 3: from the jury box.
Speaker 2: Joe, over to you, number one.
Speaker 4: I still respect law enforcement. I still respect courts and
Speaker 4: judges and district attorneys. Well, what I want them to
Speaker 4: do is to work for justice, not conviction. If conviction
Speaker 4: is a part of that justice, then so be it.
Speaker 4: But if you're proven later that your decision was wrong
Speaker 4: after a conviction, be man or woman enough or judge
Speaker 4: enough or whatever enough of a person say hey, we
Speaker 4: mess this up and we need to correct it. Don't
Speaker 4: just stick your head in the sand and say that's
Speaker 4: not what I want to hear, and we're not going
Speaker 4: to change our opinion. Because even in our discovery hearings,
Speaker 4: the judge had them test the flashlight again for the
Speaker 4: third or fourth time, and the state's lab came back
Speaker 4: with the report was and he said, there's two DNA
Speaker 4: profiles on the flashlight. One is not Mickey Brian and
Speaker 4: one is not Joe Brian. So whose DNA is on
Speaker 4: that flashlight? And that was to me a key point
Speaker 4: in evidence they used against me, just like they said
Speaker 4: they're seemen on the underwear, and then when they were
Speaker 4: DNA tested, there's no seeming there. So who's lying? When
Speaker 4: did the last start? Who did it and who backed
Speaker 4: up who in protecting that person's decision. Why are we
Speaker 4: not looking for the truth. And if you think it
Speaker 4: can't happen to you in America, you are wrong. And
Speaker 4: it doesn't happen just to black people either. It happens
Speaker 4: to white people too, and people like Jesse and Walter
Speaker 4: in the Texas Innocence Project, and you, Jason, who worked
Speaker 4: with the Innocence people. If it weren't for you, we
Speaker 4: would have no hope. I sleep well at night because
Speaker 4: I'm innocent and I'm honest. I'm not perfect. But Micky
Speaker 4: was my wife, and I loved her, and I cherished her,
Speaker 4: I respected her, and I miss her, and I wish
Speaker 4: her family we'd be just as concerned about who actually
Speaker 4: killed her as we are, and I wish they. You know, hey,
Speaker 4: look maybe we were misled, maybe we were used in
Speaker 4: that conviction process that somebody else won't it. We can
Speaker 4: do anything through Jesus Christ. I'm still living with him
Speaker 4: every day, and I'm still relying on him to give
Speaker 4: me the strength and the hope, and I still don't
Speaker 4: having trouble going to sleep at night.
Speaker 1: Thank you for listening to Wrongful Conviction with Jason Flahm.
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 Cliburn,
Speaker 1: and Kevin Warnis.
Speaker 2: The music on the.
Speaker 1: Show, as always, is by three time OSCAR nominated composer
Speaker 1: Jay Ralph. Be sure to follow us on Instagram at
Speaker 1: Wrongful Conviction and on Facebook at Wrongful Conviction Podcast. Wrongful
Speaker 1: Conviction with Jason Flahm is a production of Lava for
Speaker 1: Good Podcasts in association with Signal Company Number one.
Speaker 4: The Man, Why the Land in the World,