Speaker 1: On March twenty fifth, nineteen eighty eight, outside of the
Speaker 1: Brookline Housing Project, a drug deal went bad, resulting in
Speaker 1: the shooting death of a guy named Jimmy CALIBERA Soon,
Speaker 1: a notorious thief and cyrial informant named Richard Doyle ran
Speaker 1: into one of the assailants, a guy named Howard Wesley,
Speaker 1: and after their encounter, Doyle claimed that a guy who
Speaker 1: lived at the Brookline Houses named John Whitfield, also known
Speaker 1: as Divine G, was one of his shooters, and while
Speaker 1: Harold Wesley admitted his own involvement, he vehemently denied Divines,
Speaker 1: but Wesley died in jail before getting to say so
Speaker 1: at Divines trial. This is wrongful Conviction. You're listening to
Speaker 1: Wrongful Conviction. You can listen to this and all the
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Speaker 1: All right, welcome to a very special edition of Wrongful Conviction.
Speaker 1: And I say that in all sincerity. We have not
Speaker 1: one but two of my personal heroes here today. Jeffrey Deskovic,
Speaker 1: who's been on the show before as an exonery. Now
Speaker 1: he's back as the attorney for a man who's yet
Speaker 1: to be exonerated, but is as innocent as could be
Speaker 1: and will be exonerated with your expert help. Is that
Speaker 1: fair to say, Jeff, you're to say, Jeff Deskovic, welcome
Speaker 1: back to wrongful conviction.
Speaker 2: Thank you very much. And I do want to share
Speaker 2: that I do represent the Vine also in collaboration with
Speaker 2: Oscar Michelin.
Speaker 1: And that's ironic that as other lawyers named Oscar because
Speaker 1: the Vine was just nominated for an Oscar for his
Speaker 1: film Sing Sing, So he's got Oscar covered in every direction.
Speaker 1: Were you actually nominated for an Oscar or the film
Speaker 1: was nominated?
Speaker 3: No, I was nominated for Adaptive screen Well that's why
Speaker 3: I went to the Oscars. You can't go to the
Speaker 3: Oscars unless you're nominated, right, specifically, Yeah, sat next to
Speaker 3: Ray find during the class photos.
Speaker 4: It's incredible.
Speaker 1: I mean, this man is just different. Twenty five years
Speaker 1: in prison, Oscar nominated, accomplished author, playwright. I mean he's
Speaker 1: a healer, right, I mean, this is a guy who
Speaker 1: brought peace to a place that desperately needed it through creativity.
Speaker 1: Divine is out shopping a number of new screenplays that
Speaker 1: he's written. All of us are looking forward to seeing
Speaker 1: where you go next, because this guy is truly the limit.
Speaker 1: Sorry if I'm embarrassing you right now, but Divine, I'm
Speaker 1: just really honored that you're here on our show.
Speaker 4: I'm honored to be here, man, thank you for inviting me.
Speaker 4: And this is a New York story. You were born
Speaker 4: in New York, right like me?
Speaker 3: Absolutely, East New York is where I actually was born
Speaker 3: and had lived in Kanas and Brownsville.
Speaker 4: I'm a Brooklyn Night one hundred percent.
Speaker 1: And you grew up in a time when New York,
Speaker 1: especially in those areas, was experiencing a lot of turmoil.
Speaker 1: But you, somehow or other, even back then, were working
Speaker 1: on developing your artistic side. Right, Can you can tell
Speaker 1: us a little bit about growing up in your teenage
Speaker 1: years and what that was all like before everything went
Speaker 1: off the rails.
Speaker 3: I was kind of like a good kid. I was
Speaker 3: one of them adventurous kids. I was all into really
Speaker 3: positive and productive things. And I was around about eleven
Speaker 3: twelve years old. I was so fascinated with Bruce Lee.
Speaker 3: I used to make eight millimeters karate movies. Me and
Speaker 3: my friend Frank Johnson, we used to make these karate
Speaker 3: movies in charge our friends like a quarter a dollar.
Speaker 3: That was an early state of my artistic energy. And
Speaker 3: then I eventually started dancing. I became a really efficient dancer.
Speaker 3: I actually I was recruited by a dance group called Realism,
Speaker 3: and it was a semi professional group. I appeared on
Speaker 3: television with Stephanie Mills. Y'all probably may remember the show
Speaker 3: called Soap Factory Disco.
Speaker 4: In nineteen seventy nine. It was an old show.
Speaker 3: I appeared on two episodes with Stephanie Mills when she
Speaker 3: was singing her song put Your Body in It.
Speaker 4: I did shows with Neil.
Speaker 3: Ward, Instant Funk, and a variety of other popular groups,
Speaker 3: and I was pretty good at dancing.
Speaker 4: Then.
Speaker 3: At that time I also became a DJ and eventually
Speaker 3: became probably one of Brookline's most famous DJs. It was
Speaker 3: a group I had called mix Machine. Actually in the
Speaker 3: movie sing scene they mentioned it. Coleman Domingo says, yeah,
Speaker 3: they used to call me mix Machine, and they mentioned
Speaker 3: that name several times. And because of the dancing, eventually
Speaker 3: I went to High School Performing Arts, and for those
Speaker 3: who know high School Performing Arts, that's the fame school,
Speaker 3: the famous Fame.
Speaker 4: School from the movie Fan Yeah, from the movie Fame.
Speaker 3: They filmed it in that particular school where I was at.
Speaker 3: I really wanted to go there for acting, so I
Speaker 3: got in with dance and I wanted to switch over
Speaker 3: to acting. But eventually I left high school performing arts.
Speaker 3: I just couldn't deal with all of the teasing, the bullying,
Speaker 3: and I wasn't the type of person who really respond
Speaker 3: well to abuse. I mean, I knew martial arts, I
Speaker 3: got into a lot of so eventually I moved on
Speaker 3: and went to Kanarsi High School, where I ultimately graduated.
Speaker 4: While all that was going on, I.
Speaker 3: Always kept a after school job, worked on the weekends
Speaker 3: because as a DJ, I needed money to buy the records,
Speaker 3: to buy the equipment, to keep things updated. That was
Speaker 3: basically my life before my life, like you said, went
Speaker 3: off the rails. And then I got into this accident.
Speaker 3: It was severe, woke up in the hospital. It was
Speaker 3: really damaged pretty bad. I couldn't work, and eventually I
Speaker 3: even tried to go back to work. I started delivering pizzas.
Speaker 3: I was Abdomino's pizza delivery boy, and eventually I had
Speaker 3: to quit that job because of the injuries. It was
Speaker 3: so much on me and the doctors telling them, you
Speaker 3: can't work. My lawyer's telling me, you can't work. You
Speaker 3: gotta let these injuries heal. Time go by, I couldn't
Speaker 3: get unemployment, I couldn't get certain monies, and then I
Speaker 3: made probably the biggest mistake of my life.
Speaker 4: All my friends was in the game.
Speaker 3: Hustling out in the street, and I was always able
Speaker 3: to avoid it. But after that accident, I said, you know,
Speaker 3: when I'm a sneak, out sell some drugs, and it
Speaker 3: backfired on me. I didn't last two weeks on the
Speaker 3: streets because I had no idea what I was doing.
Speaker 3: I had copped out to the drug possession. I went
Speaker 3: up state for one to three and out of the
Speaker 3: clear blue Scott They brought me back down the Riker's
Speaker 3: Allen and recharged me for a homicide, a homicide I
Speaker 3: had absolutely nothing to do with.
Speaker 1: It was about two months before Divine began his one
Speaker 1: to three year bid for possession that this homicide had
Speaker 1: occurred on March twenty fifth, nineteen eighty eight, somewhere along
Speaker 1: the stretch of one hundred and eighth Street that ran
Speaker 1: through the Brookline Projects and much of what we know
Speaker 1: comes from a recorded statement with one of the assailants,
Speaker 1: a guy named Harold Wesley.
Speaker 3: From what I understand, it was a drug deal gone bad.
Speaker 3: It was between Shatik, Harold Wesley, an individual named Patrick,
Speaker 3: and this guy named Jim. Harold Wesley calls him Jim Carabella,
Speaker 3: but his actual name, according to the police reports, was
Speaker 3: Rudolph MIGLARISI. What happened is the old Shatique drugs or something,
Speaker 3: and Shatik wanted to drug ugs or the money, and
Speaker 3: they started arguing over it, and Shatig says that he
Speaker 3: pulls the gun, shoots him in the head, and then
Speaker 3: he made Patrick stand there and pull the trigger. Then
Speaker 3: they run and Harold Wessey says that he sees a
Speaker 3: woman who was dressed in some sort of green coat
Speaker 3: or something. That was Marjorie Shack, whom he says she
Speaker 3: lived in that building on the third floor.
Speaker 1: Divine only found out about this recording and Marjorie Shack
Speaker 1: long after he had been convicted.
Speaker 4: Come to find out.
Speaker 3: We eventually tracked her down and Marjorie Shack also confirms
Speaker 3: that she told the.
Speaker 4: Police it wasn't me.
Speaker 3: The police kept showing up pictures of me trying to
Speaker 3: convince her that it was me, and she said, no,
Speaker 3: it's not him, it's not him. The night that had happened,
Speaker 3: I was across town at my stepfather's house over there
Speaker 3: on Buffalo Avenue, and that night I remember coming in
Speaker 3: and because the crime happened in the back of my building,
Speaker 3: I've seen all the police ropes and police cars in
Speaker 3: the back of my building, so obviously I knew something happened.
Speaker 3: Next day, I'm hearing rumors in the neighborhood. Yo, some
Speaker 3: guys from out of the neighborhood shots guy in the
Speaker 3: back of the building.
Speaker 1: So the neighborhood was buzzing. But it doesn't appear that
Speaker 1: anyone cooperated until Harold Wesley had a run in with
Speaker 1: police that June.
Speaker 3: Harold Wesley had got arrested for possession of drugs, a
Speaker 3: shotgun and the weed, and when the police pulled him over,
Speaker 3: he was about to have a shootout with the police.
Speaker 3: Somehow the shootout was avoided. Howld Wessey goes in custody.
Speaker 3: Now he wants to cut a deal with the Feds.
Speaker 3: So now atf steps in and this is how the
Speaker 3: audio tape came about. He's on this audio tape trying
Speaker 3: to cut this deal with the Feds, and now this
Speaker 3: guy starts talking about every crime and everything he knew
Speaker 3: in the neighborhood. And he's jumping all over the place too.
Speaker 3: He's not focusing on one thing. He's talking about this thing.
Speaker 3: Then he jumps to this, then he jumps from here.
Speaker 3: He's jumping from there, and it's kind of discombobulated when
Speaker 3: you read the tape. And onside one of the tape
Speaker 3: he mentions me he's mentioned me about a conflict with drugs,
Speaker 3: had been with some guy named R and Jr. That
Speaker 3: he was trying to get me to pay him to
Speaker 3: deal with JR and R. So somehow the police thought
Speaker 3: that he was saying that the JR and R was
Speaker 3: Jim Carabella.
Speaker 4: So they got that whole thing all screwed up.
Speaker 3: So by the time you get to side to of
Speaker 3: the tape, you can see that they're confused. See, the
Speaker 3: police already knew that it was Shatique and Patrick that
Speaker 3: did it, so they confirmed that. But then he said,
Speaker 3: well then what about Divine, Well did Divine order it?
Speaker 3: And then Harold West They cleared it up conclusively. By
Speaker 3: the end of the tape, he said, no, Divine didn't
Speaker 3: order it. Even he was getting frustrated with ATF agent.
Speaker 3: His name is Bob Hamilton. He was getting really frustrated
Speaker 3: with him, like, well, why you keep bringing up this
Speaker 3: divine character when I'm talking about something else.
Speaker 1: And while this recording happened and Wesley was in custody,
Speaker 1: a guy named Richard Doyle and his friend Scott Bell
Speaker 1: were arrested for burglarizing the home of someone named mar
Speaker 1: Sigliano as for a possession of crack. And Doyle knew
Speaker 1: Divine from the projects, but they never got along, so
Speaker 1: that's a bit of bad luck. When Doyle ran into
Speaker 1: Harold Wesley.
Speaker 3: Richard Doyle saw Harold Wesley's shatik in the ballpins, and
Speaker 3: because they knew each other, they started talking. Now, I
Speaker 3: guess what Shatik must have told him. Yo, They must
Speaker 3: have thinked, this is the vine, because you can see
Speaker 3: on the tape that they actually kept pressing Harold, that
Speaker 3: kept mentioning my name, and Harold kept telling him no,
Speaker 3: not the vine, not the vine. Then Richard Doyle came
Speaker 3: to Scott Belly and said, yo, listen, I got a
Speaker 3: way for us to get out, we can say we
Speaker 3: saw Devine did this crime.
Speaker 2: Richard Doyle got the idea that he was going to
Speaker 2: get both of them out of jail by falsely implicating
Speaker 2: Divine for a homicide.
Speaker 3: Because Richard Doyle is a professional informant, He's been doing
Speaker 3: this for a while. He testified in Pencil and Jeffrey's case,
Speaker 3: he testified and Gary Reedy's case, but he testified in
Speaker 3: multiple cases.
Speaker 4: So he has a history of this and he knows
Speaker 4: that if you.
Speaker 3: Come up with this type of information that prosecutors love
Speaker 3: you for this and you can get out of jail.
Speaker 3: So Scott Bello says, no, I'm not doing that, No,
Speaker 3: I'm not doing that. So Richard Doyle goes on about
Speaker 3: his business and Scott Belli sees him talking to a
Speaker 3: man in a suit and the next thing you know,
Speaker 3: they walking out of prison. Then, after Richard Doyle gets
Speaker 3: out a week later, miraculously, he goes to the police
Speaker 3: station claiming to be an eye witness to this.
Speaker 1: So, on the strength of this serial informants word, Divine
Speaker 1: was transferred from Upstate to Rikers to face this homicide charge,
Speaker 1: even though Harold Wesley had already cleared his name.
Speaker 3: The minute I went on Rikers Island, like about three
Speaker 3: days later, he committed suicide in Brooklyn House of Detention. Well,
Speaker 3: they say he committed suicide. I did a four year
Speaker 3: request and got all of the documents. They said that
Speaker 3: they found him with the rope that allegedly hung him
Speaker 3: under his mattress. So in essence, he hung himself, took
Speaker 3: the rope off his neck and put it under his mattress.
Speaker 4: So you figure that out.
Speaker 1: But like I said, I didn't even know about Harold
Speaker 1: was the or this confession tape until after his conviction,
Speaker 1: let alone what he was about to face a trial.
Speaker 4: I didn't know who actually was accusing me of it.
Speaker 4: And to the day of trial.
Speaker 3: It was a tactic that they used called trial by ambush.
Speaker 4: They would hide.
Speaker 3: All of the evidence from you and then on a
Speaker 3: day of trial they come in there with a two
Speaker 3: foot stack of documents and say here. And that's when
Speaker 3: I discovered that it was this notorious crackhead. I mean,
Speaker 3: he was the crackhead extraordinary in Brookline projects and he
Speaker 3: accused me of this homicide.
Speaker 2: And here's where discovery laws being inadequate before, which is
Speaker 2: why we're fighting to try to maintain them now comes
Speaker 2: into play. Okay, because this tape that Divine has mentioned,
Speaker 2: the tape went missing many years later they claimed it
Speaker 2: was missing. But if it had been automatic discovery right away,
Speaker 2: very early in the process, then Divine's lawyer could have
Speaker 2: had that tape, It could have used that at the
Speaker 2: trial and almost certainly would have gotten an acquittal.
Speaker 4: Absolutely.
Speaker 1: Discovery laws in New York changed from trial by ambush
Speaker 1: to automatic discovery in twenty twenty, and right now various
Speaker 1: nefarious forces are working to repeal this vital reform. They
Speaker 1: want to take us back to an era when a
Speaker 1: request for discovery was both over and underwhelming. As Divine described,
Speaker 1: a defendant would literally receive a volume of documents that
Speaker 1: would be near impossible or impossible even to digest on
Speaker 1: the eve of or during trial. But also the prosecutor
Speaker 1: would get to decide what was going to be given
Speaker 1: to the defense. Right. I mean, it's the wolf guarding
Speaker 1: the henhouse, and I don't have to tell our audience
Speaker 1: what a Brady violation is. And in Divine's case, that
Speaker 1: meant Carol Wesley's confession, any mention of Marjorie Shack or
Speaker 1: the deal made with Richard Doyle, who claimed that he'd
Speaker 1: witness Wesley and Divine shoot MILLIASI under a street lamp
Speaker 1: from thirty five feet away, and then he'd run to
Speaker 1: a nearby stay order to retrieve receipts for some unknown reason,
Speaker 1: and returned to the scene with a store clerk named
Speaker 1: Wayne Harris.
Speaker 2: And Wayne Harris says, no, I never saw him that night,
Speaker 2: But in terms of his credibility here in this case,
Speaker 2: there's three provable lies. There's another twelve very likely lies.
Speaker 1: Doyle testified that his burglary charges had been dismissed before
Speaker 1: he'd come forward because the burglary victim's nephew, sal Mar Sigliano,
Speaker 1: had directed he and Scott Bell to do it. He
Speaker 1: also testified that he'd received no benefit for his testimony,
Speaker 1: even though it was later discovered that the burglary charge
Speaker 1: was pending through his grand jury testimony, as well as
Speaker 1: an armed robbery charge in Nassau County that also just
Speaker 1: poof went away. He also said that after he'd gotten
Speaker 1: out of jail in June of eighty eight, that he
Speaker 1: was approached by armed men who he didn't know, implying
Speaker 1: possible witness tampering, but according to police reports written by
Speaker 1: the lead detective, Robert Lincoln, he knew who that armed
Speaker 1: person was and was unrelated to this case. Doyle also
Speaker 1: claimed to have been sober for months, but on the
Speaker 1: night he been arrested, one of the charges was for
Speaker 1: possession of crack. In addition to Doyle, the jury heard
Speaker 1: from the medical examiner about the cause of death, Harold
Speaker 1: Wesley's arresting officer about the gun he found in Wesley's trunk,
Speaker 1: and then a ballistic expert linked that gun to bullets
Speaker 1: recovered from the scene.
Speaker 2: The whole case against the Vines is based on this
Speaker 2: one and formant the trial judge, you know, Judge Edgido
Speaker 2: at the sentencing even says that this whole case just
Speaker 2: comes down to Richard Doyle's credibility.
Speaker 4: He said, without Richard Doyle, there was no case.
Speaker 1: And you end up getting sentenced to concurrent terms right
Speaker 1: of twenty five years to life, five to fifteen years,
Speaker 1: and two to a third to seven years.
Speaker 3: I mean, listen, man, it's a nightmare beyond description. You
Speaker 3: know when they read it out, you know, the whole
Speaker 3: courtroom exploded. I exploded, you know I didn't do it,
Speaker 3: screaming it was just a nightmare.
Speaker 4: I couldn't believe it.
Speaker 3: Family was crying, I was crying. It was just the
Speaker 3: shark of all sharks. At the time in Clinton, Attica,
Speaker 3: green Haven, that was a very racist jail. They got
Speaker 3: active clanmen in Greenhn and at the time in Auburn.
Speaker 4: I did my rounds.
Speaker 3: But when I got to Sing Sing Sing Sing was
Speaker 3: terrible too because they had a lot of drug wars,
Speaker 3: a lot of gang violence, a lot of just a lot.
Speaker 4: Of prisons are just violent, period.
Speaker 3: But when I got to Sing Sing, it was a
Speaker 3: blessing in disguise because Sing Sing is close to the city,
Speaker 3: so they were more acclimated to have programs and people
Speaker 3: were more able from the city to come up to
Speaker 3: the jails. So I seen it as an opportunity. I
Speaker 3: was on an all out mission. Being sentenced to twenty
Speaker 3: five years to life can bring something to you that
Speaker 3: you don't even know that you got waking up every
Speaker 3: morning into a nightmare. When you go to sleep, you
Speaker 3: out of the nightmare, you dreaming you free, and then
Speaker 3: you wake up.
Speaker 4: It was like every morning, Uh, here go this nightmare again.
Speaker 4: Here we go again.
Speaker 3: So that gave me that fire. I got into the NAACPA.
Speaker 3: I eventually went to college, eventually got a master's degree, started.
Speaker 4: RTA and rehabilitation through RTA is rehabilitation through the arts.
Speaker 4: You know.
Speaker 3: It was just a lot going on, and I became
Speaker 3: a jail house lawyer man that was very efficient.
Speaker 4: I learned how to do motions.
Speaker 3: I learned how to do this because at that point
Speaker 3: I knew that my entire life depended on me finding
Speaker 3: a way to do it. And I'm not rich. I'm
Speaker 3: a poor person. My family's poor. We don't have lawyers,
Speaker 3: we don't have money for that. So I went in
Speaker 3: that lawyer liberry and I learned, and ultimately I do
Speaker 3: legal writing. I ended up becoming a very efficient novelist
Speaker 3: writer because I said, once the court thought rubber stamping it,
Speaker 3: I said, I gotta come up with some kind of
Speaker 3: way to fight this.
Speaker 4: Well writing, what can I do? I can write, and
Speaker 4: ultimately my.
Speaker 3: Memoir The Whitfield Files, won a National Writing Award.
Speaker 4: It's a Pen award, right, Yeah, there's a Pen Award.
Speaker 1: In addition to his Oscar nomination, Divine won the prestigious
Speaker 1: Pan Award four count of four times. So we're gonna
Speaker 1: link all of that in the episode description. He was
Speaker 1: and still is stunningly prolific.
Speaker 3: It shocked me at times when I sat back and
Speaker 3: realized one time, I wrote three novels in one year,
Speaker 3: did a four to forty article seventy eight, and was
Speaker 3: running RTA, and was the president of the NAACP sponsoring
Speaker 3: culture war in his classes Black History Month classes GED classes.
Speaker 3: People used to ask how do you do it? And
Speaker 3: one of the ways I used to do it. I
Speaker 3: had a meticulous checklist system. Every year I would write
Speaker 3: out what I'm gonna do for this year, and then
Speaker 3: every month I would break them down into months, a
Speaker 3: checklist in months, and then a checkliss in weeks, and
Speaker 3: a checklist in days, and every day I would check
Speaker 3: off those. So every day of my life that was living, breathing.
Speaker 3: It was about doing something. If there was a moment
Speaker 3: I wasn't doing something, was it was misery. It was
Speaker 3: like I lived by just staying proactive and moving.
Speaker 1: And he brought that drive and organizational prowess to his
Speaker 1: appellate fight as a pro say litigant, meaning he was
Speaker 1: on his own without an attorney, and after his initial
Speaker 1: appeals were denied, his first post conviction motion, known as
Speaker 1: a four to forty in New York, was based on
Speaker 1: Doyle's perjured testimony that his burglary charges had been dismissed
Speaker 1: before he even spoke to police about this, and that
Speaker 1: he'd received no benefit. But Divine found out that Doyle's
Speaker 1: charges hadn't been dismissed until after his grand jury testimony.
Speaker 1: This was a Brady violation as well as false testimony,
Speaker 1: and in addition, Scott Bell gave an affidavit about Doyle's
Speaker 1: plan to falsely accused Divine who he didn't like, to
Speaker 1: get their charges dismissed, and there was also an affidavit
Speaker 1: from the burglary victim, Salmar Sigliano about how he tried
Speaker 1: to press charges but nothing ever materialized. Yet somehow, the
Speaker 1: motion was denied in nineteen ninety six, so Divine moved
Speaker 1: on to federal habeas and filed a Foyer request with
Speaker 1: the King County DA, which turned up a disclosure for
Speaker 1: him that mentioned a tape.
Speaker 3: When I finally realized that there was a tape, they
Speaker 3: adamantly insist that there was no tape that exists. I
Speaker 3: did an article seventy eight to try to compel them Finally,
Speaker 3: a judge in King's County said, you either have to
Speaker 3: produce that tape or you're going to have to do
Speaker 3: a very detailed APPI dated explaining why this tape doesn't exist.
Speaker 3: These documents says that this tape exists. I eventually had
Speaker 3: to do a motion to have him held in contempt
Speaker 3: the court. I was doing all of this pro say,
Speaker 3: and the judge granted it.
Speaker 4: Then and only then did all.
Speaker 3: Of a sudden, out of the clear blue sky the
Speaker 3: mailman that does the mail, the mail officer comes to
Speaker 3: my gate with a tape and lays it here and
Speaker 3: have me signed for it.
Speaker 4: I'm like, wow, so they did have the tape.
Speaker 3: They lied to The judge kept telling the no tape exists,
Speaker 3: No tape exists. Yah, this is nothing, and I'm looking
Speaker 3: and then we finally, when I listened to the tape,
Speaker 3: I said, I see why they did this.
Speaker 2: Day Harold Wesley, when he was being questioned by the HF,
Speaker 2: he mentioned that he did the crime with Patrick from
Speaker 2: Queen's Divines from Brooklyn. His name's not Patrick.
Speaker 3: I couldn't sleep for three days after listening to this tape,
Speaker 3: shocked by the fact that these people had this tape
Speaker 3: in their possession, with this man telling them I wasn't
Speaker 3: a shooter and I didn't order it. So that's what
Speaker 3: turns this case until a grecious misconduct. You're listening to
Speaker 3: this tape. This man is exonerating me, and you're hiding it,
Speaker 3: and this is malicious.
Speaker 1: So they had that tape, and they had every reason
Speaker 1: to believe that they should go look for this guy Patrick.
Speaker 1: Of course, from the very beginning, did they know Patrick's
Speaker 1: identity or just Patrick from Queen's.
Speaker 3: Nobody was able to track them down. I mean, that's
Speaker 3: the full extent of what we know Patrick from Queens.
Speaker 1: At this point, Divine pursued a success of four forty
Speaker 1: with Brady material that would have definitely changed the verdict.
Speaker 1: It should have been a slam dunk, but it was
Speaker 1: inexplicably denied, as was his amended federal habeas and a
Speaker 1: slough of successive four forties. But Divine was able to
Speaker 1: put the demoralizing legal system in the background, not only
Speaker 1: for himself but for others as well, when he co
Speaker 1: founded what turned out to be the subject of his
Speaker 1: OSCAR nominated screenplay, And of course I'm referring to RTA
Speaker 1: or rehabilitation through the arts.
Speaker 3: One of the things that I vowed that if I
Speaker 3: got to stay here in this place, I'm gonna find
Speaker 3: every way in my powers to make sure that any
Speaker 3: and everybody that I can touch make sure that they
Speaker 3: get out and don't come back.
Speaker 4: I'm gonna find a way.
Speaker 3: To strip the system of the thing that they needed most.
Speaker 3: That was kind of like my fire, like, if I
Speaker 3: can help them, these guys stay out because Gods was
Speaker 3: coming back and it was hurting me. It was like, Wow,
Speaker 3: I'm trying so hard to get out of this place,
Speaker 3: and so you guys are coming right back. So that
Speaker 3: was the creation of RTA, finding a way to make
Speaker 3: sure that when these guys got out, they stayed out.
Speaker 1: And our audience will recall hearing about RTA from Jermaine Archer,
Speaker 1: Eric Clisson, Johnny and Capier JJ Velasquez JJ, who actually
Speaker 1: plays himself in the Oscar nominated film Sing Sing. It's
Speaker 1: a theater group in the most unlikely place, a maximum
Speaker 1: security prison where guys have to do more than just
Speaker 1: wear a tough face to survive.
Speaker 4: I saw the power of art.
Speaker 3: You got to remember, like I explained to you earlier,
Speaker 3: I've been in entertainer, My Whole Life, movies, dancing on
Speaker 3: TV DJ.
Speaker 4: And the whole work.
Speaker 3: So arts are what I describe as an explosive expression
Speaker 3: of humanity. It has this amazing way of allowing people
Speaker 3: to relax and to be comfortable with each other, to
Speaker 3: sometimes take the mass off.
Speaker 4: It wasn't easy. Now they don't think it was a
Speaker 4: walk in the park. But we had a strong steering committee,
Speaker 4: the founders of this program. We had some good guys
Speaker 4: and we will shout them out, which man.
Speaker 3: Dino Belaud, David Wayne Peto, Shorty King, Herm.
Speaker 4: You know, this is just quite a few, It's a
Speaker 4: few more.
Speaker 3: It was we had a strong network of good, solid
Speaker 3: people that were well respected in the system. So when
Speaker 3: you've seen a guy like Diano or Blaud or Shorty
Speaker 3: King and me update, they're like, wow, these guys was
Speaker 3: walking the yards of Attica and Clinton and these guys
Speaker 3: as stand up dudes, And it would give other people
Speaker 3: permission to say, damn, if they can do it, we
Speaker 3: want to do it because subconsciously a lot of people
Speaker 3: really want to do like things that's open, and we
Speaker 3: give them permission to explore.
Speaker 4: Then in our program, since it's about.
Speaker 3: Healing, it's about brotherhood, it's about camaraderie.
Speaker 4: When you came in, we kind of.
Speaker 3: Prepped you that, bruh, you're gonna be dealing with some
Speaker 3: unfamiliar behavior around here because you're gonna have to open up.
Speaker 3: We're gonna have to learn how to work with each other.
Speaker 3: And once we've built it into the program, it just
Speaker 3: started to blossom and work. And one of the criterias
Speaker 3: that we always had that was built into the program
Speaker 3: is that if anybody leaves Sing Sing, go start it
Speaker 3: up wherever you go. We want to share it with
Speaker 3: as many people as we can. And we got like
Speaker 3: eight different facilities with RTA, and now it's expanded all
Speaker 3: the way to Ohio and in California based.
Speaker 4: On the movie, so it's expanded.
Speaker 3: We really would love to have this thing available all
Speaker 3: across the country if it was up to me.
Speaker 1: And what have been the results of this program in
Speaker 1: terms of violence and recidivism.
Speaker 3: Listen, RTA has a recidivism level of three percent in
Speaker 3: comparison to sixty percent of the national average of prisoners
Speaker 3: who leave and don't get this type of program or
Speaker 3: this type of involvement. Sixty percent of them come back
Speaker 3: with than three years. So I think RTA gave certain
Speaker 3: segments of society something to live for, because when they
Speaker 3: wanted to get into RTA, we used to kind of
Speaker 3: tell them, Okay, you got to stay out of trouble
Speaker 3: for this amount of time, and we would give them
Speaker 3: an incentive they want to stay out of trouble.
Speaker 1: Three recentivism made I want to just let that linger
Speaker 1: for a second.
Speaker 4: Yeah, why you think I wrote so much?
Speaker 3: Because every time when I started writing a novel, I
Speaker 3: was enmeshed in those stories, creating these characters in these
Speaker 3: worlds and these images. I was escaping, and every time
Speaker 3: I touched the stage it was therapeutic.
Speaker 4: It was cathartic.
Speaker 3: It was like that moment when I'm becoming the character
Speaker 3: on stage, in that world of the character, I was free.
Speaker 4: I had to have that freedom.
Speaker 3: Because when we had to go back to ourselves, it
Speaker 3: was like, well, the nightmare begins again.
Speaker 4: And RTA was that escapism.
Speaker 3: And the beautiful thing about RTA we were able to
Speaker 3: find love amongst so much hate, plain and simpers. Ultimately,
Speaker 3: as the movie sing scene depicts, I eventually got a
Speaker 3: clemency heart from Governor Elliot, Spitzer, who was considering me
Speaker 3: for a full parton. If you could get a governor
Speaker 3: to look at this and consider you for a full parton,
Speaker 3: it has to be something there.
Speaker 1: And according to Divine, the clemency board was confused as
Speaker 1: to what they were missing about this evidence. Why hadn't
Speaker 1: an appellate court granted belief, which, by the way, are
Speaker 1: great fucking questions. But they let their disbelief and uncertainty
Speaker 1: lead them to deny clemency for Divine. And so again
Speaker 1: Divine went back to the drawing board, hiring an investigator
Speaker 1: who found out about Richard Doyle's arm robbery charge in
Speaker 1: Nasau County that was also dismissed around the time of
Speaker 1: his testimony. So a success of four point forty was filed,
Speaker 1: and you guessed it, that was denied too, at which
Speaker 1: point Divine wrote to the newly formed Deskovic Foundation.
Speaker 2: Divine had wrote, my organization. I mean, people remember me
Speaker 2: from other episode, but in brief, I did sixteen years
Speaker 2: in prison myself for a murdering rate before DNA exonerated me,
Speaker 2: and eventually I went to law school and became an attorney,
Speaker 2: started the Jeffrey Deskovic Foundation for justice.
Speaker 4: So with your own money, with.
Speaker 2: My own money, Yes, that's true. So Divine wrote us,
Speaker 2: and we evaluated his case and we determined he was innocent,
Speaker 2: and we saw a potential route to exoneration. But while
Speaker 2: we were doing investigative work, he had a parole board
Speaker 2: appearance coming. And it's always our policy to try to
Speaker 2: get our clients out however it is we can, so
Speaker 2: that they could be free while the long, often uncertain
Speaker 2: road to exoneration takes place. So we wrote a letter
Speaker 2: to the parole board which outlined all the primary and
Speaker 2: secondary reasons why we believed in Divine's innocence. And as
Speaker 2: people probably know listening to your podcast, if you maintain
Speaker 2: your innocence rather than expressing remorse and take responsibility, you'd
Speaker 2: almost always denied parole. So it already unjust prison stay
Speaker 2: gets extended.
Speaker 1: But he was paroled, and that was twenty twelve. So
Speaker 1: while an attorney with Jeff's Foundation, Rita Deve hired an
Speaker 1: investigator and worked on his case, Divine continued some of
Speaker 1: the work he'd been doing inside as a youth counselor.
Speaker 1: When his past connection to the arts scene in New
Speaker 1: York afforded him an incredible, almost unreal opportunity.
Speaker 3: When I got out of prison right in twenty twelve,
Speaker 3: Lil Wayne's road manager approached me.
Speaker 4: It's this guy named Ei.
Speaker 3: Actually, when I was a DJ, I used to look
Speaker 3: out for him and his little sister let him come
Speaker 3: behind the ropes and stuff, and e I knew I
Speaker 3: was innocent too, and everybody knew I caught a bad deal.
Speaker 3: So when I got out, he came and picked me
Speaker 3: up a Bentley, gave me some money and said, yo,
Speaker 3: you want to go on my tour with Lil Wayne.
Speaker 3: I said, damn right, I want to go. He said, listen,
Speaker 3: I'll let you be a stage manager. If you can
Speaker 3: get on, this tour is yours. At first, they wasn't
Speaker 3: gonna let me go. The pro office admits, you crazy.
Speaker 3: You just got out of prison for murder.
Speaker 4: You think you going on a tour with a famous rapper?
Speaker 4: Are you crazy? I said, man, all right, cool.
Speaker 3: I've did an article seventy eight folled a major lawsuit.
Speaker 3: Then I got some media people involved, and I did
Speaker 3: emergency court for seeding, which is called an injunction. So
Speaker 3: they did it like within a week. I was in
Speaker 3: front of the judge and I went on that tour.
Speaker 1: Man.
Speaker 4: It was like the best seven months of my life. Man.
Speaker 3: And all that came about just because when I was
Speaker 3: a DJ, when I was young, I had this history
Speaker 3: of just looking out for people.
Speaker 1: And thankfully Jeff and Rider were looking out for Divine
Speaker 1: as well. Obviously, Harold Wesley was deceased, but they got
Speaker 1: in touch with his brother Ralph, who gave an affid
Speaker 1: David that his brother told him the same story that
Speaker 1: he killed familiar Racey with Patrick from Queen's. They'd also
Speaker 1: tracked down the woman in the green coat and Divine's
Speaker 1: ali by witness by Endevory.
Speaker 2: So in terms of Divine's innocence, there's a tape we
Speaker 2: just mentioned Wesley confessed to his brother. Okay, there's also
Speaker 2: Divine's alibi. He was with Bryant Devery Marjorie Shack, who
Speaker 2: knew Divine from the neighborhood. She said she heard the
Speaker 2: gunshots and people running, that they passed by her, that
Speaker 2: it was not Divine. Her story is corroborated by another
Speaker 2: witness who also didn't see anybody, but corroborated the direction
Speaker 2: that the perpetrators were running from. So we got all
Speaker 2: this evidence of his innocence juxtaposed with one informant Okay crackhead,
Speaker 2: three lies, many other lies contradicted by witnesses. I mean,
Speaker 2: it doesn't make any sense.
Speaker 1: But instead of filing another four to forty, they applied
Speaker 1: to the King's County Conviction Integrity Unit in twenty eighteen,
Speaker 1: who allegedly reinvestigated Divine's case. But by twenty twenty three
Speaker 1: there was still no relief. And at this point Oscar
Speaker 1: michelin enjoined the team.
Speaker 2: Five years had passed by without the Conviction Review Unit
Speaker 2: doing anything. So from there we had a meeting with
Speaker 2: the then head of the Conviction Review Unit, Charles Lenahan,
Speaker 2: and the line attorney, and Elenahan said, look, I haven't
Speaker 2: read the case, but I took the meeting as a courtesy,
Speaker 2: but I have the line attorney here, and she was
Speaker 2: intimating like they just hit brick walls, and like she
Speaker 2: wanted to say. She was on the verge of saying
Speaker 2: we're going to close the case. But I'm fast on
Speaker 2: my feet sometimes, and I saw what she was about
Speaker 2: to do, and if she had gotten that sentence out,
Speaker 2: politically it would have been hard for the unit chief
Speaker 2: to overrule her. So I jumped in and I said, well,
Speaker 2: what about this witness? What about that witness? Did you
Speaker 2: talk to this one? Did you talk to that one?
Speaker 1: No?
Speaker 2: So I ignore her and say that the unit chief, Well,
Speaker 2: how can you guys be about ready to close his
Speaker 2: case when there's all these witnesses that you haven't spoken to. Look,
Speaker 2: can we submit a twelfth page report to you outlining
Speaker 2: all the evidence of Divine's innocence. We'll have complete references
Speaker 2: to the record, and we'll contrast that with this one informant.
Speaker 2: So he gave us the okay, and so sixty hours later,
Speaker 2: you know, a twelve page memo was sent to the
Speaker 2: conviction review unit. A year goes by and again nothing happens.
Speaker 2: And the next thing we know, we're getting word that
Speaker 2: he's leaving the unit, going to go into a private practice,
Speaker 2: And we naturally reached out to him again, kind of
Speaker 2: in desperation because we really don't know who the new
Speaker 2: unit chief is going to be. And so we just
Speaker 2: read the report and at the end of the day,
Speaker 2: he did nothing. The most he did was had the
Speaker 2: case assigned to a different lawyer. The lawyer that had
Speaker 2: did nothing left the unit. I guess she was never
Speaker 2: enthusiastic about doing conviction review to begin with, but he
Speaker 2: assigned it to somebody else and Oscar emailed him. I
Speaker 2: piggybacked off of it. I did like a short reiteration
Speaker 2: of all the evidence of his innocence. I reattached the
Speaker 2: report and we heard nothing. And so it's been two years.
Speaker 2: They appear to not be working at all on Divine's case.
Speaker 2: So our strategy at this point is we're doing as
Speaker 2: much media as we can. We have a petition for
Speaker 2: Divine which calls for the Brooklyn District Attorney to order
Speaker 2: his conviction of unit, just to make a decision. It's
Speaker 2: been seven years. Just make a decision. It's been seven
Speaker 2: years already now, So people listening like to sign the petition,
Speaker 2: spread it around. We certainly need that. The website is
Speaker 2: fredivine g dot org. We're hoping that if we get
Speaker 2: enough petition signatures that die Gonzalez will order the unit
Speaker 2: to make a decision. We could pull his case from
Speaker 2: the unit right now if we wanted to, and file
Speaker 2: a post conviction motion and litigate. That's going to take
Speaker 2: about two years, okay, and maybe we win. We're supposed
Speaker 2: to win by everything, that's right, but he might not.
Speaker 2: But we don't want Divine to walk around with this
Speaker 2: conviction for another two years that it's going to take.
Speaker 2: Hence trying to gather petition signatures.
Speaker 1: It's freedivineg dot org. We'll have it linked in the
Speaker 1: episode description as well. So sign the petition in the
Speaker 1: hopes that Kings County will finally do right by Divine
Speaker 1: and if not, they'll move on to another four to
Speaker 1: forty to resolve a case for which Divine should have
Speaker 1: never gone to trial in the first place. Additionally, a
Speaker 1: case in which the current discovery laws might have given
Speaker 1: Divine a fighting chance.
Speaker 2: We helped myself in many organizations and advocates when we
Speaker 2: helped improve the discovery laws. All the information had to
Speaker 2: be turned over automatically within the first two weeks, and
Speaker 2: if the prosecutor didn't have everything together in the first
Speaker 2: two weeks, they had another two weeks. Anything passed a
Speaker 2: month they would have to get a court order to extend. Okay.
Speaker 2: So that's how we improved it.
Speaker 1: Laws that are right now under attack.
Speaker 2: Well, the District Attorney's Association and a lot of law
Speaker 2: enforcement they did a campaign of fear mongering all of
Speaker 2: a sudden, Now we're not can build of solve crimes.
Speaker 2: People aren't going to want to come forward. Now we're
Speaker 2: going to have witness intimidation, witnesses being killed. Which was
Speaker 2: all just a bunch of rhetoric. Because New Jersey, a
Speaker 2: border state to New York Okay, has had automatic open
Speaker 2: file discovery for many years, and as I often joke
Speaker 2: in order to make the policy point, we don't have
Speaker 2: bodies floating up and down the Hudson River, Okay. So
Speaker 2: there's all a bunch of fear mongering.
Speaker 4: Now.
Speaker 2: Aside from the fear mongering, the other complaint is they're
Speaker 2: trying to say that because of the discovery laws, that
Speaker 2: many cases are being dismissed by judges because the prosecutors
Speaker 2: are not turning over the information and timely manner. So,
Speaker 2: first of all, that's not true statistically, and second of all,
Speaker 2: to the extent that any case gets dismissed, why not
Speaker 2: get on the prosecutor meet your deadlines, right. And so
Speaker 2: the latest and greatest on that Governor Hokele now wants
Speaker 2: to repeal the discovery law. They want to try to
Speaker 2: modify it. First of all, they want to say that
Speaker 2: a defense attorney would only have thirty five days now
Speaker 2: to complain that you haven't gotten all the evidence turned over. Right,
Speaker 2: that makes no sense because to me, whether it's on
Speaker 2: day one or day two hundred, whenever it is that
Speaker 2: you realize that you haven't been given all the discovery material,
Speaker 2: you should be able to make a complaint, put that
Speaker 2: on the record, object, etc. So that's one aspect of it.
Speaker 2: Second thing is they want to go back to where
Speaker 2: instead of turning over everything, they want the prosecutors to
Speaker 2: look through the file and determine what can be helpful
Speaker 2: to the defense and turn that over, which is part
Speaker 2: of the problem.
Speaker 4: Before the wolf was guarding the henhouse.
Speaker 2: Exactly right, and that was all under Brady.
Speaker 4: Now.
Speaker 2: The second aspect of it is called Rosario material, and
Speaker 2: in a common sense way of talking about it, the
Speaker 2: prosecutor would only have to turn over information pertaining to
Speaker 2: witnesses that they were planning to call at a hearing
Speaker 2: or at a trial. They would often do that on
Speaker 2: the eve of a hearing, on the eve of a trial,
Speaker 2: So not only is there not enough time to read
Speaker 2: through the material, investigate, interview witnesses, incorporate that into your strategy.
Speaker 2: But also if they didn't want you to know about
Speaker 2: a witness, just don't call them at the hearing or
Speaker 2: the trial, and they wouldn't have to turn anything over.
Speaker 2: So that's the way that.
Speaker 1: It was as opposed to a civil case where you
Speaker 1: have to turn over everything.
Speaker 4: Correct, if you and I have a business dispute.
Speaker 1: Literally you have to turn over everything, and all that
Speaker 1: systake is money, And here you're dealing with somebody's freedom,
Speaker 1: their life right.
Speaker 2: When I brought a federal civil rights lawsuit in connection
Speaker 2: with my being wrongfully imprisoned, I had more discovery rights
Speaker 2: as a plaintiff bringing the lawsuit than what I did
Speaker 2: when I was a criminal defendant defending myself against the
Speaker 2: false charges.
Speaker 4: Exactly.
Speaker 1: So we're going to put links in the episode description
Speaker 1: for people to sign petitions, call the governor.
Speaker 2: They can also email their elected official, the assemblymen, their
Speaker 2: senators that represent them and say, look, we don't want
Speaker 2: discovery rollbacks, okay, we want the system to be fair.
Speaker 2: We want people who are charged to know exactly what
Speaker 2: the evidence is against them so that they can prepare
Speaker 2: a defense, so that we can reduce the likelihood of
Speaker 2: wrongful convictions.
Speaker 1: Exactly, because I could happen to Jeff, if it could
Speaker 1: happen to Divine, it could happen to you. I mean,
Speaker 1: that's really the truth or somebody you love. Correct, So
Speaker 1: if you do it for no other reason than that,
Speaker 1: do it. But we should all care about making the
Speaker 1: system fairer and better for everyone. And now return to
Speaker 1: closing arguments. I'm going to just kick back and.
Speaker 4: Not say another word.
Speaker 1: Just listen to anything else you feel is left unsaid,
Speaker 1: and tradition holds that, Jeff, since you're the attorney this time,
Speaker 1: you go first, and then Divine will take us off
Speaker 1: into the sunset.
Speaker 2: Seven years to wait for a conviction review unit to
Speaker 2: make a decision. Are you going to agree to overturn
Speaker 2: or not? It's simply not justice. That's unreasonable. Diaganzalis order
Speaker 2: your conviction review unit to make a decision on Divine
Speaker 2: with Field's case.
Speaker 3: I would like to echo that seven years is a
Speaker 3: bit extreme. It doesn't take that much time to just
Speaker 3: simply make a decision.
Speaker 4: Seven years.
Speaker 3: I'm quite sure if you had any intentions of investigating this,
Speaker 3: you've had sufficient amount of time to do it. I
Speaker 3: also want to just put great emphasis on the fact
Speaker 3: that Arts is life saving. Also, I want to remind
Speaker 3: everyone the site is fredivindg dot org.
Speaker 4: Please read the evidence of the.
Speaker 3: Innocence, sign the petition and encourage others to sign that petition.
Speaker 4: It's not a hard task to do. That would be
Speaker 4: highly appreciated. Thank you.
Speaker 1: Thank you for listening to Ron for Conviction. You can
Speaker 1: listen to this and all the Lava for Good podcasts
Speaker 1: one week early and ad free by subscribing to Lava
Speaker 1: for Good Plus on Apple Podcasts. I want to thank
Speaker 1: our production team Connor Hall and Kathleen Fink, as well
Speaker 1: as my fellow executive producers Jeff Kempler, Kevin Wartis, and
Speaker 1: Jeff Kleiber. The music in this production was supplied by
Speaker 1: three time OSCAR nominated composer Jay Ralph. Be sure to
Speaker 1: follow us across all social media platforms Alava for Good
Speaker 1: and at Wrongful Conviction. You can also follow me on
Speaker 1: Instagram at It's Jason Flamm. Wrongful Conviction is a production
Speaker 1: of Lava for Good Podcasts and association with Signal Company
Speaker 1: Number One.
Speaker 4: We have worked hard to ensure that all facts reported
Speaker 4: in this show are accurate. The views and opinions expressed
Speaker 4: by the individuals featured in this show are their own
Speaker 4: and do not necessarily reflect those of Lava for Good.