WEBVTT - #031 Jason Flom with Brian Ferguson 0:00:04.040 --> 0:00:05.840 I think we have the best legal system. 0:00:05.880 --> 0:00:09.280 It's just the people that implement they get lost along 0:00:09.320 --> 0:00:11.480 the way and forget what their job really is. 0:00:13.119 --> 0:00:15.760 He just kept on trying to remind me that who 0:00:15.840 --> 0:00:19.000 was in authority, who was in control, and how easy 0:00:19.079 --> 0:00:23.320 it was for my body to be found in any 0:00:23.400 --> 0:00:24.720 alley of New York City. 0:00:25.800 --> 0:00:28.480 It's a tough prison when you have the guards going 0:00:28.480 --> 0:00:31.840 against you because they are the biggest gang in the prison. 0:00:33.120 --> 0:00:33.640 They do that. 0:00:33.680 --> 0:00:36.040 They'll give a guy a life sentence and go home 0:00:36.080 --> 0:00:37.520 in eat spaghetti like it was nothing. 0:00:38.960 --> 0:00:41.120 And anybody that said, well, why would you confess to 0:00:41.240 --> 0:00:43.919 something that you didn't do, My question to them will 0:00:43.960 --> 0:00:46.879 be why wouldn't you confess when somebody's threatening to kill 0:00:46.920 --> 0:00:47.360 your life? 0:00:48.800 --> 0:00:50.680 The judge, he said, how you feel? 0:00:50.720 --> 0:00:52.879 I said, I'm okay. He said, well, the days you're 0:00:52.960 --> 0:00:55.280 lucky day you're going home. 0:00:56.840 --> 0:00:58.600 This is wrong for conviction. 0:01:15.760 --> 0:01:19.360 Welcome back to Wrongful Conviction with Jason Flumm. Today we 0:01:19.520 --> 0:01:24.200 have two extraordinary guests. Brian Ferguson, who served eleven years 0:01:24.240 --> 0:01:26.920 in maximum security prison, who sends the life in West 0:01:27.000 --> 0:01:31.480 Virginia and is a rising senior at Georgetown and is 0:01:31.480 --> 0:01:34.480 currently the executive director of the Mayor's Office of Returning 0:01:34.560 --> 0:01:36.120 Citizen Affairs in DC. 0:01:36.760 --> 0:01:38.119 Brian, welcome to the show. 0:01:38.200 --> 0:01:38.560 Thank you. 0:01:38.920 --> 0:01:42.800 And with Brian is my friend Mark Howard, who is 0:01:43.240 --> 0:01:47.319 a mentor to Brian and to me and a major 0:01:47.440 --> 0:01:51.560 force in this movement. Mark is a professor of government 0:01:51.640 --> 0:01:55.480 and law at Georgetown University, and he's also an acclaimed author. 0:01:55.560 --> 0:01:59.600 His most recent book is Unusually Cruel, Prisons, Punishment and 0:01:59.640 --> 0:02:01.560 the Real American Exceptionalism. 0:02:01.680 --> 0:02:04.040 Mark. It's great to have you here. Great to be here, Jason. 0:02:04.280 --> 0:02:08.239 So Brian, let's go back to the beginning of this 0:02:08.520 --> 0:02:10.880 crazy story of yours. There's a lot of typical things 0:02:10.919 --> 0:02:13.160 in your story that we see in wrongful convictions, but 0:02:13.200 --> 0:02:16.600 there's a number of unique characteristics, not the least of 0:02:16.639 --> 0:02:20.400 which is that you come from a very distinguished family, 0:02:20.720 --> 0:02:23.680 which is atypical of people who get caught up in 0:02:23.720 --> 0:02:27.040 the system and who get wrongfully convicted. Can you talk 0:02:27.080 --> 0:02:29.720 a little bit about your growing up and what that 0:02:29.880 --> 0:02:31.320 was like and what your family was like. 0:02:31.600 --> 0:02:35.440 Right, No, absolutely, you know. My family was very supportive. 0:02:35.520 --> 0:02:37.280 I have a close knit family. I have a small 0:02:37.360 --> 0:02:40.519 immediate family. I was born and raised in Washington, d C. 0:02:40.840 --> 0:02:44.880 In Northeast DC, in Michigan Park. Relatively middle class family, 0:02:44.919 --> 0:02:46.960 but professional. Both of my parents were working, both of 0:02:47.000 --> 0:02:49.320 them were college graduates, and so in that respect, it 0:02:49.360 --> 0:02:51.960 definitely was unique in terms of the people that I 0:02:52.080 --> 0:02:55.240 ended up coming across in the penitentiary and then in 0:02:55.280 --> 0:02:57.160 the work that I do with people that have been 0:02:57.200 --> 0:02:58.440 incarcerated since. 0:02:58.760 --> 0:03:00.960 The work that you're doing now, right, And you have 0:03:01.360 --> 0:03:03.960 some legal professionals in your family as well. 0:03:04.040 --> 0:03:08.000 Right now, I have several legal professionals in my family. Ironically, 0:03:08.000 --> 0:03:12.200 as it turns out, so my mother, my aunt, my uncle, 0:03:12.240 --> 0:03:15.080 and my sister are all in the legal profession. My 0:03:15.160 --> 0:03:17.720 aunt is still currently a judge in Washington, DC. 0:03:17.880 --> 0:03:18.320 Right now. 0:03:18.639 --> 0:03:21.080 Wow, that's a lot of lawyers in one family. Let's 0:03:21.120 --> 0:03:23.320 go back to how this happened and how you became 0:03:23.360 --> 0:03:25.120 a suspect in the first place. You were a college 0:03:25.160 --> 0:03:26.080 student at the time. 0:03:25.960 --> 0:03:28.600 Right, right, So I was a college student at West 0:03:28.639 --> 0:03:32.400 Virginia University, actually doing very well because I actually was 0:03:32.840 --> 0:03:35.760 on the track to go to law school and had 0:03:35.800 --> 0:03:38.560 intentions and plans on going to law school. So yeah, 0:03:38.600 --> 0:03:42.200 I was in West Virginia in my second year of undergrad. 0:03:42.040 --> 0:03:44.000 So, Brian, you were a four point zero student on 0:03:44.000 --> 0:03:45.920 your way to law school. Why did you pick West 0:03:45.960 --> 0:03:46.960 Virginia to go to school? 0:03:46.960 --> 0:03:48.960 By the way, because I was playing sports in West Virginia. 0:03:49.000 --> 0:03:51.320 I played soccer on the team and was recruited to 0:03:51.360 --> 0:03:51.680 go there. 0:03:52.000 --> 0:03:54.800 So your life was pretty good. Yeah, things were looking 0:03:54.920 --> 0:03:56.520 straight up, right. 0:03:56.400 --> 0:03:57.760 That's what I thought absolutely. 0:03:57.920 --> 0:03:59.880 I mean, your life was laid out in front of 0:03:59.880 --> 0:04:03.280 you like a like a damn red carpet. It just sounds, 0:04:03.600 --> 0:04:07.160 it sounds ideal. And then all of a sudden everything 0:04:07.240 --> 0:04:10.720 went wrong. You became a suspect in a murder. Did 0:04:10.760 --> 0:04:11.880 you even know about it? 0:04:12.080 --> 0:04:12.280 Right? 0:04:12.320 --> 0:04:14.080 So, I think, if I'm honest, it would have started 0:04:14.120 --> 0:04:16.960 before that with the police. I think it's it's important 0:04:17.000 --> 0:04:22.160 to understand the community that is in like small towns 0:04:22.360 --> 0:04:26.479 in West Virginia, especially being from a middle relatively middle class, 0:04:26.480 --> 0:04:29.440 like I said, family in DC, I you know, dressed 0:04:29.720 --> 0:04:33.680 relatively well, right, but well for DC is different for 0:04:33.680 --> 0:04:35.320 for what it is in West Virginia. So, you know, 0:04:35.400 --> 0:04:39.480 the police assumed that myself and there were a couple 0:04:39.560 --> 0:04:41.720 of other guys from New York, a couple of other 0:04:41.760 --> 0:04:44.200 guys from Los Angeles who were you know, generally the 0:04:44.240 --> 0:04:48.479 same in the same socioeconomic class, couldn't have just been 0:04:48.520 --> 0:04:52.200 that way because our parents might have been successful, or 0:04:52.240 --> 0:04:54.480 that we came from a different environment, but it had 0:04:54.480 --> 0:04:56.719 to have been that we were dealing drugs. So they thought, oh, 0:04:56.920 --> 0:04:59.400 you know this, these guys you know, might be and this. 0:04:59.600 --> 0:05:02.680 We weren't together or anything like. It was separate individuals, 0:05:02.680 --> 0:05:04.840 but just that I knew of these guys, you know, 0:05:04.960 --> 0:05:07.479 must be deal drums, are doing something wrong. And so 0:05:07.520 --> 0:05:10.160 there were a couple of incidents with the police where 0:05:10.160 --> 0:05:10.880 it was like. 0:05:11.000 --> 0:05:12.800 What are you doing or why are you? 0:05:12.839 --> 0:05:14.960 Why are you driving this car, Why don't you live 0:05:15.120 --> 0:05:16.800 in this part of town, why do you live in 0:05:16.839 --> 0:05:18.599 this part of town. So those kinds of things, I 0:05:18.640 --> 0:05:22.160 think are a good backdrop to. 0:05:21.800 --> 0:05:23.440 To kind of what ultimately happened. 0:05:23.640 --> 0:05:27.120 And so with respect to the particular incident, which is 0:05:27.279 --> 0:05:30.320 which which led up to I guess me being even 0:05:30.320 --> 0:05:34.160 included in the conversation was I had a girlfriend who 0:05:34.600 --> 0:05:37.640 this other guy at the school had made advances toward 0:05:38.160 --> 0:05:42.200 and she told me that, you know, this guy said X, 0:05:42.360 --> 0:05:45.719 Y and Z about you and and and doesn't very 0:05:45.800 --> 0:05:48.200 much appreciate you. And so I said, okay, well I 0:05:48.279 --> 0:05:51.320 ended up talking to the guy. Listen, I don't know you, 0:05:51.920 --> 0:05:53.960 I don't know you know what the issue is or whatever, 0:05:54.000 --> 0:05:55.960 but whatever you have to say, please say it to me, 0:05:56.080 --> 0:05:59.960 don't go to her. We had maybe a three minute 0:06:00.320 --> 0:06:02.960 argument and then that was it. That was literally it. 0:06:03.040 --> 0:06:05.640 And that was in my first year of college. And 0:06:05.640 --> 0:06:07.520 I say this in my first year of college because 0:06:07.760 --> 0:06:11.400 that's important timeline wise, because this gentleman ended up getting 0:06:11.440 --> 0:06:12.680 shot and died. 0:06:12.760 --> 0:06:15.400 He died from being shot. But that was a year 0:06:15.480 --> 0:06:16.279 and a half later. 0:06:16.600 --> 0:06:19.960 And so you know, after the argument that I had, apparently, 0:06:20.000 --> 0:06:22.120 and I learned this after the fact, you know, he 0:06:22.160 --> 0:06:24.120 would tell his friends and I don't like this guy. 0:06:24.240 --> 0:06:26.200 Look at this guy driving around. He thinks he's this, 0:06:26.320 --> 0:06:26.839 he thinks. 0:06:26.680 --> 0:06:29.480 He's that, or he wanted your girl, right, Yeah, basically, 0:06:29.760 --> 0:06:33.040 but after that interaction, I had no further interactions with him. 0:06:33.080 --> 0:06:35.839 And so for the next year and a half, I 0:06:35.880 --> 0:06:38.360 went about my business, he went about his business, and 0:06:38.400 --> 0:06:42.760 I had no occasion to kind of come across him until, 0:06:42.880 --> 0:06:46.080 like I said, the police asked me about shooting. 0:06:46.240 --> 0:06:47.000 Right, I had no idea. 0:06:47.480 --> 0:06:50.200 So here's what we know. At seven pm on February second, 0:06:50.240 --> 0:06:53.040 two thousand and two. Jerry Wilkins was his name, right, 0:06:53.440 --> 0:06:55.279 was shot in the back in front of his apartment, 0:06:55.560 --> 0:06:59.080 and court records indicate that witnesses gave varying descriptions of 0:06:59.120 --> 0:07:03.799 the gunman. However, prosecutors charged you with murder because basically 0:07:03.920 --> 0:07:07.240 they didn't know who did it, right, and they were 0:07:07.279 --> 0:07:10.160 able to find somebody or a couple of people who said, oh, yeah, 0:07:10.200 --> 0:07:12.360 that's the guy. There was one guy who had an argument, 0:07:12.400 --> 0:07:14.040 you know, because he had gone as you just said, 0:07:14.400 --> 0:07:16.520 he had gone around telling people that he had had 0:07:16.560 --> 0:07:19.760 beef with you. So here comes the police knocking on 0:07:19.800 --> 0:07:21.600 your door or what happened? 0:07:22.040 --> 0:07:26.040 So you mentioned the witnesses. I think it's the most 0:07:26.080 --> 0:07:28.720 interesting and really disappointing thing to me about the witnesses 0:07:28.880 --> 0:07:31.640 was that they were varying accounts, but the one thread 0:07:32.160 --> 0:07:36.080 of commonality between the witness accounts was that it was 0:07:36.120 --> 0:07:41.000 a very skinny, dark skinned, black gentleman that was the assailant. 0:07:41.440 --> 0:07:43.520 And I've been confused with a lot of different things 0:07:43.520 --> 0:07:46.080 in my life, but skinny, dark skinned guy is not 0:07:46.840 --> 0:07:47.640 really one of them. 0:07:48.000 --> 0:07:51.840 So skinny, dark skinned, black gentleman, I think you resemble 0:07:51.920 --> 0:07:56.320 that description about as much as I do. Brian is 0:07:57.400 --> 0:08:00.280 you know, he looks like a football player actually is 0:08:00.280 --> 0:08:03.880 not dark skinned, so that was an inconvenient truth, but 0:08:04.000 --> 0:08:05.680 they managed to find a way around it, as they 0:08:05.720 --> 0:08:06.080 do in. 0:08:06.000 --> 0:08:08.640 These cases certainly, and how they do that. 0:08:09.440 --> 0:08:12.240 One of the key moments I think in the trial 0:08:12.280 --> 0:08:16.800 when it comes to the witness identification was when the 0:08:16.840 --> 0:08:19.920 witness refused to ident I mean, I'm sitting in court 0:08:19.920 --> 0:08:23.120 obviously in the defendant's table, but when asked, the witness 0:08:23.160 --> 0:08:25.920 refused to identify me as the person whom she had seen. 0:08:25.960 --> 0:08:28.640 The witness that was the closest to the crime was 0:08:28.680 --> 0:08:32.120 asked about, you know, whether the assailant was in the courtroom, 0:08:32.160 --> 0:08:34.240 and first we did the person have a mask on? 0:08:34.600 --> 0:08:36.760 You know he did, and I saw his face. Can 0:08:36.800 --> 0:08:38.840 you identify him? Have you identified him before? And can 0:08:38.880 --> 0:08:41.320 you identify him now? And the answer to that was no. 0:08:41.880 --> 0:08:44.200 At that point I was thinking that, Okay, well this 0:08:44.280 --> 0:08:48.559 is over and we should really just like have whatever 0:08:48.720 --> 0:08:51.760 motion that needs to happen to drop the case right 0:08:51.800 --> 0:08:54.680 now should really happen. And that's that was my misconception 0:08:54.760 --> 0:08:56.840 of what kind of the next couple of hours were 0:08:56.840 --> 0:08:57.320 going to be like. 0:08:57.400 --> 0:08:57.920 But it wasn't. 0:08:58.480 --> 0:09:00.200 Let's go back a little though, so you were you 0:09:00.240 --> 0:09:02.880 were arrested. That must have been enough of a shock. 0:09:03.360 --> 0:09:04.559 That was a tremendous shock. 0:09:04.600 --> 0:09:05.920 But let me ask you, did you even know that 0:09:05.960 --> 0:09:06.760 he had been killed? 0:09:07.080 --> 0:09:07.880 No? Not at all. 0:09:08.040 --> 0:09:10.320 So it wasn't like talk on campus or anything like that. 0:09:10.520 --> 0:09:10.679 No. 0:09:10.880 --> 0:09:13.800 So they came to my friend's house. I was at 0:09:13.800 --> 0:09:16.840 my friend's house and they came in, asked could they 0:09:16.840 --> 0:09:18.600 come in? You know, we let them in, and they 0:09:18.840 --> 0:09:21.920 started asking me about Jerry Wilkins. Right, that was a 0:09:21.960 --> 0:09:24.200 gentleman's name. I didn't know that his neck because he 0:09:24.200 --> 0:09:26.720 went by a nickname on campus. So for the first 0:09:27.080 --> 0:09:29.440 i'm gonna say three minutes of the conversation, it was 0:09:29.480 --> 0:09:32.520 like an Abbott Costello, Who are you talking about? 0:09:32.720 --> 0:09:35.040 Oh? You know who we're talking about? No, I don't. 0:09:35.200 --> 0:09:37.040 And then so one of them said, oh, well you 0:09:37.040 --> 0:09:40.760 know it's it's JP. Is this guy's nickname? Okay, well 0:09:40.760 --> 0:09:42.880 I know who you're talking about. And so that at 0:09:42.880 --> 0:09:45.720 that point they informed me that he had been shot. 0:09:45.840 --> 0:09:48.520 And I had no idea up until that very moment 0:09:48.600 --> 0:09:49.440 that that had happened. 0:09:49.559 --> 0:09:50.920 Did they take you away right then and there? 0:09:51.160 --> 0:09:51.880 No, not at all. 0:09:52.160 --> 0:09:54.360 So they questioned, they asked if they could question me. 0:09:54.800 --> 0:09:57.560 I agreed, to let them search everything that I had, 0:09:57.559 --> 0:09:59.440 because I had nothing to hid, and I wanted them 0:09:59.559 --> 0:10:02.040 to disco help me as a suspect if I were 0:10:02.040 --> 0:10:04.360 a suspect, which they told me that I wasn't, of course, 0:10:04.600 --> 0:10:07.679 as they want to do sometimes, but spoke with them, 0:10:08.320 --> 0:10:10.880 finished the conversation with them, and kind of just went 0:10:10.920 --> 0:10:13.679 on about my business and didn't hear about it again 0:10:13.880 --> 0:10:16.760 for another I'm gonna say, six months, and then I 0:10:16.760 --> 0:10:19.080 got a call. I was actually back in DC at 0:10:19.120 --> 0:10:22.080 this time, working as an intern for one of the 0:10:22.160 --> 0:10:25.200 largest law firms in the country on an importer, and 0:10:25.920 --> 0:10:29.240 I got a call from my lawyer who told me, so, 0:10:29.320 --> 0:10:33.640 you've been indicted for this homicide and you need to 0:10:33.679 --> 0:10:35.240 come and turn yourself in. 0:10:36.000 --> 0:10:37.600 And that was the first time I had heard about 0:10:37.640 --> 0:10:38.040 it since. 0:10:38.280 --> 0:10:42.440 And I'm just always at a loss to try to 0:10:43.360 --> 0:10:49.320 imagine the shock, the emotions, the confusion that everything that 0:10:49.440 --> 0:10:54.199 must go on inside your head when this all of 0:10:54.280 --> 0:10:57.160 a sudden is like, wait, what the fuck are you 0:10:57.160 --> 0:10:59.640 talking about? In a different way, like, for instance, if 0:10:59.640 --> 0:11:01.679 you're picked up and putting a handcuffs and taking in right, 0:11:01.720 --> 0:11:04.240 you've got to actually now go and get yourself back there. 0:11:04.360 --> 0:11:07.560 You've got to take this journey back to West Virginia 0:11:07.960 --> 0:11:12.080 to go show up and be processed. Right then, what 0:11:12.320 --> 0:11:13.920 I mean, did you go the next day? 0:11:14.080 --> 0:11:16.880 Did you go? And what do you I mean the 0:11:16.880 --> 0:11:18.880 first person you called was who in this happened? 0:11:18.920 --> 0:11:21.120 So I'm pretty sure that the first person I called 0:11:21.200 --> 0:11:23.800 was my mother, who is and remains, you know, the 0:11:23.840 --> 0:11:27.000 closest person person to me obviously other than my wife 0:11:27.040 --> 0:11:29.800 at this point. But we talked about it, and you know, 0:11:29.960 --> 0:11:32.640 obviously it had to be done to go back to 0:11:32.679 --> 0:11:35.920 West Virginia. So we made the arrangements to with and 0:11:35.960 --> 0:11:38.760 I'm not exactly short, I'll recall exactly how long it was, 0:11:38.800 --> 0:11:41.640 but it was within a day or two that we 0:11:41.679 --> 0:11:45.200 went back and in process. Yeah, So we went up, 0:11:45.320 --> 0:11:47.319 met with my lawyer, and then went over to h 0:11:47.400 --> 0:11:50.400 to the courthouse for the initial hearing. 0:11:50.200 --> 0:11:53.600 That we had, and then you were arraigned. 0:11:54.200 --> 0:11:58.000 So I was arraigned, and because the judge made several 0:11:58.000 --> 0:12:00.680 statements from the bench saying, well, I don't really know 0:12:00.679 --> 0:12:05.199 what's going on here, and we're going to assume that 0:12:05.240 --> 0:12:09.280 this hearsay evidence is valid and I'm going to let 0:12:09.320 --> 0:12:12.000 it in. Because other than that he said from the bench, 0:12:12.000 --> 0:12:14.760 that the prosecution has no case at all, Set the 0:12:14.760 --> 0:12:17.760 bail very low for a capital murder case. Set the 0:12:17.760 --> 0:12:21.559 bail ten thousand dollars, and I made bail and went home. 0:12:22.040 --> 0:12:24.080 Then comes a trial, Then comes the trial. 0:12:24.200 --> 0:12:28.280 Right, It's interesting you had an ineffective assistance of council 0:12:28.360 --> 0:12:32.760 claim later on in your appeal, and typically well typically 0:12:33.520 --> 0:12:37.040 xuonneries were represented, whether or not the head in effects 0:12:37.040 --> 0:12:39.160 of assistants a council. In general, there are people who 0:12:39.200 --> 0:12:42.800 come from very humble roots and have no ability to 0:12:42.800 --> 0:12:45.160 pay for an attorney and are represented by a public defender. 0:12:45.679 --> 0:12:47.839 That wasn't the case with you, So let's talk about 0:12:47.840 --> 0:12:50.959 that too. Because your family hired an attorney who would 0:12:51.000 --> 0:12:53.120 on paper have seemed like the right guy to represent 0:12:53.160 --> 0:12:54.440 you in this situation. 0:12:54.120 --> 0:12:58.280 Right, right, So the determination was made to hire a 0:12:58.320 --> 0:13:01.680 local attorney because the thinking behind that was, Okay, this 0:13:01.760 --> 0:13:05.719 person knows the landscape of this particular small town. If 0:13:05.720 --> 0:13:08.880 it's necessary to pick a jury or to do the 0:13:08.920 --> 0:13:10.640 many different things that a lawyer would have to do 0:13:10.800 --> 0:13:13.600 both pre trial and during trial, that they would be 0:13:13.600 --> 0:13:15.800 well suited to do that in this environment. 0:13:15.840 --> 0:13:17.240 So that determination was made. 0:13:17.400 --> 0:13:19.920 So we went with an attorney that was from the 0:13:19.960 --> 0:13:23.320 Morgantown which is where West Virginia University is located the 0:13:23.360 --> 0:13:27.320 Morgantown area, to represent me in this case. I mean, 0:13:27.360 --> 0:13:30.400 that was a terrible mistake. It turns out we went 0:13:30.440 --> 0:13:34.600 to trial. The trial, and you mentioned earlier it seeming surreal, 0:13:34.640 --> 0:13:37.880 I can verify that for you that it didn't seem 0:13:37.920 --> 0:13:42.120 that it was surreal. I was completely baffled by the 0:13:42.120 --> 0:13:44.040 fact that I was even in this situation, that I 0:13:44.120 --> 0:13:47.440 was even having to answer for a crime like that, 0:13:47.440 --> 0:13:49.520 that that had never even crossed my mind. And the 0:13:49.559 --> 0:13:52.240 fact that I'm sitting in this chair and being even 0:13:52.280 --> 0:13:55.120 accused of something like that was completely foreign to me. 0:13:55.640 --> 0:13:58.600 And you know something I really resented, to be honest 0:13:58.600 --> 0:13:59.880 with you, but that I knew that I had to 0:13:59.880 --> 0:14:03.960 go through. So in trial, the case against me was 0:14:04.440 --> 0:14:08.320 literally all hearsay and had no evidence whatsoever, and that 0:14:08.760 --> 0:14:12.440 ultimately was brought up by the courts that released me. 0:14:12.640 --> 0:14:17.480 But basically the evidence in the trial was, oh, our friend, 0:14:18.480 --> 0:14:21.480 mister Wilkins told us you didn't like him. Our friends 0:14:21.480 --> 0:14:23.160 told us that y'all had some type of beef. That 0:14:23.280 --> 0:14:23.920 was really it. 0:14:24.400 --> 0:14:25.720 Mark, Let's turn to you for a second. 0:14:25.760 --> 0:14:28.160 You can't convict somebody in America based on that on 0:14:28.320 --> 0:14:30.560 rumors a capital murray case. 0:14:30.800 --> 0:14:31.480 How's that happen? 0:14:32.000 --> 0:14:35.560 Well, unfortunately, I think experienced listeners of your podcast will 0:14:35.600 --> 0:14:38.040 know by now that that's Sadly, that's not the case 0:14:38.600 --> 0:14:40.720 that when there's a lot of pressure in a community 0:14:40.760 --> 0:14:44.760 to solve a certain crime, when they identify a suspect, 0:14:45.080 --> 0:14:46.960 they go down a certain road that they don't want 0:14:46.960 --> 0:14:50.120 to go back from. They get their conviction once that 0:14:50.240 --> 0:14:53.000 train is in motion. If you're lying there on the tracks, 0:14:53.040 --> 0:14:55.320 they run over you and you get convicted. 0:14:55.400 --> 0:14:58.560 I want to explore that too, because in this case, 0:14:58.920 --> 0:15:04.840 what is is the idea that after Brian had been 0:15:04.880 --> 0:15:08.040 identified as a suspect, and after the wheels of let's 0:15:08.080 --> 0:15:12.080 call it justice and quotes had started turning, another more 0:15:12.240 --> 0:15:16.400 likely suspect emerged, right, who may have actually been the killer? 0:15:16.640 --> 0:15:20.160 But they never that was not followed up on because 0:15:20.440 --> 0:15:23.920 it wasn't the narrative that they had signed on too. Right, 0:15:24.080 --> 0:15:27.440 they'd picked their guy. Everybody was determined to solve this 0:15:27.640 --> 0:15:30.080 case or to clear it off their desk. Not to 0:15:30.160 --> 0:15:33.320 solve it, right, but to get rid of it. And 0:15:33.720 --> 0:15:35.920 if an innocent guy got caught in the crosshairs, and 0:15:36.040 --> 0:15:39.040 so be it, so be it. So the hearsay is 0:15:39.080 --> 0:15:42.360 admitted into court, which seems odd too. I mean, would 0:15:42.400 --> 0:15:44.840 you if you were representing him at that time, would 0:15:44.880 --> 0:15:46.880 that still have been allowed to be admitted into court? 0:15:47.280 --> 0:15:49.120 Yeah, I don't know. I'm not sure about the rules 0:15:49.160 --> 0:15:51.040 of evidence in West Virginia, but I'm sure they found 0:15:51.080 --> 0:15:54.080 a way to spin it and sort of use the 0:15:54.120 --> 0:15:58.000 notion that there were witnesses who somehow implicated him even 0:15:58.040 --> 0:16:00.920 though they didn't as a means of conviction. And from 0:16:01.000 --> 0:16:03.760 what I understand about Brian's case, there was evidence that 0:16:03.960 --> 0:16:09.120 came out about other suspects that the police essentially buried 0:16:09.200 --> 0:16:14.680 and put away that his attorney, member paid attorney, private, 0:16:14.840 --> 0:16:18.360 well respected established attorney found out about and didn't follow 0:16:18.440 --> 0:16:23.040 up on. That is just egregious and it's unusual. But 0:16:23.160 --> 0:16:25.600 I think there's a real lesson here, which is that 0:16:26.120 --> 0:16:30.120 it's not just about the people who who can't afford 0:16:30.160 --> 0:16:34.200 to represent themselves, who get bad public defenders who can't 0:16:34.280 --> 0:16:38.720 follow through and give adequate representation. It happens at every level. 0:16:38.920 --> 0:16:42.000 If that machinery of justice is determined to get you, 0:16:42.520 --> 0:16:47.240 they probably will regardless of your personal circumstances, and that's 0:16:47.360 --> 0:16:53.040 just shocking and in my view, totally unacceptable and outrageous. 0:16:53.120 --> 0:16:55.640 An everybody's feel I mean, because this can happen, and 0:16:55.680 --> 0:16:58.040 I think Brian is a great example of this, right, 0:16:58.280 --> 0:17:01.680 I talk about the fact that this can happen to anyone. 0:17:02.000 --> 0:17:03.920 It literally can happen anyone, or he wouldn't be sitting 0:17:03.920 --> 0:17:07.680 here because he ain't that guy. Right, So you got 0:17:07.680 --> 0:17:12.560 convicted of capital murder that moment. Take us back there. 0:17:12.920 --> 0:17:16.160 You're in the courtroom. You're not that far removed from 0:17:16.240 --> 0:17:20.359 having been the guy on campus who had it all? 0:17:20.800 --> 0:17:23.440 And did you expect that the jury was going to 0:17:23.520 --> 0:17:25.840 come back whether guilty or an innocent verdict? 0:17:26.400 --> 0:17:28.960 The entire time I expected them to come back with 0:17:29.440 --> 0:17:32.440 an innocent verdict. I had been making plans because remember, 0:17:32.560 --> 0:17:34.560 like I said, I was on bond. I had made 0:17:34.640 --> 0:17:37.720 bond and had been home and was driving myself every 0:17:37.800 --> 0:17:40.359 day from the hotel back and forth to court. And 0:17:40.440 --> 0:17:43.679 so the day of the conviction, I had driven myself 0:17:43.680 --> 0:17:46.840 from the hotel to the courtroom because they said they 0:17:46.840 --> 0:17:49.280 had a decision, and I was eager to get it 0:17:49.320 --> 0:17:51.639 over with because I wanted to go home and so 0:17:51.920 --> 0:17:54.439 my anticipation was that it would be not guilty, that 0:17:54.480 --> 0:17:56.840 I would be acquitted and go home and then deal 0:17:56.880 --> 0:17:58.920 with everything kind of after that. 0:17:59.119 --> 0:18:02.200 But that was far different from the reality. I actually knew. 0:18:02.280 --> 0:18:05.760 I found out that there was a conviction a little 0:18:05.800 --> 0:18:08.439 bit before they read it in court, because when they 0:18:08.480 --> 0:18:10.960 called the jury out from the box, they have a 0:18:11.040 --> 0:18:14.119 jury sheet, and the jury sheet has different lines, and 0:18:14.200 --> 0:18:17.040 the first line is not guilty, second line is, you know, 0:18:17.119 --> 0:18:19.840 first degree murder. Third line and fourth line are the 0:18:19.840 --> 0:18:23.119 different the underlying charges. I guess you would say so 0:18:23.200 --> 0:18:27.840 second degree manslaughter are different variations of the homicide charge. 0:18:28.160 --> 0:18:31.040 And when the jury walked out, the foreman had it 0:18:31.040 --> 0:18:33.760 in his hand, but he had it in his hand, 0:18:33.840 --> 0:18:36.679 and as he stepped I could see I couldn't tell 0:18:37.000 --> 0:18:38.679 which line had been checked, but I knew that it 0:18:38.720 --> 0:18:40.560 wasn't the first one, and I knew that the first 0:18:40.560 --> 0:18:44.199 one was not guilty. So for about two minutes, I 0:18:44.280 --> 0:18:46.800 knew that it was some kind of guilty verdict, but 0:18:46.920 --> 0:18:47.600 just didn't know what. 0:18:47.880 --> 0:18:50.239 And I was in total disbelief. 0:18:50.160 --> 0:18:53.399 In the court room. I'm assuming your family was there. 0:18:53.560 --> 0:18:55.560 Right, so my entire like I said, I have a 0:18:55.560 --> 0:18:57.760 small family, but we're very close knit, so I had 0:18:58.000 --> 0:19:01.280 my mother was their father, both my siblings, cousins, and 0:19:01.320 --> 0:19:02.480 some friends were there. 0:19:03.040 --> 0:19:06.159 And it must have been I mean, it's just like 0:19:06.200 --> 0:19:10.440 the worst kind of imaginable sort of nightmare. You're there 0:19:10.880 --> 0:19:12.880 surrounded by all these people who know you couldn't possibly 0:19:12.880 --> 0:19:15.439 have done it, who love you and care for you, 0:19:15.520 --> 0:19:18.080 and are people who have accomplished so much in their 0:19:18.080 --> 0:19:19.880 own lives and have been a part of the justice 0:19:19.920 --> 0:19:22.320 system at one level or another, even including your aunt 0:19:22.320 --> 0:19:26.200 who's a judge, and who are suddenly powerless to stop 0:19:26.280 --> 0:19:30.240 this grave injustice from happening to a person that they 0:19:30.800 --> 0:19:32.600 love and care about deeply, which is you. 0:19:33.320 --> 0:19:34.440 And then it's. 0:19:34.320 --> 0:19:37.919