Speaker 1: You know, every episode of this show has been a
Speaker 1: roller coaster ride and a powerful emotional experience for me,
Speaker 1: none more so in the episode I recorded with Barry Gibbs,
Speaker 1: a beautiful, wonderful, warm, teddy bear of a man who
Speaker 1: was wrongfully convicted in one of the most egregious cases
Speaker 1: that any of us have ever seen, and exonerated in
Speaker 1: one of the most amazing twists of fate. You have
Speaker 1: to listen to his episode to hear the whole thing.
Speaker 1: I can't even paraphrase it, but the sad news is
Speaker 1: Barry died after battling an illness on March twenty third,
Speaker 1: twenty eighteen. Barry, rest in peace, my friend. You're gone
Speaker 1: but not forgotten. Now please listen to the incredible Barry Gibbs.
Speaker 2: I came from a beautiful neighborhood. I had a beautiful life.
Speaker 2: I went to sleep because September seventh was the first
Speaker 2: day of my high school year. I was going to
Speaker 2: be a senior at twenty two, I was set to
Speaker 2: start college. I woke up and my life was never
Speaker 2: the same again. Cops came out with guns drawn, and
Speaker 2: I never saw freedom ever since after that. It's like
Speaker 2: roach Mo, Tom once you get in and I can't mount.
Speaker 1: In nineteen eighty six, a woman was strangled and her
Speaker 1: body was dumped from a car on the belt Parkway
Speaker 1: in Brooklyn, New York City. In order to protect the
Speaker 1: known mafia associate who was the real suspect in the case,
Speaker 1: the detective Louis Eppalito co Where's two eyewitnesses into changing
Speaker 1: their story and placing Barry Gibbs at the scene of
Speaker 1: the crime. Based on this false eyewitness testimony, Barry Gibbs
Speaker 1: was convicted and served almost two decades in prison before
Speaker 1: he was exonerated. The guys broken.
Speaker 2: I made a seventh Terry plot a life in Sherman's Wolfe, the.
Speaker 1: Corrupt cop who was responsible for coercing these eyewitnesses, was
Speaker 1: ultimately convicted of eight murders that he carried out for
Speaker 1: the mafia. He's currently serving life in prison.
Speaker 3: To say corrupt is the understatement of all time. Lewis
Speaker 3: Epolito was working at this point in time for a
Speaker 3: crime family in New York City.
Speaker 1: This is wrongful conviction. With Jason Flamm, we have a
Speaker 1: very special guest today, actually we have three very special
Speaker 1: guests today. The number one is Barry Gibbs. Barry's an
Speaker 1: exignery who served almost two decades in prison for a
Speaker 1: murder he didn't commit, and his story will rock your world,
Speaker 1: to say the least. And in addition to Havingry on
Speaker 1: the show, we have another Barry. We have Barry times
Speaker 1: two today. Barry Sheck, the co founder of the Innocence
Speaker 1: Project and a personal hero of mine, is here. And
Speaker 1: we also have Vanessa Popkins. Vanessa is the newly promoted
Speaker 1: and anointed director of post conviction Litigation for the Innocence
Speaker 1: Project and she's been a long time lawyer with the
Speaker 1: innocentce Project, long serving lawyer with the Noconce Project. We're
Speaker 1: thrilled to have both of you, all three of you
Speaker 1: here on the show today, So welcome. So Barry Gibbs,
Speaker 1: Let's start at the beginning, which is where did you
Speaker 1: Where were you born? Let's start with that. Let's go
Speaker 1: all the way back.
Speaker 2: We can go all the ways back. I was born
Speaker 2: in Brooklyn. I was raised in sheeps At Bay. I
Speaker 2: worked in a post office. I came from a beautiful neighborhood,
Speaker 2: had a beautiful life, beautiful wife, had a house, had
Speaker 2: a family, had a car. Every two years had a
Speaker 2: good job.
Speaker 1: American dream pretty much right, I mean, until it wasn't.
Speaker 1: So you served honorably served your country in a war
Speaker 1: that we won't get into the politics of that war,
Speaker 1: but the fact there's a crazy situation for any young
Speaker 1: man to find himself in. Now you come back and.
Speaker 2: I wind up, I wind up, I'm young, I get married.
Speaker 2: I find a beautiful woman. All along sitting in an
Speaker 2: office I was. I was showing intimidated by her beauty
Speaker 2: that it took me a year and a half to
Speaker 2: get up the courage to just ask her out for
Speaker 2: a couple of coffee.
Speaker 1: This sounds very romantic, by the way. I just wants
Speaker 1: to know truth. I know, but I'm feeling a little misty.
Speaker 1: It's like in the movies when you get that you know,
Speaker 1: foggy thing and you go back in time. So you
Speaker 1: finally got the courage up, you asked her coffee.
Speaker 2: I used to deliver a mail toward she'd sit in
Speaker 2: that office on a dictive phone. I never saw a
Speaker 2: woman type as quickly as she did, and I was amazed.
Speaker 1: So you charmed her and you eventually married her. Right,
Speaker 1: because otherwise we wouldn't be talking about it right now.
Speaker 2: Yeah, she was. She was a gift from God, she
Speaker 2: really was.
Speaker 1: And you married the girl of your dreams. So that's again,
Speaker 1: it sounds like an American American dream story up until
Speaker 1: it's not. And I want to get into that because
Speaker 1: we have we have Barry and Vanessa here, which is
Speaker 1: really a treat for the show, and I want to
Speaker 1: talk about your your your Kafka esque journey through the
Speaker 1: criminal justice system, because yours, is saying to Barry before,
Speaker 1: it's like the triple crown of malfeasance. Right, you had
Speaker 1: jail house snitches, you have police miss and prosecutorial misconduct,
Speaker 1: and then you have a situation where they either can't
Speaker 1: find or won't or won't turn over the evidence that
Speaker 1: could have exonerated you long before your two decades in prison,
Speaker 1: and it was it was a life sentence. Is that right? Yes,
Speaker 1: So so let's let's turn it over to uh to
Speaker 1: the lawyers for a second. Here, When did you first
Speaker 1: become aware? And can you give us a little background
Speaker 1: on how this happened in the first place, because this
Speaker 1: should never happen.
Speaker 4: So basically, in the mid nineteen eighties, a woman from
Speaker 4: Brooklyn was murdered She was an African American woman. She
Speaker 4: was strangled and her body was disposed of on the
Speaker 4: side of a road on the Belt Parkway, and there
Speaker 4: were a couple of witnesses who actually saw there. It
Speaker 4: was a white man who was dumping the body essentially, and.
Speaker 1: So there are two witnesses.
Speaker 4: There was two witnesses. One was a park police officer.
Speaker 1: And the Belt Parkway is a major thoroughfare in Brooklyn
Speaker 1: just for people who around the country who don't know
Speaker 1: the geographics, so go ahead.
Speaker 4: Right, And there was a park police officer who had
Speaker 4: driven by and saw the person the perpetrator, getting out
Speaker 4: of the car. And there was also a guy, Peter Mitchell,
Speaker 4: a witness who was jogging in the area who also
Speaker 4: witnessed kind of the same set of occurrences. And so
Speaker 4: the victim had been strangled. She was later discovered to
Speaker 4: have hairs on her body. And you know, there was
Speaker 4: a lot of evidence later on that we could have
Speaker 4: done DNA testing on if we would have found to
Speaker 4: show who did this. But Barry, you know, there was
Speaker 4: this detective Lewis Epilito who wasn't even on duty at
Speaker 4: the time, you know, wasn't wasn't on shift, but ended
Speaker 4: up showing up at the crime scene and basically took
Speaker 4: charge of the investigation.
Speaker 1: And why did he do that? I mean, that seems
Speaker 1: very irregular, right.
Speaker 3: Something's wrong with him, Something's wrong with the whole way
Speaker 3: this case goes down. He sweeps in to take over
Speaker 3: this case, right, and all of a sudden it's his case.
Speaker 3: And he goes and finds Peter Mitchell and he.
Speaker 1: Creates this Peter Witchell's the jogger. The jogger.
Speaker 3: All of a sudden, this guy is identifying Barry. He
Speaker 3: takes care of the whole thing.
Speaker 1: And why did Barry even come? I mean, he wasn't
Speaker 1: anywhere near the crime scene? How did his name even
Speaker 1: come into the picture? Here?
Speaker 3: We we we now know, right, you see, at the
Speaker 3: time that we're doing this case, we don't know exactly
Speaker 3: why Epilito was doing all these things. And of course
Speaker 3: there's a house snitch that emerges in all of this,
Speaker 3: so it goes to Tarlie gets convicted. We don't have
Speaker 3: the DNA evidence, and frankly, as you know, well Jason,
Speaker 3: you know at this time with the Innocence project, if
Speaker 3: we couldn't find the biological evidence to do a DNA test.
Speaker 3: We had to close the case.
Speaker 1: Right, because that was that was the mission of the charter,
Speaker 1: basically the Innocent's Project. We work on DNA cases. Now,
Speaker 1: of course this change is afoot, but that's beside the
Speaker 1: point way, right.
Speaker 3: So but we we even though we had pretty much
Speaker 3: established that we couldn't find the hares and the clothing
Speaker 3: or anything like this, we just couldn't close the case.
Speaker 1: Which is odd, right because by definition, this is the
Speaker 1: type of one way you go well of it that should.
Speaker 3: Have been closed. So what happened was what Barry is
Speaker 3: getting emotional about is that we were essentially saying to him,
Speaker 3: we're going to have to drop this case, right, but
Speaker 3: we couldn't.
Speaker 2: What you did, I'm going to tell you what you did.
Speaker 1: You broke my heart?
Speaker 2: You really did, you guys broke my heart. I made
Speaker 2: a cemetery plot, a life of surance policy.
Speaker 3: And then all of a sudden we wake up and
Speaker 3: in the front page of all the newspapers in New
Speaker 3: York City.
Speaker 1: What year, what year?
Speaker 4: What year was two thousand and four.
Speaker 1: So this has been going on now for this has
Speaker 1: probably been about for eleven years.
Speaker 3: Now, twelve years, yeah.
Speaker 1: Two thousand and four you opened the newspaper.
Speaker 3: Opened the newspaper, and there's a story that a former
Speaker 3: New York City Police detective, Lewis Epalito, who was famous
Speaker 3: in his time because he wrote a book called Mafia Cop,
Speaker 3: where he described how his parents had been The father
Speaker 3: had been involved in the organized crime, but he hadn't been,
Speaker 3: and he was a great hero cop, uh, you know,
Speaker 3: and got a lot of publicity. He was a cop
Speaker 3: that arrested Barry and took over suddenly swoops in and
Speaker 3: takes over this case. So Vanessa and I look at
Speaker 3: this and we go, oh my god, it's we got
Speaker 3: to call them up and say whatever. They had arrested
Speaker 3: at Ballito.
Speaker 1: Right, That's why the stories they had arrested.
Speaker 3: At Ballito and Kara Kappa, another detective with whom he worked,
Speaker 3: because it was alleged that he had become involved with
Speaker 3: the mafia.
Speaker 1: I remember reading the story and he the.
Speaker 3: Two of them had begun doing hits for a crime family, right,
Speaker 3: and they literally were killing people one after another.
Speaker 1: You know, this sounds like it's straight out of a
Speaker 1: Hollywood movie. Rights. We have we have guys in blue
Speaker 1: wearing badges doing hits for the Mafia in New York City.
Speaker 3: It's all true, and it's crazier than that Chason because
Speaker 3: Lewis Eppolito, the so called mafia cop, was in the
Speaker 3: first scene right of Goodfellas, very first scene of Goodfellas.
Speaker 1: Like art imitating life imitating art. Years before he was
Speaker 1: exposed as being a hitman for the mafia and disgraced,
Speaker 1: Louis Eppalito appeared on Sally Jesse Raptael, What.
Speaker 3: Do you do now, Big lou Well.
Speaker 5: I've acted in nine movies. I've been in Goodfellas, State
Speaker 5: of Grace, Predator to I tried writing a screenplay. Gene
Speaker 5: Hackman has been really great with me and Mikhail Ershnikov
Speaker 5: and I did a movie with them called Company Business,
Speaker 5: and I wrote a screenplay and it was bought by
Speaker 5: New Line Cinema and I just finished the second screenplay
Speaker 5: that it's better than policing getting shot out any day.
Speaker 3: Yeah, as far back as I can remember, I always
Speaker 3: wanted to be a gangster.
Speaker 1: And Bewhile, if that's not ironic enough, he's also writing
Speaker 1: a book about he's how he's not doing what he
Speaker 1: is exactly is doing right, So it's like the whole
Speaker 1: thing is a circle of madness. That's, you know, hard
Speaker 1: to believe.
Speaker 3: So we write into the US Office and we called
Speaker 3: them and they say, would you please look into the
Speaker 3: Barry Gibbs case because something's wrong with this case. We've
Speaker 3: always thought that Barry was innocent, that he was framed,
Speaker 3: and unbeknownst to us, and they say, yes, we're going
Speaker 3: to do that.
Speaker 1: Get ready for this.
Speaker 3: By the way, unbeknownst to us, the day that they
Speaker 3: arrested Epallito in his apartment in Las Vegas, right, they
Speaker 3: found the original New York City Police Department file on
Speaker 3: the on the Barry Gibbs case. I mean the original one.
Speaker 3: One of the reasons that we couldn't find a lot
Speaker 3: of things is that it's unprecedented. You know, he's a
Speaker 3: copy retires, he goes to the police department and he
Speaker 3: takes the original file.
Speaker 1: Well maybe he too, I mean, is it your theory
Speaker 1: that he took the file so that it would never
Speaker 1: get discovered, and then ironically again he put it in
Speaker 1: a place where it could get discovered.
Speaker 2: A second to that, I was sitting in the car
Speaker 2: with the DA agents. I don't remember their names. I'm
Speaker 2: not giving you guys up and I said to them,
Speaker 2: how many files did you find in the house? And
Speaker 2: he said three? And I says, well, I'm on my
Speaker 2: way down. What happened to the two water files?
Speaker 1: You know what?
Speaker 2: He said to me, don't worry about them, their career criminals.
Speaker 2: I said to myself, you got that. I'm not going
Speaker 2: to say nothing, but I really wanted to say something.
Speaker 2: Why don't you do your job promptly? Well, they did
Speaker 2: what I didn't.
Speaker 3: Let's be let's let's be straight about this. So these
Speaker 3: DEA agents and the US attorneys in the Eastern District,
Speaker 3: they went out and they started reinvestigating Barry's case. And
Speaker 3: they went and they talked to Peter Mitchell, Right's the Jagger,
Speaker 3: and he's living someplace in Queens and they walk in
Speaker 3: the door and he said, I've been waiting, you know,
Speaker 3: twenty years.
Speaker 1: I'm getting the jails right now.
Speaker 3: For somebody to say this to me. And he bursts
Speaker 3: into tears and he describes how Epillito threatened him. He himself,
Speaker 3: Peter Mitchell had been an Army veteran, right he had
Speaker 3: a felony conviction, and Epilitos was threatening him, you know,
Speaker 3: both physically and to expose him and destroy him. And
Speaker 3: he brought him into the precinct and he showed him
Speaker 3: who Barry was. And then they held this ridiculous, bogus
Speaker 3: lineup and you know, he identified Barry Gibbs.
Speaker 1: So, yeah, he was given basically no option.
Speaker 3: Yeah, I mean it was a force.
Speaker 1: So what about the other witness Barry? Who was the
Speaker 1: park the park police officer he said, a park ranger or.
Speaker 4: Something, officer Gentilly. He You know, the crazy thing about
Speaker 4: him is that nobody, you know, he would have been
Speaker 4: the most reliable witness, right, He's an officer, he's trained
Speaker 4: to make identifications. Nobody ever asked him that we know of,
Speaker 4: to look at Barry Gibbs and say is that the
Speaker 4: person you saw? Because they didn't want to know.
Speaker 3: When you go back and you look at this case,
Speaker 3: this is one of the Yeah, I mean, this is
Speaker 3: what makes Barry Gibbs, this case extraordinary in one respect
Speaker 3: is that it was a completely corrupt cop. And to
Speaker 3: say corrupt is the understatement of all time. Lewis Eppolito
Speaker 3: was working at this point in time for a crime
Speaker 3: family in New York City. He and Kara Kappa, I
Speaker 3: think we're involved in the assassination of eleven people. There's
Speaker 3: a terrific book written about Lewis Epolito case and it's
Speaker 3: called The Good Rat by Jimmy Breslin, you know, perhaps
Speaker 3: the greatest, you know, pulitzurprise winning columnist that we've ever
Speaker 3: had in this town. And he talks about Barry's case.
Speaker 3: But they were running around killing people, you know, and
Speaker 3: the Lukesey crime family would say, well, why don't you
Speaker 3: go kill Guido, and they killed the wrong Nicki Guido.
Speaker 1: They did.
Speaker 3: Nick They're all contract killings. And so what we have
Speaker 3: been able to figure out through litigation after Barry was
Speaker 3: uh exonerated, essentially through the work of these DEA agents
Speaker 3: who went out and found Peter Mitchell and you know,
Speaker 3: showed that the whole case was a frame up. We
Speaker 3: now know that the day that the witnesses saw this
Speaker 3: body of this poor woman being dumped on the belt
Speaker 3: Parkway right that the description matched somebody that worked at
Speaker 3: a chop shop in Brooklyn.
Speaker 1: Who was known to the cops, who was known.
Speaker 3: And Epolito mysteriously shows up the next day. The next
Speaker 3: day we found out this guy who was suspected who
Speaker 3: to meet the description, right, shows up at the police
Speaker 3: precinct with his died because originally they described it as
Speaker 3: somebody with salt and pepper hair. He shows up with
Speaker 3: his hair dyed black and a lawyer to talk to.
Speaker 3: Epolito appears about that, which appears in no police reports.
Speaker 1: No, there's no reason to take a look at that.
Speaker 1: I wouldn't.
Speaker 3: But you know, when you look back at this, it's unbelievable.
Speaker 1: So let's go back to the case. So nine years
Speaker 1: after Barry's conviction, a Brooklyn judge ordered the state to
Speaker 1: submit evidence from the case for DNA testing. And then
Speaker 1: what happens, right, It would seem like at that point, Okay,
Speaker 1: now we got a break. Right now, we're going to
Speaker 1: get this guy out. Some of the evidence had apparently
Speaker 1: been destroyed and other items couldn't be found.
Speaker 2: Okay, that's their side of the case. But my side
Speaker 2: the case is different from that version.
Speaker 1: Right there, Okay, let's hear it.
Speaker 2: Okay, when I was in jail at Riker's Island six
Speaker 2: months later or whatever, I can't remember exactly how many
Speaker 2: months later, the district attorney wanted me to give hair
Speaker 2: samples again. My attorney came up to me, and I
Speaker 2: said to him, I'm not giving it. And he says why.
Speaker 2: He says, because I'm being framed. I'm not giving it.
Speaker 2: He says, listen, Barry, he says, I'm there to represent you. Now,
Speaker 2: he said, pay attorney, I'm there to represent you. He says.
Speaker 2: I says, you're gonna be there to represent me when
Speaker 2: they take these heirs and they're done together, Like, are
Speaker 2: you gonna be physically right there? He said to me. No,
Speaker 2: he says, I'm gonna be there when they take the
Speaker 2: hair samples and they heat seal it and they're gonna
Speaker 2: give the evidence to who epilto.
Speaker 4: The chain of custody really fell off with Epilito himself
Speaker 4: in terms of having handle the evidence, and it was
Speaker 4: just am I.
Speaker 3: A you know, And the funny thing that Barry Gibbs
Speaker 3: is saying is that, you know, he doesn't even want
Speaker 3: to give his hairs because he doesn't trust And you know,
Speaker 3: from the lawyer's point of view, he's going, oh, I
Speaker 3: got this Michugan client, this crazy client. It doesn't even
Speaker 3: want to give up airs.
Speaker 1: But one of the greatest frame ups in the history
Speaker 1: of New York City.
Speaker 3: And what's crazy is that you'd look at him and go,
Speaker 3: you're you're convinced that you're going to be framed, and
Speaker 3: you won't even give your hairs, and you're saying that
Speaker 3: we can't trust the detective to even take them to
Speaker 3: the crime lab and give it a straight up examination.
Speaker 3: And it turns out everything he suspects is completely true.
Speaker 3: It is a complete frame. The guy is working for
Speaker 3: the mafia, He is assassinating people. He probably played around
Speaker 3: with all of this evidence. We can't prove all of that,
Speaker 3: but we proved the hell of a lot of it.
Speaker 1: So for a postal worker for oppostal worker, Barry turns
Speaker 1: out to be a pretty good scientist, huh, I mean,
Speaker 1: or at least a psychologist. Let me ask you this. Also, so,
Speaker 1: the New York City crime laft has faced criticism for
Speaker 1: its difficulty difficulty is a strange word, for its difficulty
Speaker 1: handling on to put that in quotes and storing evidence.
Speaker 1: In twenty thirteen, the New York City Medical Examiner's Office
Speaker 1: announced that it had discovered more than fifty cases in
Speaker 1: which the office failed to upload critical DNA evidence from
Speaker 1: crime scenes to the state's DNA database, which prevented those
Speaker 1: samples from being compared to genetic material from convicted offenders.
Speaker 1: This discovery led to the firing of the office's deputy
Speaker 1: director of quality assurance, which sounds kind of like a
Speaker 1: fall guy to me. I mean, the deputy director of
Speaker 1: quality assurance. That sounds like somebody who works at a
Speaker 1: snack food company or something like that. You know, so
Speaker 1: can we can you tell me more about that? Because
Speaker 1: people like to think that these people are doing their jobs, right.
Speaker 1: I think the public likes to think that when you have,
Speaker 1: you know, a crime lab, that these people are on
Speaker 1: is now, of course, after making a murderer and after
Speaker 1: the different things that have come out recently, I think
Speaker 1: that has generated so much attention that people probably have
Speaker 1: a little more skeptical view. But even as a lay person,
Speaker 1: before getting involved with Innis's project, I thought so too.
Speaker 1: I thought that these people do their jobs. These are
Speaker 1: honest actors.
Speaker 3: Right Number one, what Barry and Vanessa were describing about
Speaker 3: the search for his evidence, right, It is true that
Speaker 3: in the old days, at the time that Barry was convicted,
Speaker 3: they had a terrible system for keeping track of the evidence.
Speaker 3: It was a mess. And that's not unlike places all
Speaker 3: across the country. It was a total mess, and they
Speaker 3: did have fires and asbestos and floods, and they did
Speaker 3: recently after Sandy, have a problem. But you know, having
Speaker 3: said that, we did have a problem for years in
Speaker 3: trying to get a fair search because the evidence custodians really,
Speaker 3: you know, they were being deliberately indifferent to the need
Speaker 3: to go look for evidence, even when people were asking,
Speaker 3: go find my evidence. A DNA test could prove me innocent.
Speaker 3: They really weren't trying hard. But now I do believe
Speaker 3: that that part of the operation has been professionalized. They
Speaker 3: have a limb system, you know, it's sort of like
Speaker 3: a barcode system, laboratory information welcome to twenty sixteen.
Speaker 4: They haven't got they haven't gone back completely, so there's
Speaker 4: evidence from decades ago. You know, that's still a mass.
Speaker 4: So it's still it's still incredibly hard for innocent people
Speaker 4: today in New York City to get access to evidence
Speaker 4: to prove their innocence. They didn't go back and cleaned up.
Speaker 1: And it's odd because married and I we talked about
Speaker 1: this before. You know, our clients. I sometimes think of
Speaker 1: them and I hope you think this the right way,
Speaker 1: as some of the luckiest of the unluckiest people on earth, right,
Speaker 1: because you can't be unluckier than to have it's tragic
Speaker 1: and an unluckiest there's an understatement than to have yourself found,
Speaker 1: find yourself in a situation where you wrongfully convict and
Speaker 1: then you know there's we know that there's you know,
Speaker 1: tens of thousands maybe more people in prison who are innocent,
Speaker 1: and then for them to be fortunate enough to get
Speaker 1: the innocence part, to have the Innostance Project take their case,
Speaker 1: and then to have the evidence found as it was
Speaker 1: in Barrie's case, is really something that could only be
Speaker 1: described as, you know, half a so sort of like
Speaker 1: a miracle.
Speaker 2: We're blessed, but we've touched. I don't know what it is.
Speaker 2: You kind of surrendered to everything and anything to be
Speaker 2: at the place, oh man, because whatever it is, it's.
Speaker 1: It's unbelievable in order to move on with your life.
Speaker 2: Yeah, I did angels as angels you don't want to
Speaker 2: believe it, there's angel.
Speaker 1: I want to talk about the misconduct because, according to
Speaker 1: a study done by the Endsis Project of Minnesota, official
Speaker 1: misconduct meaning police or prosecutorial misconduct, was a contributing factor
Speaker 1: in forty six percent of all DNA exonerations on records
Speaker 1: since nineteen eighty nine. Police suppressed evidence that might support
Speaker 1: a defend its innocence in over one third of the
Speaker 1: first seventy four exoneration cases. So that's one group that
Speaker 1: we studied. And nine percent of exoneration cases involved allegations
Speaker 1: of police coercialing witnesses into testifying, as was allegedly the
Speaker 1: case in your trial. Well we know it was the
Speaker 1: case in your trial. Bury. So Barry, I know you
Speaker 1: and I talk about this a lot, and Vanessa I
Speaker 1: love to hear what you have to say about it.
Speaker 1: You know, the prosecutor of misconduct is this? I mean,
Speaker 1: is it just blind ambition that drives these prosecutors? And
Speaker 1: how is it? Like it always blows my mind that
Speaker 1: a prosecutor can be so morally bankrupt that they can
Speaker 1: be and ethically that they can be comfortable and sleep
Speaker 1: well at night while deliberately knowingly prosecuting and convicting and
Speaker 1: sometimes sentencing to death the person they know to be innocent.
Speaker 1: But then the other problem.
Speaker 3: Is but that's see, that's where I would take some issue, right,
Speaker 3: and that is that I think much of it. The
Speaker 3: misconduct is something that has been termed noble cause corruption,
Speaker 3: and that because they actually believe that they're prosecuting a
Speaker 3: guilty person, and then when the exculpatory evidence seems to
Speaker 3: pop up right, left and right, because it turns out
Speaker 3: they're actually prosecuting an innocent person, unbeknownst to them, it
Speaker 3: gets hidden. And that's why it's so important for lawyers
Speaker 3: to play by the rules, and that we're talking about
Speaker 3: prosecutors playing by the rules that even if you think
Speaker 3: you've got a guilty guy who committed a horrible crime,
Speaker 3: you still have to play by the rules of our
Speaker 3: system and disclose exculpatory evidence and not push witnesses beyond
Speaker 3: what they really are really saw or heard or want
Speaker 3: to say. That you have to somehow control, you know,
Speaker 3: the kinds.
Speaker 1: Of impulses, right impulses.
Speaker 3: To win that you know are so prevalent in the system.
Speaker 3: That's on the one hand, on the other hand, you
Speaker 3: need strong defense. You need lawyers that are educated, that
Speaker 3: are well funded, you know that are going to do
Speaker 3: the job, because unless the defense plays by the rules
Speaker 3: and does its job and exposes the problems in the case,
Speaker 3: the system implodes.
Speaker 1: Well you have, and you have the perfect storm there, right,
Speaker 1: you have over ambitious prosecutors who become blinded by by
Speaker 1: their belief in the noble cause what do you call it,
Speaker 1: noble cause corruption or and or their own ambition. And
Speaker 1: then you have a public defense who may be not
Speaker 1: up to the task, they may not be qualified, or
Speaker 1: they may just be overworked, overwhelmed. Yeah, because some of
Speaker 1: them are some of them are dealing with a hundred
Speaker 1: or more cases at a time, right, so they can't
Speaker 1: possibly devote the type of time that they would need
Speaker 1: to do to mount a robust defense. But the other
Speaker 1: thing that always, you know, boggles my mind is that
Speaker 1: as if a prosecutor does let's let's assume the worst
Speaker 1: in this case. And we know there are those cases
Speaker 1: right where prosecutors are just like, we got a guy,
Speaker 1: we're just gonna nail them, We're gonna get it off
Speaker 1: our desk, we're gonna close this case, and we're gonna
Speaker 1: move on. We see that, and it's and and of
Speaker 1: course it happens, and sometimes it's noble colast corruption. Sometimes
Speaker 1: it's that. But in those cases, what I can't understand
Speaker 1: is how they could well, well, what we know is
Speaker 1: that when you convict the wrong guy, by definition, you
Speaker 1: stop looking for the right guy, right. And so if
Speaker 1: a prosecutor is motivated but nothing other than selfish interest,
Speaker 1: especially in a small community, you got to do the
Speaker 1: math and say, well, look, if the right guy's still
Speaker 1: out there, and he's going to go almost invariably or
Speaker 1: inevitably and go and commit more terrible crimes, it could
Speaker 1: happen to your own family or somebody you know or
Speaker 1: somebody you love. As a prospect of talking about right,
Speaker 1: So wouldn't you think that as a public service, if
Speaker 1: nothing else motivated them to do the right thing, that
Speaker 1: they would want to get the real perpetrator off the street.
Speaker 1: And of course we know that in many of our cases,
Speaker 1: I don't know the exact percentage when we've exonerate did
Speaker 1: as a guy, we find out that the guilty guy
Speaker 1: has actually gone and committed terrible crimes against people who
Speaker 1: never needed to be hurt or killed in the first place.
Speaker 3: Among the DNA exonerations, close to half involve cases where
Speaker 3: we've been able to identify the person who really committed
Speaker 3: the crime.
Speaker 4: But in a lot of cases too, it's just, you know,
Speaker 4: there really aren't incentives. There need to be more incentives
Speaker 4: on prosecutors, you know, taking on if they get a
Speaker 4: case that's brought to them by the police and it
Speaker 4: doesn't seem right or they're getting you know, some exculpatory
Speaker 4: information to reinvest instigated and not just to see their
Speaker 4: job is to go forward with the case that the
Speaker 4: police brought them and to prosecute it. And you know
Speaker 4: right now is the incentive is to win, not necessarily
Speaker 4: to reevaluate the case, you know, built into the prosecutor's
Speaker 4: offices and just in terms of you know, how they're evaluated,
Speaker 4: what's considered to be a successful prosecutor. And in working
Speaker 4: with some of the conviction integrity units where you know,
Speaker 4: prosecutor's offices are going back and looking at the cases themselves.
Speaker 4: You know, we've heard some of from some of the
Speaker 4: leaders you know in this area that you know, when
Speaker 4: you're a prosecutor, you completely dehumanize the person who's accused.
Speaker 4: You know, that's how you do your job. And so
Speaker 4: it also I think takes a you know, we need
Speaker 4: a reevaluation in our system. We don't treat people who
Speaker 4: are coming through the criminal justice system with any sense
Speaker 4: of humanity and that allows prosecutors to kind of put
Speaker 4: blinders on, and you know, it's not somebody that they
Speaker 4: can relate to. You're not seeing what the devastation that's
Speaker 4: happening to the individual to or family. You know, that
Speaker 4: is completely missing for their people.
Speaker 1: And I think sometimes we lose track of that. They're
Speaker 1: they're not They're not just subjects or people who are
Speaker 1: accused of something or numbers or whatever. They're actual people.
Speaker 1: And we see that over and over again. So the
Speaker 1: conviction review units, this is a relatively new things. It's
Speaker 1: sort of what I think for about five to ten
Speaker 1: years now, right.
Speaker 3: Well, it really started in earnest in two thousand and
Speaker 3: seven in Dallas, Texas, when an African American defense attorney
Speaker 3: at the age of in his thirties was elected District
Speaker 3: Attorney of Dallas.
Speaker 1: Pretty unlikely scenario all right round, and.
Speaker 3: You know it was kind of a fluke or unexpected
Speaker 3: and he came into office, Craig Watkins, and among the
Speaker 3: first things that he did is that he created this
Speaker 3: conviction integrity unit. The Innocence Project actually went to a
Speaker 3: foundation that got him put up half the money because
Speaker 3: it was a matching thing of the Dallas City Council
Speaker 3: and this foundation, the Jet Foundation, and he put in
Speaker 3: charge of the conviction Integrity unit a guy named Mike
Speaker 3: Ware who came from an innocence organization in Lubbock, Texas.
Speaker 3: So the Innocence Project of Texas, working with our Innocence
Speaker 3: Project based in New York, started working with the Dallas
Speaker 3: District Attorney's Office and their conviction Integrity Unit and reviewed
Speaker 3: all the cases where they had been resisting requests for
Speaker 3: DNA testing and reviewed them all. I mean we literally
Speaker 3: got the entire prosecutor file, looked at it, reviewed the
Speaker 3: case sometimes when there was no DNA evidence. Although in Dallas,
Speaker 3: as opposed to New York, they were able to find it.
Speaker 3: That's why there's more exonerations in Dallas than in most states.
Speaker 3: If we had been able to find the evidence in
Speaker 3: New York the way we've discussed before and when we
Speaker 3: were searching for it in Barry Gibbs's case, if we
Speaker 3: can find more of it, New York would have hundreds,
Speaker 3: hundreds of exonerations. I think any firm minded person would agree.
Speaker 3: We just couldn't find the evidence of so many.
Speaker 1: Dallas go from the county with the highest execution rate
Speaker 1: to the county with the highest exoneration rate just about yeah,
Speaker 1: which is an incredible Let's think about that for a second, right,
Speaker 1: and what that conviction review unit has meant to these
Speaker 1: people who were some of them would have been executed there.
Speaker 2: Could you imagine on death row?
Speaker 1: No, you can't imagine it. No one else anyone can
Speaker 1: imagine it. Maybe maybe you can imagine, right, but no
Speaker 1: one else that hasn't been there can imagine. And that's
Speaker 1: one of the reasons why we do the work that
Speaker 1: we do. So these conviction review units, I believe there's
Speaker 1: not twenty four of them around the country, right, Well,
Speaker 1: some of them are affected summer.
Speaker 3: Not some some are for real and some aren't. But
Speaker 3: some are for show, right, some are for show. But
Speaker 3: one of the uh telltale signs is will they bring
Speaker 3: somebody in to that conviction integrity unit or conviction review
Speaker 3: unit who has a background as a defense layer, because
Speaker 3: the cognitive bias is very, very hard. I mean, you know,
Speaker 3: I do not believe that there are you know, most prosecutors.
Speaker 3: I think it's a rare, rare exception, you know, actually
Speaker 3: get up in the morning and say I'm not going
Speaker 3: to convict an innocent person. I don't you know, I
Speaker 3: don't think that really happens. But I think what does
Speaker 3: happen is, you know, you get what they call hard charging,
Speaker 3: people who lose track of playing by the rules or
Speaker 3: the humanity of the defendants, or the gravity of their responsibilities.
Speaker 3: That can happen. And it's a question of you know,
Speaker 3: cognitive bias. Right, you have to change the whole orientation
Speaker 3: of how prosecutors look at their job. And by the way,
Speaker 3: you know, overwhelmed institutional defenders. Right, you know, you have
Speaker 3: so many cases you begin to look at them and go, well,
Speaker 3: you know, I got to get through my docket, right,
Speaker 3: and every case looks the same, you know, and you
Speaker 3: don't put in the effort because you.
Speaker 1: Can't and you don't have the money to hire the
Speaker 1: type of people that you would need to go and
Speaker 1: prove you as whereas the government can parade out a
Speaker 1: forensic thing or sign as we saw it again and
Speaker 1: making a murderer. I just had two more questions I
Speaker 1: wanted to ask you one, you know, back to the prosecutors.
Speaker 1: So we need to have, as Vanessa was saying, a
Speaker 1: higher standard or a better way of evaluating prosecutors so
Speaker 1: that they are more driven to achieve results that are
Speaker 1: based in fact, let's just call it that as opposed
Speaker 1: to achieve achieving convictions, to achieve justice as opposed to convictions.
Speaker 1: But we also need, in my view, we need to
Speaker 1: have a much stronger system of prosecuting prosecutor holy prosecutors
Speaker 1: accountable in this country. As far as I know, you know,
Speaker 1: we've had with all the prosecutorialist conduct we've seen throughout
Speaker 1: the decades, there's only really been two cases of any
Speaker 1: prosecutors being held accountable in a way that winds that
Speaker 1: lands them up in jail. Barry, can you just speak
Speaker 1: for a second about the prosecutorial misconduct and how they
Speaker 1: can be held a contable. What chine of changes have
Speaker 1: to be made for these guys to be thrown out
Speaker 1: or thrown in jail.
Speaker 3: Well, there's some simple things that might be done. One
Speaker 3: is that the Justice Department could bring prosecutions when we
Speaker 3: find out years later that a prosecutor engaged in deliberate
Speaker 3: misconduct that led to the conviction of an innocent person
Speaker 3: intentionally deprived them of their civil rights. The problem that
Speaker 3: we've had in the past is when we go to
Speaker 3: the Department of Justice and say, look, we have DNA evidence,
Speaker 3: We have all kinds of evidence that showed that somebody
Speaker 3: was deliberately framed. This prosecutor should be prosecuted. They say
Speaker 3: to us, Look, the statute of limitations under federal law
Speaker 3: is five years, and it's very hard to conjure an
Speaker 3: ongoing conspiracy to conceal it in most of these cases,
Speaker 3: so there would be no jurisdiction for the federal government
Speaker 3: to do that. It's possible to amend the laws, so
Speaker 3: I think that might make a big difference. The other
Speaker 3: aspect is that there has to be a concerted effort
Speaker 3: to hold lawyers to their ethical responsibilities. One of the
Speaker 3: things we found is that even in bar discipline, there
Speaker 3: are statual limitations problems, and the bar discipline system does
Speaker 3: not take seriously those prosecutors who break the rules, and frankly,
Speaker 3: the defense layers who simply you know, have given up
Speaker 3: and are just collecting checks and are not providing effective
Speaker 3: assistance of counsel. And so one of the things we
Speaker 3: have to do is change that system so that people
Speaker 3: take that seriously. They can lose their licenses, they can
Speaker 3: actually be prosecuted in the most egregious of cases. And
Speaker 3: if that happens, I think that you know, you will
Speaker 3: begin to see change. And we have we can't talk
Speaker 3: past each other, and we can't say, you know, demonize.
Speaker 3: You know, it's not all prosecutors that you know are
Speaker 3: engaged in this kind of conduct.
Speaker 2: Far from it.
Speaker 1: No, there's a lot of good guys out there we know,
Speaker 1: and I've always admired that the fact that you managed
Speaker 1: to keep your sanity through all the things that you've
Speaker 1: gone through with these crazy cases and the people you've
Speaker 1: had to deal with. So before we wrap up, Barry,
Speaker 1: what can you share with us? You served nineteen years
Speaker 1: in prison for something you didn't do. Your presence always
Speaker 1: lights up a room, you know. I know that when
Speaker 1: you all can't see him through the radio, but when
Speaker 1: you're at the Ennocence Project dinner, I know I always
Speaker 1: look forward to seeing you. He's he Barry is a guy.
Speaker 1: He's I don't even know how to describe him, but
Speaker 1: he's just larger than life character. Who is you know
Speaker 1: who really drives that? It really motivates I still want
Speaker 1: to do more. You know, when we meet somebody like
Speaker 1: you who's just got an incredible spirit, and uh, you
Speaker 1: know who has overcome so much and been and really
Speaker 1: served the country honorably and done so much. You know good,
Speaker 1: it's it's a fantastic guy.
Speaker 2: I suffer to this day, you know, because you took
Speaker 2: me out of a beautiful home. You threw me into
Speaker 2: the military. I did a good life for a few years,
Speaker 2: had a beautiful life, and this happens to me and
Speaker 2: you throw me in jail. Do you really expect me
Speaker 2: to feel like other people? I doubt it. I'll never
Speaker 2: feel that way. You know, I've been through therapy. I've
Speaker 2: you know I've I've been through a lot just to survive.
Speaker 2: I mean, I was in the hospital, I was messed up.
Speaker 2: I thought I was gonna die. I'm here, I've been saved.
Speaker 2: I don't know why I got angels around me. If
Speaker 2: I need a Brockram spot it stay up for me.
Speaker 2: You know, I don't know what it is. You know
Speaker 2: what I'm saying. And those are my angels. Those are
Speaker 2: my angels that are around me. But the Innocence Project,
Speaker 2: to me, is more than just a family. There are hearts,
Speaker 2: you know, there were hearts.
Speaker 1: Don't forget to give us a fantastic review. Wherever you
Speaker 1: get your podcasts, it really helps. And I'm a proud
Speaker 1: donor to the Innocence Project and I really hope you'll
Speaker 1: join me in supporting this very important cause and helping
Speaker 1: to prevent future wrongful convictions. Go to Innocence Project dot
Speaker 1: org to learn how to donate and get involved. I'd
Speaker 1: like to thank our production team, Connor Hall and Kevin Wartis.
Speaker 1: The music in the show is by three time OSCAR
Speaker 1: nominated composer Jay Ralph. Be sure to follow us on
Speaker 1: Instagram at Wrongful Conviction and on Facebook at Wrongful Podcast.
Speaker 1: Wrongful Conviction with Jason Flamm is a production of Lava
Speaker 1: for Good Podcasts and association with Signal Company Number one