Speaker 1: This episode of Wrongful Conviction contains discussion of sexual assault
Speaker 1: and suicidal ideation. Please listen with caution and care. On
Speaker 1: November twenty second, nineteen seventy five, a three year old
Speaker 1: boy was reported missing in Richmond, Virginia. A twenty year
Speaker 1: old neighbor named Marvin Grimm joined the search party, mentioning
Speaker 1: that he may have seen the boy while running an
Speaker 1: errand after the body was recovered, investigators question Marvin, threatening
Speaker 1: him with the death penalty until they got a statement
Speaker 1: that corroborated what they already believed that the boy had
Speaker 1: died by exphyxiation related to a sexual assault, and any
Speaker 1: evidence that arose to the contrary was summarily ignored. This
Speaker 1: is wrongful conviction. The Fox Foundation is proud to support
Speaker 1: this episode of wrongful Conviction and the work of After Innocence,
Speaker 1: a nonprofit that helps hundreds of people nationwide rebuild their
Speaker 1: lives after wrongful incarceration. Each year, innocent people are released
Speaker 1: after spending years behind bars for crimes they didn't commit.
Speaker 1: Nearly all of them leave prison with nothing more than
Speaker 1: the clothes on their backs, with no help or compensation
Speaker 1: from the state, as they face the steep challenges of
Speaker 1: rebuilding their lives after wrongful imprisonment. After Innocence is changing
Speaker 1: that After Innocence helps exoneries get and make good use
Speaker 1: of essential services like health care, dental care, mental health support,
Speaker 1: legal aid, financial counseling, and more. Since twenty sixteen, they've
Speaker 1: brought that help to more than eight hundred exoneries across
Speaker 1: forty six states, working tirelessly to ensure that no one
Speaker 1: released after wrongful incarceration is left behind. Learn more at
Speaker 1: after dashinnocence dot org and join after Innocence to set
Speaker 1: support exoneries as they rebuild their lives. I'm Lauren Bright Pacheco.
Speaker 1: Welcome back to Wrongful Conviction, where we have a Virginia
Speaker 1: case related to the subject of a twenty twenty three
Speaker 1: podcast called Admissible. They covered twelve wrongful convictions related to
Speaker 1: one Virginia forensic examiner named Mary Jane Burton, some of
Speaker 1: which have been covered here, Thomas Hainsworth, Marvin Anderson, and
Speaker 1: the list is longer than twelve.
Speaker 2: Well now several on the list. I knew Julius Ruffin,
Speaker 2: I used to play ball with him, and I can't
Speaker 2: think of the other ones I only knew if Thomas Haynesworth.
Speaker 2: I met him at the AG's office when I was
Speaker 2: brought in after right after my exoneration, and he was
Speaker 2: working in the Attorney General's office.
Speaker 1: That is our guest of honor, Marvin Grimm Junior, welcome
Speaker 1: and to help tell his story. We have this attorney
Speaker 1: from Arnold and Porter Angelique celebrity.
Speaker 3: Thank you for having us.
Speaker 1: So, Marvin, you're from Richmond, Virginia and had three sisters.
Speaker 1: Where did you fall in the sibling lineup? I was
Speaker 1: top dog, so three little sisters, all right, I thought,
Speaker 1: So tell me a little bit about yourself as a kid.
Speaker 2: I played hardball as a kid. I played up about
Speaker 2: the fifteen year old. Because we were moving around, I
Speaker 2: couldn't get it to stay situated. Because my father, he
Speaker 2: was a salesman. We had time in Richmond, Georgia, Iowa, Minnesota, Pennsylvania, Ohio,
Speaker 2: back to Richmond, being up to Mason City, Iowa, and Moorhead, Minnesota.
Speaker 2: That's where mom and Dad divorced. And when we came
Speaker 2: back to Richmond, and I felt that I was going
Speaker 2: to be a drain on the resources. So I said,
Speaker 2: I'll just go in the Navy. I'm old enough to
Speaker 2: do it. So that's what I did.
Speaker 1: And this was in nineteen seventy three, when the Vietnam
Speaker 1: War was still ongoing.
Speaker 2: Yeah, so I'm going in boot camp getting ready to graduate. Says, hey,
Speaker 2: we need some people go to Japan. I said, cool,
Speaker 2: I'll go to Japan because I did not want to
Speaker 2: wind up in Vietnam. Well, I didn't know at the
Speaker 2: time when I volunteered for Japan it's just across the
Speaker 2: bay from Vietnam. Well, I was impulsive. Our first cruise,
Speaker 2: we went to the Philippines and while we were in dock,
Speaker 2: there was an explosion in one of the engine rooms
Speaker 2: and a couple of the guys that were working in
Speaker 2: the electricians got burned alive. And I've witnessed it all
Speaker 2: because I passed right through it. I don't care how
Speaker 2: strong of a person you are. You see somebody on fire,
Speaker 2: it can rattle your brain.
Speaker 1: I can't even imagine that. You started having panic attacks
Speaker 1: and anxiety. So you were honorably discharged because the anxiety
Speaker 1: and the panic attacks were getting worse.
Speaker 2: That's what the psychologist said.
Speaker 1: So Marvin returned from the Navy, got married to his
Speaker 1: wife Jan and with a baby on the way. Marvin
Speaker 1: picked up a second job doing maintenance work at their
Speaker 1: apartm and complex, and they lived across the hall from
Speaker 1: the victim and his family, with whom Marvin had two
Speaker 1: trivial run ins, like accidentally running over a few small
Speaker 1: toys with the lawnmower. The family also had a dog.
Speaker 2: I was going back here with the ride lawnmower, and
Speaker 2: I knocked on the door and asked him to take
Speaker 2: the dog in because I didn't want to run him
Speaker 2: over the lawnmower. So that night and I came back,
Speaker 2: the stepfather was standing there on the car and he
Speaker 2: threatened me behind, saying I'm going to run his dog over.
Speaker 2: And I said I adn't saying running your dog over.
Speaker 2: I walked away from him and kept going. The running
Speaker 2: over the toys was an accident by the lawnmower too.
Speaker 1: Later on, this interaction became an alleged motive in the
Speaker 1: death of the neighbor's three year old son, who was
Speaker 1: reported missing by the mother on November twenty second, nineteen
Speaker 1: seventy five.
Speaker 3: She calls the Richmond Police and she says that she
Speaker 3: last saw her boy at about one point thirty headed
Speaker 3: into a wooded area behind the apartment complex. She caused
Speaker 3: the cops to report him missing at two forty pm.
Speaker 3: The officers respond pretty quickly and they show up at
Speaker 3: the apartment complex at two forty five pm. They don't
Speaker 3: know the exact location, so they just randomly happened to
Speaker 3: knock on Marvin's door, who lived in the same apartment
Speaker 3: complex as the boys family.
Speaker 2: So I'm watching the game when I get a knock
Speaker 2: on the door. This guy doesn't identify himself. He just
Speaker 2: asked me who in the building has children? I said, well,
Speaker 2: the only ones across the hall. After the game, that's
Speaker 2: when I go out straight down the road to the highway.
Speaker 2: I thought I saw the victim and his a dog
Speaker 2: jump out from behind a car. I didn't think of anything.
Speaker 2: So when I come back, Channel twelve is set up
Speaker 2: and there's people running around everywhere. So I go over
Speaker 2: and see what's going on. They told me the victim
Speaker 2: was missing. I said, well, I just thought I saw
Speaker 2: him such and such. Well take us there and then
Speaker 2: we searched all around the area, and then I was
Speaker 2: going down to see my wife at night hospital. So
Speaker 2: we did it for about an hour. Then they thanked
Speaker 2: me and I went home got ready to go down
Speaker 2: to the hospital.
Speaker 1: Marvin's pregnant wife, jan was dealing with preclampsia, sometimes known
Speaker 1: back then as toxemia, so she was being monitored at
Speaker 1: the hospital. Meanwhile, a massive search operation was underway, which
Speaker 1: ended four days later when the little boy was found
Speaker 1: lying face up, fully clothed in shallow water in the
Speaker 1: James River, about nine miles from the apartment complex.
Speaker 3: The medical examiner saw what she described to be a
Speaker 3: white gelatinate material at the back of the boy's throat,
Speaker 3: so she swabs the boy's throat, puts it under a
Speaker 3: microscope and reports seeing sperm and so she ultimately concludes
Speaker 3: that the boy asphyxiated, with the implication being that he
Speaker 3: was orally sodomized and choked to death during the assault.
Speaker 3: Detectives were under a lot of pressure to solve this crime.
Speaker 3: I know the father of the boy had provided a
Speaker 3: list of individuals upon the request of the officers, but
Speaker 3: when they went weeks without any suspects or leads, they
Speaker 3: zeroed in on Marvin because he was a neighbor to
Speaker 3: the boys family.
Speaker 1: And Marvin had mentioned to the initial responders that he
Speaker 1: thought he had seen the boy while driving that afternoon.
Speaker 2: That and plus the even parents had told him that
Speaker 2: we'd had problems in the past. Here's the FBI knocking
Speaker 2: on my door. Write this statement saying you saw this,
Speaker 2: victims such and such, such and such, no problem. Then
Speaker 2: all of a sudden, the Richmond Police Department kept coming
Speaker 2: over to my house talking to me, and they kept
Speaker 2: trying to get me to say something about somebody else,
Speaker 2: and I said, I don't know anything about this. I
Speaker 2: can't say who did what or did not do what.
Speaker 1: Unwilling to create a different target, Marvin was asked to
Speaker 1: take a polygraph.
Speaker 2: I had nothing to hide, but that polygraph was strange
Speaker 2: because they gave me asked me about five questions. Then
Speaker 2: he just started strutting the thing off, jerking things around
Speaker 2: and said, man, you're lying. The police come running in
Speaker 2: and start screaming at me. So I took it as
Speaker 2: a setup, and that's when I figured out, hey, there
Speaker 2: after me, can.
Speaker 1: You also explain to me, just for somebody who doesn't
Speaker 1: really understand what it's like to deal with panic disorder,
Speaker 1: what goes through your body, like how your heart.
Speaker 2: Rate will increase, you will sweat, so you know, the
Speaker 2: polograph takes your breathing. It does your heart and everything.
Speaker 2: So if I got a racing heart and I'm breathing
Speaker 2: heavy and sweat, and They're going to think I'm lying
Speaker 2: about something. So that's when I told the police I
Speaker 2: have problems with anxiety depression and I forget things. The
Speaker 2: Navy they call them blackouts, because I call them blackouts.
Speaker 2: I don't know if I can explain that exactly I
Speaker 2: would be doing stuff. Then I come back. Oh man,
Speaker 2: I didn't know was that time like that? So that's
Speaker 2: when I told the police about it, and I guess
Speaker 2: that's when everything changed.
Speaker 1: However, Marvin's momentary alertness lapses, as well as police allegations
Speaker 1: of deceit fullness, were not enough to make an arrest.
Speaker 1: After all, our audience is quite familiar with the use
Speaker 1: of polygraphs as cudgeled to coerce false confessions, and it
Speaker 1: hadn't worked, so they took another stab a few days
Speaker 1: later when they picked up Marvin from work at around
Speaker 1: four forty pm for more questioning.
Speaker 3: Marvin had worked a nine hour shift and they proceeded
Speaker 3: to interrogate him for nearly ten hours without ever turning
Speaker 3: on the tape recorder.
Speaker 2: We was in a room about the size of your bathroom,
Speaker 2: four of them sitting around me. I was fenced in.
Speaker 2: All they said was, you know you're being questioned. You
Speaker 2: can have a lawyer if you wanted. I knew I
Speaker 2: hadn't done anything, so why do I need a lawyer.
Speaker 2: They started getting upset with me, getting loud, hollering at
Speaker 2: you don't tell us what happened. If we convict you,
Speaker 2: we're going to give you a death penalty and all
Speaker 2: that stuff like that. So I started having a panic
Speaker 2: attack at that time. So it was around eleven o'clock.
Speaker 2: They just finally said, man, I'm trying to get out
Speaker 2: of here. I want to get away from this. What
Speaker 2: do you want me to say?
Speaker 3: At this point, Marvin, who is twenty years old, he's young,
Speaker 3: He's been awake for nearly twenty four hours.
Speaker 1: And suffering with PTSD and anxiety.
Speaker 3: Attacks exactly, he just wants to go home. So he
Speaker 3: finally tells them what they want to hear.
Speaker 1: And not only that, but parents back details that only
Speaker 1: they knew at that point or thought they knew.
Speaker 3: If you listen to the confession, even if you read
Speaker 3: the transcript, there are several red flags that stand out
Speaker 3: that this is not a reliable confession. So, for example,
Speaker 3: Marvin is unable to supply any of the details, and
Speaker 3: so the officer has to supply the details of the act.
Speaker 2: They asked me, did you sexual assaultant? I'm like what
Speaker 2: that was? When I was stuttering, but la la la lah,
Speaker 2: and he said, you put his mouth over your privates.
Speaker 2: I didn't even know he was sex and exulted.
Speaker 3: To that moment, the officers ask Marvin what he did
Speaker 3: to the boy, and Marvin responds, I forced sexual assault.
Speaker 3: To me, that sounds like language that a detective would
Speaker 3: use rather than a twenty year old man.
Speaker 2: And by the way, I never took them to where
Speaker 2: the body was found. They played it up that I
Speaker 2: took them, but they really took.
Speaker 1: Me right after the interrogation.
Speaker 2: Right, this is two about two thirty in the morning.
Speaker 2: I've been up almost twenty four hours.
Speaker 1: And when do you realize that you've confessed to something
Speaker 1: you didn't do?
Speaker 2: The next day, when they pulled me in the rain me,
Speaker 2: I guess it was around six o'clock. They took me
Speaker 2: over to a courtroom in front of the magistrate and
Speaker 2: he told me I'm charged with murder and asked me
Speaker 2: in my financial situations before appointing me an attorney. My
Speaker 2: son was born ten days before I was arrested. I
Speaker 2: only knew him for ten days.
Speaker 1: How did you explain the fact that you had confessed
Speaker 1: to something that you didn't do to your family, to
Speaker 1: your wife.
Speaker 2: They visited me in the jail, I think the second
Speaker 2: day I was there. I told him I didn't have
Speaker 2: nothing to do with it, and I said, I don't
Speaker 2: understand how they can charge me. And then Jan spoke
Speaker 2: up and said, you know, they came through and took
Speaker 2: all their medication.
Speaker 3: So in Virginia, it's not enough to have a confession
Speaker 3: from somebody to achieve a conviction. You also have to
Speaker 3: have evidence that corroborates the confession. So after they got
Speaker 3: what they wanted from Marvin, they had to go execute
Speaker 3: a search board and then they collected the evidence that
Speaker 3: they would then use to corroborate the confession in the
Speaker 3: autopsy report. The toxicology report that came back showed high
Speaker 3: levels of alcohol and Cler's oxyzone, which is a prescription
Speaker 3: muscle relaxant in the boys' system.
Speaker 2: My wife had toxemia, but they took all of her
Speaker 2: medication at the hospital that gave her for that.
Speaker 1: Because they wanted to claim that.
Speaker 2: The drugs and the alcohol, which I had no idea
Speaker 2: what happened.
Speaker 3: Marvin never mentioned that in his confession. We think that
Speaker 3: the officers were trying to get that information out of
Speaker 3: him by asking, well, how did you get the boy
Speaker 3: to comply? But Marvin never makes any mention of the
Speaker 3: drugs or the alcohol.
Speaker 1: Remember, the victim's mother had reported that the last time
Speaker 1: she'd seen her son was around one thirty PM, and
Speaker 1: then first responders knocked on Marvin's door just seventy five
Speaker 1: minutes later, around two forty five PM.
Speaker 3: So we worked with a toxicologist to calculate how long
Speaker 3: it would have taken for the alcohol to reach the
Speaker 3: levels that it did in the boy's system, and a
Speaker 3: toxicologist puts that time period at ninety to one hundred
Speaker 3: and fifty minutes, which is well outside the seventy five
Speaker 3: minutes that Marvin would have had to commit all the
Speaker 3: acts that he states in his false confession.
Speaker 1: The police search turned up a few other items, a
Speaker 1: pair of shoes which Marvin said were torn up while
Speaker 1: dumping the body. There's also blonde hairs from Marvin's car
Speaker 1: and the pea coat.
Speaker 3: So he says that he wrapped the boy in a
Speaker 3: pea coat and tossed the boy forty feet into the river.
Speaker 2: I don't care. Arnold Schwarzenegger couldn't throw a dead body
Speaker 2: forty five feet. It was physically impossible.
Speaker 3: The other thing is that the boy's body was found
Speaker 3: with his arms crossed, as though he had been placed
Speaker 3: in the river. So it doesn't make sense that the
Speaker 3: body would land with its arms crossed if tossed in
Speaker 3: the way that Marvin described.
Speaker 2: And then when my lawyers first brought me the statement
Speaker 2: I had seen where I had said something about the
Speaker 2: pea coat and the shoes, and I explained them my
Speaker 2: shoes were destroyed at work. And then I says that
Speaker 2: pea coat was not even in my possession. My sisters
Speaker 2: had been using and my mom would wear it was
Speaker 2: my pea coat from the Navy. My sister's Patty used
Speaker 2: it to most. Now she's blind, and so is my
Speaker 2: little sister Lisa.
Speaker 1: But this was nineteen seventy five. DNA testing was not
Speaker 1: available yet, so the state's expert, Mary Jane Burton, sent
Speaker 1: the throat swabs for serological testing to find the blood
Speaker 1: type and then examine the hares under a microscope.
Speaker 3: Hair of my cross copee has now been debunked. It's
Speaker 3: a junk science, but at the time it was considered valid,
Speaker 3: and so Mary Jane Burton concluded that the hairs matched
Speaker 3: the three year old boy, placing the boy in Marvin's car.
Speaker 3: The other evidence that they obtained from Marvin was two
Speaker 3: towels from his car, and Mary Jane Burton said that
Speaker 3: there was ejaculate on one of the towels, which would
Speaker 3: seemingly corroborate the sexual assault theory.
Speaker 1: So, while they awaited the results of the serological testing
Speaker 1: from the victim's throat swabs, Marvin awaited trial under the
Speaker 1: care of a state appointed psychiatrist, all while his appointed
Speaker 1: attorney failed to develop any of the issues that discredit
Speaker 1: his statement or the state's theory.
Speaker 2: My lead attorney he was Robert Dooling. The police chief's
Speaker 2: name was Frank Louling. He was the family member of
Speaker 2: the police chief that was prosecuting me.
Speaker 1: That would seem like a bit of a conflict.
Speaker 2: Right at the time that he was representing me, he
Speaker 2: was up for judgeship in Virginia.
Speaker 1: And then the prology results came back.
Speaker 2: My attorney said, ed the saliva, and here's samples that
Speaker 2: it took from you. Inconclusive, they can't make a determination.
Speaker 2: Beth was the reason I entered the guilty piece. Said
Speaker 2: we didn't have anything to prove your innocence with. So
Speaker 2: he said, what's the only way we will save your life?
Speaker 2: So you should take the plead.
Speaker 1: But there are two issues with this advice to plead guilty,
Speaker 1: one of which we'll address now.
Speaker 3: So in Virginia at this time, the death penalty was
Speaker 3: only available for certain types of murder, murder for higher
Speaker 3: murder where there is extortion, and then murder by an
Speaker 3: inmate in prison. The crime that Marvin was accused of
Speaker 3: very obviously did not fall into any of those categories,
Speaker 3: and so there was no way death penalty would have
Speaker 3: ever been on the table for this crime.
Speaker 1: So the threat of death touted by both his interrogators
Speaker 1: and now by his own attorney didn't exist. Nonetheless, to
Speaker 1: seal the deal, the evidence underlying his guilty plea still
Speaker 1: needed to be heard by a judge, so hearing was
Speaker 1: held in March nineteen seventy six, where the medical examiner,
Speaker 1: Doctor Fierro, testified about the existence of sperm on the
Speaker 1: throat swabs as well as the towel, followed by Mary
Speaker 1: Jane Burton's findings that the hair from the pea coat
Speaker 1: and car were consistent with the victims, at which point
Speaker 1: the serological report was submitted to evidence, and importantly, doctor
Speaker 1: Fierro represented that the report did not change her conclusions
Speaker 1: from the preliminary report. Additionally, Marvin's attorney, Robert Doolan, did
Speaker 1: not challenge that assertion, and Mary Jane Burton was not
Speaker 1: called to testify about her findings or the sorology report.
Speaker 1: Then a detective took the stand to testify about Marvin's confession.
Speaker 3: The prosecution at the hearing describe how Marvin took the
Speaker 3: officers to the boy's body, but really it was the
Speaker 3: officers who took Marvin to where the box was found.
Speaker 3: The other point is that this was a highly publicized crime.
Speaker 3: There were details about the crime and the newspapers, including
Speaker 3: a detailed map of where the body was found.
Speaker 1: But Marvin's attorney didn't point that out either, or any
Speaker 1: of the other issues that could have discredited his false confession,
Speaker 1: and somehow an already terrible situation was made worse during
Speaker 1: that time.
Speaker 2: I was not in touch with reality. The psychiatrists I
Speaker 2: was seeing appointed by the state and he was keeping
Speaker 2: me on senequon value and something else. I forget what
Speaker 2: it is.
Speaker 1: Do you even remember the verdict?
Speaker 2: I remember as the judge was saying something, he seemed
Speaker 2: to be highly pissed. I want to say. During the
Speaker 2: guilty plea hearing, my attorneys warned me to keep my
Speaker 2: mouth shut, don't go in and a running my mouth
Speaker 2: because I was telling them I was innocent. They said,
Speaker 2: if you go and run in your mouth, the judge
Speaker 2: ain't going to accept you guilty, please, and you go
Speaker 2: get the death penalty.
Speaker 3: But the death plony was never on the table. It
Speaker 3: wasn't available for the crime with which he was charged.
Speaker 3: But Marvin, he was afraid of dying, and he was
Speaker 3: promised that he would be out in fifteen years. Of
Speaker 3: course we know that didn't happen.
Speaker 2: I was promised orally promised by both sides I'd be
Speaker 2: out in fifteen years, but they didn't put it in writing.
Speaker 2: I tried to keep the emotions out of it, because
Speaker 2: I knew if I got the emotions in anxiety would
Speaker 2: come about, and so with my depression, I was trying
Speaker 2: to stay away from that because during that time I
Speaker 2: had thought about it and actually tried at the city
Speaker 2: jail to commit suicide. Remember I told you Amy on Senequan.
Speaker 2: So I figured if I kept enough huh saved up,
Speaker 2: then i'd take it all one time. There I could
Speaker 2: probably get out of this situation. And don't ever think
Speaker 2: people are doing it because they're guilty of something they're not.
Speaker 2: You've ever been in a situation where nothing seems to
Speaker 2: go right, No matter what you do, it goes wrong.
Speaker 2: That was the kind of situation where I was living
Speaker 2: in at that time. So I was tired of life.
Speaker 2: I didn't want anything more to do with life. But
Speaker 2: all I did was sleep for two days and then
Speaker 2: I woke up. I spent my first five or six
Speaker 2: years in protective custody the administration. They didn't want my
Speaker 2: death on their head.
Speaker 1: I would assume that you're looked at as a bit
Speaker 1: of a pariah by the other inmates. With a much
Speaker 1: more uncomfortable than typical prison experience, Marvin began studying the
Speaker 1: law god his trial transcripts as well as the related
Speaker 1: records in which he found the serology report for the
Speaker 1: throat swabs.
Speaker 3: When Mary Jane Burton did that blood testing, Marvin is
Speaker 3: type A, the boys type Oh, the results come back
Speaker 3: showing type of secretions excluding Marvin, and that's something that
Speaker 3: they knew back in seventy six.
Speaker 1: Yet Marvin's own attorney never raised this clearly exculpatory report
Speaker 1: while advising him to plead guilty and save himself from
Speaker 1: certain death. I think it's worth mentioning that this attorney,
Speaker 1: Robert Doolan, accepted a judgeship in Virginia soon after Marvin's conviction. Anyway,
Speaker 1: this sorology report seems like it should have been very
Speaker 1: useful on appeal.
Speaker 2: Yeah.
Speaker 3: So, I think one of the most fascinating facts about
Speaker 3: Marvin's case, in equally infuriating, is that Marvin had raised
Speaker 3: a lot of the same arguments that we ultimately raised
Speaker 3: in the petition in twenty twenty three that ultimately led
Speaker 3: to his exoneration, but he was denied on procedural grounds,
Speaker 3: or because that there were certain archaic statutes still on
Speaker 3: the books that made it very difficult for somebody like
Speaker 3: Marvin to prove his innocence. So for example, in Virginia,
Speaker 3: it used to be that if you had fled guilty,
Speaker 3: you could not petition for a writ of actual innocence.
Speaker 3: Of course, we know there are lots of reasons why
Speaker 3: somebody might plead guilty to a crime. They did it too,
Speaker 3: and that hurdle was not removed until twenty twenty.
Speaker 1: And here it was barely creeping into the nineteen eighties.
Speaker 1: But by the end of that decade we had the
Speaker 1: advent of DNA testing, at which point Marvin petitioned to
Speaker 1: test his evidence, but Virginia did not have a statute
Speaker 1: that allowed for it until two thousand and one, and
Speaker 1: Marvin hired an attorney named Mike Brickhill to handle his proceedings.
Speaker 2: By this time, my father had passed and he left
Speaker 2: me a bit of an inheritance, so I paid mister
Speaker 2: Brickhill to get my first runt of DNA testing done.
Speaker 2: And the judge that was presiding over the case for
Speaker 2: the DNA testing, he didn't know me, but he's telling
Speaker 2: my attorney all about the case. Well, then Brickhill found
Speaker 2: out Robert Dooling, my ex attorney. It was now judge
Speaker 2: was sitting in the back of the courtroom so the
Speaker 2: judge wasn't going to grant it, but the Commonwealth job
Speaker 2: said no, no, no, y're are we agree. Let's get this
Speaker 2: settle once and for all.
Speaker 1: The first round of testing for the throat swabs either
Speaker 1: excluded Marvin or were inconclusive, but the victim could be
Speaker 1: excluded from the hares on the PEA code they were
Speaker 1: all female, but the hares from the car could not
Speaker 1: yet be excluded.
Speaker 2: The problem was is they didn't get a sample of
Speaker 2: the victims, so they couldn't identify whose DNA it was
Speaker 2: they had. So the Commonwealth said they were not going
Speaker 2: to recognize the results of the DNA testing. Furthermore, they're
Speaker 2: going to oppose any more DNA testing that you request.
Speaker 3: And so the Supreme Court of Virginia denied the relief
Speaker 3: a on a procedural grounds as untimely. But then they
Speaker 3: also pointed to the fact that Marvin had pled guilty
Speaker 3: and that there were still some swabs that hadn't been
Speaker 3: excluded by DNA tests, and it still some of the
Speaker 3: hairs hadn't been excluded as the boys.
Speaker 1: Soon mister brick Hill enlisted the Innocence Project, who tried
Speaker 1: to access a vial of blood that could provide a
Speaker 1: DNA profile for the victim. But still the fact that
Speaker 1: Marvin pled guilty was a major obstacle to relief. So
Speaker 1: they also went to work on lobbying for legislation and
Speaker 1: eventually the team at Arnold and Porter also came on board.
Speaker 3: When we joined forces with the Nison's project on this case,
Speaker 3: our first goal was to prepare the clemency petition, but
Speaker 3: we knew that that was a long shot, and so
Speaker 3: we continued to collaborate with the ennosonce project working to
Speaker 3: get Marvin released on a role while we would continue
Speaker 3: to fight for his innocence. And so our strategy was
Speaker 3: really to understand the facts of the case, not just
Speaker 3: the DNA what was the timeline?
Speaker 1: So they I enlisted renowned false confession expert doctor Richard
Speaker 1: Leo to develop the evidence that discredited the false confession,
Speaker 1: as well as the toxicology expert who we mentioned earlier. Meanwhile,
Speaker 1: Marvin visited the parole board for the twenty seventh time
Speaker 1: in twenty twenty, where perhaps some of the new evidence
Speaker 1: had an effect as he was released after nearly forty
Speaker 1: five years.
Speaker 2: Well, I went in December and I came out in November,
Speaker 2: so it's forty four years and eleven months.
Speaker 1: That is your entire adult life to a certain extent.
Speaker 1: I know that you were compensated ultimately, right, But money.
Speaker 2: I don't care about the money. They should take the
Speaker 2: money to build the time machine and take me back
Speaker 2: to the day before I've arrested and leave me the
Speaker 2: hell alone. That's the way I think about it. I'd
Speaker 2: rather have the time back than the money. I wasn't
Speaker 2: at here as the world evolved when I came out
Speaker 2: in April twenty twenty. I was still thinking it was
Speaker 2: nineteen seventy five. Perfect example was when I made parole
Speaker 2: in Virginia. If you're a registered sex offender and they
Speaker 2: drop you off at your parole office, she gives me
Speaker 2: the rules and then they put a monitoring ankle bracelet
Speaker 2: on me and gave me this box GPS trackers, and
Speaker 2: she was explaining how it can pinpoint you on the map.
Speaker 2: So we go to leave take off down the road.
Speaker 2: The thing starts ringing and I don't know what it is,
Speaker 2: so I hit the button turned it off. It started
Speaker 2: ringing again, so I turned it off again. All of
Speaker 2: a sudden, my sister's phone rings and if my parole
Speaker 2: officer telling her tell him to answer that phone. I
Speaker 2: said that he' supposed to have the phone. He's been
Speaker 2: in prison for the last forty five years. So anyway,
Speaker 2: she called me again and I answered it, and we
Speaker 2: talked for a minute, and then she said, by the way,
Speaker 2: tell your sister to.
Speaker 1: Slow down, because they knew exactly how fast she was driving.
Speaker 1: After Marvin was paroled in twenty twenty, the fight to
Speaker 1: clear his name continued, and through the efforts of the
Speaker 1: Innocence Project in New York as well as the UVA
Speaker 1: School of Law to educate legislators on the issues facing
Speaker 1: many of the wrongfully convicted. New legislation passed first in
Speaker 1: twenty twenty, making Marvin's guilty plea no longer an obstacle
Speaker 1: to a wrint of actual innocence, and then another breakthrough
Speaker 1: happened in twenty twenty one.
Speaker 3: In Virginia, they would only consider DNA testing done by
Speaker 3: the state lab. And that's problematic because private laboratories sometimes
Speaker 3: have more advanced technology and they might be able to
Speaker 3: extract a DNA sample when the state lab might not
Speaker 3: be able to. And so that law changed in twenty
Speaker 3: twenty one and Virginia would allow for DNA testing by
Speaker 3: a private laboratory. So we had three labs look at
Speaker 3: the swaps that the medical examiner had taken from the
Speaker 3: boy's mouth that they said at that time had sperm
Speaker 3: on them, suggesting that the boy had been sexually assaulted.
Speaker 3: Three different labs looked at the swabs and could not
Speaker 3: find sperm, and that is problematic because sperm is one
Speaker 3: of the hardiest cells in the human body, and so
Speaker 3: experts have said that you can find sperm on a
Speaker 3: degraded sample long after the epithelial skin cells have degraded.
Speaker 3: You will find it on a sample that has been
Speaker 3: poorly kept. And so the fact that it wasn't there
Speaker 3: even though there was DNA from skin cells on the swabs,
Speaker 3: that DNA just happened to match the boy, not Marvin.
Speaker 3: That means that the boy likely wasn't sexually assaulted, and
Speaker 3: that the substance in the boy's throat was likely his
Speaker 3: own phlegm. So that was one piece of new evidence
Speaker 3: that we used in our petition. The same labs had
Speaker 3: also looked at the towel that Mary Jane Burton had
Speaker 3: said contained sperm on it. And had concluded there was
Speaker 3: also no sperm on the towel.
Speaker 2: The towel it was in my car, but I used
Speaker 2: on cold days wipe down the windshield instead of waiting
Speaker 2: for the defrostr I'd wipe the windshield down. That's what
Speaker 2: that towel was.
Speaker 1: So it appears that the state's experts presented false testimony
Speaker 1: to support the exphyxiation by sexual assault theory.
Speaker 3: And then the other DNA piece of evidence that we used.
Speaker 3: Modern DNA testing of the eight hares found in Marvin's
Speaker 3: car excluded the boy as the source from those hair,
Speaker 3: so no longer placing the boy and Marvin's car.
Speaker 1: Not only were the hares not the boy in.
Speaker 3: Question, they belonged to six six different people. Yes, yes,
Speaker 3: which just shows you how junk science hair microscopy is.
Speaker 3: Some of the hairs were female and the co Marvin's
Speaker 3: sisters had been wearing. The new evidence shows that Marvin
Speaker 3: confessed to an impossibility. What he pleaded to, what he
Speaker 3: confessed to did not happen. There's no evidence of a
Speaker 3: sexual assault. The new toxicology report shows that Marvin couldn't
Speaker 3: have done everything that he said in his statement in
Speaker 3: the seventy five minute window really is an impossible feat.
Speaker 1: As was the alleged forty foot launch of the body
Speaker 1: into a riverbed where the victim was found with his
Speaker 1: hands neatly folded on his chest. So they piled this
Speaker 1: new evidence into their filing in April of twenty twenty three.
Speaker 3: After we filed the petition in twenty twenty three, we
Speaker 3: had met with the Attorney General's office, had presented our case,
Speaker 3: answered some of the questions that they had, and I
Speaker 3: think left feeling good. But in these cases, you never
Speaker 3: want to assume that the other side is going to
Speaker 3: join your petition, no matter how strong of the case
Speaker 3: you think you have. And I should say that the
Speaker 3: Virginia Attorney General's Office did a fantastic job at doing
Speaker 3: their own investigation and in fact uncovered exculpatory evidence that
Speaker 3: we had no idea existed. So in Marvin's statement, he
Speaker 3: says that he tore his shoe on the river bank
Speaker 3: throwing the body into the river, And so they had
Speaker 3: taken his shoe and done testing of the dirt on
Speaker 3: the shoe to see if it matched the soil from
Speaker 3: where the body was found. And there is a report
Speaker 3: showing that it doesn't match, which is exculpatory.
Speaker 1: And while the state's reinvestigation continued through the spring of
Speaker 1: twenty twenty three, a podcast called Admissible Shreds of Evidence
Speaker 1: released twelve episodes covering twelve wrongful conviction cases tied to
Speaker 1: one Virginia LabTech Mary Jane Burton, who was initially lauded
Speaker 1: as a hero for having saved physical evidence from decades
Speaker 1: old cases that would have otherwise been destroyed.
Speaker 3: Yeah, so it's unfortunate because people viewed her as a
Speaker 3: hero because her preservation of this evidence allowed people to
Speaker 3: test that evidence later on and clear their name. But
Speaker 3: then it also begs the question, well, were they wrongfully
Speaker 3: convicted in the first place because of Mary Jane Burton?
Speaker 1: And a whistleblower came forward who was positing exactly that
Speaker 1: one who had also tipped the podcasters to Marvin's case.
Speaker 2: Did you ever hear the thirteenth episode called the Fallout,
Speaker 2: where the podcaster found out through the whistleblower about my case.
Speaker 2: She described the whole case and she said that Mary
Speaker 2: Jane Burton is being under pressure to come to these conclusions.
Speaker 2: And they talked to the Attorney General and he told
Speaker 2: them about the investigation they did. They basically said they
Speaker 2: came away from the labs standing was this really a crime?
Speaker 1: After all, there was no evidence of sexual assault. There
Speaker 1: was the presence of prescription drugs and alcohol which may
Speaker 1: have been accidentally ingested, potentially leading to an unfortunate series
Speaker 1: of events ending in death, and perhaps the Attorney General's
Speaker 1: office came to the same conclusion, and they reached out
Speaker 1: to Marvin's team.
Speaker 2: They told my attorneys that they're one hundred percent behind me.
Speaker 2: I'm innocent. I need to be granted rit of actual innocence.
Speaker 2: And then we finally got the oral arguments and I
Speaker 2: sat in I was very very unhappy with what I heard,
Speaker 2: and the judges when they got ready to close it,
Speaker 2: and he says, well, you'll be hearing from us soon
Speaker 2: rather than later. And sure enough, like twenty eight days later,
Speaker 2: here comes the decision of the court.
Speaker 3: Marvin got the order from the Virginia Court of Appeals
Speaker 3: that he was exonerated.
Speaker 1: So when was the first time that you really truly
Speaker 1: felt free?
Speaker 2: I was about two weeks later. I decided I'm going
Speaker 2: down to visit my friend in Virginia Beach. He's another
Speaker 2: Exgonnery that was in Greensville with me. He hasn't been
Speaker 2: officially exonerated yet, but he was granted parole based upon
Speaker 2: DNA testing. So I went down to seem and as
Speaker 2: far out as I'd been from the city was the airport.
Speaker 2: So as I passed by the exit, I was a
Speaker 2: little nervous. I kept I kept thinking, oh man, what's
Speaker 2: going to happen here? But that finally hit me by
Speaker 2: the time I got to the Virginia Beach. Hey, I
Speaker 2: can do anything I want to you now except break
Speaker 2: the law.
Speaker 1: Well, there's the first time for everything, right, since you
Speaker 1: hadn't broken the law ever before in your entire life. Right,
Speaker 1: So you know there are people who were at fault
Speaker 1: in this case, right, Mary Jane Burton, your attorney, those
Speaker 1: police officers who lied to you during the ten hour interrogation.
Speaker 1: What would accountability look like?
Speaker 2: That's a good question. I thought, maybe, okay, maybe they
Speaker 2: made a mistake. But when you find out how intentional
Speaker 2: it was. The time I was finally exonerated of the judge,
Speaker 2: three of the detectives, Mary Jane Burton, and one of
Speaker 2: my attorneys had already passed. One of the guys asked
Speaker 2: me he being a Christian, like I'm being a Christian.
Speaker 2: You know, they say that someday everybody's going to be
Speaker 2: judged by Guy. He asked me, what are you going
Speaker 2: to do when your attorney steps up in front of
Speaker 2: God to be judged. I said, I'm going to step
Speaker 2: back a few steps. Kay's lightning hits him.
Speaker 3: I mean, Marvin will never get those forty nine years
Speaker 3: of his life back. His family will never get that
Speaker 3: time back, and the same is true for the victim
Speaker 3: and the victim's family. Right the victim's family may never
Speaker 3: know what happened to their loved one given the passage
Speaker 3: of time. But I think we still try to achieve accountability. First,
Speaker 3: I think we need acknowledgment from the state, and as
Speaker 3: part of that, I think we need a public examination
Speaker 3: into the decisions, the incentives, the culture that led to
Speaker 3: this wrongful conviction in the first place, so that we
Speaker 3: can prevent it from happening in the future. And alongside
Speaker 3: of that, frankly, we need awareness of wrongful convictions, which
Speaker 3: is why I think conversations like this are so important,
Speaker 3: because we need people to understand that people confess to
Speaker 3: crimes that they don't do. We need people to understand
Speaker 3: that there is junk science being used in courtrooms to
Speaker 3: convict people. And we also need justice reform to change
Speaker 3: some of the archaic laws that are still on the
Speaker 3: books that make it difficult for people like Marvin to
Speaker 3: fight for the innocence.
Speaker 1: And so what do you hope that people take away
Speaker 1: from Marvin's case in particular?
Speaker 3: I think an open mind. There is still a lot
Speaker 3: of disbelief over the fact that somebody could confess to
Speaker 3: a crime that they didn't do, and so I think
Speaker 3: being aware of these cases and recognizing that it does happen,
Speaker 3: and that there are certain circumstances and that create an
Speaker 3: environment that is ripe for somebody to give a false confession.
Speaker 2: I'm like this. I believe that most wrongful convictions happen
Speaker 2: because you have a public defender, the state. They have
Speaker 2: ample amount of funds to prosecute you, and they only
Speaker 2: give attorneys ay fifteen hundred dollars to defend you, and
Speaker 2: they're not going to investigate the case. They're just going
Speaker 2: to assume you're guilty because the state charged you. So
Speaker 2: that's where I think most wrongful convictions come about. Thanks
Speaker 2: to DNA and other things, it's coming up. A lot
Speaker 2: of innocent people are sitting in prison.
Speaker 1: Thank you for listening to Wrongful Conviction. You can listen
Speaker 1: to this and all Lava for Good podcasts one week
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Speaker 1: Plus on Apple Podcasts. I'd like to thank our production team,
Speaker 1: Connor Hall and Kathleen Fink, as well as executive producers
Speaker 1: Jason Vlahm, Jeff Kempler, Kevin Wardis, and Jeff Clyburn. The
Speaker 1: music in this production was supplied by three time Oscar
Speaker 1: nominated composer Jay Ralph. Be sure to follow us across
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Speaker 1: Wrongful Conviction. You can also follow me on Instagram at
Speaker 1: Lauren Brightfchecko. Wrongful Conviction is a production of Lava for
Speaker 1: Good Podcasts and association with Signal Company Number One. We
Speaker 1: have worked hard to ensure that all facts reported in
Speaker 1: this show are accurate. The views and opinions expressed by
Speaker 1: the individuals featured in this show are their own and
Speaker 1: do not necessarily reflect those of Lava for Good.