00:00:01
Speaker 1: You know, every episode of this show has been a roller coaster ride and a powerful emotional experience for me, none more so in the episode I recorded with Barry Gibbs, a beautiful, wonderful, warm, teddy bear of a man who was wrongfully convicted in one of the most egregious cases that any of us have ever seen, and exonerated in one of the most amazing twists of fate. You have to listen to his episode to hear the whole thing. I can't even paraphrase it, but the sad news is Barry died after battling an illness on March twenty third, twenty eighteen. Barry, rest in peace, my friend. You're gone but not forgotten. Now please listen to the incredible Barry Gibbs.

00:01:01
Speaker 2: I came from a beautiful neighborhood. I had a beautiful life. I went to sleep because September seventh was the first day of my high school year. I was going to be a senior at twenty two, I was set to start college. I woke up and my life was never the same again. Cops came out with guns drawn, and I never saw freedom ever since after that. It's like roach Mo, Tom once you get in and I can't mount.

00:01:29
Speaker 1: In nineteen eighty six, a woman was strangled and her body was dumped from a car on the belt Parkway in Brooklyn, New York City. In order to protect the known mafia associate who was the real suspect in the case, the detective Louis Eppalito co Where's two eyewitnesses into changing their story and placing Barry Gibbs at the scene of the crime. Based on this false eyewitness testimony, Barry Gibbs was convicted and served almost two decades in prison before he was exonerated. The guys broken.

00:01:57
Speaker 2: I made a seventh Terry plot a life in Sherman's Wolfe, the.

00:02:04
Speaker 1: Corrupt cop who was responsible for coercing these eyewitnesses, was ultimately convicted of eight murders that he carried out for the mafia. He's currently serving life in prison.

00:02:16
Speaker 3: To say corrupt is the understatement of all time. Lewis Epolito was working at this point in time for a crime family in New York City.

00:02:27
Speaker 1: This is wrongful conviction. With Jason Flamm, we have a very special guest today, actually we have three very special guests today. The number one is Barry Gibbs. Barry's an exignery who served almost two decades in prison for a murder he didn't commit, and his story will rock your world, to say the least. And in addition to Havingry on the show, we have another Barry. We have Barry times two today. Barry Sheck, the co founder of the Innocence Project and a personal hero of mine, is here. And we also have Vanessa Popkins. Vanessa is the newly promoted and anointed director of post conviction Litigation for the Innocence Project and she's been a long time lawyer with the innocentce Project, long serving lawyer with the Noconce Project. We're thrilled to have both of you, all three of you here on the show today, So welcome. So Barry Gibbs, Let's start at the beginning, which is where did you Where were you born? Let's start with that. Let's go all the way back.

00:03:38
Speaker 2: We can go all the ways back. I was born in Brooklyn. I was raised in sheeps At Bay. I worked in a post office. I came from a beautiful neighborhood, had a beautiful life, beautiful wife, had a house, had a family, had a car. Every two years had a good job.

00:04:04
Speaker 1: American dream pretty much right, I mean, until it wasn't. So you served honorably served your country in a war that we won't get into the politics of that war, but the fact there's a crazy situation for any young man to find himself in. Now you come back and.

00:04:19
Speaker 2: I wind up, I wind up, I'm young, I get married. I find a beautiful woman. All along sitting in an office I was. I was showing intimidated by her beauty that it took me a year and a half to get up the courage to just ask her out for a couple of coffee.

00:04:36
Speaker 1: This sounds very romantic, by the way. I just wants to know truth. I know, but I'm feeling a little misty. It's like in the movies when you get that you know, foggy thing and you go back in time. So you finally got the courage up, you asked her coffee.

00:04:48
Speaker 2: I used to deliver a mail toward she'd sit in that office on a dictive phone. I never saw a woman type as quickly as she did, and I was amazed.

00:04:57
Speaker 1: So you charmed her and you eventually married her. Right, because otherwise we wouldn't be talking about it right now.

00:05:03
Speaker 2: Yeah, she was. She was a gift from God, she really was.

00:05:06
Speaker 1: And you married the girl of your dreams. So that's again, it sounds like an American American dream story up until it's not. And I want to get into that because we have we have Barry and Vanessa here, which is really a treat for the show, and I want to talk about your your your Kafka esque journey through the criminal justice system, because yours, is saying to Barry before, it's like the triple crown of malfeasance. Right, you had jail house snitches, you have police miss and prosecutorial misconduct, and then you have a situation where they either can't find or won't or won't turn over the evidence that could have exonerated you long before your two decades in prison, and it was it was a life sentence. Is that right? Yes, So so let's let's turn it over to uh to the lawyers for a second. Here, When did you first become aware? And can you give us a little background on how this happened in the first place, because this should never happen.

00:06:04
Speaker 4: So basically, in the mid nineteen eighties, a woman from Brooklyn was murdered She was an African American woman. She was strangled and her body was disposed of on the side of a road on the Belt Parkway, and there were a couple of witnesses who actually saw there. It was a white man who was dumping the body essentially, and.

00:06:25
Speaker 1: So there are two witnesses.

00:06:26
Speaker 4: There was two witnesses. One was a park police officer.

00:06:29
Speaker 1: And the Belt Parkway is a major thoroughfare in Brooklyn just for people who around the country who don't know the geographics, so go ahead.

00:06:36
Speaker 4: Right, And there was a park police officer who had driven by and saw the person the perpetrator, getting out of the car. And there was also a guy, Peter Mitchell, a witness who was jogging in the area who also witnessed kind of the same set of occurrences. And so the victim had been strangled. She was later discovered to have hairs on her body. And you know, there was a lot of evidence later on that we could have done DNA testing on if we would have found to show who did this. But Barry, you know, there was this detective Lewis Epilito who wasn't even on duty at the time, you know, wasn't wasn't on shift, but ended up showing up at the crime scene and basically took charge of the investigation.

00:07:27
Speaker 1: And why did he do that? I mean, that seems very irregular, right.

00:07:30
Speaker 3: Something's wrong with him, Something's wrong with the whole way this case goes down. He sweeps in to take over this case, right, and all of a sudden it's his case. And he goes and finds Peter Mitchell and he.

00:07:44
Speaker 1: Creates this Peter Witchell's the jogger. The jogger.

00:07:48
Speaker 3: All of a sudden, this guy is identifying Barry. He takes care of the whole thing.

00:07:54
Speaker 1: And why did Barry even come? I mean, he wasn't anywhere near the crime scene? How did his name even come into the picture? Here?

00:08:00
Speaker 3: We we we now know, right, you see, at the time that we're doing this case, we don't know exactly why Epilito was doing all these things. And of course there's a house snitch that emerges in all of this, so it goes to Tarlie gets convicted. We don't have the DNA evidence, and frankly, as you know, well Jason, you know at this time with the Innocence project, if we couldn't find the biological evidence to do a DNA test. We had to close the case.

00:08:27
Speaker 1: Right, because that was that was the mission of the charter, basically the Innocent's Project. We work on DNA cases. Now, of course this change is afoot, but that's beside the point way, right.

00:08:35
Speaker 3: So but we we even though we had pretty much established that we couldn't find the hares and the clothing or anything like this, we just couldn't close the case.

00:08:46
Speaker 1: Which is odd, right because by definition, this is the type of one way you go well of it that should.

00:08:50
Speaker 3: Have been closed. So what happened was what Barry is getting emotional about is that we were essentially saying to him, we're going to have to drop this case, right, but we couldn't.

00:09:01
Speaker 2: What you did, I'm going to tell you what you did.

00:09:04
Speaker 1: You broke my heart?

00:09:06
Speaker 2: You really did, you guys broke my heart. I made a cemetery plot, a life of surance policy.

00:09:18
Speaker 3: And then all of a sudden we wake up and in the front page of all the newspapers in New York City.

00:09:24
Speaker 1: What year, what year?

00:09:26
Speaker 4: What year was two thousand and four.

00:09:27
Speaker 1: So this has been going on now for this has probably been about for eleven years.

00:09:31
Speaker 3: Now, twelve years, yeah.

00:09:33
Speaker 1: Two thousand and four you opened the newspaper.

00:09:35
Speaker 3: Opened the newspaper, and there's a story that a former New York City Police detective, Lewis Epalito, who was famous in his time because he wrote a book called Mafia Cop, where he described how his parents had been The father had been involved in the organized crime, but he hadn't been, and he was a great hero cop, uh, you know, and got a lot of publicity. He was a cop that arrested Barry and took over suddenly swoops in and takes over this case. So Vanessa and I look at this and we go, oh my god, it's we got to call them up and say whatever. They had arrested at Ballito.

00:10:16
Speaker 1: Right, That's why the stories they had arrested.

00:10:18
Speaker 3: At Ballito and Kara Kappa, another detective with whom he worked, because it was alleged that he had become involved with the mafia.

00:10:28
Speaker 1: I remember reading the story and he the.

00:10:31
Speaker 3: Two of them had begun doing hits for a crime family, right, and they literally were killing people one after another.

00:10:38
Speaker 1: You know, this sounds like it's straight out of a Hollywood movie. Rights. We have we have guys in blue wearing badges doing hits for the Mafia in New York City.

00:10:46
Speaker 3: It's all true, and it's crazier than that Chason because Lewis Eppolito, the so called mafia cop, was in the first scene right of Goodfellas, very first scene of Goodfellas.

00:10:58
Speaker 1: Like art imitating life imitating art. Years before he was exposed as being a hitman for the mafia and disgraced, Louis Eppalito appeared on Sally Jesse Raptael, What.

00:11:10
Speaker 3: Do you do now, Big lou Well.

00:11:13
Speaker 5: I've acted in nine movies. I've been in Goodfellas, State of Grace, Predator to I tried writing a screenplay. Gene Hackman has been really great with me and Mikhail Ershnikov and I did a movie with them called Company Business, and I wrote a screenplay and it was bought by New Line Cinema and I just finished the second screenplay that it's better than policing getting shot out any day.

00:11:34
Speaker 3: Yeah, as far back as I can remember, I always wanted to be a gangster.

00:11:46
Speaker 1: And Bewhile, if that's not ironic enough, he's also writing a book about he's how he's not doing what he is exactly is doing right, So it's like the whole thing is a circle of madness. That's, you know, hard to believe.

00:11:57
Speaker 3: So we write into the US Office and we called them and they say, would you please look into the Barry Gibbs case because something's wrong with this case. We've always thought that Barry was innocent, that he was framed, and unbeknownst to us, and they say, yes, we're going to do that.

00:12:17
Speaker 1: Get ready for this.

00:12:17
Speaker 3: By the way, unbeknownst to us, the day that they arrested Epallito in his apartment in Las Vegas, right, they found the original New York City Police Department file on the on the Barry Gibbs case. I mean the original one. One of the reasons that we couldn't find a lot of things is that it's unprecedented. You know, he's a copy retires, he goes to the police department and he takes the original file.

00:12:47
Speaker 1: Well maybe he too, I mean, is it your theory that he took the file so that it would never get discovered, and then ironically again he put it in a place where it could get discovered.

00:12:59
Speaker 2: A second to that, I was sitting in the car with the DA agents. I don't remember their names. I'm not giving you guys up and I said to them, how many files did you find in the house? And he said three? And I says, well, I'm on my way down. What happened to the two water files?

00:13:19
Speaker 1: You know what?

00:13:20
Speaker 2: He said to me, don't worry about them, their career criminals. I said to myself, you got that. I'm not going to say nothing, but I really wanted to say something. Why don't you do your job promptly? Well, they did what I didn't.

00:13:32
Speaker 3: Let's be let's let's be straight about this. So these DEA agents and the US attorneys in the Eastern District, they went out and they started reinvestigating Barry's case. And they went and they talked to Peter Mitchell, Right's the Jagger, and he's living someplace in Queens and they walk in the door and he said, I've been waiting, you know, twenty years.

00:13:57
Speaker 1: I'm getting the jails right now.

00:13:59
Speaker 3: For somebody to say this to me. And he bursts into tears and he describes how Epillito threatened him. He himself, Peter Mitchell had been an Army veteran, right he had a felony conviction, and Epilitos was threatening him, you know, both physically and to expose him and destroy him. And he brought him into the precinct and he showed him who Barry was. And then they held this ridiculous, bogus lineup and you know, he identified Barry Gibbs.

00:14:31
Speaker 1: So, yeah, he was given basically no option.

00:14:34
Speaker 3: Yeah, I mean it was a force.

00:14:36
Speaker 1: So what about the other witness Barry? Who was the park the park police officer he said, a park ranger or.

00:14:42
Speaker 4: Something, officer Gentilly. He You know, the crazy thing about him is that nobody, you know, he would have been the most reliable witness, right, He's an officer, he's trained to make identifications. Nobody ever asked him that we know of, to look at Barry Gibbs and say is that the person you saw? Because they didn't want to know.

00:15:03
Speaker 3: When you go back and you look at this case, this is one of the Yeah, I mean, this is what makes Barry Gibbs, this case extraordinary in one respect is that it was a completely corrupt cop. And to say corrupt is the understatement of all time. Lewis Eppolito was working at this point in time for a crime family in New York City. He and Kara Kappa, I think we're involved in the assassination of eleven people. There's a terrific book written about Lewis Epolito case and it's called The Good Rat by Jimmy Breslin, you know, perhaps the greatest, you know, pulitzurprise winning columnist that we've ever had in this town. And he talks about Barry's case. But they were running around killing people, you know, and the Lukesey crime family would say, well, why don't you go kill Guido, and they killed the wrong Nicki Guido.

00:16:02
Speaker 1: They did.

00:16:04
Speaker 3: Nick They're all contract killings. And so what we have been able to figure out through litigation after Barry was uh exonerated, essentially through the work of these DEA agents who went out and found Peter Mitchell and you know, showed that the whole case was a frame up. We now know that the day that the witnesses saw this body of this poor woman being dumped on the belt Parkway right that the description matched somebody that worked at a chop shop in Brooklyn.

00:16:41
Speaker 1: Who was known to the cops, who was known.

00:16:44
Speaker 3: And Epolito mysteriously shows up the next day. The next day we found out this guy who was suspected who to meet the description, right, shows up at the police precinct with his died because originally they described it as somebody with salt and pepper hair. He shows up with his hair dyed black and a lawyer to talk to. Epolito appears about that, which appears in no police reports.

00:17:11
Speaker 1: No, there's no reason to take a look at that. I wouldn't.

00:17:14
Speaker 3: But you know, when you look back at this, it's unbelievable.

00:17:31
Speaker 1: So let's go back to the case. So nine years after Barry's conviction, a Brooklyn judge ordered the state to submit evidence from the case for DNA testing. And then what happens, right, It would seem like at that point, Okay, now we got a break. Right now, we're going to get this guy out. Some of the evidence had apparently been destroyed and other items couldn't be found.

00:17:49
Speaker 2: Okay, that's their side of the case. But my side the case is different from that version.

00:17:55
Speaker 1: Right there, Okay, let's hear it.

00:17:57
Speaker 2: Okay, when I was in jail at Riker's Island six months later or whatever, I can't remember exactly how many months later, the district attorney wanted me to give hair samples again. My attorney came up to me, and I said to him, I'm not giving it. And he says why. He says, because I'm being framed. I'm not giving it. He says, listen, Barry, he says, I'm there to represent you. Now, he said, pay attorney, I'm there to represent you. He says. I says, you're gonna be there to represent me when they take these heirs and they're done together, Like, are you gonna be physically right there? He said to me. No, he says, I'm gonna be there when they take the hair samples and they heat seal it and they're gonna give the evidence to who epilto.

00:18:55
Speaker 4: The chain of custody really fell off with Epilito himself in terms of having handle the evidence, and it was just am I.

00:19:02
Speaker 3: A you know, And the funny thing that Barry Gibbs is saying is that, you know, he doesn't even want to give his hairs because he doesn't trust And you know, from the lawyer's point of view, he's going, oh, I got this Michugan client, this crazy client. It doesn't even want to give up airs.

00:19:19
Speaker 1: But one of the greatest frame ups in the history of New York City.

00:19:22
Speaker 3: And what's crazy is that you'd look at him and go, you're you're convinced that you're going to be framed, and you won't even give your hairs, and you're saying that we can't trust the detective to even take them to the crime lab and give it a straight up examination. And it turns out everything he suspects is completely true. It is a complete frame. The guy is working for the mafia, He is assassinating people. He probably played around with all of this evidence. We can't prove all of that, but we proved the hell of a lot of it.

00:19:55
Speaker 1: So for a postal worker for oppostal worker, Barry turns out to be a pretty good scientist, huh, I mean, or at least a psychologist. Let me ask you this. Also, so, the New York City crime laft has faced criticism for its difficulty difficulty is a strange word, for its difficulty handling on to put that in quotes and storing evidence. In twenty thirteen, the New York City Medical Examiner's Office announced that it had discovered more than fifty cases in which the office failed to upload critical DNA evidence from crime scenes to the state's DNA database, which prevented those samples from being compared to genetic material from convicted offenders. This discovery led to the firing of the office's deputy director of quality assurance, which sounds kind of like a fall guy to me. I mean, the deputy director of quality assurance. That sounds like somebody who works at a snack food company or something like that. You know, so can we can you tell me more about that? Because people like to think that these people are doing their jobs, right. I think the public likes to think that when you have, you know, a crime lab, that these people are on is now, of course, after making a murderer and after the different things that have come out recently, I think that has generated so much attention that people probably have a little more skeptical view. But even as a lay person, before getting involved with Innis's project, I thought so too. I thought that these people do their jobs. These are honest actors.

00:21:11
Speaker 3: Right Number one, what Barry and Vanessa were describing about the search for his evidence, right, It is true that in the old days, at the time that Barry was convicted, they had a terrible system for keeping track of the evidence. It was a mess. And that's not unlike places all across the country. It was a total mess, and they did have fires and asbestos and floods, and they did recently after Sandy, have a problem. But you know, having said that, we did have a problem for years in trying to get a fair search because the evidence custodians really, you know, they were being deliberately indifferent to the need to go look for evidence, even when people were asking, go find my evidence. A DNA test could prove me innocent. They really weren't trying hard. But now I do believe that that part of the operation has been professionalized. They have a limb system, you know, it's sort of like a barcode system, laboratory information welcome to twenty sixteen.

00:22:22
Speaker 4: They haven't got they haven't gone back completely, so there's evidence from decades ago. You know, that's still a mass. So it's still it's still incredibly hard for innocent people today in New York City to get access to evidence to prove their innocence. They didn't go back and cleaned up.

00:22:38
Speaker 1: And it's odd because married and I we talked about this before. You know, our clients. I sometimes think of them and I hope you think this the right way, as some of the luckiest of the unluckiest people on earth, right, because you can't be unluckier than to have it's tragic and an unluckiest there's an understatement than to have yourself found, find yourself in a situation where you wrongfully convict and then you know there's we know that there's you know, tens of thousands maybe more people in prison who are innocent, and then for them to be fortunate enough to get the innocence part, to have the Innostance Project take their case, and then to have the evidence found as it was in Barrie's case, is really something that could only be described as, you know, half a so sort of like a miracle.

00:23:22
Speaker 2: We're blessed, but we've touched. I don't know what it is. You kind of surrendered to everything and anything to be at the place, oh man, because whatever it is, it's.

00:23:37
Speaker 1: It's unbelievable in order to move on with your life.

00:23:40
Speaker 2: Yeah, I did angels as angels you don't want to believe it, there's angel.

00:23:57
Speaker 1: I want to talk about the misconduct because, according to a study done by the Endsis Project of Minnesota, official misconduct meaning police or prosecutorial misconduct, was a contributing factor in forty six percent of all DNA exonerations on records since nineteen eighty nine. Police suppressed evidence that might support a defend its innocence in over one third of the first seventy four exoneration cases. So that's one group that we studied. And nine percent of exoneration cases involved allegations of police coercialing witnesses into testifying, as was allegedly the case in your trial. Well we know it was the case in your trial. Bury. So Barry, I know you and I talk about this a lot, and Vanessa I love to hear what you have to say about it. You know, the prosecutor of misconduct is this? I mean, is it just blind ambition that drives these prosecutors? And how is it? Like it always blows my mind that a prosecutor can be so morally bankrupt that they can be and ethically that they can be comfortable and sleep well at night while deliberately knowingly prosecuting and convicting and sometimes sentencing to death the person they know to be innocent. But then the other problem.

00:25:04
Speaker 3: Is but that's see, that's where I would take some issue, right, and that is that I think much of it. The misconduct is something that has been termed noble cause corruption, and that because they actually believe that they're prosecuting a guilty person, and then when the exculpatory evidence seems to pop up right, left and right, because it turns out they're actually prosecuting an innocent person, unbeknownst to them, it gets hidden. And that's why it's so important for lawyers to play by the rules, and that we're talking about prosecutors playing by the rules that even if you think you've got a guilty guy who committed a horrible crime, you still have to play by the rules of our system and disclose exculpatory evidence and not push witnesses beyond what they really are really saw or heard or want to say. That you have to somehow control, you know, the kinds.

00:26:18
Speaker 1: Of impulses, right impulses.

00:26:20
Speaker 3: To win that you know are so prevalent in the system. That's on the one hand, on the other hand, you need strong defense. You need lawyers that are educated, that are well funded, you know that are going to do the job, because unless the defense plays by the rules and does its job and exposes the problems in the case, the system implodes.

00:26:43
Speaker 1: Well you have, and you have the perfect storm there, right, you have over ambitious prosecutors who become blinded by by their belief in the noble cause what do you call it, noble cause corruption or and or their own ambition. And then you have a public defense who may be not up to the task, they may not be qualified, or they may just be overworked, overwhelmed. Yeah, because some of them are some of them are dealing with a hundred or more cases at a time, right, so they can't possibly devote the type of time that they would need to do to mount a robust defense. But the other thing that always, you know, boggles my mind is that as if a prosecutor does let's let's assume the worst in this case. And we know there are those cases right where prosecutors are just like, we got a guy, we're just gonna nail them, We're gonna get it off our desk, we're gonna close this case, and we're gonna move on. We see that, and it's and and of course it happens, and sometimes it's noble colast corruption. Sometimes it's that. But in those cases, what I can't understand is how they could well, well, what we know is that when you convict the wrong guy, by definition, you stop looking for the right guy, right. And so if a prosecutor is motivated but nothing other than selfish interest, especially in a small community, you got to do the math and say, well, look, if the right guy's still out there, and he's going to go almost invariably or inevitably and go and commit more terrible crimes, it could happen to your own family or somebody you know or somebody you love. As a prospect of talking about right, So wouldn't you think that as a public service, if nothing else motivated them to do the right thing, that they would want to get the real perpetrator off the street. And of course we know that in many of our cases, I don't know the exact percentage when we've exonerate did as a guy, we find out that the guilty guy has actually gone and committed terrible crimes against people who never needed to be hurt or killed in the first place.

00:28:36
Speaker 3: Among the DNA exonerations, close to half involve cases where we've been able to identify the person who really committed the crime.

00:28:45
Speaker 4: But in a lot of cases too, it's just, you know, there really aren't incentives. There need to be more incentives on prosecutors, you know, taking on if they get a case that's brought to them by the police and it doesn't seem right or they're getting you know, some exculpatory information to reinvest instigated and not just to see their job is to go forward with the case that the police brought them and to prosecute it. And you know right now is the incentive is to win, not necessarily to reevaluate the case, you know, built into the prosecutor's offices and just in terms of you know, how they're evaluated, what's considered to be a successful prosecutor. And in working with some of the conviction integrity units where you know, prosecutor's offices are going back and looking at the cases themselves. You know, we've heard some of from some of the leaders you know in this area that you know, when you're a prosecutor, you completely dehumanize the person who's accused. You know, that's how you do your job. And so it also I think takes a you know, we need a reevaluation in our system. We don't treat people who are coming through the criminal justice system with any sense of humanity and that allows prosecutors to kind of put blinders on, and you know, it's not somebody that they can relate to. You're not seeing what the devastation that's happening to the individual to or family. You know, that is completely missing for their people.

00:30:04
Speaker 1: And I think sometimes we lose track of that. They're they're not They're not just subjects or people who are accused of something or numbers or whatever. They're actual people. And we see that over and over again. So the conviction review units, this is a relatively new things. It's sort of what I think for about five to ten years now, right.

00:30:26
Speaker 3: Well, it really started in earnest in two thousand and seven in Dallas, Texas, when an African American defense attorney at the age of in his thirties was elected District Attorney of Dallas.

00:30:41
Speaker 1: Pretty unlikely scenario all right round, and.

00:30:45
Speaker 3: You know it was kind of a fluke or unexpected and he came into office, Craig Watkins, and among the first things that he did is that he created this conviction integrity unit. The Innocence Project actually went to a foundation that got him put up half the money because it was a matching thing of the Dallas City Council and this foundation, the Jet Foundation, and he put in charge of the conviction Integrity unit a guy named Mike Ware who came from an innocence organization in Lubbock, Texas. So the Innocence Project of Texas, working with our Innocence Project based in New York, started working with the Dallas District Attorney's Office and their conviction Integrity Unit and reviewed all the cases where they had been resisting requests for DNA testing and reviewed them all. I mean we literally got the entire prosecutor file, looked at it, reviewed the case sometimes when there was no DNA evidence. Although in Dallas, as opposed to New York, they were able to find it. That's why there's more exonerations in Dallas than in most states. If we had been able to find the evidence in New York the way we've discussed before and when we were searching for it in Barry Gibbs's case, if we can find more of it, New York would have hundreds, hundreds of exonerations. I think any firm minded person would agree. We just couldn't find the evidence of so many.

00:32:13
Speaker 1: Dallas go from the county with the highest execution rate to the county with the highest exoneration rate just about yeah, which is an incredible Let's think about that for a second, right, and what that conviction review unit has meant to these people who were some of them would have been executed there.

00:32:27
Speaker 2: Could you imagine on death row?

00:32:29
Speaker 1: No, you can't imagine it. No one else anyone can imagine it. Maybe maybe you can imagine, right, but no one else that hasn't been there can imagine. And that's one of the reasons why we do the work that we do. So these conviction review units, I believe there's not twenty four of them around the country, right, Well, some of them are affected summer.

00:32:43
Speaker 3: Not some some are for real and some aren't. But some are for show, right, some are for show. But one of the uh telltale signs is will they bring somebody in to that conviction integrity unit or conviction review unit who has a background as a defense layer, because the cognitive bias is very, very hard. I mean, you know, I do not believe that there are you know, most prosecutors. I think it's a rare, rare exception, you know, actually get up in the morning and say I'm not going to convict an innocent person. I don't you know, I don't think that really happens. But I think what does happen is, you know, you get what they call hard charging, people who lose track of playing by the rules or the humanity of the defendants, or the gravity of their responsibilities. That can happen. And it's a question of you know, cognitive bias. Right, you have to change the whole orientation of how prosecutors look at their job. And by the way, you know, overwhelmed institutional defenders. Right, you know, you have so many cases you begin to look at them and go, well, you know, I got to get through my docket, right, and every case looks the same, you know, and you don't put in the effort because you.

00:34:04
Speaker 1: Can't and you don't have the money to hire the type of people that you would need to go and prove you as whereas the government can parade out a forensic thing or sign as we saw it again and making a murderer. I just had two more questions I wanted to ask you one, you know, back to the prosecutors. So we need to have, as Vanessa was saying, a higher standard or a better way of evaluating prosecutors so that they are more driven to achieve results that are based in fact, let's just call it that as opposed to achieve achieving convictions, to achieve justice as opposed to convictions. But we also need, in my view, we need to have a much stronger system of prosecuting prosecutor holy prosecutors accountable in this country. As far as I know, you know, we've had with all the prosecutorialist conduct we've seen throughout the decades, there's only really been two cases of any prosecutors being held accountable in a way that winds that lands them up in jail. Barry, can you just speak for a second about the prosecutorial misconduct and how they can be held a contable. What chine of changes have to be made for these guys to be thrown out or thrown in jail.

00:35:13
Speaker 3: Well, there's some simple things that might be done. One is that the Justice Department could bring prosecutions when we find out years later that a prosecutor engaged in deliberate misconduct that led to the conviction of an innocent person intentionally deprived them of their civil rights. The problem that we've had in the past is when we go to the Department of Justice and say, look, we have DNA evidence, We have all kinds of evidence that showed that somebody was deliberately framed. This prosecutor should be prosecuted. They say to us, Look, the statute of limitations under federal law is five years, and it's very hard to conjure an ongoing conspiracy to conceal it in most of these cases, so there would be no jurisdiction for the federal government to do that. It's possible to amend the laws, so I think that might make a big difference. The other aspect is that there has to be a concerted effort to hold lawyers to their ethical responsibilities. One of the things we found is that even in bar discipline, there are statual limitations problems, and the bar discipline system does not take seriously those prosecutors who break the rules, and frankly, the defense layers who simply you know, have given up and are just collecting checks and are not providing effective assistance of counsel. And so one of the things we have to do is change that system so that people take that seriously. They can lose their licenses, they can actually be prosecuted in the most egregious of cases. And if that happens, I think that you know, you will begin to see change. And we have we can't talk past each other, and we can't say, you know, demonize. You know, it's not all prosecutors that you know are engaged in this kind of conduct.

00:37:19
Speaker 2: Far from it.

00:37:20
Speaker 1: No, there's a lot of good guys out there we know, and I've always admired that the fact that you managed to keep your sanity through all the things that you've gone through with these crazy cases and the people you've had to deal with. So before we wrap up, Barry, what can you share with us? You served nineteen years in prison for something you didn't do. Your presence always lights up a room, you know. I know that when you all can't see him through the radio, but when you're at the Ennocence Project dinner, I know I always look forward to seeing you. He's he Barry is a guy. He's I don't even know how to describe him, but he's just larger than life character. Who is you know who really drives that? It really motivates I still want to do more. You know, when we meet somebody like you who's just got an incredible spirit, and uh, you know who has overcome so much and been and really served the country honorably and done so much. You know good, it's it's a fantastic guy.

00:38:15
Speaker 2: I suffer to this day, you know, because you took me out of a beautiful home. You threw me into the military. I did a good life for a few years, had a beautiful life, and this happens to me and you throw me in jail. Do you really expect me to feel like other people? I doubt it. I'll never feel that way. You know, I've been through therapy. I've you know I've I've been through a lot just to survive. I mean, I was in the hospital, I was messed up. I thought I was gonna die. I'm here, I've been saved. I don't know why I got angels around me. If I need a Brockram spot it stay up for me. You know, I don't know what it is. You know what I'm saying. And those are my angels. Those are my angels that are around me. But the Innocence Project, to me, is more than just a family. There are hearts, you know, there were hearts.

00:39:28
Speaker 1: Don't forget to give us a fantastic review. Wherever you get your podcasts, it really helps. And I'm a proud donor to the Innocence Project and I really hope you'll join me in supporting this very important cause and helping to prevent future wrongful convictions. Go to Innocence Project dot org to learn how to donate and get involved. I'd like to thank our production team, Connor Hall and Kevin Wartis. The music in the show is by three time OSCAR nominated composer Jay Ralph. Be sure to follow us on Instagram at Wrongful Conviction and on Facebook at Wrongful Podcast. Wrongful Conviction with Jason Flamm is a production of Lava for Good Podcasts and association with Signal Company Number one