Ann Arbor/Ypsilanti Reads Event: Michigan Innocence Clinic

Fri, 04/10/2009 - 12:30pm

When: January 17, 2013 at the Downtown Library: Multi-Purpose Room

In conjunction with this year's Ann Arbor/Ypsilanti Reads which focuses on Michelle Alexander's book "The New Jim Crow: Mass Incarceration In The Age Of Colorblindness" - Professor David Moran, Co-directer of the Michigan Innocence Clinic, and student lawyers Shannon Leitner, Susan Shutts, and Klara Stephens, discuss their work identifying and rectifying wrongful convictions and their commitment to exonerating innocent individuals and combating injustice.At the Michigan Innocence Clinic at Michigan Law, clinic students investigate and litigate cases on behalf of prisoners who have new evidence that may establish that they are actually innocent of the crimes for which they have been convicted. Unlike many other innocence clinics, which specialize in DNA exonerations, the Michigan Innocence Clinic focuses on innocence cases where there is no biological evidence to be tested. Innocence Clinic students work on all aspects of the cases, including investigating new evidence, preparing state post-conviction motions, conducting hearings and arguing motions in conjunction with these motions, and filing appeals to the state and federal courts. The Clinic has already exonerated several of its clients since its inception in 2009.For more information about Ann Arbor/Ypsilanti Reads, check out the website at aaypsireads.org.This event is for adults and teens (grade 9 and up).

Transcript

• [00:00:23.36] CECILE DUNHAM: Good evening, ladies and gentlemen. Welcome to the Library. Tonight we are honored to have the director of the Michigan Innocence Clinic, David Moran, who's also a clinical professor at the University of Michigan Law School since 2008. Please join me in welcoming David Moran.
• [00:00:38.60] [APPLAUSE]
• [00:00:44.25] DAVID MORAN: Thanks, Cecile. Thanks all of you for coming out tonight. I'm really happy to be joined by three student members of the Michigan Innocence Clinic.
• [00:00:52.07] We're going to do a panel discussion after I give an introductory discussion about the wrongful conviction problem in Michigan. But I'll go ahead and introduce them and then I'll hand it off to them later. Susie Shutts, Shannon Leitner, and Klara Stephens are three current students in the Michigan Innocence Clinic.
• [00:01:12.61] So the Michigan Innocence Clinic is something that Bridget McCormack and I started in January, 2009 as co-directors. I am now director because, as many of you know, Bridget McCormack was just recently elevated to the Michigan Supreme Court. And I am now operating just with a staff attorney.
• [00:01:30.37] The Michigan Innocence Clinic is an innocence project. But it has actually no formal relationship to the famous Innocence Project, the one headed by Barry Scheck and Peter Neufeld in New York. We are a part of the University of Michigan Law School. We are just 1 of the 16, I believe, active clinics in which law students get to work on real cases.
• [00:01:53.43] We are an unusual innocence project, however, in one way, in that we are the nation's first exclusively non-DNA innocence project. We work only on cases in which there is no DNA to test. It's not because we decided that this would be an especially fun way to do it and we wanted to do things without DNA, but for a historical reason or a geographical reason, because there already was a DNA clinic operating in Michigan at the Cooley Law School, that started in 2001.
• [00:02:24.06] And in fact, the founding director of that project is in the audience, Norm Fell. Where did you go Norm? Norm Fell is in the audience. And so there was no need for another DNA innocence project in Michigan. So we started a non-DNA project.
• [00:02:39.30] So what I'm going to do in my time is I'm going to talk a little bit about the problem of wrongful convictions in the United States, why we felt we needed to start a non-DNA innocence project, and then what we do at the Michigan Innocence Clinic. And I'll conclude and probably spend more than half of my time talking about one of the cases that we've handled. Since we started, we have screened 4,000 cases in the Michigan Innocence Clinic. In other words, we've received 4,000 applications from Michigan prisoners.
• [00:03:09.79] We've accepted 19 cases. We have about 100 cases right now that are under active review, in other words, we're seriously considering taking these cases. And we've won, of those 19 cases that we've taken, we've won 7. We've exonerated five men and two women so far, who have served between them a total of 80 years of wrongful imprisonment and would have served many more decades if we weren't fortunate enough to have discovered their cases.
• [00:03:40.29] So let me talk a little bit about the problem. This whole notion of exonerations and wrongful convictions was really something way off in the bushes until about 1990. The dominant paradigm in the United States was that wrongful convictions were virtually non-existent, that people just didn't get wrongfully convicted in the United States because we have such an excellent system of justice.
• [00:04:04.58] And that view started to crumble about 1990. And what caused it to start crumbling was DNA. We started to get DNA exonerations. The very first exaggerations were right around 1990.
• [00:04:17.95] And we just passed 300 DNA exonerations in the United States last year. And now we're starting to see some DNA exonerations around the world. And what these cases have shown us is that the problem of wrongful convictions was more prevalent than we thought. And we can actually start to quantify that as how often do wrongful convictions occur because we can look at some of these cases and look at all the other cases in which the DNA shows that the right person was sent to prison and actually calculate a ratio.
• [00:04:51.62] And there have been two attempts to do that so far just using the DNA exonerations. And both of these studies, one of them by my colleague Sam Gross at the University of Michigan Law School, one by Dean Michael Risinger at Seton Hall High School-- Seton Hall Law School, excuse me-- came up with very similar wrongful conviction estimates of 3% to 5%. One of these databases was rape cases in Virginia, because Virginia happened to save rape kits for a very long time so it was possible to go back and test rape kits from cases going back decades and see if the person who was actually convicted was the perpetrator. And the other was capital rape-murder convictions from across the United States from the 1980s. And again, these are cases in which the evidence was preserved so it was possible to do DNA testing and to see in how many of these cases was the right person convicted.
• [00:05:48.43] And both of these studies came up with error rates in the 3% to 5% range. Now, I always caution that we have to be very careful about extrapolating from those two studies to guessing what is the wrongful conviction rate for all crimes in the United States. The DNA exonerations are almost exclusively in rape cases, because in rape cases the perpetrator is especially likely to leave behind biological evidence, for obvious reasons. And so other types of crimes, is the wrongful conviction rate greater or lesser than it is for rapes or rape-murders?
• [00:06:22.18] And the answer is we just don't know how. We can guess. My guess would be, for example, armed robberies probably has a higher wrongful conviction rate than rape, because so many armed robbery cases are just based on an eyewitness identification and there's no other evidence.
• [00:06:37.22] I'm guessing that the wrongful conviction rate for insider trading or embezzlement is lower than it is for armed robbery. With embezzlement, you know, the money goes missing. There's only a couple of people who could have taken it and one of them has a boat now. So probably the wrongful conviction rate isn't really that high.
• [00:06:57.83] But still, a 3% to 5% error rate, if that's at all instructive as to the rate for all crimes across the nation, is awfully high. The thinking was before that it was like getting hit by lightning to be wrongfully convicted. And when you start to think about the costs of a wrongful conviction, a 3% to 5% error rate suggests that we have a problem we really need to do something about.
• [00:07:23.11] It costs in Michigan $30,000 a year to lock somebody up. So just the cost to the taxpayers of locking up the wrong person can add up to many millions of dollars if 3% to 5% of the people in Michigan-- for example, 3% to 5% in Michigan would be about 1,500. And so if you do the math, we're talking about many millions of dollars to $45 million would be a rough estimate if those error rates converted to Michigan.
• [00:07:51.66] The cost to the people who are wrongfully convicted is very high, because it is an extremely traumatic experience to be wrongfully convicted, sent to prison for something you didn't do, sometimes sent to death row for something you didn't do. It is extremely traumatic to those folks' families, who often become wards of the state. And also another cost we have to consider is that in many of these cases the wrongful conviction leaves the real perpetrator out on the streets. And they often commit further crimes.
• [00:08:22.37] In our cases, we believe that the people who actually committed the crimes for which our clients are wrongfully convicted committed at least five more murders after the murders or the crimes for which our clients were wrongfully convicted. One case from Lansing, a man named Claude McCollum, who was wrongfully convicted and was not exonerated by us, but was exonerated a few years back, there is very strong reason to believe that the man who actually committed the murder for which Claude McCollum was wrongfully convicted committed three more murders in Lansing area in the time it took to exonerate Claude McCollum.
• [00:08:58.82] So there are very high costs to wrongful conviction. So that's lesson one from the DNA exonerations, is there are a lot more wrongful convictions than we thought. And the costs of these wrongful convictions is very high, both in terms of the damage done to the people who are wrongfully convicted and the cost to society in general.
• [00:09:18.19] The second lesson that we were able to get from the DNA exonerations is why do people get wrongfully convicted? What goes wrong? And these cases, these DNA cases, become then a laboratory that we can use by going back and examining these trials in which the wrong people were sent to prison and trying to figure out what went wrong.
• [00:09:40.13] And the Innocence Project in New York has studied every single DNA exoneration. And another study was done last year by Brandon Garrett, a professor at the University of Virginia Law School, who wrote a book called Convicting the Innocent-- I'm sure it's available in the Ann Arbor Public Library-- in which he had his law students read all these transcripts from every one of these DNA exonerations. And his conclusions were remarkably similar to the Innocence Project came up with, that the same causes, over and over again, lead to the wrong people getting convicted.
• [00:10:14.17] And these causes are usually broken down into six. The causes are first of all, bad eyewitness identification procedures, that is suggestive identification procedures or just mistakes made by well-meaning witnesses. False confessions. In 25% of the DNA exonerations, the defendant confessed to a crime that he or she didn't commit.
• [00:10:36.54] I'm going to put in a shameless plug here. On March 23, Ken Burns, the documentarian, is coming to the Michigan Theater as part of the Ann Arbor Film Festival to show The Central Park Five, in which five young men were convicted in the 1980s of brutally raping and beating a jogger in Central Park. And they were all convicted based on coerced confessions.
• [00:11:02.67] And then years later they were exonerated by DNA. And so Ken Burns is coming, along with one of the exonerees, to give a talk after showing his film. And I'll be on the panel for that as well. So false confessions is another leading cause of wrongful convictions.
• [00:11:18.30] Prosecutorial and police misconduct shows up in approximately half of these cases. And typically, the misconduct we're talking about is withholding evidence. There is evidence that is in the possession of the police or the prosecution that shows or strongly suggests that the defendant didn't do it. And yet that evidence doesn't come to light until years later, after the trial.
• [00:11:39.73] The use of jailhouse informants, people who have every incentive to try and help their own case out by claiming, oh, yeah. I was in a cell with this guy and he told me he did it and come into court and give this testimony. In about 20% of the DNA exonerations, there was a jailhouse informant who came in and gave such testimony.
• [00:12:00.06] And finally, what I think is the leading cause of wrongful convictions in Michigan in particular, is ineffective assistance of defense counsel. Michigan, you may have heard, has one of the nation's very worst systems for providing attorneys at the trial level for indigent defendants. And we see that all the time in the Clinic. We some of the very worst lawyering that you can imagine done by defense lawyers. In fact, in the case I'm going to talk about I'll talk about some of that. And I think in more than half of the Michigan cases, at least, there is florid ineffective assistance of defense council.
• [00:12:41.12] I left out one. Bad science, forensic science, junk science. And as an example of junk science, bite mark testimony.
• [00:12:50.83] There have been more than two dozen people who've been exonerated, some off death row, who were put there by forensic odontologists, people who come in, they have dentistry degrees, and say, I saw a bite mark on the corpse. And I was able to match that to the defendant's teeth. And in many of these cases when they have been reexamined after DNA exonerations, it turns out it wasn't a bite at all. It was an insect bite, an abrasion, stab wound.
• [00:13:19.25] In addition to bad science, junk science, in many cases, there's bad scientists, scientists who are in a field in which there is some scientific truth, but they're performing it badly. There has been crime lab scandal after crime lab scandal across the country, including a scandal that resulted in the closing of the Detroit police crime lab in 2008. And we're still finding cases as a result of that. In the Detroit area, many people were convicted on the basis of testimony that is scientifically highly doubtful, to say the least, now.
• [00:13:56.58] All right. So we have learned from the DNA exonerations that these causes occur over and over again. And if you go through that list of causes I just gave, those six causes, none of them are any more likely to occur in a case in which there happens to be DNA to test versus a case in which there isn't. In other words, there's absolutely no reason to believe that the cases in which there is DNA to test represent the universe of wrongful convictions. All of these causes are equally likely to occur in cases not involving rape or not involving a crime where the perpetrator is likely to leave behind biological material.
• [00:14:38.15] And so, because I had had experience-- I was a state appellate defender for eight years before I got into academia. And in that office, I was involved in five cases of non-DNA exonerations. I knew in Michigan that there were lots of people who were in prison wrongfully who had no chance of ever getting out with DNA. I was especially interested in seeing a non-DNA clinic started.
• [00:15:01.94] And so we started the clinic in January, 2009. We actually put out the word in the fall of 2008. And the applications started to pour in as soon as we did some press interviews. And the students who are in the Clinic will talk to you about what we do when we get an application, how we screen the application, how we start to track down the people who are in the application or the witnesses that the prisoner tells us about, the people we should try and to contact. In many cases, we end up talking to prior attorneys.
• [00:15:41.70] And eventually what we're trying to do is make a determination, is this a case, through our multi-step process-- and I think the students may describe our process in more detail. We have a multi-step process before we take a case. Ultimately, we're trying to get to the point where we can answer two questions in the affirmative.
• [00:16:00.02] And the two questions are this. Do we, as a team, not just me, not just the students, but all of us, firmly believe that this person is actually innocent? And I should have defined that term earlier. What I mean by actual innocence is they didn't do it.
• [00:16:15.43] It isn't that they have a good defense. It isn't that they should have been convicted of a lesser crime. It isn't that they should have received a lesser sentence. It isn't that the judge screwed up the jury instructions during the trial and that they should get a new trial.
• [00:16:27.81] It's that they didn't do it. They had nothing to do with it. They are the wrong person. And so that's question one, do we believe that?
• [00:16:35.72] And question two is, is there any new evidence we can go to court with that should convince any rational judge that this person is actually innocent? We can't just go back and say, the jury, what were they thinking, Judge? All we can do is present new evidence that the jury didn't see and try and say to the judge, this should convince you, Judge, that a miscarriage of justice has happened here. And you should order a new trial.
• [00:17:04.12] So it's not enough that we're convinced from the record that a miscarriage of justice has occurred. We have to go out-- and by we, I mean especially they, the students. I sit in my office a lot and while they're out in the field looking for new evidence and trying to find new evidence that will convince the judge that this person should not be in prison anymore.
• [00:17:29.97] So that's what we do. And now I'm going to describe one of the cases that we've done to try and give you a little bit of background. And we're also going to test my technical acumen. I almost never do audio-visual. This is a real test for me. This is my desktop.
• [00:17:48.50] I'm going to tell you about a case of a guy named Dwayne Provience. Dwayne Provience was the third case that we took in the Clinic in 2009. And so, actually you don't need to stare at my desktop yet. But it works. I'm really pleased about that.
• [00:18:08.03] And so let me tell you a little bit about the crime for which Dwayne Provience was convicted. On March 24, 2000, at the corner of Pembroke and Greenfield Streets in Detroit-- anybody know that part of Detroit, Greenfield and Pembroke? OK. A few people. It's on the northwest side of Detroit not too far from Seven Mile, between Seven Mile and Eight Mile.
• [00:18:30.87] At the corner of Greenfield and Pembroke, about 6 o'clock in the evening, in broad daylight, a man named Rene Hunter was murdered. He was standing on the northeast corner of that intersection in front of a Catholic church. And he was shot multiple times by two men in a car.
• [00:18:48.96] Now, this happened at an intersection, a busy intersection, where there's a stoplight. So there were cars that were stopped in traffic that saw the shooting. And so within a couple of hours, the Detroit police had collected seven witness statements from motorists who had seen the shooting, including a lady who was in a car right behind the shooters' cars. And we have these seven handwritten statements from the witnesses. And they're remarkably consistent.
• [00:19:17.60] They all agree on the following facts. There were two men in a gray Chevy car. And many of the witnesses get more specific than that. Many of the witnesses said-- now I'll turn on my-- many of the witnesses said the car was a Chevy Caprice Classic from the 1980s, a car that looks something like this, though the color was gray.
• [00:19:41.96] They all agreed it was gray. They all agreed it was a Chevy. And many of the witnesses, including an off-duty Oakland County sheriff's deputy who was one of the witnesses, said it was a gray Chevy Caprice Classic.
• [00:19:53.55] They also agree that the men in the car, immediately after the shooting-- they were headed west at the time of the shooting. They were headed west on Pembroke. They turned right on Greenfield at a high rate of speed and sped off north on Greenfield before disappearing.
• [00:20:08.37] They also agreed there were four to five shots fired. And that was consistent with the evidence at the scene. Multiple shell casings were found. And Rene Hunter had been shot several times.
• [00:20:20.84] Fast forward three months. So this is March, 2000. June 22, 2000, a man named Larry Wiley is in a Detroit jail cell. He's been arrested for a B&E, Breaking and Entering, a burglary. And he tells the officers that he has information about the shooting at the corner of Greenfield and Pembroke back in March.
• [00:20:42.18] And he proceeds to then give a statement in June, 2000, in which he says, I was at the corner on my bike. And I saw the whole thing. And the shooters were Dwayne Provience and his brother De-Al Provience. And they were in De-Al Provience's beige Buick Regal.
• [00:21:04.06] That's what a Buick Regal looks like. It's a two-door. They were in De-Al Provience's beige Buick Regal. They fired one shot. And after the shooting, they head off at a high rate of speed westbound on Pembroke.
• [00:21:20.69] So they have seven eye witnesses on the day of the shooting, including an off-duty police officer, who say gray Chevy Caprice Classic, turns right, goes north on Greenfield, multiple shots. You've got a crack-addicted B&E defendant who says it was Dwayne and De-Al Provience in De-Al's beige Buick Regal, one shot, heads west on Pembroke. They went with Larry Wiley. And based entirely on Larry Wiley, they arrested De-Al Provience and his brother Dwayne. And the case went to trial in January, 2001, about six months later.
• [00:22:01.45] So number one, we've got a jailhouse informant, one of the causes I talked about already. The case goes to trial in January, 2001. And De-Al Provience is represented by a fine lawyer. And he has a trial in front of the judge. De-Al's brother Dwayne has a man named Reginald Hamilton, who is not a fine lawyer, who has since been disbarred. And Reginald Hamilton then represents Dwayne Provience in front of the jury.
• [00:22:36.58] And so at trial, the prosecution obviously has a big problem, because they have a crack-addicted B&E defendant, Larry Wiley, as their only witness. And his story completely contradicts the story of the seven motorists, including an off-duty police officer and other credible people.
• [00:22:54.09] So what does the prosecution do? They don't present six of their seven eye witnesses. They present only one of their eye witnesses. And this was the only one of the seven statements from somebody who said, I don't know cars. I don't know what kind of car it was. All the others agreed it was a Chevy Caprice or a Chevy Caprice Classic.
• [00:23:10.92] So they present from one person who said, I don't know what kind of car it is to avoid contradicting Larry Wiley. And she also was the one who wasn't clear on which way the car went. All the other witnesses they had knew which way the car went. She wasn't clear on that.
• [00:23:25.67] Well, one piece of information she did get was she was directly behind the shooters. And she got the license plate, or she got the numbers on the license plate. She said, I don't remember the letters, but I got the numbers. And the numbers were 734, like Ann Arbor's area code. 734 was the license plate.
• [00:23:43.84] So then they put on Larry Wiley. And Larry Wiley gives his story. And now they don't have much of a contradiction.
• [00:23:51.20] And so the defense lawyer, Reginald Hamilton, it never occurs to him to call any of the other six witnesses who would have contradicted Larry Wiley. In fact, I don't think he had read the police reports. I don't think he was aware. It's pretty clear from reading the transcript he was not aware of it.
• [00:24:07.70] As for cross-examining Larry Wiley, what he does is he basically says on cross-examination, Mr. Wiley, would you repeat what you said on direct. It is the worst cross-examination I have ever read.
• [00:24:21.83] Dwayne Provience was convicted of second degree murder of Rene Hunter and sentenced to a total of 32 to 62 years in prison. De-Al Provience, the brother, remember, has a trial in front of the judge. The judge is himself a former Wayne County prosecutor. But the judge, Timothy Kenny, knows a bad case when he sees it.
• [00:24:44.66] And here is what De-Al Provience's lawyer did. De-Al Provience's lawyer got the title to De-Al Provience's beige Buick Regal. And what that title showed was that De-Al Provience bought that car in April, 2000, a month after the shooting of Rene Hunter. In other words, the jailhouse informant, Larry Wiley, knew that De-Al Provience had a beige Buick Regal. What he didn't know was that De-Al bought it after the shooting from a lady in Ferndale.
• [00:25:18.68] So he presented that title, showing his client didn't even have the car described on the day in question. And the judge acquitted De-Al Provience. De-Al Provience went home. Dwayne Provience went to prison.
• [00:25:30.06] So we investigated this case. Dwayne Provience sent us a questionnaire in 2009. This was one of the very first batch of cases we started to investigate.
• [00:25:39.64] And the first thing we looked at was these witness statements. And we said, oh my god. Here is a case of ineffective assistance of counsel. We got interested in the case, because why didn't defense lawyer call as these witnesses who would have contradicted Larry Wiley?
• [00:25:53.94] The next step was Larry Wiley. Wonder if Larry Wiley was still sticking with his story? We heard from Mr. Provience's family that he wasn't. So Larry Wiley is by this point out of jail.
• [00:26:06.02] He was a homeless man. Our students went to Detroit, literally speaking to homeless people living under underpasses, asking for Larry. And eventually, they found him panhandling at a BP gas station. And they brought him in. And I will show you just a little clip of the interview with Larry Wiley in 2009.
• [00:26:26.05] LAWYER: Can you state your name, please?
• [00:26:28.05] LARRY WILEY: Larry Jerome Wiley.
• [00:26:30.55] LAWYER: Can you tell us what happened on March 24, 2000 at Pembroke Avenue and Greenfield Roads?
• [00:26:36.55] LARRY WILEY: No, I can't. I wasn't there. I wasn't really there.
• [00:26:40.55] LAWYER: OK. You weren't there.
• [00:26:42.05] LARRY WILEY: No.
• [00:26:42.55] LAWYER: You testified at trial that you saw Dwayne Provience and De-Al Provience in a beige-colored Regal. Was that true?
• [00:26:49.73] LARRY WILEY: No.
• [00:26:51.18] LAWYER: Why did you testify that you saw them at Pembroke and Greenfield Avenue?
• [00:26:55.36] LARRY WILEY: I was scared. And I was coached to.
• [00:26:58.50] LAWYER: Who coached you to?
• [00:27:00.80] LARRY WILEY: I think his name was Sergeant Moore.
• [00:27:03.96] LAWYER: Is he a police officer?
• [00:27:05.31] LARRY WILEY: Homicide. 1300. [INAUDIBLE]
• [00:27:07.65] LAWYER: OK.
• [00:27:09.05] INTERVIEWER: Can you explain a little more as to why you were scared or [INAUDIBLE]?
• [00:27:15.62] LARRY WILEY: Well I didn't want to go out there before a B&E that I didn't commit. And they said if I testified, that they would help me out. So--
• [00:27:25.30] INTERVIEWER: And so that's how you placed Dwayne and De-Al?
• [00:27:28.37] LARRY WILEY: Right.
• [00:27:29.29] INTERVIEWER: And how did you discover that-- or claim that the car was beige or yellow?
• [00:27:37.30] LARRY WILEY: Hearsay.
• [00:27:38.28] INTERVIEWER: OK.
• [00:27:39.26] LARRY WILEY: I don't really know. [INAUDIBLE], you know. [INAUDIBLE].
• [00:27:51.02] LAWYER: What prompted you to come forward now and tell us that you did not see what happened that day?
• [00:27:56.14] LARRY WILEY: I'm dying. I want the truth out before I go.
• [00:27:59.65] LAWYER: Did anybody--
• [00:28:01.56] DAVID MORAN: So that was the second piece of evidence we had, was now we had Larry Wiley admitting that he, the only witness to testify against Dwayne Provience, was lying. And so at that point, we thought we had enough. And we took the case.
• [00:28:16.51] But when we take a case, we don't stop there and say OK, now we're going to court and that's the end of it. We actually filed a motion in the trial court to overturn Mr. Provience's conviction. But we weren't done. And our students were still investigating.
• [00:28:32.97] So summer, 2009, one of my students, Maria Jhai, who has since graduated and now lives in Ann Arbor, went to Detroit to talk to people in the neighborhood where Rene Hunter lived, which was near the corner of Pembroke and Greenfield. And somebody in the neighborhood said, you know, there was another guy who was shot about a month later. His name was Courtney Irving and I think that's somehow related.
• [00:29:00.39] So Maria came back to the law school and she typed into Westlaw the name Courtney Irving. And up popped this, a Michigan Court of Appeals opinion from September, 2004. And this is one of these fall-out-of-your-chair moments for those of us in this business, because-- let me see if I can scroll down here little bit-- we learned that Eric Woods was convicted of killing Courtney Irving one month after Rene Hunter was killed.
• [00:29:34.97] And the facts as stated in this Court of Appeals opinion is that Mr. Woods, here, it says in his statement-- this paragraph here, I'll read it for you. Defendant asserted that 10 or 11 days before the shooting, Reddy Mosley, informed Defendant of a $20,000 contract to kill Mr. Woods. And Reddy Mosley told him he did not have to go out like Rene Mosley-- excuse me, like Rene Hunter, a friend of Defendant, and the Mosley brothers, who had recently been murdered.
• [00:30:05.80] What this goes on to explain is that the Mosley brothers-- excuse me, they weren't brother, they were a nephew and uncle-- Antrimone Mosley and Sorrell Mosley, who were two large marijuana dealers in the Detroit area, had killed Rene Hunter. And Courtney Irving was an eyewitness to the murder of Rene Hunter. And they were afraid that Courtney Irving was going to come forward, so they hired this guy Eric Woods to kill Courtney Irving for them.
• [00:30:36.55] And so this Michigan Court of Appeals opinion reveals that in a different courtroom, the Wayne County prosecutor's office argued to a different jury that Rene Hunter was not killed by De-Al and Dwayne Provience, But was in fact killed by Antrimone Mosley, AKA Terry Moseley, and his uncle Sorrell Mosley. He was killed, as this goes on to explain, because the Mosleys believed that Rene Hunter had stolen a trailer full of weed and money that had recently come to Michigan from Arizona.
• [00:31:11.43] So in a different courtroom, the prosecutors argued a different theory. So that was an amazing moment. And this opinion reveals that this man, Eric Woods, the so-called hitman, had given a full confession to all of this to a DEA agent named Mike Yott.
• [00:31:29.82] So I called up the DEA agent in Detroit, Mike Yott, and I said, I represent a man named Dwayne Provience. He was convicted of the murder of Rene Hunter. And Mike Yott's exact words were, "how the hell did that happen?"
• [00:31:43.14] And then he proceeded to tell me the whole story, which was indeed the Mosley uncle and nephew became suspicious of Rene Hunter. They believed, because a man named Maurice Sutherland told them, that Rene Hunter had stolen their trailer full of weed and money. They had him killed. Or excuse me, they killed him. Then they killed Courtney Irving a month later because Courtney Irving was Rene Hunter's friend and was going to come forward.
• [00:32:10.40] And then a few weeks after that, they learned the real truth, which was that it was Maurice Sutherland who was the one who had actually stolen their trailer full of weed. And they killed him in April, 2000. So there were three linked murders.
• [00:32:22.77] The DEA had investigated it. The DEA had arrested the hitman, Eric Woods. And Eric Woods had given them the whole story.
• [00:32:31.58] And so armed with this information, I called up the Wayne County prosecutor on the case and said, you've got a problem. And he said, no, we don't. See you in court. It was absolutely no willingness at that point to engage, is there a wrongful conviction here?
• [00:32:50.44] So the student, Maria Jhai, continued to investigate. And she ended up going to see Eric Wood's mom, the hitman's mom, in Detroit. And Eric Wood's mom handed over a package of materials from her son's case. And included was this document, the police report from her son's case.
• [00:33:15.37] And what the police report reveals-- I'm sure those of you in the back can't see this-- it reveals the whole thing I just told you. And the incident leading up to Rene Hunter being killed and Terry, down here-- Terry is Antrimone Mosley. Terry confronts Rene Hunter.
• [00:33:36.19] Rene Hunter is basically pushed into a car and driven off in the direction of the corner of Pembroke and Greenfield. And he's followed to that intersection by a car in which Antrimone and Sorrell Mosley are in. And can you guess what this progress report, this police report reveals?
• [00:33:58.22] What kind of car was Antrimone and Sorrell Mosley in? Any guesses? A gray Chevy Caprice Classic. So here is a police report revealing-- there's the discussion of the Caprice. There's the Caprice four-door.
• [00:34:17.71] And they followed [INAUDIBLE]. They followed-- so they basically had Rene Hunter kidnapped, stuffed into a car, driven to the corner of Pembroke and Greenfield. He was shoved out of the car. And then he was shot by the two men in the following car, the gray Caprice Classic.
• [00:34:30.85] This is a police report that was produced one month after the shooting of Rene Hunter. It was never turned over to the defense in the Provience case. We got it from the hit man's mom in the Eric Woods case.
• [00:34:43.86] I called up the prosecutor. I said, you've got a problem. The prosecutor says, see you in court. I'm not going to talk to you.
• [00:34:51.75] So we prepared for a hearing in November, 2009, in which we were going to call 21 witnesses, Eric Woods' mother, the DEA agent, the prosecutors who were named in all of this, the prosecutors who argued Eric Woods' case in a different court. The press was going to be there.
• [00:35:13.54] And on the eve of the hearing, it was called off. On the very eve of the hearing, on November 2, 2009, the prosecutor said, all right. We agree. He's entitled to a new trial.
• [00:35:26.25] And so on November 3, 2009, instead of having the hearing, the judge ordered a new trial. And Dwayne Provience walked out of the Wayne County jail after 9 and 1/2 years of wrongful incarceration. That's his mother, Vonzella, on the right.
• [00:35:46.99] But he wasn't quite a free man yet, because he got a new trial. The prosecution, though, immediately announced, we are going to retry him. With what, one might ask? What evidence are you going to use to retry him?
• [00:36:01.17] Well, Larry Wiley. Well, the problem is Larry Wiley is saying it didn't happen. In fact, Larry Wiley, on November 3, he gave an interview to the Detroit Free Press in the courthouse in which he admitted what he said on the camera there.
• [00:36:13.86] The prosecution says, we'll use his prior testimony. And then they threatened him with perjury if he came into court and admitted that his prior testimony was false. So the idea was they would use his prior testimony. And then they would threaten him with perjury so he wouldn't come into court and admit that his prior testimony was false.
• [00:36:35.62] We went to the Michigan Court of Appeals and said, they can't do that. They cannot use prior false testimony and then use perjury to keep the man from coming into court and admitting the prior testimony is false. They can't do that.
• [00:36:50.15] The Michigan Court of Appeals agreed that the prosecution would not be allowed to do that. But because they said, we're going to keep this case alive, we continued digging. And the students continued digging.
• [00:37:01.92] And meanwhile, one thing we really wanted to see was what was in the prosecutor's file. We got the police file from the hit man's mom. But we really wanted to see what was in the prosecutor's file. And this whole period they kept telling us, Dwayne County prosecutor kept telling us, we can't find it. It's lost. The file is lost.
• [00:37:21.43] On December 15, 2009, Judge Kenny, himself a former Wayne County prosecutor in the homicide unit, said, if you can't find the file, I'm dismissing this case. They found the file the next day. The very next day, we get the call.
• [00:37:36.73] And here's what the students found in the file. This was dated 2002. Remember, Dwayne Provience went to prison in 2001. This is a 20-page document with title information about all of the cars owned by the Mosleys. And right here, on page 5, you see registered 7/6/1999, expires 5/30/2000, a Chevrolet Caprice Classic, 1985, four-door sedan.
• [00:38:14.60] Here's the license plate, 7CXM34. It was in their files all this time. They knew that Antrimone Mosley owned a gray Chevy Caprice Classic. It doesn't say the color, by the way. But by getting the VIN number and contacting General Motors, we were able to confirm the car was gray.
• [00:38:39.75] And so finally, on March 24, 2010, the prosecution threw in the towel. And on that day, Dwayne Provience was able to cut off the tether. When he was released on November 3, he was required to wear a tether because he was still theoretically a murder defendant facing a retrial. The tether was cut off and he was officially an exonerated man.
• [00:39:07.97] Dwayne is working. He's reunited with his two children, one of whom is starting college in Minnesota this coming fall. Since his release, he has become a licensed personal trainer and a licensed physical therapist assistant.
• [00:39:27.19] He's working two jobs, one as an assistant physical therapist and another as a personal trainer at a Powerhouse Gym in Southfield. He's doing great. He actually wanted to come tonight and sent his regrets a few hours ago that he was unable to get somebody to cover shift at the gym tonight.
• [00:39:42.83] So that's the story of one of our cases, one of our seven exonerations, Dwayne Provience. So at this point, we'll put the screen up. My students are going to tell you some now about what it's like to work in the Clinic and some of the work that they have done. Who's going first?
• [00:40:10.56] SUSAN SHUTTS: I am.
• [00:40:11.00] SHANNON LEITNER: Susie.
• [00:40:11.72] DAVID MORAN: Susie. Susie Shutts.
• [00:40:12.68] SUSAN SHUTTS: Hi. My name's Susie Shutts. I'm a third-year law student at the University of Michigan Law School. And I have been in the Innocence Clinic-- I was in it for three semesters.
• [00:40:22.62] And I worked with Shannon Leitner, right there. She was my Clinic partner. They pair you up because you're doing a lot of work going into neighborhoods that aren't the safest. And it's nice to have a Clinic partner and also to bounce ideas off of.
• [00:40:37.12] I just wanted to talk with you a little bit about the process that we go through after we receive a questionnaire from an inmate and how we go through investigating a case and provide a few examples from the work that Shannon and I did together. So after we receive a questionnaire, we have two people independently review the questionnaire. We go through. It's pretty long, like around 20 pages or so, maybe longer.
• [00:41:02.98] We read the questionnaire. We look through any relevant court opinions, read those. Sometimes if there isn't enough detailed information, we'll read media reports. And then we make a determination about whether the claim of innocence warrants further investigation.
• [00:41:19.45] Some factors that we consider are, obviously, whether there's new evidence? What led to the original conviction? Dave mentioned some of the factors that are raise a flag for us, such as eyewitness testimony and whether or not that's actually credible. We look at whether the case was tried or whether there was a plea deal. We'll look at their prior convictions and where the person is procedurally and whether they have an alibi.
• [00:41:43.96] And a couple other things that raise red flags would be whether there's a long time lapse between when the crime occurred and when the convection took place. And Shannon and I were working on a further investigation where the defendant was conducted for the murder of a bartender. And the murder occurred in 1995. And at the time a warrant was requested for her arrest, but it was denied for insufficient evidence.
• [00:42:09.68] It was later granted in 2000. And she was convicted. And that five-year time lapse really caught our attention in that case and is one of the reasons we started investigating it.
• [00:42:21.54] And then if a questionnaire is slated for further investigation, which-- we reject many of the questionnaires we receive-- students work on tracking down any leads in the cases. Sometimes it's a simple thing that we can just quickly check off and that'll let us know whether or not to keep investigating the case. Other times it's more detailed.
• [00:42:40.67] Shannon and I usually start by getting our hands on as much information as we can, looking back at trial transcripts. Sometimes have to track those down. They're not always the easiest to get. Talking with anyone who testified at trial, talking with any new witnesses, talking with alibi witnesses. We talk to prior counsel.
• [00:43:01.67] And after we've read through any court opinions, the transcripts, then we go through and talk with people such as the witnesses I was describing. And a lot of times, people aren't necessarily willing to speak with us, so we have to be persuasive and also find them. Some people are difficult to track down. But we use methods, such as we'll call or write people.
• [00:43:24.42] But we'll also just hit the pavement. And Shannon and I have been to Detroit, taken Dave too, a few times and just gone door-to-door knocking on doors trying to find people. We'll have seven or eight addresses, but three of them might be probable and we'll just try to find people. Also, if we make a connection with someone in a case, they might lead us to other people. And it's sometimes nice to have kind of in who can help you get in touch with people.
• [00:43:50.91] Another technique that we use is a Freedom of Information Act request. And that way we can file a FOIA for police files. In a case that Shannon and I worked on, it was a further investigation case. We filed a FOIA.
• [00:44:08.14] And after we had talked with a potentially recanting witness who ended up not to be a recanting witness-- which is disappointing, but that's just how it is sometimes. And then also looking through the FOIA, we were able to listen to the 911 calls, a tape of them, from the day of the crime. Based on the information from the FOIA and also from talking with this potentially recanting witness, we decided to close the further investigation.
• [00:44:37.91] Another thing we do is we'll consult expert witnesses in cases where there is particularly I guess difficult scientific evidence. Most of us don't have a science background, so that would be most cases with scientific evidence. In the case that I was talking about earlier with the five-year time lapse between when the crime occurred and the conviction, that crime involved a blood sample which was found at the crime scene. And the police used PGM testing, which tests a blood enzyme, as opposed to DNA testing. And Shannon and I, neither of us had heard of PGM testing, so we actually consulted two different experts in that case, just to get a good handle on what this evidence is, why that kind of testing may be used as opposed to DNA, and what kind of testing could possibly be done now, such as touch DNA testing that may not have been available at the time.
• [00:45:34.19] So after we've worked on our investigation for a while, we either come to a point where we have enough information to make a determination about innocence, and as Dave discussed, we only accept cases where the person is actually innocent, not that there was some technicality that means that they shouldn't have been convicted, but where they actually were not the perpetrator. And we meet the person in person to talk with them and be able to look them in the eye and have them explain their story to us.
• [00:46:05.37] And then a lot of times, though, we have to close a case, either because the evidence that we found does point to guilt or because we haven't been able to make a determination based on the evidence that we have or sometimes, and this is the saddest, even if we think that someone is innocent, if there's just nothing that we can do either procedurally or just because their conviction-- we aren't sure what the jury was thinking and everything was presented at trial, all of the evidence that would lead you to believe they're innocent. But sometimes-- like we have a case where there might be like a hung jury. And then they'll tell feel pressured. And sometimes if you have like Christmas coming up or something, people don't want to have to sit around anymore. And there's nothing we can do in a case like that where evidence was presented at trial.
• [00:46:52.97] And then when we do accept a client, we work on litigating their case. We also talk with our clients. Some of them call more often than others. A few of them call once or twice a week. But some of them have been incarcerated for over 20 years, so it's just nice to know that there's some working on their case and someone that they can talk with. So in some sense, it's almost like counseling them, because it's nice for them to have someone to talk with.
• [00:47:19.56] And as an example of something that I've done for Clinic that's a little bit out of the ordinary, that doesn't come up a lot, one of our clients, Carl Vinson, had a parole board hearing last year. And I went to that just to speak on his behalf. I wasn't representing him or anything. I was just speaking on his behalf.
• [00:47:37.61] And I was hoping to talk about his claim of innocence. But the parole board wasn't very open to hearing that. So I ended up not being able to discuss everything I'd wanted to. But it was still good for Carl. He really appreciated having someone there to speak on his behalf. And then also from a personal perspective as a student, it was just nice to be able to practice advocating for a client in a setting that's a little bit less stressful than a trial, for example.
• [00:48:06.89] And then finally, we've had seven exonerations since the Clinic started. And one case that Shannon and I worked on last semester, is Selesa Likine. And this is a felony child support non-support case, where she wasn't making her child support payments. And the reason is that her income had been improperly imputed to her based on her expenses.
• [00:48:33.61] But it was improper, given that she was receiving government funds to support her. And when you are receiving government money, you can't have your income imputed. And so she was unemployed, mentally ill, that's why she was unemployed, and she was living off of government support and unable to make them properly. They were extremely high payments that she was unable to make.
• [00:48:58.48] So she was convicted. And then the Innocence Clinic took on her case working with the ACLU. And at her original criminal trial, she was not able to raise impossibility to pay as a defense. So that's why the Innocence Clinic was really interested in this case.
• [00:49:15.38] She was granted a new trial. And we actually did not have to go through with the trial, because the prosecutor dropped charges in her case. So the last thing that students get to do on cases like that is to work to clear the conviction from a person's history, because you have a felony on your record and you shouldn't have that if you obviously didn't commit the crime. So that's the last thing.
• [00:49:38.27] I'm actually not in the Clinic anymore. But Shannon's working on that right now for Miss Likine. That pretty much give a good overview, I hope, of what students do on these cases.
• [00:49:50.31] SHANNON LEITNER: Hi. I'm Shannon, of Shannon and Susie fame. I just wanted to talk about one of our investigations that we're currently working on that we're-- excited seems like a bad word. But we think it has a lot of promise. And we're hoping it will soon become an accepted case.
• [00:50:07.41] Back in 2000 in Detroit, out at Coney Island, there was a victim's car parked with three people in it. And a shooter's car came up, parked. Somebody got out of the shooter's car, ran over to the victim's car, shot the person sitting in the driver's seat in the back of the head and proceeded to shoot at the other two people in the car.
• [00:50:27.03] were able to get out and run away. And so they survived the crime. But the driver ended up dying. So what happened eventually-- our guy got convicted. He was convicted solely on the eyewitness testimony of the two surviving victims.
• [00:50:45.74] So this is actually a case where the lawyer actually did a pretty good job at trial. He was able to get out from these two surviving eyewitnesses that they had refused to show up at court proceedings and had to be arrested to guarantee that they would show up at trial. He was able to get out of them that they had together drunk a pint of Hennessy and smoked four or five blunts before the shooting, so they were drunk and/or stoned, and that they didn't actually see the shooter, because they were on the passenger side and the shooter was on the driver side. And so they didn't get a good look, but they just knew it had to be this guy.
• [00:51:24.13] And so he did a good job, the lawyer, actually of getting that sort of bad eyewitness identification information out. But our potential client was still convicted. So this case actually came to our attention because last year we received a letter from an eyewitness who said that she was a crack whore, in her own words, who used to buy drugs from both sets of people, the victims and the shooters, so she knew everyone. And she happened to be at the Coney Island. And she saw the shooting.
• [00:52:01.13] And she had just spoken to the shooter's car, like she had gone to try and see if they would pick her up and sell her crack. And so she had spoken to the people in the shooter's car. And she knew for a fact that our guy was not in that car. She knew our guy, like she has a relationship with him.
• [00:52:21.00] In the interim she had been arrested and gone to prison for a crime she committed. She had found God. She had cleaned up her life. She's currently enrolled in classes at Wayne Community College. And she is continuing to live on the straight and narrow now. And so she felt like she needs to come forward to get this person that she knows is wrongfully convicted out of prison.
• [00:52:45.79] One of the things Susie and I have been doing-- or what we did is we went and we spent a lot of time with her, getting her story nailed down, getting all the details out of her, figuring out were you on this side of the street, that side of the street? Where was the car? Did the car go? Did the car go there?
• [00:52:59.87] Who was in the car? Where were people sitting in the car? All of the details that you don't really think about, but that a prosecutor is just going grill you on if we ever go to court. And so we were actually able to get a six-page affidavit that she signed and notarized last semester with her version of the story. So that's going to be a huge part.
• [00:53:20.23] The other thing we've done is we have spent so much time and effort trying to find these two surviving victims. That's one of the cases where we literally went-- like I've been to a car wash. We've been just in the neighborhood knocking on doors.
• [00:53:37.34] We actually found somebody's brother. And he agreed to pass along a letter for us and said he was going to help us. And then he proceeded to ask me on a date. And then he stopped calling when I said no. But that was a good step.
• [00:53:52.75] We actually wrote-- both of the surviving victims are parolees, so we talked to their parole officers. And one of them agreed to pass a letter along. So we've tried so many different ways.
• [00:54:06.41] We're actually excited. Well, so then the witness, the former crack whore, has told us the liquor store where they now sell drugs. So we-- well, I guess me, since Susie's not working with me this semester. But we might be going there this semester to try and find them.
• [00:54:24.90] DAVID MORAN: Not alone.
• [00:54:25.32] SHANNON LEITNER: Not alone. No. I'll find someone else. But also we have another lead on another drug dealer who might know them. He's friendly with the victim's family, so we might be able to find them through that.
• [00:54:43.01] The other sort of stuff that we did, one of the surviving victims was only 18. And he was locked up for three days before he gave his statement identifying our victim. So we're also trying to look to see if he got any sort of deal out of that.
• [00:54:58.30] And so we're also hitting the documents. I just got a call today from Wayne County Court to go look at some files that they have there to try and see if there was any sort of misconduct by the police or any sort of deal offered by the prosecution that would help to show that he had lied. That's kind of a taste of what we do and a little bit of how and investigation works and how thorough we have to be.
• [00:55:25.21] KLARA STEPHENS: I'm Klara. I'm in the Clinic right now as a student. Shannon and Susie were both there last year. They're still working now. I also worked there this past summer, so that was my 9:00 to 5:00, which really ended up being more like a 9:00 to 9:00. But that was OK, because I really loved it.
• [00:55:45.81] When I was preparing for this, I saw that part of the reason why we're here is that you're reading a book based on kind of race in the criminal justice system. And so I thought I'd talk about this one case that I have right now where my guy, that's what I like to call him, was convicted based only on a recorded testimony, sorry, recorded confession that the person who made the recording, a jailhouse snitch, claimed is my guy.
• [00:56:20.12] My guy says that that's not him on the tape. And I'll explain to you how we think that happened. But he was convicted in Berrien County, which is famous for having really bad racial problems in the criminal justice system. It was an all-white jury. He's a black man.
• [00:56:39.26] Actually, the ACLU Racial Justice Program was working on his case. But they couldn't get anywhere, because it's not a simple DNA case. What they thought they could do is-- as I said, the only thing connecting my guy to this murder is this recorded confession.
• [00:56:59.59] And what my guy says happened is that he and the snitch, which is what we'll call him, were in a cell together. But the night that this recording was made, the snitch had a wire taped to him. And the night that this recording was made, the snitch switched cells with another guy.
• [00:57:20.37] And at trial, that guy who switched cells and was in the same cell as my guy testified and said we did switch cells on that night. That is not Klara's guy on that tape. That is not him. However, the snitch says that was my guy.
• [00:57:43.93] So what happens is this tape gets played at trial. Now people would think, well, how did they switch cells? You know, when the wardens, I guess, that's we'll call them, walk by and check the cells, they don't go in and look and get everybody's face. They just look and they're like, OK, two black heads in here. A white head and a black head in here. Check everybody's in their cells.
• [00:58:08.49] But when the wardens testified, they said, no, we do a very thorough check. There's no way that they could have switched cells, because what else are they going to say? So the ACLU Racial Justice Unit did some voice recording analysis on this tape.
• [00:58:25.85] This tape is extraordinarily bad. I can barely tell the words that are being said, let alone who is saying it. But they got somebody to analyze the recording. And this guy says, that's definitely not Klara's guy on the tape either. I think we've definitively established that it's not him.
• [00:58:44.97] The problem is, when I was looking at this, I was going, yay. This is great. Eureka. We got it. We know it's not him.
• [00:58:53.10] The problem is voice analysis as a science is not strong enough, not nearly strong enough, to bring into court and say, because while this might help Klara's guy, if we bring this in court, this could open a whole can of worms that would be bad for maybe a lot of other defendants. So we decide we're not going to do that.
• [00:59:13.93] So what I've been doing since then is to try to figure out what actually happened with this murder. So I went to visit my guy in jail in the Upper Peninsula. It was a really long drive.
• [00:59:26.87] And he sits down with me. And he says, look, I not only know who did it, I can tell you other witnesses who saw him threaten the guy who died. And not only that, but after the murder the police in Berrien County had talked to the actual murderer. A bunch of his soldiers-- that's what you call your drug minions. A bunch of his drug minions and everybody had said that it was this guy.
• [01:00:02.65] So right now what I'm doing is trying to track down the actual murderer, who we think right now is in jail. But we can't really be sure, because the only thing we know about him right now, because the police haven't turned over their files to us, is his street name. And there are a million Detroit somebodies in Berrien County and elsewhere.
• [01:00:26.71] DAVID MORAN: His nickname is Detroit.
• [01:00:28.45] KLARA STEPHENS: Yeah. His nickname is like Detroit Ben or Detroit Dan. I mean, there's a million of all of those. So I'm also trying to track down the minions, of whom I only know right now that their name is the Milwaukee Boys.
• [01:00:44.86] DAVID MORAN: Anybody know them?
• [01:00:47.84] KLARA STEPHENS: So obviously the problem is we have little to go-- and my guy, because people only know each other by their street names, so my guy doesn't know their real names in a lot of these cases. My partner Sally and I are heading to Berrein County next week for probably the weekend to track down all these people. So that's some things. We have a lot of driving that we do.
• [01:01:18.70] And I just wanted to briefly touch on, and I'm sure if any of you have been following the news, you've heard that our most recent exoneree, well, right before Selesa Likine, was David Lee Gavitt. He was convicted for arson. And that's something that Professor Moran touched on in the beginning.
• [01:01:37.87] There is actual science to arson. But prior to about 1995 it was wrong, the way that they decided that there was definitely gasoline and such. So I actually have a new case that we're close to accepting where, just as an example, there was a dog handler that was allowed to testify. And he said that his dog, Samantha, could detect gasoline better than any machine could.
• [01:02:10.28] So while all the gas chromatograph exams showed absolutely no traces of any sort of accelerant on anything except one little piece that came from right next to the charcoal grill, this dog Samantha detected it all over the place. And the handler was allowed to testify that Samantha could detect parts per billion, while machines can only detect parts per million.
• [01:02:39.23] So one thing that I'm having to do is to trace down Samantha's man best friend and see if he's willing to reconsider what he said. But we also have nationwide, world-renowned fire experts that are helping us pro bono that are going to say this is just baloney, basically, to put it lightly. So that's what we do.
• [01:03:05.43] DAVID MORAN: We are often in the position of trying to track down people that we know only by aliases. And I just had late last year a great experience with Susie and Shannon in Detroit tracking down Batman. And we--
• [01:03:19.23] SHANNON LEITNER: We found him.
• [01:03:19.68] DAVID MORAN: We found him. We went to a Coney Island. And the lady at the Coney Island knew who Batman was. And he was now in a nursing home.
• [01:03:30.90] And we went to the nursing home. And we said to the administrator, is there a Batman here?
• [01:03:37.73] SHANNON LEITNER: And there was.
• [01:03:38.92] DAVID MORAN: And there was. The administrator knew who we were talking about. And we got to speak with the witness.
• [01:03:44.82] SHANNON LEITNER: And then we found out that man had Alzheimer's and didn't remember anything.
• [01:03:49.34] DAVID MORAN: But we found him.
• [01:03:50.23] SHANNON LEITNER: But we found Batman.
• [01:03:53.31] DAVID MORAN: I think at this point we'll thank you and leave us to questions.
• [01:03:58.72] CECILE DUNHAM: For your cooperation, we're taping this for future broadcast. And so they won't be able to hear your questions unless you use the microphone.
• [01:04:07.80] AUDIENCE: It's a beautiful presentation tonight. I want to thank the four of you for doing it. I really have two different issues. The first one is you haven't talked at all about what happens to these prisoners that are exonerated. From what I understand, in other states, for every year that they're incarcerated incorrectly, they're compensated by the state of somewhere between $40,000 and $50,000 a year.
• [01:04:34.21] But in Michigan, they're not even given a nickel or a letter of apology. And they're given $10 and they're put out on the street. Is that a true statement?
• [01:04:43.81] DAVID MORAN: That's correct. Michigan is 1 of 23 states that has no compensation law. 27 states and the District of Columbia and the federal system all have compensation laws. That's something that we're working on. And there is a bill that will be introduced in the legislature this year that I am personally working on.
• [01:05:02.95] The problem was there was a bill last year that got through the Senate Judiciary Committee. The problem with it was it would have only effectively compensated DNA exonerees.
• [01:05:14.79] AUDIENCE: So your cases still wouldn't be included.
• [01:05:16.76] DAVID MORAN: Correct. So Dwayne Provience, for example, got nothing. He has retained a lawyer and is looking to sue the Detroit police department for withholding the evidence in his case. But he's received nothing.
• [01:05:32.98] In fact, not only did he receive nothing. The state continued to rack up child support against him while he was in prison. Under state law, when you go to prison, your child support payments are supposed to cease. But they didn't. And so he racked up close to $100,000 in child support unpaid while he was in prison.
• [01:05:56.57] And so you would think that once he got out, he'd build the clean this up. But the Michigan Court of Appeals held a few years ago in case called Malone v. Malone , for any lawyers that want to look it up, that you cannot retroactively get rid of an erroneous child support assessment. So we actually went to court with Dwayne and said, you've got to erase this $80,000 in child support payments. This guy was in prison, wrongfully by the way. But even aside from that it shouldn't have been there.
• [01:06:23.38] And the court said, my hand are tied. There's nothing I can do. So Dwayne actually owes $80,000 in child support. So not only did he get nothing, the state has socked him with this bill.
• [01:06:34.85] AUDIENCE: I'm really glad to hear that you're involved in the legislature to try and change the ruling. The second comment is related to the fact that tonight's presentation is in the context of the book, which, Claudia, you mentioned, The New Jim Crow. And in that context, your stories about the prosecutors and what they're doing and that they're so unreasonable, could you say a little bit more about this just outrageous behavior on the part of the prosecutors. Now, it's talked about in the book, too, but I want it in your context in terms of what you've been dealing with. What's going on here? I mean, it's just outrageous behavior.
• [01:07:16.95] DAVID MORAN: First of all, it's not universal. There are prosecutors who will listen. And when you call, what we always do in all of our cases when we accept the case is we call prosecutor. We say, OK, we're going to take this case. Before we file, we'd love to sit down with you and show you what we have and hopefully convince you that you should join us and this person should be released.
• [01:07:40.95] That has worked once. It worked in the Ionia County case, David Gavitt. Mr. Gavitt served 26 years for a fire which in his wife and two children died. And it was junk science that convicted him. And when it was all reevaluated, not only was there no evidence of arson, there was positive it wasn't arson.
• [01:07:59.11] We presented all of that to the Ionia County prosecutor. His name is Ron Schafer. Mr. Schafer did the right thing. He said, let me get my own experts. His experts agreed with our experts and Mr. Gavitt walked out of prison June 6th of 2012.
• [01:08:13.72] Unfortunately, a lot of prosecutors don't behave that way. And I don't believe any of these people do it because they want to see the wrong people in prison. It's a cognitive thing. It's very hard to give up a belief that you have. And when you believe that your office is really careful, we never go after the wrong people, we weed out all the bad cases, the people we send away are the bad guys, it's really hard to admit that that's not true. And some prosecutors are a lot better at overcoming that problem than others.
• [01:08:54.19] CECILE DUNHAM: Any other questions?
• [01:08:56.15] DAVID MORAN: There's a gentleman.
• [01:09:04.15] AUDIENCE: Just briefly, for the students, I'm really interested to hear what drew you into this in the first place.
• [01:09:13.36] KLARA STEPHENS: Well, I kind of always knew that I wanted to do public interest law when I came. That's why I came to law school. I had about three years off in between. And that sort of really solidified that I want to do the poor woman's lawyering, if you will.
• [01:09:27.51] And I knew that I was really interested in criminal law, particularly after taking that class. And so I heard about the Innocence Clinic through the staff attorney. And I knew that Professor Moran and former professor, now Justice McCormack were just really incredible. And I wanted to learn from them. I mean, you can't deny, it sounds kind of fun, right, tracking down all these people and stuff? I mean, yeah, it's fun too.
• [01:09:58.81] SHANNON LEITNER: I think for me, I actually came to law school, like I lived in Africa for a while and wanted to do immigration and help Africans in America and practice that sort of law. And then I came to law school and kind of discovered how broken our criminal justice system is and kind of wanted to do something about it.
• [01:10:17.75] And much like Klara, I just thought it was really interesting. And it's really hard. It's really so hard to try and overturn a conviction when you don't have something like DNA that everyone's like, great. And I don't know. I liked the challenge of doing something that was hard and a little off the beaten path, but helping people that have really been wronged by our system.
• [01:10:43.01] SUSAN SHUTTS: I actually wanted to do an innocence clinic before once I decided to go to law school. I'd heard about Duke's clinic. And I think I just saw some media coverage of a case that they had got an exoneration in. So before I even decided which school to go to I knew I wanted to do an innocence clinic.
• [01:10:58.47] And then once I heard about Michigan's doing non-DNA cases, I was really interested. I studied journalism as an undergrad. And I just really liked the idea of the investigative aspects of what the Clinic does.
• [01:11:13.71] AUDIENCE: Two things. One is I'd like to piggyback on this idea of the prosecutors being unethical. It just seems strange that there are no consequences for withholding evidence or not being able to admit a mistake, number one. And the second one is, is there any interest and having non-students, lawyers, helping with some grunt work with these innocent cases, these Innocence Clinic cases?
• [01:11:42.98] DAVID MORAN: I'll field the second one first. We just don't really have any capacity to handle volunteers. And so the only volunteers that we deal with are experts. We handle a lot of technical cases.
• [01:11:58.29] One of our exonerations is a shaken baby case. You may have heard about shaken baby science. Like arson science, it's one of these fields where the experts used to come in and say, it's absolutely this way. And we now know it's not true.
• [01:12:11.14] And we got six of the world's best pediatric radiologists and neuroradiologists and neurologists came and testified for free, in this case, that this baby had in fact suffered a stroke. And no one had abused him. So experts we get.
• [01:12:29.33] And we also get some pro bono private investigator help. There are some situations, the students will go find Batman. There are some situations where you really need a pro, a professional investigator. But to the extent possible and safe, we want to have the students do as much of the investigation as we can.
• [01:12:48.74] As for the prosecutors, it is a problem. But I think we're starting to see a shift. I think we're starting to see cases now, different cases around the country, where this sort of misconduct is now being taken more seriously than it was.
• [01:13:03.66] If you really want to read more about this, in 1999 the Chicago Tribune did a five-part study, I believe it was, written by Ken Armstrong-- if you Google Ken Armstrong, prosecutor, Chicago Tribune, you'll find it-- in which they looked at hundreds of overturned murder cases, cases that were overturned because of egregious prosecutorial misconduct and looked to see what happened to the prosecutors. And what they discovered was only I believe three had been disciplined at all. And many of the others had gone on to be elected to Congress or judges or--
• [01:13:35.85] AUDIENCE: [INAUDIBLE]
• [01:13:36.47] DAVID MORAN: Yeah. But recently, we've seen a counter-trend. And I want to point out the positive. So in Wayne County, a prosecutor there went to jail for 30 days for knowingly presenting perjured testimony in a case. That's shocking. It had never happened in Michigan before.
• [01:13:55.10] And there's a case in Texas where a man was exonerated by DNA after 27 years, I believe. He was convicted of murdering his wife. And it turns out the prosecutor purposely withheld the bandana that was found at the scene. The theory was-- he always said, the guy broke and murdered my wife.
• [01:14:15.04] And they said, baloney. You murdered your wife. And there was a bandana at the scene. And they'd withheld. The prosecutor had actually hidden it for all these years. And the bandana, it turns out, when they tested it for DNA, matched against a convicted murderer who had been active in the area.
• [01:14:33.26] And the man was exonerated. And the prosecutor, who's now a judge, has been indicted. And so that's in Texas, of all places. So I think there's progress. I think we're starting to take this sort of serious misconduct more seriously.
• [01:14:53.15] AUDIENCE: I want two things. I want to know if the NAACP is showing any interest in what you're doing, since it involves a lot of black youths who are incarcerated. And also, do you know about [? Dr. Tinnai's ?] book called The Injustice of the American Justice System?
• [01:15:09.18] DAVID MORAN: I have seen [? Dr. Tinnai's ?] book. I can't say I've read it. We have a shelf wrongful conviction books or justice books. I believe [? Dr. Tinnai's ?] book is on it.
• [01:15:22.73] I'm sad to say that I have not had any interaction with the NAACP. And I don't know about other innocence projects. There are about 45 innocence projects in the United States. And there's about another 15 or 20 around the world. So it's very possible NAACP has had interactions with others.
• [01:15:40.74] I've had no interaction with the local NAACP. But you're right that one of the things that the studies have shown is that African Americans are more likely to be wrongfully convicted than whites are. It's not 10 to 1. But it's significantly more likely to be wrongfully convicted.
• [01:16:04.30] And there are all sorts of theories for that. Less likely to be able to hire a good defense lawyer I think is one. And juries more willing to believe weak witnesses against African American defendants like Mr. Provience. Why would a jury, even with the terrible defense lawyer he had, why would a jury believe this guy, Larry Wiley? And would they have believed it if Dwayne Provience had been a white guy from Farmington. I doubt it.
• [01:16:32.00] [? AUDIENCE: Dr. Tinnai ?] teaches classes at the University of Michigan, the senior program. And he's brought a lot of that stuff up, like what you're saying.
• [01:16:40.52] DAVID MORAN: Yeah.
• [01:16:45.91] CECILE DUNHAM: Are there any other questions?
• [01:16:48.85] DAVID MORAN: There's a lady.
• [01:16:52.42] KLARA STEPHENS: I'll just take a minute and say if you're interested in reading more books about this, the book Actual Innocence has details of a lot of the things that Professor Moran mentioned that are causes of wrongful convictions. It's written by the two guys who started the Innocence Project in New York, Peter Neufeld and Barry Scheck.
• [01:17:13.84] DAVID MORAN: Yes. So Actual Innocence by Barry Scheck, Peter Neufeld, and Jim Dwyer. And one more book recommendation, The Innocent Man, which is by John Grisham, his only nonfiction book, about a case of wrongful conviction in Oklahoma. It's masterful-- I'm not a John Grisham fan, by the way, but it's a masterful piece of nonfiction.
• [01:17:38.66] AUDIENCE: Good evening, and the presentation was excellent. And although I'm here, but I'm not here concerning a wrongful conviction. This person-- I began a journey on a quest for freedom for a young man that I've known since he was 12. And at 17, he was convicted of a second degree murder and was sentenced 100 to 200 years, and has since served 27 and is still incarcerated as we speak.
• [01:18:11.35] Now, I did send letters to many men in Detroit that I thought knew about civil rights and lived through it. And the only person that responded to my letter was Geoffery Fieger. And he said good luck but he couldn't help me.
• [01:18:29.85] But I sent a letter to the president of the NAACP, who lives in my community. And I send it to his house in 1998 and have not heard from him since. So I feel like I've been on this journey alone. And I'm doing all I can to help this guy, because he was a single father at the time.
• [01:18:56.45] DAVID MORAN: I'll say that it's not what we do. But it's a real concern of mine, the over-incarceration and especially of youth.
• [01:19:08.02] AUDIENCE: Right. And he did have ineffective counsel.
• [01:19:10.66] DAVID MORAN: And I'm very happy to say that the US Supreme Court now it's on their radar. And the US Supreme Court struck down life without parole-- first of all, it struck down death for juveniles and then struck down life without parole for juveniles. And 100-year minimum sentence is effectively life without parole for a juvenile.
• [01:19:28.09] And so I hope that the effect of Miller v. Alabama, which is the case last year in which the US Supreme Court struck down life without parole for juveniles, I hope one of the effects of it will be that sentences that are the equivalent of life without parole for juveniles will eventually be struck down. But it's going to be a few years before the legal ramifications of Miller are sorted out. But I hope it will give an avenue for release for people exactly like the people you're discussing.
• [01:19:56.71] AUDIENCE: OK. Thank you.
• [01:20:06.79] CECILE DUNHAM: Ladies and gentlemen, thank you very much. And thank you, Professor Moran and students. We really appreciate you being here tonight.
• [01:20:12.83] DAVID MORAN: Thank you.
• [01:20:13.79] KLARA STEPHENS: Thanks.
• [01:20:14.09] [APPLAUSE]