Finding Common Ground 9-26 with Special guest Marty Tankleff — Transcript

Full transcript

1. 0:02[Music]
2. 0:08[Music]
3. 0:16[Music]
4. 0:34i'm attorney phil jacina and this is
5. 0:36finding common ground here on altis
6. 0:38channel 115. you can see this show every
7. 0:40saturday at 10 a.m
8. 0:42on channel 115 altis i am also back on
9. 0:45the radio
10. 0:45fm radio 1039 fm lnews radio that show
11. 0:49is every monday
12. 0:50at 5 p.m i call it phil jacino drive at
13. 0:535.
14. 0:54actually it's 506 because people in the
15. 0:56past have come on and said
16. 0:58i turned it on at five o'clock it used
17. 0:59to be eight o'clock and i didn't hear
18. 1:01you
19. 1:01news and weather and commercials so
20. 1:03about five or six you're going to come
21. 1:05on
22. 1:05i'll be on got a great show planned for
23. 1:08today we have marty tancliff
24. 1:09in the studio marty was on my show about
25. 1:12four or five years ago
26. 1:13on fm radio then he was on a show after
27. 1:16that time
28. 1:17i'm not going to dwell too much in
29. 1:19marty's past contextually i'm going to
30. 1:21talk about it a little bit but we want
31. 1:23to get beyond that because that period
32. 1:25of time
33. 1:25did not define marty marty's parents
34. 1:29were killed
35. 1:29in june of 1988 in beltair which is
36. 1:32right near port jeff new york here on
37. 1:34long island
38. 1:35he was convicted in september
39. 1:39of 1990 if i'm not correct am i mistaken
40. 1:42i understand when was that conviction
41. 1:44the the murders actually took place
42. 1:45september 7th
43. 1:47uh 1988 that's right the day uh first
44. 1:49day of school in high school
45. 1:50first day of high school that's commerce
46. 1:517 1988 that's right my mother
47. 1:54was deceased my father clunked life for
48. 1:56a few weeks
49. 1:58when he passed i was charged with his
50. 2:00murder
51. 2:01and i was convicted of both homicides on
52. 2:05june 28
53. 2:061990 1990 and then i was sentenced to 50
54. 2:08years to life in october right in fact i
55. 2:11was in the da's office
56. 2:12at that time the time of the trial i had
57. 2:14nothing to do with the case but but i
58. 2:15remember it because on long island
59. 2:17obviously it was it was a very very uh
60. 2:19big case
61. 2:20and you were you served 17 years in jail
62. 2:24and a half years 6 338 days you
63. 2:26remembered it i do
64. 2:28and then ultimately the new york
65. 2:31supreme court appellate division
66. 2:33unanimously
67. 2:34exonerated you they vacated your
68. 2:36sentence they
69. 2:37vacated the conviction remanded it back
70. 2:40down
71. 2:41to suffolk county uh criminal court
72. 2:44at that time d.a spoda
73. 2:47had announced that he was going to move
74. 2:49to dismiss the indictments
75. 2:51we found out afterwards that there
76. 2:53appeared to have been some backdoor
77. 2:54issues
78. 2:55and governor spitzer had appointed a
79. 2:58special prosecutor
80. 2:59who was andrew cuomo and several months
81. 3:02later after they had
82. 3:03uncovered more exculpatory evidence they
83. 3:06moved to dismiss the indictments against
84. 3:08me
85. 3:08got it and i remember doing my research
86. 3:11and there was a lot of information in
87. 3:12the 440 motion
88. 3:14that was made on your behalf way back
89. 3:16when that's a motion
90. 3:18to uh to set aside the the verdict and i
91. 3:21remember
92. 3:21uh polygraph information was used which
93. 3:25is not admissible in a trial
94. 3:27but it was admissible in the 440. so i
95. 3:30had heard a lot about the case there was
96. 3:31a lot in the media but that 440 motion
97. 3:34for me
98. 3:35convinced me because prior to that you
99. 3:38hear a whole bunch of different things
100. 3:39you know people to this day that say
101. 3:41you're guilty so
102. 3:43it's very interesting um bruce marquette
103. 3:45who was one of the
104. 3:46lawyers that represented me in the
105. 3:48post-conviction process
106. 3:50recently sent me a message that he was
107. 3:53at the nassau county jail he ran to a
108. 3:55court officer
109. 3:56who remembers me showing up the first
110. 3:58day when i was brought
111. 4:00down for the 440 hearings and that court
112. 4:03officer said after i spent an
113. 4:04hour talking to marty my opinion of him
114. 4:06completely changed and i went home and
115. 4:07said there's an innocent man in jail
116. 4:09wow what i also tell people is that you
117. 4:12know
118. 4:12unless you know the true facts of the
119. 4:14case not what's just in the papers
120. 4:17uh i'm going to talk about the
121. 4:18newspapers if you actually look at the
122. 4:19filings
123. 4:20i mean they get it wrong the newspapers
124. 4:21get it wrong quite often they do get it
125. 4:23wrong
126. 4:24quite often they don't have access to
127. 4:26everything
128. 4:28we developed a body of evidence through
129. 4:30civil rights proceedings that has never
130. 4:32been public before
131. 4:33which probably was one of the reasons
132. 4:35why suffolk county was inclined to
133. 4:37settle the case because they
134. 4:39knew and they saw the body of evidence
135. 4:41we had developed which had never been
136. 4:43made
137. 4:43public before and that happened you
138. 4:45talked about also brady violations i'm
139. 4:47sure
140. 4:47it's brady violations there's witnesses
141. 4:50that
142. 4:51uh were afraid to come forward because
143. 4:53of
144. 4:54jerry stewartman todd stewartman peter
145. 4:57ken and joseph creeden
146. 4:58who were all involved in the murders and
147. 5:01as some of those men
148. 5:02passed away more witnesses have come
149. 5:03forward because the fear
150. 5:05that those men instilled in them have
151. 5:07evaporated well
152. 5:09you know like i said i remember i
153. 5:11remember that that period of time i
154. 5:12remember also the examiner
155. 5:13i still remember there were many
156. 5:15pictures that came out in the press
157. 5:17you leaning or sitting on a car when the
158. 5:19detectors were questioning you
159. 5:20that was i think that the morning that
160. 5:23they found the your parents dead
161. 5:25yeah that was uh detective james
162. 5:27mccready had moved his car
163. 5:29away from my house and we later learned
164. 5:32it was a tactic
165. 5:33so anybody who showed up the house
166. 5:35wouldn't see me right away
167. 5:37uh and we know that to be true is
168. 5:39because when
169. 5:40mike fox who was my uncle my godfather
170. 5:43and the family attorney showed up
171. 5:45he never saw that i was there that day
172. 5:47so they can continue to question you yes
173. 5:49i didn't i didn't know that yes now and
174. 5:52also there's the famous picture of you
175. 5:53crying when they read the verdict
176. 5:57what and you were at that time 19 19
177. 6:00because it was two years later the trial
178. 6:02what was going through your mind at that
179. 6:03moment
180. 6:05well it was eight days of deliberations
181. 6:07so you have this faith in the system or
182. 6:10at least i did as a kid i mean you grew
183. 6:12up in
184. 6:12you know 1980s in long island 1990 you
185. 6:16trusted the police
186. 6:17you grew up in an excellent neighborhood
187. 6:18excellent neighborhood
188. 6:20uh you know the rumor was the longer the
189. 6:22deliberations go the more favorable it
190. 6:24would be
191. 6:24generally that's true generally it's
192. 6:26true um back
193. 6:28then in new york state you were able to
194. 6:30charge depraved indifference
195. 6:32and intentional murder obviously now you
196. 6:35can't because of the new york state
197. 6:36court of appeals decisions but back then
198. 6:39i had both charges against me so the
199. 6:41first
200. 6:42announced verdict was not guilty so
201. 6:45with that there was everybody kind of
202. 6:47had the sense of release and then they
203. 6:48said guilty
204. 6:49and i don't really remember much after
205. 6:51that um
206. 6:52but the picture you see is me crumbling
207. 6:55when the guilty verdict came down
208. 6:57because it was just
209. 7:00i guess you could say just complete
210. 7:01shock and disbelief i mean i remember
211. 7:04the next thing after that was i was over
212. 7:06in the suffolk county jail
213. 7:08standing in front of the property room
214. 7:10the court officer over there with the
215. 7:11sheriff
216. 7:12is after the verdict after the verdict i
217. 7:13don't remember like
218. 7:15guilty i don't remember anything after
219. 7:16that other than being
220. 7:18at the court officer's desk area by the
221. 7:21property room
222. 7:22and them saying what are you doing here
223. 7:25and i said to him and said why else
224. 7:26would i be here and they all look at me
225. 7:28said there's no way they found you
226. 7:29guilty
227. 7:30and i go why is it really here yeah wow
228. 7:33um
229. 7:33and as years passed
230. 7:37a lot of court officers police officers
231. 7:40anybody who
232. 7:42kind of was independent i would get
233. 7:44messages from we believed you marty but
234. 7:46because of our employment or because our
235. 7:47status out here
236. 7:48we couldn't publicly say that it's
237. 7:50interesting you say that because
238. 7:52i spoke to a number of court officers
239. 7:54when the hearings were going on this is
240. 7:55years later
241. 7:56and usually get a pretty sense good
242. 7:58sense because they're sitting in that
243. 8:01courtroom they're listening and and they
244. 8:03tend to be law and order
245. 8:04right so you think a lot of times the
246. 8:06other guy's guilty of sin
247. 8:07they said to me because i was there for
248. 8:09other cases but they said to me i think
249. 8:12this guy's innocent
250. 8:13we don't think he did it and for them to
251. 8:15say that i remember telling other people
252. 8:17that and i said
253. 8:18that speaks volumes there was a court
254. 8:21officer
255. 8:22who was actually retired during
256. 8:25my 440 proceedings and at one point
257. 8:29he asked the judge that if he could stop
258. 8:31the proceedings
259. 8:32because he also worked my trial and he
260. 8:35said he goes
261. 8:36i find it amazing that almost 20 years
262. 8:38ago
263. 8:39i was a court officer in the trial and
264. 8:41here i am almost 20 years later
265. 8:43retiring and marty tanklev is back in
266. 8:45this courthouse and i want to thank the
267. 8:47family and everyone
268. 8:48really for everything um and it's
269. 8:51interesting because even since then
270. 8:54i see former court officers all the time
271. 8:56now i've been invited out to lunch by
272. 8:58them
273. 9:00what i always tell people is that
274. 9:01they've seen every type of proceeding
275. 9:04they've seen every type of evidence i
276. 9:06mean they've seen probably
277. 9:08more than most criminal defense lawyers
278. 9:10have and they are probably some of the
279. 9:12best
280. 9:12judges right of guilt and innocence
281. 9:16because they're in the courtroom from
282. 9:18start to finish often on the trial they
283. 9:20see all the witnesses they hear they
284. 9:21hear the rulings and we were talking a
285. 9:23little bit about the shock you had when
286. 9:25you were found guilty
287. 9:26i've spoken to many people that were
288. 9:29wrongfully jeffrey deskovic you know
289. 9:30jeffrey i'm sure
290. 9:31and other people and they say something
291. 9:34very similar because
292. 9:34they know they didn't do it other people
293. 9:38might not know
294. 9:39you know the media even their own
295. 9:41attorney might not know 100
296. 9:43and then all of a sudden they find
297. 9:45themselves being convicted of something
298. 9:47they didn't do
299. 9:48and it's gotta i can't even imagine it
300. 9:50must be so nightmarish
301. 9:52and at a young age jeffrey was about
302. 9:55that age
303. 9:56about the same age about the same age
304. 9:5940-year-old guy with life experiences
305. 10:00you're like
306. 10:01what do i do essentially what
307. 10:04i i tell people is this you're thrown
308. 10:07into
309. 10:08being a man almost instantaneously
310. 10:11and i still revert back to what a family
311. 10:13member said to me once he said it's time
312. 10:15to be smart not emotional
313. 10:17because when you're in that situation
314. 10:19where your life is on the line
315. 10:21and you have to fight for your freedom
316. 10:23emotions can really distract you
317. 10:26and i remember having to keep that
318. 10:28message throughout my incarceration
319. 10:30because
320. 10:31i was also told by somebody who was a
321. 10:33former cop who was in prison
322. 10:34who said to me so listen marty he goes
323. 10:37it is the easiest thing to convict the
324. 10:39innocent man
325. 10:40and one of the hardest things to do is
326. 10:42exonerate exonerate i'm sure
327. 10:43and he said the way that exoneration is
328. 10:45going to take place is you being your
329. 10:47best advocate
330. 10:48right and and it's amazing to me because
331. 10:50guys that i've spoken to like you
332. 10:52like jeffrey there's another guy from
333. 10:54texas who gerald rivera want to
334. 10:56interview i know you might heard of that
335. 10:57so he went to interview someone
336. 10:59and while he was there he said anybody
337. 11:01else here didn't do it and they pointed
338. 11:02because the
339. 11:03the people in the jail believe this
340. 11:04particular man i think his name was
341. 11:05edwards or something
342. 11:07and geraldo spoke to him and then
343. 11:09geraldo actually interviewed the d.a
344. 11:12the former d.a who was who basically
345. 11:14confessed
346. 11:15and that guy was ultimately i think
347. 11:17prosecuted and this guy was released but
348. 11:19what i'm trying to say is the length of
349. 11:22time
350. 11:23look how long it took you look how long
351. 11:25it took jeffrey deskovic when you hear
352. 11:27about these exonerations it's not like
353. 11:29wow that guy was in jail for six months
354. 11:32it's
355. 11:3215 years 16 years 20 years why
356. 11:36why is that why is that i'll give you a
357. 11:37perfect example
358. 11:39i'm an adjunct professor at georgetown
359. 11:40university where i co-teach a class
360. 11:43with my childhood friend mark howard
361. 11:45that we call making exonerate
362. 11:47in our first semester we utilize
363. 11:50undergraduate students to reinvestigate
364. 11:52cases
365. 11:53try to come up with new evidence and
366. 11:54they create short documentaries
367. 11:56in our first semester we had one group
368. 11:58of students who took on the valentino
369. 11:59dixon case
370. 12:00an african-american man convicted of
371. 12:02murder and weapons charges out of the
372. 12:04buffalo area
373. 12:06the two of our students went up to
374. 12:08interview the
375. 12:09former prosecutor on the case the former
376. 12:12prosecutor disclosed something that
377. 12:14had been withheld for 27 years
378. 12:17he said on the day valentino was
379. 12:18arrested they did gunshot residue tests
380. 12:20and they came back negative
381. 12:22that had never been disclosed now to
382. 12:24make matters worse
383. 12:26a few days after the shooting lamar
384. 12:28scott
385. 12:29who eventually pled guilty the day
386. 12:32valentina was exonerated
387. 12:33so three days after the murder he gets
388. 12:35on camera and says
389. 12:37i did the murder i lost control of the
390. 12:40gun
391. 12:41years later when lamar got arrested for
392. 12:43another crime he said
393. 12:45had you arrested me for that murder back
394. 12:48then which valentino dixon is imprisoned
395. 12:50for
396. 12:50i wouldn't be able to commit this crime
397. 12:53throughout the 27 years
398. 12:54lamar scott admitted his involvement
399. 12:57countless times
400. 12:58but valentino dixon spent 27 years in
401. 13:01prison
402. 13:01and if it wasn't for our georgetown
403. 13:03students and uncovering that evidence
404. 13:05and some other evidence that they did
405. 13:07valentine addiction would probably still
406. 13:08be in prison today
407. 13:10what's the solution like how can we
408. 13:13speed up the process for these guys so
409. 13:14they don't spend
410. 13:1516 or so years in jail how do you speed
411. 13:18it because i know the prosecutor and the
412. 13:19police we got the guy
413. 13:21our job is done right in their minds
414. 13:24they got the guy you were you were
415. 13:25guilty
416. 13:25you were the guy that committed the
417. 13:26murder why are they looking for anybody
418. 13:28else
419. 13:29so there's two issues there when i do
420. 13:31sometimes public speaking events and i
421. 13:33asked a group of let's say
422. 13:3450 or 100 people i said if there's a
423. 13:35murder in your neighborhood on a friday
424. 13:37and also monday police say they've
425. 13:39arrested somebody for that murder
426. 13:40how many people are satisfied with that
427. 13:43overwhelming
428. 13:44overwhelming majority then i say well
429. 13:46how many of you in this room know the
430. 13:47right person was arrested
431. 13:48did you ever hear them say the right
432. 13:50person was arrested and also they said
433. 13:52well we never thought of it that way
434. 13:53they said we trust law enforcement
435. 13:55they said somebody was arrested that
436. 13:56means the right person i said that's the
437. 13:58problem
438. 13:59we need to have more accountability i
439. 14:01said when
440. 14:02we start demanding that law enforcement
441. 14:05do more investigations take their time a
442. 14:08little bit
443. 14:09because sometimes it's that rush to
444. 14:11judgment i mean in my case
445. 14:13i was arrested within 24 hours and all
446. 14:16of a sudden within days my father's
447. 14:17business partner faked his death
448. 14:19changed his appearance that was a
449. 14:21bizarre case led the jurisdiction
450. 14:24uh and law enforcement never considered
451. 14:25him a suspect even though there was a
452. 14:27financial benefit
453. 14:29to the murders he had a moment of his
454. 14:31motive his
455. 14:32conduct you know when i tell elementary
456. 14:36school kids junior high school kids
457. 14:38everything that jerry stewart did they
458. 14:40go how is he not private in the world
459. 14:42consciousness of guilt in many respects
460. 14:44he acted like a guilty guy
461. 14:46i mean if you think about this cleaning
462. 14:48out a joint bank account
463. 14:49faking your death you know changing your
464. 14:52appearance
465. 14:54having five aliases five balances not
466. 14:56one alias five aliases
467. 14:58fleeing the jurisdiction going from new
468. 15:01york to new jersey new jersey to
469. 15:03california did he end up in florida
470. 15:05uh no california or california in
471. 15:06california hiding out in a psychiatric
472. 15:09retreat
473. 15:10after he had his hair changed at a hair
474. 15:12club of america
475. 15:14out there so the hair that was in his
476. 15:16head you know wasn't the same hair that
477. 15:18he would have had a week before
478. 15:20he had a code word that he allegedly
479. 15:23calls his wife and says pistachio and
480. 15:26law enforcement claimed back in 1988
481. 15:28that they were able to trace the call
482. 15:30by saying one word pistachio and
483. 15:33everyone i've spoken to said how is he
484. 15:35not suspect number one
485. 15:37and the tragedy of is over the years
486. 15:40every piece of new evidence went back to
487. 15:43him
488. 15:43why do you think look i gotta believe as
489. 15:46a former prosecutor
490. 15:47and also let's say a police officer they
491. 15:49want to get the right guy
492. 15:51and when they do maybe they're careless
493. 15:54or god forbid worse
494. 15:55hold back information they think they're
495. 15:57doing a public service
496. 15:59because we want to make sure we keep
497. 16:00that bad morty tanklef off the streets
498. 16:04how do we change that culture
499. 16:08culture is really education and training
500. 16:10i mean it's education and training
501. 16:12and it's also having those in law
502. 16:14enforcement those and prosecutors
503. 16:17uh meet exonerees and hear their stories
504. 16:20to understand
505. 16:21good point what went wrong along the way
506. 16:23or what could be different
507. 16:25i also think zealous advocacy is so
508. 16:28critical um you know i could tell you a
509. 16:31very quick story bruce marquette
510. 16:33represented nicholas mars
511. 16:34for two years throughout the two years i
512. 16:37was working in bruce's office at the
513. 16:38time throughout those two years
514. 16:40bruce kept telling the da listen my
515. 16:42client's innocent my client's innocent
516. 16:45d.a wouldn't listen he was in jail at
517. 16:47the time i'm sure nick was in jail all
518. 16:48the time
519. 16:49a horrible crime it was a drive-by
520. 16:50shooting of a four-year-old boy
521. 16:53on easter sunday while they're going to
522. 16:55church
523. 16:56they make opening statements at trial
524. 16:59the judge says to tr
525. 17:00to bruce after have you told everything
526. 17:03you
527. 17:04just said here to the line assistant
528. 17:06because i've been trying for two years
529. 17:08the judge said would you consent to a
530. 17:09mistrial if i get you a meeting with the
531. 17:11bronx d.a
532. 17:12oh my god and they appoint somebody new
533. 17:15they consented 45 days later nicholas
534. 17:18mars was
535. 17:19released murder indictment dismissed six
536. 17:22years later
537. 17:22the actual perpetrator of that crime was
538. 17:24arrested now if you
539. 17:26put that in the movie script people
540. 17:29would be like
541. 17:29that's not going to happen in the real
542. 17:31world i never
543. 17:33knew the impact that story had until
544. 17:36robert johnson spoke at toro law school
545. 17:38and told that exact story without
546. 17:39mentioning any of the names
547. 17:40and afterwards i came up to him i said
548. 17:42that's a nicholas mars casey he said how
549. 17:43do you know i said i work with bruce
550. 17:44marquette
551. 17:45he goes you should follow that lead and
552. 17:47every lawyer
553. 17:48should understand the zealous advocacy
554. 17:51continues
555. 17:53every single day you represent somebody
556. 17:55because you never know
557. 17:57when something just like that where the
558. 17:59judge just said
559. 18:00something's wrong here and i think
560. 18:02that's a critical issue too is that
561. 18:04sometimes judges
562. 18:05should take that inherent judicial
563. 18:08authority but they don't
564. 18:09they don't um and that's maybe because
565. 18:12they feel it's not their job
566. 18:13you know i'm saying they'll be like
567. 18:14that's for the prosecutor they do
568. 18:16preventing
569. 18:17a miscarriage of justice or a wrongful
570. 18:19conviction should be
571. 18:20everybody's job i agree especially
572. 18:22judges because
573. 18:23the judges can stop the proceedings
574. 18:26there's so much they have i mean there
575. 18:28there's there's areas of the judiciary
576. 18:30law that some judges aren't even aware
577. 18:31of
578. 18:32that they can take advantage of to
579. 18:33actually help them in that situation
580. 18:36right now i know you've spoken at the
581. 18:38new york uh police department training
582. 18:40academy
583. 18:40yes how did you get invited to do that
584. 18:43and what kind of experience was that
585. 18:44so i got invited through there was a
586. 18:47captain i think his name was sasnik
587. 18:50reached out to the innocence project and
588. 18:52they said do you have an exonery
589. 18:55that would be comfortable coming to the
590. 18:57nypd and speaking about interrogations
591. 18:59and false confessions
592. 19:00and they reached out to me and i said
593. 19:02yes uh and
594. 19:04i'll say it really was one of the most
595. 19:08memorable experience i ever had i mean
596. 19:10for me like walking into a police
597. 19:11training environment i mean
598. 19:13surreal surreal not something you want
599. 19:14to do um
600. 19:16and being in a room full of you know
601. 19:19senior police officials
602. 19:21and something from outside of new york
603. 19:23too there was a cabin of a police
604. 19:25department
605. 19:26that instituted electronic recording of
606. 19:29all interviews and interrogations
607. 19:31and he spoke on the issue how when the
608. 19:33policy was being discussed
609. 19:34there was this initial reluctance from
610. 19:36law enforcement and
611. 19:38after the institute of the policy there
612. 19:39was like a 99.5 favorable
613. 19:41rating because the videos protected
614. 19:44everyone
615. 19:45sure they cut back on you know extensive
616. 19:48proceedings
617. 19:49they eliminated false allegations so all
618. 19:51of a sudden law enforcement said you
619. 19:52know these videos actually help us
620. 19:54they protect us and the videos actually
621. 19:56protect everyone involved
622. 19:58but it really was a great experience i
623. 20:00would do it again you well received
624. 20:01well received um i actually was given a
625. 20:04certificate from the police department
626. 20:05for my participation
627. 20:07and i would do it again because i think
628. 20:09education and training
629. 20:12is what is so critical in effort to
630. 20:14prevent wrongful convictions because
631. 20:17quite often we focus on addressing the
632. 20:19wrongful conviction
633. 20:21i think we need to focus more on the
634. 20:22front end in preventing
635. 20:24preventing it because an ounce of
636. 20:27prevention you know
637. 20:28yeah exactly there's an ounce of
638. 20:30prevention uh for me i mean i remember
639. 20:32at one point
640. 20:33we were speaking somewhere and a
641. 20:36pba representative had said we don't
642. 20:40want
643. 20:41videos in the interrogation room because
644. 20:42we don't want suspects to know what
645. 20:44we're doing
646. 20:45my response was number one if you're not
647. 20:47doing anything illegal don't be afraid
648. 20:49and number two is the value or the
649. 20:52expense of the videotaping the
650. 20:54videotaping recording
651. 20:55more valuable than seventeen half years
652. 20:57of my life because i've said if that
653. 20:59interrogation took place on september
654. 21:017th i never would have been found guilty
655. 21:02and never would have been charged with a
656. 21:04crime right
657. 21:04and it gives the jury something to to
658. 21:07really process and consider because you
659. 21:09don't
660. 21:09you're relying on the honesty of the
661. 21:11officer
662. 21:13and you don't you don't know the the
663. 21:15surrounding circumstances of that
664. 21:17like even let's say when they were
665. 21:19questioning you on the car
666. 21:21are you saying that particular encounter
667. 21:23should have been videotaped everything
668. 21:25because every expert i've ever spoken to
669. 21:29and most exonerees i've spoken to who
670. 21:32have said
671. 21:32if the recording started from the first
672. 21:35question
673. 21:36i never would have been found guilty and
674. 21:38most veterans would say the same thing
675. 21:39if the detectives who were by the car
676. 21:41wearing a body cam that's recorded
677. 21:43if you're brought to police headquarters
678. 21:44your movement is all recorded
679. 21:46the interrogation room is recorded sure
680. 21:48and and most have said guess what you
681. 21:50don't even have to tell the suspect
682. 21:51they're being recorded
683. 21:53and it protects everyone in the state
684. 21:55okay
685. 21:57and you know what it protects everyone
686. 22:00it really does because
687. 22:02when a suspect is being interrogated
688. 22:05we don't really know how long that
689. 22:06interrogation takes place a lot of times
690. 22:08in court you may see the confession
691. 22:10which could be right 15
692. 22:12minutes of a 10 hour that's a taillight
693. 22:14retardation
694. 22:15well what happened during those 10 hours
695. 22:16are we supposed to rely
696. 22:19on law enforcement to come into court
697. 22:22based on all the issues we know about
698. 22:25or would we rather simply rely on
699. 22:27videotape because we know
700. 22:29videotape pretty much shows what really
701. 22:32happened
702. 22:32right and i think it elevates the game
703. 22:34it almost feels like if there were
704. 22:36cameras in the courtroom and let's say
705. 22:38the attorneys would even be better than
706. 22:40they probably normally are
707. 22:42because you want to make sure you don't
708. 22:44look like a fool right you do everything
709. 22:45that
710. 22:46not that attorneys don't prepare for
711. 22:47trial i'm not saying that but
712. 22:49it almost ups everybody's game if you
713. 22:52know
714. 22:53that what you say is being recorded and
715. 22:56you're talking to a suspect
716. 22:58you're gonna be more by the book i would
717. 23:00think
718. 23:01i would i would tend to agree with you
719. 23:02uh how many cases have we seen in new
720. 23:04york over the past few years
721. 23:06where officers write up dd5s or
722. 23:10post arrest reports and all of a sudden
723. 23:12a video comes out
724. 23:14and the video doesn't even come close to
725. 23:16the written report
726. 23:17if the officers know they are being
727. 23:19recorded
728. 23:20see how much more accurate their reports
729. 23:23are that's that's what i'm saying
730. 23:24um it really does and i think
731. 23:28for me i've seen too many cases i saw a
732. 23:30case in nassau county
733. 23:32african-american man says two detectives
734. 23:36bum rushed me in my car assaulted me
735. 23:39and then i got arrested and everybody
736. 23:40heard the story and they kind of said
737. 23:42yeah right really
738. 23:43and all of a sudden the cops didn't know
739. 23:45this but there was a videotape of the
740. 23:47side street
741. 23:48the videotape came out and that's
742. 23:50essentially what it showed it showed
743. 23:51these two ulcers going into the
744. 23:53suspect's car
745. 23:54and i think we were at a point i think
746. 23:57we are now
747. 23:58different but 10 15 years ago if a
748. 24:00suspect came in
749. 24:01or a client came in and said to you
750. 24:04listen this is what happened
751. 24:06you would have probably had some
752. 24:06reluctance to believe that right
753. 24:09but now i think with the advent of the
754. 24:11technology that everyone has
755. 24:13right you would tend to say you know
756. 24:15what he's probably telling the truth
757. 24:16because guess what a video is going to
758. 24:17surface sooner or later
759. 24:19and it doesn't think about it every
760. 24:21almost every police counter in public
761. 24:23is videotaped in some way everybody
762. 24:26walks around
763. 24:26with a with a camcorder in a sense and
764. 24:29you're on your phone
765. 24:30i was recently in an uber car
766. 24:33and we were talking and he's got a
767. 24:35little camera
768. 24:36right by his uh rearview mirror and he
769. 24:39said to me so you know how i protect
770. 24:41myself he said when i get pulled over i
771. 24:42said what he goes i turn the camera
772. 24:44right towards the window he goes and
773. 24:45ever since i've gotten the camera
774. 24:47every time i've gone pulled over there's
775. 24:50a different position the officer takes
776. 24:52and the cop knows about it cop knows
777. 24:53about it he could visually see he's
778. 24:55being recorded
779. 24:56and he said he goes you see this
780. 24:57difference automatically see that's why
781. 24:59and i've had shows in fact with police
782. 25:01officers politicians
783. 25:03body cameras look there are pros and
784. 25:04cons in everything you do
785. 25:06but it protects officers as well
786. 25:09i saw one where a woman alleged that the
787. 25:12officer groped her or something like
788. 25:13that
789. 25:14and you saw the body cam and it didn't
790. 25:15happen if that didn't happen
791. 25:17that officer would have been in a lot
792. 25:19more trouble he would have had a
793. 25:21maybe the case would have gone to the
794. 25:22next level who knows
795. 25:24but a body cam and it's also great for
796. 25:26training
797. 25:27training we did a show the other day and
798. 25:29we dissected these two officers
799. 25:30by the book and how this uh
800. 25:33punker call them in a car ended up
801. 25:36shooting the two officers who got one of
802. 25:37the guns
803. 25:38and it showed that they it was how did
804. 25:40you show that yeah
805. 25:46and the officers like get now look
806. 25:48granted they know they're being taped so
807. 25:50they're going to be again uh by the book
808. 25:54and it was tragic because they did
809. 25:55everything that they were trained to do
810. 25:58in fact if maybe years ago it wouldn't
811. 26:00even got to that point that would have
812. 26:02been like all right we're three minutes
813. 26:03into this get the hell out of the car
814. 26:04we're going to wrap you in the head
815. 26:05and the sergeant went around and they
816. 26:08tased them
817. 26:09again didn't phase them to that extent
818. 26:11they it might have been pepper spray or
819. 26:13some substances
820. 26:15right and they sprayed them and the guy
821. 26:17still got up i saw another video you
822. 26:19probably saw this too
823. 26:20where this big big man it was like a
824. 26:22tent there must be some kind of function
825. 26:24and a big big cop came in and tased him
826. 26:27because the guy was the
827. 26:28the fellow was wielding a knife tased
828. 26:31him
829. 26:31he goes back the suspect goes back the
830. 26:34cop then figures
831. 26:34now's my chance goes up there the guy
832. 26:37got up and slashed the heck out of the
833. 26:39cop didn't kill the cop but slashed i
834. 26:40saw pictures
835. 26:41you know really did a number on him
836. 26:43that's a perfect example
837. 26:44where someone has a knife to me that's
838. 26:46lethal force
839. 26:48so maybe a taser or pepper spray is not
840. 26:50going to save your life
841. 26:52there was a family friend who said was a
842. 26:54former suffolk county officer and he
843. 26:56said he goes we've been trained that
844. 26:58there
845. 26:58are drugs out there that suspects take
846. 27:01that make them unfazed
847. 27:02where they could be high on pcp you
848. 27:05could shoot a suspect
849. 27:06and they just look at you and laugh like
850. 27:08it doesn't even phase them
851. 27:10um but you know in addition to the body
852. 27:12cams i think dash cams are so important
853. 27:14yes
854. 27:14um you see it i mean there was an
855. 27:17episode of law and order
856. 27:18where a patrolman pulled somebody over
857. 27:21for a dwi
858. 27:23it was a woman and the woman said the
859. 27:25cop groped her and everything
860. 27:26she didn't know was entirely videotaped
861. 27:28and there was audio
862. 27:30and all of a sudden when the video and
863. 27:33the audio came out
864. 27:34it showed what the cops said listen we
865. 27:36know
866. 27:37cops have difficult jobs we know
867. 27:39absolutely absolutely okay it's a
868. 27:40challenging job
869. 27:41we see that every day um you know i've
870. 27:45been asked
871. 27:46as you know as an attorney now how can
872. 27:48you represent somebody who's guilty
873. 27:50and i tell him very simply when you
874. 27:52represent the guilty you protect the
875. 27:54rights of the innocents as well
876. 27:56and most people don't understand that
877. 27:57until i start explaining to them about
878. 27:59search warrants or illegal search and
879. 28:00seizures
880. 28:01and they say oh we get it now because i
881. 28:03said if you defend
882. 28:05somebody's guilty differently defend
883. 28:06somebody who's innocent you're not
884. 28:08protecting
885. 28:09your rights and the protection of
886. 28:11individuals rights is so important
887. 28:13in this day and age because we see
888. 28:16people getting victimized
889. 28:18in every walk of life um you know and
890. 28:21earlier we spoke about false confessions
891. 28:24you know we focus on false confessions
892. 28:26in let's say the criminal justice system
893. 28:28what about the work field
894. 28:29i worked with a false confession expert
895. 28:31who was brought in
896. 28:32by a corporate compliance officer one of
897. 28:34these big chains
898. 28:36where a suspect was accused of stealing
899. 28:38the petty cash
900. 28:39and they got the suspect shouldn't
901. 28:42become a suspect they got the employee
902. 28:44to confess that if he would just give
903. 28:48the money back
904. 28:48admit that he stole the money give the
905. 28:50money back they wouldn't report it to
906. 28:52the police
907. 28:53and he would just lose his job lo and
908. 28:55behold he confessed
909. 28:57they did report to the police okay and
910. 29:00they found that later it wasn't him
911. 29:02wow so i mean
912. 29:06there's a lot of issues like earlier you
913. 29:07spoke about polygraphs
914. 29:09uh most people like you said don't
915. 29:11realize the power of polygraphs
916. 29:13new york state you're not allowed to use
917. 29:14a polygraph at trial
918. 29:16however they are admissible in criminal
919. 29:18proceedings in new york as pre-trial
920. 29:20proceedings and post-conviction
921. 29:22proceedings
922. 29:23family court proceedings and immigration
923. 29:26proceedings
924. 29:27um so i think you know we're talking
925. 29:29about zealous advocacy
926. 29:30i think criminal defense lawyers really
927. 29:32need to kind of expand
928. 29:34what they're doing and utilizing more of
929. 29:38the tools that are out there
930. 29:40when they take on certain cases right um
931. 29:42i once had a case
932. 29:44uh maybe two three years ago where a guy
933. 29:46was charged with rape i got a phone call
934. 29:47from the wife
935. 29:49and it turns out it was a consensual
936. 29:51situation
937. 29:52in a dentist's office there was a camera
938. 29:55we got the camera we showed it to the
939. 29:58d.a
940. 29:58he was he was arrested on a saturday
941. 30:00morning i remember i had to go over
942. 30:02friday night saturday morning i had to
943. 30:04go to court
944. 30:05they for the for the d11 over in ci and
945. 30:09i knew about the video but i didn't have
946. 30:11it yet so i said you know as an officer
947. 30:12the court i'm told there's a video but
948. 30:14i got it to the d.a that monday
949. 30:18they ultimately dismissed the case they
950. 30:19did the right well it was it was clear
951. 30:22and i remember speaking to that ada he
952. 30:24won't give her the name and she said
953. 30:25phil i was convinced that your guy was
954. 30:28guilty
955. 30:29the complaining witness was so
956. 30:31believable
957. 30:33and my poor guy he didn't do it right
958. 30:36uh he put himself in a tough spot by
959. 30:38doing what he did but but he wasn't a
960. 30:40creating committed crime
961. 30:41and it was i don't usually maybe funnies
962. 30:43not a good word but
963. 30:44the woman walks out of the room that
964. 30:45they were in so you couldn't see the or
965. 30:48but what convinced the d.a was she
966. 30:50showed up she touched him in a certain
967. 30:51way
968. 30:52they went into the room she was a nurse
969. 30:54from next door
970. 30:56she comes out and she looks to the right
971. 30:59now
972. 30:59from what i understand i saw a picture
973. 31:01the camera was didn't look like a camera
974. 31:03it looked like more like a mirror
975. 31:05so she looked up like you know anything
976. 31:08and
977. 31:08she was convinced there was no camera
978. 31:10right because then she reported
979. 31:12and to make matters worse so the case
980. 31:15gets dismissed
981. 31:15i get a phone call from a civil attorney
982. 31:18in the city
983. 31:20who is going to represent her in a
984. 31:21lawsuit against my client
985. 31:23and he calls up very cocky he says yes
986. 31:25you know i said you know the case was
987. 31:27dismissed he says yes it shouldn't have
988. 31:28been
989. 31:28i said what's your email address so he
990. 31:31told me i said i'm going to email you a
991. 31:32video
992. 31:33please take a look at he calls me up he
993. 31:35says i'm not bringing this case
994. 31:37and i had another one years ago
995. 31:39napatandi's in smithtown
996. 31:41where a woman won't get into too much of
997. 31:42the details but she alleged that
998. 31:44she was raped in the bathroom of
999. 31:46napotandies turned out to be a lie
1000. 31:48a guy did three days in jail thank god
1001. 31:50that was it
1002. 31:51there were no videos at the time but the
1003. 31:53police went the extra mile because
1004. 31:55wait a minute in the bathroom nobody
1005. 31:57heard anything they arrested the guy
1006. 31:59but three days later he was released no
1007. 32:01video but again you're using common
1008. 32:03sense
1009. 32:04but i think one of the key issues you
1010. 32:07spoke about each one of these is zelda's
1011. 32:08advocacy right you fought for your
1012. 32:10client
1013. 32:11um you know and i think
1014. 32:14you get a gut feeling i mean i've been
1015. 32:16asked over the years how do you know
1016. 32:18when someone is innocent i kind of say
1017. 32:20you get that gut feeling as somebody
1018. 32:22who's been
1019. 32:23wrongfully convicted who's been through
1020. 32:25this system um i have what i call the
1021. 32:27marty litmus test when i ask people
1022. 32:29i said are you willing to do a dna test
1023. 32:31you're willing to do a polygraph test i
1024. 32:32was going to say
1025. 32:33exactly anything else and you watch
1026. 32:35their face and you watch that basically
1027. 32:37you see their answers
1028. 32:38and and it's interesting in the
1029. 32:41valencino dixon case
1030. 32:42that's exactly what we did and he
1031. 32:45actually
1032. 32:46challenged the d.a he said i'm
1033. 32:48consenting to take a polygraph test
1034. 32:50i want you to see how many the other
1035. 32:52people will take one
1036. 32:53he took one passed it and
1037. 32:56the impact it had on the assistant da's
1038. 32:58were reinvestigating case was important
1039. 33:00because when he was exhausted i was up
1040. 33:01in buffalo
1041. 33:02and i spoke to them and they all said
1042. 33:04for them was the icing on the cake it
1043. 33:06confirmed
1044. 33:07everything they did so he knew and we
1045. 33:10all knew that his decision to take the
1046. 33:12polygraph
1047. 33:12was so critical and so vital and that's
1048. 33:15why i say when you're truly innocent
1049. 33:18consider taking a polygraph it's a tool
1050. 33:20i agree
1051. 33:21it's a tool it is not a make or break
1052. 33:24you know some people
1053. 33:25think you have to accept their 100 for
1054. 33:28the truth of it
1055. 33:29but if you ask most people in law
1056. 33:30enforcement i don't know if suffolk
1057. 33:32county still has this policy but there
1058. 33:34was a point where to
1059. 33:36become an alternate account you're going
1060. 33:37to pass the polygraph cia
1061. 33:39fbi all these law enforcement divisions
1062. 33:42have polygraph
1063. 33:43it's a great tool it's a tool and when
1064. 33:46the tool is utilized
1065. 33:47correctly i think it has an advantage
1066. 33:50it is with using forensic linguistics
1067. 33:54a lot of defense lawyers don't know
1068. 33:55about that it is the
1069. 33:57incorporation of language and law
1070. 34:01where the unibomber that case was solved
1071. 34:03using forensic linguistics
1072. 34:06there's a professor at hofstra robert
1073. 34:08leonard there's a former fbi agent jim
1074. 34:10fitzgerald who
1075. 34:11do these lectures and it's just amazing
1076. 34:13where forensic linguistics you can
1077. 34:15actually utilize
1078. 34:16in divorce proceedings plea negotiations
1079. 34:18false confessions
1080. 34:20and false convictions review one very
1081. 34:21quick example uh
1082. 34:23professor leonard was asked to review
1083. 34:26an alleged false confession of an
1084. 34:28african-american suspect
1085. 34:30who was interrogated by two white
1086. 34:31detectives
1087. 34:33he read the confession he spoke to the
1088. 34:35defendant
1089. 34:36i see it coming and he said he goes
1090. 34:38that's not the defendant's words he said
1091. 34:40what do you mean
1092. 34:41he said it's two white men trying to
1093. 34:43speak black vernacular
1094. 34:45putting it into writing and making a
1095. 34:48confession and guess what he was right
1096. 34:50last night i was watching forensic files
1097. 34:52and they had this linguistic expert
1098. 34:54and he was able to look at writings of a
1099. 34:57serial killer
1100. 34:58and writings of another man that they
1101. 35:00thought was a serial killer and it
1102. 35:02turned out
1103. 35:02the way they speak or the way they write
1104. 35:04things down how they use words and
1105. 35:06phrases
1106. 35:07it was compelling that may have been
1107. 35:09robert leonard i don't know who
1108. 35:11was the devil strip mentioned in that
1109. 35:12episode i don't know but they were able
1110. 35:14to
1111. 35:15they were able to use this it was it was
1112. 35:16a white fella right
1113. 35:18maybe it was but the expert and it's
1114. 35:20funny because sometimes they have these
1115. 35:21experts and things you didn't even know
1116. 35:22like
1117. 35:23a sneaker where they caught one guy
1118. 35:25because in the bottom
1119. 35:26the bottom of your sneaker is like a
1120. 35:27footprint you know in a sense because
1121. 35:29you step one thing
1122. 35:30the bottom of your sneaker is not going
1123. 35:31to be anywhere near
1124. 35:33what the bottom of my sneaker looks like
1125. 35:34the wear is different we step one thing
1126. 35:36it's amazing the tools they didn't i
1127. 35:38think about like a hundred years ago
1128. 35:40they didn't have any of these things so
1129. 35:42yeah they had trials when i was
1130. 35:44when i was in undergrad i actually took
1131. 35:46professor leonard's classes because i
1132. 35:47find him amazing
1133. 35:48um and i also think it's actually kind
1134. 35:50of cool that he was a uh one of the
1135. 35:52founding members of sean anna
1136. 35:54it that's it that's it it was they
1137. 35:56mentioned him they show the pictures
1138. 35:57shauna that was him that's him okay
1139. 35:59now now what's interesting about him is
1140. 36:02that he was going to colombia
1141. 36:03at that time and at columbia you had to
1142. 36:06take a foreign language
1143. 36:08but the band traveled on fridays and
1144. 36:10mondays
1145. 36:11so he ended up taking swahili so he is a
1146. 36:14professor of swahili
1147. 36:16who was actually lived in africa and is
1148. 36:19one of the country's leading experts on
1149. 36:20forensic linguistics
1150. 36:23we learned about a situation where there
1151. 36:25was a case out
1152. 36:26west where i think there was a note
1153. 36:28where it mentioned the devil strip
1154. 36:30okay and all of a sudden by consulting
1155. 36:33certain forensical linguistics they knew
1156. 36:35in this one
1157. 36:36region out west the devil strip was the
1158. 36:39piece of grass
1159. 36:41between the road and the sidewalk and
1160. 36:43they asked law enforcement do you have a
1161. 36:46suspect
1162. 36:46that lives in this community anywhere
1163. 36:48else we would know what the hell are you
1164. 36:49talking about didn't know and guess what
1165. 36:51he was right there was a suspect in that
1166. 36:52community and they used forensic
1167. 36:54linguistics
1168. 36:55and a lot of times that doesn't
1169. 36:56necessarily seal the deal but it
1170. 36:58certainly leads you to the right person
1171. 37:00or it's very powerful information
1172. 37:02they worked on a case i think in
1173. 37:04louisiana where there were certain
1174. 37:07postings and there were troublesome
1175. 37:09postings
1176. 37:10they analyzed the postings and they said
1177. 37:12okay it's a smart person somebody who's
1178. 37:14educating the law
1179. 37:15then they started researching actual
1180. 37:18legal filings
1181. 37:20and they found exact similar passages
1182. 37:23or language and they were able to
1183. 37:26identify
1184. 37:27who the person was and i think it was a
1185. 37:29former u.s
1186. 37:30attorney who was making these postings
1187. 37:33by studying
1188. 37:34language and law and the intersection of
1189. 37:36it that's amazing and
1190. 37:37you know when i took this course i never
1191. 37:39even thought about analyzing confessions
1192. 37:41or contracts where you know
1193. 37:45one paragraph each shot could interpret
1194. 37:48what that paragraph really means and we
1195. 37:50learned about a case where
1196. 37:52the placement of a comma meant two
1197. 37:54dollars more either for
1198. 37:56like one corporation versus another
1199. 37:58corporation and it was just amazing
1200. 37:59where the placement of a comma
1201. 38:01in a contract could mean that much of a
1202. 38:03difference and you know like with ransom
1203. 38:04notes and things like that can come in
1204. 38:06even with the jonbenet ramsey there was
1205. 38:07a whole
1206. 38:08body of thought as to who did it you
1207. 38:11know why the dollar amount of the
1208. 38:13the ransom request and who talks like
1209. 38:15this and that that can
1210. 38:16sadly they didn't make the rest of that
1211. 38:18case but but it was just amazing
1212. 38:20how these experts out there it's funny
1213. 38:22you mentioned about sean and i because
1214. 38:23they showed a picture
1215. 38:24so is bowser like a dna expert or
1216. 38:26something no but when you said that
1217. 38:28right away because they had the picture
1218. 38:29shannon on he's like the guy to the left
1219. 38:30and
1220. 38:31it's it's amazing it's it's amazing
1221. 38:33because what's actually kind of cool is
1222. 38:35that you never think a guy from china
1223. 38:38when i was in underground i took his
1224. 38:40class i knew who he was
1225. 38:42uh and if you told the class who you
1226. 38:45mentioned shauna nobody would know who
1227. 38:46it was
1228. 38:47but he showed a video one day and the
1229. 38:49video says
1230. 38:50robert leonard former you know rock band
1231. 38:53member of shauna opened up for jimi
1232. 38:54hendrix at woodstock
1233. 38:56and you saw the whole class go holy you
1234. 38:58know one of those moments that like the
1235. 39:00class is like wait you open for jimi
1236. 39:01hendrix like
1237. 39:02you were right stock star yeah that they
1238. 39:05knew that they know
1239. 39:06and they were looking at this guy going
1240. 39:07they just couldn't fathom like this kind
1241. 39:09of like
1242. 39:09down-to-earth intelligent professor was
1243. 39:12a rock star at one point
1244. 39:13that's amazing it's funny you talk about
1245. 39:15polygraphs i used a
1246. 39:16polygraph where the complaining witness
1247. 39:18they actually had the complaining
1248. 39:19witness take one my guy took one
1249. 39:21it was a student at stony brook i'm
1250. 39:23sorry suffolk community college that was
1251. 39:25accused
1252. 39:25of a rape and the
1253. 39:29parents of the complaining witness one
1254. 39:30lived in belter as a matter of fact
1255. 39:32and my guy passed the polygraph the
1256. 39:35complaining witness failed
1257. 39:36it turned out later that the person was
1258. 39:40wasn't where she was supposed to be
1259. 39:42so she lied and then when something
1260. 39:44happened she only had my guy's name
1261. 39:46and she had been with my guy that night
1262. 39:48but not there wasn't a rape
1263. 39:49the other thing you got to be careful of
1264. 39:51and you might heard stories like this
1265. 39:52where
1266. 39:53even if you don't necessarily pass the
1267. 39:54polygraph it doesn't mean you're guilty
1268. 39:56because
1269. 39:56there was one guy who was with this
1270. 39:58woman and it was kind of rough sex
1271. 40:00and he ripped her blouse and when he was
1272. 40:04it was asked her because it was buttons
1273. 40:05missing they asked about that he lied he
1274. 40:07didn't
1275. 40:08rape the person but he was there with
1276. 40:10her and he did rip the blast but he lied
1277. 40:12about it
1278. 40:12he said no no i didn't rip the blouse so
1279. 40:15it came up as a lie or
1280. 40:16deception it did so that's why um
1281. 40:19through our georgetown class we've had
1282. 40:20the opportunity to
1283. 40:21work with one polygraph expert in
1284. 40:24particular
1285. 40:25and he said that quite often for
1286. 40:27criminal cases some of the best types of
1287. 40:29polygraphs
1288. 40:30are single issue or single question
1289. 40:32polygraphs
1290. 40:34for example if somebody was accused of
1291. 40:37shooting
1292. 40:38somebody in a bar in a particular night
1293. 40:41the most important question is did you
1294. 40:42shoot the person right that's not where
1295. 40:43you're in the bar
1296. 40:45you know where you plan on going to the
1297. 40:46bar and sometimes you want to avoid
1298. 40:49those
1299. 40:49questions because you want to address
1300. 40:51the most important issue
1301. 40:54but he gave it a lecture to our class
1302. 40:57and he said there are times when i do
1303. 40:58polygraphs i do a lot of pre-polygraph
1304. 41:01examinations where we go over questions
1305. 41:04and we do
1306. 41:05you know issues he said i can almost
1307. 41:07tell somebody's going to pass or fail
1308. 41:09just how deceptive they could be in the
1309. 41:11initial questioning
1310. 41:12um but like we said they're not 100
1311. 41:16but they're a tool and i think they're a
1312. 41:17vital tool that
1313. 41:19along with other things there's so many
1314. 41:21other things there's dna testing
1315. 41:24you know we're starting to learn that
1316. 41:26some of the forensic sciences though
1317. 41:27aren't as accurate um because we
1318. 41:30you know there was the case where the
1319. 41:32fingerprint analysis showed
1320. 41:34a gentleman i think in arizona was
1321. 41:36linked to a bombing and i think in spain
1322. 41:38and it was a wrong fingerprint you know
1323. 41:41we learned over the
1324. 41:42years that serology lab work can be
1325. 41:45problematic
1326. 41:45if the lab technician is fabricating
1327. 41:48evidence oh of course
1328. 41:49peter zane down in virginia was involved
1329. 41:51in fabricating evidence in hundreds of
1330. 41:53cases
1331. 41:54nassar county a few years ago i remember
1332. 41:57with the dwis
1333. 41:58where they were i mean i think thousands
1334. 42:00of cases because they weren't
1335. 42:01calibrating the machines
1336. 42:03but if you think about what does it all
1337. 42:04revert back to for
1338. 42:06us is zealous advocate for your client
1339. 42:08really kind of
1340. 42:09following every lead understanding every
1341. 42:11forensic science
1342. 42:13i tell people listen a if it's an area
1343. 42:15that's beyond
1344. 42:16your your can your expertise get an
1345. 42:19expert consult with somebody bring
1346. 42:20somebody in
1347. 42:21bring something that can actually
1348. 42:22simplify because especially if you have
1349. 42:24to present to a jury
1350. 42:25um there's a lawyer that used to work
1351. 42:28with that talks about how the courtroom
1352. 42:30is your theater your jury is your
1353. 42:32audience
1354. 42:33and your witnesses are your characters
1355. 42:36and sometimes you
1356. 42:37want to make trials a little bit
1357. 42:38entertaining and simple
1358. 42:40because when you get too complex you can
1359. 42:43lose jurors
1360. 42:44right yeah yeah i believe new mexico was
1361. 42:47still the only state
1362. 42:49unless they added more to it but new
1363. 42:50mexico allows
1364. 42:52polygraphs at the trial stage that i
1365. 42:54know for a fact was breaking bad
1366. 42:56now but but i i did my research one time
1367. 42:58and that was
1368. 42:59at that time that was the only state
1369. 43:01that allowed it i think
1370. 43:02it's a trial last time i spoke to the
1371. 43:04polygraph expert he goes there's a few
1372. 43:05more states
1373. 43:07that allow the admission of polygraph
1374. 43:08and evidence at trial if the
1375. 43:10prosecutor the defense consent before
1376. 43:13the examination
1377. 43:14or before the examination of course
1378. 43:17um it was funny i was wanting to bring
1379. 43:19up i was thinking about it before
1380. 43:21remember les i think his name is leslie
1381. 43:23abrams she was the menendez
1382. 43:25remember the menendez i'm sure he's a
1383. 43:27professor at ucla
1384. 43:28could be the blond-headed lady and you
1385. 43:30know she became very famous
1386. 43:32uh and i remember somebody questioning
1387. 43:34her about
1388. 43:35what is it like and you mentioned this
1389. 43:37to represent
1390. 43:38you know someone who's guilty and she
1391. 43:41said
1392. 43:42what's really scary and i'm paraphrasing
1393. 43:44is representing someone who's not guilty
1394. 43:46because if you got a guilty person like
1395. 43:48you said you you have your job to do
1396. 43:50you protect them you try to work out a
1397. 43:52plea i remember one time
1398. 43:54and talked about going to an expert i
1399. 43:56had a case and it wasn't even a big big
1400. 43:58case it was a
1401. 43:59aggravated harassment criminal contempt
1402. 44:01where the d.a had
1403. 44:03yeah the d.a had phone records that my
1404. 44:05client called
1405. 44:07this other guy and threatened him they
1406. 44:09had an audio which wasn't was kind of
1407. 44:11grainy it's like the old mob ones you
1408. 44:13know
1409. 44:13where you hear it you're like am i here
1410. 44:15is that so and so
1411. 44:17and i'm like i said to my guy i said
1412. 44:18they got phone records he says i didn't
1413. 44:20make the call i said
1414. 44:22okay i'm going to subpoena your records
1415. 44:24because these are the records of the
1416. 44:25complaining witness
1417. 44:27no call was made so here you have
1418. 44:29records showing a calls made
1419. 44:31not i call an expert on spoofing you've
1420. 44:33heard of spoofing
1421. 44:35he gives me this whole give me an
1422. 44:36education this was years ago so i didn't
1423. 44:38i didn't know what spoofing was and we i
1424. 44:41went to trial
1425. 44:43and we won because the jury and i i kind
1426. 44:46of knew
1427. 44:47if the jury says wait a minute the d.a
1428. 44:48has one set of phone records
1429. 44:50the defense attorney has another set
1430. 44:52both sir you know both subpoenaed
1431. 44:54records
1432. 44:54that's reasonable doubt and i got a not
1433. 44:56guilty verdict
1434. 44:57but you have to sometimes listen to what
1435. 45:00your client has to say
1436. 45:01don't always take everything at face
1437. 45:02value but he said i didn't do it
1438. 45:04if i was the kind of attorney that said
1439. 45:06come on
1440. 45:08they got the phone records let's take a
1441. 45:09plea let's get the heck out of here
1442. 45:11and i didn't twist his arm because i
1443. 45:13said i can work out a good deal he said
1444. 45:14this guy got me in trouble before you
1445. 45:16have those kinds of cases where
1446. 45:17i i've had cases where i turned down an
1447. 45:19acl to go to trial
1448. 45:20because the client's like my wife keeps
1449. 45:22getting me arrested or my ex-wife keeps
1450. 45:24getting me arrested
1451. 45:25i got to take a stand i think one of the
1452. 45:27problems that our criminal justice
1453. 45:28system is facing is that when you
1454. 45:30actually represent an innocent client
1455. 45:32who tells you that i i worked on a case
1456. 45:35years ago where the client
1457. 45:36said there was no way i could have
1458. 45:38committed the crime i wasn't even in the
1459. 45:39country
1460. 45:40he was convicted of it though so
1461. 45:42post-conviction
1462. 45:44you know if he didn't have money he
1463. 45:45wouldn't have been able to hire
1464. 45:47lawyers investigators to actually track
1465. 45:50down
1466. 45:50the records from overseas to clearly
1467. 45:53establish he wasn't even in the country
1468. 45:56at the time the complaining witness and
1469. 45:58the d.a charged
1470. 46:00that he was in the country and committed
1471. 46:02a crime which he was guilty
1472. 46:04that's like the best alibi you can have
1473. 46:06i wasn't in the country but
1474. 46:07nobody not the prosecutor not the police
1475. 46:10nobody never the original defense lawyer
1476. 46:12listened to the client and actually
1477. 46:14tried to track those records down
1478. 46:16uh and i think wow over the years
1479. 46:20um jabar collins is one of the perfect
1480. 46:22examples in new york where jabara
1481. 46:24collins
1482. 46:25from a jail cell used freedom of
1483. 46:27information law
1484. 46:29records requests was able to obtain
1485. 46:32exculpatory information that had been
1486. 46:33withheld from him
1487. 46:35and his conviction was eventually
1488. 46:37reversed because
1489. 46:39there was information in the
1490. 46:40prosecutor's files that had
1491. 46:42never been turned over to him that's
1492. 46:44amazing um and one of them was let's
1493. 46:46was witnesses were essentially being
1494. 46:48kidnapped put into hotel rooms
1495. 46:51and told that they had to stay there
1496. 46:53until they testified then they were
1497. 46:54going to be paid
1498. 46:56in the georgetown class our students
1499. 46:58uncovered within another investigator
1500. 47:00that some of the jailhouse informants
1501. 47:02were paid even though they never
1502. 47:04admitted that at trial
1503. 47:05that they were able to track down
1504. 47:06through free foil requests brady
1505. 47:08information
1506. 47:09um actual receipt records that these
1507. 47:11witnesses were paid and it actually had
1508. 47:13the money
1509. 47:14the name what it was for i want to ask
1510. 47:16you your opinion on something and
1511. 47:18i represent frank vetero as a case
1512. 47:20that's still pending
1513. 47:21criminal and also civil and he said
1514. 47:24something to me
1515. 47:25and when i had jeffrey destrovic on two
1516. 47:27weeks ago he said the same thing
1517. 47:29he said it's almost like they have more
1518. 47:31rights and the ability to get more
1519. 47:33information in civil suits
1520. 47:34or freedom of information than they did
1521. 47:37at the trial phase
1522. 47:39like frank brought a lawsuit he found
1523. 47:42out things
1524. 47:42that he didn't know when he took his
1525. 47:45plea that jeffrey didn't know
1526. 47:47when he was convicted why i guess the
1527. 47:50d.a has control of that information
1528. 47:53so i'll give you there's two answers
1529. 47:54that number one when you ask people what
1530. 47:56is the most
1531. 47:57the biggest and most powerful law firm
1532. 47:59in any way i say that all the time the
1533. 48:01da's are va's also
1534. 48:02the u.s attorney i said two weeks ago
1535. 48:04why they control
1536. 48:06everything right subpoena power wiretap
1537. 48:09power
1538. 48:10everything along the lines number two
1539. 48:13in my case we have the exact issue where
1540. 48:16we depose
1541. 48:17the medical examiner the medical
1542. 48:19examiner said
1543. 48:20i told suffolk county police at the time
1544. 48:23i did the autopsy
1545. 48:24that the alleged murder weapon in my
1546. 48:26case could not have been the murder
1547. 48:28weapon
1548. 48:29first time we ever learned of that in
1549. 48:31the civil rights case we ended up having
1550. 48:33to
1551. 48:34do a supplemental application because it
1552. 48:35was a brady violation well you
1553. 48:36understand why that wasn't turned over
1554. 48:38there would be no case but that's you
1555. 48:40got to do that
1556. 48:41but if you see the in wrongful
1557. 48:43conviction cases and you speak to the
1558. 48:45lawyers who've worked on these cases
1559. 48:47i would have to say 75
1560. 48:50of them maybe more
1561. 48:54that information that had never been
1562. 48:56disclosed
1563. 48:58finally comes out through the civil
1564. 48:59proceedings and it's either
1565. 49:01through a federal court order
1566. 49:04that all records must be shared or it's
1567. 49:07just somebody saying okay let's just
1568. 49:09turn this over here you go
1569. 49:10so that happened in my case a few years
1570. 49:12after i was
1571. 49:14uh incarcerated a family member filed a
1572. 49:17foil request
1573. 49:17to the south county police department it
1574. 49:19was actually my aunt mary and my
1575. 49:20mother's sister
1576. 49:21she said there are records that i want
1577. 49:23to see
1578. 49:25the police department said there's an
1579. 49:27ongoing investigation because we're
1580. 49:28investigation you've convicted my
1581. 49:30nephews in prison she ended up getting
1582. 49:32records we never saw
1583. 49:34ever saw one of them included a
1584. 49:36confidential report that
1585. 49:37mentioned todd stewarman another one
1586. 49:41was a confidential reporter he was on
1587. 49:42their radar from
1588. 49:44back then another one said who the
1589. 49:46homicide detective
1590. 49:48should have been for that morning which
1591. 49:50wasn't mccready
1592. 49:52there was information that talked about
1593. 49:54radio communications because
1594. 49:57on that day the first time in suffolk
1595. 49:59county history and ever since then
1596. 50:01did radio communications between the
1597. 50:03officers and headquarters
1598. 50:05disappear for a critical period of time
1599. 50:07when we were trying to establish my
1600. 50:08custody
1601. 50:09so the original recording every backup
1602. 50:11disappeared never happened before
1603. 50:13but all of a sudden when we got the
1604. 50:14confidential records
1605. 50:16the time of the malfunction of the
1606. 50:18system was completely different
1607. 50:20golly could have done a lot with that
1608. 50:21information gotley would have done
1609. 50:23so much more but he was up against an
1610. 50:25army
1611. 50:27we learned after i was released
1612. 50:30that detective mccready who is the lead
1613. 50:32detective
1614. 50:33was bringing weaknesses into the
1615. 50:35evidence locker room before they
1616. 50:36testified
1617. 50:38showing them bloody crime scene pictures
1618. 50:40and saying listen we have all the seven
1619. 50:42against marty you know you've got to
1620. 50:43testify the right way
1621. 50:45we got evidence that mccready had
1622. 50:47convinced three
1623. 50:48young girls that i had met just a few
1624. 50:50weeks before
1625. 50:52september 7th to testify a certain way
1626. 50:55uh two of them were sisters one wasn't
1627. 50:57after i got out
1628. 50:58they approached the one and the one said
1629. 51:01we all lied
1630. 51:02you know what something half of what you
1631. 51:04just told me
1632. 51:05a rookie defense attorney could have
1633. 51:08gotten acquittal yes
1634. 51:10no question in my mind i mean if you
1635. 51:13think about
1636. 51:15having the medical examiner say in my
1637. 51:17case very simply
1638. 51:18okay jerry stewman son was a drug
1639. 51:22dealer who had enforcers to commit
1640. 51:23violent acts
1641. 51:25jerry stewardman fled the state jerry
1642. 51:28stewart changed his appearance had five
1643. 51:30different aliases owed a lot of money to
1644. 51:31you or a lot of money
1645. 51:33the confession was false because
1646. 51:37everything in it was only things that
1647. 51:39the pro the police saw that morning
1648. 51:41none of it proved up to any of the
1649. 51:43forensics none of the forensics proved
1650. 51:46anything
1651. 51:47mccready got witnesses to lie i mean all
1652. 51:50of a sudden when you start building
1653. 51:51all the evidence that we started to
1654. 51:53build after i was convicted
1655. 51:55through fall requests or civil rights
1656. 51:57cases
1657. 51:58um it's just even at the time we
1658. 52:01followed the 440
1659. 52:02we had criminal defense lawyers saying
1660. 52:04appoint a special prosecutor because
1661. 52:07there was a huge conflict because tom
1662. 52:08spoda who was the da back then
1663. 52:11had represented todd stewart in private
1664. 52:13practice
1665. 52:14you know what i think maybe hit the nail
1666. 52:16on the head maybe we should submit a
1667. 52:18foil request to the d.a
1668. 52:20when there's a case i'm being a little
1669. 52:22facetious now but but it's those kinds
1670. 52:24of things bring out things that you
1671. 52:25didn't know about or your attorney
1672. 52:27doesn't know about at the trial phase
1673. 52:29what what i
1674. 52:30advise people and i've done this for
1675. 52:32years now is that when you're
1676. 52:33represented by council
1677. 52:35have your lawyer do their normal
1678. 52:36discovery have them do foil
1679. 52:38and then have somebody outside of your
1680. 52:40inner circle a family member a friend
1681. 52:42can i do do a parallel foil because
1682. 52:46you don't know what's going to show up
1683. 52:48and i think also what ends up happening
1684. 52:50too is that there's a change of guard in
1685. 52:52the da's office when all of a sudden an
1686. 52:54employee leaves they may not be part of
1687. 52:56the good old boys network
1688. 52:57they may say you know what this is you
1689. 52:59know the defender should be entitled to
1690. 53:00this you get the records you get the
1691. 53:01record yeah
1692. 53:02gotta kind of wrap things up listen this
1693. 53:04was this was fascinating i'm gonna bring
1694. 53:05you on my radio show
1695. 53:07to continue if you have any specific
1696. 53:09cases you're working on i know i told
1697. 53:11jeffrey the same thing
1698. 53:12i like to find out how you guys dissect
1699. 53:15the case
1700. 53:16because it's easy someone could come in
1701. 53:17and say i'm innocent
1702. 53:19maybe maybe not but how you go through
1703. 53:21that so that's that that'll be a topic
1704. 53:22for another show that'll be great i
1705. 53:24actually would love that because in this
1706. 53:25last semester
1707. 53:26uh we actually just became co-counsel to
1708. 53:29one of our cases
1709. 53:30with the case in ohio i would love to
1710. 53:32i'd love to talk about that so
1711. 53:34just want to thank marty for coming in
1712. 53:35he it's like i said it's his third time
1713. 53:37on on my show
1714. 53:38it's always very very interesting it's
1715. 53:40fascinating because you get to
1716. 53:42to see how someone who went through the
1717. 53:45system
1718. 53:46and came out the other side and now he's
1719. 53:48an attorney
1720. 53:49um in fact you work for metcalfe for
1721. 53:51metcalf i work for mcafee
1722. 53:52i have a case with them right now do you
1723. 53:54yes uh i'm an adult professor at
1724. 53:56georgetown undergrad and i'm an
1725. 53:58also an adjunct professor at toro law
1726. 53:59school yes that's great so
1727. 54:01um again watch my radio show which is on
1728. 54:03every monday
1729. 54:04at five o'clock uh 1039 fml news radio
1730. 54:07this show is on every saturday
1731. 54:09at 10 a.m channel 115. i wrote a book we
1732. 54:12don't have a lot of time i wrote a book
1733. 54:13called
1734. 54:14divorce a practical guide a great read
1735. 54:15you can go to my website
1736. 54:17justinolaw.com or you can call me
1737. 54:23take 631-588-3155
1738. 54:24[Music]
1739. 54:50so
1740. 55:03[Music]
1741. 55:19you