July 14, 2021 • 44 mins
Joe Bryan was a high school principal, and his wife Mickey Bryan was a 4th-grade teacher in the small town of Clifton, TX. On Tuesday, October 15th, 1985, Mickey did not show up for work. Her body was discovered later that day in her bedroom. Joe was 120 miles away in Austin at a conference at that time. Prosecutors came up with a theory that Joe drove back to Clifton, killed his wife, and returned to Austin, using the conference as an alibi. He was convicted with "bloodstain analysis" which was later exposed to be wholly unreliable.
For more on the junk science of bloodstain analysis check out Wrongful Conviction: Junk Science - Bloodstain Pattern Evidence with host Josh Dubin, released on August 10, 2020. https://www.wrongfulconvictionpodcast.com/podcast/s11e14-wrongful-conviction-junk-science-bloodstain-pattern-evidence
Learn more and get involved at:
https://innocencetexas.org/
https://www.propublica.org/article/texas-forensic-science-commission-blood-spatter-evidence-testimony-murder-case-joe-bryan
https://www.wrongfulconvictionpodcast.com/with-jason-flom
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Episode Transcript
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Speaker 1 (00:02):
Beloved couple Joe and Mickey Brian, who had no children
of their own, instead dedicated their lives to educate the
children of Clifton, Texas. But while Joe attended an annual
high school principal conference a hundred and twenty miles away
in Austin, tragedy struck on October fifteenth, after Mickey did
not arrive at her fourth grade classroom and could not
(00:23):
be reached, her principle went to the Brian home with
Mickey's parents and found a gruesome crime scene. Gunshots had
spattered the walls, ceiling, and betting with Mickey's blood, and
friends drove a distraught Joe Brian home from Austin. There
were no witnesses, a missing gun and jewelry, a cigarette,
but in a non smoking home, it looked like a
(00:46):
burglary gone bad until Mickey's brother Charlie borrowed Joe's car
while home for the funeral and allegedly found a flashlight
in the trunk that tested positive for a few specs
of the most common blood type TYPO, same as Mickey's.
The sheer absurdity of Joe racing from Austin to Clifton
(01:07):
and back unseen, free and physical evidence, and without a motive,
was overcome by this one object that was found outside
of the crime scene, in a car that was not
in Joe's possession. Despite DNA testing that cast out on
the flashlights connection to the crime scene, and evidence that
pointed squarely at a murderous police officer who later took
(01:30):
his own life, Joe Bryant had to wait thirty five
long years for parole to finally set him free. This
is wrongful conviction with Jason Flom. Welcome back to wrongful
(01:54):
conviction with Jason Flam. That's me, of course, I'm your host.
And two and a half years ago I read a
profoundly troubling series of articles in The New York Times,
originally published in pro public on my Pam Koloff about
the astounding case of Joe Brian, who served thirty five
years in prison in Texas for a crime there is
(02:15):
a zero percent possibility that he ever could have committed.
And you'll find out why as we go along. And
it has haunted me ever since that day, and so
I'm just deeply honored to have the man himself, Joe Brian,
all seventy nine years of age, of him Um with
(02:35):
us today on the show. So Joe, Um, you missed
it a year? Oh did I miss a year? Happy birthday?
Eight years old? The congratulations. Well, I'm sorry you're here
because of while you're here, but I'm very very happy
and honored that you're here and with Joe is a
renowned attorney Jesse Freud. Thank you also for being here
(02:59):
today on Rafa Viction. Thank you for including me. Appreciate it.
And I think this story is important for so many
reasons because if anyone the audience is thinking, well, that
could never happen to me, If it could happen to Joe,
it can happen to you. And what I mean by
that is, Joe, you lad not just an exemplary life,
but really a rich fulfilling life up until this happened.
(03:21):
And can you take us back all the way to
your childhood and how you grew up a small town
in Texas right, grew up in Waco, grew up on
a farm around animals and family, and headed absolutely wonderful
childhood Tendee Church regularly and looking back, I had very
idyllic life. And how did you find your way into
(03:42):
the field of education at which you excelled right, becoming
ultimately a really loved and revered educator in Clifton, Texas.
The principle of school, But how did you make your
decision to get into education? Always lacked school, but at
our church I started playing the piano full time when
(04:02):
I was thirteen, and our church and our song leader
was my principal at school, and I had tremendous respect
for him, and I guess you could say that he
is instrumental in guiding him in that direction. So I've
always lived and breathed and thought education. Mickey and I
were unfortunate enough not to be able to have children.
(04:24):
We both lived and breathed education. I helped her with
her lesson plans, with grading papers. We would discuss teaching
objectives and goes and how to reach them. Then it
was great, It sounds like it was. And from what
I understand, the high school, middle and elementary schools were
all in the same campus, and you were the high
(04:45):
school principal and Mickey was the fourth grade teacher, and
the two of you were obviously well known in the
small town of Clifton, having had a hand in the
education of so many of the people there. So your
shared deducation had made you two revered by parents and
students alike, which brings me back to my point that
if a beloved figure like yourself, who was leading an upstanding,
(05:06):
fulfilling life, if this could happen to you, then nobody
out there is safe because it could happen to anyone.
And that brings me to the next part of your story,
which of course is October. Now, you were out of
town at an annual Texas Secondary School's Principles conference a
hundred and twenty miles away in Austin, Texas, and this
(05:29):
is a conference would attended for the previous fourteen years.
Mickey had seen her parents, Otis and Fear of Blue
that afternoon, as well as spoken to you as you
graded papers and watch the c m as in your
hotel room the Country Music Awards in Austin around nine
pm that night. So now the following day, October five, Mickey,
who was usually the first one to arrive at school,
(05:51):
never did. The elementary school principal, Rex Daniels, was obviously concerned,
so he called your home and got no answer. So,
knowing that you were in Austin, he called Mickey's parents,
Otis and Vera who met him at your home with
the spare Key and her mother, And this gives me
the chills. Was the first to see the horrific and
(06:13):
bloody crime scene in your bedroom. Her daughter's body, Mickey's
body laid across the length of the bed. Her night
gown was drawn up to her thighs, she was undressed
from the waist down, and blood was spattered on the bed,
the ceiling, and all four walls from apparent gunshots to
the head and abdomen. And at this point Rex led
(06:35):
the blues Otis e Vera to the living room where
they called the police. And then, of course Joe, you
received that awful, awful news. So Joe is alerted to
the discovery of her body and to what happened to her.
While he is in Austin, several friends from Clifton drive
down to get him because of the distraught state he
(06:57):
was in, and drive him back to Clifton. So the
Texas Rangers led this investigation, as they often did in
world towns like Clifton, and Texas Ranger Joe Wiley interviewed you, Joe,
and you answered all the questions, telling them about the
three fifty seven loaded with bird shot that you kept
in the bedroom, as well as a cash box under
(07:18):
the bed that usually held around a thousand dollars. Both
of them were reported missing at the time, as we're
Mickey's watch, wedding band, and diamond ring. There were no witnesses,
no neighbors reported hearing anything, no obvious signs of fourth entry,
no bloody fingerprints, No semen found the rape kits, so
there was very little for the rangers to go on. Oddly,
(07:39):
a cigarette, though, was found on the kitchen floor. Now
this is important because Mickey didn't smoke, and neither did you.
Joe looked like a burglary gone bed. Now, Mickey's brother,
Charlie Blue, was the vice president an agrochemical firm out
of Florida. He came to town with the investigator that
the company kept on retainer, an x FBI agent named
(07:59):
Bud Saunders. Now, while Charlie was in town from Mickey's funeral,
Joe lent Charlie his car, and somewhere along the few
days in which the car was in Charlie's possession, a
flashlight with reddish brown specs was allegedly spontaneously found in
the trunk of the car, and so Joe's car is
(08:21):
out of his possession for a period of about five days,
and then the flashlight had discovered when the car is
in Joe's brother in law's possession. So the tipping point
for and really the only point that supported Joe's arrest,
was the discovery of the flashlight in his car, and
later DNA testing cast out on whether this flashlight was
(08:42):
every even at the crime scene at all. But nevertheless,
unbeknownst to Joe at the time, a search warrant of
the car was executed and the flashlight was sent to
the state crime lab. Now this so there was no
DNA testing, just prology, and the testing done at the
time determined that some of us back actually were blood
the most common blood type type OH, which also happened
(09:04):
to be Mickey's blood type. Now, those speckles were found
on an object that was not found at the crime scene,
but in one of the couple's two cars, which was
curiously not in Joe's possession when the flashlight was allegedly found.
Buying you, if Joe had committed this crime, would he
(09:26):
be using a flashlight to find his way around his
own home to sneak up on his own wife. I mean,
the state's theory is absolutely ridiculous, and this is just
one of the many reasons why. So the car was
not impounded, but rather released to Charlie Blue, who left
it in Joe's driveway. So Joe has no idea that
(09:50):
his car has been searched. And this flashlight is the
crux of the state's case, supported by a few other
pieces of extremely dubious evidence. So their case really rested
on four facts. Um. The first and most important was
the discovery of the flashlight. The second was a pair
(10:12):
of what they said, we're semen stained underwear discovered in
Mickey and Joe's bathroom. Um that at the time, in
the eighties, they had said tested presumptively positive for the
presence of semen, and that was Joe's blood type. And
I mean it's his house, So to find what maybe
Joe's bodily fluids in his own home doesn't really implicate him.
(10:36):
I mean, it would incriminate an intruder, but it's his
freaking house anyway. Continue, So we got flashlight underwear, a
explanation that Joe had given regarding opportunities for when the
keys to his vehicle were out of his possession um
and then the final point was the discovery of money
(11:00):
in the trunk of his car following its return to
him from his brother in law. So the money that
was initially reported missing from the cash box under the
bed didn't turn up when the search of the car
was conducted either, but rather Joe reported finding the cash
after the fact. It was eight hundred and fifty dollars
of the usual one thousand, and Joe reported this to
(11:21):
the authorities, remembering that he and Mickey had taken the
money to go shopping and wake up, and somehow they
were like, wait, maybe he's hiding something, And so they
try to use this to show motive that Joe wanted
to either steal from his wife right or that he
initially hit the cash to make it seem like there
(11:42):
was a robbery. But neither of those theories holds any
water whatsoever. I mean, he'd either be robbing himself because
they're married, or if he wanted the crime scene to
look like a robbery. Why in the world would he
then tell the authorities about discovering the money. It makes
(12:02):
no fucking sense whatsoever. He would have just kept it
to himself. And so the state's theory of the case
was that Joe had slipped out of his Austin hotel,
driven home, let himself into his house with his key,
shot mickey with the gun that they had kept by
their bed, cleaned himself up after getting her blood all
(12:23):
over him, changed clothes and shoes, and drove back to
his hotel room in Austin, cleaned up again, and made
it to his morning teachers conference meeting. So that's the
state's theory, right, And this is a fantastical theory on
so many levels. No one saw him do any of
these things, right. No one saw him leave a hotel,
(12:46):
no one saw him stopped for gas, and it was
pouring rain that night, and no one saw him soaking
wet coming or going. And Joe had a condition, right,
immaculate condition, which meant that he couldn't drive at night anyway,
you couldn't see to drive at night. And there was
no physical evidence that any of the things that the
police said happened actually happened. It's nonsensical, and it wasn't
(13:09):
just the fact that he was a hundred and twenty
miles away and couldn't have realistically gone there and back
without being seen unless he was some sort of ghost,
but also the idea that he would have had to
magically been able to make all this blood disappear from
his body and none of make his blood got into
the car either, that he allegedly drove back to Austin
that night except for the phantom flashlight that, if we're
(13:31):
to believe the state's theory, he just totally fucked up
and absent mindedly left it in the trunk while he
meticulously managed to scrub everything else like some master crime
scene manipulator, right, and then not to mention he had
no motive. In fact, the opposite is true. They loved
each other very much and everybody knew it. It wasn't
(13:51):
a troubled marriage as we sometimes see. And just to
the point of motive really quick um. The first trial
was actually reversed for an improper insinuation that there was
any financial motive for Joe to kill Mickey, and his
defense attorneys tried to respond to that inaccuracy, they were
denied by the trial court the right to do so.
(14:13):
And that's actually the reason why Joe's case was reversed
the first time, and why he was retribed so correct.
There was never a motive established, and by the second trial,
the state concedes that and talks to the jury panel
about can you convict if we can't tell you what
the motive is. So they were absolutely clear by the
time the second trial rolls around that there was no
(14:35):
motive because this didn't happen, right, And you know, it
gets worse when you start to see the way that
they smeared his character. And of course it's a very
contemporaneous story when we come to find out later that
in fact, the logical suspect and somebody who they knew
to be the logical suspect at the time was in
fact one of their own It was a police officer.
(14:57):
Because we cannot leave out at this this is a
small town of Clifton, Texas, and this was the second
murder and unsolved for the time being in a very
short period of time. And of course we know how
that works, right, that creates the pressure. And so Joe,
do you mind telling us about that murder and how
that played a role in your wrongful conviction? Judy Whitley
(15:20):
and high school student was murdered. They didn't know who
did it. There were suspicions but no facts. People are
alarmed that this could happen in our community to high
school child. So the police department, so to speak, is
put under a lot of pressure to find whoever killed
Judy Whitley. Well, my opinion, based on what I know
(15:43):
now is that Dennis Dunlap did it. Jesse, This Dennis
Dunlap character is a very troubling and profound example of
how the sort of blue wall protects itself. So tell
us about that this Dunlap and what his role was
in these two cases. So, Dennis Dunlop was a member
(16:06):
of the Clifton Police Department in and he was originally
a suspect in the Judy Whitley case, and that was
because he had a connection to Judy's family and suspicious
items found in his possession after he eventually leaves the
police department at the direction of the then Clifton Police chief.
(16:29):
And this was a situation where he tried to be
very involved from the get go. I don't think that's
very uncommon for actual perpetrators to try and find out
as much information as they can about the crime that
they did commit. He attracts understandable suspicion, and from what
we can tell based on records at the time, he
was encouraged by the then police chief to leave the
(16:53):
community because of all of the suspicion growing around him
and how it did look even back then that he
was a good, strong suspect for the death of Judy Whitley.
So he leaves the community, and we have so much
evidence now that this Dunlap character he almost certainly killed
in as Whitley, but also most likely was the murder
(17:14):
in this case. He of course took his own life
right and after Dennis Dunlap commits suicide on the front
page of the Clifton Record, the Clifton Police Department in
announces that they've solved the Judy Whitley case and that
Dennis Dunlap was responsible. But Joe doesn't get access to
(17:34):
that information beyond what's publicly reported until it's not until
late that we won going through old files discover that
while he did leave the department, he did not leave
the area. He was reported to be in the Waco
(17:55):
Clifton area the day that Vicky was murdered. Law enforcement
knew it, and in his ex wife gives an interview
to the Texas Rangers, as well as the then Clifton
Police chief and Dennis's ex wife says that Dennis did
admit to her that he was with Mickey the night
(18:17):
she was killed. Of course, when Mickey got killed at
everybody was shocked. She was very she was very popular
grown up there, highly respected people wanted an answer. Them
wanted to who killed Judy Whitley, and they wanted to
who killed Nikki in the place. Under a great deal
(18:39):
of pressure, I think jumped on the first wagon they
could jump on. They got what they wanted, that solved
the case, so the pressure was off. Dennis destroyed Mickey's
life and they destroyed my life. This episode is underwritten
(19:06):
by Paul Weiss Rifkin, Wharton and Garrison, a leading international
law fer. Paul Weiss has long had an unwavering commitment
to providing impactful, pro bono legal assistance to the most
vulnerable members of our society and in support of the
public interest, including extensive work in the criminal justice area.
(19:32):
I mean we could spend this entire podcast talking about
all the different pieces of exculpatory evidence. There was a
cigarette but found in in the house. Neither Joe nor
making smoked. Right. There was the fact that he was
a hundred and twenty miles away. We've talked about that already.
They can't get me there. We proved the molo joan
our car. We proved were about guestoline. Right. That was
(19:53):
the fact that the flashlight wasn't found at the crime scene.
It was found in the trunk of the car. That
wasn't in Joe's posession for several days. In fact, it
was in the possession of somebody who we know. Light
on the stand the fact that there was another likely
or even obvious suspect, and they pushed it under the rug,
and there was the absence of any blood anywhere on Joe,
around Joe in his car, you know. So supposedly this
(20:16):
flashlight somehow was the only blood. So they wanted us
to believe that he was holding the flashlight in one
hand while shooting the gun with the other hand in
his own home and in his own right, because he
didn't know the way around his own little home, right,
It wasn't like he lived in of all of all
the things, right, you need a flashlight in your own home, right,
But then he would have cleaned up every single trace
of blood from everything right, and then somehow or other
(20:41):
spaced out and thrown this flashlight that had this tiny microscope.
And then we get to the blood spatter, right of
all the junk sciences, and you know, we have a
whole show devoted to junk science. You know, blood spatter
is a quote unquote scientific protocol which is used in
courtrooms all over this country and as far back as
Joe's trial eight five, probably further than that. It is
(21:02):
a nonsensical practice in which these Charlottean's posing as scientists,
pretend to be able to know by examining blood, as
in Joe's case, where they just examined an empty room
with blood all over it, and we're magically able to
tell you what happened in there. You might as well
(21:23):
just bring in a psychic while you're at it. But
this practice is taught in a forty hour course that
I don't know if anyone's ever failed. You just pay
the money, you go take your forty hour course. If
you failed, to give you your certificate anyway. In fact,
so it doesn't matter if you fail, and then you
can go testify in court as a supposed expert, and
so talk to us Jesse, please about blood spatter and
(21:48):
how it played a role in Joe's case. Specifically, blood
stay pattern analysis is the scientific study of the static
consequences resulting from dynamic blood shedding events, and it involves
detecting and describing and analyzing the size, shape, distribution, number, location,
(22:09):
and pattern of blood stains, as well as the nature
of their target surfaces and the relationship among various stains
in a particular scene. So as I understand it, and
this is really mostly from preparing for the evidentiary hearing
in Joe's case, is that blood stain pattern analysis is
based in accepted and proven sciences. The problem with it
(22:35):
is what you said, which is the training of practitioners
and using it properly within its correct limits. And that's
what happened here with detective Forman, a purported practitioner whose
training was a single forty hour course, and the practitioner
(22:56):
admitted that this was the first major complex san he
had analyzed as a supposedly certified practitioner, who between our
evidentiary hearing did eventually recant and admit that his methodologies
(23:16):
and application were mostly incorrect and admitted that then a
lot of his conclusions in testimony was incorrect, and so,
like we talked about at the beginning, what was the
state's theory and why is blood stain pattern analysis? Why
was it important to the States securing a conviction twice
against Joe? And it was used to explain why there
(23:40):
was no physical evidence, Like you said, what was connecting him.
The flashlight was discovered in complete isolation, with no context
away from the crime scene. His car was clean. There's
never anything on him physically discovered, not in his hotel room,
not on his person later. And so the blood stain
pattern analysis proffered eye Detective Foreman was used to fill
(24:02):
the very clear gaps in the state's case and to
make an impossible theory of the case seem. Yeah, I
just want to quote from Pam Koloff's a wonderful article.
But she actually went to her great credit to Yukon, Oklahoma,
where she participated in one of these classes that she
paid six and something dollars for, and she talks about
(24:27):
I'm just going to quote now, armed with calipers, scientific calculators,
and string we measured bloodstains, plugged our data into equations,
and tried to trace the trajectories of individual droplets back
towards their source. As was true with pattern classification, there
were many ways to get this wrong. Small deviations with
the calipers resulted in markedly different results. Still, Griffin, who
(24:47):
was the instructor, had us pressed forward. He said, quote,
we're not really going to focus on the math and physics.
It just kind of bogs things down. Uh, that's me
editorial lizing what okay? He told us. She goes on
to say at the outset, quote, I'll teach you which
keys on your calculator to press. It's not it's unbelievable,
(25:11):
and then back to Pam. It was upon this shaky
foundation that Thorman had tried to reverse engineer the shooting
at the Brian home. Looking over report one night back
at my hotel, I could see where his analysis went awry.
According to his report, he believed he was determining the
alleged height from which the shots were fired, a conclusion
his data could not yield. I began to wonder if
(25:31):
his assessment of the flashlight, too, was faulty when he
asserted that the blood on the lens was back spatter
from a close range shooting. Now it goes on because
they teach you in this class as well, how to
present testimony as if you're an expert. It's basically teach
you how to act in court, to pretend better that
(25:51):
you actually know what you're talking about, and to be
more persuasive, and how to be able to dodge questions
from you know, quality defense attorney. I mean, let's face it,
not too many of these blood spattered people come in
and testify for the defense. So they're teaching you, in essence,
how to frame people. And that's exactly what they did
(26:12):
in Joe's case, and it makes me sick. It's, I think,
a perfect example of a situation where juries trust the
prosecutors in their community and they trust law enforcement. And
Joe's case, sadly isn't the only example of this. When
prosecutors go to juries and paint a picture using like
(26:36):
Joe said, fabricated evidence and an impossible narrative and show
them awful photos of a crime that clearly did happen,
and asked them to say, okay, either don't hold somebody
responsible or hold somebody responsible, right, and especially in the
context of what this community had just gone through, like
you just said, with the loss of Judy Whitley just
(26:57):
a few months prior and then the loss of Mickey
and her brother in particular paid a special prosecutor to
prosecute Joe. And so you've got somebody who's got a
financial incentive to get a conviction, and you have a
jury who's being told about that financial arrangement, right that
knows this is what the victims family paid for. This
(27:18):
is clearly what they believe. What jury was going to
let him walk out of a courtroom. There just wasn't
in any jurisdiction in night six and eighty nine that
just sadly wasn't going to happen. So with this nonsensical
blood spatter analysis and this flashlight that wasn't even found
at the crime scene as the big smoking gun, and
(27:40):
then the assassinations on his character, it was a almost
a foregone conclusion. So can you take us back to
that moment when the judge read the verdict. Well, it's
very unreal. You already know your laugh has changed forever
because of everything that's already happened. But then now people
are gonna look at you like you orderer, and I'm
(28:01):
going to end up at prison. There's something I didn't
do and I'm gonna have to fight every day to
maintain my personal integrity. You think, how can people do this?
But what is really troubling is that you know that
people know that what they've done is not right, and
they don't have any trouble doing what's wrong. Everything that
(28:39):
happened really hurts. I just don't go there very often.
But God has a purpose for each of us. And
when I was first went to prison, I was very
angry with God and did not go to church. I
didn't tell anybody I was a Christian or they even
(29:00):
played the piano. And after I'd been there, probably eight weeks,
the chaplain told me that I understand that you play
the piano and that you're Christian, and I said, how
do you know I haven't told anybody. Well, he wanted
to hear me play the piano, so we went into
chapel and I said, what do you want to hear?
(29:22):
And he told me and I played the songs. When
we went back to the chapel, and he asked if
I would play the piano for the chapel services and
I said, no, I will not, and I told him
I was mad at God, And I said, but how
did you know that I was a Christian, that I
played the piano. And he comes up with a letter
from my high school principle when I grew up, who
(29:45):
led the singing at the church where I played, And
he told Chaplain Pickett, I've done Joe since he was five.
I believe he's innocent. I know he's hurt, and if
you can get him to play the piano for your
church services, you'll be blessed and it will help him.
And I told him I'm not playing in that wise.
(30:06):
Chaplain told me, well, you think about it tonight and
you let me know in the morning. I got zero
sleep that night because God was all over me, saying,
you know, so to speak. Who do you think gave
you that skill? I did. I want you to use
it for me. So the next morning I called Chaplain
(30:29):
pick It and told him I would play for the
chapel services. And he says, good, we acquire practice today
two o'clock. And I was in and busy for the
rest of my stay. So we can do anything through Christ.
And when I asked God for peace, he gave me peace. Well,
I'm glad that you found that, and I'm glad you're
(30:52):
here today. Because you are a living testament to the
human spirits. So um yeah, So then here we are.
You've now been sentenced to nine years in prison right
with love life sentence because no one's ever lived that long,
and you know you weren't going to be the first
um again to me the idea that you're still here
(31:14):
with with you know, three brain cells to rub together
and be able to sit up right and have a
laugh and have a smile on your face. It's it's inspiring,
it's um you know, It's what I'll tell you right now.
For those of us to do this work, it's what
drives us forward is knowing that there are people like
you who have this otherworldly uh you know, courage is
(31:38):
the best way I can and grace and perseverance. You know,
when I pick up this case in November as a
law student, it's my whole life. Like my whole life,
Joe had been fighting this fight, and it's an unbelievable
set of strength and endurance to maintain your innocence and
(31:59):
keep fighting for that period of time. It's unbelievable. And
most people give up, right, we know, innocent people plead guilty,
and innocent people end up giving up just to move
on with their lives, and the fact that he hasn't,
I think just speaks so much to the character that
everybody in that community knows he has and knew he had,
and just his spirit, which brings us to that long,
(32:22):
long fight, the post conviction litigation, and all the things
that were discovered along the way, not to mention what
was already known which should have kept them from ever
even bringing Joe to trial. I mean, the sheer breath
of this, it's insane to believe that none of it
was enough to spring him out of there with the
state acknowledging his actual innocence. And I'm going to just
(32:44):
list some of it now, Right, So, no one saw
Joe leave the hotel in Austin, and no one saw
him back in Clifton. I mean, it's a hundred and
twenty mile journey. He would have had to stop for
gas at some point, right, And then the mileage on
Joe's car proved that he didn't not make the journey
back and forth to Austin. According to the state's own admission,
(33:04):
he had no motive to kill Mickey, So all that
nonsense about the cash or stage robbery was just nonsense.
And then Dennis Dunlap, okay, the main suspect in Judy
Whitley's murder who was forced out of Clifton p D
as a result, and who they laid blame for it
on after he killed himself. But only after he killed
(33:25):
himself his wife told the rangers and the Clifton police
chief in that Dunlap admitted to being with Mickey on
the night she was killed. I mean, what the funk?
And he doesn't get to learn about that from until
two thousand and twelve when they finally released these documents
to him. So thirty five long years rolled by with
(33:47):
no one acknowledging his innocence because of this flashlight that
wasn't even found at the crime scene, but rather was
found in the car, that wasn't in Joe's possession or control.
Rather it was in the possession of the man that
brought an investigator to his own sister's funeral and paid
a special prosecutor to make sure that they nailed Joe.
(34:11):
But Jesse DNA testing was finally done on that flashlight
in two thousand eighteen, testing that wasn't available in hadn't
been invented yet. What did they find out? Yeah, So,
I think the simplest ways. The question that was asked
at the evident you're hearing, which is, can the State
of Texas prove that Mickey's DNA is on that flashlight?
And the answer to that question by the states analyst was, now,
(34:34):
there's two results from a set of DNA testing. One
was on the lens of the flashlight that was an
inconclusive result, and then there was a DNA test of
the swab from the handle and the power button of
the flashlight that excluded him and Mickey. So does modern
testing prove that Mickey's DNA is on that flashlight? And
the answer to that is new. So there was type
(34:55):
OH blood, the most common blood type, on this flashlight,
but not necessary early from the crime seat. That would
be our position. The state's position would obviously be different,
but modern testing cannot corroborate the state's position. And add
that conclusion to the already patently ridiculous theory of this
crime and what was discovered about Dunlap, and it's all
(35:17):
just becomes very hard to swallow that it took this
long for you, Joe, to finally be free, but all
appeals were exhausted, and then despite an exemplary disciplinary record,
you're involved in the chapel, playing piano, tutoring. The parole
board denied you seven times? Is that right? Seven times?
(35:37):
You and so your patients has tried and tried and tried.
But finally, Joe, finally you were freed, Um just a
short while ago. And what was that like? I mean, well,
there are mini tears. You're so thankful to be out,
and it's beautiful to see people who care for you
(35:59):
and love you for you up there when you get outside.
Jesse was one of those waiting, along with my family
and other people who were interested in my case. Uh,
A lot of people could not be there, and it
was understandable. It's right at the beginning of Corona. It
(36:21):
was because a couple of weeks after the world shut down. Yes,
absolutely wonderful though to be able to hug your family
and to get into the vehicle and go home. The
young lady that we're watching right now is very instrumental well,
and it's not definitely not only me, Um Walter. I
(36:45):
know that Walter in Leon and Allison and Ye Shay
and Alan Um. Joe has wonderful parole lawyers. Again, Joe
is not free like we just talked about because the
courts did their thing. Joe's free because thankfully he had
parole lawyers that were able to explain the circumstances to
(37:07):
the parole board in a way that clearly made sense.
And so they are really the heroes. Thank God, I'm home.
My brother and his wife had provided a home for me,
and I am just fabulously grateful and it's encouraging, very
humbling what others have done to help me. I know
(37:29):
I speak on behalf of all of your supporters when
I say that we wish you every blessing that life
has to offer. Um, I hope you lived to be
eighty and that uh that you can enjoy every moment
of it. And we now have the closing segment of
the show, which I think our audience has come to
(37:51):
really expect and appreciate. I know, I it's my favorite
part of the show because this is the part where
again I thank you two amazing human being beings, UM,
Jesse Freud and Joe Brian for for being here with
me and sharing your stories. And then I get to
turn my microphone off and leave yours on for a
(38:12):
segment of the show we call closing arguments, and it
works like this. We're gonna start with Jesse. We're gonna
save all due respect Jesse, We're gonna save the best
for last. The floor is yours, Jesse. Please just tell
us whatever you got and then pass the mic off
to Joe. I almost feel so unoriginal because I think
I'm gonna end where you started, which is what can
(38:32):
listeners learn from what happened to Joe? And obviously the
injustice also that happened to Mickey, which and that still
remains the wrong person, Um is still being legally held
accountable for killing Mickey, and so that is a horrible injustice.
And so what can the public learn from that? And
(38:55):
I think the first thing is what you said, which is,
if this can happen to Joe, Brian, this can happen
to anyone. And I remember as a law student when
I became fascinated with this case before I even got
to know Joe. It really struck me that this is
a case that can make people think that the problems
of the criminal justice system, if they think those don't
(39:15):
apply to them, after learning about what happened to Joe,
they should think that these things apply to them. And
so I hate that the injustice that remains for the
wrong person being held accountable for Mickey's murder, and I
hate that Joe's life was likewise stolen from him. But
I hope what we can all as a society learn
(39:35):
from that, which is cops and prosecutors or people too,
and when they come before twelve random folks in a
jury and they're asking members of the community to do something,
have the courage to think critically about what you're being
asked to do and truly hold the state to their burden.
I think our community can do what sometimes and sadly
(39:57):
cops and prosecutors don't do, which have the courage to
say this isn't enough and we're not going to have
two loss of lives because that's what we've got here.
Mickey's life was taken and Joe's life was taken, and
that is preventable. This was preventable. Our courts had an
opportunity to fix it and refuse to do so. And
so America can learn something from what happened to Joe
(40:20):
and Mickey. It's go be good. Jurors, hold the state
to their burden, um and have the courage to fight
injustice from the jury box. Joe, over to you. Number one.
I still respect law enforcement. I still respect courts and
judges and district attorneys. What I want them to do
(40:44):
is to work for justice, not conviction. If conviction is
a part of that justice, then so be it. But
if you're proven later that your decision was wrong after conviction,
be man or a woman enough or judge enough or
whatever enough of a person say hey, we mess this
(41:06):
up and we need to correct it. Don't just stick
your head in the sand and say that's not what
I want to hear, and we're not going to change
our opinion. Because even in in our discovery hearings, the
judge had them test the flashlight again for the third
or fourth time, and the state's lab came back with
(41:28):
the report was and he said, there's two DNA profiles
on the flash light. One is not Mickey Bryan and
one is not Joe Brian. So whose DNA is on
that flash light? And that was to me a key
point and evidence they used against me, just like they said,
(41:50):
you know, there's seemen on the underwear, and then when
they were DN they tasted there's no seemen there. So
who's lying? When did the last start? Who did it?
And who backed up who in protecting that person's decision?
Why are we not looking for the truth. And if
you think it can happen to you in America, you
are wrong. And it didn't happen to just the black
(42:12):
people either. It happens to white people too, and people
like Jesse and Walter in the Texas Innocence Project, and you, Jason,
who worked with the Innocence people. If it weren't for you,
we would have no hope. I sleep well at night
because I'm innocent and I'm honest. I'm not perfect. But
(42:34):
Mickey was my wife, and I loved her and I
cherished her, I respected her, and I miss her, and
I wish her family we'd be just as concerned about
who actually killed her as we are, and I wish they.
(42:55):
You know, hey, look, maybe we maybe we were misled,
maybe we were used in that conviction process that somebody
else won't it And we can do anything through Jesus Christ.
I'm still living with him every day and I'm still
relying on him to give me the strength and the hope,
(43:15):
and I still on naving trouble going sleep at night.
Thank you for listening to Wrongful Conviction with Jason Flam.
Please support your local innocence projects and go to the
link in our bio to see how you can help.
I'd like to thank our production team Connor Hall, Jeff
(43:37):
Clyburne and Kevin Warnas. The music on the show, as always,
is by three time OSCAR nominated composer and Jay Ralph.
Be sure to follow us on Instagram at Wrongful Conviction
and on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with
Jason Flam is a production of Lava for Good Podcasts
in association with Signal Company Number one, n The Way,
(44:02):
the Boy
Beloved couple Joe and Mickey Brian, who had no children
of their own, instead dedicated their lives to educate the
children of Clifton, Texas. But while Joe attended an annual
high school principal conference a hundred and twenty miles away
in Austin, tragedy struck on October fifteenth, after Mickey did
not arrive at her fourth grade classroom and could not
(00:23):
be reached, her principle went to the Brian home with
Mickey's parents and found a gruesome crime scene. Gunshots had
spattered the walls, ceiling, and betting with Mickey's blood, and
friends drove a distraught Joe Brian home from Austin. There
were no witnesses, a missing gun and jewelry, a cigarette,
but in a non smoking home, it looked like a
(00:46):
burglary gone bad until Mickey's brother Charlie borrowed Joe's car
while home for the funeral and allegedly found a flashlight
in the trunk that tested positive for a few specs
of the most common blood type TYPO, same as Mickey's.
The sheer absurdity of Joe racing from Austin to Clifton
(01:07):
and back unseen, free and physical evidence, and without a motive,
was overcome by this one object that was found outside
of the crime scene, in a car that was not
in Joe's possession. Despite DNA testing that cast out on
the flashlights connection to the crime scene, and evidence that
pointed squarely at a murderous police officer who later took
(01:30):
his own life, Joe Bryant had to wait thirty five
long years for parole to finally set him free. This
is wrongful conviction with Jason Flom. Welcome back to wrongful
(01:54):
conviction with Jason Flam. That's me, of course, I'm your host.
And two and a half years ago I read a
profoundly troubling series of articles in The New York Times,
originally published in pro public on my Pam Koloff about
the astounding case of Joe Brian, who served thirty five
years in prison in Texas for a crime there is
(02:15):
a zero percent possibility that he ever could have committed.
And you'll find out why as we go along. And
it has haunted me ever since that day, and so
I'm just deeply honored to have the man himself, Joe Brian,
all seventy nine years of age, of him Um with
(02:35):
us today on the show. So Joe, Um, you missed
it a year? Oh did I miss a year? Happy birthday?
Eight years old? The congratulations. Well, I'm sorry you're here
because of while you're here, but I'm very very happy
and honored that you're here and with Joe is a
renowned attorney Jesse Freud. Thank you also for being here
(02:59):
today on Rafa Viction. Thank you for including me. Appreciate it.
And I think this story is important for so many
reasons because if anyone the audience is thinking, well, that
could never happen to me, If it could happen to Joe,
it can happen to you. And what I mean by
that is, Joe, you lad not just an exemplary life,
but really a rich fulfilling life up until this happened.
(03:21):
And can you take us back all the way to
your childhood and how you grew up a small town
in Texas right, grew up in Waco, grew up on
a farm around animals and family, and headed absolutely wonderful
childhood Tendee Church regularly and looking back, I had very
idyllic life. And how did you find your way into
(03:42):
the field of education at which you excelled right, becoming
ultimately a really loved and revered educator in Clifton, Texas.
The principle of school, But how did you make your
decision to get into education? Always lacked school, but at
our church I started playing the piano full time when
(04:02):
I was thirteen, and our church and our song leader
was my principal at school, and I had tremendous respect
for him, and I guess you could say that he
is instrumental in guiding him in that direction. So I've
always lived and breathed and thought education. Mickey and I
were unfortunate enough not to be able to have children.
(04:24):
We both lived and breathed education. I helped her with
her lesson plans, with grading papers. We would discuss teaching
objectives and goes and how to reach them. Then it
was great, It sounds like it was. And from what
I understand, the high school, middle and elementary schools were
all in the same campus, and you were the high
(04:45):
school principal and Mickey was the fourth grade teacher, and
the two of you were obviously well known in the
small town of Clifton, having had a hand in the
education of so many of the people there. So your
shared deducation had made you two revered by parents and
students alike, which brings me back to my point that
if a beloved figure like yourself, who was leading an upstanding,
(05:06):
fulfilling life, if this could happen to you, then nobody
out there is safe because it could happen to anyone.
And that brings me to the next part of your story,
which of course is October. Now, you were out of
town at an annual Texas Secondary School's Principles conference a
hundred and twenty miles away in Austin, Texas, and this
(05:29):
is a conference would attended for the previous fourteen years.
Mickey had seen her parents, Otis and Fear of Blue
that afternoon, as well as spoken to you as you
graded papers and watch the c m as in your
hotel room the Country Music Awards in Austin around nine
pm that night. So now the following day, October five, Mickey,
who was usually the first one to arrive at school,
(05:51):
never did. The elementary school principal, Rex Daniels, was obviously concerned,
so he called your home and got no answer. So,
knowing that you were in Austin, he called Mickey's parents,
Otis and Vera who met him at your home with
the spare Key and her mother, And this gives me
the chills. Was the first to see the horrific and
(06:13):
bloody crime scene in your bedroom. Her daughter's body, Mickey's
body laid across the length of the bed. Her night
gown was drawn up to her thighs, she was undressed
from the waist down, and blood was spattered on the bed,
the ceiling, and all four walls from apparent gunshots to
the head and abdomen. And at this point Rex led
(06:35):
the blues Otis e Vera to the living room where
they called the police. And then, of course Joe, you
received that awful, awful news. So Joe is alerted to
the discovery of her body and to what happened to her.
While he is in Austin, several friends from Clifton drive
down to get him because of the distraught state he
(06:57):
was in, and drive him back to Clifton. So the
Texas Rangers led this investigation, as they often did in
world towns like Clifton, and Texas Ranger Joe Wiley interviewed you, Joe,
and you answered all the questions, telling them about the
three fifty seven loaded with bird shot that you kept
in the bedroom, as well as a cash box under
(07:18):
the bed that usually held around a thousand dollars. Both
of them were reported missing at the time, as we're
Mickey's watch, wedding band, and diamond ring. There were no witnesses,
no neighbors reported hearing anything, no obvious signs of fourth entry,
no bloody fingerprints, No semen found the rape kits, so
there was very little for the rangers to go on. Oddly,
(07:39):
a cigarette, though, was found on the kitchen floor. Now
this is important because Mickey didn't smoke, and neither did you.
Joe looked like a burglary gone bed. Now, Mickey's brother,
Charlie Blue, was the vice president an agrochemical firm out
of Florida. He came to town with the investigator that
the company kept on retainer, an x FBI agent named
(07:59):
Bud Saunders. Now, while Charlie was in town from Mickey's funeral,
Joe lent Charlie his car, and somewhere along the few
days in which the car was in Charlie's possession, a
flashlight with reddish brown specs was allegedly spontaneously found in
the trunk of the car, and so Joe's car is
(08:21):
out of his possession for a period of about five days,
and then the flashlight had discovered when the car is
in Joe's brother in law's possession. So the tipping point
for and really the only point that supported Joe's arrest,
was the discovery of the flashlight in his car, and
later DNA testing cast out on whether this flashlight was
(08:42):
every even at the crime scene at all. But nevertheless,
unbeknownst to Joe at the time, a search warrant of
the car was executed and the flashlight was sent to
the state crime lab. Now this so there was no
DNA testing, just prology, and the testing done at the
time determined that some of us back actually were blood
the most common blood type type OH, which also happened
(09:04):
to be Mickey's blood type. Now, those speckles were found
on an object that was not found at the crime scene,
but in one of the couple's two cars, which was
curiously not in Joe's possession when the flashlight was allegedly found.
Buying you, if Joe had committed this crime, would he
(09:26):
be using a flashlight to find his way around his
own home to sneak up on his own wife. I mean,
the state's theory is absolutely ridiculous, and this is just
one of the many reasons why. So the car was
not impounded, but rather released to Charlie Blue, who left
it in Joe's driveway. So Joe has no idea that
(09:50):
his car has been searched. And this flashlight is the
crux of the state's case, supported by a few other
pieces of extremely dubious evidence. So their case really rested
on four facts. Um. The first and most important was
the discovery of the flashlight. The second was a pair
(10:12):
of what they said, we're semen stained underwear discovered in
Mickey and Joe's bathroom. Um that at the time, in
the eighties, they had said tested presumptively positive for the
presence of semen, and that was Joe's blood type. And
I mean it's his house, So to find what maybe
Joe's bodily fluids in his own home doesn't really implicate him.
(10:36):
I mean, it would incriminate an intruder, but it's his
freaking house anyway. Continue, So we got flashlight underwear, a
explanation that Joe had given regarding opportunities for when the
keys to his vehicle were out of his possession um
and then the final point was the discovery of money
(11:00):
in the trunk of his car following its return to
him from his brother in law. So the money that
was initially reported missing from the cash box under the
bed didn't turn up when the search of the car
was conducted either, but rather Joe reported finding the cash
after the fact. It was eight hundred and fifty dollars
of the usual one thousand, and Joe reported this to
(11:21):
the authorities, remembering that he and Mickey had taken the
money to go shopping and wake up, and somehow they
were like, wait, maybe he's hiding something, And so they
try to use this to show motive that Joe wanted
to either steal from his wife right or that he
initially hit the cash to make it seem like there
(11:42):
was a robbery. But neither of those theories holds any
water whatsoever. I mean, he'd either be robbing himself because
they're married, or if he wanted the crime scene to
look like a robbery. Why in the world would he
then tell the authorities about discovering the money. It makes
(12:02):
no fucking sense whatsoever. He would have just kept it
to himself. And so the state's theory of the case
was that Joe had slipped out of his Austin hotel,
driven home, let himself into his house with his key,
shot mickey with the gun that they had kept by
their bed, cleaned himself up after getting her blood all
(12:23):
over him, changed clothes and shoes, and drove back to
his hotel room in Austin, cleaned up again, and made
it to his morning teachers conference meeting. So that's the
state's theory, right, And this is a fantastical theory on
so many levels. No one saw him do any of
these things, right. No one saw him leave a hotel,
(12:46):
no one saw him stopped for gas, and it was
pouring rain that night, and no one saw him soaking
wet coming or going. And Joe had a condition, right,
immaculate condition, which meant that he couldn't drive at night anyway,
you couldn't see to drive at night. And there was
no physical evidence that any of the things that the
police said happened actually happened. It's nonsensical, and it wasn't
(13:09):
just the fact that he was a hundred and twenty
miles away and couldn't have realistically gone there and back
without being seen unless he was some sort of ghost,
but also the idea that he would have had to
magically been able to make all this blood disappear from
his body and none of make his blood got into
the car either, that he allegedly drove back to Austin
that night except for the phantom flashlight that, if we're
(13:31):
to believe the state's theory, he just totally fucked up
and absent mindedly left it in the trunk while he
meticulously managed to scrub everything else like some master crime
scene manipulator, right, and then not to mention he had
no motive. In fact, the opposite is true. They loved
each other very much and everybody knew it. It wasn't
(13:51):
a troubled marriage as we sometimes see. And just to
the point of motive really quick um. The first trial
was actually reversed for an improper insinuation that there was
any financial motive for Joe to kill Mickey, and his
defense attorneys tried to respond to that inaccuracy, they were
denied by the trial court the right to do so.
(14:13):
And that's actually the reason why Joe's case was reversed
the first time, and why he was retribed so correct.
There was never a motive established, and by the second trial,
the state concedes that and talks to the jury panel
about can you convict if we can't tell you what
the motive is. So they were absolutely clear by the
time the second trial rolls around that there was no
(14:35):
motive because this didn't happen, right, And you know, it
gets worse when you start to see the way that
they smeared his character. And of course it's a very
contemporaneous story when we come to find out later that
in fact, the logical suspect and somebody who they knew
to be the logical suspect at the time was in
fact one of their own It was a police officer.
(14:57):
Because we cannot leave out at this this is a
small town of Clifton, Texas, and this was the second
murder and unsolved for the time being in a very
short period of time. And of course we know how
that works, right, that creates the pressure. And so Joe,
do you mind telling us about that murder and how
that played a role in your wrongful conviction? Judy Whitley
(15:20):
and high school student was murdered. They didn't know who
did it. There were suspicions but no facts. People are
alarmed that this could happen in our community to high
school child. So the police department, so to speak, is
put under a lot of pressure to find whoever killed
Judy Whitley. Well, my opinion, based on what I know
(15:43):
now is that Dennis Dunlap did it. Jesse, This Dennis
Dunlap character is a very troubling and profound example of
how the sort of blue wall protects itself. So tell
us about that this Dunlap and what his role was
in these two cases. So, Dennis Dunlop was a member
(16:06):
of the Clifton Police Department in and he was originally
a suspect in the Judy Whitley case, and that was
because he had a connection to Judy's family and suspicious
items found in his possession after he eventually leaves the
police department at the direction of the then Clifton Police chief.
(16:29):
And this was a situation where he tried to be
very involved from the get go. I don't think that's
very uncommon for actual perpetrators to try and find out
as much information as they can about the crime that
they did commit. He attracts understandable suspicion, and from what
we can tell based on records at the time, he
was encouraged by the then police chief to leave the
(16:53):
community because of all of the suspicion growing around him
and how it did look even back then that he
was a good, strong suspect for the death of Judy Whitley.
So he leaves the community, and we have so much
evidence now that this Dunlap character he almost certainly killed
in as Whitley, but also most likely was the murder
(17:14):
in this case. He of course took his own life
right and after Dennis Dunlap commits suicide on the front
page of the Clifton Record, the Clifton Police Department in
announces that they've solved the Judy Whitley case and that
Dennis Dunlap was responsible. But Joe doesn't get access to
(17:34):
that information beyond what's publicly reported until it's not until
late that we won going through old files discover that
while he did leave the department, he did not leave
the area. He was reported to be in the Waco
(17:55):
Clifton area the day that Vicky was murdered. Law enforcement
knew it, and in his ex wife gives an interview
to the Texas Rangers, as well as the then Clifton
Police chief and Dennis's ex wife says that Dennis did
admit to her that he was with Mickey the night
(18:17):
she was killed. Of course, when Mickey got killed at
everybody was shocked. She was very she was very popular
grown up there, highly respected people wanted an answer. Them
wanted to who killed Judy Whitley, and they wanted to
who killed Nikki in the place. Under a great deal
(18:39):
of pressure, I think jumped on the first wagon they
could jump on. They got what they wanted, that solved
the case, so the pressure was off. Dennis destroyed Mickey's
life and they destroyed my life. This episode is underwritten
(19:06):
by Paul Weiss Rifkin, Wharton and Garrison, a leading international
law fer. Paul Weiss has long had an unwavering commitment
to providing impactful, pro bono legal assistance to the most
vulnerable members of our society and in support of the
public interest, including extensive work in the criminal justice area.
(19:32):
I mean we could spend this entire podcast talking about
all the different pieces of exculpatory evidence. There was a
cigarette but found in in the house. Neither Joe nor
making smoked. Right. There was the fact that he was
a hundred and twenty miles away. We've talked about that already.
They can't get me there. We proved the molo joan
our car. We proved were about guestoline. Right. That was
(19:53):
the fact that the flashlight wasn't found at the crime scene.
It was found in the trunk of the car. That
wasn't in Joe's posession for several days. In fact, it
was in the possession of somebody who we know. Light
on the stand the fact that there was another likely
or even obvious suspect, and they pushed it under the rug,
and there was the absence of any blood anywhere on Joe,
around Joe in his car, you know. So supposedly this
(20:16):
flashlight somehow was the only blood. So they wanted us
to believe that he was holding the flashlight in one
hand while shooting the gun with the other hand in
his own home and in his own right, because he
didn't know the way around his own little home, right,
It wasn't like he lived in of all of all
the things, right, you need a flashlight in your own home, right,
But then he would have cleaned up every single trace
of blood from everything right, and then somehow or other
(20:41):
spaced out and thrown this flashlight that had this tiny microscope.
And then we get to the blood spatter, right of
all the junk sciences, and you know, we have a
whole show devoted to junk science. You know, blood spatter
is a quote unquote scientific protocol which is used in
courtrooms all over this country and as far back as
Joe's trial eight five, probably further than that. It is
(21:02):
a nonsensical practice in which these Charlottean's posing as scientists,
pretend to be able to know by examining blood, as
in Joe's case, where they just examined an empty room
with blood all over it, and we're magically able to
tell you what happened in there. You might as well
(21:23):
just bring in a psychic while you're at it. But
this practice is taught in a forty hour course that
I don't know if anyone's ever failed. You just pay
the money, you go take your forty hour course. If
you failed, to give you your certificate anyway. In fact,
so it doesn't matter if you fail, and then you
can go testify in court as a supposed expert, and
so talk to us Jesse, please about blood spatter and
(21:48):
how it played a role in Joe's case. Specifically, blood
stay pattern analysis is the scientific study of the static
consequences resulting from dynamic blood shedding events, and it involves
detecting and describing and analyzing the size, shape, distribution, number, location,
(22:09):
and pattern of blood stains, as well as the nature
of their target surfaces and the relationship among various stains
in a particular scene. So as I understand it, and
this is really mostly from preparing for the evidentiary hearing
in Joe's case, is that blood stain pattern analysis is
based in accepted and proven sciences. The problem with it
(22:35):
is what you said, which is the training of practitioners
and using it properly within its correct limits. And that's
what happened here with detective Forman, a purported practitioner whose
training was a single forty hour course, and the practitioner
(22:56):
admitted that this was the first major complex san he
had analyzed as a supposedly certified practitioner, who between our
evidentiary hearing did eventually recant and admit that his methodologies
(23:16):
and application were mostly incorrect and admitted that then a
lot of his conclusions in testimony was incorrect, and so,
like we talked about at the beginning, what was the
state's theory and why is blood stain pattern analysis? Why
was it important to the States securing a conviction twice
against Joe? And it was used to explain why there
(23:40):
was no physical evidence, Like you said, what was connecting him.
The flashlight was discovered in complete isolation, with no context
away from the crime scene. His car was clean. There's
never anything on him physically discovered, not in his hotel room,
not on his person later. And so the blood stain
pattern analysis proffered eye Detective Foreman was used to fill
(24:02):
the very clear gaps in the state's case and to
make an impossible theory of the case seem. Yeah, I
just want to quote from Pam Koloff's a wonderful article.
But she actually went to her great credit to Yukon, Oklahoma,
where she participated in one of these classes that she
paid six and something dollars for, and she talks about
(24:27):
I'm just going to quote now, armed with calipers, scientific calculators,
and string we measured bloodstains, plugged our data into equations,
and tried to trace the trajectories of individual droplets back
towards their source. As was true with pattern classification, there
were many ways to get this wrong. Small deviations with
the calipers resulted in markedly different results. Still, Griffin, who
(24:47):
was the instructor, had us pressed forward. He said, quote,
we're not really going to focus on the math and physics.
It just kind of bogs things down. Uh, that's me
editorial lizing what okay? He told us. She goes on
to say at the outset, quote, I'll teach you which
keys on your calculator to press. It's not it's unbelievable,
(25:11):
and then back to Pam. It was upon this shaky
foundation that Thorman had tried to reverse engineer the shooting
at the Brian home. Looking over report one night back
at my hotel, I could see where his analysis went awry.
According to his report, he believed he was determining the
alleged height from which the shots were fired, a conclusion
his data could not yield. I began to wonder if
(25:31):
his assessment of the flashlight, too, was faulty when he
asserted that the blood on the lens was back spatter
from a close range shooting. Now it goes on because
they teach you in this class as well, how to
present testimony as if you're an expert. It's basically teach
you how to act in court, to pretend better that
(25:51):
you actually know what you're talking about, and to be
more persuasive, and how to be able to dodge questions
from you know, quality defense attorney. I mean, let's face it,
not too many of these blood spattered people come in
and testify for the defense. So they're teaching you, in essence,
how to frame people. And that's exactly what they did
(26:12):
in Joe's case, and it makes me sick. It's, I think,
a perfect example of a situation where juries trust the
prosecutors in their community and they trust law enforcement. And
Joe's case, sadly isn't the only example of this. When
prosecutors go to juries and paint a picture using like
(26:36):
Joe said, fabricated evidence and an impossible narrative and show
them awful photos of a crime that clearly did happen,
and asked them to say, okay, either don't hold somebody
responsible or hold somebody responsible, right, and especially in the
context of what this community had just gone through, like
you just said, with the loss of Judy Whitley just
(26:57):
a few months prior and then the loss of Mickey
and her brother in particular paid a special prosecutor to
prosecute Joe. And so you've got somebody who's got a
financial incentive to get a conviction, and you have a
jury who's being told about that financial arrangement, right that
knows this is what the victims family paid for. This
(27:18):
is clearly what they believe. What jury was going to
let him walk out of a courtroom. There just wasn't
in any jurisdiction in night six and eighty nine that
just sadly wasn't going to happen. So with this nonsensical
blood spatter analysis and this flashlight that wasn't even found
at the crime scene as the big smoking gun, and
(27:40):
then the assassinations on his character, it was a almost
a foregone conclusion. So can you take us back to
that moment when the judge read the verdict. Well, it's
very unreal. You already know your laugh has changed forever
because of everything that's already happened. But then now people
are gonna look at you like you orderer, and I'm
(28:01):
going to end up at prison. There's something I didn't
do and I'm gonna have to fight every day to
maintain my personal integrity. You think, how can people do this?
But what is really troubling is that you know that
people know that what they've done is not right, and
they don't have any trouble doing what's wrong. Everything that
(28:39):
happened really hurts. I just don't go there very often.
But God has a purpose for each of us. And
when I was first went to prison, I was very
angry with God and did not go to church. I
didn't tell anybody I was a Christian or they even
(29:00):
played the piano. And after I'd been there, probably eight weeks,
the chaplain told me that I understand that you play
the piano and that you're Christian, and I said, how
do you know I haven't told anybody. Well, he wanted
to hear me play the piano, so we went into
chapel and I said, what do you want to hear?
(29:22):
And he told me and I played the songs. When
we went back to the chapel, and he asked if
I would play the piano for the chapel services and
I said, no, I will not, and I told him
I was mad at God, And I said, but how
did you know that I was a Christian, that I
played the piano. And he comes up with a letter
from my high school principle when I grew up, who
(29:45):
led the singing at the church where I played, And
he told Chaplain Pickett, I've done Joe since he was five.
I believe he's innocent. I know he's hurt, and if
you can get him to play the piano for your
church services, you'll be blessed and it will help him.
And I told him I'm not playing in that wise.
(30:06):
Chaplain told me, well, you think about it tonight and
you let me know in the morning. I got zero
sleep that night because God was all over me, saying,
you know, so to speak. Who do you think gave
you that skill? I did. I want you to use
it for me. So the next morning I called Chaplain
(30:29):
pick It and told him I would play for the
chapel services. And he says, good, we acquire practice today
two o'clock. And I was in and busy for the
rest of my stay. So we can do anything through Christ.
And when I asked God for peace, he gave me peace. Well,
I'm glad that you found that, and I'm glad you're
(30:52):
here today. Because you are a living testament to the
human spirits. So um yeah, So then here we are.
You've now been sentenced to nine years in prison right
with love life sentence because no one's ever lived that long,
and you know you weren't going to be the first
um again to me the idea that you're still here
(31:14):
with with you know, three brain cells to rub together
and be able to sit up right and have a
laugh and have a smile on your face. It's it's inspiring,
it's um you know, It's what I'll tell you right now.
For those of us to do this work, it's what
drives us forward is knowing that there are people like
you who have this otherworldly uh you know, courage is
(31:38):
the best way I can and grace and perseverance. You know,
when I pick up this case in November as a
law student, it's my whole life. Like my whole life,
Joe had been fighting this fight, and it's an unbelievable
set of strength and endurance to maintain your innocence and
(31:59):
keep fighting for that period of time. It's unbelievable. And
most people give up, right, we know, innocent people plead guilty,
and innocent people end up giving up just to move
on with their lives, and the fact that he hasn't,
I think just speaks so much to the character that
everybody in that community knows he has and knew he had,
and just his spirit, which brings us to that long,
(32:22):
long fight, the post conviction litigation, and all the things
that were discovered along the way, not to mention what
was already known which should have kept them from ever
even bringing Joe to trial. I mean, the sheer breath
of this, it's insane to believe that none of it
was enough to spring him out of there with the
state acknowledging his actual innocence. And I'm going to just
(32:44):
list some of it now, Right, So, no one saw
Joe leave the hotel in Austin, and no one saw
him back in Clifton. I mean, it's a hundred and
twenty mile journey. He would have had to stop for
gas at some point, right, And then the mileage on
Joe's car proved that he didn't not make the journey
back and forth to Austin. According to the state's own admission,
(33:04):
he had no motive to kill Mickey, So all that
nonsense about the cash or stage robbery was just nonsense.
And then Dennis Dunlap, okay, the main suspect in Judy
Whitley's murder who was forced out of Clifton p D
as a result, and who they laid blame for it
on after he killed himself. But only after he killed
(33:25):
himself his wife told the rangers and the Clifton police
chief in that Dunlap admitted to being with Mickey on
the night she was killed. I mean, what the funk?
And he doesn't get to learn about that from until
two thousand and twelve when they finally released these documents
to him. So thirty five long years rolled by with
(33:47):
no one acknowledging his innocence because of this flashlight that
wasn't even found at the crime scene, but rather was
found in the car, that wasn't in Joe's possession or control.
Rather it was in the possession of the man that
brought an investigator to his own sister's funeral and paid
a special prosecutor to make sure that they nailed Joe.
(34:11):
But Jesse DNA testing was finally done on that flashlight
in two thousand eighteen, testing that wasn't available in hadn't
been invented yet. What did they find out? Yeah, So,
I think the simplest ways. The question that was asked
at the evident you're hearing, which is, can the State
of Texas prove that Mickey's DNA is on that flashlight?
And the answer to that question by the states analyst was, now,
(34:34):
there's two results from a set of DNA testing. One
was on the lens of the flashlight that was an
inconclusive result, and then there was a DNA test of
the swab from the handle and the power button of
the flashlight that excluded him and Mickey. So does modern
testing prove that Mickey's DNA is on that flashlight? And
the answer to that is new. So there was type
(34:55):
OH blood, the most common blood type, on this flashlight,
but not necessary early from the crime seat. That would
be our position. The state's position would obviously be different,
but modern testing cannot corroborate the state's position. And add
that conclusion to the already patently ridiculous theory of this
crime and what was discovered about Dunlap, and it's all
(35:17):
just becomes very hard to swallow that it took this
long for you, Joe, to finally be free, but all
appeals were exhausted, and then despite an exemplary disciplinary record,
you're involved in the chapel, playing piano, tutoring. The parole
board denied you seven times? Is that right? Seven times?
(35:37):
You and so your patients has tried and tried and tried.
But finally, Joe, finally you were freed, Um just a
short while ago. And what was that like? I mean, well,
there are mini tears. You're so thankful to be out,
and it's beautiful to see people who care for you
(35:59):
and love you for you up there when you get outside.
Jesse was one of those waiting, along with my family
and other people who were interested in my case. Uh,
A lot of people could not be there, and it
was understandable. It's right at the beginning of Corona. It
(36:21):
was because a couple of weeks after the world shut down. Yes,
absolutely wonderful though to be able to hug your family
and to get into the vehicle and go home. The
young lady that we're watching right now is very instrumental well,
and it's not definitely not only me, Um Walter. I
(36:45):
know that Walter in Leon and Allison and Ye Shay
and Alan Um. Joe has wonderful parole lawyers. Again, Joe
is not free like we just talked about because the
courts did their thing. Joe's free because thankfully he had
parole lawyers that were able to explain the circumstances to
(37:07):
the parole board in a way that clearly made sense.
And so they are really the heroes. Thank God, I'm home.
My brother and his wife had provided a home for me,
and I am just fabulously grateful and it's encouraging, very
humbling what others have done to help me. I know
(37:29):
I speak on behalf of all of your supporters when
I say that we wish you every blessing that life
has to offer. Um, I hope you lived to be
eighty and that uh that you can enjoy every moment
of it. And we now have the closing segment of
the show, which I think our audience has come to
(37:51):
really expect and appreciate. I know, I it's my favorite
part of the show because this is the part where
again I thank you two amazing human being beings, UM,
Jesse Freud and Joe Brian for for being here with
me and sharing your stories. And then I get to
turn my microphone off and leave yours on for a
(38:12):
segment of the show we call closing arguments, and it
works like this. We're gonna start with Jesse. We're gonna
save all due respect Jesse, We're gonna save the best
for last. The floor is yours, Jesse. Please just tell
us whatever you got and then pass the mic off
to Joe. I almost feel so unoriginal because I think
I'm gonna end where you started, which is what can
(38:32):
listeners learn from what happened to Joe? And obviously the
injustice also that happened to Mickey, which and that still
remains the wrong person, Um is still being legally held
accountable for killing Mickey, and so that is a horrible injustice.
And so what can the public learn from that? And
(38:55):
I think the first thing is what you said, which is,
if this can happen to Joe, Brian, this can happen
to anyone. And I remember as a law student when
I became fascinated with this case before I even got
to know Joe. It really struck me that this is
a case that can make people think that the problems
of the criminal justice system, if they think those don't
(39:15):
apply to them, after learning about what happened to Joe,
they should think that these things apply to them. And
so I hate that the injustice that remains for the
wrong person being held accountable for Mickey's murder, and I
hate that Joe's life was likewise stolen from him. But
I hope what we can all as a society learn
(39:35):
from that, which is cops and prosecutors or people too,
and when they come before twelve random folks in a
jury and they're asking members of the community to do something,
have the courage to think critically about what you're being
asked to do and truly hold the state to their burden.
I think our community can do what sometimes and sadly
(39:57):
cops and prosecutors don't do, which have the courage to
say this isn't enough and we're not going to have
two loss of lives because that's what we've got here.
Mickey's life was taken and Joe's life was taken, and
that is preventable. This was preventable. Our courts had an
opportunity to fix it and refuse to do so. And
so America can learn something from what happened to Joe
(40:20):
and Mickey. It's go be good. Jurors, hold the state
to their burden, um and have the courage to fight
injustice from the jury box. Joe, over to you. Number one.
I still respect law enforcement. I still respect courts and
judges and district attorneys. What I want them to do
(40:44):
is to work for justice, not conviction. If conviction is
a part of that justice, then so be it. But
if you're proven later that your decision was wrong after conviction,
be man or a woman enough or judge enough or
whatever enough of a person say hey, we mess this
(41:06):
up and we need to correct it. Don't just stick
your head in the sand and say that's not what
I want to hear, and we're not going to change
our opinion. Because even in in our discovery hearings, the
judge had them test the flashlight again for the third
or fourth time, and the state's lab came back with
(41:28):
the report was and he said, there's two DNA profiles
on the flash light. One is not Mickey Bryan and
one is not Joe Brian. So whose DNA is on
that flash light? And that was to me a key
point and evidence they used against me, just like they said,
(41:50):
you know, there's seemen on the underwear, and then when
they were DN they tasted there's no seemen there. So
who's lying? When did the last start? Who did it?
And who backed up who in protecting that person's decision?
Why are we not looking for the truth. And if
you think it can happen to you in America, you
are wrong. And it didn't happen to just the black
(42:12):
people either. It happens to white people too, and people
like Jesse and Walter in the Texas Innocence Project, and you, Jason,
who worked with the Innocence people. If it weren't for you,
we would have no hope. I sleep well at night
because I'm innocent and I'm honest. I'm not perfect. But
(42:34):
Mickey was my wife, and I loved her and I
cherished her, I respected her, and I miss her, and
I wish her family we'd be just as concerned about
who actually killed her as we are, and I wish they.
(42:55):
You know, hey, look, maybe we maybe we were misled,
maybe we were used in that conviction process that somebody
else won't it And we can do anything through Jesus Christ.
I'm still living with him every day and I'm still
relying on him to give me the strength and the hope,
(43:15):
and I still on naving trouble going sleep at night.
Thank you for listening to Wrongful Conviction with Jason Flam.
Please support your local innocence projects and go to the
link in our bio to see how you can help.
I'd like to thank our production team Connor Hall, Jeff
(43:37):
Clyburne and Kevin Warnas. The music on the show, as always,
is by three time OSCAR nominated composer and Jay Ralph.
Be sure to follow us on Instagram at Wrongful Conviction
and on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with
Jason Flam is a production of Lava for Good Podcasts
in association with Signal Company Number one, n The Way,
(44:02):
the Boy
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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