September 30, 2024 • 34 mins
On December 28, 2007, a young man was shot and killed outside an apartment complex in Cincinnati, Ohio. Ten days later, an eyewitness identified Marty Levingston as the gunman, and eventually, a jailhouse snitch would point to him too. Though the eyewitness expressed doubt at trial, Marty was sentenced to 15 to life for a murder he consistently maintained he did not commit.
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Thank you to Ohio Supreme Court Justice Michael P. Donnelly and Ohio Innocence Project attorney, Donald Caster, for participating in this episode.
To learn more and get involved, visit:
The Dark Plea: One of the Most Coercive Abuses of Power Permitted in the Criminal Justice System
https://lavaforgood.com/podcast/422-maggie-freleng-with-angela-garcia/
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:06):
Marty Livingstone doesn't claim he was an angel.
Speaker 2 (00:08):
When he was younger, we was running around doing stupid things,
like he was running around. He was running doing doing
street stuff, just run around, acting stupid, getting into fights.
Speaker 1 (00:17):
He grew up on the streets learning from other kids
like him.
Speaker 2 (00:20):
So like we called ourselves wanting to be different, little
things like different or like trying to form. So I
ain't know what the heck we was talking about, So like.
Speaker 1 (00:29):
A gang or like a music Like what what do
you mean by form?
Speaker 2 (00:32):
Something like you know, like form something like you know,
like we're trying to like a click, like like a click, like,
oh we did we did? Like but we're trying to
find We boys, we brothers, a group.
Speaker 1 (00:42):
Of friends having each other's back. Marty says he was
never part of a gang or commit any serious crimes.
He was a young dad getting his degree at the
time that his life came crashing in on him. One
day he got a phone call from his mom.
Speaker 2 (00:58):
I said, mother, what's going on? She said, the US
Marshall was here. Now.
Speaker 1 (01:02):
As I mentioned, Marty wasn't an angel. He admits that
he was familiar with the police. In fact, he had
been accused of a shooting before, but that was cleared up.
It hadn't been Marty. Normally he wouldn't be too worried,
but he says this time his gut told him something
was off.
Speaker 2 (01:22):
Really on this one, it's like I felt something. It
was different, like this one is different. My name is
Marty Leviston. I was wrong for the convicted for fifteen years.
Speaker 1 (01:36):
From Lava for Good. This is wrongful conviction with Maggie
Freeling today. Marty Levingston Marty Livingstone was born on August thirteenth,
nineteen eighty four, to Sandra and Marty d. Levingston in Cincinnati, Ohio.
Speaker 2 (02:00):
Life wasn't I'm not gonna say life was average. Child, No,
I got a it's eight of us WHOA So my
mama was my mama six counting me. Then my father
had two before then, so I got three brothers and well,
three brothers and three sisters. The oldest will be Telicia Evans,
(02:22):
Dron Levingston Darlene.
Speaker 1 (02:25):
Marty is somewhere in the middle of all the siblings
then me. Growing up, Marty says he was a daddy's boy.
Speaker 2 (02:31):
My mom used to tell me stories about how she
used to be trying to like feed me. Like if
she puts some in her mouth and she tried to
feed me with it, he I smack it away. No,
but she says, soon as my daddy do it, I
could eat it. I eat it. So my dad was
just like I actually like my dad to come get
me when I was seven, six, seven, eight years old
and I could just go. I used to go everywhere
(02:52):
with them.
Speaker 1 (02:53):
So but then Marty's parents split up and his dad
moved out.
Speaker 2 (02:57):
That's what shows me how powerful my mother or he
is because us like she kept us with a roof
over our head, kept food on the table, like you
know what I'm saying. I don't know how she did it,
but I used to sit back and and watch her
make miracles happen.
Speaker 1 (03:11):
Not only did she make it happen, but Marty remembers
lots of good times in his busy home full of love.
Speaker 2 (03:18):
Sometimes it'll be out of kids, it'll be probably about
it could be good ten of us, ten eleven, twelve
of us, because if my cousin's over there, that's counting
them too. So oh yeah, so' we be fighting over cereal,
fighting over cereal boxes, cookies, video games, like it was
just everybody. You know, they could pete in fighting, arguing.
But when you look back at it now, it was
like that was fun.
Speaker 1 (03:42):
Marty says. Life was good. But then in nineteen ninety six,
when he was in his teens, his mom moved the
family to the Hawaiian Terrace apartment complex in Mount Airy,
a neighborhood in the outskirts of Cincinnati, which at the
time was dealing with a lot of crime.
Speaker 2 (03:59):
That's when I actually start you know, picking up things like,
you know, learning things and things like what, oh will
the wrong things?
Speaker 1 (04:10):
Marty says. He started getting into trouble for things like
selling drugs.
Speaker 2 (04:14):
I start trying to find myself at that time, Like,
you know, my father was away at the time, and
so like I'm trying to find you know, where was
your dad at the time. My dad was incarcerated.
Speaker 1 (04:26):
What was he incarcerated for.
Speaker 2 (04:27):
Well, he's incarcerated for you know at that time, was
probably have some drug possessions or something.
Speaker 1 (04:33):
How did that affect you.
Speaker 2 (04:34):
When he left me? Like when he left at that time,
like I was hurt. You know, I was hurt, and
I'm trying to find myself and and it affected me
affected me a lot.
Speaker 1 (04:45):
Marty started learning how to be a man from the streets.
Speaker 2 (04:48):
I was starting to get taught the wrong things at
that time, like you know about just everything about women,
by life, by everything period. I was starting to get
taught those things like you know, like this how we
should do it, This is how we should look at women,
This how we should look at people.
Speaker 1 (05:03):
At sixteen, Marty had his first kid and went on
to have three more. Marty says he was aimless and
getting cues from all the wrong people. Back then, stories
of neighborhood gangs were all over the local news. Not
a story you will see only on five. You know,
you used to only hear about gangs like the Crips and.
Speaker 3 (05:23):
The MS thirteen Bloods, crips living and hanging out in
areas you may least.
Speaker 1 (05:28):
Expin information tonight on a local store busted for dealing
drugs officers. Marty says he wasn't part of any gang,
but he was still involved with groups of kids and
young men breaking the law.
Speaker 2 (05:39):
Like I'm gonna tell you, like I wasn't no angel.
You know, it was idea live a lifestyle, so you
couldn't do that in that area. So they end up
evicting my mother about it.
Speaker 1 (05:50):
There, Marty left the neighborhood, but not the lifestyle. He says.
He kept acting foolish into his twenties and eventually made
a name for himself with law enforcement.
Speaker 2 (06:00):
I had running ins, I had priors, I had I
had juvenile record. Yes, I had priors. I was out
there in the streets and moving around and stuff like that.
Speaker 1 (06:10):
Though in between run ins with the law, Marty spent
part of his early twenties trying to get his degree.
Speaker 2 (06:16):
I was going to job court. I was going there
for to be for business business management.
Speaker 1 (06:22):
What would you have wanted to do with business management?
What were you thinking?
Speaker 2 (06:25):
For real? I ain't know what I was doing. I
look back now, I shouldn't have went in there. I
should have went and got carpentry or something. But like so,
I'm like, I think of business managed, because at that time,
everybody that's from the streets be saying business business management.
Speaker 1 (06:37):
Putting two and two together business management and Marty's lifestyle,
I can kind of guess where he was going with
that degree.
Speaker 2 (06:45):
So I'm going to Cincinnight job court school at the time,
And so my dad had called me and said, I
just heard your name on the news, I say for
what on the on the on the radio, they say
he was looking for you for a shooting.
Speaker 1 (06:58):
I said, huh, shooting. This was Marty's first major arrest.
It was in two thousand and six that was.
Speaker 2 (07:07):
Full tempted murder Forlonius Assault.
Speaker 1 (07:10):
Marty was arrested for a drive by shooting at the
University of Cincinnati. Two men had been injured, but Marty
says he hadn't been involved and the case against him
didn't go very far.
Speaker 2 (07:22):
The witness that got shot he dated my little sister
at the time, and so he even coming there, like,
I know who shot me? He ain't shoot me. He
was up there. I seen him up there, but he
ain't shoot me. And so that case ended up getting dismissed.
Speaker 1 (07:40):
Still, Marty was on the police's radar now more than ever.
And not long after, Marty was arrested for another shooting,
but this time there was no survivor to say it
wasn't Marty. On the evening of December twenty eighth, two
(08:02):
thousand and seven, two shooters opened fire at the Hawaiian
Terraces apartment complex. So do you remember when this happened?
Speaker 2 (08:10):
Yes, I remember like yesterday.
Speaker 1 (08:11):
Tell me what you remember.
Speaker 2 (08:12):
Well, what happened was, So I'm in the house. I'm
in the house. I'm on my mother houses. Three days
after Christmas, I got my daughter with me. So I'm in.
I'm in the house. I was actually laying down because
I had a real bad migraine. I received a call
by a friend of my friend of mine name Andre.
He called me. He said, brother, I heard a lot
(08:32):
of gunshots out here. He go outside, he says, ambulance,
fire trucks everywhere. I say, wow, what happened? So he
ended up asking somebody. They said what happened? He said, man,
somebody just got killed.
Speaker 1 (08:44):
The victim was nineteen year old Michael Grace. According to reports,
Grace had been living with his aunt at the Hawaiian
Terrorists Apartment Complex. Prosecutor said that the teenager had been
trying to escape his former connections to a gang called
the Taliband, but on December twenty eighth, that former life
caught up with him. Grace was in a car with
(09:04):
his friend Carlos Mayo when members of a rival gang
allegedly picked a fight with them, which ended in his
fatal shooting.
Speaker 2 (09:12):
There. So I got up I went in my mother
room and I said, Mom, somebody just got killed in
Hawaiian Village because we called it Hawaiian Village too. I said, well, man,
you know they will try to put that on me.
Speaker 1 (09:23):
Remember, Marty used to live at Hawaiian Terrace before his
family was evicted. He was connected there.
Speaker 2 (09:29):
She said, well, you went out there, you was right here.
Speaker 1 (09:32):
But Marty knew his relationship with the streets and the
police would work against him.
Speaker 2 (09:37):
My name always came up when something happened, even in
why I wasn't even being in that area no more,
my name still came up.
Speaker 1 (09:45):
Why did you think they were going to try and
put it on you?
Speaker 2 (09:47):
Anytime something happened, they either go questioned me, or pull
me over, or do something like that. So I knew
that area. I knew either they go try to put
this on me, they go come question me, they go
do something.
Speaker 1 (09:58):
But they didn't, at least not until after the New Year,
when a witness named Savannah Sorels appeared.
Speaker 3 (10:05):
So she was a young woman who lived in the area,
lived in a position where she could see the shooting
from a window in her house.
Speaker 1 (10:13):
This is Donald Castor.
Speaker 3 (10:15):
I'm an attorney and a professor of clinical law at
the Ohio Nissance Project at the University of Cincinnati, and
I was privileged to be one of Marty's attorneys. In
his post conviction.
Speaker 1 (10:24):
Proceedings, Donald says that Sorels told police she saw Marty
and his co defendant David Johnson kill Michael Grace, and when.
Speaker 3 (10:32):
They showed her a picture of Marty and out of David,
she said to each that that was them. So Marty
and David were charged.
Speaker 1 (10:42):
Once in custody, Marty tried to tell the police that
he'd been home with his mom and daughter the night
of the shooting, that they were making a mistake, just
like last time, except this time friends and relatives of
Michael Grace were pointing the finger.
Speaker 2 (10:57):
Now I have a whole neighborhood that's saying that they
think they thinking that I killed their cousin, brother, our friend, whoever.
And so that's what made that one different.
Speaker 1 (11:07):
And this time detectives had Robert Taylor, a jail house informant.
Speaker 3 (11:12):
Robert would come forward to the lead investigator on Marty's
case and say that he heard Marty and David talking
about the case through the air ducks in the Hamilton
County Justice Center.
Speaker 1 (11:28):
That's the jail Marty and his co defendant David Johnson
were being held in. Robert Taylor claimed that through the
air ducks he'd heard Marty admit that he'd killed Grace,
that they were members of rival gangs and they were
fighting over stolen guns before the shooting. Marty says Taylor
was known in the jail as a snake.
Speaker 2 (11:48):
They caught him white chocolate. Watch him. He is snitched.
He jumping on people's cases. He doing this and doing that.
Speaker 1 (11:55):
So Marty stayed away from him, but it didn't matter.
Speaker 2 (11:59):
I end up getting the a visit from my attorney
and he basically was telling me who they was using
against me on my case. And he showed me a
picture of him. Said, do you know this guy? I said,
that's the jail house snitch that'd be running around here.
He's like, well, yeah, they're about to use They want
to use him as a witness on your case.
Speaker 1 (12:18):
Police had an informant making serious accusations, but over the
following months, the rest of their case against Marty seemed
to fall apart. At a pre trial hearing, Savannah Sorel's,
a key witness, changed her statement.
Speaker 3 (12:33):
Savannah came into court and said again, now, I said
it with Marty, but I didn't actually see Marty. She said,
I saw David.
Speaker 1 (12:41):
Remember David was Marty's co defendant.
Speaker 3 (12:44):
And I knew that David and Marty hung around together
a lot, so I assumed that it was Marty with him,
but I didn't actually see who was with David. I
could just see that there was somebody with David. And
she said that, you know at under oath. In a
pre trial court.
Speaker 1 (12:59):
Proceede and Carlos Mayo, the person who was with Michael
Grace during the shootout, told the authorities that Marty hadn't
been there the night of December twenty eighth.
Speaker 2 (13:09):
When he testified they was firing and my code defended
and they asked him like, okay, did you know do
you know more? To he said, well, I know him
enough to identify him if I if I seen if
he was there, I would have seen him. I would
have knew he was there. But no, I ain knew
of him until they put him on the news.
Speaker 1 (13:26):
This sounds so crazy to me. I feel like there's
more people saying he wasn't there than he was there.
Speaker 3 (13:31):
There was nobody who said he was there besides.
Speaker 1 (13:33):
Robert Taylor, the snitch, right, the snitch who turns out
was getting a pretty sweet deal for testifying.
Speaker 3 (13:41):
He offered testimony to support the police because he was
facing a murder charge. It was the first major offense
he had been charged with. It's pretty clear he was
scared and didn't want to convicted, and in fact, he
got a monster plead deal from the prosecution in that case,
was allowed to plead the involuntary manslaughter only did it
few years in prison to testify to testify against Marty
(14:03):
and others. But Marty was sort of the Marty and
David was sort of the big case.
Speaker 2 (14:09):
That got him that deal.
Speaker 1 (14:10):
But with the pre trial testimony of Sorrels and Mayo
in his favor, Marty thought surely the charges against him
would be dismissed. But then the judge set a trial date.
Speaker 2 (14:22):
I'm like a trial date, Like, I mean, I really
about to say the trial and is I got a
whole witness getting up here saying and I commit this crime.
Speaker 1 (14:29):
Even though it might seem really weak to take to trial.
Speaker 3 (14:32):
There was a lot of pressure to get this case
solved and resolved because at the time there was an increase,
or at least a perceived increase in gun violence in Cincinnati.
There was a lot of impetus to put somebody away
for this crime.
Speaker 1 (14:50):
Amid this climate with fear of violence and constant stories
of gangs in the nightly news. Marty went to trial
in January of two thousand and nine, prosecuted by Gus
Leone and Anne Flanagan. So tell me about trial. So
(15:12):
in my notes, I actually don't have any kind of defense.
Really did that actually happen? Was there no defense?
Speaker 3 (15:18):
Well, so it's it's I'm trying to remember, did help
put your family on this an ALTI?
Speaker 1 (15:24):
Marty's defense attorney in two thousand and nine was Hal Arenstein.
Speaker 2 (15:28):
No, okay, yeah, we talked. I talked to Hall about that,
and he was like, you know, putting the putting your
family up there, They go, okay, you put your mom's
up there. They go your mom? Alaugh, oh you you
put your this and that? Like but when I look
back now, I'm like, I should have put my mom
up there.
Speaker 1 (15:45):
So I went up there for you.
Speaker 2 (15:46):
No one, no, no one.
Speaker 3 (15:47):
There was no defense presented, and that was a pretty
common defense perception that juris don't believe alibis from family members.
Speaker 1 (15:55):
Sure, but how was he defense without a defense?
Speaker 3 (15:58):
So I think the idea, and let me be very
clear about this, Hall is a really good attorney. I
take no issues with anything that Hal did in this case.
Speaker 2 (16:09):
I think the idea that was that this case was
just so weak.
Speaker 3 (16:12):
From the prosecution's point of view that no jury would convict.
And I think that if this case were tried today
on that evidence, juries were skeptical enough that they wouldn't.
But in two thousand and eight, before there was a
little bit of the more sophistication that the jury seemed
to have now, and when people in that time were
(16:33):
afraid of the perception of increasing gun violence, Marty was convicted.
Speaker 1 (16:41):
Sentenced to thirty one years to life for murder, felonious assault,
and tampering with evidence.
Speaker 2 (16:49):
When they say it guilty, I'll say, I'll say how like,
I mean like what, I'm like, I look back, my
mom said we'll pill it, and I'm like like wow,
So like it it ain't kick in right away because
I still ain't know the law. I still I never
been to prison before, so I ain't know how nothing
(17:11):
was I ain't know how the process is with these
appeals and stuff like that, I ain't know. I just
ain't know nothing. I was lost in the whole situation.
Speaker 1 (17:19):
Shortly after his conviction, while he was still trying to
process everything, Marty says, his grandma sent him a passage
from the Bible.
Speaker 2 (17:28):
Song twenty three The Lord is My Shepherd. Shend me
that scripture and she said, baby, she told me, like,
you ain't gonna be able to do that without God.
Speaker 1 (17:35):
So Marty says, he continued reading the Bible and started
going to church.
Speaker 2 (17:39):
I need some hope, I needed some faith, I needed
some beast.
Speaker 1 (17:42):
And he started to reckon with the life he led
before prison.
Speaker 2 (17:45):
I'm locked up for something I ain't do. But whow
I'm locked up? So I had to start looking at
looking at that something led up to this, And that's
when it got to show in my lifestyle. The lifestyle
while I was living lay it up to this. Because
if I wan't in the streets, if I wasn't running
around saying that don't happen to them, That happened to
(18:06):
people like that. But I'm if I wasn't running the streets,
my name would it never came up in that at all.
Speaker 1 (18:13):
So Marty says he decided he was going to change.
Speaker 2 (18:21):
So I'm like, let me, let me get me together,
let me let me learn how to be a father.
So I started taking classes on dad and I and
you know, fatherhood classes don't how to be a father
or you know, like even even how to be a
husband or how to be a brother, how to be
how to beat those and what do it really mean?
Because I was taught wrong. I stay focused, and you know,
(18:46):
I became facilitators of programs in there, you know self,
Like we had a program called Real Man where you
got guys talking to the youth that's coming and we
got guys coming there like eighteen years old. So like
I'm doing things like that through the chat pacer on
Real Man programs. Family First, I was consistent and I
(19:07):
worked out, exercised the lots when in the law library,
just read a lot of stuff like that, and it
changed me.
Speaker 1 (19:16):
Marty put in a ton of work on himself and
his case for years. He appealed his case on issues
like suggestive witness identification because police had shown Sorels only
one photograph instead of a lineup to confirm Marty as
the shooter. Plus another witness had come forward claiming that
she'd seen the shooting and Marty hadn't been involved. Also,
(19:40):
Marty wanted DNA testing on the shell casings found at
the scene, but all his appeals were denied. So Marty
wrote the Ohio Innocence Project, and he waited.
Speaker 2 (19:55):
So one day I'm sitting up in a bed. It
was twenty twelve, and so he said, levis, do you
have a visit. So I'm like, I'm like, damn, I
wonder who this is. I ain't got no visit set up, Like,
I don't know if somebody was coming to visit me.
So I'm like, so I'm thinking, I'm like, oh, that
must be somebody important. So I went ahead and hurry
up put my stuff on.
Speaker 1 (20:15):
When Marty got to the visiting room, it was Donald.
Speaker 2 (20:19):
So I come in there. He got he gotta he
got a missus Donald. He got a look on his face.
Mister Donald got a serious look on his face. He
you know, I'm coming in here, Like hold on, I
know he want he won't playing no games. So I'm like,
he coming there, you know, he talking to me. I'll
tell him he's going though, he say, he said, give
me a few days and I'm gonna talk to somebody.
I ain't telling you it's a goal yet, but I'm
(20:39):
gonna talk to somebody and just call me Monday and
see what's up. So I went back praying, but I
called my mama, like and it's a project. Can't see me.
I don't think the guy liked me.
Speaker 1 (20:48):
But meanwhile, Donald couldn't wait to get started.
Speaker 3 (20:51):
I came back to the office and I started telling
everybody either they got to senizen guy Marty Levingston, and
we gotta get him out and here.
Speaker 1 (20:57):
So Donald and the Ohio Innocence Project to work on
Marty's case for years. They tried to find new evidence
to get Marty back in court. Then their break came
in twenty twenty one. Because of developments in what's known
as touch DNA testing, Donald and his team applied for
post conviction testing on all the evidence that hadn't been
(21:20):
analyzed for prince and DNA during the original investigation. They
were appealing to the same judge that had denied Marty's
previous appeal, but this time the judge wanted to have
a hearing to find out what evidence existed that could
prove Marty's innocence, and she said.
Speaker 3 (21:39):
Maybe I'll grant it, but I want to have the hearing,
and I want to make this state tell us what
evidence exists that could be tested.
Speaker 1 (21:46):
But that never happened. Before any DNA testing could materialize,
prosecutors went back to Marty with a new deal, and.
Speaker 3 (21:55):
At that point the prosecution was willing to offer what's
called this dark please deal.
Speaker 4 (22:00):
So the key to understanding what a dark plea is
is when it's offered.
Speaker 1 (22:06):
Okay, this is Justice Michael Donnelly.
Speaker 4 (22:09):
I presently serve as an Associate Justice on the Ohio
Supreme Court, where I've served since two thousand and nineteen.
Speaker 1 (22:19):
Justice Donnelly is an expert and a vocal critic of
what he calls dark pleas, which are deals prosecutors make
behind closed doors with people who claim they've been wrongfully
convicted who are looking for a new trial, like Marty.
Speaker 4 (22:34):
When you're on the front lines of the system and
you see the injustice that occurs as a result of
a non transparent system and people being coerced into plea bargains,
that should not I think it's an obligation on all
judges to speak up.
Speaker 1 (22:50):
But he didn't always have dreams of advocating for justice
and practicing law. He actually wanted to be a musician.
Speaker 4 (23:02):
So the music career didn't work out the way I expected,
but I've been able to incorporate my love of music
into my life.
Speaker 1 (23:10):
In his mid forties, he started a band.
Speaker 4 (23:13):
We're called Faith and Whiskey, and our motto is, if
you don't have one, you better have the other. We
do a lot of benefits, including the Legal Aid benefit
here in Cleveland, which is the legal event of the summer.
I call it the Jam for Justice.
Speaker 1 (23:28):
So you find being a rocker at night Supreme Court
judge by day they work well.
Speaker 4 (23:33):
Say yeah, Well, my kids think it's cool.
Speaker 1 (23:36):
Justice Donnelly says he used law school as a delay
tactic to get his music career off the ground. But
next thing he knew, he was an assistant county prosecutor
and then.
Speaker 4 (23:47):
Went into civil litication, practiced a total of twelve years
before taking the bench as a trial court judge.
Speaker 1 (23:54):
Justice Donnelly was a trial court judge for fourteen years.
Speaker 4 (23:58):
So I'm fully aware through my observations during those fourteen
years of the coercive nature of plea bargaining as it exists.
Speaker 1 (24:14):
In the modern day please or deals where the defense,
prosecution and judge come to an agreement on a conviction
and sentencing instead of at trial.
Speaker 4 (24:24):
And very early on in my career, and what I
describe as one of the biggest epiphanies of my career,
I began the question the ethics of what takes place
in that back room.
Speaker 1 (24:35):
He says, judges have outsized power when it comes to
backroom negotiations.
Speaker 4 (24:40):
There's no objective criteria that judges use to accept or
reject a plea bargain. Like sometimes you might be in
a judge's back room chambers and that you've come to
an agreed sentence with the prosecution and the defense, and
the judge might say, I don't agree with that. I
(25:00):
think this person has to do five or ten or whatever.
And this gets set in the back room and the
questions never raise. You know what guides the judge to
do that.
Speaker 1 (25:11):
Now, when it comes to people like Marty, people have
been convicted but claim they're innocent, Justice Donnelly says, the
deck is even further stacked against them.
Speaker 4 (25:21):
It is very difficult to have the court system look
at your case for a second time and reconsider it.
Speaker 1 (25:30):
And judges can take their time deciding on a post
conviction case.
Speaker 4 (25:34):
And the judges sometimes let those motions languish for years.
For years, there's no speedy trial or the equivalent of
speedy trial rights for innocence claimants.
Speaker 1 (25:45):
In Marty's case, it took several rounds before a judge
even agreed to allow DNA testing, which could have opened
the doors for a brand new trial. But before Marty
got a second chance at proving his innocence, the prosecution
approached him with a new deal, the dark Plea. Here's
(26:23):
Marty's attorney, Donald Caster again.
Speaker 3 (26:26):
So what they said is, look, we will support emotion
for a new trial, and the basis for the motion
of the new trial is just going to be we,
the prosecutors, believe that Marty was over sentenced. In exchange,
we will expect Marty to plead guilty to involuntary manslaughter.
He will be immediately eligible for release and the case
will be behind him. And it's a tough thing. I
(26:47):
don't you.
Speaker 1 (26:48):
Know what was the option if you didn't take.
Speaker 3 (26:50):
That, to keep fighting over the DNA evidence, And even
if everything fell perfectly into place, it would be another
at least couple of years of litigation before we got
a new trial order.
Speaker 1 (27:01):
At least, Donald says Marty had a tough choice to make.
Speaker 3 (27:05):
Marty was was getting anxious. His parents were getting older. Yes,
he wanted to see them again. His parents, his kids
are growing up without him.
Speaker 1 (27:13):
Justice Donnelly says, this is the crux of the dark plea.
Speaker 4 (27:17):
Do you want to take the risk of what's behind
door number three? You want to take the risk, you
can do that, or here's the keys to your jail cell,
which one you're gonna take. That's that's exactly what happened.
Speaker 2 (27:31):
What's happening.
Speaker 4 (27:32):
So I've never criticized anyone for taking the dark plea
because it's so unconscionable.
Speaker 1 (27:38):
So even though Marty would have to forego the opportunity
to prove his innocence, he decided to take the plea.
Speaker 2 (27:45):
You know what, I'm gonna gon hit and take it.
I know, I'm gonn probably be on parole and I'm
just go I'm just get out. I'm just go get out.
I'm just gonna get out and prove them wrong and
show them wrong. Like nah, I'm I'm no, I was
not who y'all who I was not that, So you
took it, y'all took it.
Speaker 1 (28:06):
On February sixteenth, twenty twenty three, Marty stood in front
of Judge Wendy Cross.
Speaker 2 (28:12):
So you're nervous, I'm nervous, a heart beating. That's when.
That's when she said it's a good day. The judge
said that. Judge Cross said it's a good day, and
they she said everything that she you know, and she
(28:34):
said you will be going home to your family.
Speaker 1 (28:36):
Then I just looked up, like, what did anyone like,
did you hear anything? Was there a gas for a
scream or.
Speaker 2 (28:44):
Fab Yeah, they had to quiet down, yes day, Yes
you heard. I heard them. It was different than when
they said guilty, guilty, it was crying and screaming. This
time it was joy.
Speaker 3 (28:57):
Dark pleas are a really bittersweet moment for everyone. In fact,
when Marty went home finally, I think what Judge Cross
said exactly was it's always a good day when.
Speaker 2 (29:10):
Justice was done was done.
Speaker 3 (29:12):
And that was hard for me to hear because I
was sitting in the room and while I was very
happy that Marty was going home, it didn't feel to
me like justice.
Speaker 2 (29:19):
Was happening that day.
Speaker 1 (29:21):
That bitter sweet feeling is one Justice Donnelly shares, which
is why he's made it his mission to stop the
practice of dark please.
Speaker 4 (29:30):
This is the way power works in the dark.
Speaker 1 (29:33):
If it were up to him, the judge in Marty's
case wouldn't have allowed for a backroom deal with the prosecutors.
She would have held a hearing out in the open.
Let Marty's lawyers prove his case and make the prosecution
stand by theirs.
Speaker 4 (29:48):
Because when a hearing takes place in an open court
where the press contend it can attend and observe, you
see the merits or the lack of merits rise or
fall to that standard that the innocent advocates are trying
to get. Hey, the theory of guilt that was told
to the original jury has been completely undermine and then
(30:09):
it becomes clear to the judge you have to put
the defendant or a new trial or not.
Speaker 1 (30:15):
As far as in his own courtroom, Justice Donnelly decided
long ago to put all backroom conversations on the record.
Speaker 4 (30:24):
That way, everybody's held accountable, the prosecutor of the defense,
lawyer and me, the judge.
Speaker 1 (30:29):
Justice Donnelly actually coined the phrase dark plea because he says,
if you can name it, you can fix it.
Speaker 4 (30:35):
If this term were to become commonplace in saying, and
you could say, Judge, they want to offer me a
dark flea, and the judge could say, no, we're not
letting that happen.
Speaker 1 (30:47):
Marty was released in February of last year into the
arms of his loved ones, and since getting out, Marty
he has wasted no time catching up on life.
Speaker 2 (31:03):
Everything been great. You know when I first came home,
you know, I I got married two months later to
my wife, Latoy Elevenston, and we got married April to eighth,
(31:26):
and since then, it's just been it been, it been
because I'm learning now. So she she, she, we we
kind of bump. Here is a lot because I'm I'm
still learning. She been out here.
Speaker 1 (31:37):
So what's one of the hardest things You're learning?
Speaker 2 (31:41):
Patience? Like being patient with things, like being in line
for something, or even even like you know, just even
dealing with finances and stuff. It's just different little things
that I have to learn.
Speaker 1 (31:52):
What's what's it like being back with your kids? I
mean some of them you really didn't even see them
grow up.
Speaker 2 (31:57):
I'm starting to learn how important I am and my
responsibilities as a man in the house, you know, because
you gotta think I'm coming inside of the house with
some children that don't don't know me. You ain't grow
up with me. So like they gotta learn my space.
I gotta learn. I gotta learn what to say. Not
they like they learning me too.
Speaker 1 (32:18):
Marty works as a stationary steam engineer and has a
clothing line with his cousin called Extravagant Culture Department, and
he's been attending speaking engagements with Justice Donnelly and Donald
at the OIP the Ohio Innocence Project to advocate against
wrongful convictions and dark Please. Marty not only considers them colleagues,
(32:39):
but family or if.
Speaker 2 (32:41):
He been with me all the way through, you know,
like just even like if I'm going through something, I
could call them for anything, Like I mean, I call
him all during the day, like I called him, mister Donald,
take some callum. I call anybody from down there and
they go pick up to me and it's not fake.
(33:01):
If I need to see him, I still go down
to the office all the time down on the college.
I think I'll come in there more to anybody.
Speaker 3 (33:09):
You may be there more than I am.
Speaker 2 (33:11):
Yes, so I always go down there and check on everybody.
It's my family.
Speaker 1 (33:16):
So thank you for listening to Wrongful Conviction with Maggie Freeling.
Please support your local innocence organization. You can go to
the links in the episode description to see how you
can help and to read more about Justice Donnelly's work
(33:36):
on Dark Please. This episode was written by me Maggie Freeling,
with story editing and mixing by senior producer Rebecca Ibada.
Our producer is Kathleen Fink. Our researcher Shelby Sorels, with
additional mixing by Josh Allen and additional production help by
Jeff Cliburn and Connor Hall. Executive producers are Jason Flahm,
(33:56):
Jeff Kempler, and Kevin Wurtis. The music is by three
time OSCAR nominated composer Jay Ralph. Make sure to follow
us on all social media platforms at Lava for Good
and at Wrongful Conviction. You can also follow me on
all platforms at Maggie Freeling. Wrongful Conviction with Maggie Freeling
is a production of Lava for Good Podcasts in association
with Signal Company Number one
Marty Livingstone doesn't claim he was an angel.
Speaker 2 (00:08):
When he was younger, we was running around doing stupid things,
like he was running around. He was running doing doing
street stuff, just run around, acting stupid, getting into fights.
Speaker 1 (00:17):
He grew up on the streets learning from other kids
like him.
Speaker 2 (00:20):
So like we called ourselves wanting to be different, little
things like different or like trying to form. So I
ain't know what the heck we was talking about, So like.
Speaker 1 (00:29):
A gang or like a music Like what what do
you mean by form?
Speaker 2 (00:32):
Something like you know, like form something like you know,
like we're trying to like a click, like like a click, like,
oh we did we did? Like but we're trying to
find We boys, we brothers, a group.
Speaker 1 (00:42):
Of friends having each other's back. Marty says he was
never part of a gang or commit any serious crimes.
He was a young dad getting his degree at the
time that his life came crashing in on him. One
day he got a phone call from his mom.
Speaker 2 (00:58):
I said, mother, what's going on? She said, the US
Marshall was here. Now.
Speaker 1 (01:02):
As I mentioned, Marty wasn't an angel. He admits that
he was familiar with the police. In fact, he had
been accused of a shooting before, but that was cleared up.
It hadn't been Marty. Normally he wouldn't be too worried,
but he says this time his gut told him something
was off.
Speaker 2 (01:22):
Really on this one, it's like I felt something. It
was different, like this one is different. My name is
Marty Leviston. I was wrong for the convicted for fifteen years.
Speaker 1 (01:36):
From Lava for Good. This is wrongful conviction with Maggie
Freeling today. Marty Levingston Marty Livingstone was born on August thirteenth,
nineteen eighty four, to Sandra and Marty d. Levingston in Cincinnati, Ohio.
Speaker 2 (02:00):
Life wasn't I'm not gonna say life was average. Child, No,
I got a it's eight of us WHOA So my
mama was my mama six counting me. Then my father
had two before then, so I got three brothers and well,
three brothers and three sisters. The oldest will be Telicia Evans,
(02:22):
Dron Levingston Darlene.
Speaker 1 (02:25):
Marty is somewhere in the middle of all the siblings
then me. Growing up, Marty says he was a daddy's boy.
Speaker 2 (02:31):
My mom used to tell me stories about how she
used to be trying to like feed me. Like if
she puts some in her mouth and she tried to
feed me with it, he I smack it away. No,
but she says, soon as my daddy do it, I
could eat it. I eat it. So my dad was
just like I actually like my dad to come get
me when I was seven, six, seven, eight years old
and I could just go. I used to go everywhere
(02:52):
with them.
Speaker 1 (02:53):
So but then Marty's parents split up and his dad
moved out.
Speaker 2 (02:57):
That's what shows me how powerful my mother or he
is because us like she kept us with a roof
over our head, kept food on the table, like you
know what I'm saying. I don't know how she did it,
but I used to sit back and and watch her
make miracles happen.
Speaker 1 (03:11):
Not only did she make it happen, but Marty remembers
lots of good times in his busy home full of love.
Speaker 2 (03:18):
Sometimes it'll be out of kids, it'll be probably about
it could be good ten of us, ten eleven, twelve
of us, because if my cousin's over there, that's counting
them too. So oh yeah, so' we be fighting over cereal,
fighting over cereal boxes, cookies, video games, like it was
just everybody. You know, they could pete in fighting, arguing.
But when you look back at it now, it was
like that was fun.
Speaker 1 (03:42):
Marty says. Life was good. But then in nineteen ninety six,
when he was in his teens, his mom moved the
family to the Hawaiian Terrace apartment complex in Mount Airy,
a neighborhood in the outskirts of Cincinnati, which at the
time was dealing with a lot of crime.
Speaker 2 (03:59):
That's when I actually start you know, picking up things like,
you know, learning things and things like what, oh will
the wrong things?
Speaker 1 (04:10):
Marty says. He started getting into trouble for things like
selling drugs.
Speaker 2 (04:14):
I start trying to find myself at that time, Like,
you know, my father was away at the time, and
so like I'm trying to find you know, where was
your dad at the time. My dad was incarcerated.
Speaker 1 (04:26):
What was he incarcerated for.
Speaker 2 (04:27):
Well, he's incarcerated for you know at that time, was
probably have some drug possessions or something.
Speaker 1 (04:33):
How did that affect you.
Speaker 2 (04:34):
When he left me? Like when he left at that time,
like I was hurt. You know, I was hurt, and
I'm trying to find myself and and it affected me
affected me a lot.
Speaker 1 (04:45):
Marty started learning how to be a man from the streets.
Speaker 2 (04:48):
I was starting to get taught the wrong things at
that time, like you know about just everything about women,
by life, by everything period. I was starting to get
taught those things like you know, like this how we
should do it, This is how we should look at women,
This how we should look at people.
Speaker 1 (05:03):
At sixteen, Marty had his first kid and went on
to have three more. Marty says he was aimless and
getting cues from all the wrong people. Back then, stories
of neighborhood gangs were all over the local news. Not
a story you will see only on five. You know,
you used to only hear about gangs like the Crips and.
Speaker 3 (05:23):
The MS thirteen Bloods, crips living and hanging out in
areas you may least.
Speaker 1 (05:28):
Expin information tonight on a local store busted for dealing
drugs officers. Marty says he wasn't part of any gang,
but he was still involved with groups of kids and
young men breaking the law.
Speaker 2 (05:39):
Like I'm gonna tell you, like I wasn't no angel.
You know, it was idea live a lifestyle, so you
couldn't do that in that area. So they end up
evicting my mother about it.
Speaker 1 (05:50):
There, Marty left the neighborhood, but not the lifestyle. He says.
He kept acting foolish into his twenties and eventually made
a name for himself with law enforcement.
Speaker 2 (06:00):
I had running ins, I had priors, I had I
had juvenile record. Yes, I had priors. I was out
there in the streets and moving around and stuff like that.
Speaker 1 (06:10):
Though in between run ins with the law, Marty spent
part of his early twenties trying to get his degree.
Speaker 2 (06:16):
I was going to job court. I was going there
for to be for business business management.
Speaker 1 (06:22):
What would you have wanted to do with business management?
What were you thinking?
Speaker 2 (06:25):
For real? I ain't know what I was doing. I
look back now, I shouldn't have went in there. I
should have went and got carpentry or something. But like so,
I'm like, I think of business managed, because at that time,
everybody that's from the streets be saying business business management.
Speaker 1 (06:37):
Putting two and two together business management and Marty's lifestyle,
I can kind of guess where he was going with
that degree.
Speaker 2 (06:45):
So I'm going to Cincinnight job court school at the time,
And so my dad had called me and said, I
just heard your name on the news, I say for
what on the on the on the radio, they say
he was looking for you for a shooting.
Speaker 1 (06:58):
I said, huh, shooting. This was Marty's first major arrest.
It was in two thousand and six that was.
Speaker 2 (07:07):
Full tempted murder Forlonius Assault.
Speaker 1 (07:10):
Marty was arrested for a drive by shooting at the
University of Cincinnati. Two men had been injured, but Marty
says he hadn't been involved and the case against him
didn't go very far.
Speaker 2 (07:22):
The witness that got shot he dated my little sister
at the time, and so he even coming there, like,
I know who shot me? He ain't shoot me. He
was up there. I seen him up there, but he
ain't shoot me. And so that case ended up getting dismissed.
Speaker 1 (07:40):
Still, Marty was on the police's radar now more than ever.
And not long after, Marty was arrested for another shooting,
but this time there was no survivor to say it
wasn't Marty. On the evening of December twenty eighth, two
(08:02):
thousand and seven, two shooters opened fire at the Hawaiian
Terraces apartment complex. So do you remember when this happened?
Speaker 2 (08:10):
Yes, I remember like yesterday.
Speaker 1 (08:11):
Tell me what you remember.
Speaker 2 (08:12):
Well, what happened was, So I'm in the house. I'm
in the house. I'm on my mother houses. Three days
after Christmas, I got my daughter with me. So I'm in.
I'm in the house. I was actually laying down because
I had a real bad migraine. I received a call
by a friend of my friend of mine name Andre.
He called me. He said, brother, I heard a lot
(08:32):
of gunshots out here. He go outside, he says, ambulance,
fire trucks everywhere. I say, wow, what happened? So he
ended up asking somebody. They said what happened? He said, man,
somebody just got killed.
Speaker 1 (08:44):
The victim was nineteen year old Michael Grace. According to reports,
Grace had been living with his aunt at the Hawaiian
Terrorists Apartment Complex. Prosecutor said that the teenager had been
trying to escape his former connections to a gang called
the Taliband, but on December twenty eighth, that former life
caught up with him. Grace was in a car with
(09:04):
his friend Carlos Mayo when members of a rival gang
allegedly picked a fight with them, which ended in his
fatal shooting.
Speaker 2 (09:12):
There. So I got up I went in my mother
room and I said, Mom, somebody just got killed in
Hawaiian Village because we called it Hawaiian Village too. I said, well, man,
you know they will try to put that on me.
Speaker 1 (09:23):
Remember, Marty used to live at Hawaiian Terrace before his
family was evicted. He was connected there.
Speaker 2 (09:29):
She said, well, you went out there, you was right here.
Speaker 1 (09:32):
But Marty knew his relationship with the streets and the
police would work against him.
Speaker 2 (09:37):
My name always came up when something happened, even in
why I wasn't even being in that area no more,
my name still came up.
Speaker 1 (09:45):
Why did you think they were going to try and
put it on you?
Speaker 2 (09:47):
Anytime something happened, they either go questioned me, or pull
me over, or do something like that. So I knew
that area. I knew either they go try to put
this on me, they go come question me, they go
do something.
Speaker 1 (09:58):
But they didn't, at least not until after the New Year,
when a witness named Savannah Sorels appeared.
Speaker 3 (10:05):
So she was a young woman who lived in the area,
lived in a position where she could see the shooting
from a window in her house.
Speaker 1 (10:13):
This is Donald Castor.
Speaker 3 (10:15):
I'm an attorney and a professor of clinical law at
the Ohio Nissance Project at the University of Cincinnati, and
I was privileged to be one of Marty's attorneys. In
his post conviction.
Speaker 1 (10:24):
Proceedings, Donald says that Sorels told police she saw Marty
and his co defendant David Johnson kill Michael Grace, and when.
Speaker 3 (10:32):
They showed her a picture of Marty and out of David,
she said to each that that was them. So Marty
and David were charged.
Speaker 1 (10:42):
Once in custody, Marty tried to tell the police that
he'd been home with his mom and daughter the night
of the shooting, that they were making a mistake, just
like last time, except this time friends and relatives of
Michael Grace were pointing the finger.
Speaker 2 (10:57):
Now I have a whole neighborhood that's saying that they
think they thinking that I killed their cousin, brother, our friend, whoever.
And so that's what made that one different.
Speaker 1 (11:07):
And this time detectives had Robert Taylor, a jail house informant.
Speaker 3 (11:12):
Robert would come forward to the lead investigator on Marty's
case and say that he heard Marty and David talking
about the case through the air ducks in the Hamilton
County Justice Center.
Speaker 1 (11:28):
That's the jail Marty and his co defendant David Johnson
were being held in. Robert Taylor claimed that through the
air ducks he'd heard Marty admit that he'd killed Grace,
that they were members of rival gangs and they were
fighting over stolen guns before the shooting. Marty says Taylor
was known in the jail as a snake.
Speaker 2 (11:48):
They caught him white chocolate. Watch him. He is snitched.
He jumping on people's cases. He doing this and doing that.
Speaker 1 (11:55):
So Marty stayed away from him, but it didn't matter.
Speaker 2 (11:59):
I end up getting the a visit from my attorney
and he basically was telling me who they was using
against me on my case. And he showed me a
picture of him. Said, do you know this guy? I said,
that's the jail house snitch that'd be running around here.
He's like, well, yeah, they're about to use They want
to use him as a witness on your case.
Speaker 1 (12:18):
Police had an informant making serious accusations, but over the
following months, the rest of their case against Marty seemed
to fall apart. At a pre trial hearing, Savannah Sorel's,
a key witness, changed her statement.
Speaker 3 (12:33):
Savannah came into court and said again, now, I said
it with Marty, but I didn't actually see Marty. She said,
I saw David.
Speaker 1 (12:41):
Remember David was Marty's co defendant.
Speaker 3 (12:44):
And I knew that David and Marty hung around together
a lot, so I assumed that it was Marty with him,
but I didn't actually see who was with David. I
could just see that there was somebody with David. And
she said that, you know at under oath. In a
pre trial court.
Speaker 1 (12:59):
Proceede and Carlos Mayo, the person who was with Michael
Grace during the shootout, told the authorities that Marty hadn't
been there the night of December twenty eighth.
Speaker 2 (13:09):
When he testified they was firing and my code defended
and they asked him like, okay, did you know do
you know more? To he said, well, I know him
enough to identify him if I if I seen if
he was there, I would have seen him. I would
have knew he was there. But no, I ain knew
of him until they put him on the news.
Speaker 1 (13:26):
This sounds so crazy to me. I feel like there's
more people saying he wasn't there than he was there.
Speaker 3 (13:31):
There was nobody who said he was there besides.
Speaker 1 (13:33):
Robert Taylor, the snitch, right, the snitch who turns out
was getting a pretty sweet deal for testifying.
Speaker 3 (13:41):
He offered testimony to support the police because he was
facing a murder charge. It was the first major offense
he had been charged with. It's pretty clear he was
scared and didn't want to convicted, and in fact, he
got a monster plead deal from the prosecution in that case,
was allowed to plead the involuntary manslaughter only did it
few years in prison to testify to testify against Marty
(14:03):
and others. But Marty was sort of the Marty and
David was sort of the big case.
Speaker 2 (14:09):
That got him that deal.
Speaker 1 (14:10):
But with the pre trial testimony of Sorrels and Mayo
in his favor, Marty thought surely the charges against him
would be dismissed. But then the judge set a trial date.
Speaker 2 (14:22):
I'm like a trial date, Like, I mean, I really
about to say the trial and is I got a
whole witness getting up here saying and I commit this crime.
Speaker 1 (14:29):
Even though it might seem really weak to take to trial.
Speaker 3 (14:32):
There was a lot of pressure to get this case
solved and resolved because at the time there was an increase,
or at least a perceived increase in gun violence in Cincinnati.
There was a lot of impetus to put somebody away
for this crime.
Speaker 1 (14:50):
Amid this climate with fear of violence and constant stories
of gangs in the nightly news. Marty went to trial
in January of two thousand and nine, prosecuted by Gus
Leone and Anne Flanagan. So tell me about trial. So
(15:12):
in my notes, I actually don't have any kind of defense.
Really did that actually happen? Was there no defense?
Speaker 3 (15:18):
Well, so it's it's I'm trying to remember, did help
put your family on this an ALTI?
Speaker 1 (15:24):
Marty's defense attorney in two thousand and nine was Hal Arenstein.
Speaker 2 (15:28):
No, okay, yeah, we talked. I talked to Hall about that,
and he was like, you know, putting the putting your
family up there, They go, okay, you put your mom's
up there. They go your mom? Alaugh, oh you you
put your this and that? Like but when I look
back now, I'm like, I should have put my mom
up there.
Speaker 1 (15:45):
So I went up there for you.
Speaker 2 (15:46):
No one, no, no one.
Speaker 3 (15:47):
There was no defense presented, and that was a pretty
common defense perception that juris don't believe alibis from family members.
Speaker 1 (15:55):
Sure, but how was he defense without a defense?
Speaker 3 (15:58):
So I think the idea, and let me be very
clear about this, Hall is a really good attorney. I
take no issues with anything that Hal did in this case.
Speaker 2 (16:09):
I think the idea that was that this case was
just so weak.
Speaker 3 (16:12):
From the prosecution's point of view that no jury would convict.
And I think that if this case were tried today
on that evidence, juries were skeptical enough that they wouldn't.
But in two thousand and eight, before there was a
little bit of the more sophistication that the jury seemed
to have now, and when people in that time were
(16:33):
afraid of the perception of increasing gun violence, Marty was convicted.
Speaker 1 (16:41):
Sentenced to thirty one years to life for murder, felonious assault,
and tampering with evidence.
Speaker 2 (16:49):
When they say it guilty, I'll say, I'll say how like,
I mean like what, I'm like, I look back, my
mom said we'll pill it, and I'm like like wow,
So like it it ain't kick in right away because
I still ain't know the law. I still I never
been to prison before, so I ain't know how nothing
(17:11):
was I ain't know how the process is with these
appeals and stuff like that, I ain't know. I just
ain't know nothing. I was lost in the whole situation.
Speaker 1 (17:19):
Shortly after his conviction, while he was still trying to
process everything, Marty says, his grandma sent him a passage
from the Bible.
Speaker 2 (17:28):
Song twenty three The Lord is My Shepherd. Shend me
that scripture and she said, baby, she told me, like,
you ain't gonna be able to do that without God.
Speaker 1 (17:35):
So Marty says, he continued reading the Bible and started
going to church.
Speaker 2 (17:39):
I need some hope, I needed some faith, I needed
some beast.
Speaker 1 (17:42):
And he started to reckon with the life he led
before prison.
Speaker 2 (17:45):
I'm locked up for something I ain't do. But whow
I'm locked up? So I had to start looking at
looking at that something led up to this, And that's
when it got to show in my lifestyle. The lifestyle
while I was living lay it up to this. Because
if I wan't in the streets, if I wasn't running
around saying that don't happen to them, That happened to
(18:06):
people like that. But I'm if I wasn't running the streets,
my name would it never came up in that at all.
Speaker 1 (18:13):
So Marty says he decided he was going to change.
Speaker 2 (18:21):
So I'm like, let me, let me get me together,
let me let me learn how to be a father.
So I started taking classes on dad and I and
you know, fatherhood classes don't how to be a father
or you know, like even even how to be a
husband or how to be a brother, how to be
how to beat those and what do it really mean?
Because I was taught wrong. I stay focused, and you know,
(18:46):
I became facilitators of programs in there, you know self,
Like we had a program called Real Man where you
got guys talking to the youth that's coming and we
got guys coming there like eighteen years old. So like
I'm doing things like that through the chat pacer on
Real Man programs. Family First, I was consistent and I
(19:07):
worked out, exercised the lots when in the law library,
just read a lot of stuff like that, and it
changed me.
Speaker 1 (19:16):
Marty put in a ton of work on himself and
his case for years. He appealed his case on issues
like suggestive witness identification because police had shown Sorels only
one photograph instead of a lineup to confirm Marty as
the shooter. Plus another witness had come forward claiming that
she'd seen the shooting and Marty hadn't been involved. Also,
(19:40):
Marty wanted DNA testing on the shell casings found at
the scene, but all his appeals were denied. So Marty
wrote the Ohio Innocence Project, and he waited.
Speaker 2 (19:55):
So one day I'm sitting up in a bed. It
was twenty twelve, and so he said, levis, do you
have a visit. So I'm like, I'm like, damn, I
wonder who this is. I ain't got no visit set up, Like,
I don't know if somebody was coming to visit me.
So I'm like, so I'm thinking, I'm like, oh, that
must be somebody important. So I went ahead and hurry
up put my stuff on.
Speaker 1 (20:15):
When Marty got to the visiting room, it was Donald.
Speaker 2 (20:19):
So I come in there. He got he gotta he
got a missus Donald. He got a look on his face.
Mister Donald got a serious look on his face. He
you know, I'm coming in here, Like hold on, I
know he want he won't playing no games. So I'm like,
he coming there, you know, he talking to me. I'll
tell him he's going though, he say, he said, give
me a few days and I'm gonna talk to somebody.
I ain't telling you it's a goal yet, but I'm
(20:39):
gonna talk to somebody and just call me Monday and
see what's up. So I went back praying, but I
called my mama, like and it's a project. Can't see me.
I don't think the guy liked me.
Speaker 1 (20:48):
But meanwhile, Donald couldn't wait to get started.
Speaker 3 (20:51):
I came back to the office and I started telling
everybody either they got to senizen guy Marty Levingston, and
we gotta get him out and here.
Speaker 1 (20:57):
So Donald and the Ohio Innocence Project to work on
Marty's case for years. They tried to find new evidence
to get Marty back in court. Then their break came
in twenty twenty one. Because of developments in what's known
as touch DNA testing, Donald and his team applied for
post conviction testing on all the evidence that hadn't been
(21:20):
analyzed for prince and DNA during the original investigation. They
were appealing to the same judge that had denied Marty's
previous appeal, but this time the judge wanted to have
a hearing to find out what evidence existed that could
prove Marty's innocence, and she said.
Speaker 3 (21:39):
Maybe I'll grant it, but I want to have the hearing,
and I want to make this state tell us what
evidence exists that could be tested.
Speaker 1 (21:46):
But that never happened. Before any DNA testing could materialize,
prosecutors went back to Marty with a new deal, and.
Speaker 3 (21:55):
At that point the prosecution was willing to offer what's
called this dark please deal.
Speaker 4 (22:00):
So the key to understanding what a dark plea is
is when it's offered.
Speaker 1 (22:06):
Okay, this is Justice Michael Donnelly.
Speaker 4 (22:09):
I presently serve as an Associate Justice on the Ohio
Supreme Court, where I've served since two thousand and nineteen.
Speaker 1 (22:19):
Justice Donnelly is an expert and a vocal critic of
what he calls dark pleas, which are deals prosecutors make
behind closed doors with people who claim they've been wrongfully
convicted who are looking for a new trial, like Marty.
Speaker 4 (22:34):
When you're on the front lines of the system and
you see the injustice that occurs as a result of
a non transparent system and people being coerced into plea bargains,
that should not I think it's an obligation on all
judges to speak up.
Speaker 1 (22:50):
But he didn't always have dreams of advocating for justice
and practicing law. He actually wanted to be a musician.
Speaker 4 (23:02):
So the music career didn't work out the way I expected,
but I've been able to incorporate my love of music
into my life.
Speaker 1 (23:10):
In his mid forties, he started a band.
Speaker 4 (23:13):
We're called Faith and Whiskey, and our motto is, if
you don't have one, you better have the other. We
do a lot of benefits, including the Legal Aid benefit
here in Cleveland, which is the legal event of the summer.
I call it the Jam for Justice.
Speaker 1 (23:28):
So you find being a rocker at night Supreme Court
judge by day they work well.
Speaker 4 (23:33):
Say yeah, Well, my kids think it's cool.
Speaker 1 (23:36):
Justice Donnelly says he used law school as a delay
tactic to get his music career off the ground. But
next thing he knew, he was an assistant county prosecutor
and then.
Speaker 4 (23:47):
Went into civil litication, practiced a total of twelve years
before taking the bench as a trial court judge.
Speaker 1 (23:54):
Justice Donnelly was a trial court judge for fourteen years.
Speaker 4 (23:58):
So I'm fully aware through my observations during those fourteen
years of the coercive nature of plea bargaining as it exists.
Speaker 1 (24:14):
In the modern day please or deals where the defense,
prosecution and judge come to an agreement on a conviction
and sentencing instead of at trial.
Speaker 4 (24:24):
And very early on in my career, and what I
describe as one of the biggest epiphanies of my career,
I began the question the ethics of what takes place
in that back room.
Speaker 1 (24:35):
He says, judges have outsized power when it comes to
backroom negotiations.
Speaker 4 (24:40):
There's no objective criteria that judges use to accept or
reject a plea bargain. Like sometimes you might be in
a judge's back room chambers and that you've come to
an agreed sentence with the prosecution and the defense, and
the judge might say, I don't agree with that. I
(25:00):
think this person has to do five or ten or whatever.
And this gets set in the back room and the
questions never raise. You know what guides the judge to
do that.
Speaker 1 (25:11):
Now, when it comes to people like Marty, people have
been convicted but claim they're innocent, Justice Donnelly says, the
deck is even further stacked against them.
Speaker 4 (25:21):
It is very difficult to have the court system look
at your case for a second time and reconsider it.
Speaker 1 (25:30):
And judges can take their time deciding on a post
conviction case.
Speaker 4 (25:34):
And the judges sometimes let those motions languish for years.
For years, there's no speedy trial or the equivalent of
speedy trial rights for innocence claimants.
Speaker 1 (25:45):
In Marty's case, it took several rounds before a judge
even agreed to allow DNA testing, which could have opened
the doors for a brand new trial. But before Marty
got a second chance at proving his innocence, the prosecution
approached him with a new deal, the dark Plea. Here's
(26:23):
Marty's attorney, Donald Caster again.
Speaker 3 (26:26):
So what they said is, look, we will support emotion
for a new trial, and the basis for the motion
of the new trial is just going to be we,
the prosecutors, believe that Marty was over sentenced. In exchange,
we will expect Marty to plead guilty to involuntary manslaughter.
He will be immediately eligible for release and the case
will be behind him. And it's a tough thing. I
(26:47):
don't you.
Speaker 1 (26:48):
Know what was the option if you didn't take.
Speaker 3 (26:50):
That, to keep fighting over the DNA evidence, And even
if everything fell perfectly into place, it would be another
at least couple of years of litigation before we got
a new trial order.
Speaker 1 (27:01):
At least, Donald says Marty had a tough choice to make.
Speaker 3 (27:05):
Marty was was getting anxious. His parents were getting older. Yes,
he wanted to see them again. His parents, his kids
are growing up without him.
Speaker 1 (27:13):
Justice Donnelly says, this is the crux of the dark plea.
Speaker 4 (27:17):
Do you want to take the risk of what's behind
door number three? You want to take the risk, you
can do that, or here's the keys to your jail cell,
which one you're gonna take. That's that's exactly what happened.
Speaker 2 (27:31):
What's happening.
Speaker 4 (27:32):
So I've never criticized anyone for taking the dark plea
because it's so unconscionable.
Speaker 1 (27:38):
So even though Marty would have to forego the opportunity
to prove his innocence, he decided to take the plea.
Speaker 2 (27:45):
You know what, I'm gonna gon hit and take it.
I know, I'm gonn probably be on parole and I'm
just go I'm just get out. I'm just go get out.
I'm just gonna get out and prove them wrong and
show them wrong. Like nah, I'm I'm no, I was
not who y'all who I was not that, So you
took it, y'all took it.
Speaker 1 (28:06):
On February sixteenth, twenty twenty three, Marty stood in front
of Judge Wendy Cross.
Speaker 2 (28:12):
So you're nervous, I'm nervous, a heart beating. That's when.
That's when she said it's a good day. The judge
said that. Judge Cross said it's a good day, and
they she said everything that she you know, and she
(28:34):
said you will be going home to your family.
Speaker 1 (28:36):
Then I just looked up, like, what did anyone like,
did you hear anything? Was there a gas for a
scream or.
Speaker 2 (28:44):
Fab Yeah, they had to quiet down, yes day, Yes
you heard. I heard them. It was different than when
they said guilty, guilty, it was crying and screaming. This
time it was joy.
Speaker 3 (28:57):
Dark pleas are a really bittersweet moment for everyone. In fact,
when Marty went home finally, I think what Judge Cross
said exactly was it's always a good day when.
Speaker 2 (29:10):
Justice was done was done.
Speaker 3 (29:12):
And that was hard for me to hear because I
was sitting in the room and while I was very
happy that Marty was going home, it didn't feel to
me like justice.
Speaker 2 (29:19):
Was happening that day.
Speaker 1 (29:21):
That bitter sweet feeling is one Justice Donnelly shares, which
is why he's made it his mission to stop the
practice of dark please.
Speaker 4 (29:30):
This is the way power works in the dark.
Speaker 1 (29:33):
If it were up to him, the judge in Marty's
case wouldn't have allowed for a backroom deal with the prosecutors.
She would have held a hearing out in the open.
Let Marty's lawyers prove his case and make the prosecution
stand by theirs.
Speaker 4 (29:48):
Because when a hearing takes place in an open court
where the press contend it can attend and observe, you
see the merits or the lack of merits rise or
fall to that standard that the innocent advocates are trying
to get. Hey, the theory of guilt that was told
to the original jury has been completely undermine and then
(30:09):
it becomes clear to the judge you have to put
the defendant or a new trial or not.
Speaker 1 (30:15):
As far as in his own courtroom, Justice Donnelly decided
long ago to put all backroom conversations on the record.
Speaker 4 (30:24):
That way, everybody's held accountable, the prosecutor of the defense,
lawyer and me, the judge.
Speaker 1 (30:29):
Justice Donnelly actually coined the phrase dark plea because he says,
if you can name it, you can fix it.
Speaker 4 (30:35):
If this term were to become commonplace in saying, and
you could say, Judge, they want to offer me a
dark flea, and the judge could say, no, we're not
letting that happen.
Speaker 1 (30:47):
Marty was released in February of last year into the
arms of his loved ones, and since getting out, Marty
he has wasted no time catching up on life.
Speaker 2 (31:03):
Everything been great. You know when I first came home,
you know, I I got married two months later to
my wife, Latoy Elevenston, and we got married April to eighth,
(31:26):
and since then, it's just been it been, it been
because I'm learning now. So she she, she, we we
kind of bump. Here is a lot because I'm I'm
still learning. She been out here.
Speaker 1 (31:37):
So what's one of the hardest things You're learning?
Speaker 2 (31:41):
Patience? Like being patient with things, like being in line
for something, or even even like you know, just even
dealing with finances and stuff. It's just different little things
that I have to learn.
Speaker 1 (31:52):
What's what's it like being back with your kids? I
mean some of them you really didn't even see them
grow up.
Speaker 2 (31:57):
I'm starting to learn how important I am and my
responsibilities as a man in the house, you know, because
you gotta think I'm coming inside of the house with
some children that don't don't know me. You ain't grow
up with me. So like they gotta learn my space.
I gotta learn. I gotta learn what to say. Not
they like they learning me too.
Speaker 1 (32:18):
Marty works as a stationary steam engineer and has a
clothing line with his cousin called Extravagant Culture Department, and
he's been attending speaking engagements with Justice Donnelly and Donald
at the OIP the Ohio Innocence Project to advocate against
wrongful convictions and dark Please. Marty not only considers them colleagues,
(32:39):
but family or if.
Speaker 2 (32:41):
He been with me all the way through, you know,
like just even like if I'm going through something, I
could call them for anything, Like I mean, I call
him all during the day, like I called him, mister Donald,
take some callum. I call anybody from down there and
they go pick up to me and it's not fake.
(33:01):
If I need to see him, I still go down
to the office all the time down on the college.
I think I'll come in there more to anybody.
Speaker 3 (33:09):
You may be there more than I am.
Speaker 2 (33:11):
Yes, so I always go down there and check on everybody.
It's my family.
Speaker 1 (33:16):
So thank you for listening to Wrongful Conviction with Maggie Freeling.
Please support your local innocence organization. You can go to
the links in the episode description to see how you
can help and to read more about Justice Donnelly's work
(33:36):
on Dark Please. This episode was written by me Maggie Freeling,
with story editing and mixing by senior producer Rebecca Ibada.
Our producer is Kathleen Fink. Our researcher Shelby Sorels, with
additional mixing by Josh Allen and additional production help by
Jeff Cliburn and Connor Hall. Executive producers are Jason Flahm,
(33:56):
Jeff Kempler, and Kevin Wurtis. The music is by three
time OSCAR nominated composer Jay Ralph. Make sure to follow
us on all social media platforms at Lava for Good
and at Wrongful Conviction. You can also follow me on
all platforms at Maggie Freeling. Wrongful Conviction with Maggie Freeling
is a production of Lava for Good Podcasts in association
with Signal Company Number one
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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