December 19, 2024 • 40 mins
Since releasing the 500th episode of Wrongful Conviction earlier this month, we thought it appropriate to spotlight some episodes from the very first season of Wrongful Conviction.
On the afternoon of November 4, 1986, the body of an African-American woman was found lying under a blanket near a busy highway in Brooklyn, NY. She had been strangled to death. A witness told Detective Louis Eppolito that he had been jogging on the day of the crime and had seen a white man and a black woman sitting in a gray car parked by the highway. The man said he then watched the white man walk to the passenger side of the car and pull out a body, lay it on the ground and place a blanket over it. Eppolito learned that Barry Gibbs knew the victim and closed in. Barry was charged and convicted of second-degree murder primarily on the testimony of the jogger who later recanted. Jason Flom, Barry Scheck (Co-Founder of The Innocence Project) and Vanessa Potkin (Director of Special Litigation for The Innocence Project) sit down with Barry Gibbs as he details his unfathomable odyssey.
To learn more, visit:
https://innocenceproject.org/cases/barry-gibbs/
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We have worked hard to ensure that all facts reported in this show are accurate. The views and opinions expressed by the individuals featured in this show are their own and do not necessarily reflect those of Lava for Good.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
You know, every episode of this show has been a
roller coaster ride and a powerful emotional experience for me,
none more so in the episode I recorded with Barry Gibbs,
a beautiful, wonderful, warm, teddy bear of a man who
was wrongfully convicted in one of the most egregious cases
(00:25):
that any of us have ever seen, and exonerated in
one of the most amazing twists of fate. You have
to listen to his episode to hear the whole thing.
I can't even paraphrase it, but the sad news is
Barry died after battling an illness on March twenty third,
twenty eighteen. Barry, rest in peace, my friend. You're gone
(00:48):
but not forgotten. Now please listen to the incredible Barry Gibbs.
Speaker 2 (01:01):
I came from a beautiful neighborhood. I had a beautiful life.
I went to sleep because September seventh was the first
day of my high school year. I was going to
be a senior at twenty two, I was set to
start college. I woke up and my life was never
the same again. Cops came out with guns drawn, and
(01:21):
I never saw freedom ever since after that. It's like
roach Mo, Tom once you get in and I can't mount.
Speaker 1 (01:29):
In nineteen eighty six, a woman was strangled and her
body was dumped from a car on the belt Parkway
in Brooklyn, New York City. In order to protect the
known mafia associate who was the real suspect in the case,
the detective Louis Eppalito co Where's two eyewitnesses into changing
their story and placing Barry Gibbs at the scene of
the crime. Based on this false eyewitness testimony, Barry Gibbs
(01:50):
was convicted and served almost two decades in prison before
he was exonerated. The guys broken.
Speaker 2 (01:57):
I made a seventh Terry plot a life in Sherman's Wolfe, the.
Speaker 1 (02:04):
Corrupt cop who was responsible for coercing these eyewitnesses, was
ultimately convicted of eight murders that he carried out for
the mafia. He's currently serving life in prison.
Speaker 3 (02:16):
To say corrupt is the understatement of all time. Lewis
Epolito was working at this point in time for a
crime family in New York City.
Speaker 1 (02:27):
This is wrongful conviction. With Jason Flamm, we have a
very special guest today, actually we have three very special
guests today. The number one is Barry Gibbs. Barry's an
(02:49):
exignery who served almost two decades in prison for a
murder he didn't commit, and his story will rock your world,
to say the least. And in addition to Havingry on
the show, we have another Barry. We have Barry times
two today. Barry Sheck, the co founder of the Innocence
Project and a personal hero of mine, is here. And
we also have Vanessa Popkins. Vanessa is the newly promoted
(03:14):
and anointed director of post conviction Litigation for the Innocence
Project and she's been a long time lawyer with the
innocentce Project, long serving lawyer with the Noconce Project. We're
thrilled to have both of you, all three of you
here on the show today, So welcome. So Barry Gibbs,
Let's start at the beginning, which is where did you
(03:34):
Where were you born? Let's start with that. Let's go
all the way back.
Speaker 2 (03:38):
We can go all the ways back. I was born
in Brooklyn. I was raised in sheeps At Bay. I
worked in a post office. I came from a beautiful neighborhood,
had a beautiful life, beautiful wife, had a house, had
(03:59):
a family, had a car. Every two years had a
good job.
Speaker 1 (04:04):
American dream pretty much right, I mean, until it wasn't.
So you served honorably served your country in a war
that we won't get into the politics of that war,
but the fact there's a crazy situation for any young
man to find himself in. Now you come back and.
Speaker 2 (04:19):
I wind up, I wind up, I'm young, I get married.
I find a beautiful woman. All along sitting in an
office I was. I was showing intimidated by her beauty
that it took me a year and a half to
get up the courage to just ask her out for
a couple of coffee.
Speaker 1 (04:36):
This sounds very romantic, by the way. I just wants
to know truth. I know, but I'm feeling a little misty.
It's like in the movies when you get that you know,
foggy thing and you go back in time. So you
finally got the courage up, you asked her coffee.
Speaker 2 (04:48):
I used to deliver a mail toward she'd sit in
that office on a dictive phone. I never saw a
woman type as quickly as she did, and I was amazed.
Speaker 1 (04:57):
So you charmed her and you eventually married her. Right,
because otherwise we wouldn't be talking about it right now.
Speaker 2 (05:03):
Yeah, she was. She was a gift from God, she
really was.
Speaker 1 (05:06):
And you married the girl of your dreams. So that's again,
it sounds like an American American dream story up until
it's not. And I want to get into that because
we have we have Barry and Vanessa here, which is
really a treat for the show, and I want to
talk about your your your Kafka esque journey through the
criminal justice system, because yours, is saying to Barry before,
(05:29):
it's like the triple crown of malfeasance. Right, you had
jail house snitches, you have police miss and prosecutorial misconduct,
and then you have a situation where they either can't
find or won't or won't turn over the evidence that
could have exonerated you long before your two decades in prison,
and it was it was a life sentence. Is that right? Yes,
(05:53):
So so let's let's turn it over to uh to
the lawyers for a second. Here, When did you first
become aware? And can you give us a little background
on how this happened in the first place, because this
should never happen.
Speaker 4 (06:04):
So basically, in the mid nineteen eighties, a woman from
Brooklyn was murdered She was an African American woman. She
was strangled and her body was disposed of on the
side of a road on the Belt Parkway, and there
were a couple of witnesses who actually saw there. It
was a white man who was dumping the body essentially, and.
Speaker 1 (06:25):
So there are two witnesses.
Speaker 4 (06:26):
There was two witnesses. One was a park police officer.
Speaker 1 (06:29):
And the Belt Parkway is a major thoroughfare in Brooklyn
just for people who around the country who don't know
the geographics, so go ahead.
Speaker 4 (06:36):
Right, And there was a park police officer who had
driven by and saw the person the perpetrator, getting out
of the car. And there was also a guy, Peter Mitchell,
a witness who was jogging in the area who also
witnessed kind of the same set of occurrences. And so
(06:57):
the victim had been strangled. She was later discovered to
have hairs on her body. And you know, there was
a lot of evidence later on that we could have
done DNA testing on if we would have found to
show who did this. But Barry, you know, there was
this detective Lewis Epilito who wasn't even on duty at
(07:19):
the time, you know, wasn't wasn't on shift, but ended
up showing up at the crime scene and basically took
charge of the investigation.
Speaker 1 (07:27):
And why did he do that? I mean, that seems
very irregular, right.
Speaker 3 (07:30):
Something's wrong with him, Something's wrong with the whole way
this case goes down. He sweeps in to take over
this case, right, and all of a sudden it's his case.
And he goes and finds Peter Mitchell and he.
Speaker 1 (07:44):
Creates this Peter Witchell's the jogger. The jogger.
Speaker 3 (07:48):
All of a sudden, this guy is identifying Barry. He
takes care of the whole thing.
Speaker 1 (07:54):
And why did Barry even come? I mean, he wasn't
anywhere near the crime scene? How did his name even
come into the picture? Here?
Speaker 3 (08:00):
We we we now know, right, you see, at the
time that we're doing this case, we don't know exactly
why Epilito was doing all these things. And of course
there's a house snitch that emerges in all of this,
so it goes to Tarlie gets convicted. We don't have
the DNA evidence, and frankly, as you know, well Jason,
you know at this time with the Innocence project, if
(08:22):
we couldn't find the biological evidence to do a DNA test.
We had to close the case.
Speaker 1 (08:27):
Right, because that was that was the mission of the charter,
basically the Innocent's Project. We work on DNA cases. Now,
of course this change is afoot, but that's beside the
point way, right.
Speaker 3 (08:35):
So but we we even though we had pretty much
established that we couldn't find the hares and the clothing
or anything like this, we just couldn't close the case.
Speaker 1 (08:46):
Which is odd, right because by definition, this is the
type of one way you go well of it that should.
Speaker 3 (08:50):
Have been closed. So what happened was what Barry is
getting emotional about is that we were essentially saying to him,
we're going to have to drop this case, right, but
we couldn't.
Speaker 2 (09:01):
What you did, I'm going to tell you what you did.
Speaker 1 (09:04):
You broke my heart?
Speaker 2 (09:06):
You really did, you guys broke my heart. I made
a cemetery plot, a life of surance policy.
Speaker 3 (09:18):
And then all of a sudden we wake up and
in the front page of all the newspapers in New
York City.
Speaker 1 (09:24):
What year, what year?
Speaker 4 (09:26):
What year was two thousand and four.
Speaker 1 (09:27):
So this has been going on now for this has
probably been about for eleven years.
Speaker 3 (09:31):
Now, twelve years, yeah.
Speaker 1 (09:33):
Two thousand and four you opened the newspaper.
Speaker 3 (09:35):
Opened the newspaper, and there's a story that a former
New York City Police detective, Lewis Epalito, who was famous
in his time because he wrote a book called Mafia Cop,
where he described how his parents had been The father
had been involved in the organized crime, but he hadn't been,
and he was a great hero cop, uh, you know,
(09:57):
and got a lot of publicity. He was a cop
that arrested Barry and took over suddenly swoops in and
takes over this case. So Vanessa and I look at
this and we go, oh my god, it's we got
to call them up and say whatever. They had arrested
at Ballito.
Speaker 1 (10:16):
Right, That's why the stories they had arrested.
Speaker 3 (10:18):
At Ballito and Kara Kappa, another detective with whom he worked,
because it was alleged that he had become involved with
the mafia.
Speaker 1 (10:28):
I remember reading the story and he the.
Speaker 3 (10:31):
Two of them had begun doing hits for a crime family, right,
and they literally were killing people one after another.
Speaker 1 (10:38):
You know, this sounds like it's straight out of a
Hollywood movie. Rights. We have we have guys in blue
wearing badges doing hits for the Mafia in New York City.
Speaker 3 (10:46):
It's all true, and it's crazier than that Chason because
Lewis Eppolito, the so called mafia cop, was in the
first scene right of Goodfellas, very first scene of Goodfellas.
Speaker 1 (10:58):
Like art imitating life imitating art. Years before he was
exposed as being a hitman for the mafia and disgraced,
Louis Eppalito appeared on Sally Jesse Raptael, What.
Speaker 3 (11:10):
Do you do now, Big lou Well.
Speaker 5 (11:13):
I've acted in nine movies. I've been in Goodfellas, State
of Grace, Predator to I tried writing a screenplay. Gene
Hackman has been really great with me and Mikhail Ershnikov
and I did a movie with them called Company Business,
and I wrote a screenplay and it was bought by
New Line Cinema and I just finished the second screenplay
that it's better than policing getting shot out any day.
Speaker 3 (11:34):
Yeah, as far back as I can remember, I always
wanted to be a gangster.
Speaker 1 (11:46):
And Bewhile, if that's not ironic enough, he's also writing
a book about he's how he's not doing what he
is exactly is doing right, So it's like the whole
thing is a circle of madness. That's, you know, hard
to believe.
Speaker 3 (11:57):
So we write into the US Office and we called
them and they say, would you please look into the
Barry Gibbs case because something's wrong with this case. We've
always thought that Barry was innocent, that he was framed,
and unbeknownst to us, and they say, yes, we're going
to do that.
Speaker 1 (12:17):
Get ready for this.
Speaker 3 (12:17):
By the way, unbeknownst to us, the day that they
arrested Epallito in his apartment in Las Vegas, right, they
found the original New York City Police Department file on
the on the Barry Gibbs case. I mean the original one.
One of the reasons that we couldn't find a lot
(12:39):
of things is that it's unprecedented. You know, he's a
copy retires, he goes to the police department and he
takes the original file.
Speaker 1 (12:47):
Well maybe he too, I mean, is it your theory
that he took the file so that it would never
get discovered, and then ironically again he put it in
a place where it could get discovered.
Speaker 2 (12:59):
A second to that, I was sitting in the car
with the DA agents. I don't remember their names. I'm
not giving you guys up and I said to them,
how many files did you find in the house? And
he said three? And I says, well, I'm on my
way down. What happened to the two water files?
Speaker 1 (13:19):
You know what?
Speaker 2 (13:20):
He said to me, don't worry about them, their career criminals.
I said to myself, you got that. I'm not going
to say nothing, but I really wanted to say something.
Why don't you do your job promptly? Well, they did
what I didn't.
Speaker 3 (13:32):
Let's be let's let's be straight about this. So these
DEA agents and the US attorneys in the Eastern District,
they went out and they started reinvestigating Barry's case. And
they went and they talked to Peter Mitchell, Right's the Jagger,
and he's living someplace in Queens and they walk in
the door and he said, I've been waiting, you know,
(13:56):
twenty years.
Speaker 1 (13:57):
I'm getting the jails right now.
Speaker 3 (13:59):
For somebody to say this to me. And he bursts
into tears and he describes how Epillito threatened him. He himself,
Peter Mitchell had been an Army veteran, right he had
a felony conviction, and Epilitos was threatening him, you know,
both physically and to expose him and destroy him. And
(14:19):
he brought him into the precinct and he showed him
who Barry was. And then they held this ridiculous, bogus
lineup and you know, he identified Barry Gibbs.
Speaker 1 (14:31):
So, yeah, he was given basically no option.
Speaker 3 (14:34):
Yeah, I mean it was a force.
Speaker 1 (14:36):
So what about the other witness Barry? Who was the
park the park police officer he said, a park ranger or.
Speaker 4 (14:42):
Something, officer Gentilly. He You know, the crazy thing about
him is that nobody, you know, he would have been
the most reliable witness, right, He's an officer, he's trained
to make identifications. Nobody ever asked him that we know of,
to look at Barry Gibbs and say is that the
person you saw? Because they didn't want to know.
Speaker 3 (15:03):
When you go back and you look at this case,
this is one of the Yeah, I mean, this is
what makes Barry Gibbs, this case extraordinary in one respect
is that it was a completely corrupt cop. And to
say corrupt is the understatement of all time. Lewis Eppolito
(15:23):
was working at this point in time for a crime
family in New York City. He and Kara Kappa, I
think we're involved in the assassination of eleven people. There's
a terrific book written about Lewis Epolito case and it's
called The Good Rat by Jimmy Breslin, you know, perhaps
the greatest, you know, pulitzurprise winning columnist that we've ever
(15:49):
had in this town. And he talks about Barry's case.
But they were running around killing people, you know, and
the Lukesey crime family would say, well, why don't you
go kill Guido, and they killed the wrong Nicki Guido.
Speaker 1 (16:02):
They did.
Speaker 3 (16:04):
Nick They're all contract killings. And so what we have
been able to figure out through litigation after Barry was
uh exonerated, essentially through the work of these DEA agents
who went out and found Peter Mitchell and you know,
showed that the whole case was a frame up. We
(16:25):
now know that the day that the witnesses saw this
body of this poor woman being dumped on the belt
Parkway right that the description matched somebody that worked at
a chop shop in Brooklyn.
Speaker 1 (16:41):
Who was known to the cops, who was known.
Speaker 3 (16:44):
And Epolito mysteriously shows up the next day. The next
day we found out this guy who was suspected who
to meet the description, right, shows up at the police
precinct with his died because originally they described it as
somebody with salt and pepper hair. He shows up with
his hair dyed black and a lawyer to talk to.
(17:06):
Epolito appears about that, which appears in no police reports.
Speaker 1 (17:11):
No, there's no reason to take a look at that.
I wouldn't.
Speaker 3 (17:14):
But you know, when you look back at this, it's unbelievable.
Speaker 1 (17:31):
So let's go back to the case. So nine years
after Barry's conviction, a Brooklyn judge ordered the state to
submit evidence from the case for DNA testing. And then
what happens, right, It would seem like at that point, Okay,
now we got a break. Right now, we're going to
get this guy out. Some of the evidence had apparently
been destroyed and other items couldn't be found.
Speaker 2 (17:49):
Okay, that's their side of the case. But my side
the case is different from that version.
Speaker 1 (17:55):
Right there, Okay, let's hear it.
Speaker 2 (17:57):
Okay, when I was in jail at Riker's Island six
months later or whatever, I can't remember exactly how many
months later, the district attorney wanted me to give hair
samples again. My attorney came up to me, and I
(18:17):
said to him, I'm not giving it. And he says why.
He says, because I'm being framed. I'm not giving it.
He says, listen, Barry, he says, I'm there to represent you. Now,
he said, pay attorney, I'm there to represent you. He says.
I says, you're gonna be there to represent me when
(18:38):
they take these heirs and they're done together, Like, are
you gonna be physically right there? He said to me. No,
he says, I'm gonna be there when they take the
hair samples and they heat seal it and they're gonna
give the evidence to who epilto.
Speaker 4 (18:55):
The chain of custody really fell off with Epilito himself
in terms of having handle the evidence, and it was
just am I.
Speaker 3 (19:02):
A you know, And the funny thing that Barry Gibbs
is saying is that, you know, he doesn't even want
to give his hairs because he doesn't trust And you know,
from the lawyer's point of view, he's going, oh, I
got this Michugan client, this crazy client. It doesn't even
want to give up airs.
Speaker 1 (19:19):
But one of the greatest frame ups in the history
of New York City.
Speaker 3 (19:22):
And what's crazy is that you'd look at him and go,
you're you're convinced that you're going to be framed, and
you won't even give your hairs, and you're saying that
we can't trust the detective to even take them to
the crime lab and give it a straight up examination.
And it turns out everything he suspects is completely true.
(19:43):
It is a complete frame. The guy is working for
the mafia, He is assassinating people. He probably played around
with all of this evidence. We can't prove all of that,
but we proved the hell of a lot of it.
Speaker 1 (19:55):
So for a postal worker for oppostal worker, Barry turns
out to be a pretty good scientist, huh, I mean,
or at least a psychologist. Let me ask you this. Also, so,
the New York City crime laft has faced criticism for
its difficulty difficulty is a strange word, for its difficulty
handling on to put that in quotes and storing evidence.
In twenty thirteen, the New York City Medical Examiner's Office
announced that it had discovered more than fifty cases in
(20:17):
which the office failed to upload critical DNA evidence from
crime scenes to the state's DNA database, which prevented those
samples from being compared to genetic material from convicted offenders.
This discovery led to the firing of the office's deputy
director of quality assurance, which sounds kind of like a
fall guy to me. I mean, the deputy director of
quality assurance. That sounds like somebody who works at a
(20:38):
snack food company or something like that. You know, so
can we can you tell me more about that? Because
people like to think that these people are doing their jobs, right.
I think the public likes to think that when you have,
you know, a crime lab, that these people are on
is now, of course, after making a murderer and after
the different things that have come out recently, I think
(20:59):
that has generated so much attention that people probably have
a little more skeptical view. But even as a lay person,
before getting involved with Innis's project, I thought so too.
I thought that these people do their jobs. These are
honest actors.
Speaker 3 (21:11):
Right Number one, what Barry and Vanessa were describing about
the search for his evidence, right, It is true that
in the old days, at the time that Barry was convicted,
they had a terrible system for keeping track of the evidence.
It was a mess. And that's not unlike places all
(21:33):
across the country. It was a total mess, and they
did have fires and asbestos and floods, and they did
recently after Sandy, have a problem. But you know, having
said that, we did have a problem for years in
trying to get a fair search because the evidence custodians really,
(21:56):
you know, they were being deliberately indifferent to the need
to go look for evidence, even when people were asking,
go find my evidence. A DNA test could prove me innocent.
They really weren't trying hard. But now I do believe
that that part of the operation has been professionalized. They
have a limb system, you know, it's sort of like
(22:18):
a barcode system, laboratory information welcome to twenty sixteen.
Speaker 4 (22:22):
They haven't got they haven't gone back completely, so there's
evidence from decades ago. You know, that's still a mass.
So it's still it's still incredibly hard for innocent people
today in New York City to get access to evidence
to prove their innocence. They didn't go back and cleaned up.
Speaker 1 (22:38):
And it's odd because married and I we talked about
this before. You know, our clients. I sometimes think of
them and I hope you think this the right way,
as some of the luckiest of the unluckiest people on earth, right,
because you can't be unluckier than to have it's tragic
and an unluckiest there's an understatement than to have yourself found,
find yourself in a situation where you wrongfully convict and
(23:00):
then you know there's we know that there's you know,
tens of thousands maybe more people in prison who are innocent,
and then for them to be fortunate enough to get
the innocence part, to have the Innostance Project take their case,
and then to have the evidence found as it was
in Barrie's case, is really something that could only be
described as, you know, half a so sort of like
(23:21):
a miracle.
Speaker 2 (23:22):
We're blessed, but we've touched. I don't know what it is.
You kind of surrendered to everything and anything to be
at the place, oh man, because whatever it is, it's.
Speaker 1 (23:37):
It's unbelievable in order to move on with your life.
Speaker 2 (23:40):
Yeah, I did angels as angels you don't want to
believe it, there's angel.
Speaker 1 (23:57):
I want to talk about the misconduct because, according to
a study done by the Endsis Project of Minnesota, official
misconduct meaning police or prosecutorial misconduct, was a contributing factor
in forty six percent of all DNA exonerations on records
since nineteen eighty nine. Police suppressed evidence that might support
a defend its innocence in over one third of the
first seventy four exoneration cases. So that's one group that
(24:19):
we studied. And nine percent of exoneration cases involved allegations
of police coercialing witnesses into testifying, as was allegedly the
case in your trial. Well we know it was the
case in your trial. Bury. So Barry, I know you
and I talk about this a lot, and Vanessa I
love to hear what you have to say about it.
You know, the prosecutor of misconduct is this? I mean,
is it just blind ambition that drives these prosecutors? And
(24:42):
how is it? Like it always blows my mind that
a prosecutor can be so morally bankrupt that they can
be and ethically that they can be comfortable and sleep
well at night while deliberately knowingly prosecuting and convicting and
sometimes sentencing to death the person they know to be innocent.
(25:02):
But then the other problem.
Speaker 3 (25:04):
Is but that's see, that's where I would take some issue, right,
and that is that I think much of it. The
misconduct is something that has been termed noble cause corruption,
and that because they actually believe that they're prosecuting a
(25:28):
guilty person, and then when the exculpatory evidence seems to
pop up right, left and right, because it turns out
they're actually prosecuting an innocent person, unbeknownst to them, it
gets hidden. And that's why it's so important for lawyers
to play by the rules, and that we're talking about
(25:50):
prosecutors playing by the rules that even if you think
you've got a guilty guy who committed a horrible crime,
you still have to play by the rules of our
system and disclose exculpatory evidence and not push witnesses beyond
what they really are really saw or heard or want
(26:11):
to say. That you have to somehow control, you know,
the kinds.
Speaker 1 (26:18):
Of impulses, right impulses.
Speaker 3 (26:20):
To win that you know are so prevalent in the system.
That's on the one hand, on the other hand, you
need strong defense. You need lawyers that are educated, that
are well funded, you know that are going to do
the job, because unless the defense plays by the rules
and does its job and exposes the problems in the case,
(26:42):
the system implodes.
Speaker 1 (26:43):
Well you have, and you have the perfect storm there, right,
you have over ambitious prosecutors who become blinded by by
their belief in the noble cause what do you call it,
noble cause corruption or and or their own ambition. And
then you have a public defense who may be not
up to the task, they may not be qualified, or
(27:04):
they may just be overworked, overwhelmed. Yeah, because some of
them are some of them are dealing with a hundred
or more cases at a time, right, so they can't
possibly devote the type of time that they would need
to do to mount a robust defense. But the other
thing that always, you know, boggles my mind is that
as if a prosecutor does let's let's assume the worst
(27:27):
in this case. And we know there are those cases
right where prosecutors are just like, we got a guy,
we're just gonna nail them, We're gonna get it off
our desk, we're gonna close this case, and we're gonna
move on. We see that, and it's and and of
course it happens, and sometimes it's noble colast corruption. Sometimes
it's that. But in those cases, what I can't understand
is how they could well, well, what we know is
(27:51):
that when you convict the wrong guy, by definition, you
stop looking for the right guy, right. And so if
a prosecutor is motivated but nothing other than selfish interest,
especially in a small community, you got to do the
math and say, well, look, if the right guy's still
out there, and he's going to go almost invariably or
inevitably and go and commit more terrible crimes, it could
happen to your own family or somebody you know or
(28:12):
somebody you love. As a prospect of talking about right,
So wouldn't you think that as a public service, if
nothing else motivated them to do the right thing, that
they would want to get the real perpetrator off the street.
And of course we know that in many of our cases,
I don't know the exact percentage when we've exonerate did
as a guy, we find out that the guilty guy
has actually gone and committed terrible crimes against people who
(28:33):
never needed to be hurt or killed in the first place.
Speaker 3 (28:36):
Among the DNA exonerations, close to half involve cases where
we've been able to identify the person who really committed
the crime.
Speaker 4 (28:45):
But in a lot of cases too, it's just, you know,
there really aren't incentives. There need to be more incentives
on prosecutors, you know, taking on if they get a
case that's brought to them by the police and it
doesn't seem right or they're getting you know, some exculpatory
information to reinvest instigated and not just to see their
job is to go forward with the case that the
police brought them and to prosecute it. And you know
(29:07):
right now is the incentive is to win, not necessarily
to reevaluate the case, you know, built into the prosecutor's
offices and just in terms of you know, how they're evaluated,
what's considered to be a successful prosecutor. And in working
with some of the conviction integrity units where you know,
prosecutor's offices are going back and looking at the cases themselves.
(29:27):
You know, we've heard some of from some of the
leaders you know in this area that you know, when
you're a prosecutor, you completely dehumanize the person who's accused.
You know, that's how you do your job. And so
it also I think takes a you know, we need
a reevaluation in our system. We don't treat people who
are coming through the criminal justice system with any sense
(29:49):
of humanity and that allows prosecutors to kind of put
blinders on, and you know, it's not somebody that they
can relate to. You're not seeing what the devastation that's
happening to the individual to or family. You know, that
is completely missing for their people.
Speaker 1 (30:04):
And I think sometimes we lose track of that. They're
they're not They're not just subjects or people who are
accused of something or numbers or whatever. They're actual people.
And we see that over and over again. So the
conviction review units, this is a relatively new things. It's
sort of what I think for about five to ten
(30:26):
years now, right.
Speaker 3 (30:26):
Well, it really started in earnest in two thousand and
seven in Dallas, Texas, when an African American defense attorney
at the age of in his thirties was elected District
Attorney of Dallas.
Speaker 1 (30:41):
Pretty unlikely scenario all right round, and.
Speaker 3 (30:45):
You know it was kind of a fluke or unexpected
and he came into office, Craig Watkins, and among the
first things that he did is that he created this
conviction integrity unit. The Innocence Project actually went to a
foundation that got him put up half the money because
it was a matching thing of the Dallas City Council
(31:06):
and this foundation, the Jet Foundation, and he put in
charge of the conviction Integrity unit a guy named Mike
Ware who came from an innocence organization in Lubbock, Texas.
So the Innocence Project of Texas, working with our Innocence
Project based in New York, started working with the Dallas
(31:28):
District Attorney's Office and their conviction Integrity Unit and reviewed
all the cases where they had been resisting requests for
DNA testing and reviewed them all. I mean we literally
got the entire prosecutor file, looked at it, reviewed the
case sometimes when there was no DNA evidence. Although in Dallas,
(31:49):
as opposed to New York, they were able to find it.
That's why there's more exonerations in Dallas than in most states.
If we had been able to find the evidence in
New York the way we've discussed before and when we
were searching for it in Barry Gibbs's case, if we
can find more of it, New York would have hundreds,
hundreds of exonerations. I think any firm minded person would agree.
(32:12):
We just couldn't find the evidence of so many.
Speaker 1 (32:13):
Dallas go from the county with the highest execution rate
to the county with the highest exoneration rate just about yeah,
which is an incredible Let's think about that for a second, right,
and what that conviction review unit has meant to these
people who were some of them would have been executed there.
Speaker 2 (32:27):
Could you imagine on death row?
Speaker 1 (32:29):
No, you can't imagine it. No one else anyone can
imagine it. Maybe maybe you can imagine, right, but no
one else that hasn't been there can imagine. And that's
one of the reasons why we do the work that
we do. So these conviction review units, I believe there's
not twenty four of them around the country, right, Well,
some of them are affected summer.
Speaker 3 (32:43):
Not some some are for real and some aren't. But
some are for show, right, some are for show. But
one of the uh telltale signs is will they bring
somebody in to that conviction integrity unit or conviction review
unit who has a background as a defense layer, because
(33:04):
the cognitive bias is very, very hard. I mean, you know,
I do not believe that there are you know, most prosecutors.
I think it's a rare, rare exception, you know, actually
get up in the morning and say I'm not going
to convict an innocent person. I don't you know, I
don't think that really happens. But I think what does
happen is, you know, you get what they call hard charging,
(33:26):
people who lose track of playing by the rules or
the humanity of the defendants, or the gravity of their responsibilities.
That can happen. And it's a question of you know,
cognitive bias. Right, you have to change the whole orientation
of how prosecutors look at their job. And by the way,
(33:47):
you know, overwhelmed institutional defenders. Right, you know, you have
so many cases you begin to look at them and go, well,
you know, I got to get through my docket, right,
and every case looks the same, you know, and you
don't put in the effort because you.
Speaker 1 (34:04):
Can't and you don't have the money to hire the
type of people that you would need to go and
prove you as whereas the government can parade out a
forensic thing or sign as we saw it again and
making a murderer. I just had two more questions I
wanted to ask you one, you know, back to the prosecutors.
So we need to have, as Vanessa was saying, a
higher standard or a better way of evaluating prosecutors so
(34:26):
that they are more driven to achieve results that are
based in fact, let's just call it that as opposed
to achieve achieving convictions, to achieve justice as opposed to convictions.
But we also need, in my view, we need to
have a much stronger system of prosecuting prosecutor holy prosecutors
accountable in this country. As far as I know, you know,
(34:49):
we've had with all the prosecutorialist conduct we've seen throughout
the decades, there's only really been two cases of any
prosecutors being held accountable in a way that winds that
lands them up in jail. Barry, can you just speak
for a second about the prosecutorial misconduct and how they
can be held a contable. What chine of changes have
to be made for these guys to be thrown out
(35:12):
or thrown in jail.
Speaker 3 (35:13):
Well, there's some simple things that might be done. One
is that the Justice Department could bring prosecutions when we
find out years later that a prosecutor engaged in deliberate
misconduct that led to the conviction of an innocent person
intentionally deprived them of their civil rights. The problem that
(35:36):
we've had in the past is when we go to
the Department of Justice and say, look, we have DNA evidence,
We have all kinds of evidence that showed that somebody
was deliberately framed. This prosecutor should be prosecuted. They say
to us, Look, the statute of limitations under federal law
is five years, and it's very hard to conjure an
(35:59):
ongoing conspiracy to conceal it in most of these cases,
so there would be no jurisdiction for the federal government
to do that. It's possible to amend the laws, so
I think that might make a big difference. The other
aspect is that there has to be a concerted effort
(36:20):
to hold lawyers to their ethical responsibilities. One of the
things we found is that even in bar discipline, there
are statual limitations problems, and the bar discipline system does
not take seriously those prosecutors who break the rules, and frankly,
the defense layers who simply you know, have given up
(36:43):
and are just collecting checks and are not providing effective
assistance of counsel. And so one of the things we
have to do is change that system so that people
take that seriously. They can lose their licenses, they can
actually be prosecuted in the most egregious of cases. And
if that happens, I think that you know, you will
(37:06):
begin to see change. And we have we can't talk
past each other, and we can't say, you know, demonize.
You know, it's not all prosecutors that you know are
engaged in this kind of conduct.
Speaker 2 (37:19):
Far from it.
Speaker 1 (37:20):
No, there's a lot of good guys out there we know,
and I've always admired that the fact that you managed
to keep your sanity through all the things that you've
gone through with these crazy cases and the people you've
had to deal with. So before we wrap up, Barry,
what can you share with us? You served nineteen years
in prison for something you didn't do. Your presence always
lights up a room, you know. I know that when
(37:42):
you all can't see him through the radio, but when
you're at the Ennocence Project dinner, I know I always
look forward to seeing you. He's he Barry is a guy.
He's I don't even know how to describe him, but
he's just larger than life character. Who is you know
who really drives that? It really motivates I still want
to do more. You know, when we meet somebody like
(38:03):
you who's just got an incredible spirit, and uh, you
know who has overcome so much and been and really
served the country honorably and done so much. You know good,
it's it's a fantastic guy.
Speaker 2 (38:15):
I suffer to this day, you know, because you took
me out of a beautiful home. You threw me into
the military. I did a good life for a few years,
had a beautiful life, and this happens to me and
you throw me in jail. Do you really expect me
(38:35):
to feel like other people? I doubt it. I'll never
feel that way. You know, I've been through therapy. I've
you know I've I've been through a lot just to survive.
I mean, I was in the hospital, I was messed up.
I thought I was gonna die. I'm here, I've been saved.
I don't know why I got angels around me. If
(38:58):
I need a Brockram spot it stay up for me.
You know, I don't know what it is. You know
what I'm saying. And those are my angels. Those are
my angels that are around me. But the Innocence Project,
to me, is more than just a family. There are hearts,
(39:18):
you know, there were hearts.
Speaker 1 (39:28):
Don't forget to give us a fantastic review. Wherever you
get your podcasts, it really helps. And I'm a proud
donor to the Innocence Project and I really hope you'll
join me in supporting this very important cause and helping
to prevent future wrongful convictions. Go to Innocence Project dot
org to learn how to donate and get involved. I'd
like to thank our production team, Connor Hall and Kevin Wartis.
(39:50):
The music in the show is by three time OSCAR
nominated composer Jay Ralph. Be sure to follow us on
Instagram at Wrongful Conviction and on Facebook at Wrongful Podcast.
Wrongful Conviction with Jason Flamm is a production of Lava
for Good Podcasts and association with Signal Company Number one
You know, every episode of this show has been a
roller coaster ride and a powerful emotional experience for me,
none more so in the episode I recorded with Barry Gibbs,
a beautiful, wonderful, warm, teddy bear of a man who
was wrongfully convicted in one of the most egregious cases
(00:25):
that any of us have ever seen, and exonerated in
one of the most amazing twists of fate. You have
to listen to his episode to hear the whole thing.
I can't even paraphrase it, but the sad news is
Barry died after battling an illness on March twenty third,
twenty eighteen. Barry, rest in peace, my friend. You're gone
(00:48):
but not forgotten. Now please listen to the incredible Barry Gibbs.
Speaker 2 (01:01):
I came from a beautiful neighborhood. I had a beautiful life.
I went to sleep because September seventh was the first
day of my high school year. I was going to
be a senior at twenty two, I was set to
start college. I woke up and my life was never
the same again. Cops came out with guns drawn, and
(01:21):
I never saw freedom ever since after that. It's like
roach Mo, Tom once you get in and I can't mount.
Speaker 1 (01:29):
In nineteen eighty six, a woman was strangled and her
body was dumped from a car on the belt Parkway
in Brooklyn, New York City. In order to protect the
known mafia associate who was the real suspect in the case,
the detective Louis Eppalito co Where's two eyewitnesses into changing
their story and placing Barry Gibbs at the scene of
the crime. Based on this false eyewitness testimony, Barry Gibbs
(01:50):
was convicted and served almost two decades in prison before
he was exonerated. The guys broken.
Speaker 2 (01:57):
I made a seventh Terry plot a life in Sherman's Wolfe, the.
Speaker 1 (02:04):
Corrupt cop who was responsible for coercing these eyewitnesses, was
ultimately convicted of eight murders that he carried out for
the mafia. He's currently serving life in prison.
Speaker 3 (02:16):
To say corrupt is the understatement of all time. Lewis
Epolito was working at this point in time for a
crime family in New York City.
Speaker 1 (02:27):
This is wrongful conviction. With Jason Flamm, we have a
very special guest today, actually we have three very special
guests today. The number one is Barry Gibbs. Barry's an
(02:49):
exignery who served almost two decades in prison for a
murder he didn't commit, and his story will rock your world,
to say the least. And in addition to Havingry on
the show, we have another Barry. We have Barry times
two today. Barry Sheck, the co founder of the Innocence
Project and a personal hero of mine, is here. And
we also have Vanessa Popkins. Vanessa is the newly promoted
(03:14):
and anointed director of post conviction Litigation for the Innocence
Project and she's been a long time lawyer with the
innocentce Project, long serving lawyer with the Noconce Project. We're
thrilled to have both of you, all three of you
here on the show today, So welcome. So Barry Gibbs,
Let's start at the beginning, which is where did you
(03:34):
Where were you born? Let's start with that. Let's go
all the way back.
Speaker 2 (03:38):
We can go all the ways back. I was born
in Brooklyn. I was raised in sheeps At Bay. I
worked in a post office. I came from a beautiful neighborhood,
had a beautiful life, beautiful wife, had a house, had
(03:59):
a family, had a car. Every two years had a
good job.
Speaker 1 (04:04):
American dream pretty much right, I mean, until it wasn't.
So you served honorably served your country in a war
that we won't get into the politics of that war,
but the fact there's a crazy situation for any young
man to find himself in. Now you come back and.
Speaker 2 (04:19):
I wind up, I wind up, I'm young, I get married.
I find a beautiful woman. All along sitting in an
office I was. I was showing intimidated by her beauty
that it took me a year and a half to
get up the courage to just ask her out for
a couple of coffee.
Speaker 1 (04:36):
This sounds very romantic, by the way. I just wants
to know truth. I know, but I'm feeling a little misty.
It's like in the movies when you get that you know,
foggy thing and you go back in time. So you
finally got the courage up, you asked her coffee.
Speaker 2 (04:48):
I used to deliver a mail toward she'd sit in
that office on a dictive phone. I never saw a
woman type as quickly as she did, and I was amazed.
Speaker 1 (04:57):
So you charmed her and you eventually married her. Right,
because otherwise we wouldn't be talking about it right now.
Speaker 2 (05:03):
Yeah, she was. She was a gift from God, she
really was.
Speaker 1 (05:06):
And you married the girl of your dreams. So that's again,
it sounds like an American American dream story up until
it's not. And I want to get into that because
we have we have Barry and Vanessa here, which is
really a treat for the show, and I want to
talk about your your your Kafka esque journey through the
criminal justice system, because yours, is saying to Barry before,
(05:29):
it's like the triple crown of malfeasance. Right, you had
jail house snitches, you have police miss and prosecutorial misconduct,
and then you have a situation where they either can't
find or won't or won't turn over the evidence that
could have exonerated you long before your two decades in prison,
and it was it was a life sentence. Is that right? Yes,
(05:53):
So so let's let's turn it over to uh to
the lawyers for a second. Here, When did you first
become aware? And can you give us a little background
on how this happened in the first place, because this
should never happen.
Speaker 4 (06:04):
So basically, in the mid nineteen eighties, a woman from
Brooklyn was murdered She was an African American woman. She
was strangled and her body was disposed of on the
side of a road on the Belt Parkway, and there
were a couple of witnesses who actually saw there. It
was a white man who was dumping the body essentially, and.
Speaker 1 (06:25):
So there are two witnesses.
Speaker 4 (06:26):
There was two witnesses. One was a park police officer.
Speaker 1 (06:29):
And the Belt Parkway is a major thoroughfare in Brooklyn
just for people who around the country who don't know
the geographics, so go ahead.
Speaker 4 (06:36):
Right, And there was a park police officer who had
driven by and saw the person the perpetrator, getting out
of the car. And there was also a guy, Peter Mitchell,
a witness who was jogging in the area who also
witnessed kind of the same set of occurrences. And so
(06:57):
the victim had been strangled. She was later discovered to
have hairs on her body. And you know, there was
a lot of evidence later on that we could have
done DNA testing on if we would have found to
show who did this. But Barry, you know, there was
this detective Lewis Epilito who wasn't even on duty at
(07:19):
the time, you know, wasn't wasn't on shift, but ended
up showing up at the crime scene and basically took
charge of the investigation.
Speaker 1 (07:27):
And why did he do that? I mean, that seems
very irregular, right.
Speaker 3 (07:30):
Something's wrong with him, Something's wrong with the whole way
this case goes down. He sweeps in to take over
this case, right, and all of a sudden it's his case.
And he goes and finds Peter Mitchell and he.
Speaker 1 (07:44):
Creates this Peter Witchell's the jogger. The jogger.
Speaker 3 (07:48):
All of a sudden, this guy is identifying Barry. He
takes care of the whole thing.
Speaker 1 (07:54):
And why did Barry even come? I mean, he wasn't
anywhere near the crime scene? How did his name even
come into the picture? Here?
Speaker 3 (08:00):
We we we now know, right, you see, at the
time that we're doing this case, we don't know exactly
why Epilito was doing all these things. And of course
there's a house snitch that emerges in all of this,
so it goes to Tarlie gets convicted. We don't have
the DNA evidence, and frankly, as you know, well Jason,
you know at this time with the Innocence project, if
(08:22):
we couldn't find the biological evidence to do a DNA test.
We had to close the case.
Speaker 1 (08:27):
Right, because that was that was the mission of the charter,
basically the Innocent's Project. We work on DNA cases. Now,
of course this change is afoot, but that's beside the
point way, right.
Speaker 3 (08:35):
So but we we even though we had pretty much
established that we couldn't find the hares and the clothing
or anything like this, we just couldn't close the case.
Speaker 1 (08:46):
Which is odd, right because by definition, this is the
type of one way you go well of it that should.
Speaker 3 (08:50):
Have been closed. So what happened was what Barry is
getting emotional about is that we were essentially saying to him,
we're going to have to drop this case, right, but
we couldn't.
Speaker 2 (09:01):
What you did, I'm going to tell you what you did.
Speaker 1 (09:04):
You broke my heart?
Speaker 2 (09:06):
You really did, you guys broke my heart. I made
a cemetery plot, a life of surance policy.
Speaker 3 (09:18):
And then all of a sudden we wake up and
in the front page of all the newspapers in New
York City.
Speaker 1 (09:24):
What year, what year?
Speaker 4 (09:26):
What year was two thousand and four.
Speaker 1 (09:27):
So this has been going on now for this has
probably been about for eleven years.
Speaker 3 (09:31):
Now, twelve years, yeah.
Speaker 1 (09:33):
Two thousand and four you opened the newspaper.
Speaker 3 (09:35):
Opened the newspaper, and there's a story that a former
New York City Police detective, Lewis Epalito, who was famous
in his time because he wrote a book called Mafia Cop,
where he described how his parents had been The father
had been involved in the organized crime, but he hadn't been,
and he was a great hero cop, uh, you know,
(09:57):
and got a lot of publicity. He was a cop
that arrested Barry and took over suddenly swoops in and
takes over this case. So Vanessa and I look at
this and we go, oh my god, it's we got
to call them up and say whatever. They had arrested
at Ballito.
Speaker 1 (10:16):
Right, That's why the stories they had arrested.
Speaker 3 (10:18):
At Ballito and Kara Kappa, another detective with whom he worked,
because it was alleged that he had become involved with
the mafia.
Speaker 1 (10:28):
I remember reading the story and he the.
Speaker 3 (10:31):
Two of them had begun doing hits for a crime family, right,
and they literally were killing people one after another.
Speaker 1 (10:38):
You know, this sounds like it's straight out of a
Hollywood movie. Rights. We have we have guys in blue
wearing badges doing hits for the Mafia in New York City.
Speaker 3 (10:46):
It's all true, and it's crazier than that Chason because
Lewis Eppolito, the so called mafia cop, was in the
first scene right of Goodfellas, very first scene of Goodfellas.
Speaker 1 (10:58):
Like art imitating life imitating art. Years before he was
exposed as being a hitman for the mafia and disgraced,
Louis Eppalito appeared on Sally Jesse Raptael, What.
Speaker 3 (11:10):
Do you do now, Big lou Well.
Speaker 5 (11:13):
I've acted in nine movies. I've been in Goodfellas, State
of Grace, Predator to I tried writing a screenplay. Gene
Hackman has been really great with me and Mikhail Ershnikov
and I did a movie with them called Company Business,
and I wrote a screenplay and it was bought by
New Line Cinema and I just finished the second screenplay
that it's better than policing getting shot out any day.
Speaker 3 (11:34):
Yeah, as far back as I can remember, I always
wanted to be a gangster.
Speaker 1 (11:46):
And Bewhile, if that's not ironic enough, he's also writing
a book about he's how he's not doing what he
is exactly is doing right, So it's like the whole
thing is a circle of madness. That's, you know, hard
to believe.
Speaker 3 (11:57):
So we write into the US Office and we called
them and they say, would you please look into the
Barry Gibbs case because something's wrong with this case. We've
always thought that Barry was innocent, that he was framed,
and unbeknownst to us, and they say, yes, we're going
to do that.
Speaker 1 (12:17):
Get ready for this.
Speaker 3 (12:17):
By the way, unbeknownst to us, the day that they
arrested Epallito in his apartment in Las Vegas, right, they
found the original New York City Police Department file on
the on the Barry Gibbs case. I mean the original one.
One of the reasons that we couldn't find a lot
(12:39):
of things is that it's unprecedented. You know, he's a
copy retires, he goes to the police department and he
takes the original file.
Speaker 1 (12:47):
Well maybe he too, I mean, is it your theory
that he took the file so that it would never
get discovered, and then ironically again he put it in
a place where it could get discovered.
Speaker 2 (12:59):
A second to that, I was sitting in the car
with the DA agents. I don't remember their names. I'm
not giving you guys up and I said to them,
how many files did you find in the house? And
he said three? And I says, well, I'm on my
way down. What happened to the two water files?
Speaker 1 (13:19):
You know what?
Speaker 2 (13:20):
He said to me, don't worry about them, their career criminals.
I said to myself, you got that. I'm not going
to say nothing, but I really wanted to say something.
Why don't you do your job promptly? Well, they did
what I didn't.
Speaker 3 (13:32):
Let's be let's let's be straight about this. So these
DEA agents and the US attorneys in the Eastern District,
they went out and they started reinvestigating Barry's case. And
they went and they talked to Peter Mitchell, Right's the Jagger,
and he's living someplace in Queens and they walk in
the door and he said, I've been waiting, you know,
(13:56):
twenty years.
Speaker 1 (13:57):
I'm getting the jails right now.
Speaker 3 (13:59):
For somebody to say this to me. And he bursts
into tears and he describes how Epillito threatened him. He himself,
Peter Mitchell had been an Army veteran, right he had
a felony conviction, and Epilitos was threatening him, you know,
both physically and to expose him and destroy him. And
(14:19):
he brought him into the precinct and he showed him
who Barry was. And then they held this ridiculous, bogus
lineup and you know, he identified Barry Gibbs.
Speaker 1 (14:31):
So, yeah, he was given basically no option.
Speaker 3 (14:34):
Yeah, I mean it was a force.
Speaker 1 (14:36):
So what about the other witness Barry? Who was the
park the park police officer he said, a park ranger or.
Speaker 4 (14:42):
Something, officer Gentilly. He You know, the crazy thing about
him is that nobody, you know, he would have been
the most reliable witness, right, He's an officer, he's trained
to make identifications. Nobody ever asked him that we know of,
to look at Barry Gibbs and say is that the
person you saw? Because they didn't want to know.
Speaker 3 (15:03):
When you go back and you look at this case,
this is one of the Yeah, I mean, this is
what makes Barry Gibbs, this case extraordinary in one respect
is that it was a completely corrupt cop. And to
say corrupt is the understatement of all time. Lewis Eppolito
(15:23):
was working at this point in time for a crime
family in New York City. He and Kara Kappa, I
think we're involved in the assassination of eleven people. There's
a terrific book written about Lewis Epolito case and it's
called The Good Rat by Jimmy Breslin, you know, perhaps
the greatest, you know, pulitzurprise winning columnist that we've ever
(15:49):
had in this town. And he talks about Barry's case.
But they were running around killing people, you know, and
the Lukesey crime family would say, well, why don't you
go kill Guido, and they killed the wrong Nicki Guido.
Speaker 1 (16:02):
They did.
Speaker 3 (16:04):
Nick They're all contract killings. And so what we have
been able to figure out through litigation after Barry was
uh exonerated, essentially through the work of these DEA agents
who went out and found Peter Mitchell and you know,
showed that the whole case was a frame up. We
(16:25):
now know that the day that the witnesses saw this
body of this poor woman being dumped on the belt
Parkway right that the description matched somebody that worked at
a chop shop in Brooklyn.
Speaker 1 (16:41):
Who was known to the cops, who was known.
Speaker 3 (16:44):
And Epolito mysteriously shows up the next day. The next
day we found out this guy who was suspected who
to meet the description, right, shows up at the police
precinct with his died because originally they described it as
somebody with salt and pepper hair. He shows up with
his hair dyed black and a lawyer to talk to.
(17:06):
Epolito appears about that, which appears in no police reports.
Speaker 1 (17:11):
No, there's no reason to take a look at that.
I wouldn't.
Speaker 3 (17:14):
But you know, when you look back at this, it's unbelievable.
Speaker 1 (17:31):
So let's go back to the case. So nine years
after Barry's conviction, a Brooklyn judge ordered the state to
submit evidence from the case for DNA testing. And then
what happens, right, It would seem like at that point, Okay,
now we got a break. Right now, we're going to
get this guy out. Some of the evidence had apparently
been destroyed and other items couldn't be found.
Speaker 2 (17:49):
Okay, that's their side of the case. But my side
the case is different from that version.
Speaker 1 (17:55):
Right there, Okay, let's hear it.
Speaker 2 (17:57):
Okay, when I was in jail at Riker's Island six
months later or whatever, I can't remember exactly how many
months later, the district attorney wanted me to give hair
samples again. My attorney came up to me, and I
(18:17):
said to him, I'm not giving it. And he says why.
He says, because I'm being framed. I'm not giving it.
He says, listen, Barry, he says, I'm there to represent you. Now,
he said, pay attorney, I'm there to represent you. He says.
I says, you're gonna be there to represent me when
(18:38):
they take these heirs and they're done together, Like, are
you gonna be physically right there? He said to me. No,
he says, I'm gonna be there when they take the
hair samples and they heat seal it and they're gonna
give the evidence to who epilto.
Speaker 4 (18:55):
The chain of custody really fell off with Epilito himself
in terms of having handle the evidence, and it was
just am I.
Speaker 3 (19:02):
A you know, And the funny thing that Barry Gibbs
is saying is that, you know, he doesn't even want
to give his hairs because he doesn't trust And you know,
from the lawyer's point of view, he's going, oh, I
got this Michugan client, this crazy client. It doesn't even
want to give up airs.
Speaker 1 (19:19):
But one of the greatest frame ups in the history
of New York City.
Speaker 3 (19:22):
And what's crazy is that you'd look at him and go,
you're you're convinced that you're going to be framed, and
you won't even give your hairs, and you're saying that
we can't trust the detective to even take them to
the crime lab and give it a straight up examination.
And it turns out everything he suspects is completely true.
(19:43):
It is a complete frame. The guy is working for
the mafia, He is assassinating people. He probably played around
with all of this evidence. We can't prove all of that,
but we proved the hell of a lot of it.
Speaker 1 (19:55):
So for a postal worker for oppostal worker, Barry turns
out to be a pretty good scientist, huh, I mean,
or at least a psychologist. Let me ask you this. Also, so,
the New York City crime laft has faced criticism for
its difficulty difficulty is a strange word, for its difficulty
handling on to put that in quotes and storing evidence.
In twenty thirteen, the New York City Medical Examiner's Office
announced that it had discovered more than fifty cases in
(20:17):
which the office failed to upload critical DNA evidence from
crime scenes to the state's DNA database, which prevented those
samples from being compared to genetic material from convicted offenders.
This discovery led to the firing of the office's deputy
director of quality assurance, which sounds kind of like a
fall guy to me. I mean, the deputy director of
quality assurance. That sounds like somebody who works at a
(20:38):
snack food company or something like that. You know, so
can we can you tell me more about that? Because
people like to think that these people are doing their jobs, right.
I think the public likes to think that when you have,
you know, a crime lab, that these people are on
is now, of course, after making a murderer and after
the different things that have come out recently, I think
(20:59):
that has generated so much attention that people probably have
a little more skeptical view. But even as a lay person,
before getting involved with Innis's project, I thought so too.
I thought that these people do their jobs. These are
honest actors.
Speaker 3 (21:11):
Right Number one, what Barry and Vanessa were describing about
the search for his evidence, right, It is true that
in the old days, at the time that Barry was convicted,
they had a terrible system for keeping track of the evidence.
It was a mess. And that's not unlike places all
(21:33):
across the country. It was a total mess, and they
did have fires and asbestos and floods, and they did
recently after Sandy, have a problem. But you know, having
said that, we did have a problem for years in
trying to get a fair search because the evidence custodians really,
(21:56):
you know, they were being deliberately indifferent to the need
to go look for evidence, even when people were asking,
go find my evidence. A DNA test could prove me innocent.
They really weren't trying hard. But now I do believe
that that part of the operation has been professionalized. They
have a limb system, you know, it's sort of like
(22:18):
a barcode system, laboratory information welcome to twenty sixteen.
Speaker 4 (22:22):
They haven't got they haven't gone back completely, so there's
evidence from decades ago. You know, that's still a mass.
So it's still it's still incredibly hard for innocent people
today in New York City to get access to evidence
to prove their innocence. They didn't go back and cleaned up.
Speaker 1 (22:38):
And it's odd because married and I we talked about
this before. You know, our clients. I sometimes think of
them and I hope you think this the right way,
as some of the luckiest of the unluckiest people on earth, right,
because you can't be unluckier than to have it's tragic
and an unluckiest there's an understatement than to have yourself found,
find yourself in a situation where you wrongfully convict and
(23:00):
then you know there's we know that there's you know,
tens of thousands maybe more people in prison who are innocent,
and then for them to be fortunate enough to get
the innocence part, to have the Innostance Project take their case,
and then to have the evidence found as it was
in Barrie's case, is really something that could only be
described as, you know, half a so sort of like
(23:21):
a miracle.
Speaker 2 (23:22):
We're blessed, but we've touched. I don't know what it is.
You kind of surrendered to everything and anything to be
at the place, oh man, because whatever it is, it's.
Speaker 1 (23:37):
It's unbelievable in order to move on with your life.
Speaker 2 (23:40):
Yeah, I did angels as angels you don't want to
believe it, there's angel.
Speaker 1 (23:57):
I want to talk about the misconduct because, according to
a study done by the Endsis Project of Minnesota, official
misconduct meaning police or prosecutorial misconduct, was a contributing factor
in forty six percent of all DNA exonerations on records
since nineteen eighty nine. Police suppressed evidence that might support
a defend its innocence in over one third of the
first seventy four exoneration cases. So that's one group that
(24:19):
we studied. And nine percent of exoneration cases involved allegations
of police coercialing witnesses into testifying, as was allegedly the
case in your trial. Well we know it was the
case in your trial. Bury. So Barry, I know you
and I talk about this a lot, and Vanessa I
love to hear what you have to say about it.
You know, the prosecutor of misconduct is this? I mean,
is it just blind ambition that drives these prosecutors? And
(24:42):
how is it? Like it always blows my mind that
a prosecutor can be so morally bankrupt that they can
be and ethically that they can be comfortable and sleep
well at night while deliberately knowingly prosecuting and convicting and
sometimes sentencing to death the person they know to be innocent.
(25:02):
But then the other problem.
Speaker 3 (25:04):
Is but that's see, that's where I would take some issue, right,
and that is that I think much of it. The
misconduct is something that has been termed noble cause corruption,
and that because they actually believe that they're prosecuting a
(25:28):
guilty person, and then when the exculpatory evidence seems to
pop up right, left and right, because it turns out
they're actually prosecuting an innocent person, unbeknownst to them, it
gets hidden. And that's why it's so important for lawyers
to play by the rules, and that we're talking about
(25:50):
prosecutors playing by the rules that even if you think
you've got a guilty guy who committed a horrible crime,
you still have to play by the rules of our
system and disclose exculpatory evidence and not push witnesses beyond
what they really are really saw or heard or want
(26:11):
to say. That you have to somehow control, you know,
the kinds.
Speaker 1 (26:18):
Of impulses, right impulses.
Speaker 3 (26:20):
To win that you know are so prevalent in the system.
That's on the one hand, on the other hand, you
need strong defense. You need lawyers that are educated, that
are well funded, you know that are going to do
the job, because unless the defense plays by the rules
and does its job and exposes the problems in the case,
(26:42):
the system implodes.
Speaker 1 (26:43):
Well you have, and you have the perfect storm there, right,
you have over ambitious prosecutors who become blinded by by
their belief in the noble cause what do you call it,
noble cause corruption or and or their own ambition. And
then you have a public defense who may be not
up to the task, they may not be qualified, or
(27:04):
they may just be overworked, overwhelmed. Yeah, because some of
them are some of them are dealing with a hundred
or more cases at a time, right, so they can't
possibly devote the type of time that they would need
to do to mount a robust defense. But the other
thing that always, you know, boggles my mind is that
as if a prosecutor does let's let's assume the worst
(27:27):
in this case. And we know there are those cases
right where prosecutors are just like, we got a guy,
we're just gonna nail them, We're gonna get it off
our desk, we're gonna close this case, and we're gonna
move on. We see that, and it's and and of
course it happens, and sometimes it's noble colast corruption. Sometimes
it's that. But in those cases, what I can't understand
is how they could well, well, what we know is
(27:51):
that when you convict the wrong guy, by definition, you
stop looking for the right guy, right. And so if
a prosecutor is motivated but nothing other than selfish interest,
especially in a small community, you got to do the
math and say, well, look, if the right guy's still
out there, and he's going to go almost invariably or
inevitably and go and commit more terrible crimes, it could
happen to your own family or somebody you know or
(28:12):
somebody you love. As a prospect of talking about right,
So wouldn't you think that as a public service, if
nothing else motivated them to do the right thing, that
they would want to get the real perpetrator off the street.
And of course we know that in many of our cases,
I don't know the exact percentage when we've exonerate did
as a guy, we find out that the guilty guy
has actually gone and committed terrible crimes against people who
(28:33):
never needed to be hurt or killed in the first place.
Speaker 3 (28:36):
Among the DNA exonerations, close to half involve cases where
we've been able to identify the person who really committed
the crime.
Speaker 4 (28:45):
But in a lot of cases too, it's just, you know,
there really aren't incentives. There need to be more incentives
on prosecutors, you know, taking on if they get a
case that's brought to them by the police and it
doesn't seem right or they're getting you know, some exculpatory
information to reinvest instigated and not just to see their
job is to go forward with the case that the
police brought them and to prosecute it. And you know
(29:07):
right now is the incentive is to win, not necessarily
to reevaluate the case, you know, built into the prosecutor's
offices and just in terms of you know, how they're evaluated,
what's considered to be a successful prosecutor. And in working
with some of the conviction integrity units where you know,
prosecutor's offices are going back and looking at the cases themselves.
(29:27):
You know, we've heard some of from some of the
leaders you know in this area that you know, when
you're a prosecutor, you completely dehumanize the person who's accused.
You know, that's how you do your job. And so
it also I think takes a you know, we need
a reevaluation in our system. We don't treat people who
are coming through the criminal justice system with any sense
(29:49):
of humanity and that allows prosecutors to kind of put
blinders on, and you know, it's not somebody that they
can relate to. You're not seeing what the devastation that's
happening to the individual to or family. You know, that
is completely missing for their people.
Speaker 1 (30:04):
And I think sometimes we lose track of that. They're
they're not They're not just subjects or people who are
accused of something or numbers or whatever. They're actual people.
And we see that over and over again. So the
conviction review units, this is a relatively new things. It's
sort of what I think for about five to ten
(30:26):
years now, right.
Speaker 3 (30:26):
Well, it really started in earnest in two thousand and
seven in Dallas, Texas, when an African American defense attorney
at the age of in his thirties was elected District
Attorney of Dallas.
Speaker 1 (30:41):
Pretty unlikely scenario all right round, and.
Speaker 3 (30:45):
You know it was kind of a fluke or unexpected
and he came into office, Craig Watkins, and among the
first things that he did is that he created this
conviction integrity unit. The Innocence Project actually went to a
foundation that got him put up half the money because
it was a matching thing of the Dallas City Council
(31:06):
and this foundation, the Jet Foundation, and he put in
charge of the conviction Integrity unit a guy named Mike
Ware who came from an innocence organization in Lubbock, Texas.
So the Innocence Project of Texas, working with our Innocence
Project based in New York, started working with the Dallas
(31:28):
District Attorney's Office and their conviction Integrity Unit and reviewed
all the cases where they had been resisting requests for
DNA testing and reviewed them all. I mean we literally
got the entire prosecutor file, looked at it, reviewed the
case sometimes when there was no DNA evidence. Although in Dallas,
(31:49):
as opposed to New York, they were able to find it.
That's why there's more exonerations in Dallas than in most states.
If we had been able to find the evidence in
New York the way we've discussed before and when we
were searching for it in Barry Gibbs's case, if we
can find more of it, New York would have hundreds,
hundreds of exonerations. I think any firm minded person would agree.
(32:12):
We just couldn't find the evidence of so many.
Speaker 1 (32:13):
Dallas go from the county with the highest execution rate
to the county with the highest exoneration rate just about yeah,
which is an incredible Let's think about that for a second, right,
and what that conviction review unit has meant to these
people who were some of them would have been executed there.
Speaker 2 (32:27):
Could you imagine on death row?
Speaker 1 (32:29):
No, you can't imagine it. No one else anyone can
imagine it. Maybe maybe you can imagine, right, but no
one else that hasn't been there can imagine. And that's
one of the reasons why we do the work that
we do. So these conviction review units, I believe there's
not twenty four of them around the country, right, Well,
some of them are affected summer.
Speaker 3 (32:43):
Not some some are for real and some aren't. But
some are for show, right, some are for show. But
one of the uh telltale signs is will they bring
somebody in to that conviction integrity unit or conviction review
unit who has a background as a defense layer, because
(33:04):
the cognitive bias is very, very hard. I mean, you know,
I do not believe that there are you know, most prosecutors.
I think it's a rare, rare exception, you know, actually
get up in the morning and say I'm not going
to convict an innocent person. I don't you know, I
don't think that really happens. But I think what does
happen is, you know, you get what they call hard charging,
(33:26):
people who lose track of playing by the rules or
the humanity of the defendants, or the gravity of their responsibilities.
That can happen. And it's a question of you know,
cognitive bias. Right, you have to change the whole orientation
of how prosecutors look at their job. And by the way,
(33:47):
you know, overwhelmed institutional defenders. Right, you know, you have
so many cases you begin to look at them and go, well,
you know, I got to get through my docket, right,
and every case looks the same, you know, and you
don't put in the effort because you.
Speaker 1 (34:04):
Can't and you don't have the money to hire the
type of people that you would need to go and
prove you as whereas the government can parade out a
forensic thing or sign as we saw it again and
making a murderer. I just had two more questions I
wanted to ask you one, you know, back to the prosecutors.
So we need to have, as Vanessa was saying, a
higher standard or a better way of evaluating prosecutors so
(34:26):
that they are more driven to achieve results that are
based in fact, let's just call it that as opposed
to achieve achieving convictions, to achieve justice as opposed to convictions.
But we also need, in my view, we need to
have a much stronger system of prosecuting prosecutor holy prosecutors
accountable in this country. As far as I know, you know,
(34:49):
we've had with all the prosecutorialist conduct we've seen throughout
the decades, there's only really been two cases of any
prosecutors being held accountable in a way that winds that
lands them up in jail. Barry, can you just speak
for a second about the prosecutorial misconduct and how they
can be held a contable. What chine of changes have
to be made for these guys to be thrown out
(35:12):
or thrown in jail.
Speaker 3 (35:13):
Well, there's some simple things that might be done. One
is that the Justice Department could bring prosecutions when we
find out years later that a prosecutor engaged in deliberate
misconduct that led to the conviction of an innocent person
intentionally deprived them of their civil rights. The problem that
(35:36):
we've had in the past is when we go to
the Department of Justice and say, look, we have DNA evidence,
We have all kinds of evidence that showed that somebody
was deliberately framed. This prosecutor should be prosecuted. They say
to us, Look, the statute of limitations under federal law
is five years, and it's very hard to conjure an
(35:59):
ongoing conspiracy to conceal it in most of these cases,
so there would be no jurisdiction for the federal government
to do that. It's possible to amend the laws, so
I think that might make a big difference. The other
aspect is that there has to be a concerted effort
(36:20):
to hold lawyers to their ethical responsibilities. One of the
things we found is that even in bar discipline, there
are statual limitations problems, and the bar discipline system does
not take seriously those prosecutors who break the rules, and frankly,
the defense layers who simply you know, have given up
(36:43):
and are just collecting checks and are not providing effective
assistance of counsel. And so one of the things we
have to do is change that system so that people
take that seriously. They can lose their licenses, they can
actually be prosecuted in the most egregious of cases. And
if that happens, I think that you know, you will
(37:06):
begin to see change. And we have we can't talk
past each other, and we can't say, you know, demonize.
You know, it's not all prosecutors that you know are
engaged in this kind of conduct.
Speaker 2 (37:19):
Far from it.
Speaker 1 (37:20):
No, there's a lot of good guys out there we know,
and I've always admired that the fact that you managed
to keep your sanity through all the things that you've
gone through with these crazy cases and the people you've
had to deal with. So before we wrap up, Barry,
what can you share with us? You served nineteen years
in prison for something you didn't do. Your presence always
lights up a room, you know. I know that when
(37:42):
you all can't see him through the radio, but when
you're at the Ennocence Project dinner, I know I always
look forward to seeing you. He's he Barry is a guy.
He's I don't even know how to describe him, but
he's just larger than life character. Who is you know
who really drives that? It really motivates I still want
to do more. You know, when we meet somebody like
(38:03):
you who's just got an incredible spirit, and uh, you
know who has overcome so much and been and really
served the country honorably and done so much. You know good,
it's it's a fantastic guy.
Speaker 2 (38:15):
I suffer to this day, you know, because you took
me out of a beautiful home. You threw me into
the military. I did a good life for a few years,
had a beautiful life, and this happens to me and
you throw me in jail. Do you really expect me
(38:35):
to feel like other people? I doubt it. I'll never
feel that way. You know, I've been through therapy. I've
you know I've I've been through a lot just to survive.
I mean, I was in the hospital, I was messed up.
I thought I was gonna die. I'm here, I've been saved.
I don't know why I got angels around me. If
(38:58):
I need a Brockram spot it stay up for me.
You know, I don't know what it is. You know
what I'm saying. And those are my angels. Those are
my angels that are around me. But the Innocence Project,
to me, is more than just a family. There are hearts,
(39:18):
you know, there were hearts.
Speaker 1 (39:28):
Don't forget to give us a fantastic review. Wherever you
get your podcasts, it really helps. And I'm a proud
donor to the Innocence Project and I really hope you'll
join me in supporting this very important cause and helping
to prevent future wrongful convictions. Go to Innocence Project dot
org to learn how to donate and get involved. I'd
like to thank our production team, Connor Hall and Kevin Wartis.
(39:50):
The music in the show is by three time OSCAR
nominated composer Jay Ralph. Be sure to follow us on
Instagram at Wrongful Conviction and on Facebook at Wrongful Podcast.
Wrongful Conviction with Jason Flamm is a production of Lava
for Good Podcasts and association with Signal Company Number one
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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