August 21, 2025 • 43 mins
Calvin "Cal" Harris was charged with the murder of his estranged wife Michele Harris, who disappeared in September 2001 from their home in Spencer, NY. Despite no body being found, Cal was tried four times and eventually acquitted in 2016. He later filed federal and state lawsuits alleging malicious prosecution and evidence fabrication. His case highlights investigative tunnel vision, suppressed evidence, and ongoing questions about who was truly responsible for Michele's disappearance.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Married couple. Cal and Michelle Harris were living separate lives
under the same roof as their divorce proceedings began in
two thousand and one. When Michelle didn't return from work
one September night, it was assumed that she'd stayed with
friends or with her boyfriend, but when her van was
(00:22):
found at the edge of their property, the police focused
on her estranged husband, developing circumstantial evidence as well as
what appears to have been total fabrications, while dragging Cal
Harris through four trials over the course of fifteen years.
This is wrongful Conviction. You're listening to Wrongful Conviction. You
(00:48):
can listen to this and all the Lava for Good
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Lava for Good Plus on Apple Podcasts. Welcome back to
Ron with Conviction, where we're heading to Tioga County, New York,
(01:08):
where our guests today. Cal Harris worked for his family's
auto dealership business while raising his four kids until it
was all derailed, first by marital troubles, followed by the
disappearance of his estrange wife, Michelle. Cal I'm sorry you're
here because of what you've gone through, but I'm very
(01:29):
happy and honored to have you with us. Welcome, we
thank you, and to help him tell this story. We're
joined by two of his attorneys from Barquette Epstein, Aida
elyisen Ring and Bruce Barquette.
Speaker 2 (01:41):
Thanks for having us.
Speaker 3 (01:42):
I'm very happy to be here.
Speaker 1 (01:43):
So Cal, We've got a lot of ground to cover.
Let's rewind all the way back to where you grew up,
the family, the auto business, and then of course we'll
turn to the tale of you and Michelle.
Speaker 4 (01:54):
I grew up in the Binghamton area, about an hour
north of Scranton, Pennsylvania, and about an hour hours south
of Syracuse, New York. My father started the business back
in nineteen sixty seven with a small Ford dealership in Awego,
New York. And when my brothers and I were of
age and got in the family business, we grew. We
had eight dealerships in four different locations. We represented almost
(02:17):
every major franchise, domestic in import. We had a very
good marketing system, we had a very good business plan,
and we grew exponentially.
Speaker 1 (02:26):
And when and how did you meet Michelle?
Speaker 4 (02:29):
Well, Michelle and I started dating in the late eighties,
got married in August of nineteen ninety. Built our home
in ninety two, and then our first child, Taylor, was
born in ninety four, and then the next year Kayla,
and then Jenna was born in ninety seven, and then
Tanner was born in ninety nine. Michelle is a great mother. Obviously,
(02:53):
having four young children was a big task for Michelle.
I was working a lot of hours at the family business,
so we had two part time nannies, and then we
had a handful of babysitters, so the kids were well
taken care. We lived on a very beautiful piece of
property and it was a small lake surrounded by two
(03:13):
hundred and fifty acres. We purchased it from Binghamton University
and it was a newdist camp for Binghamton University.
Speaker 3 (03:21):
See I finally learned something new.
Speaker 1 (03:23):
Cal Yeah, that.
Speaker 4 (03:25):
Was back in the sixties and the seventies. And then
when the newdiest thing kind of ran its course, it
sat empty for years and somebody on the board of
Binghamton University knew my dad and cut us a deal.
We don't live there anymore. I had to sell the
property to pay my legal bills. We'll never be able
to replace that property, but we had our own little
(03:46):
sanctuary out there, all kinds of woods and nature, and
I taught my kids how to water ski and wakeboard
on the lake behind the jet ski, and we fished
and it was a great run while it lasted.
Speaker 1 (03:59):
And during the happier years for the Harris family. The
New York State Police, specifically Troops C that operated in
the southern tier of the state, was while they were
experiencing discord, and that began what a detective named Harding
was interviewing with the CIA, and when he was asked
if he'd break the law for his country, Harding admitted
to manipulating or fabricating evidence against folks that they believed
(04:23):
to be guilty. That kicked off a fourteen month investigation.
Speaker 4 (04:27):
A special prosecutor get an investigation on Troop C, and
he uncovers forty instances of evidence tampering by Troop C.
In his conclusion, he says everyone at Troop C was
either directly involved or had firsthand knowledge on it, and
he said it was generational that they were passing on
this behavior to new recruits. And even after that report,
(04:51):
Sue Malby, the lead investigator on my case, gets caught
coercing a false confession out of a fifteen year old boy.
It sends that to prison, and the only reason that
boy gets out is because the adult male that committed
the crime confessed to it.
Speaker 1 (05:07):
And it appears that this pattern of misconduct was applied
to Cal, whose once happy marriage by March of two
thousand and one, had devolved, as these things sometimes do,
into divorce proceedings. Cal and Michelle, meanwhile, we're cope parenting
and remained in the home together, but they were living
separate lives. Michelle began socializing more and eventually began working
(05:28):
at a bar called Lefties in an area known as
the Valley.
Speaker 4 (05:33):
So she's been going down to the Valley and hanging
out at these dive bars and she's partying pretty hard.
She knows what Lefties is, she knows they're dealing drugs
out of there. But she made it clear to me
that what she does outside the home is none of
my business. So the only people that know what's going
on in her life are the nanny barb there, Michelle's
(05:56):
sister in law, Shannon Taylor, and she also had a
friend named Nicki Burdick that was a friend that she
would go out with at night. And party with, and
she had a boyfriend at the time. Through the investigation,
she was also involved with apparently several other guys at
the same time. And I noticed from March two thousand
(06:18):
and one, when she starts to work there till September
of two thousand and one, things get really bad and
she's living a lifestyle that's not healthy for her, not
healthy for the kids. And she'd go to work, but
she wouldn't come home. She would always go out afterwards.
Sometimes she'd go over to her boyfriend's house. Most of
the time she would go out and party and hang
(06:40):
out with these other guys that she's involved with. She
had been frequently not coming home until five or six
o'clock in the morning, and there were some mornings that
she was so hungover she couldn't even watch the kids
and barb theair than nanny had to come over and
take that responsibility.
Speaker 1 (06:56):
But despite the erratic lifestyle, by the summer of two
thousand and one, tensions between Call and Michelle had died
down and it appeared that they were going to settle
the divorce. Michelle had borrowed money from her boyfriend approachases
a home, so things were looking up when all of
a sudden they took a terrible turn.
Speaker 2 (07:14):
So the chronology is September eleventh, she wakes up, the
events take place down in New York City. She works
that night at Lefties. Her boyfriend testified that she visited
him and left around eleven or eleven fifteen pm. Nobody
else saw her that we are certain of, other than
potentially whoever was at the foot of the driveway with
(07:35):
her the following morning.
Speaker 1 (07:37):
A witness named Kevin Tubbs later came forward describing this
scenario and a man who may have been a guy
named Stacy Stewart.
Speaker 2 (07:46):
Stacy Stewart knew Michelle because they would frequent the bar Lefties,
and the degree to which they got to know each other,
I think is up for some debate, but it's purported
to us by number of witnesses Stewart was interested in
Michelle romantically. We have evidence that she was at the
foot of the driveway around roughly five o'clock in the
(08:07):
morning with somebody who matches Stacy Stewart's description to a
t and was driving the type of truck that Stacy
Stewart owned.
Speaker 1 (08:16):
But that wasn't known until after his first conviction. At
least not by the defense. So after this alleged sighting
on the driveway on the morning of September twelfth, the
morning began as usual for Cal the kids. When Cal
noticed Michelle was out of the couch, he continued about
his routine getting the older kids ready for school, and
a little after seven am, when he hadn't seen Michelle yet,
(08:39):
he called Barblayer for help with their youngest, Tanner, while
everyone else was set to leave and start their day.
Speaker 4 (08:46):
So I called Barb and I said, Michelle's not home yet.
I'm not sure what's going on. Can you help me
get the kids to school because someone's got to stay
home with Tanner. So she said, yep, I'm available. And
a few minutes after I called Barb, Barb, I call
Michelle's cell phone, and because we live in a remote area,
our cell phone coverage cuts out in about a ten
(09:08):
mile radius around our house. And I didn't leave a
message because I just assumed, years and years of doing that,
that she was on her way home, she was within
that ten mile radius, so I don't leave a message.
Speaker 1 (09:22):
Years later, at the first trial, Barb Fayer testified that
she was the one who made that phone call, even
though that was impossible.
Speaker 4 (09:32):
I called Barb and then four minutes later I called
Michelle's cell phone.
Speaker 2 (09:37):
If you track where she was, she could not have
gotten to Cal's house in time to make the call.
Speaker 1 (09:46):
And when Barb actually did arrive, she discovered Michelle's van
at the end of the driveway.
Speaker 4 (09:51):
Barb comes in through the garage and she walks into
the kitchen. It says to me, is Michelle here? And
I say no. She says, well, her van's at the
end of the driveway. It's unlocked. I looked in it
and she's not in there. And then I said, well,
are the keys in it? And she says yes. So
(10:12):
we hop in my truck and we go out to
the end of the driveway, and Barb's not upset. In fact,
we had some small conversation on the way out to
the end of the driveway, and Barb's saying things like, well,
maybe she's hungover at at friend's house.
Speaker 1 (10:27):
After Cal drove off with the kids, Michelle's party friend,
Nicki Burdick, called and according to Barb, there she explained
to Nicky about Michelle's van.
Speaker 2 (10:36):
There's a voice message from Burdick on Michelle's cell phone,
You're scaring me, Where are you? What's going on?
Speaker 4 (10:42):
That kind of thing, And then Nicky calls Michelle's divorce attorney,
who in turn calls the state police, and that's when
the investigation starts. The lead investigator on this case was
(11:10):
Sue Andrew's Mulvey of New York State Police Troops c.
As soon as my name came up, she immediately put
herself on as the lead investigator because for her this
was personal. And the reason it was personal was because
her father, John Andrews, used to work for me back
(11:31):
in the day in one of the dealerships and I
fired him and it was bad blood ever since.
Speaker 2 (11:39):
So you had the lead investigator's father having worked for
Cal and being fired, and the lead prosecutor, Gerald Keene,
his wife was part of the team representing Michelle in
the divorce.
Speaker 4 (11:52):
Well, it's the classic case of the small town everybody
it's related to somebody.
Speaker 2 (11:58):
So her divorce lawyer turned his file over right away
to the state police and it didn't take much for
the divorce lawyer, Nikki's there and I think the in
laws the tailors to assume that Cal had something to
do with this.
Speaker 1 (12:17):
Now, at that point, there was no body. In fact,
her body to this day has still never been found.
So the investigators began searching her van, the house, the garage,
trying to find something incriminating.
Speaker 4 (12:32):
Steve Anderson, he's supposed to be the forensic expert. He
immediately comes in and starts testing the sub millimeter stains.
There's like a dozen altogether sub millimeter stains in the
garage and in the kitchen as you come into the house.
Speaker 2 (12:48):
The first thing that he did is he saw what
he thought was blood spattered on the wall in the garage.
It turned out that was non human dog's blood.
Speaker 3 (12:58):
Well there is the cookie or pasta sauce on the
ceiling as well. It's very disappointing that it turned out
out to be blood.
Speaker 1 (13:06):
But Anderson eventually did find some human blood stains.
Speaker 4 (13:10):
So he tests these stains, and the protocol that he's
supposed to follow is that when he comes down to
what he believes to be a crime scene, he's supposed
to observe and take notes, then photograph, and then he's
supposed to test with his cotton swab and his solution.
But that's not what he does in my house. He's
(13:31):
taking his cotton swab, which he admits one of the
stains he totally consumes as he's testing it, but he
doesn't take a photograph before he does it, so we
have to take his word for it. But the reality
is he's the one that's altering the stains, and then
he says it's me trying to clean up these sub
(13:53):
millimeter stains.
Speaker 1 (13:54):
So Anderson's missteps were eventually presented as evidence of some
alleged post murder cleanup effort, when in reality that blood
had likely been there for quite a while.
Speaker 2 (14:07):
They said that the blood was red, therefore fresh, that
it had to be depositive within a few days. That
was two lies. One, the blood wasn't that color, and two,
it doesn't matter what color it is, because the scientific
community agrees you can't age blood based upon its color.
(14:27):
Sometimes it turns brown very quickly, and sometimes it stays
red for an inordinate amount of time, and they haven't
been able to figure out the variables that would cause
the blood to turn colors in some amount of time.
Speaker 1 (14:40):
It turns out that there was a known explanation for
that blood spatter as well, and we're going to hear
more about that later. Now, without any known witnesses. The
police began interviewing family, friends and community members, not about
what you would expect them to ask about, which is
anything they may have seen regarding Michelle's disappearance, but instead
(15:01):
they sort of narrow focused on Cal.
Speaker 3 (15:05):
I think that the way the police conducted their investigation
throughout the entire community, they led everyone to we think
Cal did it.
Speaker 4 (15:14):
I had friends of mine who didn't buy into the
state police narrative and questioned the state police, well, what
do you mean you know that Cal did it? And
when the state police wouldn't answer, you know how they knew,
then my friends were like, well then what are you doing?
Speaker 3 (15:31):
Then they had random people and witnesses fill out FBI
profiles like does he ever get mad? Has he ever
done this? Has he ever done that? Day after day,
multiple witness interviews, the news, the chatter, the town talking.
Another day goes by where her body isn't recovered, and
(15:52):
the zealousness with which they tried to investigate Cal, Like
that gets you in the entire community in the mindset
of let's get him. He's getting away with murder. Because
the police believed that.
Speaker 2 (16:04):
There the babysitter who came over right away started to
create a diary documenting the things that were going on
at the house, thinking she was helping the police.
Speaker 3 (16:14):
One of his former neighbor's friends says, let me rack
my brain. I do remember, and this is one of
my favorite little details. I do remember. He kept trying
to clean his glasses and the natural implication was that
there was blood spatter on them, and it's like Macbeth
trying to clean the blood off the hands. They interviewed
(16:35):
people in Canada, like, oh, he was on vacation in Canada.
We hear that the jet skier got into a verbal
dispute with him. They interviewed girlfriends from high school. I mean,
they turned his entire life upside down and found nothing.
But when you have all of these little, tiny pieces
of nothing burgers together and they've completely assassinated his character,
(17:01):
and in a.
Speaker 1 (17:01):
Case that is largely circumstantial, those elements become admissible, contrary
to a case with direct evidence of guilt, in which
the defense has a better idea of what the issues are.
But in circumstantial cases, the state weaves a web from
these disparate elements that would normally be inadmissible but together
and create an appearance of guilt and that can overwhelm
(17:24):
a traditional defense. And by two thousand and five, sure enough,
cal was indicted. And it seems that the prosecution felt that
they had enough to do that, but the first two judges, well,
they disagreed.
Speaker 3 (17:37):
The first judge reviewed the grand jury minutes and the
transcripts and gave a heads up to the prosecutor and
to the defense attorney, I'm dismissing this case. It's insufficient.
What does the prosecutor do? The next day he files
a formal motion to recuse the judge, stating that he's
given the appearance that he favors the defense, and ultimately
(18:01):
pits his oath of office against that of the judge,
as the judge claims, sort of requiring at that point
the judge to get off the case because of the
animosity and the claims that are made by the prosecutor.
So he did, and a new judge was assigned, and
that judge also dismissed the case, indicating that the previous
(18:24):
judge's decision stands and it's insufficient. So it got dismissed,
and then they went on to represent the case and
put on more witnesses. In two thousand and seven, they
try the case in front of a jury pull frankly
that have been polluted by the police investigation, no Cal,
(18:45):
and have strong opinions about the case.
Speaker 1 (18:47):
Ultimately, the state's trial narrative was that Cal killed Michelle
sometime late on September eleventh, citing no signs of forced entry,
the alleged blood evidence, the looming divorce and custody proceedings,
as well as some circumstantial witness testimony, some of which
were just outright lies. Now, as we mentioned, the morning
(19:08):
of Michelle's disappearance, Cal called Barb Thayer for help with
the kids and then called Michelle, but didn't leave a voicemail.
Speaker 2 (19:16):
So Keen, the prosecutor, in a deposition that we took
about four years ago, admitted that if Cal had placed
the call at seven point fifteen, and had he been
the killer, in other words, he knows he's calling a
dead person's phone, he would have left some contrived message
about I'm worried about you, where are you, why aren't
(19:37):
you home with the kids, something like that. And Keene
admitted if he made the call and didn't leave a message,
he couldn't have committed this crown because there's no way
he would have made the call and not left the
message had he did it. Once they realized that they
got there to say she got there in time to
have made the call, despite the fact that they had
(19:58):
asked her about this multiple times and she never said
she made the call, and in fact denied it, and
then got on the stand and testified that she had,
and it was clear that they had convinced her that
she had to say that otherwise the case against Cal
would kind of blow up in the first instance.
Speaker 1 (20:17):
This is what pisses me off about circumstantial cases. Now
we're talking about voicemails, the cell signal for a ten
mile radius Barb's location when Cal called. Instead of tackling
direct evidence of what happened to Michelle, the defense is
left scrambling trying to fight a ghost. Almost they're trying
(20:37):
to defend against an image of guilt that the prosecutor
is only just sort of peeling away the layers of
and revealing during the trial.
Speaker 3 (20:47):
With circumstantial evidence, lay people go, oh, it's just a
circumstantial case, and there's a stigma associated with that word
that there's not much evidence. But they can be some
of the most falsely convincing cases because the government or
the prosecution is permitted to use otherwise impermissible, non relevant evidence,
(21:13):
often negative character evidence, and they stay to the court, Oh,
this is one of the little pieces of the puzzle
that we need to build up this case because it's circumstantial,
and the judge goes, well, i'll allow it. I'll give
them some leeway. And then it's every single rock that
builds this massive mound that you can't escape from.
Speaker 1 (21:33):
When in reality it's nothing but an exhaustive climb straight
up bullshit mountain where you have to dispel this minutia
or discover the misconduct underlying it before it's too late.
And this case has plenty more like Col's a legend motive.
Speaker 2 (21:50):
If you look at the summations from the trials, you'll
see that they ascribe the mode of the cow. The
divorce case, there was a trial date set for November
of that year, and so they said he had to
kill her because he was about to go to trial
and all these fees were going to come do and
there was a thirty thousand dollars appraisal fee that he
(22:13):
was going to have to pay, and he was going
to have to pay his lawyers, and he was going
to lose everything, and that couldn't happen. That was all false,
and I think knowingly false. The divorce case had just started.
There wasn't a single deposition taken, very little, if any
discovery had been traded. That was no more ready for
(22:33):
trial than I am ready to fly a jet. It
just wasn't ripe yet. And the worst part of that
whole fabricated motive was that the case had been resolved.
In the fourth trial, we had Cal's lawyer come on
and testify that Michelle had accepted the offer, that the
case was resolved, and as I need to point it out,
(22:53):
she bought a house. This was done. And even Barbara
Thayer and Burdick, who were adamant that Cal had done this,
admitted that by the summer of two thousand and one
things had calmed down. They weren't fighting at all, and
Michelle had resolved that she was going to buy a
house in town and it's was over.
Speaker 1 (23:13):
But without this context, at the first trial, the prosecution
had created an urgency for Cal to act that was unimpeached.
Then we move on to the blood evidence, if you
can call it that, and as we mentioned, they had
said the blood was fresh because it was still red,
when not only was it not red, but color canton
(23:33):
doesn't indicate age. And then it got even more misleading.
Speaker 2 (23:37):
Henry Lee, who was their expert, famous from the OJ
case and several others. Keene asks him could this have
come from a cut on her finger? And Lee says,
of course it could have, but the jury will want
to see a cut in the finger, and they go
back and forth, laughing about the burden of proof.
Speaker 1 (23:56):
Obviously, the dark joke here is that there is nobody
so good luck with proving that this was from a
simple cut. But remember the prosecutor, Gerald Keene, his wife
was on Michelle's divorce team, and so Keene asked that
question about a cut finger, having seen the file from
Michelle's divorce attorney.
Speaker 2 (24:14):
He doesn't tell Lee what he knows, which is that
Michelle fell or if you believe her, was pushed by
cal into the snow, cut her hand a few months
before this and walked back in through the garage, which
is where the blood was. So he didn't ask that
question randomly, kind of speculating he knew that Michelle cut
her finger because his wife drew up the affid David
(24:36):
that Michelle filed in court, saying that she cut her hand.
Speaker 3 (24:40):
And there's more. The prosecutor then goes on to profer
evidence from every single witness that ever knew Michelle. Did
you ever see her bleed?
Speaker 1 (24:50):
No?
Speaker 3 (24:50):
Did you ever see her with a cut on her hand? No?
Was she bleeding during the time of September of two
thousand and one. No, So he knew that she'd cut
her hand. He knew that her path to enter the
home was where the droplets were found, and he was
aware that there was a plausible explanation for it. He
(25:12):
hid that plausible explanation, and then he went a step
further and created opposite in culpatory information that he knew
to be false.
Speaker 1 (25:22):
But the jury was unaware of this context, so they
were left with the appearance that this blood was fresh
and that it had been shed on the night Michelle disappeared.
Speaker 3 (25:33):
They convict Cal within hours, and a witness comes forward
who hadn't really thought about the case, but then sees
the reports of the conviction and he reaches out to
Cal's defense attorney, who's now a judge, Joseph Colly, and
he says Hey, I didn't think it was Michelle that
(25:55):
I saw, because everyone said she disappeared. But I think
it was because it looked just like her, and it
was at the foot of that driveway, and it was
with an individual, but it wasn't Cal. And he describes him,
his height, his build, his hair color, he describes what
they're doing, he describes her vehicle, he describes his vehicle
(26:16):
model to a t.
Speaker 1 (26:17):
So this was Kevin Tubbs describing what he claims to
have seen around five am on September twelfth, Michelle standing
with a man and his truck, matching the description of
Stacy Stewart, who was believed to have been romantically interested
in Michelle. So Cal's lawera filews what's called a three
thirty motion presenting Kevin Tubbs as well as another person
who described a similar scene that morning.
Speaker 3 (26:39):
The prosecution went furiously after both of them in a
three point thirty hearing, going as far as using sealed
documents to cross examine one of the witnesses who had
previously a case dismissed, but ultimately that conviction is overturned
after a three thirty hearing.
Speaker 4 (27:00):
I get out in November of two thousand and seven,
and then my next trial is two years later.
Speaker 3 (27:07):
They retry the case in two thousand and nine and
he is new trial council should have seen it coming.
Speaker 4 (27:15):
I tried this guy from Albany, Terry Kinlin. There were
certain things I wanted done in the second trial that
we didn't do in the first trial. Promised me he
was going to do him never did so.
Speaker 1 (27:25):
Even with two witnesses who claimed to have seen Michelle
with a man who was not cal and knowing how
the circumstantial evidence came together, his attorney just simply didn't
effectively dismantle the building blocks of this circumstantial smoke screen,
some of which were provable lies.
Speaker 4 (27:43):
And I testified in my second trial and Jerry Keene
doing his closing argument, he says as to the jury
that cal Harris wants you to believe that all these
witnesses came in here today and lied to you, and
that he's the only one telling the truth. And the
reality is that's exactly what happened. All the key witnesses
(28:09):
were lying. But you know, there's nothing you can do
waiting for the jury's verdict that moment. I had to
go through that four times. I still have nightmares about
those moments, and I can't watch another crime show. They
always show the verdict. I can't watch it. I'm incarcerated
(28:46):
a month in two thousand and five, for six months
after my conviction in two thousand and seven, while the
three point thirty hearing was being processed. And then I'm
convicted again in two thousand and nine, and this time
I wind up going to the Auburn Correctional Facility. Every
time I was incarcerated and I'm sitting in my cell,
(29:09):
time comes to a complete stop. Every minute is an hour, right,
and you're ripped away from your kids and you're worried
about them. My first conviction in two thousand and seven,
Taylor would have been eleven, Kayla would have been ten,
Jenna was eight, and Tanner was six. I think at
the time, and I'm the only parent they've got. My
(29:33):
kids were young and at that time in their life
is as a parent, it is the most joyful when
they're young and growing up and you do all these
fun things together and we couldn't. We couldn't do anything,
We couldn't plan anything. Every special moment when I wasn't
in prison, every birthday, every holiday, Christmas, whatever. We're sitting
(29:55):
around and I'm sick to my stomach right, I can't
enjoy moment. I'm trying to put up a good front
for my kids so that they can enjoy the moment.
But I'm sick to my stomach every single minute of
every day because I don't know what's going to happen.
It was torture for fifteen years having to live that way.
Speaker 1 (30:18):
But during that time, cal learned a great deal about
the evidence rules that paved the way for circumstantial evidence cases,
and it appears to have had roots in the prosecution
of other bodyless murder cases.
Speaker 4 (30:32):
In eighteen fifty, it was the first time that New
York allowed a bodyless murder case. Prior that you couldn't
convict somebody in New York without a body. The mentality
was that they didn't want someone who was cunning enough
to dispose of the body to get away with that,
(30:54):
so they changed the rules of evidence. And one of
the things that one of my previous attorneys built, so
Easton argued in the appeal, was the pendulum has swung
too far in New York. It went from eighteen fifty
where you couldn't convict somebody unless you had a body
to the Cal Harris case now in two thousand and nine,
(31:15):
where you went too far. There's no evidence here, and of.
Speaker 1 (31:19):
Course it didn't hurt to have alternate suspects that upended
the state's theory. Nevertheless, the conviction was overturned an insufficiency
of evidence, making way for a third trial. And that's
when Cal hired Barquette Epstein.
Speaker 2 (31:33):
Remember now we got the case and had seen the
movie already, right, so we had two trial transcripts to
go off of, and Aida and I and Donna Eldea,
who tried the case with us. We talked about the
fact that you have all these facts and I'll put
that in quotes, facts that the prosecutor used to build
a circumstantial case. And then we said, we have to
challenge all of the ones that we know to be
(31:56):
false or that are challengeable. And the jury, when we
did that, are looking at you because they don't understand
why we arguing about who made a phone call or
why are we arguing about where certain things were the
divorce proceedings, Because they didn't understand how this is supposedly
all going to come together for the government. In neither
of the first two lawyers, frankly, because they didn't have
(32:17):
the preview that we had, so they just kind of
let that stuff go. For the most part, we had
to dig in and fight each one of those facts.
So you could say that's not what happened. You can't
use that as a building block because it's false or
flawed in some way.
Speaker 1 (32:32):
So in addition to presenting the alternate suspect witnesses, they
exposed Barb Thayer's deceit as well as the alleged motive.
And then there was the alleged freshness of the blood
and alleged cleaning efforts, all supported by the state's quote
unquote expert Henry Lee.
Speaker 2 (32:50):
So we called up all these lawyers that had either
hired him or dealt with him, and pulled all these transcripts,
and you realize that the guy is nothing more than
a really a whole. He would say anything for anybody.
And the end of the cross I had transcripts from
a trial he did in the Carolinas where his justification
for that theory was in opposite of what he was
(33:12):
saying about cal like literally, you couldn't held both opinions,
and so he essentially gave up and said you're right,
and that was it. And it went so well with
Henry Lee on the third trial they never brought him
back again.
Speaker 1 (33:27):
Unfortunately, a fourth trial was necessary. Despite dismantling the circumstantial
evidence and exposing them as conduct, the jury was hung,
so they considered waving a jury. But not all judges
are created equal.
Speaker 4 (33:42):
I mean, for me, it was clear that a circumstantial
case like mine was too complicated for a jury, and
I just felt that I'm zero for three. What do
you do? It's worth a try.
Speaker 3 (33:58):
It was a big risk. But we wanted to judge
who had conviction.
Speaker 4 (34:06):
In balls balls.
Speaker 3 (34:09):
I wanted to say ball, I don't know why, I'm
like hiding words. We wanted to judge who had balls,
and we wanted to judge who was really smart. He
had both of those things. And we looked up decisions
he had issued in the past, and we did more.
Speaker 2 (34:20):
Than read his decisions. If you remember, I eate it.
We spoke to people who knew him. He had been
a defense attorney for a long time, tried about a
dozen murder cases, so he was experienced, and they said
to us, he's going to do what he thinks is right.
Trust us. If he thinks your guy's guilty, he's going
to go down. And we were in the back talking
about jury selection and I eat it. Donna and I
(34:42):
looked at each other and I'm like, okay, let's do this.
And I literally went like this. I said, come out.
He's like, what do you What do you mean? I said,
you're it, judge. He says, what do you mean? I'm it?
So we're waiving a jury and he lost his temper.
What started yelling at me? You think because I was
a defense attorney, I'm going to quit your guy. I'll
tell you something. I'll convict him. Quicker just went off
(35:03):
on me. I'll be honest. He scared me enough. If
I was there alone, i'd have backed off. I think
Aida was like, no, we can still do this, and
Donna was, now, he's just blowing smoke. He'll be fine.
Speaker 3 (35:14):
There have been so many judges that had said this
case was insufficient to go forward that we thought a
smart judge with balls will finally put this to rest.
Speaker 2 (35:24):
He comes out and he says, there's one count in
the indictment, murdering the second degree. I'm the soul trial
or fact in this case. I find the defendant not guilty.
Bales exonerated, bangs his hand on the bench, and I
turned to my left to see Cal and Aida and Donna,
and by the time I turned back, he was gone.
Speaker 3 (35:46):
And Cal turned to me and said, what just happened?
Is it not guilty or guilty?
Speaker 4 (35:51):
I couldn't even hear. I couldn't hear you.
Speaker 3 (35:53):
Yeah, head, but your kids heard it.
Speaker 4 (35:57):
Yeah, It's just like a ton of bricks come on
my shoulders. Finally, after fifteen years, we're able to look
at each other and know that we're going to be
a family, and we can start making plans going forward,
which we couldn't do for fifteen years.
Speaker 2 (36:14):
His oldest son got in the cornel that day, May
twenty fourth, twenty sixteen.
Speaker 4 (36:20):
But the damage is done. We're all suffering in one
form or another. It's never gonna go away, only because
this case has garnered so much attention and she's still missing.
You know, That's what keeps everybody watching, is that she's
still missing. And I'm getting death threats to this day.
I've been assaulted several times now since my acquittal. I
(36:41):
have to look over my shoulder every day I leave
the house.
Speaker 1 (36:44):
All because a circumstantial case can be that falsely convincing. Meanwhile,
the team held a May twenty twenty five press conference
where Cal and his children offered a one hundred thousand
dollars reward for information that would lead to finding Michelle's remains.
Speaker 2 (37:01):
We have a pretty good idea of what happened to her,
at least who was involved, and there are people who
know what happened, and we're hoping that the money will
be the incentive that they need. Just for a moment,
imagine that we do this, that we find her. It
(37:21):
would be unbelievable. And we've looked. It's not that we
haven't been looking. I aid it was with me in
twenty fourteen, this summer, digging up an outhouse with a
couple of investigators in a backo.
Speaker 4 (37:35):
Oh boy.
Speaker 3 (37:36):
I used to be an editor at l magazine before
I decided to go to law school. I used to
get free loot, go to runway shows and there I
am surrounded by five retired detectives and Bruce and a
couple of shovels going through an outhouse.
Speaker 1 (37:50):
But I'd say it's arguably more meaningful work. So we're
going to go ahead and link ways to contact bark
at Epstein in the episode descript as any new information
could also help them in their next fight.
Speaker 2 (38:06):
October twenty seventh, we have the federal Civil Rights trial,
and this is where the hunters have become the prey.
The defendants are Gerald Keene, Steve Anderson, and Susan Mulvey
State police in the County of Tioga. We hope to
put on a persuasive case not only is Cal obviously innocent,
but that what happened to him was fundamentally wrong, a
(38:28):
violation of his constitutional rights, and they should be held
to account for that.
Speaker 1 (38:33):
And with that, we're going to go to closing arguments,
where first of all, I'm thanking you all from the
bottom of my heart for being here today and courageously
sharing this harrowing story. I don't know how else to
put it. And then I'm just going to kick back
in my chair and listen to anything else you feel
is left to be said. So let's do it in
alphabetical order. Aida. Let's start with you, then Bruce, and
(38:59):
then Cal can take us off into the sunset.
Speaker 3 (39:02):
It has been such an eye opening experience to see
the level at which lawyers have to work it's a
herculean task to actually exonerate somebody, especially when the prosecution
and the police make it personal. And we left no
single piece of paper unturned. And I remember seeing cal
(39:27):
angry during moments of the trial, and there's no question
to me who actually knows the evidence as opposed to
a lay person that watched forty eight hours that he's innocent,
and his anger and his bitterness and his love for
his kids and his grace and compassion while he was
actually incarcerated is all a testament to that. So it's
(39:52):
been an incredible teaching moment. I'm very grateful that he
trusted us and that I got to participate in it,
not just for him, but for is four incredible, spectacular kids.
Speaker 2 (40:05):
We've been lucky enough to handle a number of cases
that involved wrongful convictions, and a product of that is
we get solicitations regularly from people who are in prison
saying that they're innocent. And one of the things that
you see is people who are innocent look at the
process as an obstacle. People who are guilty who are
(40:28):
looking for a way out look at the process as
an opportunity. So you meet with somebody and they tell you,
I didn't do it, and then they start talking to
you about all the evidentiary issues that come up. What
was wrong the grand jury, this didn't happen, they didn't
do that right, the four persons didn't sign the indictment
and all this stuff. The people who are innocent are
(40:50):
a an open book, and b say, I don't give
a damn about the rules of evidence. They are obstructing me.
They're screwing me. They're stopping me from proving that I
didn't commit this crime. And that was cal from the
moment I met him until this day. He's been an
open book and said, what do you want to know?
Where do you want to look? Search my house, search
(41:11):
anything you want to do, any question you ask is
fine with me. And had no patience for the intricacies
of the courtroom and the rules of evidence. I think
he kind of touched on it here that he feels
screwed by them, and rightly so.
Speaker 4 (41:27):
And for me at this stage, I want justice. I
want Sue OVI and Steve Anderson and Jerry Keen held accountable.
I want to see them in that courtroom. I want
to see them on the witness stand. I want them
to know what it feels like, I mean, they're never
going to go to prison. Well, they're never going to
be held accountable. If we do win. If and there's
(41:49):
damages awarded, they're not going to have to pay. But
I want them to know what it feels like to
be on the hot seat, whether we win we don't.
I'm hoping that we're able to show the public what
they did behind the scenes. There's a lot of people
right now that have switched their opinion of me, and
(42:11):
I'm hoping that more people will switch their opinion once
they see the evidence that we're going to present, and
I've already put it out there on my podcast episode three.
You're gonna see most of the evidence that we're putting on.
But then I know there's people out there they're never
gonna believe anything. Even if we do find her, They'll
still think I'm guilty. But I want justice for me
(42:32):
and my kids, and that's all I can ask for
at this point.
Speaker 1 (42:42):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcasts one
week early and ad free by subscribing to Lava for
Good Plus on Apple Podcasts. I want to thank our
production team Connor Hall and Kathleen Fink, as well as
my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Clive.
The music in this production was supplied by three time
(43:02):
OSCAR nominated composer Jay Ralph. Be sure to follow us
across all social media platforms at Lava for Good and
at Wrongful Conviction. You can also follow me on Instagram
at It's Jason Flamm. Wrongful Conviction is a production of
Lava for Good Podcasts and association with Signal Company Number One.
We have worked hard to ensure that all facts reported
in this show are accurate. The views and opinions expressed
(43:23):
by the individuals featured in this show are their own
and do not necessarily reflect those of Lava for Good.
Married couple. Cal and Michelle Harris were living separate lives
under the same roof as their divorce proceedings began in
two thousand and one. When Michelle didn't return from work
one September night, it was assumed that she'd stayed with
friends or with her boyfriend, but when her van was
(00:22):
found at the edge of their property, the police focused
on her estranged husband, developing circumstantial evidence as well as
what appears to have been total fabrications, while dragging Cal
Harris through four trials over the course of fifteen years.
This is wrongful Conviction. You're listening to Wrongful Conviction. You
(00:48):
can listen to this and all the Lava for Good
podcasts one week early and ad free by subscribing to
Lava for Good Plus on Apple Podcasts. Welcome back to
Ron with Conviction, where we're heading to Tioga County, New York,
(01:08):
where our guests today. Cal Harris worked for his family's
auto dealership business while raising his four kids until it
was all derailed, first by marital troubles, followed by the
disappearance of his estrange wife, Michelle. Cal I'm sorry you're
here because of what you've gone through, but I'm very
(01:29):
happy and honored to have you with us. Welcome, we
thank you, and to help him tell this story. We're
joined by two of his attorneys from Barquette Epstein, Aida
elyisen Ring and Bruce Barquette.
Speaker 2 (01:41):
Thanks for having us.
Speaker 3 (01:42):
I'm very happy to be here.
Speaker 1 (01:43):
So Cal, We've got a lot of ground to cover.
Let's rewind all the way back to where you grew up,
the family, the auto business, and then of course we'll
turn to the tale of you and Michelle.
Speaker 4 (01:54):
I grew up in the Binghamton area, about an hour
north of Scranton, Pennsylvania, and about an hour hours south
of Syracuse, New York. My father started the business back
in nineteen sixty seven with a small Ford dealership in Awego,
New York. And when my brothers and I were of
age and got in the family business, we grew. We
had eight dealerships in four different locations. We represented almost
(02:17):
every major franchise, domestic in import. We had a very
good marketing system, we had a very good business plan,
and we grew exponentially.
Speaker 1 (02:26):
And when and how did you meet Michelle?
Speaker 4 (02:29):
Well, Michelle and I started dating in the late eighties,
got married in August of nineteen ninety. Built our home
in ninety two, and then our first child, Taylor, was
born in ninety four, and then the next year Kayla,
and then Jenna was born in ninety seven, and then
Tanner was born in ninety nine. Michelle is a great mother. Obviously,
(02:53):
having four young children was a big task for Michelle.
I was working a lot of hours at the family business,
so we had two part time nannies, and then we
had a handful of babysitters, so the kids were well
taken care. We lived on a very beautiful piece of
property and it was a small lake surrounded by two
(03:13):
hundred and fifty acres. We purchased it from Binghamton University
and it was a newdist camp for Binghamton University.
Speaker 3 (03:21):
See I finally learned something new.
Speaker 1 (03:23):
Cal Yeah, that.
Speaker 4 (03:25):
Was back in the sixties and the seventies. And then
when the newdiest thing kind of ran its course, it
sat empty for years and somebody on the board of
Binghamton University knew my dad and cut us a deal.
We don't live there anymore. I had to sell the
property to pay my legal bills. We'll never be able
to replace that property, but we had our own little
(03:46):
sanctuary out there, all kinds of woods and nature, and
I taught my kids how to water ski and wakeboard
on the lake behind the jet ski, and we fished
and it was a great run while it lasted.
Speaker 1 (03:59):
And during the happier years for the Harris family. The
New York State Police, specifically Troops C that operated in
the southern tier of the state, was while they were
experiencing discord, and that began what a detective named Harding
was interviewing with the CIA, and when he was asked
if he'd break the law for his country, Harding admitted
to manipulating or fabricating evidence against folks that they believed
(04:23):
to be guilty. That kicked off a fourteen month investigation.
Speaker 4 (04:27):
A special prosecutor get an investigation on Troop C, and
he uncovers forty instances of evidence tampering by Troop C.
In his conclusion, he says everyone at Troop C was
either directly involved or had firsthand knowledge on it, and
he said it was generational that they were passing on
this behavior to new recruits. And even after that report,
(04:51):
Sue Malby, the lead investigator on my case, gets caught
coercing a false confession out of a fifteen year old boy.
It sends that to prison, and the only reason that
boy gets out is because the adult male that committed
the crime confessed to it.
Speaker 1 (05:07):
And it appears that this pattern of misconduct was applied
to Cal, whose once happy marriage by March of two
thousand and one, had devolved, as these things sometimes do,
into divorce proceedings. Cal and Michelle, meanwhile, we're cope parenting
and remained in the home together, but they were living
separate lives. Michelle began socializing more and eventually began working
(05:28):
at a bar called Lefties in an area known as
the Valley.
Speaker 4 (05:33):
So she's been going down to the Valley and hanging
out at these dive bars and she's partying pretty hard.
She knows what Lefties is, she knows they're dealing drugs
out of there. But she made it clear to me
that what she does outside the home is none of
my business. So the only people that know what's going
on in her life are the nanny barb there, Michelle's
(05:56):
sister in law, Shannon Taylor, and she also had a
friend named Nicki Burdick that was a friend that she
would go out with at night. And party with, and
she had a boyfriend at the time. Through the investigation,
she was also involved with apparently several other guys at
the same time. And I noticed from March two thousand
(06:18):
and one, when she starts to work there till September
of two thousand and one, things get really bad and
she's living a lifestyle that's not healthy for her, not
healthy for the kids. And she'd go to work, but
she wouldn't come home. She would always go out afterwards.
Sometimes she'd go over to her boyfriend's house. Most of
the time she would go out and party and hang
(06:40):
out with these other guys that she's involved with. She
had been frequently not coming home until five or six
o'clock in the morning, and there were some mornings that
she was so hungover she couldn't even watch the kids
and barb theair than nanny had to come over and
take that responsibility.
Speaker 1 (06:56):
But despite the erratic lifestyle, by the summer of two
thousand and one, tensions between Call and Michelle had died
down and it appeared that they were going to settle
the divorce. Michelle had borrowed money from her boyfriend approachases
a home, so things were looking up when all of
a sudden they took a terrible turn.
Speaker 2 (07:14):
So the chronology is September eleventh, she wakes up, the
events take place down in New York City. She works
that night at Lefties. Her boyfriend testified that she visited
him and left around eleven or eleven fifteen pm. Nobody
else saw her that we are certain of, other than
potentially whoever was at the foot of the driveway with
(07:35):
her the following morning.
Speaker 1 (07:37):
A witness named Kevin Tubbs later came forward describing this
scenario and a man who may have been a guy
named Stacy Stewart.
Speaker 2 (07:46):
Stacy Stewart knew Michelle because they would frequent the bar Lefties,
and the degree to which they got to know each other,
I think is up for some debate, but it's purported
to us by number of witnesses Stewart was interested in
Michelle romantically. We have evidence that she was at the
foot of the driveway around roughly five o'clock in the
(08:07):
morning with somebody who matches Stacy Stewart's description to a
t and was driving the type of truck that Stacy
Stewart owned.
Speaker 1 (08:16):
But that wasn't known until after his first conviction. At
least not by the defense. So after this alleged sighting
on the driveway on the morning of September twelfth, the
morning began as usual for Cal the kids. When Cal
noticed Michelle was out of the couch, he continued about
his routine getting the older kids ready for school, and
a little after seven am, when he hadn't seen Michelle yet,
(08:39):
he called Barblayer for help with their youngest, Tanner, while
everyone else was set to leave and start their day.
Speaker 4 (08:46):
So I called Barb and I said, Michelle's not home yet.
I'm not sure what's going on. Can you help me
get the kids to school because someone's got to stay
home with Tanner. So she said, yep, I'm available. And
a few minutes after I called Barb, Barb, I call
Michelle's cell phone, and because we live in a remote area,
our cell phone coverage cuts out in about a ten
(09:08):
mile radius around our house. And I didn't leave a
message because I just assumed, years and years of doing that,
that she was on her way home, she was within
that ten mile radius, so I don't leave a message.
Speaker 1 (09:22):
Years later, at the first trial, Barb Fayer testified that
she was the one who made that phone call, even
though that was impossible.
Speaker 4 (09:32):
I called Barb and then four minutes later I called
Michelle's cell phone.
Speaker 2 (09:37):
If you track where she was, she could not have
gotten to Cal's house in time to make the call.
Speaker 1 (09:46):
And when Barb actually did arrive, she discovered Michelle's van
at the end of the driveway.
Speaker 4 (09:51):
Barb comes in through the garage and she walks into
the kitchen. It says to me, is Michelle here? And
I say no. She says, well, her van's at the
end of the driveway. It's unlocked. I looked in it
and she's not in there. And then I said, well,
are the keys in it? And she says yes. So
(10:12):
we hop in my truck and we go out to
the end of the driveway, and Barb's not upset. In fact,
we had some small conversation on the way out to
the end of the driveway, and Barb's saying things like, well,
maybe she's hungover at at friend's house.
Speaker 1 (10:27):
After Cal drove off with the kids, Michelle's party friend,
Nicki Burdick, called and according to Barb, there she explained
to Nicky about Michelle's van.
Speaker 2 (10:36):
There's a voice message from Burdick on Michelle's cell phone,
You're scaring me, Where are you? What's going on?
Speaker 4 (10:42):
That kind of thing, And then Nicky calls Michelle's divorce attorney,
who in turn calls the state police, and that's when
the investigation starts. The lead investigator on this case was
(11:10):
Sue Andrew's Mulvey of New York State Police Troops c.
As soon as my name came up, she immediately put
herself on as the lead investigator because for her this
was personal. And the reason it was personal was because
her father, John Andrews, used to work for me back
(11:31):
in the day in one of the dealerships and I
fired him and it was bad blood ever since.
Speaker 2 (11:39):
So you had the lead investigator's father having worked for
Cal and being fired, and the lead prosecutor, Gerald Keene,
his wife was part of the team representing Michelle in
the divorce.
Speaker 4 (11:52):
Well, it's the classic case of the small town everybody
it's related to somebody.
Speaker 2 (11:58):
So her divorce lawyer turned his file over right away
to the state police and it didn't take much for
the divorce lawyer, Nikki's there and I think the in
laws the tailors to assume that Cal had something to
do with this.
Speaker 1 (12:17):
Now, at that point, there was no body. In fact,
her body to this day has still never been found.
So the investigators began searching her van, the house, the garage,
trying to find something incriminating.
Speaker 4 (12:32):
Steve Anderson, he's supposed to be the forensic expert. He
immediately comes in and starts testing the sub millimeter stains.
There's like a dozen altogether sub millimeter stains in the
garage and in the kitchen as you come into the house.
Speaker 2 (12:48):
The first thing that he did is he saw what
he thought was blood spattered on the wall in the garage.
It turned out that was non human dog's blood.
Speaker 3 (12:58):
Well there is the cookie or pasta sauce on the
ceiling as well. It's very disappointing that it turned out
out to be blood.
Speaker 1 (13:06):
But Anderson eventually did find some human blood stains.
Speaker 4 (13:10):
So he tests these stains, and the protocol that he's
supposed to follow is that when he comes down to
what he believes to be a crime scene, he's supposed
to observe and take notes, then photograph, and then he's
supposed to test with his cotton swab and his solution.
But that's not what he does in my house. He's
(13:31):
taking his cotton swab, which he admits one of the
stains he totally consumes as he's testing it, but he
doesn't take a photograph before he does it, so we
have to take his word for it. But the reality
is he's the one that's altering the stains, and then
he says it's me trying to clean up these sub
(13:53):
millimeter stains.
Speaker 1 (13:54):
So Anderson's missteps were eventually presented as evidence of some
alleged post murder cleanup effort, when in reality that blood
had likely been there for quite a while.
Speaker 2 (14:07):
They said that the blood was red, therefore fresh, that
it had to be depositive within a few days. That
was two lies. One, the blood wasn't that color, and two,
it doesn't matter what color it is, because the scientific
community agrees you can't age blood based upon its color.
(14:27):
Sometimes it turns brown very quickly, and sometimes it stays
red for an inordinate amount of time, and they haven't
been able to figure out the variables that would cause
the blood to turn colors in some amount of time.
Speaker 1 (14:40):
It turns out that there was a known explanation for
that blood spatter as well, and we're going to hear
more about that later. Now, without any known witnesses. The
police began interviewing family, friends and community members, not about
what you would expect them to ask about, which is
anything they may have seen regarding Michelle's disappearance, but instead
(15:01):
they sort of narrow focused on Cal.
Speaker 3 (15:05):
I think that the way the police conducted their investigation
throughout the entire community, they led everyone to we think
Cal did it.
Speaker 4 (15:14):
I had friends of mine who didn't buy into the
state police narrative and questioned the state police, well, what
do you mean you know that Cal did it? And
when the state police wouldn't answer, you know how they knew,
then my friends were like, well then what are you doing?
Speaker 3 (15:31):
Then they had random people and witnesses fill out FBI
profiles like does he ever get mad? Has he ever
done this? Has he ever done that? Day after day,
multiple witness interviews, the news, the chatter, the town talking.
Another day goes by where her body isn't recovered, and
(15:52):
the zealousness with which they tried to investigate Cal, Like
that gets you in the entire community in the mindset
of let's get him. He's getting away with murder. Because
the police believed that.
Speaker 2 (16:04):
There the babysitter who came over right away started to
create a diary documenting the things that were going on
at the house, thinking she was helping the police.
Speaker 3 (16:14):
One of his former neighbor's friends says, let me rack
my brain. I do remember, and this is one of
my favorite little details. I do remember. He kept trying
to clean his glasses and the natural implication was that
there was blood spatter on them, and it's like Macbeth
trying to clean the blood off the hands. They interviewed
(16:35):
people in Canada, like, oh, he was on vacation in Canada.
We hear that the jet skier got into a verbal
dispute with him. They interviewed girlfriends from high school. I mean,
they turned his entire life upside down and found nothing.
But when you have all of these little, tiny pieces
of nothing burgers together and they've completely assassinated his character,
(17:01):
and in a.
Speaker 1 (17:01):
Case that is largely circumstantial, those elements become admissible, contrary
to a case with direct evidence of guilt, in which
the defense has a better idea of what the issues are.
But in circumstantial cases, the state weaves a web from
these disparate elements that would normally be inadmissible but together
and create an appearance of guilt and that can overwhelm
(17:24):
a traditional defense. And by two thousand and five, sure enough,
cal was indicted. And it seems that the prosecution felt that
they had enough to do that, but the first two judges, well,
they disagreed.
Speaker 3 (17:37):
The first judge reviewed the grand jury minutes and the
transcripts and gave a heads up to the prosecutor and
to the defense attorney, I'm dismissing this case. It's insufficient.
What does the prosecutor do? The next day he files
a formal motion to recuse the judge, stating that he's
given the appearance that he favors the defense, and ultimately
(18:01):
pits his oath of office against that of the judge,
as the judge claims, sort of requiring at that point
the judge to get off the case because of the
animosity and the claims that are made by the prosecutor.
So he did, and a new judge was assigned, and
that judge also dismissed the case, indicating that the previous
(18:24):
judge's decision stands and it's insufficient. So it got dismissed,
and then they went on to represent the case and
put on more witnesses. In two thousand and seven, they
try the case in front of a jury pull frankly
that have been polluted by the police investigation, no Cal,
(18:45):
and have strong opinions about the case.
Speaker 1 (18:47):
Ultimately, the state's trial narrative was that Cal killed Michelle
sometime late on September eleventh, citing no signs of forced entry,
the alleged blood evidence, the looming divorce and custody proceedings,
as well as some circumstantial witness testimony, some of which
were just outright lies. Now, as we mentioned, the morning
(19:08):
of Michelle's disappearance, Cal called Barb Thayer for help with
the kids and then called Michelle, but didn't leave a voicemail.
Speaker 2 (19:16):
So Keen, the prosecutor, in a deposition that we took
about four years ago, admitted that if Cal had placed
the call at seven point fifteen, and had he been
the killer, in other words, he knows he's calling a
dead person's phone, he would have left some contrived message
about I'm worried about you, where are you, why aren't
(19:37):
you home with the kids, something like that. And Keene
admitted if he made the call and didn't leave a message,
he couldn't have committed this crown because there's no way
he would have made the call and not left the
message had he did it. Once they realized that they
got there to say she got there in time to
have made the call, despite the fact that they had
(19:58):
asked her about this multiple times and she never said
she made the call, and in fact denied it, and
then got on the stand and testified that she had,
and it was clear that they had convinced her that
she had to say that otherwise the case against Cal
would kind of blow up in the first instance.
Speaker 1 (20:17):
This is what pisses me off about circumstantial cases. Now
we're talking about voicemails, the cell signal for a ten
mile radius Barb's location when Cal called. Instead of tackling
direct evidence of what happened to Michelle, the defense is
left scrambling trying to fight a ghost. Almost they're trying
(20:37):
to defend against an image of guilt that the prosecutor
is only just sort of peeling away the layers of
and revealing during the trial.
Speaker 3 (20:47):
With circumstantial evidence, lay people go, oh, it's just a
circumstantial case, and there's a stigma associated with that word
that there's not much evidence. But they can be some
of the most falsely convincing cases because the government or
the prosecution is permitted to use otherwise impermissible, non relevant evidence,
(21:13):
often negative character evidence, and they stay to the court, Oh,
this is one of the little pieces of the puzzle
that we need to build up this case because it's circumstantial,
and the judge goes, well, i'll allow it. I'll give
them some leeway. And then it's every single rock that
builds this massive mound that you can't escape from.
Speaker 1 (21:33):
When in reality it's nothing but an exhaustive climb straight
up bullshit mountain where you have to dispel this minutia
or discover the misconduct underlying it before it's too late.
And this case has plenty more like Col's a legend motive.
Speaker 2 (21:50):
If you look at the summations from the trials, you'll
see that they ascribe the mode of the cow. The
divorce case, there was a trial date set for November
of that year, and so they said he had to
kill her because he was about to go to trial
and all these fees were going to come do and
there was a thirty thousand dollars appraisal fee that he
(22:13):
was going to have to pay, and he was going
to have to pay his lawyers, and he was going
to lose everything, and that couldn't happen. That was all false,
and I think knowingly false. The divorce case had just started.
There wasn't a single deposition taken, very little, if any
discovery had been traded. That was no more ready for
(22:33):
trial than I am ready to fly a jet. It
just wasn't ripe yet. And the worst part of that
whole fabricated motive was that the case had been resolved.
In the fourth trial, we had Cal's lawyer come on
and testify that Michelle had accepted the offer, that the
case was resolved, and as I need to point it out,
(22:53):
she bought a house. This was done. And even Barbara
Thayer and Burdick, who were adamant that Cal had done this,
admitted that by the summer of two thousand and one
things had calmed down. They weren't fighting at all, and
Michelle had resolved that she was going to buy a
house in town and it's was over.
Speaker 1 (23:13):
But without this context, at the first trial, the prosecution
had created an urgency for Cal to act that was unimpeached.
Then we move on to the blood evidence, if you
can call it that, and as we mentioned, they had
said the blood was fresh because it was still red,
when not only was it not red, but color canton
(23:33):
doesn't indicate age. And then it got even more misleading.
Speaker 2 (23:37):
Henry Lee, who was their expert, famous from the OJ
case and several others. Keene asks him could this have
come from a cut on her finger? And Lee says,
of course it could have, but the jury will want
to see a cut in the finger, and they go
back and forth, laughing about the burden of proof.
Speaker 1 (23:56):
Obviously, the dark joke here is that there is nobody
so good luck with proving that this was from a
simple cut. But remember the prosecutor, Gerald Keene, his wife
was on Michelle's divorce team, and so Keene asked that
question about a cut finger, having seen the file from
Michelle's divorce attorney.
Speaker 2 (24:14):
He doesn't tell Lee what he knows, which is that
Michelle fell or if you believe her, was pushed by
cal into the snow, cut her hand a few months
before this and walked back in through the garage, which
is where the blood was. So he didn't ask that
question randomly, kind of speculating he knew that Michelle cut
her finger because his wife drew up the affid David
(24:36):
that Michelle filed in court, saying that she cut her hand.
Speaker 3 (24:40):
And there's more. The prosecutor then goes on to profer
evidence from every single witness that ever knew Michelle. Did
you ever see her bleed?
Speaker 1 (24:50):
No?
Speaker 3 (24:50):
Did you ever see her with a cut on her hand? No?
Was she bleeding during the time of September of two
thousand and one. No, So he knew that she'd cut
her hand. He knew that her path to enter the
home was where the droplets were found, and he was
aware that there was a plausible explanation for it. He
(25:12):
hid that plausible explanation, and then he went a step
further and created opposite in culpatory information that he knew
to be false.
Speaker 1 (25:22):
But the jury was unaware of this context, so they
were left with the appearance that this blood was fresh
and that it had been shed on the night Michelle disappeared.
Speaker 3 (25:33):
They convict Cal within hours, and a witness comes forward
who hadn't really thought about the case, but then sees
the reports of the conviction and he reaches out to
Cal's defense attorney, who's now a judge, Joseph Colly, and
he says Hey, I didn't think it was Michelle that
(25:55):
I saw, because everyone said she disappeared. But I think
it was because it looked just like her, and it
was at the foot of that driveway, and it was
with an individual, but it wasn't Cal. And he describes him,
his height, his build, his hair color, he describes what
they're doing, he describes her vehicle, he describes his vehicle
(26:16):
model to a t.
Speaker 1 (26:17):
So this was Kevin Tubbs describing what he claims to
have seen around five am on September twelfth, Michelle standing
with a man and his truck, matching the description of
Stacy Stewart, who was believed to have been romantically interested
in Michelle. So Cal's lawera filews what's called a three
thirty motion presenting Kevin Tubbs as well as another person
who described a similar scene that morning.
Speaker 3 (26:39):
The prosecution went furiously after both of them in a
three point thirty hearing, going as far as using sealed
documents to cross examine one of the witnesses who had
previously a case dismissed, but ultimately that conviction is overturned
after a three thirty hearing.
Speaker 4 (27:00):
I get out in November of two thousand and seven,
and then my next trial is two years later.
Speaker 3 (27:07):
They retry the case in two thousand and nine and
he is new trial council should have seen it coming.
Speaker 4 (27:15):
I tried this guy from Albany, Terry Kinlin. There were
certain things I wanted done in the second trial that
we didn't do in the first trial. Promised me he
was going to do him never did so.
Speaker 1 (27:25):
Even with two witnesses who claimed to have seen Michelle
with a man who was not cal and knowing how
the circumstantial evidence came together, his attorney just simply didn't
effectively dismantle the building blocks of this circumstantial smoke screen,
some of which were provable lies.
Speaker 4 (27:43):
And I testified in my second trial and Jerry Keene
doing his closing argument, he says as to the jury
that cal Harris wants you to believe that all these
witnesses came in here today and lied to you, and
that he's the only one telling the truth. And the
reality is that's exactly what happened. All the key witnesses
(28:09):
were lying. But you know, there's nothing you can do
waiting for the jury's verdict that moment. I had to
go through that four times. I still have nightmares about
those moments, and I can't watch another crime show. They
always show the verdict. I can't watch it. I'm incarcerated
(28:46):
a month in two thousand and five, for six months
after my conviction in two thousand and seven, while the
three point thirty hearing was being processed. And then I'm
convicted again in two thousand and nine, and this time
I wind up going to the Auburn Correctional Facility. Every
time I was incarcerated and I'm sitting in my cell,
(29:09):
time comes to a complete stop. Every minute is an hour, right,
and you're ripped away from your kids and you're worried
about them. My first conviction in two thousand and seven,
Taylor would have been eleven, Kayla would have been ten,
Jenna was eight, and Tanner was six. I think at
the time, and I'm the only parent they've got. My
(29:33):
kids were young and at that time in their life
is as a parent, it is the most joyful when
they're young and growing up and you do all these
fun things together and we couldn't. We couldn't do anything,
We couldn't plan anything. Every special moment when I wasn't
in prison, every birthday, every holiday, Christmas, whatever. We're sitting
(29:55):
around and I'm sick to my stomach right, I can't
enjoy moment. I'm trying to put up a good front
for my kids so that they can enjoy the moment.
But I'm sick to my stomach every single minute of
every day because I don't know what's going to happen.
It was torture for fifteen years having to live that way.
Speaker 1 (30:18):
But during that time, cal learned a great deal about
the evidence rules that paved the way for circumstantial evidence cases,
and it appears to have had roots in the prosecution
of other bodyless murder cases.
Speaker 4 (30:32):
In eighteen fifty, it was the first time that New
York allowed a bodyless murder case. Prior that you couldn't
convict somebody in New York without a body. The mentality
was that they didn't want someone who was cunning enough
to dispose of the body to get away with that,
(30:54):
so they changed the rules of evidence. And one of
the things that one of my previous attorneys built, so
Easton argued in the appeal, was the pendulum has swung
too far in New York. It went from eighteen fifty
where you couldn't convict somebody unless you had a body
to the Cal Harris case now in two thousand and nine,
(31:15):
where you went too far. There's no evidence here, and of.
Speaker 1 (31:19):
Course it didn't hurt to have alternate suspects that upended
the state's theory. Nevertheless, the conviction was overturned an insufficiency
of evidence, making way for a third trial. And that's
when Cal hired Barquette Epstein.
Speaker 2 (31:33):
Remember now we got the case and had seen the
movie already, right, so we had two trial transcripts to
go off of, and Aida and I and Donna Eldea,
who tried the case with us. We talked about the
fact that you have all these facts and I'll put
that in quotes, facts that the prosecutor used to build
a circumstantial case. And then we said, we have to
challenge all of the ones that we know to be
(31:56):
false or that are challengeable. And the jury, when we
did that, are looking at you because they don't understand
why we arguing about who made a phone call or
why are we arguing about where certain things were the
divorce proceedings, Because they didn't understand how this is supposedly
all going to come together for the government. In neither
of the first two lawyers, frankly, because they didn't have
(32:17):
the preview that we had, so they just kind of
let that stuff go. For the most part, we had
to dig in and fight each one of those facts.
So you could say that's not what happened. You can't
use that as a building block because it's false or
flawed in some way.
Speaker 1 (32:32):
So in addition to presenting the alternate suspect witnesses, they
exposed Barb Thayer's deceit as well as the alleged motive.
And then there was the alleged freshness of the blood
and alleged cleaning efforts, all supported by the state's quote
unquote expert Henry Lee.
Speaker 2 (32:50):
So we called up all these lawyers that had either
hired him or dealt with him, and pulled all these transcripts,
and you realize that the guy is nothing more than
a really a whole. He would say anything for anybody.
And the end of the cross I had transcripts from
a trial he did in the Carolinas where his justification
for that theory was in opposite of what he was
(33:12):
saying about cal like literally, you couldn't held both opinions,
and so he essentially gave up and said you're right,
and that was it. And it went so well with
Henry Lee on the third trial they never brought him
back again.
Speaker 1 (33:27):
Unfortunately, a fourth trial was necessary. Despite dismantling the circumstantial
evidence and exposing them as conduct, the jury was hung,
so they considered waving a jury. But not all judges
are created equal.
Speaker 4 (33:42):
I mean, for me, it was clear that a circumstantial
case like mine was too complicated for a jury, and
I just felt that I'm zero for three. What do
you do? It's worth a try.
Speaker 3 (33:58):
It was a big risk. But we wanted to judge
who had conviction.
Speaker 4 (34:06):
In balls balls.
Speaker 3 (34:09):
I wanted to say ball, I don't know why, I'm
like hiding words. We wanted to judge who had balls,
and we wanted to judge who was really smart. He
had both of those things. And we looked up decisions
he had issued in the past, and we did more.
Speaker 2 (34:20):
Than read his decisions. If you remember, I eate it.
We spoke to people who knew him. He had been
a defense attorney for a long time, tried about a
dozen murder cases, so he was experienced, and they said
to us, he's going to do what he thinks is right.
Trust us. If he thinks your guy's guilty, he's going
to go down. And we were in the back talking
about jury selection and I eat it. Donna and I
(34:42):
looked at each other and I'm like, okay, let's do this.
And I literally went like this. I said, come out.
He's like, what do you What do you mean? I said,
you're it, judge. He says, what do you mean? I'm it?
So we're waiving a jury and he lost his temper.
What started yelling at me? You think because I was
a defense attorney, I'm going to quit your guy. I'll
tell you something. I'll convict him. Quicker just went off
(35:03):
on me. I'll be honest. He scared me enough. If
I was there alone, i'd have backed off. I think
Aida was like, no, we can still do this, and
Donna was, now, he's just blowing smoke. He'll be fine.
Speaker 3 (35:14):
There have been so many judges that had said this
case was insufficient to go forward that we thought a
smart judge with balls will finally put this to rest.
Speaker 2 (35:24):
He comes out and he says, there's one count in
the indictment, murdering the second degree. I'm the soul trial
or fact in this case. I find the defendant not guilty.
Bales exonerated, bangs his hand on the bench, and I
turned to my left to see Cal and Aida and Donna,
and by the time I turned back, he was gone.
Speaker 3 (35:46):
And Cal turned to me and said, what just happened?
Is it not guilty or guilty?
Speaker 4 (35:51):
I couldn't even hear. I couldn't hear you.
Speaker 3 (35:53):
Yeah, head, but your kids heard it.
Speaker 4 (35:57):
Yeah, It's just like a ton of bricks come on
my shoulders. Finally, after fifteen years, we're able to look
at each other and know that we're going to be
a family, and we can start making plans going forward,
which we couldn't do for fifteen years.
Speaker 2 (36:14):
His oldest son got in the cornel that day, May
twenty fourth, twenty sixteen.
Speaker 4 (36:20):
But the damage is done. We're all suffering in one
form or another. It's never gonna go away, only because
this case has garnered so much attention and she's still missing.
You know, That's what keeps everybody watching, is that she's
still missing. And I'm getting death threats to this day.
I've been assaulted several times now since my acquittal. I
(36:41):
have to look over my shoulder every day I leave
the house.
Speaker 1 (36:44):
All because a circumstantial case can be that falsely convincing. Meanwhile,
the team held a May twenty twenty five press conference
where Cal and his children offered a one hundred thousand
dollars reward for information that would lead to finding Michelle's remains.
Speaker 2 (37:01):
We have a pretty good idea of what happened to her,
at least who was involved, and there are people who
know what happened, and we're hoping that the money will
be the incentive that they need. Just for a moment,
imagine that we do this, that we find her. It
(37:21):
would be unbelievable. And we've looked. It's not that we
haven't been looking. I aid it was with me in
twenty fourteen, this summer, digging up an outhouse with a
couple of investigators in a backo.
Speaker 4 (37:35):
Oh boy.
Speaker 3 (37:36):
I used to be an editor at l magazine before
I decided to go to law school. I used to
get free loot, go to runway shows and there I
am surrounded by five retired detectives and Bruce and a
couple of shovels going through an outhouse.
Speaker 1 (37:50):
But I'd say it's arguably more meaningful work. So we're
going to go ahead and link ways to contact bark
at Epstein in the episode descript as any new information
could also help them in their next fight.
Speaker 2 (38:06):
October twenty seventh, we have the federal Civil Rights trial,
and this is where the hunters have become the prey.
The defendants are Gerald Keene, Steve Anderson, and Susan Mulvey
State police in the County of Tioga. We hope to
put on a persuasive case not only is Cal obviously innocent,
but that what happened to him was fundamentally wrong, a
(38:28):
violation of his constitutional rights, and they should be held
to account for that.
Speaker 1 (38:33):
And with that, we're going to go to closing arguments,
where first of all, I'm thanking you all from the
bottom of my heart for being here today and courageously
sharing this harrowing story. I don't know how else to
put it. And then I'm just going to kick back
in my chair and listen to anything else you feel
is left to be said. So let's do it in
alphabetical order. Aida. Let's start with you, then Bruce, and
(38:59):
then Cal can take us off into the sunset.
Speaker 3 (39:02):
It has been such an eye opening experience to see
the level at which lawyers have to work it's a
herculean task to actually exonerate somebody, especially when the prosecution
and the police make it personal. And we left no
single piece of paper unturned. And I remember seeing cal
(39:27):
angry during moments of the trial, and there's no question
to me who actually knows the evidence as opposed to
a lay person that watched forty eight hours that he's innocent,
and his anger and his bitterness and his love for
his kids and his grace and compassion while he was
actually incarcerated is all a testament to that. So it's
(39:52):
been an incredible teaching moment. I'm very grateful that he
trusted us and that I got to participate in it,
not just for him, but for is four incredible, spectacular kids.
Speaker 2 (40:05):
We've been lucky enough to handle a number of cases
that involved wrongful convictions, and a product of that is
we get solicitations regularly from people who are in prison
saying that they're innocent. And one of the things that
you see is people who are innocent look at the
process as an obstacle. People who are guilty who are
(40:28):
looking for a way out look at the process as
an opportunity. So you meet with somebody and they tell you,
I didn't do it, and then they start talking to
you about all the evidentiary issues that come up. What
was wrong the grand jury, this didn't happen, they didn't
do that right, the four persons didn't sign the indictment
and all this stuff. The people who are innocent are
(40:50):
a an open book, and b say, I don't give
a damn about the rules of evidence. They are obstructing me.
They're screwing me. They're stopping me from proving that I
didn't commit this crime. And that was cal from the
moment I met him until this day. He's been an
open book and said, what do you want to know?
Where do you want to look? Search my house, search
(41:11):
anything you want to do, any question you ask is
fine with me. And had no patience for the intricacies
of the courtroom and the rules of evidence. I think
he kind of touched on it here that he feels
screwed by them, and rightly so.
Speaker 4 (41:27):
And for me at this stage, I want justice. I
want Sue OVI and Steve Anderson and Jerry Keen held accountable.
I want to see them in that courtroom. I want
to see them on the witness stand. I want them
to know what it feels like, I mean, they're never
going to go to prison. Well, they're never going to
be held accountable. If we do win. If and there's
(41:49):
damages awarded, they're not going to have to pay. But
I want them to know what it feels like to
be on the hot seat, whether we win we don't.
I'm hoping that we're able to show the public what
they did behind the scenes. There's a lot of people
right now that have switched their opinion of me, and
(42:11):
I'm hoping that more people will switch their opinion once
they see the evidence that we're going to present, and
I've already put it out there on my podcast episode three.
You're gonna see most of the evidence that we're putting on.
But then I know there's people out there they're never
gonna believe anything. Even if we do find her, They'll
still think I'm guilty. But I want justice for me
(42:32):
and my kids, and that's all I can ask for
at this point.
Speaker 1 (42:42):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcasts one
week early and ad free by subscribing to Lava for
Good Plus on Apple Podcasts. I want to thank our
production team Connor Hall and Kathleen Fink, as well as
my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Clive.
The music in this production was supplied by three time
(43:02):
OSCAR nominated composer Jay Ralph. Be sure to follow us
across all social media platforms at Lava for Good and
at Wrongful Conviction. You can also follow me on Instagram
at It's Jason Flamm. Wrongful Conviction is a production of
Lava for Good Podcasts and association with Signal Company Number One.
We have worked hard to ensure that all facts reported
in this show are accurate. The views and opinions expressed
(43:23):
by the individuals featured in this show are their own
and do not necessarily reflect those of Lava for Good.
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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