October 10, 2025 • 50 mins
On October 15, 2015, Quortney Tolliver was attacked with a hammer in her home in Ravenna Township, OH. She woke up from a medically induced coma weeks later with absolutely no recollection of the incident. Nevertheless, Portage County detectives pressed her to identify the person they “found out who did this” – 47 year old David Smith. Ms. Tolliver refused to identify Mr. Smith until she faced her own charges and had a dream with Mr. Smith in it, apparently indicating that he was the perpetrator. Based on Ms. Tolliver’s fraught identification alone, a jury convicted Mr. Smith of attempted murder and sentenced him to 22 years in prison.
To learn more and get involved:
https://www.kimlawcrimlaw.com/
https://www.instagram.com/kimlawcrimlaw/?hl=en
https://lavaforgood.com/podcast/377-jason-flom-with-tyrone-noling-update/
https://lavaforgood.com/podcast/335-maggie-freleng-with-charles-jackson/
Wrongful Conviction is a production of Lava for Good™ Podcasts in association with Signal Co. No1.
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.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
On October sixteenth, twenty fifteen, twenty four year old Courtney
Tolliver was struck by a blunt object in her Portage County,
Ohio trailer home. After running to the neighbors for help,
she was rushed to the hospital and put into a
medically induced coma. When she regained consciousness, her memory was unclear.
(00:23):
Soon detectives suggested David Smith, a man who had texted
her that day, but she said it wasn't David until
she was facing her own charges. Then her memory made room.
Speaker 2 (00:35):
For that possibility.
Speaker 1 (00:37):
This is Wrongful Conviction. Welcome back to Wrongful Conviction, where
we returned to Portage County, Ohio. Now, the last time
we covered a case out of there was Tyrone Noling
and that one lives rent free in my head, and
(01:00):
we're going to link to his story in the episode description. Tragically,
he's still on death row to this very day in Ohio,
and we're only aware of the wrongful conviction epidemic in
that state because of the incredible attorneys who also call
Ohio home, not least of which is Kim Kral Kim.
Speaker 3 (01:16):
Welcome back, Yeah, thanks for having me back.
Speaker 1 (01:19):
And she's here to help tell the story of the
man himself, David Smith. Thank you for joining.
Speaker 2 (01:24):
Us, right, thank you. I appreciate you.
Speaker 1 (01:27):
And typically we like to hear about our guest lives.
You know, before all this insanity came to pass. And
with David, that's forty seven years. I mean, he wasn't
he wasn't a youngster when he went to prison. But
those forty seven years they weren't easy ones, were they.
Speaker 2 (01:42):
I was taken from my real parents at the age
of six, giving up for adoption. I had eight brothers
and sisters, and I went from foster home to group home,
foster home to group home, and finally a man picked
me up as someone that he wanted as his son.
In order for him to adopt me, he had to
have a wife, so he married my mother under false
(02:06):
tensus for real. Because fast forward, it was a whole
lot of abuse in the home, I mean extreme abuse,
physical abuse. So where I got upset with my mother
was there couldn't have been nothing in that home that
could have been worse where you would have to give
me away. If it wasn't good enough for you, then
why should it be good enough for me? Why didn't
(02:27):
you take me with you? And a judge also made
that statement to her, and she said she couldn't because
that would have been kidnapping. In my head, I'm saying,
how could that be? You can prove the abuse by
the markings on my body, by me warning myself back
to the state. But I wasn't good enough to take
with you.
Speaker 1 (02:48):
So after his mother left him in this man's custody,
he found a way to get himself out of that
awful situation.
Speaker 2 (02:55):
At the age of ten, I warded myself back to
the state. We went in to see the judge on
some kind of official business dealing with the adoption park, and
I told the judge I'm not going back there, and
he looked at me and he couldn't figure out why.
And I said, I'm just not going back with that man,
while he was sitting right next to me. And that
day forward, my life began by myself, without me having
(03:19):
any kind of guidance or direction. The only thing I
knew to do was to survive. It didn't tailed me
committing crimes. I didn't know any better, and all it
did was grew until it grew out of control. I
was constantly detention centers, juvenile facilities. I was numb. I
(03:41):
was just a mechanical animal out here, just trying to
survive my life. At that time, I was just a
car thief boy, and then that grew to the life
of crime as the adult. I had a robbery case,
a boloneyssault case, and then twenty fourteen, I had got
into the trade selling drugs. That's all I've known up
(04:03):
until ten years ago, when I actually started getting my
life together. I had opened up two small businesses. I
moved out of Portage County and moved to Trumble County,
Newton Folls.
Speaker 1 (04:14):
And that's where he lived with his girlfriend, Margaret Austin,
while both getting his cleaning business off the ground and
remaining in touch with friends in Portage County, including the
victim in this case, a twenty four year old woman
named Portney Tolliver who was also involved in the drug trade.
And on the night before the incident, she had texted
David for a ride to Cleveland, and so they were
(04:36):
in contact earlier that day, that fateful day of October sixteen,
twenty fifteen, and then she suddenly stopped texting David right
around the time that she had been struck with the
blunt object inside of her trailer home.
Speaker 3 (04:48):
Nine one one gets a call from a neighbor that
Courtney Tolliver is wandering around sort of between trailers and
collapses on the ramp of her trailer and and they
believe she's muttered something about being hit with a hammer.
The police arrive, she is taken by EMS and then
life light. She is put into a medically induced coma
(05:11):
and during this time the Portage County Sheriff's Office begins
an investigation. I'm using the term investigation very lightly because
they gathered I mean, I think five items of physical evidence,
all of which have since been lost. So they take
a few photographs. They gather five items of physical evidence,
and they swab a number of things for DNA. There
(05:32):
is a hammer on site that is not collected as evidence.
The photograph of it, it appears to have no blood
on it. What is most interesting is there is a
stool absolutely covered in blood. When you zoom in you
can see a hair fiber on it. There is a
massive puddle of blood around this stool. Now, this stool
is not swabbed, it's not collected, it's hardly photographed. There
(05:56):
is a set of keys that are moved onto a
puddle of blood, so someone touched those keys after the incident.
Those were not gathered or swabbed or finger printed.
Speaker 2 (06:09):
And it was a size six footprint that was inside
the blood, a woman's size six shot. The detective said
that they didn't step into blood, They didn't do none
of that. So whose size six shoot was this?
Speaker 3 (06:21):
There was a lock box which someone opened, whoever did this,
that was not swabbed or fingerprinted. It was gathered but
never used as evidence and has since been lost. There
was a laptop that the contents of which were never investigated,
that was lost. And she had two cell phones.
Speaker 1 (06:39):
Courtney described one cell phone as her family phone and
the other as her drug phone, but at the time
of trial, the state claimed to only have the records
for the family phone, which she had used to text
David about a ride to Cleveland.
Speaker 3 (06:52):
And so throughout that evening they go back and forth
with text about a ride to Cleveland, and throughout the
next morning, Dave says, I have a job interview. We
know from the location of his cell phone. He goes
to a job interview, and then there's text back and forth,
and then she drops off the texting and he says,
what do you want to do? I'm pulling up and
then no response.
Speaker 2 (07:12):
But she was text messaging people steal on that other
phone when this crime was supposed to have occurred with me. Anyway,
they say it has happened between ten thirty and ten
forty five with me. But at ten forty something she
was still on the phone, text messaging and making calls
with whoever she was talking to.
Speaker 1 (07:33):
But the drug phone record and this exculpatory context were
not discovered for many years. Nevertheless, the police visited David,
who confirmed his number, and they probably visited the people
on the other phone log too, And soon Courtney came
out of the coma.
Speaker 3 (07:49):
She cannot speak because she's intubated, and she writes down
who did this to me? She had been engaged in
a number of drug transactions the night before and the
next day early in the morning before this attack. They
don't investigate any of those people in any manner whatsoever.
They don't investigate any other person she contacts or calls.
Speaker 1 (08:09):
Or they did, but they just didn't keep any record
of it. Now, when Courtney's intubation tube came out, they
interviewed her again and again she said that she had
no recollection of what had happened, and in between that
visit and the following one, they ran some of the
crime scene evidence through CODIS, the national database, and they
came up with a possible match, not a true match,
(08:31):
but a possible match for David Smith. So while waiting
for confirmation of that, they visited Courtney once again, this
time recording the interaction and telling her whose DNA they
believed that they had found at the scene.
Speaker 3 (08:46):
When they go interview her on December ninth, they hold
up a single photo of David Smith and tell her
this man is a dangerous man. We already spoke to him.
He did this to you. He wanted you dead. He
doesn't care about you. And she does not identify him
as her attacker. She says, why would he do this
to me?
Speaker 1 (09:03):
And she seems to have some foggy recollection of her attacker.
Speaker 2 (09:07):
She states that the guy had blue tip Dreds. I
don't have blue tip Dreds. I think I've been bald
for twenty five years at least. And the blue tip
Dreds is the person that their mother called and asks
did you try to kill me? And his name is Hood.
Speaker 3 (09:25):
In a recording, her mother says, we called and asked
him why he did this?
Speaker 2 (09:30):
And this is a person that she been known forever,
good friends, they do business together, they kick it together.
They was like peanut, butter and jelly. Why would you
call him and ask him did he try to kill you?
Speaker 1 (09:42):
So Corney and her mother had their own suspects. They
even mentioned others in that recording, some of whom were
on that other call log. But at this point the
police appeared to be hoping for their possible codus match
with David was going to be confirmed, but it wasn't,
so now they began to scream.
Speaker 3 (10:00):
What we found later with these alternative suspects is detector
Johnson's calling the BCI, people who handle the DNA testing
and telling them we have these alternative suspects. They could
have been involved. Here's why they actually let Courtney Tolliver's
children's father out of jail to help investigate for them.
Speaker 2 (10:19):
Our baby daddy was talking to his mother and his
aunt on the phone in the county jail and said
that she said who did it to her?
Speaker 3 (10:29):
And then they don't disclose the information they get from him.
And then as BCI is calling back saying these other
people's DNA. Most of his DNA isn't matching to anyone,
almost all of it. Then Johnson starts to just narrow
in on David. Smith refuses to give anyone else's DNA
and refuses to turn over any discovery about these other
alternative suspects.
Speaker 1 (10:50):
At this point, they returned to the DNA that had
been a possible match to David. And if you've ever
seen a DNA analysis graph also known as an electro pharah,
it looks like a series of little peaks marking genetic
alleles that are present in a given sample, which are
measured in relative fluorescence units or RFUs, And it seems
(11:11):
like there were enough peaks in common with David and
this DNA sample to trigger a possible match in codis,
but not an actual match. And there are ways to
enhance the quantity of a sample as well as the
height of the peaks or what lies between the peaks,
what is called static to see if potentially there is
other genetic information.
Speaker 3 (11:33):
It's an amplification process, which was a process they used
for the first time in Portage County in his case,
and they're only supposed to amplify a certain number of
times and that amplification creates static, and those static points
either can cause you to misteray actual alleles as static,
or you can have static so high, which is nothing.
It's not real information. It's created from the amplification process
(11:56):
that can be read as an allele, a marker in
a certain space. They enlarged that possible match to Dave Smith,
and it was still not a match to Dave Smith.
So they enlarged it a second time, and it was
still not a match to Dave Smith. And they enlarged
it a third time and it was a match in
equal parts to Dave Smith and the victim.
Speaker 1 (12:17):
This triple amplification process produced an electro pharagram that differed
from previous iterations in order to produce this result, and
it's unknown whether these differences may have been actual genetic
information or nothing at all. So there's a potential here
for subjectivity, false positives and negatives, and definitely a lot
(12:41):
of room for doubt.
Speaker 3 (12:42):
But an unreliable process in this case produced a result
that there's a one in one fifty chance it's anyone
but David Smith or Courtney Tolliver, which is not a
match at all. So one in one fifty chance means
it could have been twenty seven thousand other people in
Portage County.
Speaker 1 (12:57):
So at this point they returned to court me for
an identification, and they doubled.
Speaker 2 (13:02):
Down on David.
Speaker 3 (13:03):
Obviously, without that identification, they had some trash DNA and
that's about it. She continues to not identify David Smith
as her attacker for several more months until February of
twenty sixteen. She had I believe eight or nine felony
drug counts pending. In February, those counts are resolved with
the same judge who tried David's case. Those are resolved
(13:26):
to a term of probation, and she walks directly out
of the courtroom into a little room immediately to the
left and explains to Detective Johnson that she now remembers
that she had a dream while in her coma she's
as a baal black man mased her, and she now
interprets that to me that David Smith hit her with
(13:47):
a hammer in October of twenty fifteen.
Speaker 1 (13:51):
So no more assailant with blue dreads and no more
felony drug charges. Maybe she had no idea who had
hit her, but now at least she found a way
that she could get something out of it.
Speaker 2 (14:04):
No, I think she has an idea, and I think
that what really transpired is something that her and the
person that did it is going to take to the grade.
I mean, if somebody beat me like that, I'm gonna
know who it was beat me.
Speaker 1 (14:20):
Nevertheless, it was enough for an arrest warrant on April first,
twenty sixteen.
Speaker 2 (14:24):
That morning, I have my cell phone in one hand
and my car keys and the other. I chirked my
truck and I stepped one foot in and when I
look in the rearview mirror, it's a black, undercovered car
bumper to bumper with me. He pulled out his gun.
He's like, free, stick your hands out, and I stick
my hands out and I said, what's this about? Officer?
He put the handcuffs on me, and then he said,
(14:46):
you have a warren for a tempted murder. And I
damn that passed out. Like what.
Speaker 1 (15:04):
You're 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.
Speaker 2 (15:20):
It was the biggest case of Portish County. Everybody at
that time at Portish County Jail tried to get on
that witness list to testify against me so they could
get out of jail. The detectives was pulling up on people,
talking about you ain't gonna get in trouble. All you
got to do is just tell us you was down
there witting. I mean, all this is video and recording.
Speaker 1 (15:43):
Eventually, the investigators came upon some willing participants who they
could actually use, starting with a couple who knew David
from the drug trade, Randy Milem and Florence Fontanella. And
Randy was the one who made the first statement.
Speaker 2 (15:56):
I mean, if you looked at the video of this interview,
be like, this is a dope fiend trying to get
out because she's telling the the detectives all these ale
Lander's statements. But he's also saying, are you going to
go to the judge and tell her to let me out?
He came up with a story that I told him
I did it. I told him I left the hammer
(16:17):
at the house, that me and this girl did it together.
Speaker 1 (16:21):
Then Florence Fontanella, who was facing her own charges, was
approached about being in Randy's car during the alleged confession.
Speaker 2 (16:28):
The DEA went to her house and asked her up
and she said, I don't know nothing about that. She said,
I was in the vehicle, Winnie, and I never heard
that man say he did anything. And the very next
day they had a warned for her arrest. When back
picked her up brought it to Forty County jail, she
wrote a statement, I was in the car and I
didn't hear none of that. She made recorded calls on
(16:52):
the phone and said Randy must be in trouble and
I didn't hear none of that. But two weeks later
she spent around and said I as a forthcoming. She said,
I didn't hear nothing but him say got the bitch
with a hammer.
Speaker 1 (17:05):
And then once Florence hopped on board, Randy recanted. So
now they couldn't afford to lose Florence as well.
Speaker 2 (17:11):
Florence found it Tello. She was scheduled to go for
sentencing a week before my trial. They postponed her sentencing
to make sure that she testified for the deal that
they gave her. She went to treatment facility by Addings.
Speaker 3 (17:27):
Instead of prison. Yet she switched her story quite literally
when she.
Speaker 1 (17:31):
Got the deal, and they pulled a similar stunt with
another acquaintance of David's who was named Lisa Frame. Ironic
name much, Lisa Frame, Come on now.
Speaker 3 (17:42):
Lisa Frame was in Jefferson County jail and Lisa Frame
drove a black car. A black car can be seen
driving in and out of the trailer park around the
time they believe the crime happened. And to me, it's
pretty clear if they knew someone. It was a known
associate of David Smith with a black car. She was
(18:03):
in jail. They went to the jail threatened to charge
her with conspiracy to commit attempted murder unless she told
them that she drove Dave Smith there.
Speaker 2 (18:12):
And so she said, would tell me what you want
me to say then, and I'll say it.
Speaker 1 (18:17):
And this insanity is on tape.
Speaker 2 (18:19):
Yeah.
Speaker 3 (18:20):
She says there was a day she gave Dave Smith
a ride, but she wasn't sure what day it was.
She took him to the trailer park. He was in
there a couple minutes and he came back. He had
no blood on him or anything. He wasn't in any
state of outrage or upset or panic or anything. She
doesn't say anything about having a hammer on him, but
she says he has something and wrapped up in his shirt,
(18:40):
which she thinks is a gun, and she reiterates she
has no idea what Dave this happened.
Speaker 2 (18:46):
Lisa Frame said, I called him several times that would
have blocked me and Lisa Frame into that day that time.
But they said that they took her phone and plugged
it into the computer and they couldn't get nothing out
of it.
Speaker 1 (19:00):
Oh, I'm sure.
Speaker 3 (19:02):
And not only did they plug it in and decide
that it wasn't computering, but they then thought, should we
keep it?
Speaker 2 (19:09):
Should we keep it?
Speaker 3 (19:10):
Should we store it somewhere important? Nobody knows it has
disappeared into thin air. And in all of the phone
records that were available in this case, they got one
set of phone records which helped the tail they were spinning,
and then everything else was unavailable.
Speaker 1 (19:25):
So to shore up Lisa Frames date and time, they
pulled surveillance footage from a Walmart parking lot showing two
black cars traveling in the direction of the trailer homes
around the time of the last text message from David,
and then only one leaving shortly after. And we could
get into how possible or impossible it was that these
were even her car, and how long it would take
(19:48):
for the round trip plus the bludgeoning. But why unpack
a bunch of meaningless bullshit that's masquerading as evidence when
the logical framework is built on the word of someone
who said a recording, tell me what you want me
to say, and I'll say it. So they went ahead
to trial with Lisa Frame, Florence Fontanello, Courtney Tolliver and
(20:11):
the bogus DNA evidence, which magically seemed to have gotten
a boost of credibility in the lead up to the trial.
Speaker 3 (20:17):
Before twenty sixteen, when they come up with the electro faarrograms,
the peak had to be taller than seventy five RFUs
otherwise it could have been static and it's too risky
to consider it. But in between October twenty fifteen to
Fall twenty sixteen, BCI published a paper saying, now, just
(20:37):
in the nick of time, they're allowed to lower the
threshold to fifty RFUs and count peaks that really fall
in that high risk static range.
Speaker 1 (20:47):
So this lowering of standards allowed for the triple amplified
DNA sample to be presented as a partial match to
both David and Courtney, which is a confusing result, and
implied that it could have been David, but it eventually
turned out it could have also been so many others.
Speaker 3 (21:04):
Yes, the neighbor across the street, in fact, when we
compared it, had more alleles in common with this sample
than Dave Smith did, and had blood on his pants
and was present when the police arrived. And I'm not
saying he did it, but I'm evidencing how we manipulate
DNA to say what we wanted to say, and that's
what they did in this case.
Speaker 1 (21:24):
And the steak got one last helping hand. David's attorney
filed to suppress the victim's identification because if you remember,
the December ninth, twenty fifteen, interaction was recorded when Lieutenant
Johnson was suggestive with the witness.
Speaker 3 (21:40):
Yes, he literally is saying, this man is dangerous, he
wanted you dead. We know that he did this, and
she's still not identifying him. And what is crazy is
Tolliver's mother is in that same interview, and in the
course of the conversation, Tlliver's mother is talking about other
people that they believe did this.
Speaker 1 (21:58):
By name specifically Hood with the blue tipped dreads. But
the motion to suppress the id was denied, and by.
Speaker 3 (22:06):
The time we get to the first trial, they don't
allow that to be played in court. Instead, the court says, well,
they have the transcript of it. The jury's going to
get the transcript.
Speaker 2 (22:15):
But it took me ten years to find out that
those transcripts wasn't even accurate. In the first place.
Speaker 3 (22:21):
The transcript had the names of the other potential suspects redacted,
and it had it redacted in such a manner that
it then sounded like his mother was still talking about
David Smith. We called him and asked him why he
did this, implicating that they believed it was Dave Smith,
when really what they said about Dave Smith was why
would he do that to me? She said, he gave
(22:43):
me a ride once? Why would he do this?
Speaker 1 (22:45):
So even if the jury planned on reading them, they'd
be misled by the redacted text anyway. And that's how
both Lieutenant Johnson and Courtney Tolliver testified about the identification
without being irreparably impeached. Instead, the cross examination was new.
While Courtney took the.
Speaker 3 (23:02):
Stand, she testifies with one hundred percent certainty that David
Smith came to her door and attacked her with a hammer.
Speaker 1 (23:08):
And despite cross examination, this was still a bludgeoning victim
naming her attacker.
Speaker 2 (23:13):
But this is the key to a one hundred percent
sure This dream summary never came up to that detective
shoulder that picture. And then now she's saying, in my dream,
I dreamt it was him. But there was never a
dream summary in the hospital on November seventh. But whatever
it was that the detectives came to the hospital and
(23:35):
asked you, and you say it, I have no memory of.
Speaker 1 (23:37):
That, perhaps having not heard the contextual audio recording or
having not heard a word about the deal she got
for her nine felony drug charges. Sadly unsurprising that the
jury accepted the bogus idea as truth and then came
the quote unquote supporting evidence. Like Florence Fontanello, who had
(23:58):
her own issues.
Speaker 3 (23:59):
Initially, she says that David Smith had nothing to do
with this, and she says it in these Facebook communications
with Margaret Austin. Randy Mulam comes forward and tells them
what they want to hear. Then she all of a
sudden switches to Team State and She says David Smith
made an admission to her.
Speaker 2 (24:18):
When my attorney actor, well, what did you hear in
the conversation, she said, I didn't hear nothing but him say,
got the bitch with a hammer.
Speaker 3 (24:26):
And she's confronted with these Facebook texts, but maintains that
David Smith made an admission to her.
Speaker 2 (24:32):
She told the jury the reason why she didn't come
forward because she was scared.
Speaker 1 (24:37):
The jury was also unaware of the deal that she
had received, as well as the threat that Lisa Frame
had sidestepped with her testimony, which was supported by surveillance
footage of random black cars traveling toward the trailer park.
Speaker 3 (24:52):
There's not a single photo of what her actual black
Cadillac looks like. Even though they had a search, weren't
for it, and they searched it all. They took not
a photo of anything. But they did take a floor
mat and they tested the floor mat for either Dave's
DNA or blood or any blood splatter at all. Because
this was one of the bloodiest crime scenes I've seen.
(25:13):
There's not a drop respect of blood on the matt
note of Dave's DNA. But then since we have no
photo of the car to say whether that was the
car pulling into the trailer park or not. They just
infer to the jury that it is, and that Lisa
Frame doesn't remember the day, but that was the day,
and that also she must just be confused about how
(25:33):
Dave Smith didn't by any stretch looked like he had
just hammered someone nearly to death.
Speaker 1 (25:38):
So after hearing only some of the impeaching issues about
every single one of the state's witnesses, and having heard
the identification of the attacker without the context of how
that identification came to be, the jury went to deliverate.
Speaker 2 (25:52):
I mean, there's a lot of evidence that the jury
wasn't able to deliver right on, and they came back
two days later with a guilty burden twenty three years flat.
They told me I wasn't coming home till I was
seventy one years old, and I just started it at
forty seven. I was angry about it, but I wasn't
(26:26):
bitter because before I left out of that court room,
I told the detective Lieutenant Johnson, I'll see you again
in trial, and he said to me, I'll be there.
And for ten years I made sure that I was
going to be there to see him again. While the
appeal was going on, I was in a law library
(26:48):
every single day.
Speaker 1 (26:50):
Like so many of our guests, David learned the law,
and after his direct appeal failed, he began fining motions
pro se, meaning on his own, without the up of
an attorney.
Speaker 2 (27:01):
I did a post conviction on ineffect assistance of council
for the not playing those audios in court. They shut
that down. She said that there was nothing outside the
records because these transcripts and audios went back to the jury.
Subsequently we found out they never went to the jury.
Speaker 1 (27:20):
Did never happened, And subsequently he filed his federal habias
based on the impermissibly suggestive identification, citing the transcript of
the December ninth, twenty fifteen recording, a transcript that they
had thought was both complete and seen by the jury,
and the filing made its way to the Sixth Circuit
by twenty twenty two, by which point Kim had already
(27:40):
joined the fight.
Speaker 2 (27:41):
By this time, Kim had set me the audio and
the original transcripts of Courtney Tolliver's interview with Lieutenant Johnson,
and when she said it to me and I was
reading it, I said, Kim, these transcripts, it's not accurate.
She like, what you mean? I said, they took evidence
out of these transcripts. Send me to audio. I marked
(28:01):
off where all the meat was, taking out the transcripts,
the identification to somebody else and everything else, and I
sent it back to her. She tended to an independent
transcriber and they put all of it back inside the transcripts.
They're authenticating through another transcriber, but they're not authenticating through
the courts. Also, I didn't use these transcripts in my
(28:23):
federal aid. So now we're in the six certain Court
of Appeals and I bugging Kim and saying, how are
we going to get these transcripts in the evidence. What's difficult?
Speaker 3 (28:32):
Though, We were procedurally in a place where you can't
expand the record, and so knowing that they weren't going
to allow me to expand the record at that time,
I was just like making up other things to file
that i'd have a reason to attach the transcripts.
Speaker 2 (28:45):
So when they read the motion, they're going to read
the transcripts. And that's what we.
Speaker 3 (28:49):
Did, without regard to the fact that they removed a
part of the transcript which contained exculpatory information and identified
an alternative suspect. The court was just like, this wild
identification procedure overly influenced her, and it's so bad. It's
to such an extent that there's no way it can
overcome even the stringent protections of EDPATH.
Speaker 1 (29:12):
EDPA is the Anti Terrorism and Effective Death Penalty Act,
which was signed into law in the wake of the
nineteen ninety six Oklahoma City bombing. And in order to
reverse a state court decision quote, every fair minded jurist
would have to agree end quote. So what they're saying
is that not a single quote unquote fair minded judge
(29:34):
in existence could have seen this another way. And the
Sixth Circuit ruled that this seemingly impossibly high standard had
actually been met, and.
Speaker 3 (29:43):
That's when they awarded him a habeous corpus on the
condition that they have to release him if they don't
retry him without that identification within six months.
Speaker 2 (29:52):
And it was just hard that it took me all
this time. Quote just see where really happened to that case. Yeah,
evidence didn't change, nothing changed, but it was jud just
that seeing, hey, but this may did to this do
this a right? You should have never went.
Speaker 1 (30:11):
To trial, so the state tried to stay the decision,
which brought them about six weeks against the six months
they were given, meaning they had to retry him by
March thirteenth, twenty twenty five, and with the clock ticking,
the state appealed to the denial of the stay as
well as filed for sir tierrari with the US Supreme Court,
both of which were almost unanimously denied in January of
(30:34):
twenty twenty five.
Speaker 3 (30:36):
Since the ruling in July of twenty twenty four, I'd
been actively filing defense motions, all of which went ignored
until January for a trial that had to start by
mid February, and so by the time they were responded to,
like our emotions for expert, all of those deadlines that
expired for us. And then two days before trial, they
(30:57):
find a box labeled Detective Johnson. It was in the
back of some garage and it contained exculpatory information. It
referenced confidential informants.
Speaker 1 (31:06):
And this confirmed suspicions that Kim had raised before the
July twenty twenty four ruling.
Speaker 3 (31:12):
While I'm working on David's case, I am randomly working
another federal drug case and I'm in the trial and
a confidential informants name is disclosed, which is wildly protected,
but it is a name I recognize. So I go
back to Portage County and I say, I have documentations
signed by Portage County Sheriff's office indicating that this person
(31:35):
was paid as a confidential informant right around the same
time of this case, that they were on the payroll
by the Portage County Sheriffs. And the sheriffs continually and
repeatedly stated, we have no record of that, while I'm
holding documentation signed by their office on their letterhead.
Speaker 2 (31:53):
The people that they had on the list suspects are
confidential informants, and that.
Speaker 3 (32:00):
Would explain why they never even called them into interview them,
not one of them. Did they identify their whereabouts at
the time of the crime, did they get their cell
phone records to see their location or their communication with
Courtney Tolliger.
Speaker 1 (32:12):
Which definitely adds context as to why this second phone
long was allegedly never gathered into evidence. And additionally, there
was new context for how David's and only David's cell
phone location had been obtained.
Speaker 2 (32:27):
When he got the warrant from my cell phone tower evidence.
He told the judge that his DNA is on this
scene and that's what he used to get a search WARM.
When the people from BCIs and you have to do
further investigation. This is not evidence, but he took it
(32:47):
to the judge and the judge gave me a search
WARM from my cell phone tower evidence.
Speaker 3 (32:53):
The big part of the first trial I was like,
her last text message was to David Smith, she never
texted anybody again. F that well, her other phone makes
clear she's continuing texting and engaging with people for fifteen
or twenty minutes after they believe the crime occurred, and
that she has constant contact with one person more than
one hundred times that day. That was another aspect of
(33:16):
the case that was not a part of the first trial,
and then they tried so hard not to make it
a part of the second trial by arguing that we
could not authenticate it because the records were ten years old.
Speaker 1 (33:25):
And that was an issue for everything that was found
in Lieutenant Johnson's garage as they moved into the retrial
in February twenty twenty five.
Speaker 3 (33:34):
Another one of the big issues at the retrial is
that the state investigator who photographed the crime scene has
retired and literally told them, sorry, I'm not coming in,
So we were denied the opportunity to cross examine him
about the photos on scene. You literally can't question anyone
about anything you see in the scene. How can you
develop arguments when you can't even point things out.
Speaker 1 (33:56):
Like whether or not the hammer was even the murder
weapon at all. When the stool in the photo, well,
it was an interesting alternative.
Speaker 3 (34:04):
What's interesting about it is someone touched it after it
was used, because there's both blood under it that it
is resting on top of and blood on top of it,
so that is going to have meaningful evidence on it.
Did they collect it? No, you didn't pick up the
only hammer on scene, and you didn't pick up the
thing that looks like a bludgeoning object covered in blood.
You didn't pick up the plastic bag which was sitting
on top of pile blood and also blood spleater on it.
(34:26):
So it was moved after. You know, it was touched
in some way in the course of this attack.
Speaker 1 (34:32):
But without that witness or a more well documented crime scene,
the defense was hamstrung in this regard. But that was
not the case when they confronted the DNA evidence at
a pre trial hearing. As we discussed earlier, the triple
amplification process on the DNA sample drew into question what
were peaks and what was just static, which brings in
(34:52):
room for subjectivity to something that should just be an
objective science. And then Kim proceeded to present what this
process meant for a neighbor's DNA When.
Speaker 3 (35:02):
I compared it to the neighbor, he had moraleles in
common with that sample than David Smith did. When you
bastardize the process, you get shit in, shit out. And
to watch these experts sit up there and try and
make sense of a senseless DNA procedure was just It
was painful.
Speaker 2 (35:22):
The way she went in there and took the evidence
and threw it in the trash. The prosecutor came walked
over and said, listen, I'm gonna ask my boss if
we could just walk him out of here with time
serve and let him go. So the day before the
trial started on February to twenty four, and they put
it on the record time served. I said, no, I
(35:42):
didn't fight like this just to go in there and
plead guilty to somebody didn't do. I want my name
clear for this. And the prosecutor looked at me and said,
you got balls, and I looked at him and said, no,
you have bulls because the sixth Circred Quarter of Appeals
told you that you can't use this identification, and you
have televised that's what you're going to do. Anyway.
Speaker 3 (36:03):
It is a habeas corpus in which he has to
be released unless they try him within six months without
using Tolliver's identification of Smith, which is suppressed and excluded.
I have read it and retyped it so many.
Speaker 1 (36:20):
Times, and they were trying to interpret those words to
make it permissible to have the victims identified David but
not expressly as her attacker, right.
Speaker 3 (36:30):
Like, no, it doesn't say that. Like these are the
highest judges in the country. They weren't confused. They meant
to press and excluded. And when she woke up, she
didn't remember anything about the day. So any identification which
includes an identification of David Smith from that day would
be the result of their overly influential, impermissible identification tactics.
Speaker 2 (36:49):
The day before trial we found emotion. And as for clarification,
the Norther distrect Court of Appeals than not it summarily,
because what is do to clarify?
Speaker 3 (36:59):
They said, we can't interpret what the six circuit means.
What the six circuit means is you cannot use Tolliver's
identification of Smith, which is suppressed and excluded. When that
order comes out, I think, oh, thank god, this explains
it to them. But they take it the other way.
They're like, see, they said, we can't interpret what the
six circuit does. So obviously the six circuit means she
(37:19):
just can't identify him as her attacker. So she's allowed
to say, that's David Smith, the ball black man and
the yellow sweater. He came to my door and then
I was struck with a hammer, and that's not an identification.
Speaker 1 (37:33):
And it would be hilarious if it wasn't so freaking sinister.
And then they found a second way to bring it in.
Speaker 2 (37:41):
In the opening statements, he says, Courtney, Tolliver is going
to come in here and tell you that David Smith
hit her in the head with a hammer.
Speaker 1 (37:52):
And then Courtney took a stand.
Speaker 2 (37:53):
They say, well, can you identify the person that you
said came to your house? She said, yes, that ball
guy over there with a yellow shirt to brown souno
and they said, well, let the record reflect she identified
David Smith and it just said no. And she said,
he was just standing on my porch. Okay, now what happened.
(38:14):
I hit the legs and he opened the door and
came in, and this thing I felt with a stroke
and I woke up in the hospital.
Speaker 1 (38:20):
But somehow, in their minds this skirted the Sixth Circuits
order that her identification was to be suppressed and excluded
due to Lieutenant Johnson's impermissible procedure.
Speaker 3 (38:33):
And then after they get her to do this whull identification,
I got to cross examine on the fact that it
was a wildly prejudicial identification procedure. And they're like, oh, no,
you can't cross him on that. You'd be opening the.
Speaker 1 (38:47):
Door, meaning the door to allowing her identification. It's unfucking real.
Speaker 3 (38:52):
And I'm like, is it genuinely your takeaway from the
Sixth Circuits order that her identification is allowed? But I
can't cross exams on the unreliability of the identification. You
think their point was to make it worse than it
was before.
Speaker 2 (39:06):
Yep, they did.
Speaker 1 (39:07):
They thought that, and then they found a way to
make it even worse with Florence Fontanello, who by this
time had recanted, but they weren't interested in hearing that,
so they claimed they just couldn't find her.
Speaker 3 (39:22):
They got the court to admit her testimony from the
first trial again, even though she had issued an affidavit
saying that she had lied.
Speaker 2 (39:30):
They took the twenty sixteen transcripts and read them into
a twenty twenty trial.
Speaker 3 (39:36):
So we can't cross examine her. They just read her
testimony and everyone reads their own part, same prosecutor, same judge,
And I'm like, I'm refusing to participate in this display
of injustice. Like I'm not going to sit here like
the defense attorney from ten years ago and read his part.
I would make it very clear to the court that
I'm not a part of this. We're just re enacting
(39:57):
the same trial that was considered to be on constitution.
Speaker 2 (40:00):
Well, what if we did was set there without being
able to say anything.
Speaker 3 (40:04):
I was so pissed off as I sat there in court,
I ordered little Oscar statues and gave them to the
judge and the prosecutors the next day, like here, since
this is just a play, congrats on your acting.
Speaker 1 (40:17):
Nobody liked them, So the jury heard Florence Fontanellez recanted
twenty sixteen testimony as well as the state's non identification
identification right, and despite being threatened with opening the door
to the full force of the unconstitutional evidence, they were
able to provide some evidence about Courtney's two phones, and
the records for the drug phone revealed that she had
(40:40):
been active after the state had contended that this crime occurred,
and that she had been contacted by an alternate suspect
over one hundred times that morning. But with the passage
of time, getting those records authenticated was the real problem.
So Kim asked the investigators about these records and why
they had gotten lost or what had happened to Lisa
(41:02):
Frame's cell phone or for that matter, any of the
physical evidence in this case.
Speaker 2 (41:06):
The detectives was saying they don't remember anything, and then
with Kim refreshed their memory with their reports, they steer
with Sam, I don't recall.
Speaker 3 (41:16):
That we had all this testimony about how they lost
all the evidence, and then after they realized it was lost,
sought a destruction order from the judge to destroy it
so that we couldn't use it I could get one
person to testify about some of the timing of the
text and the second set of cell phone records. And
because I wasn't allowed to admit those records, I was
(41:36):
allowed to publish them in front of the jury. So
I'm on a giant post it like writing down the
evidence I hope they can consider, so that when they
go back with half of the phone records, only the
half that benefit the state, they'll remember having seen me
write down the content of what mattered from the second set.
And so I thought that if we attacked the quality
(41:57):
of the investigation enough, it would be enough.
Speaker 2 (42:00):
Kim fought everything tooth and nail, and they went in
there and came back at twelve o'clock with a guilty verdict, but.
Speaker 1 (42:07):
A plan to return the Sixth Circuit was already in motion.
After all, these fucking people acted like they couldn't properly
comprehend the Sixth Circuit's order. But if the conviction was vacated,
then technically the Sixth Circuit no longer had jurisdiction, so
David would have to start his appeal all over again.
So David made sure that a copy of the Ohio
(42:31):
Department of corrections docket was taken for evidence.
Speaker 2 (42:35):
When we filed the motion back to the court, they saying, hey,
this case was vacated. The federal court don't have jurisdiction
no more. My evidence was the docket, which there's no
general wintry in there, that the case was vacated. Two
the transport order. Three the ODRC website still said that
I was convicted, that I was still under conviction, that
(42:57):
it was never vacated. We fouled that most marks the twelve.
After they found me guilty, the Jews answered they gave
us a court day for April the first. They transported
me back to Cleveland to the federal courthouse and Attorney General.
It was kind of ugly because I've never seen the
Jews treat nobody in the courtroom like that, especially attorney General.
(43:17):
They were I mean, he was.
Speaker 3 (43:18):
Not shy and saying how could you guys have done this,
like you touched the third rail, and not being from
New York, he then had to explain what the third
railmant to get into opposing council, like it's the thing
you don't touch. That's how you get electrocuted. You don't
touch the third rail, and you guys danced on the
third rail. What did you put me in a position?
Speaker 2 (43:36):
What am I going to do?
Speaker 1 (43:37):
And even though the Northern District Court initially had a
differing opinion than the higher six Circuit, they had no
choice but to honor the higher court's ruling because the
state's jurisdiction argument held no water. The conviction had not
been vacated, but rather only a new trial had been ordered.
Speaker 2 (43:55):
On May to twelve, he called his back to the
Northern District Court of.
Speaker 3 (43:59):
Appeals and I thank god the District Court did not
agree with them, and they ordered that David Smith be
granted an unconditional habeas corpus and that he'd be released.
But then he stayed his order for seventy five days
through the use of an administrative stay, which we appealed,
and the Sixth Circuit basically said, there's no such procedure
(44:19):
as an administrative stay in this context and he has
to be let out. And that was on July third.
Speaker 2 (44:24):
Now it's a lot of third I was free on
July four if I was on a boat with my
attorneys and.
Speaker 3 (44:29):
We took a picture from the boat of the Federal Courthouse.
Like everything that's happened. Now you get to view it
from this side. Yeah, and I sent it to the prosecutor.
Speaker 2 (44:39):
When I first got out, I didn't want to live
with nobody, to deal with nobody. So we have a
guy who was also exonerated, who has an exign of
ree house in Cleveland.
Speaker 3 (44:49):
We have so much injustice, so we have a lot
of exgneries and they take care of each other. So
one of them bought a house for all ex honeries
to live in when they're in this position when they
first get out, Charles, Checks and Raymond.
Speaker 1 (45:00):
We had the good fortune of covering Charles's story with
Maggie Feeling, and we'll make sure to link it in
the episode descriptions, so check it out.
Speaker 2 (45:08):
I've been doing Charles for a long time, so I
mean he was familiar with me, But for like the
first three weeks, the only thing I did was went
from my bedroom to the bathroom, to the kitchen back
to my bedroom, like I was steal in a sale.
Since I've been home, Kim gave me a job with
the law firm.
Speaker 3 (45:27):
So right now on the docket, it's his appeal. I'm
confident we're going to win. We've already had rulings from
the Sixth Circuit when they released him, saying that they
don't believe that the warden has a winnable position, so
that's really favorable. Nonetheless, we're going full steam ahead and
that's submitted to the court and it's going to be
decided without oral argument. And so as soon as we
(45:47):
get a decision, that ankle monitor is going to come
off and he will be free. Hopefully he'll decide to
pursue his civil remedies because a lot has been taken
from him. In the meantime, he's doing everything can. He's
been working. He's gotten himself an ID. He has MS
and diabetes, so he's gotten his medical setup and taken
care of which is a lot of steps. But he
(46:09):
could use all the support in the world. So if
anybody has anything to offer, he's been saving to get
a vehicle, he certainly needs business clothes for job interviews
or stuff like that, and he desperately wants to go
back to school, and so people have resources that they
could lend to him to give him support. We would
be happy to help facilitate those resources directly to him.
Speaker 1 (46:30):
And we'll link ways to contact Kim and get David
to support he needs, and with that we're going to
go to closing arguments. Closing arguments, everyone knows is my
favorite part of the show, where I'm going to kick
back in my chair, turn my microphone off and leave
my headphones on and just listen to anything else you
want to share with our amazing audience. And so Kim,
(46:55):
you go first, and then just hand the microphone off
to David. Then he could take us off into the sunset.
Speaker 3 (47:02):
This is a case with one of the most egregious
identification procedures I've ever seen. Which is so appalling about
it is how many courts justified and upheld the conduct,
who gave it a pass in the state court at
the appellate level, at the Ohio Supreme Court level, at
the district court level, and federal court. It took eight
years to get any justice, and then when we finally
(47:24):
got that justice by way of an order, the state
court threw it out in totally ignored it conduct that, frankly,
if any of us engaged in would be criminalized. Were
all required to follow the law, and the trial court
thought they were above that. They stopped all over his
rights through a second trial, and then used an unconstitutional
second conviction to justify their misconduct. We're so thankful that
(47:47):
the district court sought through it. But if you imagine
being responsible for someone's life and freedom as their attorney,
he turned down a flea he could have been free,
and then for four months he lived with a twenty
year cent hanging over his head and just the hope
that the federal court would step in and enforce its
prior ruling. We're so thankful it did, but here we
are still up against it in the Federal Court of Appeals.
(48:10):
And this case is a story of even when you
get justice through your immediate appellate procedure, it can take
a full decade, And even when you find a judge
who's willing to say and do the right thing, there's
a slew of judges below them who aren't.
Speaker 2 (48:27):
In Ohio, we have a feal that's on the ballot
called the absolute Immunity View. If it's passed in Ohio
would be the very first time that anything like this
has been passed. And that deal makes judges, prosecutors, detectives, police,
anything of authority can be prosecuted for what they do
(48:50):
for violding the person's constitutional rights because right now, like
it is so thick where they don't have to answer
to nobody, they could do what they want and put
it up under job duties. You cannot turn over evidence
and say it was part of my investigation. The judge
can violate your constitutional rights and know that there's no
consequences for these people. Them. People need to be held
(49:10):
accountable because if I watched so and so take a
piece of paper from so and so, and the detective
come and ask me and say did you see that happen?
And I say no, I got a case because I lied.
But a prosecutor and a jug can lie all day long,
can withhold evidence, can cover up whatever they want to
because there's no consequences for them. That's why this bill
(49:32):
in Ohio is so important. And when I spoke at
the Wrongful Conviction Days, that was one of the things
I spoke about. All this is beautiful, but if people
don't get out and vote on that bill, we're going
to continue to have wrongful Conviction Days.
Speaker 1 (49:55):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcast 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 Cliber.
The music in this production was supplied by three time
(50:15):
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.
Speaker 2 (50:35):
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.
On October sixteenth, twenty fifteen, twenty four year old Courtney
Tolliver was struck by a blunt object in her Portage County,
Ohio trailer home. After running to the neighbors for help,
she was rushed to the hospital and put into a
medically induced coma. When she regained consciousness, her memory was unclear.
(00:23):
Soon detectives suggested David Smith, a man who had texted
her that day, but she said it wasn't David until
she was facing her own charges. Then her memory made room.
Speaker 2 (00:35):
For that possibility.
Speaker 1 (00:37):
This is Wrongful Conviction. Welcome back to Wrongful Conviction, where
we returned to Portage County, Ohio. Now, the last time
we covered a case out of there was Tyrone Noling
and that one lives rent free in my head, and
(01:00):
we're going to link to his story in the episode description. Tragically,
he's still on death row to this very day in Ohio,
and we're only aware of the wrongful conviction epidemic in
that state because of the incredible attorneys who also call
Ohio home, not least of which is Kim Kral Kim.
Speaker 3 (01:16):
Welcome back, Yeah, thanks for having me back.
Speaker 1 (01:19):
And she's here to help tell the story of the
man himself, David Smith. Thank you for joining.
Speaker 2 (01:24):
Us, right, thank you. I appreciate you.
Speaker 1 (01:27):
And typically we like to hear about our guest lives.
You know, before all this insanity came to pass. And
with David, that's forty seven years. I mean, he wasn't
he wasn't a youngster when he went to prison. But
those forty seven years they weren't easy ones, were they.
Speaker 2 (01:42):
I was taken from my real parents at the age
of six, giving up for adoption. I had eight brothers
and sisters, and I went from foster home to group home,
foster home to group home, and finally a man picked
me up as someone that he wanted as his son.
In order for him to adopt me, he had to
have a wife, so he married my mother under false
(02:06):
tensus for real. Because fast forward, it was a whole
lot of abuse in the home, I mean extreme abuse,
physical abuse. So where I got upset with my mother
was there couldn't have been nothing in that home that
could have been worse where you would have to give
me away. If it wasn't good enough for you, then
why should it be good enough for me? Why didn't
(02:27):
you take me with you? And a judge also made
that statement to her, and she said she couldn't because
that would have been kidnapping. In my head, I'm saying,
how could that be? You can prove the abuse by
the markings on my body, by me warning myself back
to the state. But I wasn't good enough to take
with you.
Speaker 1 (02:48):
So after his mother left him in this man's custody,
he found a way to get himself out of that
awful situation.
Speaker 2 (02:55):
At the age of ten, I warded myself back to
the state. We went in to see the judge on
some kind of official business dealing with the adoption park, and
I told the judge I'm not going back there, and
he looked at me and he couldn't figure out why.
And I said, I'm just not going back with that man,
while he was sitting right next to me. And that
day forward, my life began by myself, without me having
(03:19):
any kind of guidance or direction. The only thing I
knew to do was to survive. It didn't tailed me
committing crimes. I didn't know any better, and all it
did was grew until it grew out of control. I
was constantly detention centers, juvenile facilities. I was numb. I
(03:41):
was just a mechanical animal out here, just trying to
survive my life. At that time, I was just a
car thief boy, and then that grew to the life
of crime as the adult. I had a robbery case,
a boloneyssault case, and then twenty fourteen, I had got
into the trade selling drugs. That's all I've known up
(04:03):
until ten years ago, when I actually started getting my
life together. I had opened up two small businesses. I
moved out of Portage County and moved to Trumble County,
Newton Folls.
Speaker 1 (04:14):
And that's where he lived with his girlfriend, Margaret Austin,
while both getting his cleaning business off the ground and
remaining in touch with friends in Portage County, including the
victim in this case, a twenty four year old woman
named Portney Tolliver who was also involved in the drug trade.
And on the night before the incident, she had texted
David for a ride to Cleveland, and so they were
(04:36):
in contact earlier that day, that fateful day of October sixteen,
twenty fifteen, and then she suddenly stopped texting David right
around the time that she had been struck with the
blunt object inside of her trailer home.
Speaker 3 (04:48):
Nine one one gets a call from a neighbor that
Courtney Tolliver is wandering around sort of between trailers and
collapses on the ramp of her trailer and and they
believe she's muttered something about being hit with a hammer.
The police arrive, she is taken by EMS and then
life light. She is put into a medically induced coma
(05:11):
and during this time the Portage County Sheriff's Office begins
an investigation. I'm using the term investigation very lightly because
they gathered I mean, I think five items of physical evidence,
all of which have since been lost. So they take
a few photographs. They gather five items of physical evidence,
and they swab a number of things for DNA. There
(05:32):
is a hammer on site that is not collected as evidence.
The photograph of it, it appears to have no blood
on it. What is most interesting is there is a
stool absolutely covered in blood. When you zoom in you
can see a hair fiber on it. There is a
massive puddle of blood around this stool. Now, this stool
is not swabbed, it's not collected, it's hardly photographed. There
(05:56):
is a set of keys that are moved onto a
puddle of blood, so someone touched those keys after the incident.
Those were not gathered or swabbed or finger printed.
Speaker 2 (06:09):
And it was a size six footprint that was inside
the blood, a woman's size six shot. The detective said
that they didn't step into blood, They didn't do none
of that. So whose size six shoot was this?
Speaker 3 (06:21):
There was a lock box which someone opened, whoever did this,
that was not swabbed or fingerprinted. It was gathered but
never used as evidence and has since been lost. There
was a laptop that the contents of which were never investigated,
that was lost. And she had two cell phones.
Speaker 1 (06:39):
Courtney described one cell phone as her family phone and
the other as her drug phone, but at the time
of trial, the state claimed to only have the records
for the family phone, which she had used to text
David about a ride to Cleveland.
Speaker 3 (06:52):
And so throughout that evening they go back and forth
with text about a ride to Cleveland, and throughout the
next morning, Dave says, I have a job interview. We
know from the location of his cell phone. He goes
to a job interview, and then there's text back and forth,
and then she drops off the texting and he says,
what do you want to do? I'm pulling up and
then no response.
Speaker 2 (07:12):
But she was text messaging people steal on that other
phone when this crime was supposed to have occurred with me. Anyway,
they say it has happened between ten thirty and ten
forty five with me. But at ten forty something she
was still on the phone, text messaging and making calls
with whoever she was talking to.
Speaker 1 (07:33):
But the drug phone record and this exculpatory context were
not discovered for many years. Nevertheless, the police visited David,
who confirmed his number, and they probably visited the people
on the other phone log too, And soon Courtney came
out of the coma.
Speaker 3 (07:49):
She cannot speak because she's intubated, and she writes down
who did this to me? She had been engaged in
a number of drug transactions the night before and the
next day early in the morning before this attack. They
don't investigate any of those people in any manner whatsoever.
They don't investigate any other person she contacts or calls.
Speaker 1 (08:09):
Or they did, but they just didn't keep any record
of it. Now, when Courtney's intubation tube came out, they
interviewed her again and again she said that she had
no recollection of what had happened, and in between that
visit and the following one, they ran some of the
crime scene evidence through CODIS, the national database, and they
came up with a possible match, not a true match,
(08:31):
but a possible match for David Smith. So while waiting
for confirmation of that, they visited Courtney once again, this
time recording the interaction and telling her whose DNA they
believed that they had found at the scene.
Speaker 3 (08:46):
When they go interview her on December ninth, they hold
up a single photo of David Smith and tell her
this man is a dangerous man. We already spoke to him.
He did this to you. He wanted you dead. He
doesn't care about you. And she does not identify him
as her attacker. She says, why would he do this
to me?
Speaker 1 (09:03):
And she seems to have some foggy recollection of her attacker.
Speaker 2 (09:07):
She states that the guy had blue tip Dreds. I
don't have blue tip Dreds. I think I've been bald
for twenty five years at least. And the blue tip
Dreds is the person that their mother called and asks
did you try to kill me? And his name is Hood.
Speaker 3 (09:25):
In a recording, her mother says, we called and asked
him why he did this?
Speaker 2 (09:30):
And this is a person that she been known forever,
good friends, they do business together, they kick it together.
They was like peanut, butter and jelly. Why would you
call him and ask him did he try to kill you?
Speaker 1 (09:42):
So Corney and her mother had their own suspects. They
even mentioned others in that recording, some of whom were
on that other call log. But at this point the
police appeared to be hoping for their possible codus match
with David was going to be confirmed, but it wasn't,
so now they began to scream.
Speaker 3 (10:00):
What we found later with these alternative suspects is detector
Johnson's calling the BCI, people who handle the DNA testing
and telling them we have these alternative suspects. They could
have been involved. Here's why they actually let Courtney Tolliver's
children's father out of jail to help investigate for them.
Speaker 2 (10:19):
Our baby daddy was talking to his mother and his
aunt on the phone in the county jail and said
that she said who did it to her?
Speaker 3 (10:29):
And then they don't disclose the information they get from him.
And then as BCI is calling back saying these other
people's DNA. Most of his DNA isn't matching to anyone,
almost all of it. Then Johnson starts to just narrow
in on David. Smith refuses to give anyone else's DNA
and refuses to turn over any discovery about these other
alternative suspects.
Speaker 1 (10:50):
At this point, they returned to the DNA that had
been a possible match to David. And if you've ever
seen a DNA analysis graph also known as an electro pharah,
it looks like a series of little peaks marking genetic
alleles that are present in a given sample, which are
measured in relative fluorescence units or RFUs, And it seems
(11:11):
like there were enough peaks in common with David and
this DNA sample to trigger a possible match in codis,
but not an actual match. And there are ways to
enhance the quantity of a sample as well as the
height of the peaks or what lies between the peaks,
what is called static to see if potentially there is
other genetic information.
Speaker 3 (11:33):
It's an amplification process, which was a process they used
for the first time in Portage County in his case,
and they're only supposed to amplify a certain number of
times and that amplification creates static, and those static points
either can cause you to misteray actual alleles as static,
or you can have static so high, which is nothing.
It's not real information. It's created from the amplification process
(11:56):
that can be read as an allele, a marker in
a certain space. They enlarged that possible match to Dave Smith,
and it was still not a match to Dave Smith.
So they enlarged it a second time, and it was
still not a match to Dave Smith. And they enlarged
it a third time and it was a match in
equal parts to Dave Smith and the victim.
Speaker 1 (12:17):
This triple amplification process produced an electro pharagram that differed
from previous iterations in order to produce this result, and
it's unknown whether these differences may have been actual genetic
information or nothing at all. So there's a potential here
for subjectivity, false positives and negatives, and definitely a lot
(12:41):
of room for doubt.
Speaker 3 (12:42):
But an unreliable process in this case produced a result
that there's a one in one fifty chance it's anyone
but David Smith or Courtney Tolliver, which is not a
match at all. So one in one fifty chance means
it could have been twenty seven thousand other people in
Portage County.
Speaker 1 (12:57):
So at this point they returned to court me for
an identification, and they doubled.
Speaker 2 (13:02):
Down on David.
Speaker 3 (13:03):
Obviously, without that identification, they had some trash DNA and
that's about it. She continues to not identify David Smith
as her attacker for several more months until February of
twenty sixteen. She had I believe eight or nine felony
drug counts pending. In February, those counts are resolved with
the same judge who tried David's case. Those are resolved
(13:26):
to a term of probation, and she walks directly out
of the courtroom into a little room immediately to the
left and explains to Detective Johnson that she now remembers
that she had a dream while in her coma she's
as a baal black man mased her, and she now
interprets that to me that David Smith hit her with
(13:47):
a hammer in October of twenty fifteen.
Speaker 1 (13:51):
So no more assailant with blue dreads and no more
felony drug charges. Maybe she had no idea who had
hit her, but now at least she found a way
that she could get something out of it.
Speaker 2 (14:04):
No, I think she has an idea, and I think
that what really transpired is something that her and the
person that did it is going to take to the grade.
I mean, if somebody beat me like that, I'm gonna
know who it was beat me.
Speaker 1 (14:20):
Nevertheless, it was enough for an arrest warrant on April first,
twenty sixteen.
Speaker 2 (14:24):
That morning, I have my cell phone in one hand
and my car keys and the other. I chirked my
truck and I stepped one foot in and when I
look in the rearview mirror, it's a black, undercovered car
bumper to bumper with me. He pulled out his gun.
He's like, free, stick your hands out, and I stick
my hands out and I said, what's this about? Officer?
He put the handcuffs on me, and then he said,
(14:46):
you have a warren for a tempted murder. And I
damn that passed out. Like what.
Speaker 1 (15:04):
You're 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.
Speaker 2 (15:20):
It was the biggest case of Portish County. Everybody at
that time at Portish County Jail tried to get on
that witness list to testify against me so they could
get out of jail. The detectives was pulling up on people,
talking about you ain't gonna get in trouble. All you
got to do is just tell us you was down
there witting. I mean, all this is video and recording.
Speaker 1 (15:43):
Eventually, the investigators came upon some willing participants who they
could actually use, starting with a couple who knew David
from the drug trade, Randy Milem and Florence Fontanella. And
Randy was the one who made the first statement.
Speaker 2 (15:56):
I mean, if you looked at the video of this interview,
be like, this is a dope fiend trying to get
out because she's telling the the detectives all these ale
Lander's statements. But he's also saying, are you going to
go to the judge and tell her to let me out?
He came up with a story that I told him
I did it. I told him I left the hammer
(16:17):
at the house, that me and this girl did it together.
Speaker 1 (16:21):
Then Florence Fontanella, who was facing her own charges, was
approached about being in Randy's car during the alleged confession.
Speaker 2 (16:28):
The DEA went to her house and asked her up
and she said, I don't know nothing about that. She said,
I was in the vehicle, Winnie, and I never heard
that man say he did anything. And the very next
day they had a warned for her arrest. When back
picked her up brought it to Forty County jail, she
wrote a statement, I was in the car and I
didn't hear none of that. She made recorded calls on
(16:52):
the phone and said Randy must be in trouble and
I didn't hear none of that. But two weeks later
she spent around and said I as a forthcoming. She said,
I didn't hear nothing but him say got the bitch
with a hammer.
Speaker 1 (17:05):
And then once Florence hopped on board, Randy recanted. So
now they couldn't afford to lose Florence as well.
Speaker 2 (17:11):
Florence found it Tello. She was scheduled to go for
sentencing a week before my trial. They postponed her sentencing
to make sure that she testified for the deal that
they gave her. She went to treatment facility by Addings.
Speaker 3 (17:27):
Instead of prison. Yet she switched her story quite literally
when she.
Speaker 1 (17:31):
Got the deal, and they pulled a similar stunt with
another acquaintance of David's who was named Lisa Frame. Ironic
name much, Lisa Frame, Come on now.
Speaker 3 (17:42):
Lisa Frame was in Jefferson County jail and Lisa Frame
drove a black car. A black car can be seen
driving in and out of the trailer park around the
time they believe the crime happened. And to me, it's
pretty clear if they knew someone. It was a known
associate of David Smith with a black car. She was
(18:03):
in jail. They went to the jail threatened to charge
her with conspiracy to commit attempted murder unless she told
them that she drove Dave Smith there.
Speaker 2 (18:12):
And so she said, would tell me what you want
me to say then, and I'll say it.
Speaker 1 (18:17):
And this insanity is on tape.
Speaker 2 (18:19):
Yeah.
Speaker 3 (18:20):
She says there was a day she gave Dave Smith
a ride, but she wasn't sure what day it was.
She took him to the trailer park. He was in
there a couple minutes and he came back. He had
no blood on him or anything. He wasn't in any
state of outrage or upset or panic or anything. She
doesn't say anything about having a hammer on him, but
she says he has something and wrapped up in his shirt,
(18:40):
which she thinks is a gun, and she reiterates she
has no idea what Dave this happened.
Speaker 2 (18:46):
Lisa Frame said, I called him several times that would
have blocked me and Lisa Frame into that day that time.
But they said that they took her phone and plugged
it into the computer and they couldn't get nothing out
of it.
Speaker 1 (19:00):
Oh, I'm sure.
Speaker 3 (19:02):
And not only did they plug it in and decide
that it wasn't computering, but they then thought, should we
keep it?
Speaker 2 (19:09):
Should we keep it?
Speaker 3 (19:10):
Should we store it somewhere important? Nobody knows it has
disappeared into thin air. And in all of the phone
records that were available in this case, they got one
set of phone records which helped the tail they were spinning,
and then everything else was unavailable.
Speaker 1 (19:25):
So to shore up Lisa Frames date and time, they
pulled surveillance footage from a Walmart parking lot showing two
black cars traveling in the direction of the trailer homes
around the time of the last text message from David,
and then only one leaving shortly after. And we could
get into how possible or impossible it was that these
were even her car, and how long it would take
(19:48):
for the round trip plus the bludgeoning. But why unpack
a bunch of meaningless bullshit that's masquerading as evidence when
the logical framework is built on the word of someone
who said a recording, tell me what you want me
to say, and I'll say it. So they went ahead
to trial with Lisa Frame, Florence Fontanello, Courtney Tolliver and
(20:11):
the bogus DNA evidence, which magically seemed to have gotten
a boost of credibility in the lead up to the trial.
Speaker 3 (20:17):
Before twenty sixteen, when they come up with the electro faarrograms,
the peak had to be taller than seventy five RFUs
otherwise it could have been static and it's too risky
to consider it. But in between October twenty fifteen to
Fall twenty sixteen, BCI published a paper saying, now, just
(20:37):
in the nick of time, they're allowed to lower the
threshold to fifty RFUs and count peaks that really fall
in that high risk static range.
Speaker 1 (20:47):
So this lowering of standards allowed for the triple amplified
DNA sample to be presented as a partial match to
both David and Courtney, which is a confusing result, and
implied that it could have been David, but it eventually
turned out it could have also been so many others.
Speaker 3 (21:04):
Yes, the neighbor across the street, in fact, when we
compared it, had more alleles in common with this sample
than Dave Smith did, and had blood on his pants
and was present when the police arrived. And I'm not
saying he did it, but I'm evidencing how we manipulate
DNA to say what we wanted to say, and that's
what they did in this case.
Speaker 1 (21:24):
And the steak got one last helping hand. David's attorney
filed to suppress the victim's identification because if you remember,
the December ninth, twenty fifteen, interaction was recorded when Lieutenant
Johnson was suggestive with the witness.
Speaker 3 (21:40):
Yes, he literally is saying, this man is dangerous, he
wanted you dead. We know that he did this, and
she's still not identifying him. And what is crazy is
Tolliver's mother is in that same interview, and in the
course of the conversation, Tlliver's mother is talking about other
people that they believe did this.
Speaker 1 (21:58):
By name specifically Hood with the blue tipped dreads. But
the motion to suppress the id was denied, and by.
Speaker 3 (22:06):
The time we get to the first trial, they don't
allow that to be played in court. Instead, the court says, well,
they have the transcript of it. The jury's going to
get the transcript.
Speaker 2 (22:15):
But it took me ten years to find out that
those transcripts wasn't even accurate. In the first place.
Speaker 3 (22:21):
The transcript had the names of the other potential suspects redacted,
and it had it redacted in such a manner that
it then sounded like his mother was still talking about
David Smith. We called him and asked him why he
did this, implicating that they believed it was Dave Smith,
when really what they said about Dave Smith was why
would he do that to me? She said, he gave
(22:43):
me a ride once? Why would he do this?
Speaker 1 (22:45):
So even if the jury planned on reading them, they'd
be misled by the redacted text anyway. And that's how
both Lieutenant Johnson and Courtney Tolliver testified about the identification
without being irreparably impeached. Instead, the cross examination was new.
While Courtney took the.
Speaker 3 (23:02):
Stand, she testifies with one hundred percent certainty that David
Smith came to her door and attacked her with a hammer.
Speaker 1 (23:08):
And despite cross examination, this was still a bludgeoning victim
naming her attacker.
Speaker 2 (23:13):
But this is the key to a one hundred percent
sure This dream summary never came up to that detective
shoulder that picture. And then now she's saying, in my dream,
I dreamt it was him. But there was never a
dream summary in the hospital on November seventh. But whatever
it was that the detectives came to the hospital and
(23:35):
asked you, and you say it, I have no memory of.
Speaker 1 (23:37):
That, perhaps having not heard the contextual audio recording or
having not heard a word about the deal she got
for her nine felony drug charges. Sadly unsurprising that the
jury accepted the bogus idea as truth and then came
the quote unquote supporting evidence. Like Florence Fontanello, who had
(23:58):
her own issues.
Speaker 3 (23:59):
Initially, she says that David Smith had nothing to do
with this, and she says it in these Facebook communications
with Margaret Austin. Randy Mulam comes forward and tells them
what they want to hear. Then she all of a
sudden switches to Team State and She says David Smith
made an admission to her.
Speaker 2 (24:18):
When my attorney actor, well, what did you hear in
the conversation, she said, I didn't hear nothing but him say,
got the bitch with a hammer.
Speaker 3 (24:26):
And she's confronted with these Facebook texts, but maintains that
David Smith made an admission to her.
Speaker 2 (24:32):
She told the jury the reason why she didn't come
forward because she was scared.
Speaker 1 (24:37):
The jury was also unaware of the deal that she
had received, as well as the threat that Lisa Frame
had sidestepped with her testimony, which was supported by surveillance
footage of random black cars traveling toward the trailer park.
Speaker 3 (24:52):
There's not a single photo of what her actual black
Cadillac looks like. Even though they had a search, weren't
for it, and they searched it all. They took not
a photo of anything. But they did take a floor
mat and they tested the floor mat for either Dave's
DNA or blood or any blood splatter at all. Because
this was one of the bloodiest crime scenes I've seen.
(25:13):
There's not a drop respect of blood on the matt
note of Dave's DNA. But then since we have no
photo of the car to say whether that was the
car pulling into the trailer park or not. They just
infer to the jury that it is, and that Lisa
Frame doesn't remember the day, but that was the day,
and that also she must just be confused about how
(25:33):
Dave Smith didn't by any stretch looked like he had
just hammered someone nearly to death.
Speaker 1 (25:38):
So after hearing only some of the impeaching issues about
every single one of the state's witnesses, and having heard
the identification of the attacker without the context of how
that identification came to be, the jury went to deliverate.
Speaker 2 (25:52):
I mean, there's a lot of evidence that the jury
wasn't able to deliver right on, and they came back
two days later with a guilty burden twenty three years flat.
They told me I wasn't coming home till I was
seventy one years old, and I just started it at
forty seven. I was angry about it, but I wasn't
(26:26):
bitter because before I left out of that court room,
I told the detective Lieutenant Johnson, I'll see you again
in trial, and he said to me, I'll be there.
And for ten years I made sure that I was
going to be there to see him again. While the
appeal was going on, I was in a law library
(26:48):
every single day.
Speaker 1 (26:50):
Like so many of our guests, David learned the law,
and after his direct appeal failed, he began fining motions
pro se, meaning on his own, without the up of
an attorney.
Speaker 2 (27:01):
I did a post conviction on ineffect assistance of council
for the not playing those audios in court. They shut
that down. She said that there was nothing outside the
records because these transcripts and audios went back to the jury.
Subsequently we found out they never went to the jury.
Speaker 1 (27:20):
Did never happened, And subsequently he filed his federal habias
based on the impermissibly suggestive identification, citing the transcript of
the December ninth, twenty fifteen recording, a transcript that they
had thought was both complete and seen by the jury,
and the filing made its way to the Sixth Circuit
by twenty twenty two, by which point Kim had already
(27:40):
joined the fight.
Speaker 2 (27:41):
By this time, Kim had set me the audio and
the original transcripts of Courtney Tolliver's interview with Lieutenant Johnson,
and when she said it to me and I was
reading it, I said, Kim, these transcripts, it's not accurate.
She like, what you mean? I said, they took evidence
out of these transcripts. Send me to audio. I marked
(28:01):
off where all the meat was, taking out the transcripts,
the identification to somebody else and everything else, and I
sent it back to her. She tended to an independent
transcriber and they put all of it back inside the transcripts.
They're authenticating through another transcriber, but they're not authenticating through
the courts. Also, I didn't use these transcripts in my
(28:23):
federal aid. So now we're in the six certain Court
of Appeals and I bugging Kim and saying, how are
we going to get these transcripts in the evidence. What's difficult?
Speaker 3 (28:32):
Though, We were procedurally in a place where you can't
expand the record, and so knowing that they weren't going
to allow me to expand the record at that time,
I was just like making up other things to file
that i'd have a reason to attach the transcripts.
Speaker 2 (28:45):
So when they read the motion, they're going to read
the transcripts. And that's what we.
Speaker 3 (28:49):
Did, without regard to the fact that they removed a
part of the transcript which contained exculpatory information and identified
an alternative suspect. The court was just like, this wild
identification procedure overly influenced her, and it's so bad. It's
to such an extent that there's no way it can
overcome even the stringent protections of EDPATH.
Speaker 1 (29:12):
EDPA is the Anti Terrorism and Effective Death Penalty Act,
which was signed into law in the wake of the
nineteen ninety six Oklahoma City bombing. And in order to
reverse a state court decision quote, every fair minded jurist
would have to agree end quote. So what they're saying
is that not a single quote unquote fair minded judge
(29:34):
in existence could have seen this another way. And the
Sixth Circuit ruled that this seemingly impossibly high standard had
actually been met, and.
Speaker 3 (29:43):
That's when they awarded him a habeous corpus on the
condition that they have to release him if they don't
retry him without that identification within six months.
Speaker 2 (29:52):
And it was just hard that it took me all
this time. Quote just see where really happened to that case. Yeah,
evidence didn't change, nothing changed, but it was jud just
that seeing, hey, but this may did to this do
this a right? You should have never went.
Speaker 1 (30:11):
To trial, so the state tried to stay the decision,
which brought them about six weeks against the six months
they were given, meaning they had to retry him by
March thirteenth, twenty twenty five, and with the clock ticking,
the state appealed to the denial of the stay as
well as filed for sir tierrari with the US Supreme Court,
both of which were almost unanimously denied in January of
(30:34):
twenty twenty five.
Speaker 3 (30:36):
Since the ruling in July of twenty twenty four, I'd
been actively filing defense motions, all of which went ignored
until January for a trial that had to start by
mid February, and so by the time they were responded to,
like our emotions for expert, all of those deadlines that
expired for us. And then two days before trial, they
(30:57):
find a box labeled Detective Johnson. It was in the
back of some garage and it contained exculpatory information. It
referenced confidential informants.
Speaker 1 (31:06):
And this confirmed suspicions that Kim had raised before the
July twenty twenty four ruling.
Speaker 3 (31:12):
While I'm working on David's case, I am randomly working
another federal drug case and I'm in the trial and
a confidential informants name is disclosed, which is wildly protected,
but it is a name I recognize. So I go
back to Portage County and I say, I have documentations
signed by Portage County Sheriff's office indicating that this person
(31:35):
was paid as a confidential informant right around the same
time of this case, that they were on the payroll
by the Portage County Sheriffs. And the sheriffs continually and
repeatedly stated, we have no record of that, while I'm
holding documentation signed by their office on their letterhead.
Speaker 2 (31:53):
The people that they had on the list suspects are
confidential informants, and that.
Speaker 3 (32:00):
Would explain why they never even called them into interview them,
not one of them. Did they identify their whereabouts at
the time of the crime, did they get their cell
phone records to see their location or their communication with
Courtney Tolliger.
Speaker 1 (32:12):
Which definitely adds context as to why this second phone
long was allegedly never gathered into evidence. And additionally, there
was new context for how David's and only David's cell
phone location had been obtained.
Speaker 2 (32:27):
When he got the warrant from my cell phone tower evidence.
He told the judge that his DNA is on this
scene and that's what he used to get a search WARM.
When the people from BCIs and you have to do
further investigation. This is not evidence, but he took it
(32:47):
to the judge and the judge gave me a search
WARM from my cell phone tower evidence.
Speaker 3 (32:53):
The big part of the first trial I was like,
her last text message was to David Smith, she never
texted anybody again. F that well, her other phone makes
clear she's continuing texting and engaging with people for fifteen
or twenty minutes after they believe the crime occurred, and
that she has constant contact with one person more than
one hundred times that day. That was another aspect of
(33:16):
the case that was not a part of the first trial,
and then they tried so hard not to make it
a part of the second trial by arguing that we
could not authenticate it because the records were ten years old.
Speaker 1 (33:25):
And that was an issue for everything that was found
in Lieutenant Johnson's garage as they moved into the retrial
in February twenty twenty five.
Speaker 3 (33:34):
Another one of the big issues at the retrial is
that the state investigator who photographed the crime scene has
retired and literally told them, sorry, I'm not coming in,
So we were denied the opportunity to cross examine him
about the photos on scene. You literally can't question anyone
about anything you see in the scene. How can you
develop arguments when you can't even point things out.
Speaker 1 (33:56):
Like whether or not the hammer was even the murder
weapon at all. When the stool in the photo, well,
it was an interesting alternative.
Speaker 3 (34:04):
What's interesting about it is someone touched it after it
was used, because there's both blood under it that it
is resting on top of and blood on top of it,
so that is going to have meaningful evidence on it.
Did they collect it? No, you didn't pick up the
only hammer on scene, and you didn't pick up the
thing that looks like a bludgeoning object covered in blood.
You didn't pick up the plastic bag which was sitting
on top of pile blood and also blood spleater on it.
(34:26):
So it was moved after. You know, it was touched
in some way in the course of this attack.
Speaker 1 (34:32):
But without that witness or a more well documented crime scene,
the defense was hamstrung in this regard. But that was
not the case when they confronted the DNA evidence at
a pre trial hearing. As we discussed earlier, the triple
amplification process on the DNA sample drew into question what
were peaks and what was just static, which brings in
(34:52):
room for subjectivity to something that should just be an
objective science. And then Kim proceeded to present what this
process meant for a neighbor's DNA When.
Speaker 3 (35:02):
I compared it to the neighbor, he had moraleles in
common with that sample than David Smith did. When you
bastardize the process, you get shit in, shit out. And
to watch these experts sit up there and try and
make sense of a senseless DNA procedure was just It
was painful.
Speaker 2 (35:22):
The way she went in there and took the evidence
and threw it in the trash. The prosecutor came walked
over and said, listen, I'm gonna ask my boss if
we could just walk him out of here with time
serve and let him go. So the day before the
trial started on February to twenty four, and they put
it on the record time served. I said, no, I
(35:42):
didn't fight like this just to go in there and
plead guilty to somebody didn't do. I want my name
clear for this. And the prosecutor looked at me and said,
you got balls, and I looked at him and said, no,
you have bulls because the sixth Circred Quarter of Appeals
told you that you can't use this identification, and you
have televised that's what you're going to do. Anyway.
Speaker 3 (36:03):
It is a habeas corpus in which he has to
be released unless they try him within six months without
using Tolliver's identification of Smith, which is suppressed and excluded.
I have read it and retyped it so many.
Speaker 1 (36:20):
Times, and they were trying to interpret those words to
make it permissible to have the victims identified David but
not expressly as her attacker, right.
Speaker 3 (36:30):
Like, no, it doesn't say that. Like these are the
highest judges in the country. They weren't confused. They meant
to press and excluded. And when she woke up, she
didn't remember anything about the day. So any identification which
includes an identification of David Smith from that day would
be the result of their overly influential, impermissible identification tactics.
Speaker 2 (36:49):
The day before trial we found emotion. And as for clarification,
the Norther distrect Court of Appeals than not it summarily,
because what is do to clarify?
Speaker 3 (36:59):
They said, we can't interpret what the six circuit means.
What the six circuit means is you cannot use Tolliver's
identification of Smith, which is suppressed and excluded. When that
order comes out, I think, oh, thank god, this explains
it to them. But they take it the other way.
They're like, see, they said, we can't interpret what the
six circuit does. So obviously the six circuit means she
(37:19):
just can't identify him as her attacker. So she's allowed
to say, that's David Smith, the ball black man and
the yellow sweater. He came to my door and then
I was struck with a hammer, and that's not an identification.
Speaker 1 (37:33):
And it would be hilarious if it wasn't so freaking sinister.
And then they found a second way to bring it in.
Speaker 2 (37:41):
In the opening statements, he says, Courtney, Tolliver is going
to come in here and tell you that David Smith
hit her in the head with a hammer.
Speaker 1 (37:52):
And then Courtney took a stand.
Speaker 2 (37:53):
They say, well, can you identify the person that you
said came to your house? She said, yes, that ball
guy over there with a yellow shirt to brown souno
and they said, well, let the record reflect she identified
David Smith and it just said no. And she said,
he was just standing on my porch. Okay, now what happened.
(38:14):
I hit the legs and he opened the door and
came in, and this thing I felt with a stroke
and I woke up in the hospital.
Speaker 1 (38:20):
But somehow, in their minds this skirted the Sixth Circuits
order that her identification was to be suppressed and excluded
due to Lieutenant Johnson's impermissible procedure.
Speaker 3 (38:33):
And then after they get her to do this whull identification,
I got to cross examine on the fact that it
was a wildly prejudicial identification procedure. And they're like, oh, no,
you can't cross him on that. You'd be opening the.
Speaker 1 (38:47):
Door, meaning the door to allowing her identification. It's unfucking real.
Speaker 3 (38:52):
And I'm like, is it genuinely your takeaway from the
Sixth Circuits order that her identification is allowed? But I
can't cross exams on the unreliability of the identification. You
think their point was to make it worse than it
was before.
Speaker 2 (39:06):
Yep, they did.
Speaker 1 (39:07):
They thought that, and then they found a way to
make it even worse with Florence Fontanello, who by this
time had recanted, but they weren't interested in hearing that,
so they claimed they just couldn't find her.
Speaker 3 (39:22):
They got the court to admit her testimony from the
first trial again, even though she had issued an affidavit
saying that she had lied.
Speaker 2 (39:30):
They took the twenty sixteen transcripts and read them into
a twenty twenty trial.
Speaker 3 (39:36):
So we can't cross examine her. They just read her
testimony and everyone reads their own part, same prosecutor, same judge,
And I'm like, I'm refusing to participate in this display
of injustice. Like I'm not going to sit here like
the defense attorney from ten years ago and read his part.
I would make it very clear to the court that
I'm not a part of this. We're just re enacting
(39:57):
the same trial that was considered to be on constitution.
Speaker 2 (40:00):
Well, what if we did was set there without being
able to say anything.
Speaker 3 (40:04):
I was so pissed off as I sat there in court,
I ordered little Oscar statues and gave them to the
judge and the prosecutors the next day, like here, since
this is just a play, congrats on your acting.
Speaker 1 (40:17):
Nobody liked them, So the jury heard Florence Fontanellez recanted
twenty sixteen testimony as well as the state's non identification
identification right, and despite being threatened with opening the door
to the full force of the unconstitutional evidence, they were
able to provide some evidence about Courtney's two phones, and
the records for the drug phone revealed that she had
(40:40):
been active after the state had contended that this crime occurred,
and that she had been contacted by an alternate suspect
over one hundred times that morning. But with the passage
of time, getting those records authenticated was the real problem.
So Kim asked the investigators about these records and why
they had gotten lost or what had happened to Lisa
(41:02):
Frame's cell phone or for that matter, any of the
physical evidence in this case.
Speaker 2 (41:06):
The detectives was saying they don't remember anything, and then
with Kim refreshed their memory with their reports, they steer
with Sam, I don't recall.
Speaker 3 (41:16):
That we had all this testimony about how they lost
all the evidence, and then after they realized it was lost,
sought a destruction order from the judge to destroy it
so that we couldn't use it I could get one
person to testify about some of the timing of the
text and the second set of cell phone records. And
because I wasn't allowed to admit those records, I was
(41:36):
allowed to publish them in front of the jury. So
I'm on a giant post it like writing down the
evidence I hope they can consider, so that when they
go back with half of the phone records, only the
half that benefit the state, they'll remember having seen me
write down the content of what mattered from the second set.
And so I thought that if we attacked the quality
(41:57):
of the investigation enough, it would be enough.
Speaker 2 (42:00):
Kim fought everything tooth and nail, and they went in
there and came back at twelve o'clock with a guilty verdict, but.
Speaker 1 (42:07):
A plan to return the Sixth Circuit was already in motion.
After all, these fucking people acted like they couldn't properly
comprehend the Sixth Circuit's order. But if the conviction was vacated,
then technically the Sixth Circuit no longer had jurisdiction, so
David would have to start his appeal all over again.
So David made sure that a copy of the Ohio
(42:31):
Department of corrections docket was taken for evidence.
Speaker 2 (42:35):
When we filed the motion back to the court, they saying, hey,
this case was vacated. The federal court don't have jurisdiction
no more. My evidence was the docket, which there's no
general wintry in there, that the case was vacated. Two
the transport order. Three the ODRC website still said that
I was convicted, that I was still under conviction, that
(42:57):
it was never vacated. We fouled that most marks the twelve.
After they found me guilty, the Jews answered they gave
us a court day for April the first. They transported
me back to Cleveland to the federal courthouse and Attorney General.
It was kind of ugly because I've never seen the
Jews treat nobody in the courtroom like that, especially attorney General.
(43:17):
They were I mean, he was.
Speaker 3 (43:18):
Not shy and saying how could you guys have done this,
like you touched the third rail, and not being from
New York, he then had to explain what the third
railmant to get into opposing council, like it's the thing
you don't touch. That's how you get electrocuted. You don't
touch the third rail, and you guys danced on the
third rail. What did you put me in a position?
Speaker 2 (43:36):
What am I going to do?
Speaker 1 (43:37):
And even though the Northern District Court initially had a
differing opinion than the higher six Circuit, they had no
choice but to honor the higher court's ruling because the
state's jurisdiction argument held no water. The conviction had not
been vacated, but rather only a new trial had been ordered.
Speaker 2 (43:55):
On May to twelve, he called his back to the
Northern District Court of.
Speaker 3 (43:59):
Appeals and I thank god the District Court did not
agree with them, and they ordered that David Smith be
granted an unconditional habeas corpus and that he'd be released.
But then he stayed his order for seventy five days
through the use of an administrative stay, which we appealed,
and the Sixth Circuit basically said, there's no such procedure
(44:19):
as an administrative stay in this context and he has
to be let out. And that was on July third.
Speaker 2 (44:24):
Now it's a lot of third I was free on
July four if I was on a boat with my
attorneys and.
Speaker 3 (44:29):
We took a picture from the boat of the Federal Courthouse.
Like everything that's happened. Now you get to view it
from this side. Yeah, and I sent it to the prosecutor.
Speaker 2 (44:39):
When I first got out, I didn't want to live
with nobody, to deal with nobody. So we have a
guy who was also exonerated, who has an exign of
ree house in Cleveland.
Speaker 3 (44:49):
We have so much injustice, so we have a lot
of exgneries and they take care of each other. So
one of them bought a house for all ex honeries
to live in when they're in this position when they
first get out, Charles, Checks and Raymond.
Speaker 1 (45:00):
We had the good fortune of covering Charles's story with
Maggie Feeling, and we'll make sure to link it in
the episode descriptions, so check it out.
Speaker 2 (45:08):
I've been doing Charles for a long time, so I
mean he was familiar with me, But for like the
first three weeks, the only thing I did was went
from my bedroom to the bathroom, to the kitchen back
to my bedroom, like I was steal in a sale.
Since I've been home, Kim gave me a job with
the law firm.
Speaker 3 (45:27):
So right now on the docket, it's his appeal. I'm
confident we're going to win. We've already had rulings from
the Sixth Circuit when they released him, saying that they
don't believe that the warden has a winnable position, so
that's really favorable. Nonetheless, we're going full steam ahead and
that's submitted to the court and it's going to be
decided without oral argument. And so as soon as we
(45:47):
get a decision, that ankle monitor is going to come
off and he will be free. Hopefully he'll decide to
pursue his civil remedies because a lot has been taken
from him. In the meantime, he's doing everything can. He's
been working. He's gotten himself an ID. He has MS
and diabetes, so he's gotten his medical setup and taken
care of which is a lot of steps. But he
(46:09):
could use all the support in the world. So if
anybody has anything to offer, he's been saving to get
a vehicle, he certainly needs business clothes for job interviews
or stuff like that, and he desperately wants to go
back to school, and so people have resources that they
could lend to him to give him support. We would
be happy to help facilitate those resources directly to him.
Speaker 1 (46:30):
And we'll link ways to contact Kim and get David
to support he needs, and with that we're going to
go to closing arguments. Closing arguments, everyone knows is my
favorite part of the show, where I'm going to kick
back in my chair, turn my microphone off and leave
my headphones on and just listen to anything else you
want to share with our amazing audience. And so Kim,
(46:55):
you go first, and then just hand the microphone off
to David. Then he could take us off into the sunset.
Speaker 3 (47:02):
This is a case with one of the most egregious
identification procedures I've ever seen. Which is so appalling about
it is how many courts justified and upheld the conduct,
who gave it a pass in the state court at
the appellate level, at the Ohio Supreme Court level, at
the district court level, and federal court. It took eight
years to get any justice, and then when we finally
(47:24):
got that justice by way of an order, the state
court threw it out in totally ignored it conduct that, frankly,
if any of us engaged in would be criminalized. Were
all required to follow the law, and the trial court
thought they were above that. They stopped all over his
rights through a second trial, and then used an unconstitutional
second conviction to justify their misconduct. We're so thankful that
(47:47):
the district court sought through it. But if you imagine
being responsible for someone's life and freedom as their attorney,
he turned down a flea he could have been free,
and then for four months he lived with a twenty
year cent hanging over his head and just the hope
that the federal court would step in and enforce its
prior ruling. We're so thankful it did, but here we
are still up against it in the Federal Court of Appeals.
(48:10):
And this case is a story of even when you
get justice through your immediate appellate procedure, it can take
a full decade, And even when you find a judge
who's willing to say and do the right thing, there's
a slew of judges below them who aren't.
Speaker 2 (48:27):
In Ohio, we have a feal that's on the ballot
called the absolute Immunity View. If it's passed in Ohio
would be the very first time that anything like this
has been passed. And that deal makes judges, prosecutors, detectives, police,
anything of authority can be prosecuted for what they do
(48:50):
for violding the person's constitutional rights because right now, like
it is so thick where they don't have to answer
to nobody, they could do what they want and put
it up under job duties. You cannot turn over evidence
and say it was part of my investigation. The judge
can violate your constitutional rights and know that there's no
consequences for these people. Them. People need to be held
(49:10):
accountable because if I watched so and so take a
piece of paper from so and so, and the detective
come and ask me and say did you see that happen?
And I say no, I got a case because I lied.
But a prosecutor and a jug can lie all day long,
can withhold evidence, can cover up whatever they want to
because there's no consequences for them. That's why this bill
(49:32):
in Ohio is so important. And when I spoke at
the Wrongful Conviction Days, that was one of the things
I spoke about. All this is beautiful, but if people
don't get out and vote on that bill, we're going
to continue to have wrongful Conviction Days.
Speaker 1 (49:55):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcast 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 Cliber.
The music in this production was supplied by three time
(50:15):
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.
Speaker 2 (50:35):
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.
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
Popular Podcasts
My Favorite Murder with Karen Kilgariff and Georgia Hardstark
My Favorite Murder is a true crime comedy podcast hosted by Karen Kilgariff and Georgia Hardstark. Each week, Karen and Georgia share compelling true crimes and hometown stories from friends and listeners. Since MFM launched in January of 2016, Karen and Georgia have shared their lifelong interest in true crime and have covered stories of infamous serial killers like the Night Stalker, mysterious cold cases, captivating cults, incredible survivor stories and important events from history like the Tulsa race massacre of 1921. My Favorite Murder is part of the Exactly Right podcast network that provides a platform for bold, creative voices to bring to life provocative, entertaining and relatable stories for audiences everywhere. The Exactly Right roster of podcasts covers a variety of topics including historic true crime, comedic interviews and news, science, pop culture and more. Podcasts on the network include Buried Bones with Kate Winkler Dawson and Paul Holes, That's Messed Up: An SVU Podcast, This Podcast Will Kill You, Bananas and more.
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com