March 2, 2023 • 42 mins
On September 3, 2008, in Elkhart, IN, 60-year old Angel Torres was found unconscious and lying face down in a parking lot outside of his apartment complex with a baseball bat beneath him. When authorities arrived, Angel’s neighbor and friend, Dewayne Dunn, immediately rushed over and said that Angel had fallen down the stairs from a second-floor porch at the complex. Angel was taken to the hospital where it was discovered that he had suffered skull fractures and brain bleeding, and his blood-alcohol content was over three times the legal limit. He died two days later. Although the two eyewitnesses to the crime claim Dewayne is innocent, he was convicted of first-degree murder and sentenced to 58 years in prison based on the testimony of questionable expert witnesses.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:03):
At ten pm on September third, two thousand and eight,
forty six year old Dwayne Dunn returned to his Elkhart,
Indiana apartment. He joined his girlfriend, Litha Sims, and their
next door neighbor, sixty year old Angel Torres, who were
having a few beers. The men's friendly conversation eventually turned
into an argument, and Angel pulled out a bat. It
should have ended when Duane and Litha left Angel's apartment,
(00:25):
but a few minutes later, Dwayne and Angel found each
other again on their shared second story deck, abutted by
a rickety set of stairs. Angel began swinging the bat
at Duane, who was overheard telling Angel to stop, just
before a series of audible thumps and thuds the sounds
of Angel falling down the stairs. Police soon arrived to
find Duane hovering over Angel as blood began to pool.
(00:48):
He was rushed to the hospital, where he succumbed to
his injuries a few days later. For two years, Duane
swore in police statements and again at trial that he
had neither pushed Angel Torres nor beaten at the bottom
of those stairs. Yet the state's expert witnesses disagreed. Which
appeared to be ironclad proof of Dwayne Dunn's guilt. But
(01:10):
this is wrongful conviction. Welcome back to ronful Conviction. Today,
we're gonna go back to Elkhart County, Indiana, a place
(01:31):
once known as the RV capital of the world, but
after what we've seen going on there, it could arguably
be called the per capita wrongful conviction capital of the world.
We're gonna link some of the Elkhart cases we've covered
so far in the episode bio. Not surprisingly, many of
the same bad actors and troubling patterns are present once
(01:51):
again in the case of Dwayne Dunn. And Dwayne, welcome
to the show. Thank you. You know you got caught
up in the Elkhard system, convicted for a murder that
never happened, Right, People always like roll their eyes, like,
what do you mean the crime never happened. It never happened.
A man named Angel Torres did, however, tragically lose his life.
That's true, but that tragedy did not need to be
(02:12):
compounded by yet another. And with us to cover this
crazy story is an Indiana Deputy State Public defender. Dwayne's
post conviction attorney, John Chennawith. So, John, welcome to the show.
Thank you, and John, You're not the only person responsible
for Dwayne's freedom, least of which is Dwayne, who had
done a lot of pro say litigant work on his own.
(02:33):
But we'll also be joined later on by two more
attorneys who fought for Dwayne in federal court, the director
of the Indiana University School of Law Federal habeas Project,
Michael Osbrook, and a public defender who was Michael's student
at the time, Alex Doland, who Michael had tapped to
handle oral arguments for Dwayne and ultimately was successful. So
we're looking forward to speaking with them as well. But
(02:53):
before we get into any of that, before your friend
Angel's tragic demise, Dwayne, you had been leading an honorable
life by anybody's definition, and you weren't originally from the
Elkhart area, right. I grew up in Inniapolis, went to
George Washington High School and liked it, playing football, fishing,
just stuff like that. Then I came to Elkhart later
(03:14):
after I graduated and come up to Elkhart to work
at the jobs. Back then, you can quit a job
and go get a job the same day. So you
were working in the RV industry. Yeah, RB trailers, tipping
and receiving all that forkliff. I used to move those
sidewalls for RBS. The big RBS used to move the walls,
the roof and the floors, all the just working and
(03:35):
raising my family. Yep, you and your girlfriend Leatha SAMs
were raising two kids. And so in two thousand and eight,
you're forty six years old and you're living an apartment
building in Elkhart and Angel Torres lived in the apartment
next door where both of your second story apartments shared
at deck and the same rickety set of stairs leading
up to or down from it. That's right, it's the
(03:56):
normal stair. It's like say, if you're going up to
a second floor apartment. But the railing was loose wooden stairs,
and you know, we was always putting something on because
we were scared for the little kids when they were
up there, that they were going to fall through the railing.
So I had to get some other kind of fencing
that put up through there, and the metal poles were broke.
Sounds pretty dicey, but okay, so you will you do guys? Friends?
(04:20):
Oh yeah, well, we used to hang out, sit out
on the porch, drink beer. Sometime I'll have cookouts. He
would come over sometime. He would cook come over, just
doing navally things okay, and so on this particular night,
the night of September thirty, two thousand and eight, what happened.
Went out to walk the dog and came back. It
was it was in the evening. It was late, probably
around ten, and for some reason I went over his
(04:42):
house and I don't know if he was just drunk
or what, and he got upset, got mad and asked
me to leave. So I left, and then he would
to go get his baseball bat of something. We tussled
a little while and I left went in the house.
For some reason. I just came back out on the
porch and yeah, I guess he seen me. He comes
out on the porch, he had the bat in his hand.
He reached and slapped me across the bat with the bat.
(05:05):
I said, man, you hit me with that bat again.
We're gonna have a problem. And he reached the go
hit again, and when I turned, he tumbled backwards down
the stairs. He hit his head a couple of times
going down the stairs. And when I seen him hit
the bottom. I was like, man, damn you all right?
And he didn't say nothing. So I walked down the
stairs to go check on him. And when I checked
(05:26):
on him, I was trying to step over the blood,
but it was not doctor do so I shook him
see if he had moved. He didn't move. I came
back upstairs. Lisa said, what happened? I said, he tumbled
down the stairs. He fell, and then Willie came out.
He got on the cell phone and he called the police.
And Willie as lead the Sun a teenager at the
time who also cased by the name of Jamar. So
(05:47):
then what happened? The man him walked down the stairs,
went around his body, and we stood on the street
and I checked on him a couple of times, and
then I would walk to the edge of the street
to see if the police were coming. One police offer
came ass and kept going, maybe another half a minute
or so later. Then one come up to side street.
He stopped and we waved him on. Then he came
(06:08):
and pored over. Then they went to check it on him,
asked me what was going on, what had happened? And
all this there and took pictures and all that so
when the police arrive at the scene, the paramedics are
called and mister Torres is taken to the hospital for treatment.
Some investigators from the police department arrive at the scene,
(06:28):
They take photos, they collect evidence. So he was very
severely injured and was taken off life support a couple
of days after he was taken to the hospital. Back
at the crime scene, the investigators when they first arrived
had found a baseball bat underneath mister Torres's body, which
(06:49):
they collected his evidence, and they spoke to the witnesses,
and they spoke to Dwayne. They found some blood spatter
at the scene which they photographed. Let's talk about out
that blood spatter. From what I've read about your case,
the States theory eventually became that Dwayne had beaten him
with an unknown object after the fall, and there were
what were categorized as cast off patterns on surrounding objects
(07:12):
and surfaces from the alleged repeated swings from this alleged
unidentified bludgeoning tool. Now, curiously, though there was no cast
off on your clothing, when any body would know the
most amateur sleuth in the world would know that you
would have been covered in blood had you repeatedly struck Angel,
But of course that was not the case, nothing like it.
(07:34):
They found a little bit of blood on Duyne's shoe
and a little bit of blood on the inside of
the shorts that you were wearing. Yeah, and there was
no doubt that Duayne had been at the bottom of
the staircase trying to help mister Torres, and mister Torres
was bleeding at that time, so if blood ended up
on Duayne, that would not have been surprising. So not
(07:55):
only is that blood easily explainable, but so are the
spatter patterns. And as it turns out, while Angel Torres's
blood was in fact pulling on the ground, quite a
few people had trampled through the scene. Yeah, the paramedics
walked through it, all the police were in it. They
took the baseball batters and picked it up and leaned
it up against the car. And the bat was the
(08:16):
only freaking thing they ever found. As we mentioned, it
was under his body with no spatter, and a thorough
search was conducted. There were no other implements on the scene.
So anyway, the police brought you in for questioning. The
first two detectives that were on the case They kept
me down there, and they went to every place I
told him I went. They went to go check and
(08:37):
they came back and they said all right. Then they
came back the next day. The clothes. They put it
all in bags and they said, well, we're going to
go sitting this to the lab and test it. I said,
no problem. And as we mentioned, there was a droplet
of Angel's blood discovered on your shoe and on the
inside the leg of your shorts, which was consistent with
you having entered the scene having tried to help your friend,
(08:59):
but definitely not consistent with multiple swings of a blunt
object and blood flying everywhere. In fact, you were the
only one, ironically, that was hit with a blunt object.
When they took Duyne in for questioning, they took photographs
of his body and they found injuries where Dwayne had
been hit by the baseball bat by mister Torres. They
(09:20):
found clear evidence that he had been struck at least
several times. Everything they found at the scene in terms
of the physical evidence, was matching up with what Duane
and Litha and Jamar were saying it happened. Now. The
police had also questioned Litha and her son, who were
the only two witnesses to what happened. What did they
tell the police? Nothing? That Dwayne never touched him, That
(09:41):
that was what was said. They investigated for a while,
but I say, maybe thirty forty days later, maybe two
months don't two detectives came back to my house one day,
said mister dunfar as we concerned. This case is closed
because we can't find anything. I said, all right, right,
at this point, Litha and Jama are saying that you
hadn't touched him, that they had heard him fall down
(10:03):
the stairs and had come rushing out to see what
the commotion was, and hadn't witnessed any beating after that,
even the autopsy hadn't ruled that the cause of death
was homicide, but rather the cause of death was deemed uncertain.
So for all of the reasons I just mentioned, signs
pointed clearly to an unfortunate accident. But the chief Deputy
(10:24):
prosecuting Attorney, Vicky Becker, wasn't taking that as an answer.
I say, maybe six months after that, she put us
somebody else on the case. He brings me downtown and
we saw the same thing in Andy roy or Atlanta,
Canan's case, where after their case when cold, a new
detective was assigned to close it. And again, just like Andy,
they tried to get a confession out of you. He's
(10:46):
the one that started pushing the issue. Oh you hitting,
you did this, you did that? Just you know you
kicked him? You did that? I said, man, I don't
know what you're talking about. Any did nothing. He said, well,
what if we got a witness this says that you
kicked him. I said, well, your witness is lying. He said,
well today you're going home, he said, but I want
you to know it. We're still on this. So I
guess at the same time where they were bringing me,
(11:07):
I guess they were bringing at leasting them in. And
that's who he was really trying to press her. She said.
The officer told her that you know the Wayne kicked him.
You know the Wayne hit him, don't you? And she
said when they've kept pressing her so tough that she
went on and said it. She said what he told
her to say. She even said it at the trial.
I believe that's how they got the warm. Now they
(11:28):
had enough to get in a rest warrant, but they
needed to find some way to support what they knew
was a shaky and patently false statement. I mean, Lipa
eventually went on to recant a trial. So now we
see another move that we've seen before in Elkhart and
Andy Royer's case, when the Indiana Police Lab wasn't giving
Vicky Becker the fingerprint analysis that she wanted, so she
(11:49):
tapped fingerprint analysis known fingerprint analysis fraud David Chapman for
a second opinion. In this case, the person who had
performed the original autopsy, doctor Blair Trencat, had the cause
of death uncertain, not a homicide, so they fished around
for two years to find a second opinion, or rather
an opinion they liked from doctor Scott Wagner. He said
(12:11):
it was a homicide, but all he ever seen was
to pictures. He never looked at the body or anything.
Doctor Wagner agreed that the cause of death was blunt
for it's trauma, and that mister Torres had died as
a result of skull fractures and other injuries. Where he
disagreed with doctor Tranca is that whereas doctor Tranca said
that the manner of death couldn't be determined because he
(12:34):
didn't know whether it was a fall or whether mister
Torres had been injured at the bottom of the staircase.
Doctor Wagner was certain that mister Torres had been injured
at the bottom of the staircase. The staircase at Duane's
place was about six seven feet down to the pavement,
and doctor Wagner didn't believe that the injuries suffered by
mister Torres could have been caused by a fall down
(12:58):
a staircase of that length. He thought the injuries were
so severe they must have been caused by a beating.
So he determined that the manner of death was homicide.
But when I kept trying to tell them, and it's
flaying to him that when he slipped, he tumbled at
least twice. He took head over foot at least twice
before he hit the grim. I mean mister Torres suffered
(13:19):
severe injuries. There was no doubt about that. But there
was an explanation, There was a scientific, medical explanation for
why those injuries were so serious, and they were due
to the condition of mister Torres. He was out of shape,
he was an alcoholic, he had a pacemaker, His bones
were weak, he bled easily, his liver was susceptible to
(13:40):
being injured because it was so swollen from the alcoholism,
and a fall down even a short staircase can cause
really severe injuries, especially to someone who's susceptible to injuries
like mister Torres was, and the nature of the injuries
were such that they looked like they had been caused
by a fall. They weren't consistent with a beating, Dwayne,
did you know now they had what they needed to
(14:02):
get a conviction. Yeah. I remember the morning that they
came to the door. I get ready to go to
work and knock came on the door. My brother went
and get it. He said. The police come to the
door and they said, Dway, ain't done here. He said, bro,
they're looking for you. I said, open the door to
let him in. I ain't did none. So he came
to the the door, said you, Dwayne. He said, well, I
need you to step outside, sail. We got a warrant
for your arrest. I said, a warrant A warrant for
(14:23):
what he said, murder? I said, oh my god, turn
around and put my hands up, company putting me in
the car. So you were charged with first degree murder
and awaited trial in jail. For nine long months, and
you were assigned Cliff Williams, the chief public defender for
Elkhart County. I don't think much of anything was done
(14:44):
for Dwayne in terms of investigation prior to going to trial,
and in fact, Cliff Williams, there's a lot he could
have done that he did not do. And the trial
started on the Monday. He came to see me on
that Friday. This was one of only two times he
came to see me the whole time I was in
the jail. And then he was tell me that he's
going to prepare over the weekend, and he had another
attorney with him. She was as assistant. I don't remember
(15:06):
her name, but she was there. So we were talking
and he was talking about what the state's gonna have experts.
We're gonna let them talk. I'm not gonna question him
too much. I kept looking at him and I'm like, man,
And she asked him, well, why don't we have experts,
and then he looked at her and told her something
to do with the money or something like that. I
looked like, man, hold up, wait a minute, you be
telling me who's going to testify on my side? He said, well, right,
(15:28):
now this is just gonna be us. I looked at
him and I'm like, oh my god, We're gonna take
a quick break and we'll be right back. The Pacers
Foundation is a proud supporter of this episode of Rawful Conviction,
(15:48):
the end of the Last Mile organization, which provides business
and tech training to help incarcerated individuals successfully and permanently
re enter the workforce. The Pacers Foundation is committed to
improving the lives of Hoosiers across Indiana, supporting organizations that
are dedicated primarily to helping young people and students. For
more information on the work of the Pacers Foundation or
(16:09):
the Last Mile Program, visit Pacers Foundation dot org or
the Last Mile dot org. So all you've got is
your girlfriend and her son, and we know, and listeners
of the show know that loved ones are usually explained
(16:30):
or rationalized away very easily by the state, So it
almost sounds like he planned on losing, so that process.
The trial began in January twenty eleven in front of
Judge Terry Shoemaker. The prosecution presented the questionable second opinion
of doctor Wagner and then a guy named Dean Marx
as well Dean Marx is a blood spatter expert, and
(16:53):
he testified that there were numerous areas of blood spatter
at the scene and that some of that blood spatter
had been caused by cast off, meaning that there was
an object that had blood on it that had been swung,
and that the blood had been cast off of this
object and landed on different surfaces side of the building,
(17:16):
a car, and that indicated that mister Torres had been
killed with a blunt object and that the blood spatter
the scene was caused by the swinging of this object.
And the state conceded at trial that the baseball bat
was not the weapon that had been used because there
was no blood on the baseball bat. And as we
(17:38):
now know, blood spatter analysis has been totally debunked as
what it is, which is junk science. It's not science
at all. In fact, we did a deep dive into
this kind of quote unquote evidence and testimony in our
podcast Wrongful Conviction Junk Science, which of course was hosted
by the great Josh Dubin. So we'll have a linked
in the bio in which you'll find out that most
(17:58):
of these quote unquote the lists are other cops who
have taken just a forty hour course, yes you heard
that right, a forty hour course about how to testify
convincingly about the fluid dynamics of blood, a subject that
they don't know shit about nothing. So it's like almost
like an acting course more than anything else. It would
be laughable if it wasn't so sinister. But then you
(18:21):
have to keep in mind we talked about this previously,
but at the scene, there are pools of blood near
mister Torres's body, and multiple people are stepping in these
pools and they're causing blood to splash, They're getting blood
on their shoes, which is then being cast off as
they walk. Numerous people, paramedics, police officers, maybe even Duane
(18:44):
when he was trying to help mister Torres at the
bottom of the staircase. And as this progresses, and as
the investigation continues, immediately after, it begins to rain. So
now you've got rain and the rain drops are coming down,
and any one of these things could have caused the spatter,
and Marx did not consider any of that in his testimony.
(19:07):
And unfortunately, most people serving on a jury are going
to be unaware that this so called expert was merely
jumping to conclusions and not ruling out all of these
other possibilities. Instead, this expert was only an expert in
testifying or testi lying. Let's call it what it is,
to whatever the state's theory was, and it'll become clear
(19:28):
that Wagner was no different. Yet, this really was all
they had against the word of what unfortunately can be
considered two interested parties. So what did Litha and Willie
say on the stand? Willie testified that he had seen
mister Torres go after Duayne with the baseball bat, and
(19:50):
that Duyne was defending himself, and that during this struggle,
mister Torres lost his balance and fell backwards down the steps,
and as he was falling, his back hit the banister
of the steps, and he sort of flipped over and
landed on the pavement at the bottom of the staircase.
(20:13):
Letha testified that she heard the commotion. She comes out
of the apartment and she's standing on the balcony and
she sees mister Torres at the bottom of the staircase,
and she sees Dwayne trying to help mister Torres and
trying to help him up to his feet, and neither
one of them ever, testified that they saw Dwayne striking
(20:37):
mister Torres while he was laying on the pavement. They
didn't see anything other than Dwayne trying to help mister
Torres after he fell down the steps. And not only
did they corroborate Dwayne's virtual events, but also Leva testified
that the detective had bullied her into saying Dwayne was
guilty just in order to get the arrestaurant. And Cliff
Williams did, in fact point that out. Yeah, So he said, now,
(20:58):
you said, the detective did forced you and made you
say that is he here? And she said, yeah, she
pointed him out. But the jury, I guess they just
overlooked it. So it appears mister William's efforts were just
not enough. You have two lay people who are not scientists,
testifying about what they saw, and the state has two
experts with all sorts of degrees and training going to
(21:20):
testify that this was a homicide. You can't take the
risk of the jury believing the experts over the lay people.
You have to prepare the case such that you have
your own experts. Then you can combine the eyewitness testimony
with the expert testimony and have a full defense. And
the only party that had expert testimony was the state,
(21:40):
And unfortunately he was facing Vickie Becker, who was willing
to go even farther than that. There was a line
that the prosecutor used in their closing argument to the
jury in which they were referring to Litha and Jamar
and their testimonies, and the prosecutor said to the jury,
you don't find swans in a sewer. Wow, not only
had one of your friends died, but now you your girlfriend,
(22:05):
life partner, and young Willie. All black people were being
called by this white prosecutor human waste, certainly not swans
in her telling, white as a driven snow. And she
said this just as the jury was sent out to deliberate.
So what was it like when they came back in. Well,
at first I kind of looked at him, and then
(22:28):
I kind of had that feeling like, man, they're getting
ready to come back with a guilty verdict. They sentenced
me to fifty eight years. First time I've ever been
in prison, almost fifty years old. I'm here, I am
on my way to prison, and I couldn't wonder when
my mother was thinking my kids were thinking, I mean,
I mean, and they talked about me bad on TV,
(22:49):
the news. I mean, it's like I was somewhere a murderer.
Then the newspapers talking like, oh, I didn't rob him
and beat him and did all this. I ain't never
even touched him, man, And now I'm going to prison.
But you didn't take this lying down. From what I understand,
just like on the outside, you went to work. You're
a worker, that's what you've always done, and now you
had your life at stake. So I had to learn
(23:10):
how to do the law work, learned how to look
up law, how to look up cases, because I couldn't
let that go. I kept thinking in my mind, man,
I can't let them get away with this. You know
this can't happen like this. So I just went to work.
I had an attorney in mister Walker. She did the
direct appeal, but she'd already told me that if you
don't have something blunt that just turned around, it's gonna
you know, a smack them in the face. That they're
(23:32):
going to shoot that down. And they did. And it's
worth noting that the hearing was held in front of
the same judge, Terry Shoemaker. So now the appeal moved
on from direct appeal to state post conviction, and Dwayne,
you were working on your own at that point, filing
your own motions before John got involved. So my best
issue was their expert witness. Why didn't I have an
(23:54):
expert witness? And in the jury. To me, it wasn't
a fair jury. Now I'm a black man, nell cart,
Why an't there any black jurors? There were forty nine
perspective jurors and there was only one black juror. When
they got to the black juror, Shoemaker struck him down,
the judge himself because he said he knew him when
he was a prosecutor. So now I'm looking up dear me,
(24:14):
I'm like, man, this can't be right. It can't be fair.
And while that is a very important issue, one of
the crux of so much of the injustice in our system,
it can be very difficult to get traction in court.
Rather than the ineffectiveness of your trial counsel, which John
latched onto when the case fell on his desk. And
John finally did what your trial attorney simply did not,
which was to look for a forensic pathologist who was
(24:36):
not part of the Elkhart machine to review the case,
and I found someone affrins of pathologist by the name
of doctor Thomas Sozio. He was unequivocal that all of
the injuries suffered by mister Torres had been caused by
a fall down the steps. He knew from the witness
testimony that there had been an altercation. He didn't know
(24:59):
f mister Torres had lost his balance and fallen down
the steps. He didn't know if mister Torres had been
pushed down the steps, but he knew that the injuries
that mister Torres suffered had been caused by the fall,
not by a beating. And he knew that for several reasons.
Number one, all of mister Torres's injuries occurred in a
(25:20):
straight line across his body. So the skull fractures, the
broken shoulder, the broken ribs, the lacerated liver all occurred
in a straight line down his body. And to doctor Sosio,
that indicated that all of those injuries had occurred when
that side of mister Torres's body hit the pavement. If
(25:42):
mister Torres had been beaten with a blunt object, doctor
Sosio would have expected to see injuries on various parts
of his body, not in a line, but more random,
you know, as if someone had hit him in his
head there, hit him in his there. When someone is
beaten with an object, you don't see all of the
(26:03):
injuries in a straight line across the body. They're more
varied across the body. In addition to that, though, there
were even more reasons, which we mentioned earlier, that the
States expert doctor Wagner hadn't considered or just you know,
put blinders on and ignored the level of alcohol that
was in mister Torres' system. The alcoholism long term had
(26:25):
made mister Torres susceptible to severe injuries. It had caused osteoporosis,
which made his bones more susceptible to breaking. It had
caused his liver to be enlarged and more susceptible to damage.
There was only one laceration on the skull, which is
consistent with a fall. If mister Torres had been beat
with a bat, doctor Sosio would have expected to see
(26:47):
more lacerations on the skull. And so for all of
those reasons, doctor Sosio was adamant that his death and
his injuries had been caused by fall, not by a beating,
So you guys were able to get an evidentiary hearing.
You got an expert whose summation destroyed the state's case.
And by now, of course, it's all the way up
to twenty seventeen, and Blood's batter analysis had been fully
(27:12):
debunked and exposed as a junk science, and Judge Shoemaker
had retired, so he was out of the way. The
new judge who had been elected to take Judge Shoemaker's place,
had been a public defender in prior practice, and so
I was cautiously optimistic that the new judge was going
to give us a fair shake. But when we arrived
at the hearing date, the new judge was away at
(27:34):
the new judge training session, and so much to my surprise,
the hearing starts, courts called to order and Judge Shoemaker
walks out from the chambers and sits down on the bench.
And that was an unpleasant surprise as far as I
was concerned. Yeah, unpleasant to say the least. I mean,
he ruled that you failed to establish that this new
evidence would have changed the outcome at trial, and the
(27:56):
Indiana Court of Appeals upheld the decision even though this
testimony refuted the state's case. During the trial, there was
no time that they heard anything like that. They were
always kept hearing beating, beating, beating, beating. And the thing
that we needed, all we needed was one juror. So
who's to say what one juror would have said? Right? So,
(28:19):
the question is not does this new evidence prove that
the jury would have acquitted Dwayne? The question is whether
it's there's a reasonable probability that this evidence would have
made a difference to at least one juror. So. Judge
Shoemaker in the Indiana Court of Appeals were applying a
much more stringent standard than what the law calls for.
Not only that, but Shoemaker also stuck his head right
(28:41):
in the sand when Cliff Williams took the stand to
admit his ineffectiveness. Cliff Williams was still with us at
the time that we presented our case to Judge Shoemaker,
and he testified that he never deposed the state's experts,
he never tried to consult with an expert of his own,
and he didn't have any reasons for that. It wasn't
(29:02):
a matter of strategy. It was just something that he
had overlooked and he admitted it. He admitted that he
had made a mistake. And that's something that Judge Shoemaker
in the Indiana courts paid insufficient attention to, and it's
something that the federal courts really relied on. So now
now you had to file your federal habas appeal in
twenty eighteen, and you finally didn't have to deal with
Shoemaker anymore. I said, well, maybe we can get a
(29:24):
break now now that we're not in front of him.
It's out of his court and it's out the Elkhart period.
And what you have to remember is that Duayane was
on his own. I don't practice in federal courts. Duyanne
was not represented by an attorney. He was representing himself,
and his federal habeas petition was dismissed as untimely. Duayne
(29:47):
by himself got it back on track, got his petition
back in front of district court judge. Then, working by himself,
he convinces the judge that he's entitled to a new
trial and that the Indian Accords have got it wrong.
He's not a lawyer, he's in prison. He's having to
do all this by mail, and he made it happen
(30:07):
for himself. This brings us up to December of twenty
twenty and you're going up in front of Judge Philip Simon.
Judge Simon reviews the case, everything you brought up in
(30:29):
your appeal and all the ways the trial went wrong,
which are considerable as we've already seen. And then on
top of that, he agrees that Judge Shoemaker applied the
wrong legal standard when he denied your petition for a
new trial. If you apply the right standard, it's pretty
clear the doctor Sozio's testimony there's a reasonable probability it
(30:50):
would have made a difference for the jury, and it
certainly shows that there was ineffective assistance of counsel in
Dwayne's case. So at this point things were finally starting
to look up, where yeah, man, I start to see
daylight again. I mean I might, I might have a chance.
But then you know, they got to go through the
peel process because they get the same They're saying, I
(31:12):
guess the same appeals that we do. So now I'm
going my way to the Seventh Circuit. And this is
where you got three judges, so I didn't know really
what to expect there. So when you know, I wouldn't
no federal lawyer, That's when Michael took over, and that
would be Michael Hossbrook, director of Indiana University Morror School
of Laws, Federal Habeas program, And as it happens, he's
(31:34):
right here with us today. Michael, it's about time. Welcome.
I'm so glad to welcome you to a wrongful conviction.
Thanks Jason. We also have Alex Doland, who at the
time was one of your law students, I understand, and
then went on to become a public defender. Alex. Welcome,
Thanks Jason. So let's pick up the story here with
you guys. It's twenty twenty and Dwayne is getting ready
(31:54):
to file his appeal, the federal habeas appeal. How did
you two get involved? It was sort of an inside job.
I get an RSS feed of everything that's filed in
the Southern and Northern districts of Indiana, and I look
at them every day. That's that's thirteen hundred filings, but
I know which are the habeas cases. And I saw
(32:16):
Judge Simon's order granting Dwayne relief and said to myself, well,
the state's going to appeal that, and I arranged for
the Seventh Circuit to appoint us in the case. Michael
called me not long after the Seventh Circuit had appointed
us and he told me, Hey, I have this case
and I want you to argue for it. And as
(32:37):
we went through it and I was reading everything about
Dwayne's case, I remember your thinking what an injustice it was,
and how frustrated I was, and how at that point
he was basically losing every step of the way in
the state courts due to some misapplication of the law,
misunderstanding of the facts. From the start, Cliff Williams, Dwayne's
(32:59):
try lawyer, misunderstood the case is being about the bat.
As we put in our brief, this case was never
about the bat. Then, one of the lines that sticks
with me from this case is doctor Socio on Cross
saying to me, it's a fall all day. And if
I could just talk about Dean Marx for a second
(33:20):
and sort of this category of what they call blood
splatter science. Dean Marx himself had actually been involved in
another wrongful conviction case of a man named David cam
from southern Indiana who was accused of murdering his wife
and his children. Mister cam had a significant defense, but
one of the reasons why he was convicted was this
(33:41):
testimony of a blood spladder expert, and Dean Marx was
on that panel of experts who made that determination. So
not only is this guy a junk scientist, but he's
actually been involved in a different case that there was
also a wrongful conviction. So Judge Simon absolutely dismantled in
his opinion the state's case against Dwayne and then Alex
(34:03):
in the Seventh Circuit. I mean, I cannot tell you
how terrific his preparation and presentation this was. He laid
out all the pieces of the state's dismantled case and
showed the Seventh Circuits that they could not be put
back together again. But Judge Kirsch, who dissented in the
Seventh Circuit opinion, was convinced that all the injuries to
(34:27):
Angel Torres were the result of a severe beating, and
he misunderstood the case. The state never argued that the
rib fractures and the damage to Torres's liver, for example,
were the result of a beating. The state's case was
only that he'd been hit over the head. So you
(34:49):
have Cliff Williams, he doesn't understand that it's not about
the bat. You have the Indiana Court of Appeals misunderstanding
what undetermined means. And then you have Judge Kirsch misunderstand
that this was a beating. There was one moment where
I got to very forcefully say no, no to him
misstating a fact. And you know, to me, from from
(35:15):
the public defender mindset, the best thing that I can
ever do for a client is pushed back when somebody
in authority is incorrect or attempting to violate my client's rights.
So after Alex gets up in front of the three
judge panel hardly all the points that we've been talking about, Dwayne,
(35:35):
you tell us what ultimately happens. We win, right, they
actually upheld Judge Simon's ruling. That's right that there should
have been another expert witness on our side. Did jury
should have heard you know something different? So you've had
your victory in the Seventh circum But now they have
an opportunity to take this to the US Supreme Court
or potentially retry Dwayne if they chose to. And again
(35:58):
this is Vicky Becker she'd been willing to do a lot,
and so they had sixty days to decide or you'd
be released, which would have been just before election day
twenty twenty two, when Becker was running unopposed, which, by
the way, someone needs to do something about that next
time around. Somebody's if you're out there and you're a
listener and you're a lawyer and you're thinking about running,
(36:20):
give us a call. At wrongful conviction, we got you.
But that's a topic for another time. The point is here,
she had nothing to lose or gain by releasing him
or choosing to retry you. I think it was Friday
afternoon before we were going to go up the following
Monday night, and I saw Vicky Becker at filed notice
(36:40):
they weren't going to reprosecute him. So here's two officers
come up to may Adore. I'm sitting in a sale.
They talking about pack up. I say, a pack up
for what you got to leave? You going? I say,
going where? And they wouldn't say nothing. So I said, well, man,
don't you touch nothing in the sale. So I go
down talk to the sergeant. I said, where am I going?
He said, you're going home? I see it what I
(37:01):
said for real? He said, Yeah, you've been set free,
so you've only been out since just recently, November twenty
twenty two. How are things going for you. I understand
it's been a little rough finding work. Well, because that's
on my record. Seeing a lot of jobs out here now,
is that the decent ones? You got to get background checks.
(37:22):
And when they run the background check, the first thing
they go they see this sixty year old man that's
been out of work for so long, and Danny comes up.
He was convicted of murder. So that doesn't look good
on a background check. Well, maybe there's someone out there
listening who might have a job for you. What kind
of gear are you looking for? Well, anything in a factory, something,
you know, sudden positive, something to keep me busy right now,
(37:44):
just so I can get back on my feet. If
they're out there in the Solid Bent area, sure I'll
take to help. I'm not too proud to take anyhow great. Well, yeah,
if there's anyone out there listening who could put Dwayne
onto a job lead, we'd really appreciate it, of course.
And you know, one of our listeners, whatever, our avid listeners,
and one of our great sponsors is Stephen Simon of
the Indiana Pacers organization. He's one of the owners of
the team. And Steven, if you're listening, this is a
(38:07):
great guy here, you know, and maybe you have something
for him. So I'm talking directly to you, and yeah,
we appreciate everything you do for us, and we'll have
links to get in touch with Dwayne and our bio.
So thanks so much in advance. And now we come
to the part of the show that I love the most,
and of course it's called closing arguments, and this is
where I turn off my kick back in my chair,
close my eyes and just listen to whatever else you
(38:29):
all have to say. Let's kick it off with Michael
Osbrook and Alex Doland and then of course John Chennawith
and then to you, Dwayne. So Michael, why don't you
go first think what I want to say? And closing
is again, this should have ended in Judge Shoemaker's court
and the delay and getting Dwayne released is terrible, and
(38:54):
obviously we're incredibly happy it worked out the end, but
in a way it didn't to me. There are injustices
happening in trial courtrooms every day. As somebody who's been
at this trial level and has seen what goes on.
(39:16):
There might be dozens of people in courtrooms, hundreds of people,
thousands of people across the country who are going through
this process and are being wrongfully prosecuted ultimately convicted for
a crime they didn't commit. It's really important to be
vigilant about stuff like that. Any time that somebody's at
(39:38):
home and they're watching the news and they see somebody
accused of a terrible crime, my best piece of advice
is to never jump to conclusions. So I would just
encourage people to always have an open mind when somebody
is charged with the crime. Charges are not convictions, and
you never know if they have the right person or not,
(39:59):
so it's extreme important to be skeptical. I just want
to emphasize that Dwayne deserves all the credit in the
world for going into federal court by himself and winning
himself a new trial. I have all the admiration and
respect for what he did. You know, I have to
say that with Judge Simon made his decision and I
(40:21):
heard about it, I was thrilled for him, but at
the same time, it was sad to me that it
had taken so long. To get to that point. Justice
delayed is justice denied, and it's a continuing injustice that
Dwayne is having trouble finding work because of a conviction
for a crime that he's been exonerated of and that
(40:42):
never existed in the first place. First of all, I
just like to say thank you, man, just thank you
for this time, thank you for a chance for y'alla
give me a chance to say a little bit about
what happened. But a lot still needs to be done, man,
because there's a lot of guys that are still in
prison that it didn't commit a crime, that are just
as innocent as I was. And our justice system, manness,
(41:05):
it works for those that are capable and able to
get the right people to work with them. Other than that, man,
our system it's not right, man, it's not right because
they're putting people in prison. Some guys don't even get
a fair shape, just like what happened in my trial.
How many other people are in prison and locked up
because they didn't have an expert witness on their side.
(41:27):
And this is the reason why I say something needs
to be done. But I thank you for my time,
and I thank you, thank you for listening to Rawful
Conviction Special thanks to our wonderful production team Connor Hall,
Annie Chelsea, Jeff Clyburne and Kevin Wards, with research by
Lyla Robinson. The music in this production was supplied by
(41:50):
three time OSCAR nominated composer Jay Ralph. Make sure to
follow us on Instagram at Rawful Conviction, on Facebook at
Wrongful Conviction Podcast, and on Twitter at wrong Conviction, as
well as at Lava for Good. On all three platforms,
you can also follow on TikTok and Instagram at its
Jason Flam. Wrongful Conviction is a production of Lava for
(42:12):
Good Podcasts in association with Signal Company Number one
At ten pm on September third, two thousand and eight,
forty six year old Dwayne Dunn returned to his Elkhart,
Indiana apartment. He joined his girlfriend, Litha Sims, and their
next door neighbor, sixty year old Angel Torres, who were
having a few beers. The men's friendly conversation eventually turned
into an argument, and Angel pulled out a bat. It
should have ended when Duane and Litha left Angel's apartment,
(00:25):
but a few minutes later, Dwayne and Angel found each
other again on their shared second story deck, abutted by
a rickety set of stairs. Angel began swinging the bat
at Duane, who was overheard telling Angel to stop, just
before a series of audible thumps and thuds the sounds
of Angel falling down the stairs. Police soon arrived to
find Duane hovering over Angel as blood began to pool.
(00:48):
He was rushed to the hospital, where he succumbed to
his injuries a few days later. For two years, Duane
swore in police statements and again at trial that he
had neither pushed Angel Torres nor beaten at the bottom
of those stairs. Yet the state's expert witnesses disagreed. Which
appeared to be ironclad proof of Dwayne Dunn's guilt. But
(01:10):
this is wrongful conviction. Welcome back to ronful Conviction. Today,
we're gonna go back to Elkhart County, Indiana, a place
(01:31):
once known as the RV capital of the world, but
after what we've seen going on there, it could arguably
be called the per capita wrongful conviction capital of the world.
We're gonna link some of the Elkhart cases we've covered
so far in the episode bio. Not surprisingly, many of
the same bad actors and troubling patterns are present once
(01:51):
again in the case of Dwayne Dunn. And Dwayne, welcome
to the show. Thank you. You know you got caught
up in the Elkhard system, convicted for a murder that
never happened, Right, People always like roll their eyes, like,
what do you mean the crime never happened. It never happened.
A man named Angel Torres did, however, tragically lose his life.
That's true, but that tragedy did not need to be
(02:12):
compounded by yet another. And with us to cover this
crazy story is an Indiana Deputy State Public defender. Dwayne's
post conviction attorney, John Chennawith. So, John, welcome to the show.
Thank you, and John, You're not the only person responsible
for Dwayne's freedom, least of which is Dwayne, who had
done a lot of pro say litigant work on his own.
(02:33):
But we'll also be joined later on by two more
attorneys who fought for Dwayne in federal court, the director
of the Indiana University School of Law Federal habeas Project,
Michael Osbrook, and a public defender who was Michael's student
at the time, Alex Doland, who Michael had tapped to
handle oral arguments for Dwayne and ultimately was successful. So
we're looking forward to speaking with them as well. But
(02:53):
before we get into any of that, before your friend
Angel's tragic demise, Dwayne, you had been leading an honorable
life by anybody's definition, and you weren't originally from the
Elkhart area, right. I grew up in Inniapolis, went to
George Washington High School and liked it, playing football, fishing,
just stuff like that. Then I came to Elkhart later
(03:14):
after I graduated and come up to Elkhart to work
at the jobs. Back then, you can quit a job
and go get a job the same day. So you
were working in the RV industry. Yeah, RB trailers, tipping
and receiving all that forkliff. I used to move those
sidewalls for RBS. The big RBS used to move the walls,
the roof and the floors, all the just working and
(03:35):
raising my family. Yep, you and your girlfriend Leatha SAMs
were raising two kids. And so in two thousand and eight,
you're forty six years old and you're living an apartment
building in Elkhart and Angel Torres lived in the apartment
next door where both of your second story apartments shared
at deck and the same rickety set of stairs leading
up to or down from it. That's right, it's the
(03:56):
normal stair. It's like say, if you're going up to
a second floor apartment. But the railing was loose wooden stairs,
and you know, we was always putting something on because
we were scared for the little kids when they were
up there, that they were going to fall through the railing.
So I had to get some other kind of fencing
that put up through there, and the metal poles were broke.
Sounds pretty dicey, but okay, so you will you do guys? Friends?
(04:20):
Oh yeah, well, we used to hang out, sit out
on the porch, drink beer. Sometime I'll have cookouts. He
would come over sometime. He would cook come over, just
doing navally things okay, and so on this particular night,
the night of September thirty, two thousand and eight, what happened.
Went out to walk the dog and came back. It
was it was in the evening. It was late, probably
around ten, and for some reason I went over his
(04:42):
house and I don't know if he was just drunk
or what, and he got upset, got mad and asked
me to leave. So I left, and then he would
to go get his baseball bat of something. We tussled
a little while and I left went in the house.
For some reason. I just came back out on the
porch and yeah, I guess he seen me. He comes
out on the porch, he had the bat in his hand.
He reached and slapped me across the bat with the bat.
(05:05):
I said, man, you hit me with that bat again.
We're gonna have a problem. And he reached the go
hit again, and when I turned, he tumbled backwards down
the stairs. He hit his head a couple of times
going down the stairs. And when I seen him hit
the bottom. I was like, man, damn you all right?
And he didn't say nothing. So I walked down the
stairs to go check on him. And when I checked
(05:26):
on him, I was trying to step over the blood,
but it was not doctor do so I shook him
see if he had moved. He didn't move. I came
back upstairs. Lisa said, what happened? I said, he tumbled
down the stairs. He fell, and then Willie came out.
He got on the cell phone and he called the police.
And Willie as lead the Sun a teenager at the
time who also cased by the name of Jamar. So
(05:47):
then what happened? The man him walked down the stairs,
went around his body, and we stood on the street
and I checked on him a couple of times, and
then I would walk to the edge of the street
to see if the police were coming. One police offer
came ass and kept going, maybe another half a minute
or so later. Then one come up to side street.
He stopped and we waved him on. Then he came
(06:08):
and pored over. Then they went to check it on him,
asked me what was going on, what had happened? And
all this there and took pictures and all that so
when the police arrive at the scene, the paramedics are
called and mister Torres is taken to the hospital for treatment.
Some investigators from the police department arrive at the scene,
(06:28):
They take photos, they collect evidence. So he was very
severely injured and was taken off life support a couple
of days after he was taken to the hospital. Back
at the crime scene, the investigators when they first arrived
had found a baseball bat underneath mister Torres's body, which
(06:49):
they collected his evidence, and they spoke to the witnesses,
and they spoke to Dwayne. They found some blood spatter
at the scene which they photographed. Let's talk about out
that blood spatter. From what I've read about your case,
the States theory eventually became that Dwayne had beaten him
with an unknown object after the fall, and there were
what were categorized as cast off patterns on surrounding objects
(07:12):
and surfaces from the alleged repeated swings from this alleged
unidentified bludgeoning tool. Now, curiously, though there was no cast
off on your clothing, when any body would know the
most amateur sleuth in the world would know that you
would have been covered in blood had you repeatedly struck Angel,
But of course that was not the case, nothing like it.
(07:34):
They found a little bit of blood on Duyne's shoe
and a little bit of blood on the inside of
the shorts that you were wearing. Yeah, and there was
no doubt that Duayne had been at the bottom of
the staircase trying to help mister Torres, and mister Torres
was bleeding at that time, so if blood ended up
on Duayne, that would not have been surprising. So not
(07:55):
only is that blood easily explainable, but so are the
spatter patterns. And as it turns out, while Angel Torres's
blood was in fact pulling on the ground, quite a
few people had trampled through the scene. Yeah, the paramedics
walked through it, all the police were in it. They
took the baseball batters and picked it up and leaned
it up against the car. And the bat was the
(08:16):
only freaking thing they ever found. As we mentioned, it
was under his body with no spatter, and a thorough
search was conducted. There were no other implements on the scene.
So anyway, the police brought you in for questioning. The
first two detectives that were on the case They kept
me down there, and they went to every place I
told him I went. They went to go check and
(08:37):
they came back and they said all right. Then they
came back the next day. The clothes. They put it
all in bags and they said, well, we're going to
go sitting this to the lab and test it. I said,
no problem. And as we mentioned, there was a droplet
of Angel's blood discovered on your shoe and on the
inside the leg of your shorts, which was consistent with
you having entered the scene having tried to help your friend,
(08:59):
but definitely not consistent with multiple swings of a blunt
object and blood flying everywhere. In fact, you were the
only one, ironically, that was hit with a blunt object.
When they took Duyne in for questioning, they took photographs
of his body and they found injuries where Dwayne had
been hit by the baseball bat by mister Torres. They
(09:20):
found clear evidence that he had been struck at least
several times. Everything they found at the scene in terms
of the physical evidence, was matching up with what Duane
and Litha and Jamar were saying it happened. Now. The
police had also questioned Litha and her son, who were
the only two witnesses to what happened. What did they
tell the police? Nothing? That Dwayne never touched him, That
(09:41):
that was what was said. They investigated for a while,
but I say, maybe thirty forty days later, maybe two
months don't two detectives came back to my house one day,
said mister dunfar as we concerned. This case is closed
because we can't find anything. I said, all right, right,
at this point, Litha and Jama are saying that you
hadn't touched him, that they had heard him fall down
(10:03):
the stairs and had come rushing out to see what
the commotion was, and hadn't witnessed any beating after that,
even the autopsy hadn't ruled that the cause of death
was homicide, but rather the cause of death was deemed uncertain.
So for all of the reasons I just mentioned, signs
pointed clearly to an unfortunate accident. But the chief Deputy
(10:24):
prosecuting Attorney, Vicky Becker, wasn't taking that as an answer.
I say, maybe six months after that, she put us
somebody else on the case. He brings me downtown and
we saw the same thing in Andy roy or Atlanta,
Canan's case, where after their case when cold, a new
detective was assigned to close it. And again, just like Andy,
they tried to get a confession out of you. He's
(10:46):
the one that started pushing the issue. Oh you hitting,
you did this, you did that? Just you know you
kicked him? You did that? I said, man, I don't
know what you're talking about. Any did nothing. He said, well,
what if we got a witness this says that you
kicked him. I said, well, your witness is lying. He said,
well today you're going home, he said, but I want
you to know it. We're still on this. So I
guess at the same time where they were bringing me,
(11:07):
I guess they were bringing at leasting them in. And
that's who he was really trying to press her. She said.
The officer told her that you know the Wayne kicked him.
You know the Wayne hit him, don't you? And she
said when they've kept pressing her so tough that she
went on and said it. She said what he told
her to say. She even said it at the trial.
I believe that's how they got the warm. Now they
(11:28):
had enough to get in a rest warrant, but they
needed to find some way to support what they knew
was a shaky and patently false statement. I mean, Lipa
eventually went on to recant a trial. So now we
see another move that we've seen before in Elkhart and
Andy Royer's case, when the Indiana Police Lab wasn't giving
Vicky Becker the fingerprint analysis that she wanted, so she
(11:49):
tapped fingerprint analysis known fingerprint analysis fraud David Chapman for
a second opinion. In this case, the person who had
performed the original autopsy, doctor Blair Trencat, had the cause
of death uncertain, not a homicide, so they fished around
for two years to find a second opinion, or rather
an opinion they liked from doctor Scott Wagner. He said
(12:11):
it was a homicide, but all he ever seen was
to pictures. He never looked at the body or anything.
Doctor Wagner agreed that the cause of death was blunt
for it's trauma, and that mister Torres had died as
a result of skull fractures and other injuries. Where he
disagreed with doctor Tranca is that whereas doctor Tranca said
that the manner of death couldn't be determined because he
(12:34):
didn't know whether it was a fall or whether mister
Torres had been injured at the bottom of the staircase.
Doctor Wagner was certain that mister Torres had been injured
at the bottom of the staircase. The staircase at Duane's
place was about six seven feet down to the pavement,
and doctor Wagner didn't believe that the injuries suffered by
mister Torres could have been caused by a fall down
(12:58):
a staircase of that length. He thought the injuries were
so severe they must have been caused by a beating.
So he determined that the manner of death was homicide.
But when I kept trying to tell them, and it's
flaying to him that when he slipped, he tumbled at
least twice. He took head over foot at least twice
before he hit the grim. I mean mister Torres suffered
(13:19):
severe injuries. There was no doubt about that. But there
was an explanation, There was a scientific, medical explanation for
why those injuries were so serious, and they were due
to the condition of mister Torres. He was out of shape,
he was an alcoholic, he had a pacemaker, His bones
were weak, he bled easily, his liver was susceptible to
(13:40):
being injured because it was so swollen from the alcoholism,
and a fall down even a short staircase can cause
really severe injuries, especially to someone who's susceptible to injuries
like mister Torres was, and the nature of the injuries
were such that they looked like they had been caused
by a fall. They weren't consistent with a beating, Dwayne,
did you know now they had what they needed to
(14:02):
get a conviction. Yeah. I remember the morning that they
came to the door. I get ready to go to
work and knock came on the door. My brother went
and get it. He said. The police come to the
door and they said, Dway, ain't done here. He said, bro,
they're looking for you. I said, open the door to
let him in. I ain't did none. So he came
to the the door, said you, Dwayne. He said, well, I
need you to step outside, sail. We got a warrant
for your arrest. I said, a warrant A warrant for
(14:23):
what he said, murder? I said, oh my god, turn
around and put my hands up, company putting me in
the car. So you were charged with first degree murder
and awaited trial in jail. For nine long months, and
you were assigned Cliff Williams, the chief public defender for
Elkhart County. I don't think much of anything was done
(14:44):
for Dwayne in terms of investigation prior to going to trial,
and in fact, Cliff Williams, there's a lot he could
have done that he did not do. And the trial
started on the Monday. He came to see me on
that Friday. This was one of only two times he
came to see me the whole time I was in
the jail. And then he was tell me that he's
going to prepare over the weekend, and he had another
attorney with him. She was as assistant. I don't remember
(15:06):
her name, but she was there. So we were talking
and he was talking about what the state's gonna have experts.
We're gonna let them talk. I'm not gonna question him
too much. I kept looking at him and I'm like, man,
And she asked him, well, why don't we have experts,
and then he looked at her and told her something
to do with the money or something like that. I
looked like, man, hold up, wait a minute, you be
telling me who's going to testify on my side? He said, well, right,
(15:28):
now this is just gonna be us. I looked at
him and I'm like, oh my god, We're gonna take
a quick break and we'll be right back. The Pacers
Foundation is a proud supporter of this episode of Rawful Conviction,
(15:48):
the end of the Last Mile organization, which provides business
and tech training to help incarcerated individuals successfully and permanently
re enter the workforce. The Pacers Foundation is committed to
improving the lives of Hoosiers across Indiana, supporting organizations that
are dedicated primarily to helping young people and students. For
more information on the work of the Pacers Foundation or
(16:09):
the Last Mile Program, visit Pacers Foundation dot org or
the Last Mile dot org. So all you've got is
your girlfriend and her son, and we know, and listeners
of the show know that loved ones are usually explained
(16:30):
or rationalized away very easily by the state, So it
almost sounds like he planned on losing, so that process.
The trial began in January twenty eleven in front of
Judge Terry Shoemaker. The prosecution presented the questionable second opinion
of doctor Wagner and then a guy named Dean Marx
as well Dean Marx is a blood spatter expert, and
(16:53):
he testified that there were numerous areas of blood spatter
at the scene and that some of that blood spatter
had been caused by cast off, meaning that there was
an object that had blood on it that had been swung,
and that the blood had been cast off of this
object and landed on different surfaces side of the building,
(17:16):
a car, and that indicated that mister Torres had been
killed with a blunt object and that the blood spatter
the scene was caused by the swinging of this object.
And the state conceded at trial that the baseball bat
was not the weapon that had been used because there
was no blood on the baseball bat. And as we
(17:38):
now know, blood spatter analysis has been totally debunked as
what it is, which is junk science. It's not science
at all. In fact, we did a deep dive into
this kind of quote unquote evidence and testimony in our
podcast Wrongful Conviction Junk Science, which of course was hosted
by the great Josh Dubin. So we'll have a linked
in the bio in which you'll find out that most
(17:58):
of these quote unquote the lists are other cops who
have taken just a forty hour course, yes you heard
that right, a forty hour course about how to testify
convincingly about the fluid dynamics of blood, a subject that
they don't know shit about nothing. So it's like almost
like an acting course more than anything else. It would
be laughable if it wasn't so sinister. But then you
(18:21):
have to keep in mind we talked about this previously,
but at the scene, there are pools of blood near
mister Torres's body, and multiple people are stepping in these
pools and they're causing blood to splash, They're getting blood
on their shoes, which is then being cast off as
they walk. Numerous people, paramedics, police officers, maybe even Duane
(18:44):
when he was trying to help mister Torres at the
bottom of the staircase. And as this progresses, and as
the investigation continues, immediately after, it begins to rain. So
now you've got rain and the rain drops are coming down,
and any one of these things could have caused the spatter,
and Marx did not consider any of that in his testimony.
(19:07):
And unfortunately, most people serving on a jury are going
to be unaware that this so called expert was merely
jumping to conclusions and not ruling out all of these
other possibilities. Instead, this expert was only an expert in
testifying or testi lying. Let's call it what it is,
to whatever the state's theory was, and it'll become clear
(19:28):
that Wagner was no different. Yet, this really was all
they had against the word of what unfortunately can be
considered two interested parties. So what did Litha and Willie
say on the stand? Willie testified that he had seen
mister Torres go after Duayne with the baseball bat, and
(19:50):
that Duyne was defending himself, and that during this struggle,
mister Torres lost his balance and fell backwards down the steps,
and as he was falling, his back hit the banister
of the steps, and he sort of flipped over and
landed on the pavement at the bottom of the staircase.
(20:13):
Letha testified that she heard the commotion. She comes out
of the apartment and she's standing on the balcony and
she sees mister Torres at the bottom of the staircase,
and she sees Dwayne trying to help mister Torres and
trying to help him up to his feet, and neither
one of them ever, testified that they saw Dwayne striking
(20:37):
mister Torres while he was laying on the pavement. They
didn't see anything other than Dwayne trying to help mister
Torres after he fell down the steps. And not only
did they corroborate Dwayne's virtual events, but also Leva testified
that the detective had bullied her into saying Dwayne was
guilty just in order to get the arrestaurant. And Cliff
Williams did, in fact point that out. Yeah, So he said, now,
(20:58):
you said, the detective did forced you and made you
say that is he here? And she said, yeah, she
pointed him out. But the jury, I guess they just
overlooked it. So it appears mister William's efforts were just
not enough. You have two lay people who are not scientists,
testifying about what they saw, and the state has two
experts with all sorts of degrees and training going to
(21:20):
testify that this was a homicide. You can't take the
risk of the jury believing the experts over the lay people.
You have to prepare the case such that you have
your own experts. Then you can combine the eyewitness testimony
with the expert testimony and have a full defense. And
the only party that had expert testimony was the state,
(21:40):
And unfortunately he was facing Vickie Becker, who was willing
to go even farther than that. There was a line
that the prosecutor used in their closing argument to the
jury in which they were referring to Litha and Jamar
and their testimonies, and the prosecutor said to the jury,
you don't find swans in a sewer. Wow, not only
had one of your friends died, but now you your girlfriend,
(22:05):
life partner, and young Willie. All black people were being
called by this white prosecutor human waste, certainly not swans
in her telling, white as a driven snow. And she
said this just as the jury was sent out to deliberate.
So what was it like when they came back in. Well,
at first I kind of looked at him, and then
(22:28):
I kind of had that feeling like, man, they're getting
ready to come back with a guilty verdict. They sentenced
me to fifty eight years. First time I've ever been
in prison, almost fifty years old. I'm here, I am
on my way to prison, and I couldn't wonder when
my mother was thinking my kids were thinking, I mean,
I mean, and they talked about me bad on TV,
(22:49):
the news. I mean, it's like I was somewhere a murderer.
Then the newspapers talking like, oh, I didn't rob him
and beat him and did all this. I ain't never
even touched him, man, And now I'm going to prison.
But you didn't take this lying down. From what I understand,
just like on the outside, you went to work. You're
a worker, that's what you've always done, and now you
had your life at stake. So I had to learn
(23:10):
how to do the law work, learned how to look
up law, how to look up cases, because I couldn't
let that go. I kept thinking in my mind, man,
I can't let them get away with this. You know
this can't happen like this. So I just went to work.
I had an attorney in mister Walker. She did the
direct appeal, but she'd already told me that if you
don't have something blunt that just turned around, it's gonna
you know, a smack them in the face. That they're
(23:32):
going to shoot that down. And they did. And it's
worth noting that the hearing was held in front of
the same judge, Terry Shoemaker. So now the appeal moved
on from direct appeal to state post conviction, and Dwayne,
you were working on your own at that point, filing
your own motions before John got involved. So my best
issue was their expert witness. Why didn't I have an
(23:54):
expert witness? And in the jury. To me, it wasn't
a fair jury. Now I'm a black man, nell cart,
Why an't there any black jurors? There were forty nine
perspective jurors and there was only one black juror. When
they got to the black juror, Shoemaker struck him down,
the judge himself because he said he knew him when
he was a prosecutor. So now I'm looking up dear me,
(24:14):
I'm like, man, this can't be right. It can't be fair.
And while that is a very important issue, one of
the crux of so much of the injustice in our system,
it can be very difficult to get traction in court.
Rather than the ineffectiveness of your trial counsel, which John
latched onto when the case fell on his desk. And
John finally did what your trial attorney simply did not,
which was to look for a forensic pathologist who was
(24:36):
not part of the Elkhart machine to review the case,
and I found someone affrins of pathologist by the name
of doctor Thomas Sozio. He was unequivocal that all of
the injuries suffered by mister Torres had been caused by
a fall down the steps. He knew from the witness
testimony that there had been an altercation. He didn't know
(24:59):
f mister Torres had lost his balance and fallen down
the steps. He didn't know if mister Torres had been
pushed down the steps, but he knew that the injuries
that mister Torres suffered had been caused by the fall,
not by a beating. And he knew that for several reasons.
Number one, all of mister Torres's injuries occurred in a
(25:20):
straight line across his body. So the skull fractures, the
broken shoulder, the broken ribs, the lacerated liver all occurred
in a straight line down his body. And to doctor Sosio,
that indicated that all of those injuries had occurred when
that side of mister Torres's body hit the pavement. If
(25:42):
mister Torres had been beaten with a blunt object, doctor
Sosio would have expected to see injuries on various parts
of his body, not in a line, but more random,
you know, as if someone had hit him in his
head there, hit him in his there. When someone is
beaten with an object, you don't see all of the
(26:03):
injuries in a straight line across the body. They're more
varied across the body. In addition to that, though, there
were even more reasons, which we mentioned earlier, that the
States expert doctor Wagner hadn't considered or just you know,
put blinders on and ignored the level of alcohol that
was in mister Torres' system. The alcoholism long term had
(26:25):
made mister Torres susceptible to severe injuries. It had caused osteoporosis,
which made his bones more susceptible to breaking. It had
caused his liver to be enlarged and more susceptible to damage.
There was only one laceration on the skull, which is
consistent with a fall. If mister Torres had been beat
with a bat, doctor Sosio would have expected to see
(26:47):
more lacerations on the skull. And so for all of
those reasons, doctor Sosio was adamant that his death and
his injuries had been caused by fall, not by a beating,
So you guys were able to get an evidentiary hearing.
You got an expert whose summation destroyed the state's case.
And by now, of course, it's all the way up
to twenty seventeen, and Blood's batter analysis had been fully
(27:12):
debunked and exposed as a junk science, and Judge Shoemaker
had retired, so he was out of the way. The
new judge who had been elected to take Judge Shoemaker's place,
had been a public defender in prior practice, and so
I was cautiously optimistic that the new judge was going
to give us a fair shake. But when we arrived
at the hearing date, the new judge was away at
(27:34):
the new judge training session, and so much to my surprise,
the hearing starts, courts called to order and Judge Shoemaker
walks out from the chambers and sits down on the bench.
And that was an unpleasant surprise as far as I
was concerned. Yeah, unpleasant to say the least. I mean,
he ruled that you failed to establish that this new
evidence would have changed the outcome at trial, and the
(27:56):
Indiana Court of Appeals upheld the decision even though this
testimony refuted the state's case. During the trial, there was
no time that they heard anything like that. They were
always kept hearing beating, beating, beating, beating. And the thing
that we needed, all we needed was one juror. So
who's to say what one juror would have said? Right? So,
(28:19):
the question is not does this new evidence prove that
the jury would have acquitted Dwayne? The question is whether
it's there's a reasonable probability that this evidence would have
made a difference to at least one juror. So. Judge
Shoemaker in the Indiana Court of Appeals were applying a
much more stringent standard than what the law calls for.
Not only that, but Shoemaker also stuck his head right
(28:41):
in the sand when Cliff Williams took the stand to
admit his ineffectiveness. Cliff Williams was still with us at
the time that we presented our case to Judge Shoemaker,
and he testified that he never deposed the state's experts,
he never tried to consult with an expert of his own,
and he didn't have any reasons for that. It wasn't
(29:02):
a matter of strategy. It was just something that he
had overlooked and he admitted it. He admitted that he
had made a mistake. And that's something that Judge Shoemaker
in the Indiana courts paid insufficient attention to, and it's
something that the federal courts really relied on. So now
now you had to file your federal habas appeal in
twenty eighteen, and you finally didn't have to deal with
Shoemaker anymore. I said, well, maybe we can get a
(29:24):
break now now that we're not in front of him.
It's out of his court and it's out the Elkhart period.
And what you have to remember is that Duayane was
on his own. I don't practice in federal courts. Duyanne
was not represented by an attorney. He was representing himself,
and his federal habeas petition was dismissed as untimely. Duayne
(29:47):
by himself got it back on track, got his petition
back in front of district court judge. Then, working by himself,
he convinces the judge that he's entitled to a new
trial and that the Indian Accords have got it wrong.
He's not a lawyer, he's in prison. He's having to
do all this by mail, and he made it happen
(30:07):
for himself. This brings us up to December of twenty
twenty and you're going up in front of Judge Philip Simon.
Judge Simon reviews the case, everything you brought up in
(30:29):
your appeal and all the ways the trial went wrong,
which are considerable as we've already seen. And then on
top of that, he agrees that Judge Shoemaker applied the
wrong legal standard when he denied your petition for a
new trial. If you apply the right standard, it's pretty
clear the doctor Sozio's testimony there's a reasonable probability it
(30:50):
would have made a difference for the jury, and it
certainly shows that there was ineffective assistance of counsel in
Dwayne's case. So at this point things were finally starting
to look up, where yeah, man, I start to see
daylight again. I mean I might, I might have a chance.
But then you know, they got to go through the
peel process because they get the same They're saying, I
(31:12):
guess the same appeals that we do. So now I'm
going my way to the Seventh Circuit. And this is
where you got three judges, so I didn't know really
what to expect there. So when you know, I wouldn't
no federal lawyer, That's when Michael took over, and that
would be Michael Hossbrook, director of Indiana University Morror School
of Laws, Federal Habeas program, And as it happens, he's
(31:34):
right here with us today. Michael, it's about time. Welcome.
I'm so glad to welcome you to a wrongful conviction.
Thanks Jason. We also have Alex Doland, who at the
time was one of your law students, I understand, and
then went on to become a public defender. Alex. Welcome,
Thanks Jason. So let's pick up the story here with
you guys. It's twenty twenty and Dwayne is getting ready
(31:54):
to file his appeal, the federal habeas appeal. How did
you two get involved? It was sort of an inside job.
I get an RSS feed of everything that's filed in
the Southern and Northern districts of Indiana, and I look
at them every day. That's that's thirteen hundred filings, but
I know which are the habeas cases. And I saw
(32:16):
Judge Simon's order granting Dwayne relief and said to myself, well,
the state's going to appeal that, and I arranged for
the Seventh Circuit to appoint us in the case. Michael
called me not long after the Seventh Circuit had appointed
us and he told me, Hey, I have this case
and I want you to argue for it. And as
(32:37):
we went through it and I was reading everything about
Dwayne's case, I remember your thinking what an injustice it was,
and how frustrated I was, and how at that point
he was basically losing every step of the way in
the state courts due to some misapplication of the law,
misunderstanding of the facts. From the start, Cliff Williams, Dwayne's
(32:59):
try lawyer, misunderstood the case is being about the bat.
As we put in our brief, this case was never
about the bat. Then, one of the lines that sticks
with me from this case is doctor Socio on Cross
saying to me, it's a fall all day. And if
I could just talk about Dean Marx for a second
(33:20):
and sort of this category of what they call blood
splatter science. Dean Marx himself had actually been involved in
another wrongful conviction case of a man named David cam
from southern Indiana who was accused of murdering his wife
and his children. Mister cam had a significant defense, but
one of the reasons why he was convicted was this
(33:41):
testimony of a blood spladder expert, and Dean Marx was
on that panel of experts who made that determination. So
not only is this guy a junk scientist, but he's
actually been involved in a different case that there was
also a wrongful conviction. So Judge Simon absolutely dismantled in
his opinion the state's case against Dwayne and then Alex
(34:03):
in the Seventh Circuit. I mean, I cannot tell you
how terrific his preparation and presentation this was. He laid
out all the pieces of the state's dismantled case and
showed the Seventh Circuits that they could not be put
back together again. But Judge Kirsch, who dissented in the
Seventh Circuit opinion, was convinced that all the injuries to
(34:27):
Angel Torres were the result of a severe beating, and
he misunderstood the case. The state never argued that the
rib fractures and the damage to Torres's liver, for example,
were the result of a beating. The state's case was
only that he'd been hit over the head. So you
(34:49):
have Cliff Williams, he doesn't understand that it's not about
the bat. You have the Indiana Court of Appeals misunderstanding
what undetermined means. And then you have Judge Kirsch misunderstand
that this was a beating. There was one moment where
I got to very forcefully say no, no to him
misstating a fact. And you know, to me, from from
(35:15):
the public defender mindset, the best thing that I can
ever do for a client is pushed back when somebody
in authority is incorrect or attempting to violate my client's rights.
So after Alex gets up in front of the three
judge panel hardly all the points that we've been talking about, Dwayne,
(35:35):
you tell us what ultimately happens. We win, right, they
actually upheld Judge Simon's ruling. That's right that there should
have been another expert witness on our side. Did jury
should have heard you know something different? So you've had
your victory in the Seventh circum But now they have
an opportunity to take this to the US Supreme Court
or potentially retry Dwayne if they chose to. And again
(35:58):
this is Vicky Becker she'd been willing to do a lot,
and so they had sixty days to decide or you'd
be released, which would have been just before election day
twenty twenty two, when Becker was running unopposed, which, by
the way, someone needs to do something about that next
time around. Somebody's if you're out there and you're a
listener and you're a lawyer and you're thinking about running,
(36:20):
give us a call. At wrongful conviction, we got you.
But that's a topic for another time. The point is here,
she had nothing to lose or gain by releasing him
or choosing to retry you. I think it was Friday
afternoon before we were going to go up the following
Monday night, and I saw Vicky Becker at filed notice
(36:40):
they weren't going to reprosecute him. So here's two officers
come up to may Adore. I'm sitting in a sale.
They talking about pack up. I say, a pack up
for what you got to leave? You going? I say,
going where? And they wouldn't say nothing. So I said, well, man,
don't you touch nothing in the sale. So I go
down talk to the sergeant. I said, where am I going?
He said, you're going home? I see it what I
(37:01):
said for real? He said, Yeah, you've been set free,
so you've only been out since just recently, November twenty
twenty two. How are things going for you. I understand
it's been a little rough finding work. Well, because that's
on my record. Seeing a lot of jobs out here now,
is that the decent ones? You got to get background checks.
(37:22):
And when they run the background check, the first thing
they go they see this sixty year old man that's
been out of work for so long, and Danny comes up.
He was convicted of murder. So that doesn't look good
on a background check. Well, maybe there's someone out there
listening who might have a job for you. What kind
of gear are you looking for? Well, anything in a factory, something,
you know, sudden positive, something to keep me busy right now,
(37:44):
just so I can get back on my feet. If
they're out there in the Solid Bent area, sure I'll
take to help. I'm not too proud to take anyhow great. Well, yeah,
if there's anyone out there listening who could put Dwayne
onto a job lead, we'd really appreciate it, of course.
And you know, one of our listeners, whatever, our avid listeners,
and one of our great sponsors is Stephen Simon of
the Indiana Pacers organization. He's one of the owners of
the team. And Steven, if you're listening, this is a
(38:07):
great guy here, you know, and maybe you have something
for him. So I'm talking directly to you, and yeah,
we appreciate everything you do for us, and we'll have
links to get in touch with Dwayne and our bio.
So thanks so much in advance. And now we come
to the part of the show that I love the most,
and of course it's called closing arguments, and this is
where I turn off my kick back in my chair,
close my eyes and just listen to whatever else you
(38:29):
all have to say. Let's kick it off with Michael
Osbrook and Alex Doland and then of course John Chennawith
and then to you, Dwayne. So Michael, why don't you
go first think what I want to say? And closing
is again, this should have ended in Judge Shoemaker's court
and the delay and getting Dwayne released is terrible, and
(38:54):
obviously we're incredibly happy it worked out the end, but
in a way it didn't to me. There are injustices
happening in trial courtrooms every day. As somebody who's been
at this trial level and has seen what goes on.
(39:16):
There might be dozens of people in courtrooms, hundreds of people,
thousands of people across the country who are going through
this process and are being wrongfully prosecuted ultimately convicted for
a crime they didn't commit. It's really important to be
vigilant about stuff like that. Any time that somebody's at
(39:38):
home and they're watching the news and they see somebody
accused of a terrible crime, my best piece of advice
is to never jump to conclusions. So I would just
encourage people to always have an open mind when somebody
is charged with the crime. Charges are not convictions, and
you never know if they have the right person or not,
(39:59):
so it's extreme important to be skeptical. I just want
to emphasize that Dwayne deserves all the credit in the
world for going into federal court by himself and winning
himself a new trial. I have all the admiration and
respect for what he did. You know, I have to
say that with Judge Simon made his decision and I
(40:21):
heard about it, I was thrilled for him, but at
the same time, it was sad to me that it
had taken so long. To get to that point. Justice
delayed is justice denied, and it's a continuing injustice that
Dwayne is having trouble finding work because of a conviction
for a crime that he's been exonerated of and that
(40:42):
never existed in the first place. First of all, I
just like to say thank you, man, just thank you
for this time, thank you for a chance for y'alla
give me a chance to say a little bit about
what happened. But a lot still needs to be done, man,
because there's a lot of guys that are still in
prison that it didn't commit a crime, that are just
as innocent as I was. And our justice system, manness,
(41:05):
it works for those that are capable and able to
get the right people to work with them. Other than that, man,
our system it's not right, man, it's not right because
they're putting people in prison. Some guys don't even get
a fair shape, just like what happened in my trial.
How many other people are in prison and locked up
because they didn't have an expert witness on their side.
(41:27):
And this is the reason why I say something needs
to be done. But I thank you for my time,
and I thank you, thank you for listening to Rawful
Conviction Special thanks to our wonderful production team Connor Hall,
Annie Chelsea, Jeff Clyburne and Kevin Wards, with research by
Lyla Robinson. The music in this production was supplied by
(41:50):
three time OSCAR nominated composer Jay Ralph. Make sure to
follow us on Instagram at Rawful Conviction, on Facebook at
Wrongful Conviction Podcast, and on Twitter at wrong Conviction, as
well as at Lava for Good. On all three platforms,
you can also follow on TikTok and Instagram at its
Jason Flam. Wrongful Conviction is a production of Lava for
(42:12):
Good Podcasts in association with Signal Company Number one
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