October 10, 2016 • 40 mins
Guests Barry Scheck (Co-Founder of The Innocence Project), exoneree Barry Gibbs and Vanessa Potkin (Director of Post-Conviction Litigation for The Innocence Project) detail the unfathomable odyssey of Barry Gibbs in the bizarre case of The Mafia Cops. Barry was wrongfully convicted of a 1986 second-degree murder in NYC. His conviction was based on misconduct by a NYPD detective, who was later convicted of arranging and committing several murders and cover-ups on behalf of an organized crime family. Barry was incarcerated for 19 years before new evidence led to his release and subsequent exoneration in 2005.
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Episode Transcript
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Speaker 1 (00:01):
You know, every episode of this show has been a
roller coaster ride and a powerful emotional experience for me,
none more so in the episode I recorded with Barry Gibbs,
a beautiful, wonderful, warm, teddy bear of a man who
was rowly convicted in one of the most egregious cases
(00:25):
that any of us have ever seen, and exonerated in
one of the most amazing twists of fate. You have
to listen to his episode too to hear the whole thing.
I can't even paraphrase it, but the sad news is
Barry died after battling an illness on March eighteen. Barry,
(00:46):
rest in peace, my friend. You're gone but not forgotten.
Now please listen to the incredible Barry Gibbs. I came
from a beautiful neighborhood, had a beautiful life. I went
(01:06):
to sleep because September seven, who was the first day
of my high school year, I was gonna be a
senior at twenty two, I was set to start college.
I woke up and my life was never the same again.
Cops came out with guns drawne and I never saw
freedom ever ever since after that. It's like roach Mooke town.
Once you get in, You're not getting outed. Woman was
(01:31):
strangled and her body was dumb from a car on
the Bell Parkway in Brooklyn, New York City. In order
to protect the known mafia associate who was the real
suspect in the case, the detective Louis Appolito co wherced
two eyewitnesses into changing their story and placing Barry Gibbs
at the scene of the crime. Based on this false
eyewitness testimony, Barry Gibbs was convicted and served almost two
(01:52):
decades in prison before he was exonerated. You guys, I
made a sediment Parry Plott life in Travis policing. The
corrupt cop who was responsible for coercing these eye witnesses
was ultimately convicted eight murders that carried out for the mafia.
(02:12):
He's currently serving life in prison. To say corrupt is
the understatement of all time. Louis Appolito was working at
this point in time for a crime family in New
York City. This is wrongful conviction. With Jason Flower, we
(02:41):
have a very special guest today, actually we have three
very special guests today. The number one is Barry Gibbs.
Barry's an exnery who served almost two decades in prison
for a murder he didn't commit, and his story will
rock your world, to say the least. And in addition
to having Ry on the show, we have another Barry
with we have Barry times two today. Barry Scheck, the
(03:05):
co founder of the Innocence Project and a personal hero
of mine, is here. And we also have Vanessa Potkin.
Vanessa is the newly promoted and anointed director of post
conviction Litigation for the Innocence Project and she's been a
long time uh lawyer with the Innocence Project. Long long
serving lawyer with the Innocence Project. We're thrilled to have
(03:25):
both of you, all three of you here on the
show today, so welcome. So Barry Gibbs, let's start at
the beginning, which is where did you Where were you born?
Let's start with that. Let's go all the way back.
We can always back. I was born in Brooklyn. I
was raised in Sheep's at Bay. I worked on a
(03:49):
post office. I came from a beautiful neighborhood, had a
beautiful life, beautiful wife, had a house, had a family,
at a car every two years, had a good job,
American dream pretty much right until it wasn't. So you
served honorably. You served your country in a in a
(04:10):
war that we won't get into the politics of that war,
but the fact there's a crazy situation for any young
man to find himself in. Now you come back and
I wind up, I wind up, I'm young, I get married,
I find a beautiful woman. All along, sitting in an
office I was, I was showing timid dated buy a
(04:30):
beauty that it took me a year and a half
to get up the courage to just ask her out
for a couple of coffee. That sounds very romantic, by
the way, I just want to, I know, but I'm
feeling a little misty. It's like in the movies when
you get that you know, foggy thing and you go
back in times. So you finally got the courage up.
You asked the coffee. I used to deliver a mail
towards She's sit in that office on ad dict the phone.
(04:52):
I never saw a woman type as quickly as she didn't.
I was amazed. So you charmed her and you eventually
married her, right, because otherwise we wouldn't be talking about
it right now. Yeah, she was. She was a gift
from God. She really was, and you married the girl
of your dream. So that's again, it sounds like an
American American dream story up until it's not. And I
(05:13):
want to get into that because we have we have
Barry and Vanessa here, which is really a treat for
the show, and I want to talk about your your
your Kafka esque journey through the criminal justice system. Um,
because yours is saying to Barry before, it's like the
triple crown of malfeasance. Right, you had jailhouse snitches, you
(05:35):
have UH police miss prosecutorial misconduct, and then you have
a situation where they either can't find or won't or
won't turn over the evidence that could have exonerated you
long before your two decades in prison, and it was
it was a life sentence, is that right? So um,
So let's let's turn it over to UH, to the
(05:57):
lawyers for a second. Here, When did you first become aware?
And can you give us a little background on how
this happened in the first place, because this should never happen.
So basically, in the mid nineteen eighties, a woman from
Brooklyn was murdered. Um. She was an African American woman.
She was strangled and her body was disposed of on
the side of a road in the on the Belt Parkway,
(06:17):
and there were a couple of witnesses who actually saw there.
It was a white man who was dumping the body essentially,
and uses there was two witnesses. One was a park
police officer and the Belt Parkways is a major thoroughfare
in Brooklyn just for people who around the country, who
who don't know the geographics, so go ahead, right, And
there was a park police officer who had driven by
(06:40):
and saw the person the perpetrator getting out of the car. Um.
And there was also a guy, uh, Peter Mitchell, a
witness who was jogging in the area who also witnessed
kind of the same set of occurrence as and um,
so the victim had been strangled. Um she uh was
(07:02):
later discovered to have hairs on her body. And you know,
there was a lot of evidence later on that we
could have done DNA testing on if we would have
found to show who did this, but um barry uh.
You know, there was this detective Louis Epolito who wasn't
even on duty at the time, you know, it wasn't
wasn't on shift, but ended up showing up at the
(07:23):
crime scene and basically took charge of the investigation. And
why did he do that? I mean that seems very irregular, right,
Something's wrong with him, Something's wrong with the whole way
this case goes down. He sweeps into take over this case, right,
and all of a sudden it's his case. And he
goes and finds Peter Mitchell and he creates this j
(07:46):
the jogger. All of a sudden, this guy is identifying Barry. Uh,
he takes care of the whole thing. And why did
Barry even come? I mean, he wasn't anywhere near the
crime scene. How did his name even come into the picture? Here?
We we we we now know, right, you see, at
the time that we're doing this case, we don't know
(08:07):
exactly why Epolito is doing all these things. And of
course this at jail how snitched that emerges in all
of this. So it goes to trial, it gets convicted.
We don't have the DNA evidence and frankly, as you
know well Jason, you know at this time with the
Innocence Project, if we couldn't find the biological evidence tod
to do a DNA test, we had to close the case, right,
(08:27):
because that was that was the mission of the charter,
basically the Innocence Project, and we work on DNA cases. Now,
of course this changes a foot, but that's beside the point.
So but we we even though we had pretty much
established that we couldn't find the hairs and the clothing
or anything like this, we just couldn't close the case,
which is odd right because by definition it's the type
(08:49):
of one way you go well of it that should
have been closed. So so what happened was where we
were he what Barry is getting emotional about is that
we were essentially saying to him, we're going to have
to drop this case, right, but we couldn't. What you did.
I'm gonna tell you what you did? You broke my heart?
He really did, you guys broken my heart. I made
(09:10):
a cemetary plot life instrance policy. And then all of
a sudden we wake up and in the front page
of all the newspapers in New York City, what you
what you? So this has been going on now for
its prisedly been involved for eleven years now, eleven two thousand.
(09:34):
Fo you open the newspaper. Opened the newspaper, and there's
a story that a former new York City police detective
Louis Eppolito, who was famous in his time because he
wrote a book called Mafia Cop, where he described how
his parents had been father had been involved in the
organized crime, but he hadn't been, and he was a
great hero cop, uh, you know, and got a lot
(09:57):
of publicity. He was a cop that arrested Barry and
took over suddenly swoops in and takes over this case.
So Vaness and I look at this and we go,
oh my god, it's we got to call them up
and say whatever. They had arrested at Blido, right, That's
why the stories they had arrested at Polido and Cara Kappa,
(10:20):
another detective with whom he worked, because it was alleged
that he had become involved in with the mafia and
he the two of them had begun doing hits for
a crime family, right, and they literally were killing people
one after another. You know this sounds like it's straight
out of a Hollywood movie. Right, It's like we have
(10:42):
we have guys in blue wearing badges doing hits for
the mafia in New York City and it's crazier than that, Jason,
because Louis at Polito, the so called Mafia. Cop Um
was in the first scene right of good Fellas, very
first scene of good Fellas. You aren't imitating imitating art.
Years before he was exposed as being a hit man
(11:03):
for the mafia and disgraced Louis Eppolito appeared on Sally
Jesse Rappel What do you do now, Big lou Well.
I've acted in nine movies. I've been in Goodfellas, State
of Grace, Predator too. I tried writing a screenplay. Jeane
Hackman has been really like great with me and Michael
Vershnikoff and I did a movie with them called Company Business,
(11:26):
and I wrote a screenplay and it was brought by
New Line Cinema, and I just finished a second screenplay
that it's better than policing. All pis getting shot out
any day. As far back as I can remember, I
always wanted to be a gangster. And and and meanwhile,
(11:47):
if that's not ironic enough, he's also writing a book
about he's how he's not doing what he's exactly is
doing right, So it's like the whole thing is a
circle of madness that's you know, hard to believe. So
we right into the U s his office and we
call them and they say, would you please look into
the Barry Gibbs case because something's wrong with this case.
We've always thought that Barry was innocent, that he was
(12:10):
framed um and unbeknownst to us, and they say, yes,
we're going to do that. Get ready for this. By
the way, unbeknownst to us, the day that they arrested
at Bolito in his apartment in Las Vegas, right, they
found the original New York City Police Department file on
(12:33):
the Barry Gibbs case. I mean, the original one. One
of the reasons that we couldn't find a lot of
things is that it's unprecedented. You know, he's a copy retires.
He goes to the police department and he takes the
original file. Well maybe he I mean, is it your
theory that he took the file so that it would
never get discovered and then ironically again he put it
(12:54):
in a place where it could get this guy throw
it away. A second of wading to that, I was
sitting in the car with the d A agents. I
don't remember their names. I'm not giving you guys up,
and I said to them, how many files did you
find in the house and he said three. And I said, well,
(13:17):
I'm on my way down. What happened to the two
water files? You know what? He said to me, don't
worry about them, their career criminals. I said to myself,
you got that. I'm not gonna say nothing, but I
really wanted to say something. Why don't you do your
job properly? Well they did. I didn't. Let's be let's
let's be straight about this. So these d e A
agents in the U S. Attorneys in the Eastern District. Uh,
(13:40):
they went out, uh, and they started reinvestigating Barry's case.
And they went and they talked to Peter Mitchell, right,
and he's lived in some place in Queens and they
walked in the door and he said, I've been waiting,
you know, twenty years. I'm getting the chills right now
for somebody to say this to me. And he burst
(14:01):
into tears. And he describes how at Polito threatened him.
He himself, Peter Mitchell had been an army veteran, right,
he had a felony conviction. Um and Epolitos was threatening him,
you know, both physically and to expose him and destroy him.
And he brought him into the precinct and he showed
(14:22):
him who Barry was, and then they held this ridiculous,
bogus lineup and uh uh you know he identified Barry Gibbs.
So yeah, he was given basically no option. Yeah, but
I mean it was a force. What about the other witness,
Barry who was the park the park police officers, center
park ranger or something, officer Gentilly he You know, the
(14:45):
crazy thing about him is that nobody, you know, he
would have been the most reliable witness. Right, He's an officer,
He's trained to make identifications. Nobody ever asked him that
we know of, to look at Barry Gibbs and say,
is that the person you saw? Because I didn't want
to know. When you go back and you look at
this case, one of the yeah, I mean, this is
(15:09):
what makes Barry Gibbs this case extraordinary. Uh, in one
respect is that it was a completely corrupt cop. And
to say corrupt is the understatement of all time. Louis
Eppolito was working at this point in time for a
crime family in New York City. He and Karak Kappa,
(15:30):
I think we're involved in the assassination of eleven people.
There's a terrific book written about Louis Epolito case, and
it's called The Good Rat by Jimmy Breslin, you know,
perhaps the greatest you know, pulate surprise winning columnist that
we've ever had in this town. And he talks about
Barry's case. But they were running around killing people, you know,
(15:55):
and the Lucazi crime family would say, well, why don't
you go kill Kiguido, And they killed the wrong Nicki
Guido n They're all contract killings. And so what we
have been able to figure out through litigation after Barry
was exonerated, essentially through the work of these d e
(16:18):
A agents who went out and found Peter Mitchell and
you know, showed that the whole case was a frame up. Um,
we now know that the day that the witnesses saw
this body of this poor woman being dumped on the
belt Parkway right, that the description matched somebody that worked
at a chop shop UM in Brooklyn, who was known
(16:41):
to the cops. Who and then and and Epolito mysteriously
shows up the next day. The next day we found out, Um,
this guy who was suspected who to meet the description, right,
shows up at the police precinct with his air died
because originally they described it as somebody with salt and
(17:03):
pepper hair. He shows up with his hair dyed black
and a lawyer to talk to Epolito, which appears in
no police reports. No, there's no reason to take a
look at that. I wouldn't you know. When you look
back at this, it's unbelievable. So let's go back to
(17:32):
the case. And so nine years after Varry's conviction, Brooklyn
judge ordered the state to submit evidence from the case
with DNA testing, and then what happens, right, It would
seem like at that point, Okay, now we got a break.
Right now, we're gonna get this guy out. Some of
the evidence had apparently been destroyed and other items couldn't
be found. That's the side of the case. But my
(17:53):
Slivy case is different from that version. Right there, Okay,
let's hear it. Okay, When I was in jail at
Ranker's Island six months later or whatever, I can't remember
exactly how many months later, the district attorney wanted me
to give hair samples again. My attorney came up to
(18:16):
me and I said to him, I'm not giving it,
and he says why, I says, because I'm being fraimed.
I'm not giving it, he says. Listen, Barry, he says,
I'm there to represent you. Now he's a paid attorney.
I'm there to represent you, he says. I says, you're
gonna be there to represent me when they take these
(18:39):
hairs and there and they've done together, Like, are you
gonna be physically right there? He said to me. No,
he says, I'm gonna be there when they take the
hair samples and they heat seal it and they're going
to give the evidence to whole Epolito. The chain of
custody really fell off with Epolito himself in terms of
(18:59):
having handle the evidence. And it was just m I
A you know. And the funny thing that Barry Gibbs
is saying is that, um, you know, he doesn't even
want to give his hairs because he doesn't trust and
you know, from the lawyer's point of view, he's getting, Oh,
I got this michigun a client, this crazy client. It
doesn't he want to give up hairs of one of
(19:20):
the greatest frame ups in the history of New York City.
And and what's crazy is that you look at him
and go, You're you're convinced that you're going to be framed,
and you won't even give your hairs, and you're saying
that we can't trust the detective to even take them
to the crime lab and give it a straight up examination.
And it turns out everything he suspects is completely true.
(19:43):
It is a complete frame. Or the guy is working
for the mafia, he is assassinating people. He probably played
around with all of this evidence. We can't prove all
of that, but we proved the hell of a lot
of it. So for a postal worker, for a postal worker,
Barry turns out to be a pretty good scientist, huh,
I mean, or least the psychologist. Let me ask Let
me ask you this also, so the New York City
(20:04):
crime has face criticism for its difficulty hand difficulty is
a strange word for its difficulty handling and put that
in quotes and storing evidence. In two thousand thirteen, in
New York City Medical Examiner's Office announced that it had
discovered more than fifty cases in which the office failed
to upload critical DNA evidence from crime scenes to the
state's DNA database, which prevented those samples from being compared
(20:25):
to genetic material from convicted offenders. This discovery led to
the firing of the office's deputy director of quality assurance,
which sounds kind of like a fall guy to me.
I mean, the deputy director of quality assurance. That sounds
like somebody who works at at like a snack food
company or something like that. You know, so, um, so
can we can you tell me more about that? Because
people like to think that these people are doing their jobs.
(20:47):
I think the public likes to think that when you have, uh,
you know, a crime lab that these people are on.
Is now, of course, after making a murderer and after
the different things that have come out recently, I think
that has generated so much attention that people probably have
a little more skeptical view. But even as a lay person,
before getting involved the Instance project, I thought so too.
(21:08):
I thought that these people do their jobs. These are
honest actors. Right number one? Uh what Barry and Vanessa
were describing about the search for his evidence, right, um.
It is true that in the old days, at the
time that Barry was convicted, they had a terrible system
for keeping track of the evidence. It was a mess.
(21:30):
And that's not unlike places all across the country. It
was a total mess, and they did have fires and
asbestos and floods, um and they did recently after Sandy,
have a problem. But you know, having said that, UM,
we did have a problem for years, UM in trying
(21:51):
to get a fair search because the evidence custodians really,
you know, they were being deliberately indifferent to the need
to go look for evidence. Even when people were asking,
go find my evidence. A DNA test could prove me innocent.
They really weren't trying hard. Now I do believe that
(22:11):
that part of the operation has been professionalized. They have
a LIMB system, you know, it's sort of like a
bar code system, laboratory information welcome to the two thousand
and sixteens. They haven't got they haven't gone back completely.
So there's evidence from decades ago. You know, that's still
a mass. So it's still it's still incredibly hard for
(22:31):
innocent people today in New York City to get access
to evidence to prove their innocence. They didn't go back
and clean it up. And it's odd because I talked
about this before. You know, our clients, I sometimes think
of them, uh, And I hope you take this the
right way, as some of the luckiest of the unluckiest
people on earth, right, because you can't be unluckier than
to have its tragic and unlucky as days an understatement,
(22:55):
than to have yourself found find yourself in a situation
where you wrongfully convey did and then you know, there's
we know that there's you know, tens of thousands maybe
more people in prison who are innocent, and then for
them to be fortunate enough to get the innocent part,
to have the Innocence Project take their case, and then
to have the evidence found as it was in Barrie's
(23:16):
case is really something that could only be described as, uh,
you know, a half so sort of like a we're blessed,
we're touched. I don't know what it is. You kind
of surrendered to everything and anything to be at the
place probat because whatever it is, it's it's unbelievable in
(23:38):
order to move on with your life. Yeah, there's angels,
los angels. You don't want to believe with thes ames,
I want to talk about the misconduct because, according to
(24:00):
a study done by the Indasis Project in Minnesota, official
misconduct meaning police or prosecutorial misconduct, was a contributing factor
in forty six of all DNA exonerations on record, police
suppressed evidence that might support a defendant's innocence in over
one third of the first seventy four exoneration cases. So
that's what's one group that we studied. And nine percent
(24:20):
of exoneration cases involved allegations of police coercing witnesses into testifying,
as was allegedly the case in your trial. Well, we
know it was the case in your trial, Barry. So um, Barry,
I know you and I talked about this a lot
in Vanessa. I'd love to hear what you have to
say about it. The you know, the prosecutor of misconduct
is this? I mean, is it just blind ambition that
drives these prosecutors? And how is it? Like it always
(24:43):
blows my mind that a prosecutor can be so morally
bankrupt that they can be and ethically that they can
be comfortable and sleep well at night while deliberately knowingly
prosecuting and convicting and sometimes sentencing to death the person.
Do they know to be innocent? Um? But then the
other problem is that that's see, that's where I would
(25:09):
take some issue, right, and that is that I think
much of it, Uh, the misconduct is something that has
been termed noble cause corruption, and that corruption because they
actually believe that they're prosecuting a guilty person, and then
(25:30):
when the exculpatory evidence seems to pop up right, left
and right, because it turns out they're actually prosecuting an
innocent person unbeknownst to them, it gets hidden. And that's
why it's so important for lawyers to play by the rules,
and that we're talking about prosecutors playing by the rules
(25:52):
that even if you think you've got a guilty guy
who committed a horrible crime, you still have to play
by the rules of our system and disclose exculpatory evidence
and and not push witnesses beyond what they really are,
really saw or heard or want to say. UM that
(26:13):
you you have to somehow control you know, the kinds
of impulses or impulses to win that you know are
so prevalent in the system. That's on the one hand.
On the other hand, you need strong defense. You need
lawyers that are educated, that are well funded, uh you know,
(26:34):
that are going to do the job. Because unless the
defense plays by the rules um and does its job
and exposes the problems in the case, the system implodes.
Well you have, and you have the perfect storm there, right,
you have overambitious prosecutors who become blinded by by their
their belief and it's a noble cause, what you call it,
(26:54):
noble cause corruption or and or their own ambition. And
then you have a public defense. There's who may be
not up to the task, they may not be qualified,
or they may just be overworked, because some of them
are some of them are dealing with a hundred or
more cases at a time, right, so they can't possibly
(27:14):
devote the type of time that they would need to
do to amount of robust defense. Um. But the other
thing that always boggles my mind is that as if
a prosecutor does let's let's assume the worst in this case.
And we know there are those cases right where prosecutors
are just like, we got a guy, we're just gonna
annail them. We're gonna get it off our desk, we're
(27:35):
gonna close this case, and we're gonna move on. We
see that, and it's and and of course it happens,
and sometimes it's the noble cost corruption, and sometimes it's that.
But in those cases, what I can understand is how
they could well, well, what we know is that when
you convict the wrong guy, by definition, you stop looking
for the right guy, right, And so if a prosecutor
(27:56):
is motivated but nothing other than selfish interests, especially in
a small community, you how to do the math and say, well,
look if the if the right guy is still out there,
and he's gonna go almost invariably inevitably and go and
commit more terrible crimes, it could happen to your own
family or somebody you know or somebody you love. As
a prosecute talking about right, so wouldn't you think that
as a public service, if nothing else motivated them to
(28:18):
do the right thing, that they would want to get
the real perpetrator off the street. And of course we
know that in many of our cases, I don't know
the exact percentage when we've exonerate did as a guy,
we find out that the guilty guy has actually gone
and committed terrible crimes against people who never needed to
be heard or killed in the first place. Among the
DNA exonerations, close to half involved cases where we've been
(28:42):
able to identify the person who really committed the crime.
But in a lot of cases too, it's just, you know,
there really aren't incentives there needs to be more incentives
on prosecutors, you know, taking on if they get a
case that's brought to them by the police and it
doesn't seem right or they're getting, you know, some exculpatory
information to reinvest instigated and not just to see their
job is to go forward with the case that the
(29:04):
police brought them and to prosecute it. And you know
right now is the incentive is to win, not necessarily
to reevaluate the case, you know, built into the prosecutor's
offices and just in terms of you know, how they're
evaluated what's considered to be a successful prosecutor. And in
working with some of the conviction integrity units where you
prosecutor's offices are going back and looking at the cases themselves.
(29:27):
You know, we've heard some of the from some of
the leaders you know in this area that you know,
when you're a prosecutor, you completely dehumanize the person who's accused.
You know, that's how you do your job. And so
it also I think takes you know, we need a
reevaluation in our system. We don't treat people who are
coming through the criminal justice system with any sense of humanity,
(29:50):
and that allows prosecutors to kind of put blinders on,
and you know, it's not somebody that they can relate to.
You're not seeing what the devastation that's happening to the individual,
to their family. You know, that is completely missing for
their people. And I think sometimes we lose track of that.
They're not They're not uh, they're not just subjects or
(30:10):
or people who are accused of something or numbers or whatever.
They're their actual people. And we see that over and
over again. And so the conviction review units this is
a relatively new thing. That's it's sort of what's been
been I think for about five five to ten years now, right. Well,
it really started uh in Earnest uh in two thousand seven,
(30:31):
uh in Dallas, Texas, when an African American defense attorney
at the age of in his thirties was elected District
Attorney of Dallas. Pretty unlikely scenario all right around, and
and uh, you know, it was kind of a fluke
or unexpected uh. And he came into office, Craig Watkins,
and among the first things that he did is that
(30:54):
he created this conviction integrity unit, the Innocence Project actually
went to a found at and that got him put
up half the money UH because there was a matching
thing of the Dallas City Council and this UH foundation,
the Jet Foundation, and UH he put in charge of
the conviction Integrity unit a guy named Mike Ware who
(31:15):
came from an innocence organization UH in Lubbock, Texas. So
the Innocence Project of Texas, working with our Innocence Project
based in New York, started working with the Dallas District
Attorney's Office and their Conviction Integrity Unit and reviewed all
the cases where UH they had been resisting requests for
(31:37):
DNA testing and reviewed them all. I mean, we literally
got the entire prosecutor file, looked at it, reviewed the case.
Sometimes when there was no DNA evidence. Although UH in Dallas,
as opposed to New York, they were able to find it.
That's why there's more exonerations in Dallas than in most states. UM.
If we had been able to find the evidence in
(31:58):
New York the way we've discussed before were and when
we were searching for it in Barry Gibbs's case, if
we could find more of it, New York would have hundreds,
hundreds of exonerations. I think any fair minded person would
agree we just couldn't find the evidence of Let's go
from the county with the highest execution rate to the
county with the highest exoneration right just about, yeah, which
(32:19):
is an incredible Let's think about that for a second, right,
and what that conviction and review unit has meant to
these people who were some of them would have been executed.
Could imagine? No, you can't imagine. No, I don't think
anyone can imagine it. You can imagine, right, but no
one else that hasn't been there can imagine. And that's
one of the reasons why we do the work that
we do. So these conviction review units, I believe there's
(32:40):
not twenty four of them around the country. Well, some
of them are effect this summer, not some summer for real,
and some aren't but show right, summer for show. But
one of the tell tale signs is will they bring
somebody in to that conviction integrity unit or conviction review
unit who has a background as a defense layer, because
(33:04):
the cognitive bias is very, very hard. I mean, you know,
I do not believe that there are you know, most prosecutors.
I think it's a rare, rare exception, you know, actually
get up in the morning and say I'm not going
to convict an innocent person. I don't you know, I
don't think that really happens. But I think what does
happen is, you know, you get what they call hard charging,
(33:26):
people who lose track of u playing by the rules,
or the humanity of the defendants or the gravity of
their responsibilities. That can happen and uh, it's a question
of you know, cognitive bias. Right, you have to change
the whole orientation of how prosecutors look at their job.
And by the way, you know, overwhelmed institutional defenders. Right,
(33:52):
you know, you have so many cases you begin to
look at them and go, well, you know, I got
to get through my docket, right, and every case it
looks the same, you know, and you don't put in
the effort because you can't and you don't have the
money to to to hire the type of people that
you would need to go improve the as whereas the
government can parade out a forensic thing or decided as
(34:12):
we saw it again and making a murderer. Um, I
just had to two more questions I wanted to ask
you one, you know, back to the prosecutors. So we
need to have as Vanessa was saying a higher standard
or a better way of evaluating prosecutors so that they
are more um driven to to achieve results that are
based in fact, let's just call it that as opposed
(34:33):
to achieving convictions, to achieve justice as opposed to convictions.
But we also need, in my view, we need to
have a much stronger system of of prosecuting prosecuts, holy
prosecutors accountable. Uh in this country, as far as I know,
you know, we've had, with all the prosecutorial less conduct
we've seen, um throughout the decades, there's only really been
(34:57):
two cases of any prosecutors being held accountable in a
way that that that wants them up the lands them
up in jail. Barry, can you just speak for a
second about the prosecutorial misconduct and how they can be
held accoutable? What kind of changes have to be made
for these guys to be thrown out or thrown in jail? Well, Uh,
there's some simple things that might be done. Um. One
(35:19):
is that the Justice Department could bring prosecutions when we
find out years later that a prosecutor engaged in deliberate
misconduct that led to the conviction of an innocent person
intentionally deprived them of their civil rights. The problem that
we've had in the past is when we go to
the Department of Justice and say, look, we have DNA evidence,
(35:42):
we have all kinds of evidence that showed that somebody
was deliberately framed. This prosecutor should be prosecuted. They say
to us, Look, the statute of limitations under federal law
is five years, and it's very hard to conjure an
ongoing conspiracy to conceal it in most of these cases,
(36:03):
so there would be no jurisdiction for the federal government
to do that. Um, it's possible to amend the laws,
so I think that might make a big difference. Uh.
The other aspect is that there has to be a
concerted effort to hold lawyers to their ethical responsibilities. Um.
(36:24):
One of the things we found is that even in
bar discipline, UH, there are statutal limitations problems, and the
bar discipline system does not take seriously those prosecutors, uh,
you know, who break the rules. And frankly, the defense
lawyers who simply you know, have given up and are
just collecting checks and are not providing effective assistance of counsel.
(36:50):
And so one of the things we have to do
is change that system so that people take that seriously.
Um uh, they can lose their licenses, they and actually
be prosecuted in the most egregious of cases. And if
that happens, I think that, you know, you will begin
to see change. And we have to We can't talk
past each other, and we can't uh uh say, you know, demonize.
(37:13):
You know, it's not all prosecutors uh that uh you
know are engaged in this kind of conduct. Far from it.
There's a lot of there's a lot of good guys
out there. We know that. And I've always admired that
the fact that you managed to keep your sanity through
all the things that you've gone through with these these
crazy cases and the people you've had to deal with. UM. So,
before we wrap up, Barry, what can you share with us?
(37:34):
You serve nineteen years in prison for something you didn't do.
Your your presence always lights up a room. You know.
I know that when when you you all can't see
him through the radio, but when you're at the Innocence
Project dinner, I know I always look forward to seeing you.
Um he's uh, he buries a guy. He's I don't
even know how to describe him. But he's just a
(37:55):
larger than life character. Who is uh you knows who? Who?
Who really drive? That's it really motivates I still want
to do more, you know, when we meet somebody like
you who's just got an incredible spirit and uh, you know,
who has overcome so much and been and and really
deserved the country honorably and done so much. You know good. Um,
it's it's a fantastic suffer you know, because you took
(38:20):
me out of a beautiful home, you threw me into
the military. I've done a good life for a few years,
out of beautiful life, and this happens to me and
you throw me in jail. Do you really expect me
to feel like other people? I doubt it. I'll never
(38:40):
feel that way. You know. I've been through therapy. I've
you know, I've I've been through a lot just to survive.
I mean, I was in the hospital. I was messed up.
I thought I was gonna die. I'm here, I've been saved.
I don't know why I got angels around me. If
I need a brougham spot, it's day up for me.
(39:01):
You know, I don't know what it is. If you
know what I'm saying, and those are my angels that
are Those are my agels that are around me. But
the Innocence Project to me is more than just a family.
There are hearts, you know there were hearts. Don't forget
(39:28):
to give us a fantastic review wherever you get your podcasts.
It really helps. And I'm a proud donor to the
Innocence Project and I really hope you'll join me in
supporting this very important cause and helping to prevent future
wrongful convictions. Go to Innocence Project dot org to learn
how to donate and get involved. I'd like to thank
our production team, Connor Hall and Kevin Awards. The music
(39:51):
in the show is by three time OSCAR nomine composer
Jay Ralph. Be sure to follow us on Instagram at
Wrongful Conviction and on Facebook at Wrongful Viction Podcast. Wrongful
Conviction with Jason Flom is a production of Lava for
Good Podcasts and association with Signal Company Number one. M
h m hmm
You know, every episode of this show has been a
roller coaster ride and a powerful emotional experience for me,
none more so in the episode I recorded with Barry Gibbs,
a beautiful, wonderful, warm, teddy bear of a man who
was rowly convicted in one of the most egregious cases
(00:25):
that any of us have ever seen, and exonerated in
one of the most amazing twists of fate. You have
to listen to his episode too to hear the whole thing.
I can't even paraphrase it, but the sad news is
Barry died after battling an illness on March eighteen. Barry,
(00:46):
rest in peace, my friend. You're gone but not forgotten.
Now please listen to the incredible Barry Gibbs. I came
from a beautiful neighborhood, had a beautiful life. I went
(01:06):
to sleep because September seven, who was the first day
of my high school year, I was gonna be a
senior at twenty two, I was set to start college.
I woke up and my life was never the same again.
Cops came out with guns drawne and I never saw
freedom ever ever since after that. It's like roach Mooke town.
Once you get in, You're not getting outed. Woman was
(01:31):
strangled and her body was dumb from a car on
the Bell Parkway in Brooklyn, New York City. In order
to protect the known mafia associate who was the real
suspect in the case, the detective Louis Appolito co wherced
two eyewitnesses into changing their story and placing Barry Gibbs
at the scene of the crime. Based on this false
eyewitness testimony, Barry Gibbs was convicted and served almost two
(01:52):
decades in prison before he was exonerated. You guys, I
made a sediment Parry Plott life in Travis policing. The
corrupt cop who was responsible for coercing these eye witnesses
was ultimately convicted eight murders that carried out for the mafia.
(02:12):
He's currently serving life in prison. To say corrupt is
the understatement of all time. Louis Appolito was working at
this point in time for a crime family in New
York City. This is wrongful conviction. With Jason Flower, we
(02:41):
have a very special guest today, actually we have three
very special guests today. The number one is Barry Gibbs.
Barry's an exnery who served almost two decades in prison
for a murder he didn't commit, and his story will
rock your world, to say the least. And in addition
to having Ry on the show, we have another Barry
with we have Barry times two today. Barry Scheck, the
(03:05):
co founder of the Innocence Project and a personal hero
of mine, is here. And we also have Vanessa Potkin.
Vanessa is the newly promoted and anointed director of post
conviction Litigation for the Innocence Project and she's been a
long time uh lawyer with the Innocence Project. Long long
serving lawyer with the Innocence Project. We're thrilled to have
(03:25):
both of you, all three of you here on the
show today, so welcome. So Barry Gibbs, let's start at
the beginning, which is where did you Where were you born?
Let's start with that. Let's go all the way back.
We can always back. I was born in Brooklyn. I
was raised in Sheep's at Bay. I worked on a
(03:49):
post office. I came from a beautiful neighborhood, had a
beautiful life, beautiful wife, had a house, had a family,
at a car every two years, had a good job,
American dream pretty much right until it wasn't. So you
served honorably. You served your country in a in a
(04:10):
war that we won't get into the politics of that war,
but the fact there's a crazy situation for any young
man to find himself in. Now you come back and
I wind up, I wind up, I'm young, I get married,
I find a beautiful woman. All along, sitting in an
office I was, I was showing timid dated buy a
(04:30):
beauty that it took me a year and a half
to get up the courage to just ask her out
for a couple of coffee. That sounds very romantic, by
the way, I just want to, I know, but I'm
feeling a little misty. It's like in the movies when
you get that you know, foggy thing and you go
back in times. So you finally got the courage up.
You asked the coffee. I used to deliver a mail
towards She's sit in that office on ad dict the phone.
(04:52):
I never saw a woman type as quickly as she didn't.
I was amazed. So you charmed her and you eventually
married her, right, because otherwise we wouldn't be talking about
it right now. Yeah, she was. She was a gift
from God. She really was, and you married the girl
of your dream. So that's again, it sounds like an
American American dream story up until it's not. And I
(05:13):
want to get into that because we have we have
Barry and Vanessa here, which is really a treat for
the show, and I want to talk about your your
your Kafka esque journey through the criminal justice system. Um,
because yours is saying to Barry before, it's like the
triple crown of malfeasance. Right, you had jailhouse snitches, you
(05:35):
have UH police miss prosecutorial misconduct, and then you have
a situation where they either can't find or won't or
won't turn over the evidence that could have exonerated you
long before your two decades in prison, and it was
it was a life sentence, is that right? So um,
So let's let's turn it over to UH, to the
(05:57):
lawyers for a second. Here, When did you first become aware?
And can you give us a little background on how
this happened in the first place, because this should never happen.
So basically, in the mid nineteen eighties, a woman from
Brooklyn was murdered. Um. She was an African American woman.
She was strangled and her body was disposed of on
the side of a road in the on the Belt Parkway,
(06:17):
and there were a couple of witnesses who actually saw there.
It was a white man who was dumping the body essentially,
and uses there was two witnesses. One was a park
police officer and the Belt Parkways is a major thoroughfare
in Brooklyn just for people who around the country, who
who don't know the geographics, so go ahead, right, And
there was a park police officer who had driven by
(06:40):
and saw the person the perpetrator getting out of the car. Um.
And there was also a guy, uh, Peter Mitchell, a
witness who was jogging in the area who also witnessed
kind of the same set of occurrence as and um,
so the victim had been strangled. Um she uh was
(07:02):
later discovered to have hairs on her body. And you know,
there was a lot of evidence later on that we
could have done DNA testing on if we would have
found to show who did this, but um barry uh.
You know, there was this detective Louis Epolito who wasn't
even on duty at the time, you know, it wasn't
wasn't on shift, but ended up showing up at the
(07:23):
crime scene and basically took charge of the investigation. And
why did he do that? I mean that seems very irregular, right,
Something's wrong with him, Something's wrong with the whole way
this case goes down. He sweeps into take over this case, right,
and all of a sudden it's his case. And he
goes and finds Peter Mitchell and he creates this j
(07:46):
the jogger. All of a sudden, this guy is identifying Barry. Uh,
he takes care of the whole thing. And why did
Barry even come? I mean, he wasn't anywhere near the
crime scene. How did his name even come into the picture? Here?
We we we we now know, right, you see, at
the time that we're doing this case, we don't know
(08:07):
exactly why Epolito is doing all these things. And of
course this at jail how snitched that emerges in all
of this. So it goes to trial, it gets convicted.
We don't have the DNA evidence and frankly, as you
know well Jason, you know at this time with the
Innocence Project, if we couldn't find the biological evidence tod
to do a DNA test, we had to close the case, right,
(08:27):
because that was that was the mission of the charter,
basically the Innocence Project, and we work on DNA cases. Now,
of course this changes a foot, but that's beside the point.
So but we we even though we had pretty much
established that we couldn't find the hairs and the clothing
or anything like this, we just couldn't close the case,
which is odd right because by definition it's the type
(08:49):
of one way you go well of it that should
have been closed. So so what happened was where we
were he what Barry is getting emotional about is that
we were essentially saying to him, we're going to have
to drop this case, right, but we couldn't. What you did.
I'm gonna tell you what you did? You broke my heart?
He really did, you guys broken my heart. I made
(09:10):
a cemetary plot life instrance policy. And then all of
a sudden we wake up and in the front page
of all the newspapers in New York City, what you
what you? So this has been going on now for
its prisedly been involved for eleven years now, eleven two thousand.
(09:34):
Fo you open the newspaper. Opened the newspaper, and there's
a story that a former new York City police detective
Louis Eppolito, who was famous in his time because he
wrote a book called Mafia Cop, where he described how
his parents had been father had been involved in the
organized crime, but he hadn't been, and he was a
great hero cop, uh, you know, and got a lot
(09:57):
of publicity. He was a cop that arrested Barry and
took over suddenly swoops in and takes over this case.
So Vaness and I look at this and we go,
oh my god, it's we got to call them up
and say whatever. They had arrested at Blido, right, That's
why the stories they had arrested at Polido and Cara Kappa,
(10:20):
another detective with whom he worked, because it was alleged
that he had become involved in with the mafia and
he the two of them had begun doing hits for
a crime family, right, and they literally were killing people
one after another. You know this sounds like it's straight
out of a Hollywood movie. Right, It's like we have
(10:42):
we have guys in blue wearing badges doing hits for
the mafia in New York City and it's crazier than that, Jason,
because Louis at Polito, the so called Mafia. Cop Um
was in the first scene right of good Fellas, very
first scene of good Fellas. You aren't imitating imitating art.
Years before he was exposed as being a hit man
(11:03):
for the mafia and disgraced Louis Eppolito appeared on Sally
Jesse Rappel What do you do now, Big lou Well.
I've acted in nine movies. I've been in Goodfellas, State
of Grace, Predator too. I tried writing a screenplay. Jeane
Hackman has been really like great with me and Michael
Vershnikoff and I did a movie with them called Company Business,
(11:26):
and I wrote a screenplay and it was brought by
New Line Cinema, and I just finished a second screenplay
that it's better than policing. All pis getting shot out
any day. As far back as I can remember, I
always wanted to be a gangster. And and and meanwhile,
(11:47):
if that's not ironic enough, he's also writing a book
about he's how he's not doing what he's exactly is
doing right, So it's like the whole thing is a
circle of madness that's you know, hard to believe. So
we right into the U s his office and we
call them and they say, would you please look into
the Barry Gibbs case because something's wrong with this case.
We've always thought that Barry was innocent, that he was
(12:10):
framed um and unbeknownst to us, and they say, yes,
we're going to do that. Get ready for this. By
the way, unbeknownst to us, the day that they arrested
at Bolito in his apartment in Las Vegas, right, they
found the original New York City Police Department file on
(12:33):
the Barry Gibbs case. I mean, the original one. One
of the reasons that we couldn't find a lot of
things is that it's unprecedented. You know, he's a copy retires.
He goes to the police department and he takes the
original file. Well maybe he I mean, is it your
theory that he took the file so that it would
never get discovered and then ironically again he put it
(12:54):
in a place where it could get this guy throw
it away. A second of wading to that, I was
sitting in the car with the d A agents. I
don't remember their names. I'm not giving you guys up,
and I said to them, how many files did you
find in the house and he said three. And I said, well,
(13:17):
I'm on my way down. What happened to the two
water files? You know what? He said to me, don't
worry about them, their career criminals. I said to myself,
you got that. I'm not gonna say nothing, but I
really wanted to say something. Why don't you do your
job properly? Well they did. I didn't. Let's be let's
let's be straight about this. So these d e A
agents in the U S. Attorneys in the Eastern District. Uh,
(13:40):
they went out, uh, and they started reinvestigating Barry's case.
And they went and they talked to Peter Mitchell, right,
and he's lived in some place in Queens and they
walked in the door and he said, I've been waiting,
you know, twenty years. I'm getting the chills right now
for somebody to say this to me. And he burst
(14:01):
into tears. And he describes how at Polito threatened him.
He himself, Peter Mitchell had been an army veteran, right,
he had a felony conviction. Um and Epolitos was threatening him,
you know, both physically and to expose him and destroy him.
And he brought him into the precinct and he showed
(14:22):
him who Barry was, and then they held this ridiculous,
bogus lineup and uh uh you know he identified Barry Gibbs.
So yeah, he was given basically no option. Yeah, but
I mean it was a force. What about the other witness,
Barry who was the park the park police officers, center
park ranger or something, officer Gentilly he You know, the
(14:45):
crazy thing about him is that nobody, you know, he
would have been the most reliable witness. Right, He's an officer,
He's trained to make identifications. Nobody ever asked him that
we know of, to look at Barry Gibbs and say,
is that the person you saw? Because I didn't want
to know. When you go back and you look at
this case, one of the yeah, I mean, this is
(15:09):
what makes Barry Gibbs this case extraordinary. Uh, in one
respect is that it was a completely corrupt cop. And
to say corrupt is the understatement of all time. Louis
Eppolito was working at this point in time for a
crime family in New York City. He and Karak Kappa,
(15:30):
I think we're involved in the assassination of eleven people.
There's a terrific book written about Louis Epolito case, and
it's called The Good Rat by Jimmy Breslin, you know,
perhaps the greatest you know, pulate surprise winning columnist that
we've ever had in this town. And he talks about
Barry's case. But they were running around killing people, you know,
(15:55):
and the Lucazi crime family would say, well, why don't
you go kill Kiguido, And they killed the wrong Nicki
Guido n They're all contract killings. And so what we
have been able to figure out through litigation after Barry
was exonerated, essentially through the work of these d e
(16:18):
A agents who went out and found Peter Mitchell and
you know, showed that the whole case was a frame up. Um,
we now know that the day that the witnesses saw
this body of this poor woman being dumped on the
belt Parkway right, that the description matched somebody that worked
at a chop shop UM in Brooklyn, who was known
(16:41):
to the cops. Who and then and and Epolito mysteriously
shows up the next day. The next day we found out, Um,
this guy who was suspected who to meet the description, right,
shows up at the police precinct with his air died
because originally they described it as somebody with salt and
(17:03):
pepper hair. He shows up with his hair dyed black
and a lawyer to talk to Epolito, which appears in
no police reports. No, there's no reason to take a
look at that. I wouldn't you know. When you look
back at this, it's unbelievable. So let's go back to
(17:32):
the case. And so nine years after Varry's conviction, Brooklyn
judge ordered the state to submit evidence from the case
with DNA testing, and then what happens, right, It would
seem like at that point, Okay, now we got a break.
Right now, we're gonna get this guy out. Some of
the evidence had apparently been destroyed and other items couldn't
be found. That's the side of the case. But my
(17:53):
Slivy case is different from that version. Right there, Okay,
let's hear it. Okay, When I was in jail at
Ranker's Island six months later or whatever, I can't remember
exactly how many months later, the district attorney wanted me
to give hair samples again. My attorney came up to
(18:16):
me and I said to him, I'm not giving it,
and he says why, I says, because I'm being fraimed.
I'm not giving it, he says. Listen, Barry, he says,
I'm there to represent you. Now he's a paid attorney.
I'm there to represent you, he says. I says, you're
gonna be there to represent me when they take these
(18:39):
hairs and there and they've done together, Like, are you
gonna be physically right there? He said to me. No,
he says, I'm gonna be there when they take the
hair samples and they heat seal it and they're going
to give the evidence to whole Epolito. The chain of
custody really fell off with Epolito himself in terms of
(18:59):
having handle the evidence. And it was just m I
A you know. And the funny thing that Barry Gibbs
is saying is that, um, you know, he doesn't even
want to give his hairs because he doesn't trust and
you know, from the lawyer's point of view, he's getting, Oh,
I got this michigun a client, this crazy client. It
doesn't he want to give up hairs of one of
(19:20):
the greatest frame ups in the history of New York City.
And and what's crazy is that you look at him
and go, You're you're convinced that you're going to be framed,
and you won't even give your hairs, and you're saying
that we can't trust the detective to even take them
to the crime lab and give it a straight up examination.
And it turns out everything he suspects is completely true.
(19:43):
It is a complete frame. Or the guy is working
for the mafia, he is assassinating people. He probably played
around with all of this evidence. We can't prove all
of that, but we proved the hell of a lot
of it. So for a postal worker, for a postal worker,
Barry turns out to be a pretty good scientist, huh,
I mean, or least the psychologist. Let me ask Let
me ask you this also, so the New York City
(20:04):
crime has face criticism for its difficulty hand difficulty is
a strange word for its difficulty handling and put that
in quotes and storing evidence. In two thousand thirteen, in
New York City Medical Examiner's Office announced that it had
discovered more than fifty cases in which the office failed
to upload critical DNA evidence from crime scenes to the
state's DNA database, which prevented those samples from being compared
(20:25):
to genetic material from convicted offenders. This discovery led to
the firing of the office's deputy director of quality assurance,
which sounds kind of like a fall guy to me.
I mean, the deputy director of quality assurance. That sounds
like somebody who works at at like a snack food
company or something like that. You know, so, um, so
can we can you tell me more about that? Because
people like to think that these people are doing their jobs.
(20:47):
I think the public likes to think that when you have, uh,
you know, a crime lab that these people are on.
Is now, of course, after making a murderer and after
the different things that have come out recently, I think
that has generated so much attention that people probably have
a little more skeptical view. But even as a lay person,
before getting involved the Instance project, I thought so too.
(21:08):
I thought that these people do their jobs. These are
honest actors. Right number one? Uh what Barry and Vanessa
were describing about the search for his evidence, right, um.
It is true that in the old days, at the
time that Barry was convicted, they had a terrible system
for keeping track of the evidence. It was a mess.
(21:30):
And that's not unlike places all across the country. It
was a total mess, and they did have fires and
asbestos and floods, um and they did recently after Sandy,
have a problem. But you know, having said that, UM,
we did have a problem for years, UM in trying
(21:51):
to get a fair search because the evidence custodians really,
you know, they were being deliberately indifferent to the need
to go look for evidence. Even when people were asking,
go find my evidence. A DNA test could prove me innocent.
They really weren't trying hard. Now I do believe that
(22:11):
that part of the operation has been professionalized. They have
a LIMB system, you know, it's sort of like a
bar code system, laboratory information welcome to the two thousand
and sixteens. They haven't got they haven't gone back completely.
So there's evidence from decades ago. You know, that's still
a mass. So it's still it's still incredibly hard for
(22:31):
innocent people today in New York City to get access
to evidence to prove their innocence. They didn't go back
and clean it up. And it's odd because I talked
about this before. You know, our clients, I sometimes think
of them, uh, And I hope you take this the
right way, as some of the luckiest of the unluckiest
people on earth, right, because you can't be unluckier than
to have its tragic and unlucky as days an understatement,
(22:55):
than to have yourself found find yourself in a situation
where you wrongfully convey did and then you know, there's
we know that there's you know, tens of thousands maybe
more people in prison who are innocent, and then for
them to be fortunate enough to get the innocent part,
to have the Innocence Project take their case, and then
to have the evidence found as it was in Barrie's
(23:16):
case is really something that could only be described as, uh,
you know, a half so sort of like a we're blessed,
we're touched. I don't know what it is. You kind
of surrendered to everything and anything to be at the
place probat because whatever it is, it's it's unbelievable in
(23:38):
order to move on with your life. Yeah, there's angels,
los angels. You don't want to believe with thes ames,
I want to talk about the misconduct because, according to
(24:00):
a study done by the Indasis Project in Minnesota, official
misconduct meaning police or prosecutorial misconduct, was a contributing factor
in forty six of all DNA exonerations on record, police
suppressed evidence that might support a defendant's innocence in over
one third of the first seventy four exoneration cases. So
that's what's one group that we studied. And nine percent
(24:20):
of exoneration cases involved allegations of police coercing witnesses into testifying,
as was allegedly the case in your trial. Well, we
know it was the case in your trial, Barry. So um, Barry,
I know you and I talked about this a lot
in Vanessa. I'd love to hear what you have to
say about it. The you know, the prosecutor of misconduct
is this? I mean, is it just blind ambition that
drives these prosecutors? And how is it? Like it always
(24:43):
blows my mind that a prosecutor can be so morally
bankrupt that they can be and ethically that they can
be comfortable and sleep well at night while deliberately knowingly
prosecuting and convicting and sometimes sentencing to death the person.
Do they know to be innocent? Um? But then the
other problem is that that's see, that's where I would
(25:09):
take some issue, right, and that is that I think
much of it, Uh, the misconduct is something that has
been termed noble cause corruption, and that corruption because they
actually believe that they're prosecuting a guilty person, and then
(25:30):
when the exculpatory evidence seems to pop up right, left
and right, because it turns out they're actually prosecuting an
innocent person unbeknownst to them, it gets hidden. And that's
why it's so important for lawyers to play by the rules,
and that we're talking about prosecutors playing by the rules
(25:52):
that even if you think you've got a guilty guy
who committed a horrible crime, you still have to play
by the rules of our system and disclose exculpatory evidence
and and not push witnesses beyond what they really are,
really saw or heard or want to say. UM that
(26:13):
you you have to somehow control you know, the kinds
of impulses or impulses to win that you know are
so prevalent in the system. That's on the one hand.
On the other hand, you need strong defense. You need
lawyers that are educated, that are well funded, uh you know,
(26:34):
that are going to do the job. Because unless the
defense plays by the rules um and does its job
and exposes the problems in the case, the system implodes.
Well you have, and you have the perfect storm there, right,
you have overambitious prosecutors who become blinded by by their
their belief and it's a noble cause, what you call it,
(26:54):
noble cause corruption or and or their own ambition. And
then you have a public defense. There's who may be
not up to the task, they may not be qualified,
or they may just be overworked, because some of them
are some of them are dealing with a hundred or
more cases at a time, right, so they can't possibly
(27:14):
devote the type of time that they would need to
do to amount of robust defense. Um. But the other
thing that always boggles my mind is that as if
a prosecutor does let's let's assume the worst in this case.
And we know there are those cases right where prosecutors
are just like, we got a guy, we're just gonna
annail them. We're gonna get it off our desk, we're
(27:35):
gonna close this case, and we're gonna move on. We
see that, and it's and and of course it happens,
and sometimes it's the noble cost corruption, and sometimes it's that.
But in those cases, what I can understand is how
they could well, well, what we know is that when
you convict the wrong guy, by definition, you stop looking
for the right guy, right, And so if a prosecutor
(27:56):
is motivated but nothing other than selfish interests, especially in
a small community, you how to do the math and say, well,
look if the if the right guy is still out there,
and he's gonna go almost invariably inevitably and go and
commit more terrible crimes, it could happen to your own
family or somebody you know or somebody you love. As
a prosecute talking about right, so wouldn't you think that
as a public service, if nothing else motivated them to
(28:18):
do the right thing, that they would want to get
the real perpetrator off the street. And of course we
know that in many of our cases, I don't know
the exact percentage when we've exonerate did as a guy,
we find out that the guilty guy has actually gone
and committed terrible crimes against people who never needed to
be heard or killed in the first place. Among the
DNA exonerations, close to half involved cases where we've been
(28:42):
able to identify the person who really committed the crime.
But in a lot of cases too, it's just, you know,
there really aren't incentives there needs to be more incentives
on prosecutors, you know, taking on if they get a
case that's brought to them by the police and it
doesn't seem right or they're getting, you know, some exculpatory
information to reinvest instigated and not just to see their
job is to go forward with the case that the
(29:04):
police brought them and to prosecute it. And you know
right now is the incentive is to win, not necessarily
to reevaluate the case, you know, built into the prosecutor's
offices and just in terms of you know, how they're
evaluated what's considered to be a successful prosecutor. And in
working with some of the conviction integrity units where you
prosecutor's offices are going back and looking at the cases themselves.
(29:27):
You know, we've heard some of the from some of
the leaders you know in this area that you know,
when you're a prosecutor, you completely dehumanize the person who's accused.
You know, that's how you do your job. And so
it also I think takes you know, we need a
reevaluation in our system. We don't treat people who are
coming through the criminal justice system with any sense of humanity,
(29:50):
and that allows prosecutors to kind of put blinders on,
and you know, it's not somebody that they can relate to.
You're not seeing what the devastation that's happening to the individual,
to their family. You know, that is completely missing for
their people. And I think sometimes we lose track of that.
They're not They're not uh, they're not just subjects or
(30:10):
or people who are accused of something or numbers or whatever.
They're their actual people. And we see that over and
over again. And so the conviction review units this is
a relatively new thing. That's it's sort of what's been
been I think for about five five to ten years now, right. Well,
it really started uh in Earnest uh in two thousand seven,
(30:31):
uh in Dallas, Texas, when an African American defense attorney
at the age of in his thirties was elected District
Attorney of Dallas. Pretty unlikely scenario all right around, and
and uh, you know, it was kind of a fluke
or unexpected uh. And he came into office, Craig Watkins,
and among the first things that he did is that
(30:54):
he created this conviction integrity unit, the Innocence Project actually
went to a found at and that got him put
up half the money UH because there was a matching
thing of the Dallas City Council and this UH foundation,
the Jet Foundation, and UH he put in charge of
the conviction Integrity unit a guy named Mike Ware who
(31:15):
came from an innocence organization UH in Lubbock, Texas. So
the Innocence Project of Texas, working with our Innocence Project
based in New York, started working with the Dallas District
Attorney's Office and their Conviction Integrity Unit and reviewed all
the cases where UH they had been resisting requests for
(31:37):
DNA testing and reviewed them all. I mean, we literally
got the entire prosecutor file, looked at it, reviewed the case.
Sometimes when there was no DNA evidence. Although UH in Dallas,
as opposed to New York, they were able to find it.
That's why there's more exonerations in Dallas than in most states. UM.
If we had been able to find the evidence in
(31:58):
New York the way we've discussed before were and when
we were searching for it in Barry Gibbs's case, if
we could find more of it, New York would have hundreds,
hundreds of exonerations. I think any fair minded person would
agree we just couldn't find the evidence of Let's go
from the county with the highest execution rate to the
county with the highest exoneration right just about, yeah, which
(32:19):
is an incredible Let's think about that for a second, right,
and what that conviction and review unit has meant to
these people who were some of them would have been executed.
Could imagine? No, you can't imagine. No, I don't think
anyone can imagine it. You can imagine, right, but no
one else that hasn't been there can imagine. And that's
one of the reasons why we do the work that
we do. So these conviction review units, I believe there's
(32:40):
not twenty four of them around the country. Well, some
of them are effect this summer, not some summer for real,
and some aren't but show right, summer for show. But
one of the tell tale signs is will they bring
somebody in to that conviction integrity unit or conviction review
unit who has a background as a defense layer, because
(33:04):
the cognitive bias is very, very hard. I mean, you know,
I do not believe that there are you know, most prosecutors.
I think it's a rare, rare exception, you know, actually
get up in the morning and say I'm not going
to convict an innocent person. I don't you know, I
don't think that really happens. But I think what does
happen is, you know, you get what they call hard charging,
(33:26):
people who lose track of u playing by the rules,
or the humanity of the defendants or the gravity of
their responsibilities. That can happen and uh, it's a question
of you know, cognitive bias. Right, you have to change
the whole orientation of how prosecutors look at their job.
And by the way, you know, overwhelmed institutional defenders. Right,
(33:52):
you know, you have so many cases you begin to
look at them and go, well, you know, I got
to get through my docket, right, and every case it
looks the same, you know, and you don't put in
the effort because you can't and you don't have the
money to to to hire the type of people that
you would need to go improve the as whereas the
government can parade out a forensic thing or decided as
(34:12):
we saw it again and making a murderer. Um, I
just had to two more questions I wanted to ask
you one, you know, back to the prosecutors. So we
need to have as Vanessa was saying a higher standard
or a better way of evaluating prosecutors so that they
are more um driven to to achieve results that are
based in fact, let's just call it that as opposed
(34:33):
to achieving convictions, to achieve justice as opposed to convictions.
But we also need, in my view, we need to
have a much stronger system of of prosecuting prosecuts, holy
prosecutors accountable. Uh in this country, as far as I know,
you know, we've had, with all the prosecutorial less conduct
we've seen, um throughout the decades, there's only really been
(34:57):
two cases of any prosecutors being held accountable in a
way that that that wants them up the lands them
up in jail. Barry, can you just speak for a
second about the prosecutorial misconduct and how they can be
held accoutable? What kind of changes have to be made
for these guys to be thrown out or thrown in jail? Well, Uh,
there's some simple things that might be done. Um. One
(35:19):
is that the Justice Department could bring prosecutions when we
find out years later that a prosecutor engaged in deliberate
misconduct that led to the conviction of an innocent person
intentionally deprived them of their civil rights. The problem that
we've had in the past is when we go to
the Department of Justice and say, look, we have DNA evidence,
(35:42):
we have all kinds of evidence that showed that somebody
was deliberately framed. This prosecutor should be prosecuted. They say
to us, Look, the statute of limitations under federal law
is five years, and it's very hard to conjure an
ongoing conspiracy to conceal it in most of these cases,
(36:03):
so there would be no jurisdiction for the federal government
to do that. Um, it's possible to amend the laws,
so I think that might make a big difference. Uh.
The other aspect is that there has to be a
concerted effort to hold lawyers to their ethical responsibilities. Um.
(36:24):
One of the things we found is that even in
bar discipline, UH, there are statutal limitations problems, and the
bar discipline system does not take seriously those prosecutors, uh,
you know, who break the rules. And frankly, the defense
lawyers who simply you know, have given up and are
just collecting checks and are not providing effective assistance of counsel.
(36:50):
And so one of the things we have to do
is change that system so that people take that seriously.
Um uh, they can lose their licenses, they and actually
be prosecuted in the most egregious of cases. And if
that happens, I think that, you know, you will begin
to see change. And we have to We can't talk
past each other, and we can't uh uh say, you know, demonize.
(37:13):
You know, it's not all prosecutors uh that uh you
know are engaged in this kind of conduct. Far from it.
There's a lot of there's a lot of good guys
out there. We know that. And I've always admired that
the fact that you managed to keep your sanity through
all the things that you've gone through with these these
crazy cases and the people you've had to deal with. UM. So,
before we wrap up, Barry, what can you share with us?
(37:34):
You serve nineteen years in prison for something you didn't do.
Your your presence always lights up a room. You know.
I know that when when you you all can't see
him through the radio, but when you're at the Innocence
Project dinner, I know I always look forward to seeing you.
Um he's uh, he buries a guy. He's I don't
even know how to describe him. But he's just a
(37:55):
larger than life character. Who is uh you knows who? Who?
Who really drive? That's it really motivates I still want
to do more, you know, when we meet somebody like
you who's just got an incredible spirit and uh, you know,
who has overcome so much and been and and really
deserved the country honorably and done so much. You know good. Um,
it's it's a fantastic suffer you know, because you took
(38:20):
me out of a beautiful home, you threw me into
the military. I've done a good life for a few years,
out of beautiful life, and this happens to me and
you throw me in jail. Do you really expect me
to feel like other people? I doubt it. I'll never
(38:40):
feel that way. You know. I've been through therapy. I've
you know, I've I've been through a lot just to survive.
I mean, I was in the hospital. I was messed up.
I thought I was gonna die. I'm here, I've been saved.
I don't know why I got angels around me. If
I need a brougham spot, it's day up for me.
(39:01):
You know, I don't know what it is. If you
know what I'm saying, and those are my angels that
are Those are my agels that are around me. But
the Innocence Project to me is more than just a family.
There are hearts, you know there were hearts. Don't forget
(39:28):
to give us a fantastic review wherever you get your podcasts.
It really helps. And I'm a proud donor to the
Innocence Project and I really hope you'll join me in
supporting this very important cause and helping to prevent future
wrongful convictions. Go to Innocence Project dot org to learn
how to donate and get involved. I'd like to thank
our production team, Connor Hall and Kevin Awards. The music
(39:51):
in the show is by three time OSCAR nomine composer
Jay Ralph. Be sure to follow us on Instagram at
Wrongful Conviction and on Facebook at Wrongful Viction Podcast. Wrongful
Conviction with Jason Flom is a production of Lava for
Good Podcasts and association with Signal Company Number one. M
h m hmm
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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