October 31, 2016 • 37 mins
Derrick Hamilton was wrongfully convicted of murder in 1991 and served over two decades in prison after he was framed by the disgraced Detective Louis Scarcella. During an initial stint in prison in his teens for a separate wrongful conviction, Derrick began studying in the prison’s law library, eventually earning a reputation as one of the most highly skilled jailhouse lawyers in the country. When he wasn’t fighting to prove his own innocence, Derrick worked pro bono on the cases of his fellow inmates, and he formed the Actual Innocence Team with other jailhouse lawyers serving time. He was released on parole in 2011 and finally cleared his name in 2014. Today, he continues to work as a paralegal on wrongful conviction cases.
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Episode Transcript
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Speaker 1 (00:01):
I came from a beautiful neighborhood, had a beautiful life.
I went to sleep because September seven 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 drawn, and I never saw
(00:22):
freedom ever ever since after that. It's like roach moketown
once you get in and I can't mount. This is
wrongful conviction with Jason Flom today, I'm honored, and I
(00:56):
don't use that word lightly to have as our guest,
Derrick Hamilton's welcome to the show. Thank you for having me.
Glad you're here. Derek. Your story is extraordinary in so
many ways, and I don't even know where to begin,
but I guess we should really take it back to
the beginning and we'll save the reveal like they do
in Hollywood, and what you're doing now and what you've
accomplished in your life over extraordinary obstacles that are almost
(01:20):
unimaginable obstacles. But let's go back to the beginning and
talk about how this began. You're You're a New Yorker
born and bred like me from Brooklyn, Okay, Brooklyn in
the house all right, Neppi Stobinson neighborhood UM with violence
was you know, you know it was UM very tough
housing project. I grew up in Lafya Gardens um where
(01:40):
it was kind of like uh one block with eighty
thou people on it, you know, in the housing project.
And if you got a basketball, you had to go
outside and fight for your basketball. If your mother father
bought your pitts sneakers, you had to fight for your sneakers.
It was very depressant. And every little kid wants what
the next little kid has, and if your family don't
has it, they advotate to try to take it. So
(02:01):
it was tough stuff and you had some early scraps
with a lot. Why don't you talk about it? Absolutely.
I was a young kid about sixteen and seventeen and
got into a life of crime. UM attempted to rob
someone with the prison for that UM. Ultimately I was
released and I was out. Some older guys had committed
robbery of a bread truck and I actually killed the
(02:21):
truck driver. UM. I was outside that day when the
crime happened. I've seen the action I actually seen it,
and actually the guy that had asked me to look
out for them if the cops came, just whistle or
something of that sort. The next day, UM, walking down
to block, the police officers picked me up. UM, and
they don't question me about the crime, but they just
take a picture of me and asked me at my
(02:43):
Derik Hountard and I said they knew me previously from
the incident that I had attempted robbery, so UM, I
took ane of it. UM. I left out the precinct.
One week later, they arrest me for the murder of
James Wolf. And it just stunned me because I know
I didn't kill Mr. Wolf. I know I wasn't the
father in the crime. But what I learned is that
one of the older guys who actually committed the crime,
(03:05):
who car was identified as the car scene fleeing from
the scene, was able to convince the police officers that
he loaned the car to me, a seventeen year old kid,
um with no license with anything. And the cops actually
believed that story. Um. And we've seen this in a
number of cases where the actual killer is and you
could say here being smart, right, they know that their
(03:26):
way out is depended on somebody else. Well, first of all,
I was from the housing project right where the crime happened.
He wasn't, so it seemed more obvious that I was,
you know, likely suspect to get But in any event,
I go to trial and during the course of the trial,
my lawyer tells me that there's a witness outside in
the hallway who called out and explained to my lawyer
(03:49):
that she would refuse to testify. Her name was Patricia Lee.
She said the cops had forced her to going to
grand jury and identify me as someone she saw outside
the housing project who spoke to her after the murder
happened and said, I panic and I thought I shot
the guy in the arm um. She said she would
refuse to testify. She couldn't get up on to stand
and tell that lit. My lawyer came back in and
(04:10):
reported this to the court and said to the court
there's a witness in the hallway that we never know
existed who said this to me. And then the court said, well,
let's bring the witness. And the witness comes in and
the prosecutor asks for something called a so roy sharing
in New York and uh, and the s roy sharing
is people were so Roys. And what this hearing does
(04:31):
is it puts the burden to proof on the prosecutor
to proved by clean, convincing evidence that I waved my
right to confront the witness at trial if me or
someone acting for me made the witness a law refused
to testify. So the judge held this terroys hearing, and
the witness testified that it was the cops who in
fact rereatening her and made her allie the grand jury,
(04:51):
that me and nobody acting for me ever had any
involvement with her whatsoever. In fact, we never knew she
testified in the grand jury. So right, So the judge
ruled that day that he could not allow the prosecutor
to use this witness grand jury testimony against me his
evidence in chief. In fact, he had heard not one
iota of evidence that me and anybody acting for me
(05:13):
did anything wrong, right, because the case was hinged on
the eyewitness testimony, which we know is one of the
most powerful things in the criminal justice system. Absolutely right.
So now so now you're feeling like, okay, can I
go home now? Right? So they drink and they drent
for one day and he said, you got to tomorrow
to come up with something. Unreleased this guy. We returned
(05:34):
to court the next day and the judge said his
previous ruling the day before troubled him all night, that
he felt that the only one that would benefit from
the witness refusal to testify is me or somebody acting
for me, and that because of that, he wouldn't allow
the prosecute to use the grand jury testimony against me
his evidence in chief and find that I weighed my
(05:55):
right to confrontation. At that moment, the lawyer that I
had a candice courage. The very nice lady Uh asked
me that I understand what was going on in the proceedings.
I said somewhat, and she says, kid, it is time
for you to learn what's going on. And she gave
me two cases and said you need to read those overnight.
But in any event, she told the judge that she
(06:16):
would have to testify and become a witness, and she
would have to take the stand to explain what the
witness told her in the hallway, in the bathroom, whatever
the conversation happened, and had to, you know, show that
there's no evidence that me and anybody did anything wrong.
The judge reopening hearing, my lawyer testified, and he still
stuck by his decision. I was convicted based on the
grand jury testimonies of Patricia Lee. I was sentence to
(06:37):
twenty five years in life in prison for a murder
I did not commit. Um And five years later the
appel Divasian second apartment in the case rude that the
lower court was wrong, that they vialated my right to
confrontation by admitting the grand jury testimonials evidence achieve against me,
that I never forfeit my right, that there was no
(06:58):
evidence whatsoever that me need by Tampa, with the witness
and every verse occasion, we managed it back down for
a new trial. Anyone listening is gonna be going just
like I'm going, Well, okay, now you go free. Right. Yes,
Except that's how what happened, not exactly because I was
somewhat coarse to take a plea, an outfit plea. Because
I started a second trial. When the Pelo Division reversed
(07:19):
the ordered a new trial, the prosecuted instructed the judge
to jury, actually in the open insummation, that they should
find me guilty of attention to murder and a second
degree of crime in which I was acquitted of at
the first trial. Sounds like that what jeopardy right? UM.
I spoke to my lawyer about it, and I said,
this was acquitted that. Um. He brought it to the
(07:40):
course attention after the jury stepped out of the room
and the judge market was who was at the time
she deceased now, UM indicated that, well it was a mistake.
We're not giving you a mistrial. UM. Yes, the prosecutor
was wrong. Yes she was acquitted of it. But we're
gonna dispose of this chase one with another. And my
(08:01):
lawyer pulled me to the side and said, loo, as
you see, they're not trying to be fair. And you
know I had a conviction for a weapon at that
time as also, so you said you got five years
for the weapon. You're not going to run for man.
You see they trying to railroad you. They're willing to
give you outfit plea. And for the people that understand well,
United States Supreme courted Outfit versus North Carolina. UM rendered
(08:25):
that a plea can be took with approachon doesn't have
to be alcuted. They doesn't have to talk about the
underlying factors of the case. You say, because there's a
likelihood I may be convicted, not because I'm guilty. I
accept the conditions of this plea. Right, So you're not
admitting guilt, but the government is not admitting innocence. Right,
So you're basically in like a sort of a gray area,
(08:47):
so to speak. Right, But basically you're allowed. You can
go home, which is what everybody wants. But you can
never sue the government. You cannot sue the state. You cannot.
You have no recourse, no recourse at all, right, because
they're never admitting that they were wrong. Right, Okay, so
now you're out, Yeah, I'm out. Um, and what happened?
So now you're twenty, I'm at that point probably about
(09:08):
twenty three. Back to bed stock, Yes, back to back
is still crazy out there. Still it's crazier than when
I left. I mean when I left in eighty three. Um,
the drug game wasn't as track cocaine number was in
the community at that time. I'm gonna hit my community
in a very very hard way. Um, it was like
(09:30):
being a different community. I mean, you came home, there
were mothers who was strung out on crack, there was
whole families who was shrunk out on crack. There was
individual now who were drugs ares, who was running the neighborhood. Um,
it was just a different environment. Um, this is eighty.
This is a father was killed in pepper stopus in
(09:54):
UM a year before. So I'm coming home with that.
I mean, there was a lot of different She was
shout and killed in stopuson a year before that. So
I'm coming home with um, you know, the idea of
getting my life back together, getting my family back together.
I was a mechanic help at the being in garage.
I'm probably going to prison. And at a young age,
I used to always work at a gas station on
(10:14):
Franklin and and Clifton and Brooklyn. And a nickname I
had was Amicole Jr. Because I love cars so much,
and I worked in grease monkey type of stuff. So
when I came on, Benjamin Oliver, my previous employeer, gave
me a job and I was working with him, you know,
changing all doing little things around the shop. Some things
are looking up. I was looking up, and and my
father left me some money to invest I got from
(10:36):
this insurance policy to invest in the beauty salant. So
I opened that in new Haven, Connecticut, and I'm moving
along with my life. I'm being knownst to me that
there was a detective and members of the district Cottunity's office.
By the way, is an interesting combination working on cars
and doing beauty right ultimate Paris unisex Alon saying you
got Harrison, I got home. Thank go Um Okay, so
(11:00):
things are looking at right. And you know, i got
two children, a six year old son and uh six
year o daughter with tw different women. So I'm trying
to be the best father I can, taking them in school,
picking them up. And I'm being knownest to me that
there was some individuals in law enforcement who had me
on the radar who felt that the system had failed
them Umi, who still believe that I was guilty for
(11:23):
the death of James Wolf, the young man that was killed,
and there were some cops that was very upset about it. Um.
In January of a friend of mine by the name
of the Daniel Cash was shouting killed in Brooklyn outside
his home in Battis Stobinson. Yes, Um, I was in
(11:44):
new Haven, Connecticut that particular day, having stayed over the
night before for going away party for a friend of mine.
Um got a phone call Indie Katon, actually Nadaniels cash
child mother received the phone call from my mother who
indicated him with the cat shouting killed in Brooklyn and
at some detectives that came by the house looking for
me said this Derek Hire and you weren't there because
(12:06):
you were Conne was in Connecticut, And you know, I
took it as just talk. When I first heard that
the cows was looking for me for this murder, I
didn't believe it, you know, I said, people just saying that.
But when my mother called me and said, the cows
have been by my house, how long have you been
out at this time? At this point, I've been out
probably probably six months, because probably about six months a
(12:30):
New York City detective by the name of Louis Carcella
comes to New Haven, Connecticut in the store to that
owned and operated the British Lion told you about. Now,
let me stop there for a second. Louis Carcella is infamous,
and that's a very nice way of saying very much so. Right.
Louis Carcella is probably responsible for as many or more
(12:52):
wrongful convictions than any um detective in the history of
this country. I believe nine people so far have been
as my number is correct, but there's dozens of cases
that have been reopened because there's it's come out that
there was I mean, for just one example, there was
six different murder cases where he used the same witness
who was a crackhead, where he was applying drugs to
(13:14):
who he was I mean, so this woman was so
lucky that she witnessed six different murders. I mean, that's impossible,
and he was he was bribing her, coercing her. Probably
not the most reliable witness ever and maybe on the
fifth when you'd go nobody could get that lucky. I mean.
But anyway, that's just one example of what he was
(13:35):
up to. So he was the last guy in the
world you wanted to be involved with if you were
in the criminal justice system, because he was going to
get a conviction and he didn't care whatsoever that about
the facts of the case. He was interested in convictions,
not truth. So, okay, so Scarcell is looking for you,
but you didn't know who he was though at this
point I didn't know who he was at this point,
(13:55):
never heard of him. And he walks into the unsectional
that kiss me on the side of my face and
says Lafia gardens, motherfucker, excuse my binacular and automatically tells
me that this guy is from Brooklyn and he says
that I'm under the arrest at that time. He said
it was for a parole violation and it took me
(14:16):
to kissed you on the side of the cheek, on
the side of my cheek, you know, Okay, I don't
even know. Yeah, I mean that's like something strange, like
he thought he was in the movie type of things,
the Mafia figure. He has this big you know, he
looks like Joe Pessi, a tolder Joe Pessi, and I
think he took on that character. But if you ever
(14:38):
see him testify or see his grand daughter, he just
has that you know, big Italiano mafio so look, and
I think he just stopped playing that role at some point.
But he came in and kissed me on the cheek,
arrested me, took me to the Union Avenue station in
New Haven, Connecticut, and told me there that I was
being arrested for the definite Daniel Cash, that he had
five woodnesses who could't identify me, and say I killed
(14:59):
this young man I told him I was innocent, and uh, yes,
absolutely told me I was. He said he had five
witnesses that disagreed and that he was arresting me for UM.
I was transported back to Brooklyn. The rain on the
indictment pled not guilty, um, and we began the process.
(15:21):
And you know the criminal justice system, here we go again,
and yes, here we go again. The soul witness groundhog
Day that accused me of the murder came to my
lawyer four days after my arrest. Name to my lawyer
that she never saw the crime. So there wasn't five witnesses,
that there was one. There was one. There was a
single witness who had told the cops immediately at the
(15:41):
crime scene she didn't see it, that she was at
the store. When she came back, a board friend was
shot and killed. Um. She was beat up at the
scene the crime. Took to the precinct with the technical
scars that have told her that if she didn't implicate
me in the murder, that she herself would go to
jail for the crime. She was on parole. Kids too,
They had two children, and they told us they would
(16:02):
lock up because her boyfriend was a felon who had
just got out of prison himself and she had no
business being with him, so they said because you in
which case she would lose custody of her kids. We
see this over and over again with women. It's one
of the strongest threats that you can make to a
mother is listen, you're going to testify the way we
want to. And they'll probably tell her to and listen,
by the way, this guy is a bad guy. If
(16:22):
he didn't do this, he did some other stuff. You're
doing society favor. They tell whatever the hell they want
to tell him. But mostly the only thing a woman
in that situation is going to hear is you're gonna
lose custody of your kids. And what she said was that,
you know, it was either her or meat in her
mind that they told her if you don't say this,
you're going to jail, and she wasn't going to jail. She,
(16:43):
like you said, she had kids, So she just went
along with the statement desk with which indicated that he
saw me come to the building, and some young man
passed me a gun, and I got the gun and
I shot down you cast several times inside the vesta
of the building, um which doesn't match very well with
(17:04):
the original story that she gave where she wasn't there
when the crime was committed, so that story changed. Yes,
nor doesn't match with the science or the ballistics evidence
of the case. Guy was shot with two different weapons
and he was shot outside the vessel with the building
in the street, with the ultimate shot that killed him,
which she never saw, um which she was inaccurate and
(17:29):
saying he was shot in the building about one gun.
The fact that they learned this before the trial, the
fact that they knew that her story was totally inaccurate
with science. No one ever went to it and said, hey,
you're lying. You know you saw it. How did you
miss this? They didn't care, and what they actually did
was false heart. Even though she told them and she
(17:49):
didn't want to come to the trial to testify, they
locked it up on a mature witness order, brought it
before the judge who was at with Rappaport in Brooklyn,
and told her that she would go to jail, which
is on the record, if she didn't come in and
cooper rate fully with the prosecutor, not truthfully, but fully.
Whatever the prosecutor tells you to do, this is what
you better do, Derek. One of the things I find
(18:20):
so fascinating. One of the reasons I said I was
honored to have you here is because Derek became a
very accomplished jailhouse lawyer. Um, if that's I don't know
if that's the right way of saying it. So in
your second stay in prison, right, which was twenty one years,
so here it is. Derek's fifty one years old, spent
twenty seven years in prison between the two different wrongful convictions.
(18:43):
So that's more than climps about your life in prison, right,
And this is one of the things that I find
so inspiring. You said something along the lines of I
didn't have time to work out And it's funny because
you look like I mean, there's a big, big, strong guy.
You guys looks like Mike Tyson, honestly, But but you
didn't have time to work out him. Because why my
(19:04):
whole life was spent on getting out. I was an
average student of the law Livebury. Um, I spent all
my working hours there if I could, and when I didn't,
you would find me probably in the cell reading the
book and educate myself on the criminal justice system, the
processes that take taking VICTI person to appeal and post conviction.
(19:24):
I had to master that. I mean, if I was
able to level the playing field, then I had to
be the most intelligent person in the court. And that
was my goal to study, to walk in the court room,
to be able to understand the process. And I just
read everything. They happened a lot bury. I just studied everything.
But it wasn't just that you had a team right
when the team came later. But I tell you about
(19:46):
my great team because I looked at it. It was
like a law firm in prison, right and too right
it was. It was. It was a very good team.
In two thousand nine, arrived at the Orburn Correction Facility,
maximum security prison. I was in segregation at the time,
almost a very dark woman of mine in conservation because
I had began going to the parole board in two
(20:06):
thousand nine. When I began going to the parobe but
I had a dilemma where they wanted you to admit
guilt and I couldn't make guilt. And that is a dilemma.
We see it over and over again with guys in
your situation who are faced with you gotta admit guilt
if you want to have any chance to get out.
So actually, when you have a twenty five years a
life sentence, it's it's a life sentence unless you're going
(20:28):
to admit to a crime that you didn't commit. Otherwise
it's life because the parole board is never gonna say, yeah,
let let this guy go unless you come in and
go I'm so sorry. I never should have done this.
I feel guilt, I feel remorse, I feel like it.
But it's hard to feel remorse for something you didn't do. It.
Didn't do it, So I'm not this dilemma tempt suicide.
Um the facility no mercy says I faked the suicide attempt,
(20:48):
and throw me in a box twenty three hours a
day and you have one hour without the side of
the day in a cage, a dog kennel type of cage,
if you can imagine, right, and you are, I mean,
you're just subjected to some of the most horrendous treatment
in the world because you're around a lot of mentally
ill prisons that bang and throw feces and urine, and
you're subjected to a very degrading time. So I'm there
(21:11):
and I get to say a letter from the Low
Library because the cops bring two books a day, you
allowed and special housing. And the letter says, hey, man,
I'm glad you're here from God in Loal Liberry. We're
waiting for you, you know, to get out and we
look forward to working for you. And it's Danny Rinkard.
And when I get out of the box um, a
friend of mine said, hey, Danny has a group and
(21:35):
the group is called Actual Innocence and these guys want
you to come work the Lowal Liberator. And you're smart,
they know you know what you're doing, and they need
you to come out here and lead the group. And
at that time they have furnishing box Chore who was
another scott Seller victim who's out now as well. It's
working as a clerk. And I convince your baka to
come to the Lord Library and we developed, we joined
(21:56):
actually the Actual Instance team and Danny has and we
beat for the up. We beat it up with knowledge.
So it's like come on from like Ring Conscience back
on Hamilton's and we got Richard Bizario came. We got
we got him in there to come with us. He
was a part of our our team and we got
a nice team of guys who was serious about their innocence.
A Cal Harris who ultimately just beat his beat his
uh his wife's murder of the state. He was in
(22:18):
prison for killing his wife that he didn't do, had
three trials with justice honor. He was a part of
the team and we would get to the Low Library
and we would study each other cases, help each other's out,
and help people in the population now. But what we
would do would be the most biggest critic on each
other's case. And if we thought that there was a
question as to a witness credibility, we would bring it up.
(22:39):
And we thought there was a floor. And when I
brought to the teams, I said, here's a problem I'm
having is that pr we need to get public relations,
public media involved in letting society know that we exist.
And you know, they thought I was crazy at the time.
I said, I'm gonna get my family to go do
(23:00):
a rally outside of the Brooklyn Supreme Court. And I
had a motion at the time, and I sent my
family down to do a rally and it wound up
on the front page, well a big page whether it
was in the daily news, and it says inmates will
go free if the court. Here is witnesses and having
that auticle around the dairy news for the AI team
(23:21):
was a whole different level of organizing. Now Here are
guys who were down trotten, who had been beat up
by the criminal justice system, motion denied, denied, and they
knew they was innocent. There was no doubt that we
was innocent. There was overwhelming evidence in each of our
cases to prove that. But we were being treated as uh,
you know, as if we didn't exist, that we didn't count,
that the Lord didn't apply to us, because society thought
(23:44):
we were bad people, that we wasn't human beings who
deserved to be treated fair. And when that article came out,
it showed the team how much power we have if
we can organize our families or in society to make noise.
And we did that. So now you're organizing against and
outside the wall. So what we what? We decided to
strategize while to contact Lonnie Sorry, who was a PR
(24:06):
guy that worked in a Marty Tankliff case. I reached
out to Lonnie and I sent them five hundreds and
I said, Lonnie, look that's all I got man, and
guys my commentary of money. Hey, I only the eight
what we need you? And my wife called Lonnie and said, Lonnie, well,
Derek says you organized and the rally outside the city hall.
And he says, I didn't tell Derek I was organized
(24:26):
in the rally outside city Hall. And then I said,
have everybody family call him. So Lonnie was getting phone
calls from all our families and friends, and he told
my wife what a Derek doing in me? He got
people calling me saying I'm giving the rally. But he
was convinced to give the rally and it was our
first one. We was all in prison. Lonnie went out
there without family, about fifty people and we was able
(24:46):
to see the pictures and see the news and the
way he made of it, and he empowered us. Let
us know that you know, people did care about the
wrong we convicted because we was on the steps of
city Hall and had a nice turnout. So that began
us really had then a sense of power normal we
can do um with with with just you know, our
families and educating people or what's happening to us. So
(25:09):
I mean, during that process, I began to write lawyers,
UM acting for help. UM. Lannie was helping me. It
was very much an advocate of mind at this time
helping me and Jonathan Ellostein from Ellistine and Gross from
It Begin wrote me back and said that he was
sickened about what had happened to me, being a lawyer
for seventeen years think he said. He said that he
was really troubled how the course was strong, my evidence
(25:30):
of innocent in the garbage, and he said, I think
you should go to the media with this. And I
sent him a check for fifteen hundreds and said this
is all I got left. Um, would you be my lawyer? Said,
I'm sending your check back because I can't take your money.
Your emotion is immaculate, but what I will do is
right of friends to the court brief and I act
the court to grant you're hearing on your evidence of innocent.
(25:52):
Your emotion is immaculate. Yes, it must have felt pretty
good about that. And what kind of education did you
have before this? G d um Blackstone School to law um,
even the college courses they had. You know, I just
couldn't see myself spending on my working out was in
college and I had to actually learn law, and it
wasn't teaching law courses there, So I had no interest
in going to college. I had to be in the
(26:13):
law libury but um, and at that point Mrs Ellerstein
wrote me back. I felt great and um. The judge
denied my motion. Um, he found that there was a
law of court and the jurisdiction that he couldn't overturn
the previous judges who denied previous four or forties and
three thirties point thirty. So he was kind of the
(26:33):
bond that he would not refers to conviction. At that point,
Jonathan Ellerstein became my attorney. He said that he would
foil leave to your tele division on my behalf free
of charge. And UM. He also um decided to write
a letter to the parole boy on my behalf. And
he wrote a very churching letter to the parole Board
(26:54):
and basically told the parole board that society has no
interest and keep an innocent man in prison. So he said,
this man is not a risk of society because he's innocent,
and he outlined all the events that we had to
prove that I was innocent, and he basically invited them
to take a look. Um. The barod Board released me
based on the letter, amongst other things, and wished me
(27:15):
good luck and prove my innocence. Um, this is what
you're we in thousand eleven December two thousand eleven. So
you've been in for twenty one years on the second
wrongful conviction at this point, right, total of seven. If
there's only three cases I know of in the hundreds
of exonerations that we've had Innocence Project and other projects
(27:36):
that there where there's been somebody who's been wrongfully convicted twice,
there's only three. So I'm home and I'm busting my
(27:57):
butt to find a job. Um A text Scott Burton
not I'm a previous lawyers at them home. You know,
I got a priallegal degree, and I think post conviction
is the place to go. There's a lot of guys
left in us in a sense we should work in
these cases. And we started working. Um my wife contacts
me one day and says she gets an email. We'll
share emails, and some investigat or detective contacted and said
(28:19):
they wanted to get in touch with you. I said,
I'm going to Canada. Now I'm out of here. What
do you may they want to get in touch with me.
I don't want to speak to nobody. What do you
want to talk to me about? Not me? I'm thinking that.
So I'm scared and I call a guy and he says, no,
I worked for a lawyer by the name of p Assessment.
He says, uh, Pierre wants to speak to you about
(28:43):
Louis Scott Seller and I says, okay, what do you
want to meet me at? He says, up in the
bronx by the courthouse. I go up and meet this guy,
and you know, I look out, you know, it's crossed
the street, you know, checking out the scenario seeing me first,
and I see a guy and I called me, picks
up the phone, so I'm one of my way says what,
I'm over here weight and he looks like a hipster,
(29:04):
you know, he got a trench cold on. And I said, well,
you don't too much took like a cop because he
got you know, the hippy kind of looked with him.
Maybe I can trust this guy, so I'll go over
and introduce myself. And he tells me that he has
a prison uh inmate who will be released in two
weeks and that the d a's office in King's County
agreed that Louis Scotts tell a frame this guy. And
(29:26):
for me it's like wow, like somebody was finally able
to establish that this cop has been doing the things
we've been arguing for a long time. When I say,
we am thinking about Chewbacca, Alvin, Jeannette, Robert Hill, Jaral Orson,
all these guys, Nelson Cruz, these guys who I know
that he framed personally know that he framed, and I'm saying, wow,
(29:49):
we have an opportunity. So in the course of this UM,
he asked me about my case, and I said, I
have a lawyer, but I introduced him to Jeanette Hill
and Austin who he has gotten hissnerated. Uh as of now,
they've been resonating and and um, I tell them about
those guys and Teresa Goldmans how Scarseller used hunting six
different homicides and and he was surprised that even here
(30:11):
that because he didn't know about that at the time.
And he says, okay, well, I can't tell you the
name of my client that's gonna be released, but in
two weeks they're gonna release, and please you don't contact
me again. In two weeks, David Ranton was released. The
first guy who was ever able to establish the scar
seller had told the witness to pick out the guy
(30:32):
with the hook knows, which was how he identified Roundt.
And it established what we've been saying, that this is
the tactics and the strategy of this copy used to
convict innocent people. So after after having learned this and
David Ranta's release, I run into a reporter by the
name of Francis Robos from New York Times, and Robos
is investigating Julio Asservato case and she calling us to
(30:55):
learn more about Hasservado. Asservator was a guy that was
accused of killing the real fifty said originally who fifty
cent got his name from? And I got Assurveado out
of prison on the four or forty emotion, got his
judgment vacated and released because he was kidnapped by drug
dealers made to kill the fifty cent. It was under
durest and once the judge charged the jury, if he
(31:16):
can prove he did it undurest, they had to find
him not guilty. I got the evidence, got the guy
to prison. So rollers wanted to know who was as
Surado and he had a car accident in Brookelyn three
ascetic Jewels had died. His face was all over the
news recently at that time, and I got him to
surrender himself, coming and and deal with the case, don't run,
because it wasn't his best interest. And she asked, what
(31:41):
Why would he be afraid of the cops. Why would
this guy be so afraid of the cops. And I said, look,
here's a guy that was arrested previous. He told the
cops the truth, how he was kidnapped, pistol with a
made a committed murder. They didn't believe him. He spent
ten years in prison. Had I not got him money,
probably would have still been there. I said, is it
got it's afraid me. I'm a guy, big guy, but
(32:02):
I'm afraid of the cops. Cops framed me twice, and
you would be afraid of the cops if they framed
you once. I mean absolutely. And I said, look, I
was just informed by a lawyer that in two weeks
the cop that framed me and others is for the
first time going to be revealed as being that type
of cop. I said, if it happens, get in touch
with me. I'll give you the evidence to stab that
(32:23):
there's others and we made a deal. In two weeks
round it was released, I got a call from Francis
Rovers and says, hey, you got that evidence that you
was just talking basically, And I introduced it to Jeanette
and she and she did a very good investigation, and
the New York Times got the King's kind of das
offers on the Charles Eyes then to agree to look
(32:45):
at fifty five of scar Seller cases. Fifty five at
that time, people, I mean, when you think you know
and everything is it's so hard to imagine, I mean,
even what one person could go through. But fifty five
is such a huge number. Yes, the one person could
cause that much destruction and damage to so many people's lives.
Ironing sidentification, false confessions, fail to turn over the discovery.
(33:09):
This is our criminal justice system, man. When you deal
with the ones that we can fix, like Ronan sidentifications, Um,
there have been studies that you know about and I
know about that says that we can fix the Ronining
identifications by having something called double blind lineups where the
cops doesn't know who the suspect is, so there's no
fear that they will suggest to pick out number three
(33:31):
or pick out the guy with the hook knows. But
I want to go back there for a seconse. I'm
glad you brought that up. So the Supreme Court actually
took on this issue. Yes, and I'm reading from a
book I consider like the Bible, which is called Convicting
the Innocent by Brandon Garrett. Shout out to shout out Brandon.
So in Manson Births Breath, weave a case involved in
a prison custodian and Manson not the famous serial, the U. S.
(33:52):
Supreme Court noted the dangers of suggestive identification procedures. The
Court had long recognized quote the vagaries of I witness
identification where the annals quote the annals of criminal law
are rife with instances of mistaken identification. And in that
in that decision, the Court affirmed that the due process
clause of the Constitution, which everybody's familiar with, embraces the
(34:12):
right to be free from unduly suggestive eyewitness identification procedures. Okay,
now we're on the right track, Thank you, Supremes. Right, Okay,
Each such as showing the eye witness a single photograph
of the suspect, or telling the witness whom to identify
any lineup which we know has happened over and over again,
including in some ways in your case. However, and this
(34:34):
is where it's it all falls apart. However, the Court
and Manson, in the same rule added a caveat that
undercut the power of that holding, because even they found
that even if the police engage in suggestive procedures so
potentially suggestive that they violate due process, the identification may
still be admitted at trial if it is otherwise quote reliable.
(34:56):
I mean that is just I mean, okay, so they
said you can't do this, but it's okay if you do. Yes. Basically,
that's what they said, right, yes, basically because who determined
reliability number one? And they didn't set forth for tests
to determine reliability. But they said, if there's an independent source.
So now what they do is they instructor witness. Hey, hey,
(35:18):
you've seen a guy before, right, I was seeing before. Yeah,
I've seen him once or twice and the supermarket with
his mother, and they make that the independent source. However,
if the person could have identified you, then when it
cops first accident who committed the crime, he should have said, hey,
a guy that I saw on the supermarket with his mother.
You know, it was a guy who committed his crime.
That's the problem. A lot of times when they say
(35:40):
something suggestive, they allow them to use the reason that
they believe is reliable that no reasonable person would find
to be relicked, which they can invent. And we all
know so basically that that's a that's a ruling that
has to be amended because it's so, it's so, it's
really it's such a terrible missed opportunity. Whether it's the
Preme Court recognized this problem them that has been responsible
(36:01):
for so many wrongful convictions, including yours, But then they
undercut their own decision and made it basically truthless and meaningless,
and so so then we wind up in the situation
that we're in. I think that the audience should work
on with us putting prosecutors in office to understand the
danis of wrongviction. In Brooklyn, we had a prosecute to
(36:22):
run on that platform. We need shout out to one
of the best there ever, was twenty something wrong for
convictions and overturns, yes, overturning two years. We need prosecutors
who are willing to understand that a part of their
job a part of the role. It's quasi TOI issue,
you know, Canada to the courts, fitness to the cues,
(36:43):
and we get that, then we can change the system
all around the country. We just need prosecutors who just
don't believe in locking them up throwing a key way
but injustice. Don't forget to give us a fantastic review
wherever you get your podcast s, it really helps. And
I'm a proud donor to the Innocence Project and I
(37:04):
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 Awardis. The music in the show is
by three time OSCAR nominated composer Jay Ralph. Be sure
to follow us on Instagram at Wrongful Conviction and on
(37:27):
Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason Flam
is a production of Lava for Good Podcasts in association
with Signal Company Number one
I came from a beautiful neighborhood, had a beautiful life.
I went to sleep because September seven 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 drawn, and I never saw
(00:22):
freedom ever ever since after that. It's like roach moketown
once you get in and I can't mount. This is
wrongful conviction with Jason Flom today, I'm honored, and I
(00:56):
don't use that word lightly to have as our guest,
Derrick Hamilton's welcome to the show. Thank you for having me.
Glad you're here. Derek. Your story is extraordinary in so
many ways, and I don't even know where to begin,
but I guess we should really take it back to
the beginning and we'll save the reveal like they do
in Hollywood, and what you're doing now and what you've
accomplished in your life over extraordinary obstacles that are almost
(01:20):
unimaginable obstacles. But let's go back to the beginning and
talk about how this began. You're You're a New Yorker
born and bred like me from Brooklyn, Okay, Brooklyn in
the house all right, Neppi Stobinson neighborhood UM with violence
was you know, you know it was UM very tough
housing project. I grew up in Lafya Gardens um where
(01:40):
it was kind of like uh one block with eighty
thou people on it, you know, in the housing project.
And if you got a basketball, you had to go
outside and fight for your basketball. If your mother father
bought your pitts sneakers, you had to fight for your sneakers.
It was very depressant. And every little kid wants what
the next little kid has, and if your family don't
has it, they advotate to try to take it. So
(02:01):
it was tough stuff and you had some early scraps
with a lot. Why don't you talk about it? Absolutely.
I was a young kid about sixteen and seventeen and
got into a life of crime. UM attempted to rob
someone with the prison for that UM. Ultimately I was
released and I was out. Some older guys had committed
robbery of a bread truck and I actually killed the
(02:21):
truck driver. UM. I was outside that day when the
crime happened. I've seen the action I actually seen it,
and actually the guy that had asked me to look
out for them if the cops came, just whistle or
something of that sort. The next day, UM, walking down
to block, the police officers picked me up. UM, and
they don't question me about the crime, but they just
take a picture of me and asked me at my
(02:43):
Derik Hountard and I said they knew me previously from
the incident that I had attempted robbery, so UM, I
took ane of it. UM. I left out the precinct.
One week later, they arrest me for the murder of
James Wolf. And it just stunned me because I know
I didn't kill Mr. Wolf. I know I wasn't the
father in the crime. But what I learned is that
one of the older guys who actually committed the crime,
(03:05):
who car was identified as the car scene fleeing from
the scene, was able to convince the police officers that
he loaned the car to me, a seventeen year old kid,
um with no license with anything. And the cops actually
believed that story. Um. And we've seen this in a
number of cases where the actual killer is and you
could say here being smart, right, they know that their
(03:26):
way out is depended on somebody else. Well, first of all,
I was from the housing project right where the crime happened.
He wasn't, so it seemed more obvious that I was,
you know, likely suspect to get But in any event,
I go to trial and during the course of the trial,
my lawyer tells me that there's a witness outside in
the hallway who called out and explained to my lawyer
(03:49):
that she would refuse to testify. Her name was Patricia Lee.
She said the cops had forced her to going to
grand jury and identify me as someone she saw outside
the housing project who spoke to her after the murder
happened and said, I panic and I thought I shot
the guy in the arm um. She said she would
refuse to testify. She couldn't get up on to stand
and tell that lit. My lawyer came back in and
(04:10):
reported this to the court and said to the court
there's a witness in the hallway that we never know
existed who said this to me. And then the court said, well,
let's bring the witness. And the witness comes in and
the prosecutor asks for something called a so roy sharing
in New York and uh, and the s roy sharing
is people were so Roys. And what this hearing does
(04:31):
is it puts the burden to proof on the prosecutor
to proved by clean, convincing evidence that I waved my
right to confront the witness at trial if me or
someone acting for me made the witness a law refused
to testify. So the judge held this terroys hearing, and
the witness testified that it was the cops who in
fact rereatening her and made her allie the grand jury,
(04:51):
that me and nobody acting for me ever had any
involvement with her whatsoever. In fact, we never knew she
testified in the grand jury. So right, So the judge
ruled that day that he could not allow the prosecutor
to use this witness grand jury testimony against me his
evidence in chief. In fact, he had heard not one
iota of evidence that me and anybody acting for me
(05:13):
did anything wrong, right, because the case was hinged on
the eyewitness testimony, which we know is one of the
most powerful things in the criminal justice system. Absolutely right.
So now so now you're feeling like, okay, can I
go home now? Right? So they drink and they drent
for one day and he said, you got to tomorrow
to come up with something. Unreleased this guy. We returned
(05:34):
to court the next day and the judge said his
previous ruling the day before troubled him all night, that
he felt that the only one that would benefit from
the witness refusal to testify is me or somebody acting
for me, and that because of that, he wouldn't allow
the prosecute to use the grand jury testimony against me
his evidence in chief and find that I weighed my
(05:55):
right to confrontation. At that moment, the lawyer that I
had a candice courage. The very nice lady Uh asked
me that I understand what was going on in the proceedings.
I said somewhat, and she says, kid, it is time
for you to learn what's going on. And she gave
me two cases and said you need to read those overnight.
But in any event, she told the judge that she
(06:16):
would have to testify and become a witness, and she
would have to take the stand to explain what the
witness told her in the hallway, in the bathroom, whatever
the conversation happened, and had to, you know, show that
there's no evidence that me and anybody did anything wrong.
The judge reopening hearing, my lawyer testified, and he still
stuck by his decision. I was convicted based on the
grand jury testimonies of Patricia Lee. I was sentence to
(06:37):
twenty five years in life in prison for a murder
I did not commit. Um And five years later the
appel Divasian second apartment in the case rude that the
lower court was wrong, that they vialated my right to
confrontation by admitting the grand jury testimonials evidence achieve against me,
that I never forfeit my right, that there was no
(06:58):
evidence whatsoever that me need by Tampa, with the witness
and every verse occasion, we managed it back down for
a new trial. Anyone listening is gonna be going just
like I'm going, Well, okay, now you go free. Right. Yes,
Except that's how what happened, not exactly because I was
somewhat coarse to take a plea, an outfit plea. Because
I started a second trial. When the Pelo Division reversed
(07:19):
the ordered a new trial, the prosecuted instructed the judge
to jury, actually in the open insummation, that they should
find me guilty of attention to murder and a second
degree of crime in which I was acquitted of at
the first trial. Sounds like that what jeopardy right? UM.
I spoke to my lawyer about it, and I said,
this was acquitted that. Um. He brought it to the
(07:40):
course attention after the jury stepped out of the room
and the judge market was who was at the time
she deceased now, UM indicated that, well it was a mistake.
We're not giving you a mistrial. UM. Yes, the prosecutor
was wrong. Yes she was acquitted of it. But we're
gonna dispose of this chase one with another. And my
(08:01):
lawyer pulled me to the side and said, loo, as
you see, they're not trying to be fair. And you
know I had a conviction for a weapon at that
time as also, so you said you got five years
for the weapon. You're not going to run for man.
You see they trying to railroad you. They're willing to
give you outfit plea. And for the people that understand well,
United States Supreme courted Outfit versus North Carolina. UM rendered
(08:25):
that a plea can be took with approachon doesn't have
to be alcuted. They doesn't have to talk about the
underlying factors of the case. You say, because there's a
likelihood I may be convicted, not because I'm guilty. I
accept the conditions of this plea. Right, So you're not
admitting guilt, but the government is not admitting innocence. Right,
So you're basically in like a sort of a gray area,
(08:47):
so to speak. Right, But basically you're allowed. You can
go home, which is what everybody wants. But you can
never sue the government. You cannot sue the state. You cannot.
You have no recourse, no recourse at all, right, because
they're never admitting that they were wrong. Right, Okay, so
now you're out, Yeah, I'm out. Um, and what happened?
So now you're twenty, I'm at that point probably about
(09:08):
twenty three. Back to bed stock, Yes, back to back
is still crazy out there. Still it's crazier than when
I left. I mean when I left in eighty three. Um,
the drug game wasn't as track cocaine number was in
the community at that time. I'm gonna hit my community
in a very very hard way. Um, it was like
(09:30):
being a different community. I mean, you came home, there
were mothers who was strung out on crack, there was
whole families who was shrunk out on crack. There was
individual now who were drugs ares, who was running the neighborhood. Um,
it was just a different environment. Um, this is eighty.
This is a father was killed in pepper stopus in
(09:54):
UM a year before. So I'm coming home with that.
I mean, there was a lot of different She was
shout and killed in stopuson a year before that. So
I'm coming home with um, you know, the idea of
getting my life back together, getting my family back together.
I was a mechanic help at the being in garage.
I'm probably going to prison. And at a young age,
I used to always work at a gas station on
(10:14):
Franklin and and Clifton and Brooklyn. And a nickname I
had was Amicole Jr. Because I love cars so much,
and I worked in grease monkey type of stuff. So
when I came on, Benjamin Oliver, my previous employeer, gave
me a job and I was working with him, you know,
changing all doing little things around the shop. Some things
are looking up. I was looking up, and and my
father left me some money to invest I got from
(10:36):
this insurance policy to invest in the beauty salant. So
I opened that in new Haven, Connecticut, and I'm moving
along with my life. I'm being knownst to me that
there was a detective and members of the district Cottunity's office.
By the way, is an interesting combination working on cars
and doing beauty right ultimate Paris unisex Alon saying you
got Harrison, I got home. Thank go Um Okay, so
(11:00):
things are looking at right. And you know, i got
two children, a six year old son and uh six
year o daughter with tw different women. So I'm trying
to be the best father I can, taking them in school,
picking them up. And I'm being knownest to me that
there was some individuals in law enforcement who had me
on the radar who felt that the system had failed
them Umi, who still believe that I was guilty for
(11:23):
the death of James Wolf, the young man that was killed,
and there were some cops that was very upset about it. Um.
In January of a friend of mine by the name
of the Daniel Cash was shouting killed in Brooklyn outside
his home in Battis Stobinson. Yes, Um, I was in
(11:44):
new Haven, Connecticut that particular day, having stayed over the
night before for going away party for a friend of mine.
Um got a phone call Indie Katon, actually Nadaniels cash
child mother received the phone call from my mother who
indicated him with the cat shouting killed in Brooklyn and
at some detectives that came by the house looking for
me said this Derek Hire and you weren't there because
(12:06):
you were Conne was in Connecticut, And you know, I
took it as just talk. When I first heard that
the cows was looking for me for this murder, I
didn't believe it, you know, I said, people just saying that.
But when my mother called me and said, the cows
have been by my house, how long have you been
out at this time? At this point, I've been out
probably probably six months, because probably about six months a
(12:30):
New York City detective by the name of Louis Carcella
comes to New Haven, Connecticut in the store to that
owned and operated the British Lion told you about. Now,
let me stop there for a second. Louis Carcella is infamous,
and that's a very nice way of saying very much so. Right.
Louis Carcella is probably responsible for as many or more
(12:52):
wrongful convictions than any um detective in the history of
this country. I believe nine people so far have been
as my number is correct, but there's dozens of cases
that have been reopened because there's it's come out that
there was I mean, for just one example, there was
six different murder cases where he used the same witness
who was a crackhead, where he was applying drugs to
(13:14):
who he was I mean, so this woman was so
lucky that she witnessed six different murders. I mean, that's impossible,
and he was he was bribing her, coercing her. Probably
not the most reliable witness ever and maybe on the
fifth when you'd go nobody could get that lucky. I mean.
But anyway, that's just one example of what he was
(13:35):
up to. So he was the last guy in the
world you wanted to be involved with if you were
in the criminal justice system, because he was going to
get a conviction and he didn't care whatsoever that about
the facts of the case. He was interested in convictions,
not truth. So, okay, so Scarcell is looking for you,
but you didn't know who he was though at this
point I didn't know who he was at this point,
(13:55):
never heard of him. And he walks into the unsectional
that kiss me on the side of my face and
says Lafia gardens, motherfucker, excuse my binacular and automatically tells
me that this guy is from Brooklyn and he says
that I'm under the arrest at that time. He said
it was for a parole violation and it took me
(14:16):
to kissed you on the side of the cheek, on
the side of my cheek, you know, Okay, I don't
even know. Yeah, I mean that's like something strange, like
he thought he was in the movie type of things,
the Mafia figure. He has this big you know, he
looks like Joe Pessi, a tolder Joe Pessi, and I
think he took on that character. But if you ever
(14:38):
see him testify or see his grand daughter, he just
has that you know, big Italiano mafio so look, and
I think he just stopped playing that role at some point.
But he came in and kissed me on the cheek,
arrested me, took me to the Union Avenue station in
New Haven, Connecticut, and told me there that I was
being arrested for the definite Daniel Cash, that he had
five woodnesses who could't identify me, and say I killed
(14:59):
this young man I told him I was innocent, and uh, yes,
absolutely told me I was. He said he had five
witnesses that disagreed and that he was arresting me for UM.
I was transported back to Brooklyn. The rain on the
indictment pled not guilty, um, and we began the process.
(15:21):
And you know the criminal justice system, here we go again,
and yes, here we go again. The soul witness groundhog
Day that accused me of the murder came to my
lawyer four days after my arrest. Name to my lawyer
that she never saw the crime. So there wasn't five witnesses,
that there was one. There was one. There was a
single witness who had told the cops immediately at the
(15:41):
crime scene she didn't see it, that she was at
the store. When she came back, a board friend was
shot and killed. Um. She was beat up at the
scene the crime. Took to the precinct with the technical
scars that have told her that if she didn't implicate
me in the murder, that she herself would go to
jail for the crime. She was on parole. Kids too,
They had two children, and they told us they would
(16:02):
lock up because her boyfriend was a felon who had
just got out of prison himself and she had no
business being with him, so they said because you in
which case she would lose custody of her kids. We
see this over and over again with women. It's one
of the strongest threats that you can make to a
mother is listen, you're going to testify the way we
want to. And they'll probably tell her to and listen,
by the way, this guy is a bad guy. If
(16:22):
he didn't do this, he did some other stuff. You're
doing society favor. They tell whatever the hell they want
to tell him. But mostly the only thing a woman
in that situation is going to hear is you're gonna
lose custody of your kids. And what she said was that,
you know, it was either her or meat in her
mind that they told her if you don't say this,
you're going to jail, and she wasn't going to jail. She,
(16:43):
like you said, she had kids, So she just went
along with the statement desk with which indicated that he
saw me come to the building, and some young man
passed me a gun, and I got the gun and
I shot down you cast several times inside the vesta
of the building, um which doesn't match very well with
(17:04):
the original story that she gave where she wasn't there
when the crime was committed, so that story changed. Yes,
nor doesn't match with the science or the ballistics evidence
of the case. Guy was shot with two different weapons
and he was shot outside the vessel with the building
in the street, with the ultimate shot that killed him,
which she never saw, um which she was inaccurate and
(17:29):
saying he was shot in the building about one gun.
The fact that they learned this before the trial, the
fact that they knew that her story was totally inaccurate
with science. No one ever went to it and said, hey,
you're lying. You know you saw it. How did you
miss this? They didn't care, and what they actually did
was false heart. Even though she told them and she
(17:49):
didn't want to come to the trial to testify, they
locked it up on a mature witness order, brought it
before the judge who was at with Rappaport in Brooklyn,
and told her that she would go to jail, which
is on the record, if she didn't come in and
cooper rate fully with the prosecutor, not truthfully, but fully.
Whatever the prosecutor tells you to do, this is what
you better do, Derek. One of the things I find
(18:20):
so fascinating. One of the reasons I said I was
honored to have you here is because Derek became a
very accomplished jailhouse lawyer. Um, if that's I don't know
if that's the right way of saying it. So in
your second stay in prison, right, which was twenty one years,
so here it is. Derek's fifty one years old, spent
twenty seven years in prison between the two different wrongful convictions.
(18:43):
So that's more than climps about your life in prison, right,
And this is one of the things that I find
so inspiring. You said something along the lines of I
didn't have time to work out And it's funny because
you look like I mean, there's a big, big, strong guy.
You guys looks like Mike Tyson, honestly, But but you
didn't have time to work out him. Because why my
(19:04):
whole life was spent on getting out. I was an
average student of the law Livebury. Um, I spent all
my working hours there if I could, and when I didn't,
you would find me probably in the cell reading the
book and educate myself on the criminal justice system, the
processes that take taking VICTI person to appeal and post conviction.
(19:24):
I had to master that. I mean, if I was
able to level the playing field, then I had to
be the most intelligent person in the court. And that
was my goal to study, to walk in the court room,
to be able to understand the process. And I just
read everything. They happened a lot bury. I just studied everything.
But it wasn't just that you had a team right
when the team came later. But I tell you about
(19:46):
my great team because I looked at it. It was
like a law firm in prison, right and too right
it was. It was. It was a very good team.
In two thousand nine, arrived at the Orburn Correction Facility,
maximum security prison. I was in segregation at the time,
almost a very dark woman of mine in conservation because
I had began going to the parole board in two
(20:06):
thousand nine. When I began going to the parobe but
I had a dilemma where they wanted you to admit
guilt and I couldn't make guilt. And that is a dilemma.
We see it over and over again with guys in
your situation who are faced with you gotta admit guilt
if you want to have any chance to get out.
So actually, when you have a twenty five years a
life sentence, it's it's a life sentence unless you're going
(20:28):
to admit to a crime that you didn't commit. Otherwise
it's life because the parole board is never gonna say, yeah,
let let this guy go unless you come in and
go I'm so sorry. I never should have done this.
I feel guilt, I feel remorse, I feel like it.
But it's hard to feel remorse for something you didn't do. It.
Didn't do it, So I'm not this dilemma tempt suicide.
Um the facility no mercy says I faked the suicide attempt,
(20:48):
and throw me in a box twenty three hours a
day and you have one hour without the side of
the day in a cage, a dog kennel type of cage,
if you can imagine, right, and you are, I mean,
you're just subjected to some of the most horrendous treatment
in the world because you're around a lot of mentally
ill prisons that bang and throw feces and urine, and
you're subjected to a very degrading time. So I'm there
(21:11):
and I get to say a letter from the Low
Library because the cops bring two books a day, you
allowed and special housing. And the letter says, hey, man,
I'm glad you're here from God in Loal Liberry. We're
waiting for you, you know, to get out and we
look forward to working for you. And it's Danny Rinkard.
And when I get out of the box um, a
friend of mine said, hey, Danny has a group and
(21:35):
the group is called Actual Innocence and these guys want
you to come work the Lowal Liberator. And you're smart,
they know you know what you're doing, and they need
you to come out here and lead the group. And
at that time they have furnishing box Chore who was
another scott Seller victim who's out now as well. It's
working as a clerk. And I convince your baka to
come to the Lord Library and we developed, we joined
(21:56):
actually the Actual Instance team and Danny has and we
beat for the up. We beat it up with knowledge.
So it's like come on from like Ring Conscience back
on Hamilton's and we got Richard Bizario came. We got
we got him in there to come with us. He
was a part of our our team and we got
a nice team of guys who was serious about their innocence.
A Cal Harris who ultimately just beat his beat his
uh his wife's murder of the state. He was in
(22:18):
prison for killing his wife that he didn't do, had
three trials with justice honor. He was a part of
the team and we would get to the Low Library
and we would study each other cases, help each other's out,
and help people in the population now. But what we
would do would be the most biggest critic on each
other's case. And if we thought that there was a
question as to a witness credibility, we would bring it up.
(22:39):
And we thought there was a floor. And when I
brought to the teams, I said, here's a problem I'm
having is that pr we need to get public relations,
public media involved in letting society know that we exist.
And you know, they thought I was crazy at the time.
I said, I'm gonna get my family to go do
(23:00):
a rally outside of the Brooklyn Supreme Court. And I
had a motion at the time, and I sent my
family down to do a rally and it wound up
on the front page, well a big page whether it
was in the daily news, and it says inmates will
go free if the court. Here is witnesses and having
that auticle around the dairy news for the AI team
(23:21):
was a whole different level of organizing. Now Here are
guys who were down trotten, who had been beat up
by the criminal justice system, motion denied, denied, and they
knew they was innocent. There was no doubt that we
was innocent. There was overwhelming evidence in each of our
cases to prove that. But we were being treated as uh,
you know, as if we didn't exist, that we didn't count,
that the Lord didn't apply to us, because society thought
(23:44):
we were bad people, that we wasn't human beings who
deserved to be treated fair. And when that article came out,
it showed the team how much power we have if
we can organize our families or in society to make noise.
And we did that. So now you're organizing against and
outside the wall. So what we what? We decided to
strategize while to contact Lonnie Sorry, who was a PR
(24:06):
guy that worked in a Marty Tankliff case. I reached
out to Lonnie and I sent them five hundreds and
I said, Lonnie, look that's all I got man, and
guys my commentary of money. Hey, I only the eight
what we need you? And my wife called Lonnie and said, Lonnie, well,
Derek says you organized and the rally outside the city hall.
And he says, I didn't tell Derek I was organized
(24:26):
in the rally outside city Hall. And then I said,
have everybody family call him. So Lonnie was getting phone
calls from all our families and friends, and he told
my wife what a Derek doing in me? He got
people calling me saying I'm giving the rally. But he
was convinced to give the rally and it was our
first one. We was all in prison. Lonnie went out
there without family, about fifty people and we was able
(24:46):
to see the pictures and see the news and the
way he made of it, and he empowered us. Let
us know that you know, people did care about the
wrong we convicted because we was on the steps of
city Hall and had a nice turnout. So that began
us really had then a sense of power normal we
can do um with with with just you know, our
families and educating people or what's happening to us. So
(25:09):
I mean, during that process, I began to write lawyers,
UM acting for help. UM. Lannie was helping me. It
was very much an advocate of mind at this time
helping me and Jonathan Ellostein from Ellistine and Gross from
It Begin wrote me back and said that he was
sickened about what had happened to me, being a lawyer
for seventeen years think he said. He said that he
was really troubled how the course was strong, my evidence
(25:30):
of innocent in the garbage, and he said, I think
you should go to the media with this. And I
sent him a check for fifteen hundreds and said this
is all I got left. Um, would you be my lawyer? Said,
I'm sending your check back because I can't take your money.
Your emotion is immaculate, but what I will do is
right of friends to the court brief and I act
the court to grant you're hearing on your evidence of innocent.
(25:52):
Your emotion is immaculate. Yes, it must have felt pretty
good about that. And what kind of education did you
have before this? G d um Blackstone School to law um,
even the college courses they had. You know, I just
couldn't see myself spending on my working out was in
college and I had to actually learn law, and it
wasn't teaching law courses there, So I had no interest
in going to college. I had to be in the
(26:13):
law libury but um, and at that point Mrs Ellerstein
wrote me back. I felt great and um. The judge
denied my motion. Um, he found that there was a
law of court and the jurisdiction that he couldn't overturn
the previous judges who denied previous four or forties and
three thirties point thirty. So he was kind of the
(26:33):
bond that he would not refers to conviction. At that point,
Jonathan Ellerstein became my attorney. He said that he would
foil leave to your tele division on my behalf free
of charge. And UM. He also um decided to write
a letter to the parole boy on my behalf. And
he wrote a very churching letter to the parole Board
(26:54):
and basically told the parole board that society has no
interest and keep an innocent man in prison. So he said,
this man is not a risk of society because he's innocent,
and he outlined all the events that we had to
prove that I was innocent, and he basically invited them
to take a look. Um. The barod Board released me
based on the letter, amongst other things, and wished me
(27:15):
good luck and prove my innocence. Um, this is what
you're we in thousand eleven December two thousand eleven. So
you've been in for twenty one years on the second
wrongful conviction at this point, right, total of seven. If
there's only three cases I know of in the hundreds
of exonerations that we've had Innocence Project and other projects
(27:36):
that there where there's been somebody who's been wrongfully convicted twice,
there's only three. So I'm home and I'm busting my
(27:57):
butt to find a job. Um A text Scott Burton
not I'm a previous lawyers at them home. You know,
I got a priallegal degree, and I think post conviction
is the place to go. There's a lot of guys
left in us in a sense we should work in
these cases. And we started working. Um my wife contacts
me one day and says she gets an email. We'll
share emails, and some investigat or detective contacted and said
(28:19):
they wanted to get in touch with you. I said,
I'm going to Canada. Now I'm out of here. What
do you may they want to get in touch with me.
I don't want to speak to nobody. What do you
want to talk to me about? Not me? I'm thinking that.
So I'm scared and I call a guy and he says, no,
I worked for a lawyer by the name of p Assessment.
He says, uh, Pierre wants to speak to you about
(28:43):
Louis Scott Seller and I says, okay, what do you
want to meet me at? He says, up in the
bronx by the courthouse. I go up and meet this guy,
and you know, I look out, you know, it's crossed
the street, you know, checking out the scenario seeing me first,
and I see a guy and I called me, picks
up the phone, so I'm one of my way says what,
I'm over here weight and he looks like a hipster,
(29:04):
you know, he got a trench cold on. And I said, well,
you don't too much took like a cop because he
got you know, the hippy kind of looked with him.
Maybe I can trust this guy, so I'll go over
and introduce myself. And he tells me that he has
a prison uh inmate who will be released in two
weeks and that the d a's office in King's County
agreed that Louis Scotts tell a frame this guy. And
(29:26):
for me it's like wow, like somebody was finally able
to establish that this cop has been doing the things
we've been arguing for a long time. When I say,
we am thinking about Chewbacca, Alvin, Jeannette, Robert Hill, Jaral Orson,
all these guys, Nelson Cruz, these guys who I know
that he framed personally know that he framed, and I'm saying, wow,
(29:49):
we have an opportunity. So in the course of this UM,
he asked me about my case, and I said, I
have a lawyer, but I introduced him to Jeanette Hill
and Austin who he has gotten hissnerated. Uh as of now,
they've been resonating and and um, I tell them about
those guys and Teresa Goldmans how Scarseller used hunting six
different homicides and and he was surprised that even here
(30:11):
that because he didn't know about that at the time.
And he says, okay, well, I can't tell you the
name of my client that's gonna be released, but in
two weeks they're gonna release, and please you don't contact
me again. In two weeks, David Ranton was released. The
first guy who was ever able to establish the scar
seller had told the witness to pick out the guy
(30:32):
with the hook knows, which was how he identified Roundt.
And it established what we've been saying, that this is
the tactics and the strategy of this copy used to
convict innocent people. So after after having learned this and
David Ranta's release, I run into a reporter by the
name of Francis Robos from New York Times, and Robos
is investigating Julio Asservato case and she calling us to
(30:55):
learn more about Hasservado. Asservator was a guy that was
accused of killing the real fifty said originally who fifty
cent got his name from? And I got Assurveado out
of prison on the four or forty emotion, got his
judgment vacated and released because he was kidnapped by drug
dealers made to kill the fifty cent. It was under
durest and once the judge charged the jury, if he
(31:16):
can prove he did it undurest, they had to find
him not guilty. I got the evidence, got the guy
to prison. So rollers wanted to know who was as
Surado and he had a car accident in Brookelyn three
ascetic Jewels had died. His face was all over the
news recently at that time, and I got him to
surrender himself, coming and and deal with the case, don't run,
because it wasn't his best interest. And she asked, what
(31:41):
Why would he be afraid of the cops. Why would
this guy be so afraid of the cops. And I said, look,
here's a guy that was arrested previous. He told the
cops the truth, how he was kidnapped, pistol with a
made a committed murder. They didn't believe him. He spent
ten years in prison. Had I not got him money,
probably would have still been there. I said, is it
got it's afraid me. I'm a guy, big guy, but
(32:02):
I'm afraid of the cops. Cops framed me twice, and
you would be afraid of the cops if they framed
you once. I mean absolutely. And I said, look, I
was just informed by a lawyer that in two weeks
the cop that framed me and others is for the
first time going to be revealed as being that type
of cop. I said, if it happens, get in touch
with me. I'll give you the evidence to stab that
(32:23):
there's others and we made a deal. In two weeks
round it was released, I got a call from Francis
Rovers and says, hey, you got that evidence that you
was just talking basically, And I introduced it to Jeanette
and she and she did a very good investigation, and
the New York Times got the King's kind of das
offers on the Charles Eyes then to agree to look
(32:45):
at fifty five of scar Seller cases. Fifty five at
that time, people, I mean, when you think you know
and everything is it's so hard to imagine, I mean,
even what one person could go through. But fifty five
is such a huge number. Yes, the one person could
cause that much destruction and damage to so many people's lives.
Ironing sidentification, false confessions, fail to turn over the discovery.
(33:09):
This is our criminal justice system, man. When you deal
with the ones that we can fix, like Ronan sidentifications, Um,
there have been studies that you know about and I
know about that says that we can fix the Ronining
identifications by having something called double blind lineups where the
cops doesn't know who the suspect is, so there's no
fear that they will suggest to pick out number three
(33:31):
or pick out the guy with the hook knows. But
I want to go back there for a seconse. I'm
glad you brought that up. So the Supreme Court actually
took on this issue. Yes, and I'm reading from a
book I consider like the Bible, which is called Convicting
the Innocent by Brandon Garrett. Shout out to shout out Brandon.
So in Manson Births Breath, weave a case involved in
a prison custodian and Manson not the famous serial, the U. S.
(33:52):
Supreme Court noted the dangers of suggestive identification procedures. The
Court had long recognized quote the vagaries of I witness
identification where the annals quote the annals of criminal law
are rife with instances of mistaken identification. And in that
in that decision, the Court affirmed that the due process
clause of the Constitution, which everybody's familiar with, embraces the
(34:12):
right to be free from unduly suggestive eyewitness identification procedures. Okay,
now we're on the right track, Thank you, Supremes. Right, Okay,
Each such as showing the eye witness a single photograph
of the suspect, or telling the witness whom to identify
any lineup which we know has happened over and over again,
including in some ways in your case. However, and this
(34:34):
is where it's it all falls apart. However, the Court
and Manson, in the same rule added a caveat that
undercut the power of that holding, because even they found
that even if the police engage in suggestive procedures so
potentially suggestive that they violate due process, the identification may
still be admitted at trial if it is otherwise quote reliable.
(34:56):
I mean that is just I mean, okay, so they
said you can't do this, but it's okay if you do. Yes. Basically,
that's what they said, right, yes, basically because who determined
reliability number one? And they didn't set forth for tests
to determine reliability. But they said, if there's an independent source.
So now what they do is they instructor witness. Hey, hey,
(35:18):
you've seen a guy before, right, I was seeing before. Yeah,
I've seen him once or twice and the supermarket with
his mother, and they make that the independent source. However,
if the person could have identified you, then when it
cops first accident who committed the crime, he should have said, hey,
a guy that I saw on the supermarket with his mother.
You know, it was a guy who committed his crime.
That's the problem. A lot of times when they say
(35:40):
something suggestive, they allow them to use the reason that
they believe is reliable that no reasonable person would find
to be relicked, which they can invent. And we all
know so basically that that's a that's a ruling that
has to be amended because it's so, it's so, it's
really it's such a terrible missed opportunity. Whether it's the
Preme Court recognized this problem them that has been responsible
(36:01):
for so many wrongful convictions, including yours, But then they
undercut their own decision and made it basically truthless and meaningless,
and so so then we wind up in the situation
that we're in. I think that the audience should work
on with us putting prosecutors in office to understand the
danis of wrongviction. In Brooklyn, we had a prosecute to
(36:22):
run on that platform. We need shout out to one
of the best there ever, was twenty something wrong for
convictions and overturns, yes, overturning two years. We need prosecutors
who are willing to understand that a part of their
job a part of the role. It's quasi TOI issue,
you know, Canada to the courts, fitness to the cues,
(36:43):
and we get that, then we can change the system
all around the country. We just need prosecutors who just
don't believe in locking them up throwing a key way
but injustice. Don't forget to give us a fantastic review
wherever you get your podcast s, it really helps. And
I'm a proud donor to the Innocence Project and I
(37:04):
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 Awardis. The music in the show is
by three time OSCAR nominated composer Jay Ralph. Be sure
to follow us on Instagram at Wrongful Conviction and on
(37:27):
Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason Flam
is a production of Lava for Good Podcasts in association
with Signal Company Number one
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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