Pełna transkrypcja odcinka #148 Jason Flom with James Davis

party for people with January birthdays. 00:06:09 Speaker 5: Well, my brother birthday was coming up. It was more whatever you want to do, I'm going to participate. Bo is an older guy from the neighborhood that he's like a well like guy. He does parties. He knew my brother as well. Two of them was promoting the party po and another guy, I don't know which one of them my brother. He been talking about his birthday for a long time, so they put him on a flyer. 00:06:35 Speaker 6: I guess Jay was not really a party goer. He was a quiet guy. I think he'd tell you himself he'd rather stay home with friends smoke weed. But he loved his brother. He was fiercely protective, so he decided to go with them as well. 00:06:48 Speaker 5: Well my brother birthday. My plan was the like, we just gonna chill, maybe call up some girls to come hang out at the projects with us, someone making drink for free, and hang out. He was been doing going to the party because his name was on a flyer. So it comes to be almost twelve o'clock and I wanted to surprise my brother. So I walked to the liquor store before it closed to get a bottle on the weet and a bottle of Hennessy. And when I got back, my brother was like, oh, I forgot the party. 00:07:19 Speaker 6: And Jay was not a big drinker, so by the time he got to the party, he had had a few already, and then he persuaded the bouncer to let him or one of the hosts who let him combine the two drinks he was drinking, which were hennessy and champagne, kind of a disgusting combination. He threw them to you know, we put them together. He went into the party, and he proceeded to have a few more drinks in the bathroom because they told him, okay, you can have your own drink, but you have to put some shade on it. 00:07:48 Speaker 5: Before you know it. I was trying to rush my drinks so that we can actually get out of the bathroom. I wanted to see what the party was really like. Plus my brother, you know, smoke, so he's out on the dance floor most of the time. Anyway, I'm like, I want to get out there and actually enjoy some of his birthday with him, and the mixture didn't agree with me. The hennessy and the moat turned my stomach over. That was the start of the end of the night. I threw up maybe once or twice in the bathroom, and before I know it, through the laughing, I hear my brother pretty much like, come on, man, now, I got to take you back home. 00:08:26 Speaker 4: We just got here. 00:08:27 Speaker 5: We ain't even fully been in the club long enough full negotiation. I just told him I just woke me outside, I catch a cab and I go to my girlfriend house. 00:08:38 Speaker 4: So they went outside. 00:08:40 Speaker 6: They got a cab and James called his girlfriend, Caneen Johnson, and took the cab to her place and she met him outside. Her mother didn't like James, so they would stay with her aunt. 00:08:53 Speaker 5: I got there at two forty five, maybe three. So when I got there, she's sitting on the steps already, I step out there cav th got threw up in between cars before I even touched this side. Well, she came running down the steps, rubbed my back, I think, and walked to our house, stop at the store and went into our house. And that was this. I think she even had a couple of jokes and I, hey, y'all, go again. 00:09:19 Speaker 6: So he was long gone Before anything happened. At the party, which was around four in the morning, a fight broke out and somebody was seriously stabbed. We now know that was Jamel Black, and Blake Harper was shot and killed. A couple other people were shot, but not seriously, but James had already left the party hours earlier. 00:09:40 Speaker 1: So you wake up the next morning at your girlfriend Kneen's her aunt's house, really, and one of the guys you were with, Jamel Black, had been stabbed the night before. How did you hear that news? 00:09:51 Speaker 5: Well, both of us up. The news is on. It's about the Masonic temple. Immediately I called my house on the landline, and first thing I asked, is my brother there. My grandmother like, yeah, he came in last night. He's in the room sleep. You know, they had a fight, right, And I asked for my aunt because my auntor probably no more than my grandmother would and my aunt is like, yeah, Jameel got stabbed and this guy got stabbed and somebody got killed. But nobody knew who the guy was that got killed. So I'm like, I'm coming over there. 00:10:28 Speaker 1: I got there. 00:10:29 Speaker 5: My brother pretty much told me I wasn't really involved in it, but it was crazy in it and a fight broke out, people shooting, girls screaming and everybody running. 00:10:39 Speaker 1: Police had responded to the scene and they interviewed a number of people at the club, and no one that they interviewed knew the identity of the shooter. But he was described as a young, light skinned blackmail with braids on the back of his head. Now, James, is that an accurate description of you at that time? 00:10:55 Speaker 5: No, I actually didn't have braids at the time. I had a low sea like waves. 00:11:02 Speaker 1: So police have already interviewed witnesses at the scene the night before. You're a friend who has stabbed Jamel Black. They call his house, but they get his sister on the phone in stat Now, James, you have a storied past with this young woman. 00:11:15 Speaker 5: Correct, seeing a black like the first girlfriend I ever had. We've never done anything together, but we've been like close friends ever since, being boyfriend and girlfriend at like eight or nine years old. And when I went to Juvie, me and her made contact again somehow, and we was talking about pretty much moving in with each other when I came home. But when I came home from Juvie. It was like, I don't know. She gave me like the code showed up. I did three and a half years almost, I'm coming home to a girlfriend thinking that you know, sex is like right there on the list one of the first things at the seeing each other's family and kicking it

for a little bit, and herme on it was like, nah, I'm not trying to do that. So I was like, not really to be pressure in peer pressure in anything. But this is stuff that we've been speaking about for like over a year. Ready after that day, we never spoke as girlfriend and boyfriend again, but we see each ever in passing and we always remain called you, but we never spoke on a relationship or any of that stuff ever again. 00:12:24 Speaker 6: What we learned was that Tina Black still harbored a flame for him and was hugely jealous when she found out that he had a new girlfriend, and out of spite, she told the police that James did the shooting, even though you can tell by the only police record on her she wasn't at the party that night. She was very sick with juvenile diabetes, too sick to go to a party. The police should have known that she wasn't at the party, and yet they just focused on him. The second page of the detective notebook says Purp James Davis Jay, So it's just tunnel vision from then on out. 00:12:59 Speaker 1: Right, So people that were there couldn't identify the suspect. The woman who wasn't there does identify a suspect. And of course we know that Tina later on confessed to her mother and to others as she had lied to the police. It just seems like so many different things went wrong that didn't need to right, and this now we're up to the part with the detectives went to the hospital, right, and the interviewed Jammel Black. So can you talk about that a little bit? 00:13:24 Speaker 4: Sure? 00:13:24 Speaker 6: So the detectives actually went to the hospital the day of the incident and they were told he was just coming out of surgery. 00:13:31 Speaker 4: He was too out of it. 00:13:32 Speaker 6: The doctors wouldn't let him interview. Jamel Jamelle testified out our hearing and he told the court that what happened was those detectives came back later and they wanted to know what happened, and at first he wasn't really engaging with them, but then they made it seem like they thought he was the shooter, which makes sense because if there's a brawl and one person gets shot and the other person get stabbed, you kind of think that they're they're somehow related. 00:14:00 Speaker 4: So because of that, Jammel told them what. 00:14:04 Speaker 6: Happened, which was he had been stabbed by the guy who was subsequently killed, and this guy named Tay Hall was helping him out of the party when he says, oh shit, pushes Jammel to the ground, and you hear shots fired. Jammel looks up and he sees Tay putting a gun back in his pocket and saying, I got to get out of here. The police are coming. But there was no written report about that conversation and it never came out. At the hearing, the judge said, Oh, it's just not credible that they wouldn't have a report about it. Well, it's also not credible that you wouldn't interview the person who was stabbed, because they would most likely have the most relevant information. 00:14:43 Speaker 1: So let's fast forward then to a couple of months after the shooting, right, and that's when the warrant squad came. They were actually looking for your younger brother. When they arrested you, and you weren't even aware that they were looking for you because you knew that you didn't have anything to do with this and there was no reason to suspect you of anything other than being drunk and throwing up on the sidewalk. And they arrested you. It brought you to the precincts and interrogated you for hours and hours. Maybe they thought you were going to confess or something like, maybe even a false confession, but you never did. No. 00:15:17 Speaker 5: They took me from my house and under the guys that I had a warrant, which I did. I did have a warrant for disorderly conduct and do community service. But they never took me to the court building. They took me down to like homicide headquarters where I'm at Detective Hutchinson for the first time before they took me to the precinct. At the precinct, they pretty much was asking me, do I know Jamail Black? And do I know what happened to Jamail Black? So I explained to them the same thing that I just was telling you about getting drunk and leaving a party, and that seemed the right. They left. Then they came back and they were still asking me about the party and where I was at. So I gave him more detail of who I went with, who actually walked me to the door, whatever, where I went after I left the party, and they left again. But this time I'm feeling funny. I'm like, I ain't keep asking me where was I at the next time he came in, I think he started asking about the shooting. Do you know the guy that got killed? I'm like, I don't know the guy that got killed, but I know one of the guys that got shot because I went to school with him as well. But I don't know the guy that got killed. And from there, I don't remember exactly the rest of the questions, but it was pretty much all about the shooting there. So I'm like, when am I going to court? I'm supposed to be going to court. They're like, no, what we're going to do is we're gonna put you in the lineup. I'm like, a lineup. I need a lawyer. It's like, do you have a lawyer. I'm like, no, I don't have a lawyer, but I have a lawyer in my family who can come and represent me. And he asked me for his name and phone them I'm like, I don't have a phone number for him, but he should be listed. My uncle, Robert Davis, is a lawyer. I want somebody present. But he tells me if I don't have a number for him, then he can't call them. And they just took me back to the room and left me in the room. And from there it went to the lineup and it came back with four guys. Three of them is dark skinned, two of them have he set this can't be the people that they're going to put in the lineup with me. Nobody looks like me, nobody favors me in no way, shape or form. But I'm like, this can't be. And he bring two more guys in, like Indian looking guys. I'm like, nah, this is this is a fix.

00:17:44 Speaker 1: Can you tell us a little bit about this lineup and how things went so wrong? 00:17:48 Speaker 6: As he says in his own statement, this is not a fair lineup. So the lineup in itself was already suggestive. But there were three people who viewed the lineup. One of them was Jose Macha Cody. He was the first witness that they brought into view a photo spread about six weeks earlier, and it was unclear why he was called. He was the brother in law of the man who died, but he was not one of the people that had been originally interviewed. It's pretty common knowledge that when you've picked someone out of a photograph, you pick them again in the lineup because you recognize them as the person. But the lineup happened six weeks later. At the lineup, the two other witnesses, Harold Poe and Sean Belton, they were brought there by the mother of the deceased, and according to their testimony, she called them and said, they have the guy they think who did it at the precinct and they want you to just come to see if you can identify him, or something to that effect. That's already contaminating the lineup because there's a pressure put on them that this is the person they have, the person, they feel compelled to sit pick one person, especially especially when the mother of the deceased has chauffeur driven you to the precincts. So they picked James, but one of them said, always from the beginning, we resembles him, except for the braids, because when James got arrested, his hair was short, and the other guy, Sean Belton. Now, originally he had said I didn't see anything when the police spoke to him. Now he said, oh, I just said that because I was afraid. But the description he gave before he viewed him was someone wearing a Scully cap and that's nowhere in any description. And also five ten and James was like five seven, so he didn't even describe someone that looked like James. 00:19:24 Speaker 4: So that's how they picked him. 00:19:25 Speaker 6: There was a fourth person at the lineup who did not testify at the trial or the hearings, and what Detective Hutchinson said about him wash we picked him out. He just wouldn't sign the sheets, saying he had again you know some things, just your alarm goes off. That smells fishy. So we caught up with him. He did not want to be involved. He made that one hundred and fifty percent clear. But what he told us was no, I never said that was the guy. That's why I wouldn't sign. And what I said to them was, if you say that's the guy, that's the guy. So to me, that says they were prompted to pick James, and I should just add that. Sean Belton at the second trial recanted again and said I just glanced at him. He gave four separate statements, so that was him, and the other guy always only said he resembled him. So essentially, it really came down to host him Macha Cody. 00:20:17 Speaker 5: When you think about the convenience of Tina Black Jr. Giving my name to the detective, and then a week later, Jose Machakodi, the drug building, violent robber who's a humble bobber now just happens to walk into the precint though he didn't stay at the crime scene when everything happened, he fled the crime scene. He walks into the precinct and he picks my picture. He's the only one that goes to the precinct and it just so happens that he's known in this neighborhood. To me, the whole case is weird from beginning to end. I think that this was a misunderstanding. Then maybe from speaking to Jamail Black and him telling them the story he told them about pay then them acts and his system about kay Is she telling them Jane and they just went from there with the easiest thing that they could do to close the case. And it just so happened to be that I was convenience for them. 00:21:31 Speaker 1: This episode is sponsored by AIG, a leading global insurance company, and Paul Weiss Rifkin, Wharton and Garrison, a leading international law firm. The AIG pro Bono Program provides free legal services and other support to many nonprofit organizations and individuals most in need, and recently they announced that working to reform the criminal justice system will become a key pillar of the program's mission. Paul Weiss has long had an unwavering commitment to providing impact, actual pro bon or legal assistance to the most vulnerable members of our society and in support of the public interest, including extensive work in the criminal justice area. 00:22:15 Speaker 5: After the lineup, they told me I was being charge with murder, and he offered me a deal pretty much detaching, Hunchinson asked me to tell him that I did it, because he already heard about the story of what happened. Somebody told him that two groups of guys was fighting and the guy in one of the groups had a knife, and the guy and the other group had a gun, and he shot the guy with the knife to defend himself. Like, if you tell me that, then I can help you. If I speak to the DA, I'm like, what the hell kind of shit is that? Why the fuck would I tell you I did something that I'm telling you I wasn't even aware of. I wasn't there for it. And he's like, you know, if I was you, I would have did the same thing. If it was me a guy comes at me with a knife and I got a gun, I would show you ain't doing that wrong. I was like, well, do you want me to admit this something I didn't do that's wrong right there? And told them if you would have told me that this was this was about from the beginning, I probably would have never spoke to you. I wouldn't have tried to help you. 00:23:14 Speaker 1: But here it is. 00:23:15 Speaker 5: I tried to help you, and I turned out to be the one going to jail. 00:23:18 Speaker 1: Pretty much. 00:23:19 Speaker 5: A fingerprinted me and put me in a holding cell for the rest of the night. 00:23:24 Speaker 1: So now things go from bad to worse right the trial. There's a number of problems at both trials, although the first trial amazingly ended up. And you know it hurts me to say this, and

I know you must have had a lot of sleepless nights over this, James, but the first trial. In spite of the fact that you had substandard defense, you still ended up with an eleven to one hung jury in favor of a quittal. I rarely hear that, So talk about the trial from your perspective, James. 00:24:01 Speaker 5: So his trial is going on. I'm reading the paperwork that they gave me the day before my trial actually started. I'm still going through paperwork, and I'm noticing that, you know, they black out the name, so you don't know who's who. But I'm listening to the stories and now it's making sense with the DD fives from the police station, because now I'm seeing, Oh, this is the guy that said he never seen nothing at the crime scene. That changed his story the other two times to this story now, which happened to be Sean Belton. His first statement to the police at the crime scene was, I never seen what happened. I was talking to two girls and shots went off and I ducked for cover to protect myself. I never seen anything, havel poll throughout the whole thing, he never identified me from the precinct to trial. He only told the officers that it was two guys that looked like each other that had the fight in the shooting and everything, and he only referred to me as looking similar to one of the guys in that trial. He said, I resemble a guy that he's seen at the preaching. He never picked me out and said definitively that's him right there that I've seen doing the shooting. Like you have this one guy, Jose Machakodi, who's laming the cause of his murder on his brother in law. Well, the two prosecutors witnesses beside him are saying that he started the whole fight. You have a conflict between your own witnesses where they're pointing the finger at this guy saying that he did X, Y and Z that caused us to come over and be of assistance to him. But this is your main witness, Jose Machakodi, and he's saying that I had nothing to do with it. I'm a humble barber. I never committed a crime again after I was locked up all of those years ago. 00:25:58 Speaker 1: But here it is. 00:25:59 Speaker 5: You got two witnesses that you put in on a stand. You want us to believe that they identified me, but you don't want us to believe that they're seeing that this guy's lying and he started to fight that led to this shooting and stabbing. 00:26:13 Speaker 1: Did you think you were going to be exonerated as you should have been? 00:26:17 Speaker 5: I thought that I would be at the first trial because the jury that we had, they was asking questions that were relevant, that should have stood out to the police officers that did the investigation, to the DA's office that got their paperwork from the police officers, And though my lawyer didn't put on the best case, the jurors used their comments. 00:26:41 Speaker 6: Sense Kenein Johnson, his girlfriend did testify at the first trial. I think that in part was part of what led to the eleven to one Aquila that she was a very

persuasive witness, because she was very persuasive at the hearing as well. 00:26:54 Speaker 5: She's explaining to them how I came to the house us staying over at her aunt's place. She explained pretty much why her mother didn't like me as much or why we didn't stay at her mother's house and some others. Was like a COO or x CEO at the time, so it was like kind of a conflict or interest. This guy that's selling weed and always smoking with no job. I guess she didn't think I was good enough for her daughter. 00:27:21 Speaker 1: The first trial ended up with an eleven to one hung fury in favor of a quittle. 00:27:26 Speaker 5: Even the judge said it something must be wrong if eleven of your PIDs the things one way and you go against that. But at the second trial, the DA is saying that I in one of the witnesses, Havel Poe, didn't really change his testimony. We had his testimony read into the record because throughout the whole thing he never identified me. He only referred to me as looking similar to one of the guys Sean Belton recants. But it's I can't really consider every canton because he went back to the initial statement that he never seen anything. The other person that they say picked me out of a photo overrate, he never signed on none of the pitches. But the detective is saying I made a monk next to the pitcher that he picked out because he wouldn't sign it. It's like that don't even make sense. The only only witness that they had was jose Manchakoti that actually positively picked me out of a lineup. 00:28:28 Speaker 1: And we find out later that the state's sole remaining witness, jose Machakot. The testimony on which the whole case rested, was not the humble barber that the state made him out to be, but actually a full time drug dealer, right prone to violence and under a joint investigation by the FBI and NYPD. And all you needed was your star witness Kenean Johnson to show up and counter Machakot, just like she did it the first trial. 00:28:52 Speaker 5: But at the second trial, I'm not with my girlfriend anymore, so our contact is kind of really touching goal where she knowed I'm only calling to notify her court dates and what's going on with my life, which she's trying to avoid. I guess I don't know. But in Keneine Johnson, the day before she was supposed to come in or two days before, we spoke, and then I didn't hear nothing from her. My lawyer said he spoke to her and she was supposed to be coming in, and then she didn't show up, but she was still being nice to him on the phone. He called her again and then she cursed him out. She told him that he sent police to her house that like one in the morning. But we learned that day in the courtroom that it wasn't actually my lawyer that sent the police, that it was the district attorney who subpoenaed her, even though in court she said, I never planned on calling this girl as a witness because I don't know what she's gonna say, even though she heard what my witness said at the first trial. It was well known at my case that her mother didn't like me. But they stills the peene at her and send police to her house at like one in the morning while her mother's house, which actually infuriated her mother and caused her mother to kick her out. That right there pretty much stilled the deal as far as her coming to court. And at that point I was asking, like, put me on the stand. If she's not going to come in, I'm the only thing we got left. You ain't do nothing else with nobody else, So put me understand like they're gonna eat you alive, which your prior history and stuff. They eat you alive, and the jury see that, and they're going to find you guilty. That's the last thing I wanted. So I'm no lawyer. Let him guide me and tell me guilty. 00:30:53 Speaker 1: Anyone who's listening is probably wondering right now, well, if I was representing him back then I would have checked to cell phone records, or I would have checked the cab records. You could have gotten a hold of the cab company and see if anybody because you took a cab right, and none of that stuff was done right. 00:31:13 Speaker 5: The weird thing is, out of all of the easy stuff that we think of that could have been done, my attorney at the time hired a chiropractor or child doctor to do medical examine or work. And I've never even seen the medical examine of work or any paperwork that he had done. But he didn't go and check a cab. He didn't go and speak to none of these witnesses that's in the DD files from the police reports. But you found adopted the player as a medical examiner from your office building. It's sad to say, but if you don't have money to actually pay for a lawyer, then the justice system doesn't really work for you. It's rare that it does. You really come across lawyers like Susan and Liz or people like you that actually go out of their way to help somebody out to show that they're innocent. And I appreciate every bit of it. Look, the officer is telling me that I have to get off the phone. He's pressing down because of the timeframe. I guess because we was really only supposed to get like that by our phone calls. No problem, it's gonna do it around a couple of guys that that are friendly here and know my situation that wanted to make sure that everything was all right. But we'll back either today or tomorrow or whenever. 00:32:29 Speaker 4: I can. 00:32:30 Speaker 5: Thank you again, Thank you again. I appreciate y'all, and I hope you will have a nice day. I will speak to you soon. 00:32:36 Speaker 1: Yeah, we'll be back in Tye for sure. 00:32:39 Speaker 4: All right, La hi Jay. 00:32:45 Speaker 1: What an unbelievably calm and gentle spirit he's got. It's here. He is in this chaotic situation in an actual security prison in the time of COVID, with people whose phone time he's sort of you know, borrowing or whatever, and guards who are going hey, you know, and yet he is so focused, which makes me even more sad thinking about the lost potential that that

simple act of kindness from that parole officer twenty something years ago could have just avoided this whole thing. And God knows what he'd be doing with his life now. Contributing to society and probably building a family and everything else. So meanwhile the story goes on. Mister Machacote was murdered by a drug dealer five months after James's second trial, Yes, after he was trying to rob the drug dealer for the second time in a month. So yeah, he was tortured and killed. And I mean, this is some Quentin Tarantino stuff now, but this is the guy that the authorities were painting to be a wonderful citizen who was bravely coming forward and now he's a simple barber and blah blah blah. So that's all out the window. But there was also Brady violations in this case, right, so can you talk? Can you speak to that? 00:33:58 Speaker 6: So we learned this the hearing was going on, the actual innocence hearing that we litigated last summer and we're appealing now. It was actual innocence and ineffective assistance of counsel. That's when we finally got eight witnesses in to talk and support James's story of innocence. So during our hearing, I reached out to the assistant US attorney Because people were prosecuted federally for killing Machakodi and through it I met the FBI agent who told me that at the time of the trial, Jose Machakoti was under their investigation. It was a joint NYPD FBI investigation into drug dealing, major drug dealing in Brownsville and lo and Behold. In the spring, which was when the second trial was happening, a confidential informant was buying huge quantities of heroin and cocaine from Matchakodi. Now we don't know if the assistant district attorney knew that, but it's hard to believe that the detective who used to be a narcotics detective Brownsville did not know that this man was a one of the major most violent drug dealers in Brooklyn and be under you know, investigation by the FBI. 00:35:10 Speaker 4: So that was never disclosed. 00:35:12 Speaker 1: No, that would have been an inconvenient fact to bring up as they were trying to present him as the perfect witness. 00:35:17 Speaker 4: Right, So he was so brave. 00:35:20 Speaker 1: Yeah, So there's the Brady violation because this wouldn't be complete without that, right, right. 00:35:25 Speaker 6: So they have an obligation to turn over this information that they knew about, and that's what we believe happened here, and yes, it does seem like that happens all the time. 00:35:34 Speaker 4: And what was in it for Matchic Cody. 00:35:37 Speaker 6: You know, I don't want to go down to deep a rabbit hole of conspiracy theories, but he was on parole the night of this murder. He had violated parole by being out past his curfew. And the fight that Jay was referring to a lot of the police reports say a Spanish guy wearing a fur coat grabbed a bottle within a fight on the floor. That was Machic Cody, So that was also a violation of paroles. So I don't know whether they threatened him

with having him locked up, whether there was something corrupt going on. You know, it was the seventy fifth Precinct, which is notorious. It has had some problems with corruption over the years. I don't know what happened, even the FBI agent, although he said, you know, he was on a bad guy list. That's how he referred to matcha coody, which is a computer database that you're supposed to check for any witness And in fact, the day they interviewed the witnesses at the club, they did HIDA checks on those witnesses, but there's no hi to check in the paperwork for MATCHA Cody. So there's just something fishy about Matchacode and why they're so protective of him. And all we do know is that when the prosecutor got up in summation and said, he's such a credible witness, and you know, he's credible because he was so honest about his past and now he's a barber. Well, he might have been honest about his past, but he wasn't really honest about his present. So you know, in addition to the problems with you know, ide evidence, in a situation like that, you also have this unsavory character pretending to be someone that he's not. 00:37:08 Speaker 1: Wow, it's exhausted. This one's actually. 00:37:16 Speaker 4: Tell me about it. I'm still writing the brief for the. 00:37:18 Speaker 1: Appeal, so none of that's disclosed to the defense of James's second trial, right, and we know about the whole Matchakuote thing. Of course, it's almost like an exclamation point on the whole thing that he ends up. I mean, I'm sorry the guy got murdered, but such a short time after this, as if to really just drive this home, you know, he ends up in like a scene from Reservoir Dogs being tortured to death by a guy who he was trying to rob for a second time, a drug dealer. 00:37:52 Speaker 6: I mean, nice witness, right, And the first time he entered at gunpoint and tied them up and robbed them. 00:37:59 Speaker 4: So it wasn't his first rodeo, no, And. 00:38:02 Speaker 1: It sounds like they turned the tables on him. And then he, yes, he met his demise and took this false testimony he presented to the grave with him. 00:38:13 Speaker 4: Yes, Now you know, we. 00:38:23 Speaker 1: Get to the post conviction investigation and of course you had a meeting with the conviction Review Unit in Brooklyn and this would seem to be one little ray of light. So where do we stand with that? 00:38:36 Speaker 6: So that was actually before I became involved in the case. Susan Epstein, who did the appeal and did a phenomenal investigation, brought the witnesses to the conviction review unit. 00:38:49 Speaker 4: They had the case incredibly for five years. 00:38:52 Speaker 6: It's not exactly clear what happened, but one refrain that is throughout the transcripts of those interviews is why didn't you come forward sooner? The assistant district attorney assigned to this case just seemed very suspicious from the beginning, and she gave some of them a really hard timing. But she got a lot of this information. I mean, she went to prisons and she spoke to Jamel Black, who's currently incarcerated, and he told her. 00:39:18 Speaker 4: That it was Tay who did the shooting. 00:39:20 Speaker 6: And she also fixated on some inconsistencies that I think are not material. The story that was told was coherent. Each witness corroborated one another. The vast majority of the witnesses told them that Jay's hair was short. He cut his hair because he had some kind of skin condition. So just like you'd remember a party because you were throwing up all night, you'd remember that someone had short hair because they thought. 00:39:44 Speaker 4: It was ringworm. 00:39:44 Speaker 6: It's not entirely clear that's what it was, but it was some skin condition that they remembered and his hair was short. But they handle this information and honestly, I don't know why they dragged their feet and they never came right out and said we don't believe you, we think s guilty. Even after we brought the motion and started the hearing, they said to the press, you know, we're still looking into it, or something to that effect. 00:40:07 Speaker 4: But for some reason, they just were unpersuaded. 00:40:10 Speaker 1: That's weird. I mean, look, there's even inside of a convictor of you unit like Brooklyn, where we'd like to think that everybody is on top of their game. I don't know, I can't really explain. You have these witnesses who are actually bravely coming forward now, right, and there's lots of them, right. It's not like this is one person. These are people who are, you know, members of the community, who are not kids anymore either. And I think it's also worthwhile to mention why James's brother Daniel and Tina Black were unavailable to testify. Tina, a young woman who named James in the first place, is sadly no longer with us. In twenty thirteen, she died of complications related to the very diabetes that had kept her from the party that faithful night all the way back in two thousand and four. And sadly, Daniel, James's younger brother, who put him in the cab that night, tragically was murdered in twenty twelve. So now the Brooklyn cru hasn't come to a decision, and they still could do something about it if they so choose, But you and Susan Epstein weren't going to wait around for that, and that brings us to the hearing we've been referring to this entire time. You and Susan filed a four to forty motion, which is New York legal leese, for a motion to set aside the judgment that was in September twenty eighteen, and you argued for James's actual innocence as well as ineffective assistant of counsel and newly discovered evidence at this hearing back in June of twenty nineteen. 00:41:39 Speaker 6: Yes, we were pretty optimistic going into it. So we had eight witnesses, including James. James went first, as you saw these very intelligent, humble, low keyed and I think he makes a good impression, and he went first. And also so they couldn't say, oh, of course he said

this. He sat through the whole hearing and listened to what everyone else said. So he told the story that you heard about leaving because he was intoxicated. And then Jamel Black came in. And one thing about Jamel Black that was really, I think very persuasive. He had initially refused to cooperate and sent a letter to Susan saying he ruined my life because James had slept with his girlfriend when he was locked up at Riker's and he held a grudge and he even told me when we were preparing to testify, because he has a bad quality I have. I get it from my father. I can really hold a grudge. But he came in and he told the whole story. First of all, he helped walk James out to the car, but then they started to get into a fight about this girlfriend again and he went inside and he met up with Tay, the shooter. So he told the whole story about how he got stabbed because his younger brother was involved in the fight and he went over and he heard this guy say, you thought this was over. He turned around he was step. So he goes through the whole incident of how the stabbing happened, and how the shooting happened, and how it was Tay, and then how he told this to the police. We also had the woman who cut his hair, who although she didn't remember exactly when she cut it, she did remember that she told him it was breaking off and that he had to cut it, and that the last time she saw him his hair was short, and you had Corey Hines, who was at the party in the bathroom, laughing at him as he was throwing up. Sadly, his brother had signed an affid David saying I put him in a cab and send him to his girlfriend's house. He was murdered in twenty twelve, so we didn't have him as a witness. We had his affidavit and we believed the judge should have allowed that into evidence, and he didn't. And we had Caneine Johnson, the girlfriend who didn't show up at the second trial. We actually had to do what's called a material witness order to have her arrested to bring her in, which I really didn't want to do. But she came in, even though she was mad at me about that. She got on the stand. So when that happens, they assigned an attorney to you, and the attorney came in and said to the judge, she's willing to testify, but she's terrified of the family. And what came out on the witness stand is that after she testified at the first trial, friends and family of the deceased followed her not just out of the courtroom, but out of the courthouse, calling her names, threatening her if we're going to find out where. 00:44:16 Speaker 4: You live, if we see you on the street. 00:44:18 Speaker 6: And it was so bad that James's attorney put her in a cab because he was afraid of her having to take public transportation home. 00:44:25 Speaker 4: So here she is. 00:44:26 Speaker 6: She hasn't seen James since the first trial. And she gets on and she essentially says exactly what she testified to years before that she met him at her mother's house. He got out of the car. He was staggering, like stupid drunkuse kind of how she put it, and threw up, and she got him a ginger ale out of bodega and they walked to his hands. So she told that entire story. The two new witnesses that I found also particularly compelling. One was in the statement by James. He refers to Bo. His real name is Ernest. Ernest was one of the promoters, and we found him. He was willing to testify, and like a few days before he testified, we asked him, well, how is it that you remember that he was there? And he said, because we used to have a competition about who had the better waves in our hair. So I remember when he came in and I was joking about whose waves were better, So I'm prompted. He basically said he had short hair at the time, so he said that on the witness stand. And he also said somebody had thrown up by the bar, and he asked the bouncer what happened here and he said, oh, you know those two brothers. One of them was drunk and I told them they had to leave. So that was information we didn't even know about. And then lastly, and maybe the most emotionally compelling witness was Tina Black Senior, the mother. So she came in, you know, with the cane. She's like crippled by arthritis. She basically was racked with guilt that she knew her daughter. Her daughter eventually confessed to her, and she went through all this stuff about they got a call one day from Rikers and her kids were there and she said, who's that Riker's and they said James And she said, why is James at Riker's And one of the sons said, ash your dumbass daughter. So like she remembered little details like that, and then bit by bit, her daughter revealed to her that she had set James up and that he was never coming home, and that she was still in love with him. So that was extremely compelling testimony. So that was essentially our case. It was like so many people who you know, added little bits and pieces to the story and created this really cohesive story about what really happened there that nobody bothered to investigate. 00:46:33 Speaker 1: Then there's another sort of what could be seen as a devastating blow that took place on January twenty four, twenty twenty sixteen years to the day after Blake Harper was tragically murdered. The judge denied James Davis's wrongful conviction motion in its entirety. I remember reading that the first time. We were going, oh god. 00:46:53 Speaker 6: Right, we were stunned. So he yeah, he ruled against us on everything. By the end of the hearing, we had three points. One was that we had proved James was actually innocent by clearing convincing evidence. That's the standard. That his lawyer was ineffective by not doing a proper investigation. He didn't even hire an investigator. That's what James was referring to when he said he hired a doctor. He hired a doctor who appeared to have been his brother to review the medical records, so he knew what he had to do to get paid to hire someone. So we had an ineffective assistance of counsel point

and then we asked the judge to reopen the hearings so that we could call this FBI agent, so that we could show that they would have known about this evidence that Matchic Cody was not just a humble barber, but he was a major drug dealer in Brooklyn. And the judge refused to reopen the hearing. Originally said alzheimus a poena for an FBI agent because you have to see poena them, then changed his mind on that, said you didn't prove it, but he didn't give us a chance to completely prove it, and so he denied every aspect of a hearing. And now there's really literally one stop left on this. You don't get to appeal these to call them for forty hearings in New York. You don't get to appeal a for forty as. 00:48:10 Speaker 4: A matter of right. 00:48:11 Speaker 6: You have to ask permission. He's called seeking leave to appeal, and we did get permission to appeal. So we are in the process of writing a brief and this is the last stop. We are going to the second apartment at Pellet Division and asking them first and foremost to find him innocent and dismiss these charges. 00:48:29 Speaker 1: Do you know when that hearing is going to be. 00:48:30 Speaker 6: We're shooting for September, hoping to get the brief filed in time for September. If it's not September, it will be October. 00:48:38 Speaker 1: There is a petition and we're going to link to it in the episode description. So for anyone who feels outraged as I do and wants to help James, go to our episode description and there'll be links to take you to action steps that you can take. 00:48:57 Speaker 4: Hello. 00:48:58 Speaker 3: This is a prepaid collects call from an inmate at New York State Department of Corrections and Community Supervision. This call is subject to recording and monitoring. To accept charges, press one to refuse charges, press thank you for using securists. You may start the conversation now. 00:49:17 Speaker 1: Hello, Oh James, glad you're back. Elizabeth and I spoke a bit about your post conviction litigation and where you're at now legally speaking. 00:49:25 Speaker 5: I didn't know the justice system actually takes this long, but I thought, maybe you know, two years. I'll be back home, They'll fix this whole thing, and I'll be home. Two years turned into seventeen and I'm still fighting and trying to convince them that they actually locked up the wrong person. 00:49:45 Speaker 1: And then, to compound this tragedy again, the little brother that you felt so responsible for was murdered in twenty twelve. I mean, I can't possibly begin to imagine your pain, but your grandmother's still here. 00:50:01 Speaker 5: My brother and my grandmother is like my oldest friends in the world. My grandmother been there for as long as I knew. I know she know my pain because she lost some mother and she lost her daughter the same way I did. Well, not the daughter, but my mother the same way she lost some mother. And my brother was there with me through everything. So it was like I lost out on with little I was able to spend his life with him in seventeen years. In my grandmother's life, she just turned eighty June nineteenth, like she was sixty three. I dismissed all of these birthdays and times to spend with her where I would have been an adult, where I could actually because I just I think that was my first Christmas ever, actually really buying my grandmother my own gift, and she was so happy for that. Then here for every year, since it's something I didn't even do it, I prayed for her every night. He had to be strong for me. That's one of the reasons that I lived. For my grandmother, by the grace of God, she just turned eighties you on nineteen. My mother was murdered two weeks or yeah, a week and some change at the Mother's Day, which was hard for my grandmother, and then my brother on Father's Day right before her birthday. So it's like I've had a real, real rough journey. Her journey is just as rough. So this is why that's like my closest friend right there outside of my brother that passed away. The same beatings I got. He got the same little budget clothes or whatever you want to. 00:51:37 Speaker 1: Call him I got. 00:51:38 Speaker 5: He got. He's in in the neighborhood, in the house over not having our parents or my mother being the crackhead. He got the same thing. We endured everything together. So it was like, it's the only person that really really know my struggle. So to lose him wild hair right. 00:52:00 Speaker 6: Oh. 00:52:01 Speaker 1: Yeah, I can't imagine your story. Your life has exhausted, has taken so much out of me, and I've only listened to it. I can't imagine having lived it. We need to do everything we can to bring you home, James, I want to thank you. I mean, we have, as our regular listeners know, at the end of each episode, we have our featured segment, which I call closing Arguments, and this is where I first of all, thank you, and then I just kick back in my chair and turn my microphone off and leave my headphones on and turn it over to you for whatever else you think needs to be said. So now Liz, over to you for closing arguments. 00:52:46 Speaker 6: All right, Well, first of all, thank you so much for taking the time to listen and to speak to James and to get to know what a good person he is, what a smart, humble, kind person he is, and for giving us this chance to tell a story to as many people as possible. There was from the day he was arrested, I'm going to get emotional me clear and convincing evidence of his innocence. Not just clear and convincing, compelling evidence of his innocence, And he told everyone what they needed to do to learn that he was innocent. From the beginning, he told detective Hutchinson go speak to He listed about six names, and you know, from those six names there would have been twenty five thirty other people because this was a huge party and a lot of people knew him. But whether it was tunnel vision, a lack of respect or indifference, Detective Hutchinson did nothing

to investigate. The prosecutor did nothing to investigate, and the person who, under the law, has the obligation to investigate, did not do so. He kept telling James, well, it's their burden, it's not our burden. But this is a twenty one year old facing murder charges, facing life in prison, which he's now serving a life in prison sentence. Seems to me, you have both a legal and a moral obligation to do everything you can to prove his innocence, to prove he's not guilty. That's the standard at a trial when you have so much evidence, it's almost obscene to turn your back to it. And yet that's what happened at this trial. And yet fifteen years afterward, these people came forward and you know, they may know each other from the community, but somewhere in their thirties, some were in their forties, some were in their fifties. They weren't all hanging out together conspiring to tell a story to help James. They told different pieces, and what they didn't remember they said they didn't remember, but each and every one of them painted a very vivid picture of a young man who loved his brother very much, who went to the party because he wanted to celebrate with his brother, who got stumbled down, throwing up, drunk, left the party kind of out of it, met his girlfriend, spent the night at her aunt's house, and wasn't even there when the shooting happened. And yet, incredibly, once again, the judge chose not to listen to James. In fact, in his decision he said, well, you can't listen to anything he said because he's the defendant here, he's convicted, and of course he has an overwhelming interest in the outcome, which is not the law. So he just disregarded everything James said, despite the fact that most of it was corroborated and substantiated by the other witnesses. He also said, you had to have direct evidence. There was no direct evidence that James went to his girlfriend's house that night. Well, there was a huge amount of circumstantial evidence. They walked him to the car, so they didn't see the cab leave. I mean, circumstantial evidence is extremely compelling and used all the time in court. So he discounted circumstantial evidence. And he also wouldn't let us bring in Daniel's AffA David, even though again this federal law says, when you're talking about actual innocence, you're allowed to bring in everything, even if it wouldn't come in ordinarily at a trial. So Daniel is dead, he was murdered, but we have his Affidavid. 00:56:02 Speaker 4: And guess what it says. 00:56:04 Speaker 6: I put him in a cab and it went to Caneen's house. So we did have that piece, but we weren't allowed to put it in. So once again justice was denied for James. And I think we've already been through just the shaky, questionable evidence that was the prosecution. This is the last chance. There's nothing after the second Department of Pellet Division. And I just hope people hear this and they're rightfully outraged and they demand justice for James because he really is innocent and he deserves to go home. 00:56:36 Speaker 1: That was well said, Thank you, that beautiful closing argument. Actually, and I've heard a lot of them, and now James, over to you for closing arguments. You are an incredible person. Your spirit comes through even over the phone, even in the most stressful situation. You are just an inspiring guy. What can I say? And so we're going to keep fighting for you out here, and I thank you for being on the show and shining a light on this awful injustice. And now it's turn it over to you for closing arguments. 00:57:11 Speaker 5: I want to say thank you to you again. Thank you to Elizabeth Felber, Susan Epstein, the whole Legal Aid Society, everybody's that's been helping me with my case. Without them, I probably would have gave up this fight. They kept me strong and kept me motivated. With all of the stuff that's going on in the world today, is so much on my mind. I think that our justice system really needs to be looked at on the outside and on the inside. The treatment is really really no different, and it's going all the way. Starts at law enforcement with the investigations and the things that they may do. If they make one bad mistake, it may change somebody's life forever. And they're human like everybody else. Everybody's entitled to make mistakes. But when you don't try to makes your mistakes, you just lie about them or cover them up, you only make things worse for people that should actually have a fair shot. You're stealing people lives away from people. People families actually still love them and care about them, and they're suffering. Just as much more effort should be done on getting things right, opposed to just worrying about convictions and putting people away. Sometimes, because in our hate we make poor judgment decisions, we send people away that shouldn't be locked up. People do deserve to have a fair shot. That whether it be trial, grand jury hearings, or even the benefit of the doubt when the officer comes and the rescue. It's no different on the inside. Not everybody in here deserves to be treated so harshly. When you're already sentenced for a crime, you've already been punished. You don't come to prison to be on the shmall or torture. You come to correct whatever bad behavior you was doing. You do your time that they gave you, because that's what they say, if you did the crime, through the time. But I'm not supposed to be tortured and abused what about the people that actually didn't do the crime. That's just like a casualty of war. Therefore, let him get tortured and beaten and everything too. It don't seem like fear and impart your trials are what actually takes place. They label you and then they send you away, and then they make it hard view to prove your innocence to get back out. Even when you do prove it, it's still hard for them to let you go. They're saying, well, it sounds like he's telling the truth, and it's the same thing. And we learned that these other guys were liars and all of these other things. But I don't know, maybe he's still guilty. Let's just keep him in there and double trouble, quadruple check and let him waste some more of his life away, even though he might be totally innocent, and it seems like he is from what we've been looking at, but not one hundred percent sure. He didn't prove it to me one hundred percent. Like that's that's crazy, that's insane, that what a human life is worth. 01:00:35 Speaker 1: Don't forget 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 Wartis. The music in the show is by three times OSCAR nominated composer Jay Ralph. Be sure to follow us on Instagram at Wrongful Conviction and on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason Flamm is a production of Lava for Good Podcasts and association with Signal Company Number one