#451 Jason Flom with Ricardo Gray

In the evening of September 1, 1998, a fight broke out in East Cleveland, Ohio, between two large groups of young men. Many were injured, including 20-year-old Ricardo Gray, who had been struck in the head with a pipe. When police finally arrived, they also discovered that a young man named James Russell had been fatally shot. Eventually, a narrative developed that Ricardo Gray had returned after the fight to exact revenge, leading to a sentence of 23 to life. But this is wrongful conviction. Wrongful conviction has always given voice to innocent people in prison, and now we're expanding that voice to you. Call us at 833-207-4666 and tell us how these stories make you feel and what you've done to help the cause, even if it's something as simple as telling a friend or sharing on social media. And you might just hear yourself in a future episode. Call us 833-207-4666. Hello, this is a free call from. Ricardo. An inmate at the North Central Correctional Institution. To accept this free call, press zero. To refuse this free call, hang up, or press one. Thank you for using G-T-L. Welcome back to Wrongful Conviction and calling in today from an Ohio-Maxham Security Facility. We have Ricardo Gray online to share his story. Another wrongful conviction out of Coyahoga County where it appears the only evidence against him was fabricated with this testimony. So we hope to see his release really soon. Ricardo, I'm sorry you're here because of everything you've gone through and are going through, but thank you for joining us here today. You're a pretty shared month, though. And joining him, the person who's trying to bring about justice in this case, Kim Crawl. Kim, thank you for taking up this fight. Yeah, thanks for doing what you do. Now Cleveland, Ohio, of course, is one of the absolute hotbeds of wrongful convictions in this country. But before we get into how Ricardo's case is emblematic of that ongoing tragedy, we want to know a bit about your life before all of this madness took place. I grew up in Cleveland, Ohio with my mom and my dad. I got an older sister. We stayed on Barlett, 143rd in Barlett. My mother and father, they had their own house down there. I had a sweet grandma. I think that's where I get all my kindness from. Because she could close off your back if you needed it. But yeah, my father got incarcerated when I was like 14 for like seven years. I don't know. That's when I'm really needed to hear my life. And then my cousin had got killed too. And the same year my father wanted jail. He was older. So I looked up to him like a brother. The name was Yarr Real Gray, people at the Kent State University too. I didn't graduate from high school. I dropped out of school when I was in like the 11th grade. I was in the streets for real. I ain't going to lie. I was in the streets. I had to have a family to take care of. My mom needed me. My baby mom and my daughter. I mean, I had to take care of them. Not only did Ricardo feel responsible for his mother, but he had also started his own family with his girlfriend, Deneca James. But we just had one daughter together, Carl. You know, we got together in high school. We were together for about five years. We stayed in Warren's real house. So I wasn't really in the neighborhood no more for real messing with the guys. I think like once I got my life together, it was mad at me for real. Now Warren'sville Heights was about five miles away from a car to his old neighborhood along Bartlett Avenue around East 143rd Street. And his friends there had a contentious relationship with the guys up on Kinsman Road about a half a mile away. We write up the tree from each other. We always end up getting together with each other about something, about nothing for real, but they make it something. We plan basketball with each other, football, you know, it's just a neighborhood thing. Just boys, being boys, growing up. Everybody wanted to be hard for real. That's all. I wanted to have a name for they. With his new responsibilities, Ricardo had been keeping to himself, raising his daughter, who was not even two years old yet when the crime and question occurred back on September 1st, 1998. I just happened to come in the neighborhood one day, you know, they was having a little cookout in the neighborhood. So I just wanted to show the guys it was still love. So it's about 830. Somebody come back there in the cookout and say he just got jumped. One of my guys, Mike, he just jumped by one of the Kinsman guys. They didn't get far from where we was at. It's right up the street. It had to be about 10 to 15 or less. So we go up there on a hundred forty third in the Kingsway. They today neighborhood. They had to be about 20 30. It is. So the police report says that approximately 2100 hours, a group of approximately 60 males began to congregate at the parking lot at the corner of East one forty third in Kinsman. The trouble had been brewing between a group of juveniles from Bartlett Avenue and the group from Kinsman. So the police started and for approximately one half hour he heard random shots and bottles breaking. You want to fight? I got hit with a pole on the right side of my face. Do not me. I don't need to know who who who who who who who who who who that's the crazy part. Well, my god told me man, once you failed out, I picked you up and dragged you to Marquis's Dudley car and drove me to the hospital. After hospital, I made a police report. So I really ain't really know what really happened until I came back and my friends told me what happened. I left. You know, they told me that God, Benny got the shooting and everybody ran. A guy named Benny, whose last name didn't surface until many years later was alleged to have fired into the crowd. Everyone scattered away and a young man named James D Russell was dead. Detective Sipo and Kovac arrived after his body had been transported and they began to gather statements. We have a statement from Edward McDowell, Edward Harris, Gary Blanchard and from Deneen Joyce Smith. Edward Harris reported being outside when the shooting started but not observing anyone who was doing the shooting. He was just told by neighbors to go in the house. Edward McDowell says he was involved in a fight with the males from Bartlett Avenue when he heard gunshots. At this time, the fight broke up and everybody ran. He didn't see who was doing the shooting. Gary Blanchard says he went out on his front porch with the below interviewed female he lives with and saw the victim lying face down on the bushes on the side of his residence. He then left the porch area and went down to the victim and turned him over and noticed he was bleeding and foaming at the mouth. He then told his wife to call 911. Almost immediately police began to arrive. He stated he recognized the male from the area but did not know his name. He described as a shooter as having an afro haircut and wearing a white t-shirt and blue jeans. He saw this male running toward Kinsman and that last piece of information was never disclosed. I could never question Blanchard about the guy he seen. He identified the same guy. My witnesses identified at my trial due with a short afro haircut, blue jeans with a white t-shirt on him. He said he was the shooter. He seen him run towards Kinsman. They never went to the Barlett group and questioned them about what happened. I didn't know Benny's full name. None of my guys know Benny's full name and they were scared to talk to the police because he noticed me and people retaliate for that. So while the Kinsman guys who were initially interviewed omitted the shooter's name, they were at least in agreement with the Barlett guys that the fight had ended when shots were fired. Only two young men said otherwise Anthony Mixon and Arthur Jackson who were interviewed the following day by a new lead detective on the case. That detective Beaman, he the one that got the statements from Mixon and Jackson, but see detective Cepo and his partner. They was the first one to the crime scene, but in the next day, they started to change. The statements changed. So it appears the statements gathered by Cepo and Kovac were ignored and may have been hidden and Beaman focused on the statements from Mixon and Jackson who claimed that the shooting happened long after the fight, conveniently when all the other witnesses were gone and Ricardo Gray had been released from the hospital. They said I didn't came back on the bike and shot down the street and struck the victim. Arthur Jackson says he was walking northbound from Kinsman and company with his friend Mike last name unknown and the victim. He then observed a male. He knows by the name of Ricardo Gray riding a mountain bike on East 143rd and began shooting at them. He says as he, Mike and the victim ran, they separated the victim ran on the right side of the street and Mike on the left. He reports hearing bullets buzzing by his head while running. But then the Mixon claim that he saw Ricardo ride past him on a bike, pull out a 9 millimeter and fire 14 rounds at the guys from Kinsman. And what we now know is that the shooter was from the group that was with both Mixon and Arthur Jackson. And so one, they have an interest in protecting kind of their own boy, but two, they had their own legal issues. They had issues with parole and probation and they were subject to pressure and threats by police. So, you know, I went on living. They came and got me, and November, I was at my debut mother's house, her mama's house. And they came in there. They kicked the dough in and everything. They came in there and got me. You're listening to "Romphal Conviction." You can listen to this in all the Lava for Good Podcasts one week early and add free by subscribing to Lava for Good Plus on Apple Podcasts. I'm in the county jail trying to put my defense together and everything. I gave them three witnesses names that was there. But I had a speedy trial day, tried me within 90 days. And then went enough time for my lawyer to really investigate my case for real. It's very hard, especially from neighborhoods like this, to get people to come, to testify on your behalf. It's very difficult to get anyone to come forward in situations like this, because the police have the ability to put pressure on everybody. Everybody was there for a fight. Everybody is susceptible to threats of charges, police intimidation. And so, he has three witnesses who come forward who are consistent. He was hit with a pole. He was rendered unconscious and he had to be treated at the hospital. You know, when you get to saw it at the hospital, they automatically call the police and they come make a report. So, the police report spills my first name wrong. He put Richard instead of Ricardo. They used that against me, said, "I was trying to justify my name." And you know, I got the same address that got my last name. He just they know how to spell my damn name. That's what it all brought down to. They put it on me. Look, he's gave the wrong name. It's name Ricardo. He gave him a name Richard with the same address and everything. Come on now. Regardless of the effort to discredit this alibi evidence, it didn't matter. They changed the timeline of the shooting to have occurred long after the fight, rendering this alibi move. See, they knew I could prove I was hit with a pole during the fight. So, it couldn't have been me. See, when I couldn't prove that the victim was shot during the fight and shot was fired during the fight, I couldn't dispute what they were saying at my trial that I came back. Yeah. Anthony Mixon testified that Ricardo Gray Road passed him on a bike and pulled out a weapon that appeared to be in 9mm and then watched him fire approximately 14 rounds. Arthur Jackson also testified that Ricardo Gray shot at him and his friends that Gray Road toward them on the bike. Those are really the only two fact witnesses from the state. See, the original investigator report and two other witnesses indicate that the shot was fired during the fight and everybody ran. So, that's why they had to be told that evidence. It appears that the original police reports from Kovac and Cipo with the statements confirming the defense timeline of the shooting were either hidden from the defense or Ricardo's attorney neglected to use them to impeach Mixon and Jackson or raise Gary Blancher's original statement when he got on the stand. Gary Blancher testified that when he heard the shots, I was outside when the first ones that's when I went into the house. While you were in your house, you heard more shots fired. Yes. Did you ever see the person who was firing the shots? No, I was in my house with a door closed. But that's not what he told police on the night of the shooting. And that's why it would have been crucially important to have the statement that he made to police saying he saw someone running, described what they looked like and believed them to be the shooter. However, Ricardo's alibi witnesses also testified about the alternate timeline suspect, Benny. Mark III witnesses, London Hill, James Thomas and Sharon Williams that was there. They witnessed Benny do it, but they didn't know his last name. So, you know, the prosecutor told the jury they made this name up. This guy doesn't even exist. According to the prosecutor, Benny didn't even exist. And Ricardo's witnesses were his friends, the kind of testimony that is routinely discredited for proximity to the defendant while mixing and Jackson's testimony when unchallenged. It was so crazy once all the Jackson testified at my trial. They took me back to the county jail and I remember one of the sheriff's that I knew he was lying. But I guess the jury didn't pick up on what was so obvious to that sheriff. On February 18, 1999, Ricardo was convicted and judged Nancy McDonald's sentence to five years for assault, three years for the weapons charge, and 15 to light from murder to run consecutively, adding up to a total of 23 years to life. If I'd had all these facts I got now, as I know, wait, they would even have a trial against me. You know, they didn't know what they looked me in. They just fought me guilty. They broke my soul. They tore me up for it. You have one minute remaining. Here I am, still in this damn place. But I got all the facts to prove what the hell going on and I'm still in here. Next time we strike the Lucas view, 20 years old, with all these killers and racists. That's all they was doing with racing dudes down there, man. I did have to do five years down there before I could go to a close camp. I'm locked down 23 hours a day. I was mentally fucked up off that shit, man. My father got a cancer. My five years after he got out of jail. But my father had been through the system, so he knew I heard that he'd gone. So I didn't really have nobody helping me on my case, no more once he died. I had to keep an eye on my sister and my mom when they had lives to live their damn cell. So I was sitting here fighting in my can. I had to talk to myself out of reading a write for reading. I got my GED, talk to myself out of the good cases, talk to myself out of tight. I know how to file a whole brief and everything. While Ricardo did have a pellet council, it never hurts to learn the law and advocate for yourself. I got his first break just a few years after his conviction. I had an investigator, a fine Jackson, and he voted after David. He says three years ago, when I testified for the state against Ricardo Gray, for the state, my testimony was not completely true. I did not see Ricardo with a gun, nor did I see him shooting a gun at any time during the fight. When the shooting started, I began to run like everyone else did. I talked to the police at night, and I told them I would come down to talk to them about the case. Before I talked to the police, some of the kids and boys told me to say Ricardo was a shooter. I did because they made me feel like they would do something to me if I did not say Ricardo was a shooter. I, Arthur Jackson, senior, made this statement of my own free will dated May of 2002. With the investigator gave it to my attorney, after time my attorney was Paul Masino, and then Masino, he went to go talk to Mix and personally, his self-cust, Anthony Mix in the state witness, he was in jail for murdering his girlfriend. He comes forward to say, "My name is Anthony Mix and at Ricardo Gray's trial, I testified that Ricardo Gray was on a bike shooting a gun. This testimony is not correct. The person shooting the gun was Benny, a dark skin skinny black man with an afro haircut. He has wide eyes and a real small head. I was pressured by the detectives to say that Ricardo Gray was there. I was on parole, and they told me that if I didn't say it was Ricardo Gray, I would go back to prison. Arthur Jackson was about 10 houses or more away and could not see who was shooting or who was shot. I have tried to tell my story, but nobody would listen. The above is true, Anthony Mix in August 14, 2002. So then I have both of them. And then Masino filed a motion for a new trial under newly discovered evidence. They starved me out for about three years. That was in 2006, man. They came up with some bogus rule and saying that this was the same evidence I used that trial. Even though the defense of stance of trial was that Mix and Jackson were lying, Ricardo most definitely did not have Mix and Jackson's recantations of trial. And critically, their testimony was the only evidence against him. So Nancy McDonald had a very long career as a sitting judge. She was known. I think wildly by the defense community as being someone who had a penchant for injustice. But we know just in the last few years there have been many wrongful convictions that have come out of her courtroom. Now of course, when juries and prosecutors are involved, you can't shoulder the entire responsibility of wrongful convictions on a judge. But when we look at the number of years it's taken these folks to prove their innocence, that can be directly attributed to her. Because she has denied every single filing in front of her, no matter how compelling, like Ricardo's, those filings are. We know that Rale Sailor's case was out of her courtroom. Isaiah Andrews, who spent one of the longest periods of wrongful incarceration in the history of the United States. We have other cases, just like Ricardo's that represent very serious, very obvious innocence claims that have just been denied and denied for decades. And it's because they were constantly put back in front of the same judge Nancy McDonald. You know, one would think that just one judge couldn't and shouldn't have that much power. There are other courts to appeal to. Every effort you make to reopen your case based on new evidence, whether it's newly discovered because a witness just came forward or because the state withheld it or because of ineffective assistance of counsel of your trial counsel. All of those are raised in the trial. I bet if you were to go through her entire decades-long term on the bench, she didn't grant a single one. She didn't even grant a hearing on one. I mean, we had cases where the shooter came forward and she was like, "Math." Now all of a sudden, he's not credible anymore? Yeah, he's not credible now, but then you get more evidence of his credibility. And she's like, "F, that's not new." You've been saying you're innocent for years, so that's no longer a new theory of your case. It's wild. And so, well, there are a lot of factors that lead to wrongful convictions, the police, juries lowering their standard of beyond reasonable doubt, judges, and of course prosecutors, overzealous prosecutors, or care more about winning than justice, and lazy defense attorneys. All of those things contribute to wrongful convictions. But the one thing that maintains wrongful convictions are trial judges who don't give meaningful consideration to these claims. Because then when it goes to the court of appeals, they give deference to the trial court. The trial judge sat on the trial. They're the ones looking at this now. We're going to give deference to their decision. We don't sit in judgment of their decision unless it's arbitrary or absurd, which is a very high standard. And when you have someone like her who's been on the bench in a political climate for decades, they're not calling her arbitrary and absurd. They're affirming every single one of her crappy decisions. And we know they're crappy because so many of these men have now been exonerated. And we can literally attribute hundreds and hundreds of years of wrongful conviction to her unwillingness to consider these claims from her bench. Even though finding new evidence appeared to be futile with Judge McDonald, Picardo caught another break. I found Danny last name. That's when my God Quincy, but I called him cute. I was in Lucasville with Quincy, told me he was in Toledo with Danny and his last name is Kern. Danny told Cue that I was in jail for some he did. That's how I got his full name. At the time, my lawyer was Brett Murner. So I got my, I told my attorney, talk to mixing again and mixing, identify Danny Kern as the shooter. I filed another motion for a new trial. They did not hear it. Talking about my lawyer ain't give a time frame or when I discovered the new evidence. So they shot that down. Another break in the case came from a FOIA request along the way someone on his legal team did a freedom of information act request, but did not realize what they had discovered until moving on from the case and returning Ricardo's files. So, man, when they sent me my paperwork, I go through all my files. I see the original investigator reporting here, Gary Blanchard Police Report and Edward McDowell Police Report. I'm like, man, I'm looking at it like, man, this all the stuff is through, I ain't connected to the crime. I never got this, this stuff in my trial. So, man, I ended up filing the motion myself. That had to be like in 2014. These police reports undermine Mixin and Jackson and the state's timeline of the shooting, while validating Ricardo's alibi. If the shooting ended the fight like these witnesses in the alibi witnesses said, then Ricardo's police report from the hospital was checkmate. This appears to be a major Brady violation. So, it's important to know some of the context of what was going in Ohio in terms of the way criminal trials were handled at that time. We didn't have open discovery. So, there's no way of knowing what actually was and was not shared with defense. Other than presuming that if a defense attorney had the information, they would have used it. Now, when Ricardo goes on to file all these things, he's saying we obviously didn't have it because he would have used it if we had it. But the court says that without some affirmative proof that it was not turned over, he cannot meet his burden. Now, there is law in Ohio, which contradicts those holdings, but there are holdings that support that perspective also. And so, what the state is arguing is that you can't prove that it wasn't turned over because all we used to do back then is the defense attorney would meet with the prosecutor. The prosecutor would have the police reports, not share them or show them, but summarize what was said in them. And so, there's no way to prove or disprove what might have been said in some backroom handing these things back and forth. It's a system that disfavours the truth because how do you prove the absence of an occurrence? Well, if it wasn't Brady, then it sure as hell was ineffective assistance of counsel. Now, for the less, Ricardo caught another break in 2020 when another witness came forward, Derek James, who said that he told police about Benny Kerr in the night of the shooting. But what good was any of it if it had the past through Judgment Donald first? This is awful, but for years, we were just waiting for her to leave the bench, which we knew she would not do on her own. It took an act of God to save our clients from her ongoing reign of injustice, to die a few years ago, which the result is finally clients whose wrongful convictions arose out of her courtroom can get fair consideration. Unfortunately, Ricardo did not benefit as she passed in 2021 after he had already used up the Derek James affidavit. So to recap, all the evidence that this judge denied him on, the initial interviews with McDowell and Blanchard, discrediting the state's timeline of the crime, the description of Benny Kerrne, all of which corroborated his alibi defense, multiple people identified Benny Kerr along the way, not to mention recantations from the only material witnesses in this case. And so all of those things together, not only entirely under my state's claim, but present a meaningful case for who the actual wrongdoer is. And really, he should have had a hearing in 2002 when these initial affidavits came forward. But his judge denied him, the court of appeals just constantly affirms what the trial judge does, and the fact that he remains in prison. So in this case came to me, it's exactly where it is right now. All of this has been filed. And here we are 21 years later, from those affidavits, with an insurmountable amount of evidence supporting his innocence. And really, if I'm being honest, no procedural door to get into court for meaningful consideration. And so here we are thinking artfully and creatively about how do we get that door open so that we can do the right thing for this innocent person. We have done it before this office, and we will do it again. We will find a way to get this man back in court because that's what justice requires. But we are up against a substantial mountain of procedural hurdles and procedural default. To help facilitate that, we're going to link Kim's Instagram in the episode description if anyone listening has information about this case, it could be the key to getting them back into court without Judge McDonald. So please reach out to her and help bring Ricardo home. We're also going to be linking a petition to help raise awareness about this horrible injustice. So please take a moment and join us. Sign it. And with that, now we're going to go to my favorite part of the show. We call closing arguments. And it's where I thank you again for being here. Now I'm going to turn my microphone off and kick back in my chair and just listen to anything else you have to share with me and our amazing audience. So Kim, when we start with you and then Ricardo, do you take us off into the sunset? At the end of the day, what we're looking for is to give Ricardo a chance at a fair trial due process. We have no doubt he would be acquitted when presented with that opportunity, but he hasn't even had the chance to have his fair trial, his fair day in court yet. So I think Ricardo Gray's case is one of the most obvious claims of innocence we've ever seen. There was very little evidence to support a conviction to begin with and all of it. Every ounce of it has been overturned, but the problem with his case is that it really highlights the failures of the criminal justice system to correct itself and every incident. And so he's is one of those examples of where the criminal justice system has the tools to convict, but not the tools to overturn conviction. And so not only is this an opportunity to look meeting at his case, but at the rules of procedural default that keep people innocent people like Ricardo Gray imprisoned for 10, 20, 30 years before having a chance to even have a hearing to have their day in court or to present their claims in a way that the merits of their claims are considered. And so when listening to stories like this, it's important that we not only consider how we can help Ricardo Gray, but how we can expect more of the system and demand that judges, that people we elect to be in positions to make these choices give consideration or be held accountable. And that when you get that jury summons that you don't think, I don't want to be a juror, but you think this is my chance to hold the government accountable to its very high standard and to participate in preventing wrongful convictions because that is the most minimal way we all get to participate and to change the system. And it would have made all the difference a lifetime of difference to Ricardo Gray if he had a jury who held the state to that very high standard to begin with. I'm ready to go home, man. I'm tired. I'm sick and tired. I ain't but so strong. I need help, man. It's killing me. I'm trying not to start crying out with around all these tools in here, man. I can't show no sign of weakness in here. I'm here with Lyon. Yeah, I just need some health, man, to show what the trail really going on here, man. I got all the facts. I just need health, man, to get me the hell out of here, man. I need to get home to my daughter, man. I'm the Miss 26 years of my daughter's life, man. I wasn't able to raise my daughter, man. That's what's up with me the most, man. I ain't been able to, I ain't been able to live with my family. I really just miss raising my daughter, man. That was the key part of everything. We didn't think through a lot through this whole thing, man. It's just time to go, man. 26 years is just out of control. They were wrong and they know they were wrong. They wouldn't keep me in here until I put it on the wall of what's really going on. If I don't put it on the wall, what's going on? They're not going to do nothing, man. So I need help, you know. I'll tell you. appreciate you, the day I've been through. Thank you for listening to Rontful Conviction. You can listen to this in all the Lava for Good Podcasts one week early by subscribing to Lava for Good Plus on Apple Podcasts. I want to thank our production team, Connor Hall, and Kathleen Fink, as well as my fellow executive producers, Jeff Campler, Kevin Wardis, and Jeff Clyburn. The music in this production was supplied by three time cross-renominated composer, J. Ralph. Be sure to follow us across all social media platforms at Lava for Good and @RontfulConviction. You can also follow me on Instagram at its Jason Flom. Rontful Conviction is a production of Lava for Good Podcasts and Association with Signal Company number one.