#546 Jason Flom with David Smith

Joy is essential and it's also elusive, but now there's a new and exciting way to start your journey toward a more joyful existence. Joy 101. It's a new podcast hosted by me, Hota Kotby. If you're craving inspiration to maximize your joy, tune into these candid, uplifting, and moving on air chats. Listen to Joy 101 on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. Joy 101 with Hota Kotby is presented by CVS. Every family has its secrets, but what happens when you discover that your dad has been living a double life? That is not the look of an innocent man. Is everyone lying to me about who they are? I felt such desperation. I felt it was what I had to do. Listen to Deep Cover, The Family Man. I'm the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. June is Black Music Month and on the Drink Chams podcast, we're speaking with the hottest names in the culture, like Sway Lee. Do you realize how legend there we are? I appreciate it. I'd be seeing it, but I'm like, I mean, I still got like so much more to do, like Prince, he's got like 30 albums. We just like fire right now. That's the rate we got to be going. Yep, that's a good attitude. Matter the era, Drink Chams brings you the biggest names and the most unfiltered conversations. Listen to Drink Chams from the Black Effect Podcasts Network on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. On October 16th, 2015, 24-year-old Courtney Tollever was struck by a blunt object in her Portage County, Ohio trailer home. After running for the neighbors for help, she was rushed to the hospital and put into a medically induced coma. When she regained consciousness, her memory was unclear. Soon, detectives suggested David Smith, a man who had texted her that day, but she said it wasn't David until she was facing her own charges. Then, her memory made room for that possibility. This is wrongful conviction. Welcome back to wrongful conviction where we returned to Portage County, Ohio. Now, the last time we covered a case out of there was Tyrone Nolling and that one lives rent-free in my head. And we're going to link to his story in the episode description. Tragically, he's still on death row to this very day in Ohio and we're only aware of the wrongful conviction epidemic in that state because of the incredible attorneys who also call Ohio home, not least of which is Kim Coral. Kim, welcome back. Yeah, thanks for having me back. And she's here to help tell the story of the man himself. David Smith, thank you for joining us. Right, thank you. I appreciate you. And typically, we like to hear about our guest lives, you know, before all this insanity came to pass. And with David, that's 47 years. I mean, he wasn't a, he wasn't a youngster when he went to prison, but those 47 years, they weren't easy ones. Were they? I was taken from my real parents at the age of six, given up for adoption. I had eight brothers and sisters. And I went from foster home to group home, foster home to group home. And finally, a man picked me up as someone that he wanted as his son. In order for him to adopt me, he had to have a wife. So he married my mother under false tenses for real because I fast forward. It was a whole lot of abuse in the home. I mean, extreme abuse, physical abuse. So where I got upset with my mother was, there couldn't have been nothing in that home that could have been worse, where you would have to give me away. If it wasn't good enough for you, then why should it be good enough for me? Why didn't you take me with you? And a judge also made that statement to her. And she said she couldn't because that would have been kidnapping in my head. I'm saying, how could that be? You can prove the abuse by the markings on my body, by me ward myself back to the state. But I wasn't good enough to take with you. So after his mother left him in this man's custody, he found a way to get himself out of that awful situation. A day to T and I warded myself back to the state. We went in to see the judge on some kind of official business dealing with the adoption part. And I told the judge, I'm not going back there. And he looked at me and he was couldn't figure out why. And I said, I'm just not going back with that man, why he was sitting right next to me. And that day forward my life began by myself. Without me having any kind of guidance or direction, the only thing I knew to do was to survive. It entailed me committing crimes. I didn't know any better. And all the deal was grew until it grew out of control. I was constantly detention centers, juvenile facilities. I was numb. I was just a mechanical animal out here just trying to survive my life. At that time, I was just a car thief boy. And then that grew to the life of crime. As an adult, I had a robbery case, a belonging to the sole case. And then 2014, I had gotten to the trade and selling drugs. That's all I've known up until 10 years ago. When I actually started getting my life together, I had opened up two small businesses. I moved out of Portage County, moved to Trouble County, Newton Falls. And that's where he lived with his girlfriend, Margaret Austin, while both getting his cleaning business off the ground and remaining in touch with friends in Portage County, including the victim in this case, the 24-year-old woman, the importanty, Tolliver, who was also involved in the drug trade. And on the night before the incident, she had texted David for a ride to Cleveland. And so they were in contact earlier that day, that faithful day of October 16th, 2015. And then she suddenly stopped texting David right around the time that she had been struck with a blunt object inside of her trailer home. 9-1-1 gets a call from a neighbor that Courtney Tolliver is wandering around sort of between trailers and collapses on the ramp of her trailer. And they believe she's muttered something about being hit with a hammer. The police arrived. She is taken by EMS and then life flight. She is put into a medically induced coma. And during this time, the Portage County Sheriff's Office begins an investigation, I'm using the term investigation very lightly, because they gathered, I mean, I think five items of physical evidence, all of which have since been lost. So they take a few photographs, they gather five items of physical evidence, and they swab a number of things for DNA. There is a hammer on site that is not collected as evidence. The photograph of it, it appears to have no blood on it. What is most interesting is there is a stool absolutely covered in blood. When you zoom in, you can see a hair fiber on it. There is a massive puddle of blood around this stool. Now this stool is not swabbed, it's not collected, it's hardly photographed. There is a set of keys that are moved onto a puddle of blood. So someone touched those keys after the incident, those were not gathered or swabbed or finger printed. And it was a size six foot print that was inside the blood, a woman's size six shoe. The detective said that they didn't step in the blood, they didn't do none of that. So who's size six shoes is this? There was a lock box, which someone opened, whoever did this, that was not swabbed or finger printed. It was gathered but never used as evidence and has since been lost. There was a laptop that the contents of which were never investigated that was lost, and she had two cell phones. Courtney described one cell phone as her family phone, and the other as her drug phone. But at the time of trial, the state claimed to only have the records for the family phone, which she had used to text David about a ride to Cleveland. And so throughout that evening, they go back and forth with texts about a ride to Cleveland and throughout the next morning. Dave says, I have a job interview. We know from the location of his cell phone, he goes to a job interview, and then there's text back and forth. And then she drops off the texting and he says, what do you want to do? I'm pulling up. And then no response. But she was text messaging people steal on that other phone when this crime was supposed to happen occurred with me anyway. They say it has happened between 1030 and 1045 with me, but at 1040 something she was still on the phone, text messaging and making calls with whoever she was talking to. But the drug phone record and this exculpatory context were not discovered for many years. Nevertheless, the police visited David who confirmed his number and they probably visited the people on the other phone log too. And soon Courtney came out of the coma. She cannot speak because she's intubated, and she writes down who did this to me. She had been engaged in a number of drug transactions the night before and the next day early in the morning before this attack. They don't investigate any of those people in any manner whatsoever. They don't investigate any other person she contacts or calls. Or they did, but they just didn't keep any record of it. Now, when Courtney's intubation tube came out, they interviewed her again. And again, she said that she had no recollection of what had happened. And in between that visit and the following one, they ran some of the crime scene evidence through Kodis. the national database and they came up with a possible match. Not a true match but a possible match for David Smith. So while waiting for confirmation of that, they visited Courtney once again this time recording the interaction and telling her whose DNA they believed that they had found at the scene. When they go interview her on December 9th, they hold up a single photo of David Smith and tell her this man is a dangerous man. We already spoke to him. He did this to you. He wanted you dead. He doesn't care about you and she does not identify him as her attacker. She says, why would he do this to me? And she seems to have some foggy recollection of her attacker. She states that the guy had blue tip dreads. I don't have blue tip dreads. I think I've been bold for 25 years at least and the blue tip dreads is the person that they mother call and ask that you try to kill me. His name is who? In a recording her mother says we called and asked him why he did this. And this is a person that she'd been known for ever. Good friends. They do business together. They kick it together. They was like peanut butter and jelly. Why would you call him and I asked him did he try to kill you? So Courtney and her mother had their own suspects. They even mentioned others in that recording. Some of whom were on that other call log but at this point, the police appeared to be hoping for their possible code smash with David was going to be confirmed. But it wasn't. So now they began to scramble. What we found later with these alternative suspects is the Tecchujonsense calling the BCI people who handle the DNA testing and telling them we have these alternative suspects. They could have been involved. Here's why they actually let Courtney tollevers children's father out of jail to help investigate for them. Her baby daddy was talking to his mother and his aunt on the phone in the county jail and said that she said who did it to her. And then they don't disclose the information they get from him. And then as BCI is calling back saying these other people's DNA most of this DNA isn't matching to anyone almost all of it. Then Johnson starts to just narrow it on David Smith refuses to give anyone else's DNA and refuses to turn over any discovery about these other alternative suspects. At this point they returned to the DNA that had been a possible match to David. And if you've ever seen a DNA analysis graph also known as an electroverogram, it looks like a series of little peaks marking genetic alleles that are present in a given sample which are measured in relative fluorescence units or RFUs. And it seems like there were enough peaks in common with David and this DNA sample to trigger a possible match in codis but not an actual match. And there are ways to enhance the quantity of a sample as well as the height of the peaks or what lies between the peaks, what is called static, to see if potentially there is other genetic information. It's an amplification process which was a process they used for the first time in Portage County in his case. And they're only supposed to amplify a certain number of times and that amplification creates static. And those static points either can cause you to misread actual alleles as static or you can have static so high which is nothing, it's not real information, it's created from the amplification process that can be read as an allele, a marker in a certain space. So they enlarged that possible match to David Smith. And it was still not a match to David Smith, so they enlarged it a second time. And it was still not a match to David Smith and they enlarged it a third time. And it was a match in equal parts to David Smith and the victim. This triple amplification process produced an electropharogram that differed from previous iterations in order to produce this result. And it's unknown whether these differences may have been actual genetic information or nothing at all. So there's a potential here for subjectivity, false positives and negatives and definitely a lot of room for doubt. But an unreliable process in this case produced a result that there's a 1 in 150 chance, it's anyone but David Smith or Courtney Talibar, which is not a match at all. The 1 in 150 chance means it could have been 27,000 other people in Portage County. So at this point they returned to Courtney for an identification and they doubled down on David. Obviously without that identification they had some trash DNA and that's about it. She continues to not identify David Smith as her attacker. For several more months until February of 2016 she had, I believe, eight or nine felony drug counts pending. In February those counts are resolved with the same judge who tried David's case. Those are resolved to a term of probation and she walks directly out of the courtroom into a little room immediately to the left and explains to Detective Johnson that she now remembers that she had a dream while in her coma. She's a ball of black man maised her and she now interprets that to mean that David Smith hit her with a hammer in October of 2015. So no more assailant with blue dreads and no more felony drug charges. Maybe she had no idea who had hit her but now at least she found a way that she could get something out of it. No, I think she has an idea and I think that what really transpired is something that her and the person that did it is going to take today great. I mean if somebody beat me like that, I'm going to know who it was. Beat. Nevertheless, it was a not-for-unarest warrant on April 1, 2016. That morning I had my cell phone in one hand and my car keys and other I charted my truck and I stepped one foot in and when I look in the rearview mirror it's a black undercover car bumper to bumper with me. He pulled out his gun like three, stick your hands out and I stick my hands out and I said what's this about officer? He put the handcuffs on me and then he said you have a warrant for attempted murder and I damn their past out like what? You're listening to wrongful 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. Together guys we'll have meaningful conversations with the world's most fascinating people. Entertainment Legends, sports icons, wellness experts and everyday people will share how they find, allow and experience joy and I'll offer some of my own tips and takes on seeking a more balanced and harmonious life. If you're craving inspiration, support and useful tools to maximize your joy, tune into these candid uplifting and moving on air chats. Joy after a breakup, joy is an empty nester, joy after a loss, joy as a caretaker. This new podcast will speak to you. Listen to joy 101 on the iHeartRadio app, Apple Podcasts or wherever you get your podcasts. This is Michael Rappaport and my podcast, the I Am Rappaport Stereo podcast is unlike anyone you've ever heard. We're a variety show and if you're looking for strong opinions, funny opinions about sports, entertainment, politics, pop culture and whatever else catches my attention then subscribe now. This kid, Jeff Farr Jackson is as good as Romney Malik as Freddie Mercury and it's as good as Timothy Chamolay as Bob Dylan and I say that with love and respect for both of those actors and I don't know how many Oscar nominations they give out and it's five, six for best actor. 150% this kid, Jeff Farr Jackson should absolutely positively get nominated for his portrayal as Michael Jackson. Listen to iAmRappaport on the iHeartRadio app, Apple Podcasts or wherever you get your podcast. I AmRappaport Podcasts. Your husband is not who you think he is. Your body is not what you thought it was. Your identity is formed by a secret history. I'm Danny Shapiro and these are just a few of the stunning stories I'll be exploring on the 14th season of Family Secrets. Just then we felt the plain turn in the air so much so that the bags are under people's seats just kind of flew into the aisle. Each week we deny the headfirst into the complex power of secrecy, how it shapes our identities and relationships and how it ultimately can reveal to us our truest selves. My daughter, she's pretending she doesn't know but is trying to cook and feed me and keep me alive because I wasn't eating anything and me pretending like everything was fine. He kind of showed me out of the way and said move and he went out the front door and he jumped in a car and drove off and that was the last time I saw him. Listen to season 14 of Family Secrets on the iHeartRadio app Apple Podcasts or wherever you get your podcasts. It was the biggest case in Portish County. Everybody at that time, the Portish County jail. tried to get warned that witness list to testify against me so they could get out of jail. The detectives was pulling up on people talking about you ain't gonna get in trouble. All you got to do is just tell us you was down there waiting. I mean all this is video and recording. Eventually the investigators came upon some willing participants who they could actually use. Starting with a couple who knew David from the drug trade, Randy Milam and Florence Fontanella and Randy was the one who made the first statement. I mean if you looked at the video or this interview, you would be like this is a dope thing trying to get out because she's telling the detectives all these outlanders statements. But he's also saying, are you gonna go to the judge and tell her to let me out? He came up with a story that I told him I did it. I told him I loved to hammer out the house that me and this girl did it together. Then Florence Fontanella who was facing her own charges was approached about being in Randy's car during the alleged confession. The DEA went to her house and asked her up and she said, I don't know nothing about that. She said, I was in the vehicle waiting and I never heard of that man say he did anything. The very next day they had a warrant for arrest. When back picked her up, brought it up for this county jail. She wrote a statement, I was in the car and I didn't hear none of that. She made recorded calls from the phone and said, Randy must be in trouble. I didn't hear none of that. But two weeks later, she spent around and said, I was in for a comment. She said, I didn't hear nothing but him say, got the bitch with a hammer. And then once Florence hopped on board, Randy recanted. So now they couldn't afford to lose Florence as well. Florence Fontanella, she was scheduled to go for sentencing a week before my trial. They pulled her sentence thing to make sure that she testified for the deal that they gave her. She went to treat me facility for edits instead of prison. Yes, she switched her story quite literally when she got the deal. And they pulled a similar stunt with another acquaintance of David's who was named Lisa frame, ironic name much Lisa frame. Come on. Now Lisa frame was in Jefferson County jail and Lisa frame drove a black car. A black car can be seen driving in and out of the trailer park around the time. They believe the crime happened. And to me, it's pretty clear they knew someone. There was a known associate of David Smith with a black car. She was in jail. They went to the jail threatened to charge her with conspiracy to commit attempted murder. Unless you told them that she drove Dave Smith there. And so she said, will tell me what you want me to say to you and I'll say it. And this insanity is on tape. Yeah. She says there was a day she gave Dave Smith a ride, but she wasn't sure what day it was. She took him to the trailer park. He was in there a couple minutes and he came back. He had no blood on him or anything. He wasn't in any state of outrage or upset or panic or anything. She doesn't say anything about having a hammer on him, but she says he has something and it wrapped up in a shirt which she thinks is a gun. And she reiterates she has no idea what day this happened Lisa frame said I called him several times. That would have blocked me and Lisa frame into that day. That time, but they said that they took her phone and plugged it into the computer and they couldn't get nothing out of it. Oh, I'm sure. And not only did they plug it in and decide that it wasn't computing, but they then thought, what should we keep it? Should we keep it? Should we store it somewhere important? Nobody knows. It has disappeared into thin air. And in all of the phone records that were available in this case, they got one set of phone records, which helped the tale they were spinning and then everything else was unavailable. So to shore up Lisa frames date and time, they pulled surveillance footage from a Walmart parking lot showing two black cars traveling in the direction of the trailer homes around the time of the last text message from David and then only one leaving shortly after. And we could get into how possible or impossible it was that these were even her car. And how long it would take for the round trip plus the bludgeoning, but why unpack a bunch of meaningless bullshit that's masquerading as evidence when the logical framework is built on the word of someone who said on a recording. Tell me what you want me to say and I'll say it. So they went ahead to trial with Lisa frame Florence Fontanello, Courtney to lever and the bogus DNA evidence, which magically seemed to have gotten a boost of credibility in the lead up to the trial. Before 2016 when they come up with the electropharograms, the peak had to be taller than 75 RFUs. Otherwise, it could have been static and it's too risky to consider it. But in between October 2015 to fall 2016, BCI published a paper saying now just in the nick of time, they're allowed to lower the threshold to 50 RFUs and count peaks that really fall in that high risk static range. So this lowering of standards allowed for the triple amplified DNA sample to be presented as a partial match to both David and Courtney, which is a confusing result and implied that it could have been David, but it eventually turned out it could have also been so many others. The neighbor across the street, in fact, when we compared it had more alleles in common with this sample than Dave Smith did and had blood on his pants and was present when the police arrived. And I'm not saying he did it. But I'm evidencing how we manipulate DNA to say what we want it to say. And that's what they did in this case. And the stake out one last helping hand David's attorney files is oppressed the victims identification because if you remember the December 9th 2015 interaction was recorded when Lieutenant Johnson was suggestive with the witness. Yes, he literally is saying this man is dangerous. He wanted you dead. We know that he did this and she's still not identifying him and what is crazy is Oliver's mother is in that same interview and in the course of the conversation, Oliver's mother is talking about other people that they believe did this by name specifically hood with the blue tip dreads, but the motion to suppress the ID was denied. And by the time we get to the first trial, they don't allow that to be played in court. Instead the court says, well, they have the transcript of it. The jury is going to get the transcript. But it took me 10 years to find out that those transcripts wasn't even accurate in the first place. The transcript had the names of the other potential suspects redacted and it had it redacted in such a manner that it then sounded like his mother was still talking about David Smith. We called him and asked him why he did this implicating that they believed it was Dave Smith when really what they said about Dave Smith was why would he do that to me. She said he gave me a ride once. Why would he do this? So even if the jury planned on reading them, they'd be misled by the redacted text anyway. And that's how both Lieutenant Johnson and Courtney Oliver testified about the identification without being irreparably impeached. Instead, the cross examination was neutered while Courtney took the stand. She testifies with 100% certainty that David Smith came to her door and attacked her with a hammer. And despite cross examination, this was still a bludgeoning victim naming her attacker. But this is the key to 100% sure this dream summary never came up until that detective showed her that picture and did not she saying in my dream. It was him, but there was never a dream summary in the hospital on November the 7 or whatever it was that the detectives came to the hospital and asked you and you say I have no memory of that. Perhaps having not heard the contextual audio recording or having not heard a word about the deal she got for her nine felony drug charges. Sadly, unsurprising that the jury accepted the bogus idea's truth and then came the quote unquote supporting evidence like Florence Fontanello who had her own issues. Initially, she says that David Smith had nothing to do with this and she says it in these Facebook communications with Margaret Austin. Randy Malam comes forward and tells them what they want to hear then she all of a sudden switches to team state and she says David Smith made an admission to her when my attorney asked her. Well, what did you hear in the conversation. She said I didn't hear nothing but him say got to bitch with a hammer and she's confronted with these Facebook tax but maintains that David Smith made an admission to her. She told the jury the reason why she didn't come forward because she was scared. The jury was also unaware of the deal that she had received as well as the threat that Lisa frame had sidestep with her testimony, which was supported by surveillance footage of random black cars traveling toward the trailer park. There's not a single photo of what her actual black Cadillac looks like even though they had a search warrant for it and they searched it. All they took not a photo of anything but they did take a floor mat and they tested the floor mat for either Dave's DNA or blood or any blood splatter at all because this was one of the bloodiest crime scenes I've seen. There's not a drop or spec of blood on the mat, none of Dave's DNA, but then since we have no photo of the car to say whether that was the car pulling into the trailer park or not, they just. infer to the jury that it is. And that Lisa Framed doesn't remember the day, but that was the day. And that also she must just be confused about how Dave Smith didn't by any stretch look like he had just hammered someone nearly to death. - So after hearing only some of the impeaching issues about every single one of the state's witnesses and having heard the identification of the attacker without the context of how that identification came to be, the jury went to deliberate. I mean, there's a lot of evidence that the jury wasn't able to deliberate on. And they came back two days later with a guilty burden. 23 years flat. They told me I wasn't coming home till I'm 71 years old. And I just started it at 47. Joy is essential and it's also elusive. You can't order it, you can't borrow it or simply hope it into life, but now. There's a new and exciting way to start your journey toward a more joyful existence. Joy 101. Together, guys, we'll have meaningful conversations with the world's most fascinating people, entertainment legends, sports icons, wellness experts, and everyday people will share how they find, allow, and experience joy. And I'll offer some of my own tips and takes on seeking a more balanced and harmonious life. If you're craving inspiration, support, and useful tools to maximize your joy, tune into these candid, uplifting, and moving on air chats. Joy, after a break up, Joy is an empty nester. Joy, after a loss. Joy as a caretaker. Listen to Joy 101 on the iHeartRadio app, Apple Podcast, or wherever you get your podcasts. This is Michael Rappaport. And my podcast, the I Am Rappaport Stereo podcast, is unlike anyone you've ever heard. We're a variety show. And if you're looking for strong opinions, funny opinions about sports, entertainment, politics, pop culture, and whatever else catches my attention, then subscribe now. This kid, Jeff Farr Jackson, is as good as Rami Malik as Freddie Mercury. And it's as good as Timothy Chamolay as Bob Dylan. And I say that with love and respect for both of those actors. And I don't know how many Oscar nominations they give out. I don't know if it's five, six for best actor. 150% this kid, Jeff Farr Jackson, should absolutely positively get nominated for his portrayal as Michael Jackson. Listen to I Am Rappaport on the iHeartRadio app, Apple Podcast, or wherever you get your podcast. I Am Rappaport podcast. Your body is not what you saw it was. I'm Danny Shapiro. And these are just a few of the stunning stories I'll be exploring on the 14th season of Family Secrets. And just then, we felt the plain turn in the air, so much so that the bags that were under people's seats just kind of flew into the aisle. Each week, we dive headfirst into the complex power of secrecy, how it shapes our identities and relationships, and how it ultimately can reveal to us our truest selves. My daughter, she's pretending, she doesn't know, but is trying to cook and feed me and keep me alive because I wasn't eating anything. And me pretending like everything was fine. He kind of showed me out of the way and said, move. And he went out the front door and he jumped in a car and drove off, and that was the last time I saw him. Listen to season 14 of Family Secrets on the I Heart Radio app, Apple Podcasts, or wherever you get your podcasts. I was angry about it, but I wasn't bitter because, before I left my to that courtroom, I told the detective, Lieutenant Johnson, I'll see you again in trial. And he said to me, I'll be there. And for 10 years, I made sure that I was going to be there to see him again. While the appeal was going on, I was in the long live very every single day. Like so many of our guests, David learned the law and after his direct appeal failed, he began filing motions, pro-se, meaning on his own without the help of an attorney. I did a post-conviction on ineffective systems to counsel for not playing those audio in court. He had to shot that down. She said that there was nothing outside the records because these transcripts and audios went back to the jury. With subsequent, we found out they never went to the jury. It didn't ever happen. And subsequently, he filed his federal habeas based on the impermissibly suggested identification, citing the transcript of the December 9th, 2015 recording. A transcript that they had thought was both complete and seen by the jury. And the filing made its way to the sixth circuit by 2022, by which point Kim had already joined the fight. By this time, Kim had sent me the audio and the original transcripts of Courtney Tollerberg's interview with Lieutenant Johnson. And when she sent it to me and I was reading it, I said, "Kim, these transcripts, it's not accurate." She's like, "What you mean?" I said, "They took evidence out of these transcripts." So she sent me the audio. I barked off where all the meat was taken out to transcripts. The identification of somebody else and everything else. And I sent it back to her. She sent it to her independent transcriber. And they put all of it back inside the transcripts. They're authenticated through another transcriber, but they're not authenticated through the courts. Also, I didn't use these transcripts in my federal aide. So now we in the sixth circuit court of appeals and I bug a Kim and say, "How are we gonna get these transcripts in the evidence?" - What's difficult, those were procedurally in a place where you can't expand the record. And so knowing that they weren't gonna allow me to expand the record at that time, I was just like making up other things to file that I would have a reason to attach the transcripts. - So when they read the motion, they're gonna read the transcripts. And that's what we did. - Without regard to the fact that they removed a part of the transcript, which contained ex-cultivatory information and identified an alternative suspect, the court was just like this wild identification procedure overly influenced her and it's so bad. It's to such an extent that there's no way it can overcome even the stringent protections of Ed Pah. - Ed Pah is the anti-terrorism and effective death penalty act, which was signed into law in the wake of the 1996 Oklahoma City bombing. And in order to reverse a state court decision, quote, "Every fair-minded jurist would have to agree," end quote. So what they're saying is that not a single, quote unquote, "fair-minded judge in existence" could have seen this another way. And the Six-Sirket rule that this seemingly impossibly high standard had actually been met. - And that's when they awarded him a habeas corpus on the condition that they have to release him if they don't retry him without that identification within six months. - And it was just hard that it took me all this time for a just see where really happened in that case. - Yeah. - Evidence didn't change, nothing changed, but it was just that scene, hey, what just man did did this do? This ain't right, you should have never went to trial. - So the state tried to stay the decision, which bought them about six weeks against the six months they were given, meaning they had to retry him by March 13th, 2025. And with the clock ticking, the state appealed the denial of the stay, as well as filed for certiorari with the US Supreme Court, both of which were almost unanimously denied in January of 2025. - Since the ruling in July of 2024, I've been actively filing defense motions, all of which went ignored until January for a trial that had to start by mid February. And so by the time they were suspended to like our motions for expert, all of those deadlines that expired for us. Then two days before trial, they find a box labeled Detective Johnson, it was in the back of some garage, and it contained ex-cultatorial information, it referenced confidential informants. - And this confirmed suspicions that Kim had raised before the July 2024 ruling. - While I'm working on David's case, I am randomly working another federal drug case, and I'm in the trial, and a confidential informants name is disclosed, which is wildly protected, but it is a name I recognize. So I go back to Portage County and I say, I have documentation signed by Portage County Sheriff's Office, indicating that this person was paid as a confidential informant, right around the same time of this case, that they were on the payroll by the Portage County Sheriff's, and the Sheriff's continually and repeatedly stated, we have no record of that, while I'm holding documentation signed by their office on their letterhead. - The people that they had on the list suspects are confidential informants. - And that would explain why they never even called them into interview them, not one of them. Today, I identify their whereabouts at the time of the crime. Did they get their cell phone records to see their location or their communication with Courtney Tolver? - Which definitely adds context as to why this second phone log was allegedly never gathered into evidence. And additionally, there was new context for how David's and only David's cell phone location, had been obtained. When he got the warrant for my cell phone tower evidence, he told the judge that his DNA is on this scene. And that's what he used to get a search warrant. When the people from BCI said, "You have to do further investigation. This is not evidence," but he took it to the judge and the judge gave him a search warrant for my cell phone tower evidence. The big part of the first trial was like her last text message was to David Smith. She never text anybody again after that. Well, her other phone makes clear she's continuing texting and engaging with people for 15 or 20 minutes after they believe the crime occurred. And that she has constant contact with one person more than a hundred times that day. That was another aspect of the case. That was not a part of the first trial. And then they tried so hard not to make it a part of the second trial by arguing that we could not authenticate it because the records were 10 years old. And that was an issue for everything that was found in the Tenon Johnson's garage as they moved into the retrial in February 2025. Another one of the big issues that the retrial is that the state investigator who photographed the crime scene has retired and literally told them, "Sorry, I'm not coming in." So we were denied the opportunity to cross-examine him about the photos on scene. You literally can't question anyone about anything you see in the scene. How can you develop arguments when you can't even point things out? Like whether or not the hammer was even the murder weapon at all. When the stool in the photo, well, it was an interesting alternative. What's interesting about it is someone touched it after it was used because there was both blood under it that it is resting on top of and blood on top of it. So that isn't how meaningful evidence on it. Did they collect it? No. You didn't pick up the only hammer on scene and you didn't pick up the thing that looks like a bludgeoning object covered in blood. You didn't pick up the plastic bag, which was sitting on top of a pile of blood and also a blood splitter on it. So it was moved after, you know, it was touched in some way in the course of this attack. But without that witness or a more well-documented crime scene, the defense was hamstrung in this regard. But that was not the case when they confronted the DNA evidence at a pretrial hearing. As we discussed earlier, the triple amplification process on the DNA sample drew into question what were peaks and what was just static, which brings in room for subjectivity to something that should just be an objective science. And then Kim proceeded to present what this processing meant for a neighbor's DNA. When I compared it to the neighbor, he had more leals in common with that sample than David Smith did. When you bastardize the process, you get shit in, shit out. And to watch these experts sit up there and try and make sense of a senseless DNA procedure was just, it was painful. The way she went in there and took the evidence, threw it in the trash, the prosecutor came and walked over and said, "Listen, I'm going to ask my boss if we could just walk you might of here with time served and let him go." So the day before trial started on February 24th, Nate put it on the record, "Time served." I said, "No, I didn't fight like this just to go in there, please guilty to something I didn't do. I want my name cleared for this." And the prosecutor looked at me and said, "You got balls." And I looked at him and said, "No, you have balls." Because the six-circuit of appeals told you that you can't use this identification, and you have televised, that's what you're going to do anyway. It is a habeas corpif in which he has to be released unless they try him within six months without using televerse identification of Smith, which is suppressed and excluded. I have read it and retiped it so many times. And they were trying to interpret those words to make it permissible to have the victims identified David, but not expressly as her attacker. Right. I'm like, no, it doesn't say that. Like, these are the highest judges in the country. They weren't confused. They meant suppress and excluded. And when she woke up, she didn't remember anything about the day. So any identification, which includes an identification of David Smith from that day, would be the result of their overly influential, impermissible identification tactics. The day before trial, we found a motion that asked for clarification to ignore the district court of appeals that nodded summarily because what is did it clarify? They say we can interpret what the six circuit means. What the six circuit means is you cannot use televerse identification of Smith, which is suppressed and excluded. When that order comes out, I think, oh, thank God, this explains it to them. But they take it the other way. They're like, see? They said we can't interpret what the six circuit does. So obviously the six circuit means she just can't identify him as her attacker. So she's allowed to say that David Smith, the bald black man and the yellow sweater, he came to my door and then I was struck with a hammer. And that's not an identification. And it would be hilarious if it wasn't so freaking sinister. And then they found a second way to bring it in. In the opening statements, he says, "Courtney Tollifer is going to come in here and tell you that David Smith hit her in the head with a hammer." And then Courtney took to stand. They say, well, can you identify the person that you said came to your house? She said, yes, the bald head guy over there with a yellow shirt, the brown suit on. And they said, well, let the record reflect. She identified David Smith and it just said, no, and she said, he was just standing on my porch. Okay, now what happened? I hit the latch and he opened the door and came in and that's the thing I felt was a stroke and it woke up in the hospital. But somehow in their minds, this scurried the six circuits order that her identification was to be suppressed and excluded due to Lieutenant Johnson's impermissible procedure. And then after they get her to do this whole identification, I go to cross examine on the fact that it was a wildly prejudicial identification procedure. And they're like, oh no, you can't cross them on that. You'd be opening the door. Meaning the door to allowing her identification. It's unfuckin real. And I'm like, is it genuinely your takeaway from the six circuits order? That her identification is allowed, but I can't cross examine her on the unreliability of the identification. You think their point was to make it worse than it was before? Yep, they did. They thought that. And then they found a way to make it even worse with Florence Montanello, who by this time had recanted, but they weren't interested in hearing that. So they claimed they just couldn't find her. They got the court to admit her testimony from the first trial again, even though she issued an affidavit saying that she had lied. They took the 2016 transcripts and read them into a 2025 trial. So we can't cross examine her. They just read her testimony and everyone reads their own part. Same prosecutor, same judge. And I'm like, I'm refusing to participate in this display of injustice. Like I'm not going to sit here like the defense attorney from 10 years ago and read his part. I want to make it very clear to the court that I'm not a part of this. We're just reenacting the same trial that was considered to be unconstitutional. All we did was sit there without being able to say anything. I was so pissed off that as I sat there in court, I ordered little Oscar statues and gave them to the judge and the prosecutors the next day. Like here since this is just a play, congrats on your acting. Nobody liked them. So the jury heard Florence Fontanelle is recanted 2016 testimony, as well as the state's non-identification identification. And despite being threatened with opening the door to the full force of the unconstitutional evidence, they were able to provide some evidence about Courtney's two phones. And the records for the drug phone revealed that she had been active after the state had contended that this crime occurred and that she had been contacted by an altered suspect over a hundred times that morning. But with the passage of time, getting those records authenticated was a real problem. So Kim asked the investigators about these records and why they had gotten lost. Or what had happened to Lisa frame cell phone or for that matter, any of the physical evidence in this case. The detectives were saying they don't remember anything and then we came refreshed their memory with their reports. They still were saying, I don't recall that. We had all this testimony about how they lost all the evidence and then after they realized it was lost, sought a destruction order from the judge to destroy it so that we couldn't use it. I could get one person to testify about some of the timing of the texts in the second set of cell phone records and because I wasn't allowed to admit those records, I wasn't allowed to publish them in front of the jury. So I'm on a giant post it like writing down the evidence I hope they can consider so that when they go back with half of the phone records, only the half that benefit the state. They'll remember having seen me write down the content of what mattered from the second set. And so I thought that if we attacked the quality of the investigation enough, it would be enough. Kim fought everything tooth and nail and they went in there and came back at 12 o'clock with a guilty verdict. But a plan to return to the sixth circuit was already in motion. After all, these fucking people acted like they couldn't properly comprehend the sixth circuit's order. But if the conviction was vacated, then technically the sixth circuit no longer had jurisdiction. So David would have to start his appeal all over. over again. So David made sure that a copy of the Ohio Department of Corrections docket was taken for evidence. When we filed the motion back to the court, they saying, Hey, this case was vacated. The federal court don't have jurisdiction no more. My evidence was the docket, which there's no general injury in there that the case was vacated to the transport order, three, the ODRC website still said that I was convicted, that I was still under conviction, that it was never vacated. We filed that motion. March the 12th after they found guilty. The judge answered they didn't gave us a court date for April 1st. They transported me back to Cleveland to the federal courthouse and Attorney General. It was kind of ugly because I've never seen a judge treat nobody in the courtroom like that, especially Attorney General. They were, I mean, he was not shy in saying, how could you guys have done this? Like, you touched the third rail and not being from New York, he then had to explain what the third rail meant to do a posing council. Like, it's the thing you don't touch. That's how you get electrocuted. You don't touch the third rail and you guys danced on the third rail. What did you put me in a position? What am I going to do? And even though the Northern District Court initially had a differing opinion than the higher six circuit, they had no choice but to honor the higher courts ruling. Because the state's jurisdiction argument held no water. The conviction had not been vacated but rather only a new trial had been ordered. On May 12th, he called his bank to the North District Court of Appeals. And thank God the District Court did not agree with them. And they ordered that David Smith be granted an unconditional habeas corpus and that he be released. But then he stayed his order for 75 days through the use of an administrative stay, which we appealed. And the sixth circuit basically said there's no such procedure as an administrative stay in this context and he has to be let out. And that was on July 3rd. Now July 3rd, I was free on July 4th. I was on a boat with my attorneys. And we took a picture from the boat of the federal court house. Like, everything that's happened, now you get to view it from this side. Yeah. And I sent it to the prosecutor. When I first got out, I didn't want to live with nobody, a deal with nobody. So we have a guy who was also exonerated who has an exonerated house. And Cleveland, we have so much injustice, that we have a lot of exonneries and they take care of each other. So one of them bought a house for all exonneries to live in when they're in this position when they first get out. Charles checks. And Raymond Towler. We had the good fortune of covering Charles's story with Maggie Freeling and we'll make sure to link it in the episode description. So check it out. I've been to a Charles for a long time. So I mean, he was familiar with me, but for like the first three weeks, the only thing I did was went from my bedroom to the bathroom to the kitchen back to my bedroom like I was still in a sale. Since I've been home, Kim gave me a job with the law firm. So right now on the docket, this is appeal. I'm confident we're going to win. We've already had rulings from the sixth circuit when they released him saying that they don't believe that the warden has a winnable position. So that's really favorable. Nonetheless, we're going full seam ahead. And that's submitted to the court. And it's going to be decided without oral argument. And so as soon as we get a decision that ankle monitor is going to come off and he will be free. Hopefully he'll decide to pursue his civil remedies because a lot has been taken from him. In the meantime, he's doing everything he can. He's been working. He's gotten himself an ID. He has MS and diabetes. He's gotten his medical setup and taken care of, which is a lot of steps, but he could use all the support in the world. So if anybody has anything to offer, he's been saving to get a vehicle. He certainly needs business closed for job interviews or stuff like that. And he desperately wants to go back to school. And so the people have resources that they could lend to him to give him support. We would be happy to help facilitate those resources directly to him. And we'll link ways to contact Kim and get David the support he needs. And with that, we're going to go to closing arguments. Closing arguments, everyone knows is my favorite part of the show where I'm going to kick back in my chair, turn my microphone off, and leave my headphones on and just listen to anything else you want to share with our amazing audience. And so, Kim, you go first and then just hand the microphone off to David and he can take us off into the sunset. This is a case with one of the most egregious identification procedures I've ever seen, which is so appalling about it is how many courts justified in the appellate the conduct who gave it a pass in the state court at the appellate level, at the Ohio Supreme Court level, at the district court level, and federal court. It took eight years to get any justice. And then when we finally got that justice by way of an order, the state court threw it out until they ignored it. Conduct that frankly, if any of us engaged in, would be criminalized. We're all required to follow the law. And the trial court thought they were above that. They stomped all over his rights through a second trial and then used an unconstitutional second conviction to justify their misconduct. We're so thankful that the district court sought through it. But if you imagine being responsible for someone's life and freedom as their attorney, he turned out a plea. He could have been free. And then for four months, he lived with a 20-year sentence hanging over his head and just the hope that the federal court would step in and enforce its prior ruling. We're so thankful it did, but here we are still up against it in the federal court of appeals. And this case is a story of even when you get justice through your immediate appellate procedure, it can take a full decade. And even when you find a judge who's willing to say and do the right thing, there's a slew of judges below them who aren't. In Ohio, we have a bill that's on the ballot called the absolute immunity bill. If it's passed in Ohio, it'll be the very first time that anything like this has been passed. And that bill makes judges, prosecutors, detectives, police, anything of authority can be prosecuted for what they do for violating the process constitutional rights. Because right now, the blanket is so thick where they don't have the answer to nobody. They can do what they want and put it up under job duties. You cannot turn over evidence and say it was part of my investigation. The judges can violate your constitutional rights and know that there's no consequences for them. Then people need to be held accountable. Because if I want so-and-so, take a piece of paper from so-and-so, and a detective coming ask me and say, did you see that happen? And I say no. I got a case because I lied, but a prosecutor in the judge can lie all day long. Can withhold evidence. Can cover up whatever they want to. Because there's no consequences for them. That's why this bill in Ohio is so important. And when I spoke at the wrongful conviction days, that was one of the things I spoke about. All this is beautiful. But if people don't get out and vote on that bill, we're going to continue to have wrongful conviction days. Thank you for listening to wrongful conviction. I want to thank our production team Connor Hall and Kathleen Fink, as well as my fellow executive producers, Jeff Campler, Kevin Wartus, and Jeff Clyburn. The music in this production was supplied by three time Oscar nominated composer J Ralph. Be sure to follow us across all social media platforms at lava for good and at wrongful conviction. You can also follow me on Instagram at its Jason Flom. Wrongful conviction is a reduction of lava for good podcasts and association with signal company number one. We have worked hard to ensure that all facts reported in this show are accurate. The views and opinions expressed by the individuals featured in this show are their own and do not necessarily reflect those of lava for good. Joy is essential and it's also elusive but now there's a new and exciting way to start your journey toward a more joyful existence. Joy 101. If you're craving inspiration to maximize your joy, tune into these candid uplifting and moving on air chats. "Listen to Drink Chance from the Black Effect Podcast Network on the iHeartRadio app, Apple Podcasts or wherever you get your podcasts." Every family has its secrets, but what happens when you discover that your dad has been living a double life? Listen to Deep Cover the Family Man on the iHeartRadio app, Apple Podcasts or wherever you get your podcasts.