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CounterClock
Ep 7 of 11: Judgment
00:49:32
The North Carolina Innocence Inquiry Commission process enters its final phase. Delia interviews the expert in developmental psychology who testified twice in the case to understand more about false confessions, and the victim’s family offers their final thoughts to the court. A retired footwear examiner deems old interpretations of shoeprint evidence as junk science and Delia explores.
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So visit thirdlove.com now and get your problems solved. This is episode seven judgment on April 18, 2022, almost 20 years after Mr. Jones murder, three judges in Forsyth county began the final phase of the Innocence Inquiry Commission process, which is aptly named the Three Judge Panel. The three judges were tasked with deciding one thing. If the defendants Rayshawn, Nathaniel, Christopher and Jamal had met their burden of proof by establishing clear and convincing evidence that they were innocent of killing and robbing Mr. Jones when they were teenagers. That's a mouthful, I know, but the main thing you need to take away is that the judges held the power to exonerate all of them. And unlike how most court proceedings usually go, where the burden of proof is on the prosecutors to prove a person is guilty beyond a reasonable doubt, this scenario was the opposite. It was the defendants who had to prove that they had not done what they were convicted of. Even with things swinging in the defense's favor after the eight member panel vote, Christopher Bryant's attorney, Brad Bannon, knew that establishing clear and convincing evidence of innocence was a tall, tall order. I mean, there's only one higher burden and it's beyond a reasonable doubt. I knew that was a high burden. I knew that 20 years removed, you know, it would be very difficult to accomplish that goal. It all came down to how the three judges defined the phrase clear and convincing evidence of innocence. You don't ever know what the judge is going to be like. Clear and convincing evidence of innocence is a lot different than sufficient evidence of innocence to merit judicial review. It's like, yeah, we should take a look at this. That's the standard at the eight member. We should take a look at this. But when you get to three judge, it's proved to me that they're innocent. For nearly two weeks, Chris Muma, Mark Rabel, Brad Bannon and two assistant DAs from Forsyth county presented their respective arguments to the three judges. The story, which had pretty much stayed off the radar since 2020, was back in the headlines once again. Rhonda Hairston and Robin Jones Paul, Chris Paul's mother, both women saying they believe the killers are in the courtroom. Right in front of them. Four men, part of the group known as the Winston Salem Five, are seeking exoneration. The court didn't record the three judge panel proceeding, so I don't have audio of all the testimony and arguments. But I have read the 1,400 plus page transcript and it's clear there were several key moments. First was Jessica Black. Just as she'd done many times before, she put her hand on the Bible, took an oath, and explained that when she was 16 years old, she'd falsely confessed to Winston Salem police detectives and lied at her friend's 2004 and 2005 trials. She owned up to her part in condemning especially Rayshawn and Nathaniel to lives of incarceration. I am the one that did that. I'm the one that cost them all that time. That is something, that is something hard. It changes how you look at life. It changes how you trust people. It changes how you live. At the three judge panel, it had been five years since Jessica first recanted and two Years since she'd seen Christopher and Jamal face to face for the first time since their convictions, fences were mending. Oh, my God. They hugged me and I just broke down and they told me they weren't mad at me and that they knew I had been done the same way they had been done. And it was just. It was just something else. You could tell. You could look when they look in their eyes, you knew. There was no anger, no hostility, no bitterness, no nothing. Those are good guys. They have grown to be great fellows. I mean, and like I said, they were good guys. Then I had a good time with them. Those were good fellows. They never deserved to go through what they did. None of them. She'd even reconciled with a person who she thought would never forgive her. Teresa Banner Rayshan Nathaniel's mother When I met her at the instance trial, she was so sweet. So sweet. And she came up and she hugged me and I cried. I cried over everything, and I just cried. And she told me how she forgave me and she wasn't mad at me anymore. And she was so sweet and so nice. I felt really bad for her. I felt really bad. And that's why I embraced her, because she went through what my sons went through as it's just a messy situation all the way around. But she didn't know nothing then, and she still don't know nothing now. As had been the case all the previous times, Jessica recanted. The state warned her beforehand that by taking back her previous statements, she could be charged with perjury. She told me during our interview this past year that when she took the stand in 2022, telling the truth to the three judges was worth it on a soul level. Do you simply just not care anymore what they can threaten you with? No, I don't. I don't. My son's grown. My son is grown. I did what I need to do. So if that's what they're gonna do, then that's what they're gonna do. She's like, I don't care. Is that the worst you can do? Because she feels like, you know, is that the worst you can do because she's feeling internally worse than perjury and what that charge can bring her in front of the three judge panel, once again explicitly told that she could face perjury charges if she lied on the witness stand? She came in without a lawyer and without asking for any kind of immunity, and she told the truth. I'm not sure in the history of recantations, there has been a more solid and consistent at great cost, potentially to oneself. Recantation maintained by a witness in an original trial that was literally the central, if not only witness against the convicted defendants. In addition to Jessyca, the defense attorneys also called as witnesses the lead investigator for the Innocence inquiry Commission and Dr. Haley Cleary, the developmental psychology expert who'd independently evaluated the case for the commission and determined that Jessica and all of the boys had most likely falsely confessed due to a number of cognitive and situational risk factors. Those witnesses were joined by a new independent footwear expert, another psychologist, and, of course, all of the living defendants. In Brad Bannon's opinion, it was once again Haley Cleary's testimony that was the most compelling. I've worked with a lot of experts in a lot of different fields. I've never worked with an expert who is better than she is in terms of what she knows, how she can communicate that, and what the basis for all of that is. And she said, you know, she studies this for a living. And she said in all of the studies that she's done, of all cases of known false confessions, this case has by far the greatest amount of risk factors and common denominators in known false confession cases. Former Winston Salem Journal reporter Michael Hewlett remembers Dr. Cleary's findings being extremely insightful, too. The information provided a backdrop that had previously not been a focal point of the case. Juveniles brains are different. These kids were poor. These kids were undereducated, that they all had some type of intellectual disability. So when they're told, if you tell us what we want to hear, you can go home. They believe it. They are frightened. They're scared. You have these guys with guns on their hips yelling at them. And these, if you look at their statements, it's all over the place. They're like they can't agree on anything. All of that combined to where they're incredibly vulnerable. I didn't want to take just Michael and Brad's word for it, though. I needed to talk with this Haley Cleary myself. On a Monday morning in May of this year, after classes at Virginia Commonwealth University were out for the summer and campus was quiet enough to do a podcast interview in a cluster of office suites, Haley and I sat down to chat about false confessions. My job is to say, look at this huge body of scientific research that explores and explains a, that false confessions exist, B, that there are certain conditions of both people and environments that make them more likely to occur, and now, C, what happens to people who have falsely confessed and been wrongfully convicted and how their lives have been detrimentally impacted that you, as the triers of fact, need to know about. And so I share the science and I try to do it in an accessible way. It's like teaching right, which is what I do every day in my job. She's particularly passionate about sharing modern research about false confessions with judges who are making life altering rulings in cases that are 10, 20, and even 30 years removed from the original crimes. False confessions happened then and they happen now. And so the process of post conviction review is supposed to, in my view, enable us to revisit potential miscarriages of justice using the information that is available to us now. When it comes to false confessions, she explained that there are three specific types. Voluntary. These are false confessions that are offered absent any police pressure or coercion. They're often associated with perhaps a need for notoriety or some kind of underlying mental illness. Next are coerced compliant confessions. And these are false confessions in which a factually innocent person initially denies, and then through the process of typically a coercive police interrogation, they come to confess to the crime. This is the type of false confession that Jessica and the defendants in our case claim to have succumbed to. The third type is a real doozy. And these are coerced, internalized false confessions. And the distinction here is that through the course of, again, a coercive interrogation, the factually innocent suspect comes to doubt their own memory and their own recollection of events, and eventually comes to believe that they actually committed the crime that they're falsely confessing to. However, that's not the case with the folks in our story. The confessions of the six teenagers associated with Mr. Jones murder fall squarely into category two coerced compliant false confessions. In Haley's findings for the Innocence Inquiry Commission, she wrote that case studies in the years since the defendants were convicted show that juveniles are overrepresented in cases of documented false confessions. Overwhelmingly, this kind of information wasn't known. In 2002, Haley found numerous instances where police had used maximization techniques while interrogating each teen, including Jessica. This term refers to detectives doing things like isolating the suspects for long periods of time, yelling at them, threatening them with lethal injection, lying about what evidence they had, and so on. There's also questions about the reliability of a confession if the person being interrogated has an intellectual disability. So if someone has a low iq, is that an indicator to you that perhaps they would be even more vulnerable in an interrogation with police? Yes. Research shows that all else equal, right? People with intellectual disabilities are more prone to false confession than people without intellectual disabilities. And this is an important point because during the five year investigation the Innocence Inquiry Commission did, the lead investigator determined that all of the defendant's IQs were well below average at the time of their arrests and trials. An IQ of 100 is the universally accepted standard for being of average intelligence. Any score of 70 or lower is usually an indicator that the person may have limited intellectual functioning. At the time of the trials, Rayshawn's IQ score was 82. His brother Nathaniel's was 76, Jamal's was 75, Darrell's was 83, and Christopher's was 79. So none of the boys IQs were 70 or lower, but they were close. Bottom line, Dr. Haley Cleary determined that in the Jones case, the 16s were all at risk on multiple levels to falsely confess to murder just to get out of their interrogation rooms, regardless of the fact that that made no logical sense. Coercion is so much more powerful and subtle than people realize. And people underestimate the power of situational influences on our behavior and our decision making. And so that threshold for saying whatever you need to say to make the pressure stop and get out of that room and maybe go home is a lot closer than people are willing to believe. Rayshawn and Nathaniel's mother is certain her sons were coerced by police. She believes common sense and the scientific studies that experts like Haley Cleary have presented in court in the years since the crime prove it. They were truly, truly deceived. I mean, it's so sad. If you tell us that you had something to do with this, you'll go home. You can go home. Where does that make sense at? You can tell right at that point that each and every last one of those boys, something was wrong in the mind. Jessica feels a bit more pointed about those she says are responsible for eliciting false confessions. What's your message to the detectives who interrogated you? Burn in hell. That's about it. I think that those were horrible, horrible men. They really went out of their way to push on this case to try to prove that these boys did it and they didn't have anything and lied. The fact they kept lying and kept lying. I don't have anything. I don't have anything for them men, nothing. But despite the defense attorneys putting forward arguments and witnesses that they felt made a strong case, things didn't go as hoped. What are you bringing to the Thanksgiving table this year? A new take on a classic dish. A fun game for the family or perhaps a new language. As the most trusted language learning program for over 30 years, Rosetta Stone immerses you with an enriching experience. Whether you're traveling to a new country or sitting down at the family table, learning a new language can help enhance connections. I'm going to be brushing up on some of my French during this holiday season because I'm going to be spending a lot of time around my mom and she's been doing the same, so it's that we can share together. Why French? Well, I learned it a couple of years ago and got pretty proficient with it but then got away from it and now I want to start learning more with Rosetta Stone for a short time. Counterclock Listeners can get Rosetta Stone's Lifetime Membership Holiday Special. Visit rosettastone.com counterclock for unlimited access to 25 language courses for the rest of your life. Redeem your holiday offer today. Rosettastone.com counterclock it's better over here at&t customers switching to T Mobile has never been easier. We'll pay off your existing phone and give you a new one free all on America's largest 5G network. Visit t mobile.com carrierfreedom to switch today. Pay off up to $650 via virtual prepaid MasterCard in 15 days. Free phone up to integrate via 24 monthly bill credits plus tax qualifying port and trade in service on go 5G next and credit required. Contact us before canceling entire account to continue bill credits or credit stop and balance and required finance agreement is due on April 28, 2022. The three judge panel unanimously denied the defendant's claims of innocence. Rayshawn literally like fell against the table, like, and people who had watched, who had been independent observers, like bailiffs were surprised. You know, so they're hearing it and they're like, this has got to be like when they're saying you're never going to have to wear these cuffs again, right? Like they're convinced. What else do you need? Like, you can't use the shoe print. Jessica recanted her statement. Like, what else do you want? I mean, you got video, audio, whatever, with the police telling you they threaten us. What possible do you need? I was really shocked. It kind of took me back in their mind, whatever clear and convincing evidence was, they didn't believe it had been established. I think everybody was surprised at the outcome probably, except for the Jones family. Rhonda Hairston and Robin Paul, Mr. Jones daughters, had spoken in court right before the three judges handed down their ruling. A WFNY news crew was filming at the time. We honestly feel we have the right ones. The right people was convicted who murdered my dad. Through everything that we've seen, the evidence that have been presented, I am confident that we have the right people. The family's position when they gave their victim statement at the eight member was so different than when they got on the stand at three. Judge. And I think that was because the state fed them information about how awful the defense attorneys are and how we try and get guilty people out of prison. And so I think that tainted things quite a bit. Mr. Jones family has been invested in a belief system for two decades about what happened to their loved one. It is very difficult to question any belief system, let alone one that is caught up in one of the most important and difficult things that you can ever endure in your life, which is the loss of a loved one. So I can absolutely understand why the family might believe the right people got convicted. And I would not begrudge them for one second that belief. I got nothing but sympathy from them, and I'm never going to say a bad thing about them. Jamal, Christopher, Nathaniel and Rayshawn each had different reactions to the Jones family statements in court. They were smiling at us at court, at me and Brian waving and speaking. And then for the mom and the sister to get up there and say that they think we're still. They got the right people. That shocked me. I was, whoa. I was, oh, my God. Like, if they're not convinced off the evidence that's being presented to them off either side, like, there's nothing we can say, they don't want to hear from us. I can't give them the peace that they need because we not the piece to the puzzle. Y'all looking in all the wrong spots. Even though y'all listen to what the DA telling y'all and all this stuff is not true. We didn't commit no crimes. We never committed no crime against y'all. Granddad. What happened to Mr. Jones should not happen to Mr. Jones. I grew up taking care of my grandmothers. Now, one of my grandmas was very sickly, so that was like one of my pet peeves, yo, to do right by my elders. Out of all the things I done out there in the world, I ain't putting my hands on the old person. I don't care. It's not something that I was raised up doing. I'm not going to do that. So the family don't want to believe me. That's cool. Well and fine. It's in black and white. You can now see it. And when I say I'm unapologetic about things, I don't care no more. Because once they got on the stand and said what they said, after you done heard everything, after you done heard all these testimonies, after you done found the new evidence, after everything done come to where it come to, and you still get on the stand and say, y'all still, I don't care no more. I'm saying, Mr. Jones shouldn't have died the way he died, the way he died. But when it comes to the family, I don't care no more. Because it seems like they don't care who killed Mr. Jones as long as somebody stays in prison for it. And now that they got somebody in prison for it, it's like an anchor to their heart. Like, okay, now I'm satisfied. But you don't know. Y'all don't know the actual truth. Y'all done had people go out there, find some more evidence, bring it to y'all, and y'all still say this. I feel like the family know is wrong. When you got everything presented to you in front of your face, and you still let us ride in there or still got us fighting when you know it's wrong, that's not right. I'm sorry that you lost someone, but it wasn't me. It wasn't my friends. As is often the case when a victim's family has to come back for a post conviction hearing, the experience was difficult for the Jones family. Here's Robin again, speaking to reporters afterwards. My wish is that no other family has to endure what we have endured these last two weeks. Teresa Banner has sympathy for their pain, but it's complicated. I hate their father lost his life. I do. I do. If the shoe was on the other foot and if information came out that make me go, hmm, I think you need to go home. Because like I said, regardless of what the judges thought on that three judge panel, the information was something that we never even knew. And you still, you are resolved. Your heart is hard when you cannot look at the way those boys was done and have any kind of compassion. Journalist Michael Hewlett saw this tension play out during and after the three judge panel. And he knew it was a delicate situation all around. Someone that they love has been murdered. And so you have to deal with that trauma. You have to deal with that grief. And then you go through reliving that through a person being charged, a person being tried coming to court. And oftentimes, in my experience, the family hasn't learned everything about what happened to their family member. So they're in court, they're finding out about the autopsy, they're seeing crime scene photos. They're hearing very graphic testimony. So that's another trauma that's visited upon them. And then at the end, okay, the person gets convicted, it doesn't alleviate their grief, but it's a bit of closure. And then someone comes back years later and says, you're going to have to go through all of this again because the defendant is saying that he's innocent. That is hurtful. There's no nice way to put it. Closure is something I know from speaking with Robin and Rhonda's attorney is what they want. In many ways, it's what they've already found. I think finality is something that all of us as human beings desire. As a society, we don't like uncertainty. And that's exactly why Brad Bannon and Mark rabel think the three judge panel ruled against their clients in 2022. The court just couldn't settle for leaving the case unresolved. They must have been, like, held it against us that we didn't actually show who did it, since we didn't have. Here's your suspect that really did it. You know, almost nothing mattered at the end of the three judge panel. The chief justice who handed down the decision injected the already complicated case with another dose of uncertainty. Here's a voice actor reading his final comment. There are aspects of this case that remain troubling and shine bright lights on the failings of our society and our system of justice. That vague and somewhat puzzling sentence left Chris Muma scratching her head. It seemed paradoxical. How could the judges agree that Christopher, Rayshawn, Nathaniel and Jamal were still guilty while at the same time voicing that the case had troubling aspects that showcased failings of the justice system? You know, it's interesting to me that the judge said that. So I contacted the three judges after the hearing and said, can you give me feedback? He said, well, and I'll just go on record as saying what he said to me, which is that because I do innocence work all the time, I lack credibility, which I was really shocked at. You know, I felt like saying, so the fact that you're a judge all the time means you lack credibility as a judge. You know, it's called expertise in a field. Let's just pause for a second and unpack what Chris just said. According to her, it was the Judge's personal feelings about her and the fact that she does innocence work. That factored into his decision making to rule against the defendants, not something related to the case itself. It was about a year and a half after the three judge panel that I initially started poking around on this story. When I came into the picture, the men's defense attorneys, Chris Muma, Brad Bannon and Mark Grable, had filed what are known as motions for appropriate relief. An MAR is a petition to the court that lays out multiple reasons why a convicted defendant should be granted an evidentiary hearing to consider new facts in their case which weren't available or couldn't have been known at the time of their trial. We're certainly seeking an overturning of the conviction. We're also seeking a dismissal of charges, but in the alternative, if the court doesn't want to dismiss the charges, we're seeking a new trial. If you've listened to Counterclock Season three, then you know that this is the same thing Jeff Peli's legal team went through a couple years ago. After the podcast came out, they got an evidentiary hearing in April 2023. Chris Muma filed an MAR for Rayshawn, which Nathaniel later joined. A few months after that, Brad and Mark filed a joint MAR for Jamal and Christopher. Each petition is more than 75 pages long and argues that the court should consider newly discovered evidence and testimony in the case. The recantation from Jessica Black obviously is new evidence that was not available at the time of trial. If Jessica Black wasn't telling the truth, it's not just likely that there would have been a different outcome at trial. It's almost a legal certainty that there would have been a different outcome at trial. The DNA on the tape, that's new evidence and that's powerful new evidence. It's not cumulative new evidence. It's the first time a jury will ever hear that, yeah, there was DNA on this stuff. It could be obtained, and it's not connected to any of these people that the state has always said did it. And last but not least, the new psychological research about false confessions, the new standards for the footwear, that last thing Chris mentioned, the new standards for the footwear, what she's referring to is shoe print examiners no longer being allowed to use the word match when they're testifying about whether a shoe print found at a crime scene correlates to a specific shoe. The Scientific Working Group for Shoe Print and Tire Tread Evidence, which is the entity that sets the standards and best practices for examiners published new guidelines in the years after Rayshawn and Nathaniel's 2004 trial. Those updated guidelines say that experts should never use the word match because it's misleading and infers identification. When the state's forensic examiner testified at the Brothers trial in 2004, she said the partial shoe prints found on Mr. Jones car hood matched the pair of size 9 Nike Air Force ones seized from the Banner Cawthon household. Basically, the state's forensic examiner back in 2004 didn't know what she didn't know. I wanted to learn more about the evolution of shoe print examination and analysis for myself though, so I spoke with a person who could give me a crash course on the topic. A guy who'd personally worked on the Jones case. A guy who also didn't know what he didn't know back in the day. Remember Marty Ludas? He's the shoewear expert that the North Carolina Innocence Inquiry Commission contracted in 2019 to review the partial shoe print evidence in the Jones case. This is him testifying in front of the commission's eight member panel. The wear pattern interpretation is very subjective. People are putting emphasis on this and because they want the shoe to match, it does. Police officers were looking at it and they had an idea that that shoe, that was the guy that did it. This past summer, I caught up with Marty at his home in North Carolina. His experience as a latent fingerprint and footwear examiner goes back a long time. Marty was trained at the FBI Academy and in 1975 he took a job working for the North Carolina State Bureau of Investigation, also known as the ncsbi. He worked there for seven years and then moved on to city and county entities until he retired in 2001. These days he consults as a private contractor and often gets asked by defense attorneys or innocence inquiry bodies to review footwear evidence in post conviction cases. In 2000, when I retired, I had no idea the concept of a wrongful conviction. I really, you know, never really thought about it, never gave it much thought. And then I a couple of the cases, I'm like, oh my God, you need to get court order. We need to get the finger, we need to get the evidence. The more post conviction cases he's reviewed where footwear evidence has been heavily relied upon or was a key piece of forensic evidence used by prosecutors, the more he's realized that the old ways of doing his job were not the best. A lot of the work was, it was very unsophisticated and none of it had been scientifically. It was Never challenged, nor was it proven. All the things that we were doing were. They were accepted in court. We were taking it in front of a jury. I never purported to be a scientist, though we were making a lot of identifications. We called it an identification where we matched it. We said 100%. Well, come to find out, that should not have been testified to. We used to pretty much disclose that we were in 100% certainty. In some cases, we were required to testify in that manner. We were just going by what the court was saying. The court was accepting us. They had for years, for decades, the court has accepted all our testimony. Never questioned it, really, until a few cases came along. And then all of a sudden, boom. Wow, what is going on here? According to Marty, what was going on was DNA. Once that science eclipsed fingerprint and shoewear evidence in the late 2000s, prosecutors realized that relying too much on subjective fingerprint or footwear evidence wasn't going to cut it anymore. Right now with the DNA and the, you know, I'm a. Is fingerprint and shoe track a junk science? Yeah, it is. It really is. However, he says little was ever done to reassess past cases that may have had flaws when it came to shoe track findings. Nobody likes to have their work reexamined. Police officers and detectives, they're looking for what they want to find, and they end up getting blinders on. It's sort of like they want to jump on a concept and follow it until the very end. And, oh, the hell with the evidence. You know, who wants to hear about that? In the Jones case, the only thing he could determine was that a size 9 Nike Air Force 1 sneaker had left the tracks on the link. Lincoln and Rayshawn's shoes fell into that category. He stands by that conclusion, but believes prosecutors at the trial wanted jurors to think the shoe track evidence was an identification. So the updated guidelines about shoewear analysis is an important detail that's relevant to this case, which is why Chris Muma considers it to be new evidence and included it in Rayshawn and Nathaniel's marriage. But she's also raised another issue. She alleges that Rayshawn's original trial attorney, a guy named Robert Leonard, was an ineffective and inadequate lawyer. This is what's known as an ineffective assistance of counsel claim, or iac. And in this case, it's particularly strong because, if you'll remember from episode four, Robert Leonard told jurors in his closing statement at the Brothers 2004 trial that Rayshawn might have been present for the robbery and beating of Mr. Jones. But by saying that Robert kind of screwed Rayshawn because the felony murder rule was the only reason any of the teens had been charged with the crime in the first place. Chris says Robert's mistake is what's known in the legal community as a Harbison error. And it boils down to this. Leonard admitted guilt for them. He told the jury Rayshawn was there. He which makes him guilty of felony murder. But he wasn't. You know, his role wasn't that involved. It doesn't matter if you're saying he was there and there was a robbery and there was a man who's dead, you just said he's guilty of felony murder. And that trickled down to Nathaniel because Afresh Shama is there. Nathaniel was there. So yeah, I think it's a very strong issue for our marriage. Made even stronger by the fact that Robert Leonard had committed this exact same error before. Uncover one of history's greatest mysteries in Indiana Jones and the Great Circle, a first person single player adventure video game set between the events of Raiders of the Lost Ark and the Last Crusade. The year is 1937. Sinister forces are scouring the globe for the secret to an ancient power connected to the Great Circle. And only one person can stop them. Indiana Jones Adventure calls Indiana Jones and the Great Circle releases on December 9th on Xbox Series X&S Game Pass and PC. Pre Order Indiana Jones and the Great circle now rated T14 copyright and trademark 2024 Lucasfilm Ltd. All rights reserved. ATT customers switching to T Mobile has never been easier. We'll pay off your existing phone and give you a new one free. All on America's largest 5G network. Visit t mobile.com carrierfreedom to switch today. Pay off up to 650 via virtual prepaid MasterCard in 15 days. Free phone up to $830 via 24 monthly bill credits plus tax. Qualifying port and trade in service on Go 5G next and credit required. Contact us before canceling entire account to continue bill credits or credit stop and balance and required finance agreement is due in the late 1990s. Just a few years before Rayshawn's arrest, Robert Leonard defended a 26 year old black man from Winston Salem named Henry White. Henry was accused of robbing and killing a local business owner and prosecutors used the felony murder rule to charge him with first degree murder. He claimed he was innocent and went to trial in front of his jury. Robert said that Henry may have been a part of the robbery which as we know is not something you say when your client is facing murder charges because of the felony murder rules. So Henry lost his case. He served more than 20 years in prison before being released in May 2022. His freedom came after a team of post conviction defense attorneys filed an mar that successfully argued Robert Leonard had been an ineffective lawyer who'd committed a Harbison error. At trial, a judge agreed that Henry's constitutional rights were violated because of what Robert had done. But the case didn't have the write off into the sunset ending you'd expect. At the 11th hour, perhaps sensing trouble, the Forsyth County DA offered Henry a plea to second degree murder and get credit for time served. Henry, who by that point was in his 50s, took the deal and walked out of prison. When questioned by reporters about his actions in Henry's case, Robert Leonard denied doing anything wrong. Whenever he's been asked about his representation of Ra'Sean Banner, he's said the same thing. He was a good lawyer, period. Chris Muma disagrees. He's still very arrogant about how good he was. You know, it's one thing to have a defense attorney who does a crappy job. It's another thing to have a defense attorney does a crappy job and won't admit it. You know, sometimes you have defense attorneys who say, you know, I was new or I just was going through a rough time and I made a mistake in this case. And they'll sign an affidavit and. But his. He will not admit that he did anything wrong in this case. Court records show that 10 months after Robert defended Rayshawn, he was disbarred from practicing law in North Carolina on suspicion of mishandling a client's money. A few years later, he was arrested and eventually convicted of embezzlement. He got out of prison in 2021, but died earlier this year before I could ask him for an interview. While he was still incarcerated, though, he spoke with the investigators for the Innocence Inquiry Commission. What you're about to hear are voice actors reading portions of his interview with IIC attorney Julie Briden. What do you remember about representing Rayshawn Banner in this case? Well, first thing is I went to see him at the juvenile. He was being held at the youth center then because he was under 16, he, of course, didn't trust me at all because, you know, here comes this old white lawyer, and he had. He had told the police, apparently, I can't remember the exact confession that he was there, knew what was going on, didn't really participate. He told Me, he was home sleeping. My response to him was, rayshawn, next time you talk to the police, tell them what you told me and then tell me what you, what you say happened. Don't confess to them. And then, you know, talk innocent to me. So we just, you know, he started out badly. His mother and I and Teresa tried to get the boys to plead to second or something. He wouldn't. We thought he was going to do it, but he didn't. I just know that it was his. This is my recollection from what, 18, 20 years ago is that he was kind of all over the place with what he was saying and, you know, somewhat he wasn't arrogant about it, but he just, just. I don't know, just. Just seemed cold. Earlier you said you got the sense he didn't trust you. What made you think that? Well, I mean, what, what, what young black kid's going to trust somebody they've never seen before that walks in? I'm appointed by the state, I'm paid by the state. To me, to him. I'm the state. I'm probably no different than the prosecutor in his mind at the time. I think we might have made some progress, but I don't know if we did because it just, you know, if, if you want me to sit here and say that he's absolutely innocent, I couldn't tell you that because I don't want you to say anything except the truth. Julie then asked Robert what he thought of Rayshawn as a person. Everybody I ever represented for murder was in their 20s, 30s, whatever. This is the first juvenile that I come across that was charged with first degree murder, you know, so I have no, no experience beyond that. That was. That's kind of unique. What was your assessment of Rayshawn Banner? What was my what assessment of him? Did you have any concerns about him? Like what was your assessment of his level of intelligence, for instance? Well, of course, below average and uneducated, but just unfortunately, his segment of society. Well, I don't know how racial we're going to get into here, but it's common. I mean, it's bravado, street tough, you know, I don't take nothing off nobody. I'm blah, blah, blah, you know, usual, usual attitude that you have. And he wasn't any different. When Julie asked him why he'd told Rayshawn and Nathaniel's jury that Rayshawn may have been present during the attack on Mr. Jones, Robert didn't back down. He insisted he'd done what he thought was best. In the moment, you're trying to save a kid from first degree murder, and you got a jury. You want to give them something to hang on, if they can hang on. Well, maybe the kid was there, but he didn't really do it. We'll let it go if you just stick with I wasn't there, period, and all the evidence says he was. What's the jury going to look at you like? It's clear from Robert's responses to Julie's questions that he saw Rayshawn as a challenging client. Why didn't Rayshawn Banner testify at trial? Well, you know, I've only had two or three cases murder that I let people testify. Rayshawn would. Would have absolutely destroyed himself on the stand with inconsistent statements, with, I was here, I was not here. I was there, I was not there. I didn't do it. You know, he just. He just was all over the lot, and he would have been absolutely destroyed. I don't know if race played any role in how Robert viewed Ra'shawn, but if you ask Rayshawn, he'll tell you that he never got the sense Robert cared about his fate. Man, I see that man, like three times. If that. I tell him to say something or ask him about something, it was, it's okay. We'll figure it out down the line. I just feel like he thought I was a young black boy. I did it. And that's what he's sticking with. After Robert became a convicted felon himself and was even housed in the same prison as Rayshawn, at one point, Teresa Banner got angry. I mean, not only did you represent him in a bad way, but then you stole from other people. So you just. You a criminal. In my eyes, you are a criminal. And you're a bigger criminal than my son that you put and made him a criminal. The ineffective assistance of counsel claim in Rayshan and Nathaniel's mar also points out that Robert didn't do anything to investigate Rayshawn's level of intelligence or determine if he had intellectual disabilities. If he had, Rayshawn may have been able to get his confession thrown out prior to trial. Same for Nathaniel, Mark Rabel and Brad Bannon. Jamal and Christopher's lawyers are arguing similar points in their marriage. We believe the lawyers for Jamal and Chris should have looked at their school records and had them evaluated, because the case law long before 2002 was that the intellectual capabilities of someone who's being interrogated is relevant to the question of whether it's a voluntary statement. They had just gone to Their schools and got their school records and looked at their school records right on the face of those. You don't need to be have a PhD in elementary and primary education to see the observations, the test scorings. And the minute they saw those things and saw how they were held back in grades and saw about these adaptive deficits they had very early on in their life, I mean starting at like kindergarten and first grade, then certainly they would have gone forward at that point, retained some experts, developed that further, and been able to present very, very powerful evidence about exactly why they would have confessed falsely to these crimes and exactly how vulnerable they were to doing so. So ineffective assistance of counsel mistake number one by Jamal and Christopher's trial lawyers was that they didn't put in the work to investigate their clients intellectual disabilities. Their second mistake, according to Brad and Mark, happened at the trial in 2005. During opening statements, the attorneys told Chris Durrell and Jamal's jury that the boys had confessed to the crime and would testify in their own defense. Brad and Mark say both of those things should never have been uttered. What the jurors heard by the end of opening statements, throughout all of jury selection and during those opening statements from Chris and Mel's own lawyers was that they had confessed to this crime. So the bell is rung. In that moment, the jury knows that Chris and Mel have confessed regardless of what the state chooses to introduce as evidence. Once the jury hears that, I mean, it's almost like, case over. What are we doing here? You know, there's a confession. I mean, it's like you gave the state everything they needed. But then they go further and say, and those confessions were false. And then they go further and say, and we're going to prove to you why they were false. And then they go further and say, and part of that proof will be you will hear from the defendants themselves. But the defense didn't present anything to prove what they had promised in their opening statement. As we know from the trial record, the state did not end up introducing Chris and Mel's confessions and their lawyers did not present any of the evidence they promised to present to jurors about, about those confessions and why they were false, including testimonies from their own clients. So there goes the credibility of the lawyers and the credibility of the defense. When that doesn't come out, you make all of these promises about how you are going to prove those confessions were false, but you have done literally no work when you're going into a juvenile client said, versus half a dozen police officers say Scenario, you need to do everything you possibly can to support what your clients, what the juveniles are saying, because the police enjoy a tremendous amount of goodwill in front of jurors and in front of judges. The judge who reviewed all of the mars took several months to render his decision. And in March of this year, 2024, he issued his ruling. Motions granted. An evidentiary hearing is scheduled for January 2025, and I plan to be there. The news that they'd get another shot in court felt like a victory for all of the defendants. But it was especially meaningful to Rayshawn, Nathaniel, and their mom. I mean, I won't be happy until I get out, but it's a phase. And with that phase, you still gotta have hope. I'm always have hope. I put my hope and my prayers in Jehovah. I do. I hope that Jehovah is going to work through this judge, because this judge want to hear, you know, he want to hear the facts. He want to hear why these people do he feel like something is wrong? I mean, he gave. Of course he gave him another hearing. So maybe he do feel like something that's wrong. But there again, I put all my hope and prayer in God. I do. Winston Salem journalist Michael Hewlett wrote a piece about the update when the decision came down. He and I have exchanged messages regularly as I've been making this podcast. I think the fact that there is an evidentiary hearing is huge because usually it's incredibly hard. It's still going to be an uphill battle. We'll see what happens. It's hard for me to predict what will happen. Someone who couldn't be more disinterested in the case going back to court is retired Winston Salem police detective Chuck Byrom. He's done with it. Everybody is trying to do damage control to get them out, even the ones that's already done time and just grabbing at whatever straw that is available for them to grab their work in the system. I don't begrudge them working the system or having advocates to champion their cause. In his opinion, what the defendants are doing is aggravating a festering wound on the community that needs to go away for good. Like a sore, like a scab. A scab is supposed to be the process of healing, right? But if you keep picking at the scab, it never heals. And they're picking at the scab. They're not picking it. People are picking it for them. It wasn't long after my interview with Chuck that I took a beat and really began to stew about what came next, what avenues of investigation could be pursued to learn more information. I stewed and I stewed for a couple of days actually. But then something came to me, an idea, one that I needed to talk to a scientist about. I tell everybody, reach out and, you know, just have that sample evaluated on a simple sample level. Do you think it's worth me pursuing? I think it's always worth you pursuing anything you can My search for answers Next time on Counterclock Episode 8 Journey get ahead of your 2025 goals at 50% off with Pluralsight's online technology courses. Learn from highly vetted industry tech Experts on cloud, AI, data security and more than 7,000 courses. Hands on practice and assessments plus personalized learning paths. Become a tech expert yourself by mastering these in demand skills and score yourself a six figure salary. 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