I think we have the best legal system.
It's just the people that implement they get lost along the way and forget what their job really is.
He just kept on trying to remind me that who was in authority, who was in control, and how easy it was for my body to be found in any alley of New York City.
It's a tough prison when you have the guards going against you because they are the biggest gang in the prison.
They do that.
They'll give a guy a life sentence and go home in eat spaghetti like it was nothing.
And anybody that said, well, why would you confess to something that you didn't do, My question to them will be why wouldn't you confess when somebody's threatening to kill your life?
The judge, he said, how you feel?
I said, I'm okay. He said, well, the days you're lucky day you're going home.
This is wrong for conviction.
Welcome back to Wrongful Conviction with Jason Flumm. Today we have two extraordinary guests. Brian Ferguson, who served eleven years in maximum security prison, who sends the life in West Virginia and is a rising senior at Georgetown and is currently the executive director of the Mayor's Office of Returning Citizen Affairs in DC.
Brian, welcome to the show.
Thank you.
And with Brian is my friend Mark Howard, who is a mentor to Brian and to me and a major force in this movement. Mark is a professor of government and law at Georgetown University, and he's also an acclaimed author. His most recent book is Unusually Cruel, Prisons, Punishment and the Real American Exceptionalism.
Mark. It's great to have you here. Great to be here, Jason.
So Brian, let's go back to the beginning of this crazy story of yours. There's a lot of typical things in your story that we see in wrongful convictions, but there's a number of unique characteristics, not the least of which is that you come from a very distinguished family, which is atypical of people who get caught up in the system and who get wrongfully convicted. Can you talk a little bit about your growing up and what that was like and what your family was like.
Right, No, absolutely, you know. My family was very supportive. I have a close knit family. I have a small immediate family. I was born and raised in Washington, d C. In Northeast DC, in Michigan Park. Relatively middle class family,
but professional. Both of my parents were working, both of them were college graduates, and so in that respect, it definitely was unique in terms of the people that I ended up coming across in the penitentiary and then in the work that I do with people that have been incarcerated since.
The work that you're doing now, right, And you have some legal professionals in your family as well.
Right now, I have several legal professionals in my family. Ironically, as it turns out, so my mother, my aunt, my uncle, and my sister are all in the legal profession. My aunt is still currently a judge in Washington, DC.
Right now.
Wow, that's a lot of lawyers in one family. Let's go back to how this happened and how you became a suspect in the first place. You were a college student at the time.
Right, right, So I was a college student at West Virginia University, actually doing very well because I actually was on the track to go to law school and had intentions and plans on going to law school. So yeah, I was in West Virginia in my second year of undergrad.
So, Brian, you were a four point zero student on your way to law school. Why did you pick West Virginia to go to school?
By the way, because I was playing sports in West Virginia. I played soccer on the team and was recruited to go there.
So your life was pretty good. Yeah, things were looking straight up, right.
That's what I thought absolutely.
I mean, your life was laid out in front of you like a like a damn red carpet. It just sounds, it sounds ideal. And then all of a sudden everything went wrong. You became a suspect in a murder. Did you even know about it?
Right?
So, I think, if I'm honest, it would have started before that with the police. I think it's it's important to understand the community that is in like small towns in West Virginia, especially being from a middle relatively middle class, like I said, family in DC, I you know, dressed relatively well, right, but well for DC is different for
for what it is in West Virginia. So, you know, the police assumed that myself and there were a couple of other guys from New York, a couple of other guys from Los Angeles who were you know, generally the same in the same socioeconomic class, couldn't have just been that way because our parents might have been successful, or that we came from a different environment, but it had to have been that we were dealing drugs. So they thought, oh, you know this, these guys you know, might be and this.
We weren't together or anything like. It was separate individuals, but just that I knew of these guys, you know, must be deal drums, are doing something wrong. And so there were a couple of incidents with the police where it was like.
What are you doing or why are you?
Why are you driving this car, Why don't you live in this part of town, why do you live in this part of town. So those kinds of things, I think are a good backdrop to.
To kind of what ultimately happened.
And so with respect to the particular incident, which is which which led up to I guess me being even included in the conversation was I had a girlfriend who this other guy at the school had made advances toward and she told me that, you know, this guy said X, Y and Z about you and and and doesn't very much appreciate you. And so I said, okay, well I
ended up talking to the guy. Listen, I don't know you, I don't know you know what the issue is or whatever, but whatever you have to say, please say it to me, don't go to her. We had maybe a three minute argument and then that was it. That was literally it. And that was in my first year of college. And I say this in my first year of college because that's important timeline wise, because this gentleman ended up getting shot and died.
He died from being shot. But that was a year and a half later.
And so you know, after the argument that I had, apparently, and I learned this after the fact, you know, he would tell his friends and I don't like this guy.
Look at this guy driving around. He thinks he's this, he thinks.
He's that, or he wanted your girl, right, Yeah, basically, but after that interaction, I had no further interactions with him. And so for the next year and a half, I went about my business, he went about his business, and I had no occasion to kind of come across him until, like I said, the police asked me about shooting.
Right, I had no idea.
So here's what we know. At seven pm on February second, two thousand and two. Jerry Wilkins was his name, right, was shot in the back in front of his apartment, and court records indicate that witnesses gave varying descriptions of the gunman. However, prosecutors charged you with murder because basically they didn't know who did it, right, and they were able to find somebody or a couple of people who said, oh, yeah,
that's the guy. There was one guy who had an argument, you know, because he had gone as you just said, he had gone around telling people that he had had beef with you. So here comes the police knocking on your door or what happened?
So you mentioned the witnesses. I think it's the most interesting and really disappointing thing to me about the witnesses was that they were varying accounts, but the one thread of commonality between the witness accounts was that it was a very skinny, dark skinned, black gentleman that was the assailant. And I've been confused with a lot of different things in my life, but skinny, dark skinned guy is not really one of them.
So skinny, dark skinned, black gentleman, I think you resemble that description about as much as I do. Brian is you know, he looks like a football player actually is not dark skinned, so that was an inconvenient truth, but they managed to find a way around it, as they do in.
These cases certainly, and how they do that.
One of the key moments I think in the trial when it comes to the witness identification was when the witness refused to ident I mean, I'm sitting in court obviously in the defendant's table, but when asked, the witness refused to identify me as the person whom she had seen. The witness that was the closest to the crime was asked about, you know, whether the assailant was in the courtroom, and first we did the person have a mask on? You know he did, and I saw his face. Can
you identify him? Have you identified him before? And can you identify him now? And the answer to that was no. At that point I was thinking that, Okay, well this is over and we should really just like have whatever motion that needs to happen to drop the case right now should really happen. And that's that was my misconception of what kind of the next couple of hours were going to be like.
But it wasn't.
Let's go back a little though, so you were you were arrested. That must have been enough of a shock.
That was a tremendous shock.
But let me ask you, did you even know that he had been killed?
No? Not at all.
So it wasn't like talk on campus or anything like that.
No.
So they came to my friend's house. I was at my friend's house and they came in, asked could they come in? You know, we let them in, and they started asking me about Jerry Wilkins. Right, that was a gentleman's name. I didn't know that his neck because he went by a nickname on campus. So for the first i'm gonna say three minutes of the conversation, it was like an Abbott Costello, Who are you talking about?
Oh? You know who we're talking about? No, I don't.
And then so one of them said, oh, well you know it's it's JP. Is this guy's nickname? Okay, well I know who you're talking about. And so that at that point they informed me that he had been shot. And I had no idea up until that very moment that that had happened.
Did they take you away right then and there?
No, not at all.
So they questioned, they asked if they could question me. I agreed, to let them search everything that I had, because I had nothing to hid, and I wanted them to disco help me as a suspect if I were a suspect, which they told me that I wasn't, of course, as they want to do sometimes, but spoke with them, finished the conversation with them, and kind of just went on about my business and didn't hear about it again for another I'm gonna say, six months, and then I
got a call. I was actually back in DC at this time, working as an intern for one of the largest law firms in the country on an importer, and I got a call from my lawyer who told me, so, you've been indicted for this homicide and you need to come and turn yourself in.
And that was the first time I had heard about it since.
And I'm just always at a loss to try to imagine the shock, the emotions, the confusion that everything that must go on inside your head when this all of a sudden is like, wait, what the fuck are you talking about? In a different way, like, for instance, if you're picked up and putting a handcuffs and taking in right, you've got to actually now go and get yourself back there. You've got to take this journey back to West Virginia
to go show up and be processed. Right then, what I mean, did you go the next day?
Did you go? And what do you I mean the first person you called was who in this happened?
So I'm pretty sure that the first person I called was my mother, who is and remains, you know, the closest person person to me obviously other than my wife at this point. But we talked about it, and you know, obviously it had to be done to go back to West Virginia. So we made the arrangements to with and I'm not exactly short, I'll recall exactly how long it was, but it was within a day or two that we
went back and in process. Yeah, So we went up, met with my lawyer, and then went over to h to the courthouse for the initial hearing.
That we had, and then you were arraigned.
So I was arraigned, and because the judge made several statements from the bench saying, well, I don't really know what's going on here, and we're going to assume that this hearsay evidence is valid and I'm going to let it in. Because other than that he said from the bench, that the prosecution has no case at all, Set the bail very low for a capital murder case. Set the bail ten thousand dollars, and I made bail and went home.
Then comes a trial, Then comes the trial.
Right, It's interesting you had an ineffective assistance of council claim later on in your appeal, and typically well typically xuonneries were represented, whether or not the head in effects of assistants a council. In general, there are people who come from very humble roots and have no ability to pay for an attorney and are represented by a public defender. That wasn't the case with you, So let's talk about
that too. Because your family hired an attorney who would on paper have seemed like the right guy to represent you in this situation.
Right, right, So the determination was made to hire a local attorney because the thinking behind that was, Okay, this person knows the landscape of this particular small town. If it's necessary to pick a jury or to do the many different things that a lawyer would have to do both pre trial and during trial, that they would be well suited to do that in this environment.
So that determination was made.
So we went with an attorney that was from the Morgantown which is where West Virginia University is located the Morgantown area, to represent me in this case. I mean, that was a terrible mistake. It turns out we went to trial. The trial, and you mentioned earlier it seeming surreal, I can verify that for you that it didn't seem that it was surreal. I was completely baffled by the fact that I was even in this situation, that I was even having to answer for a crime like that,
that that had never even crossed my mind. And the fact that I'm sitting in this chair and being even accused of something like that was completely foreign to me. And you know something I really resented, to be honest with you, but that I knew that I had to go through. So in trial, the case against me was literally all hearsay and had no evidence whatsoever, and that ultimately was brought up by the courts that released me. But basically the evidence in the trial was, oh, our friend,
mister Wilkins told us you didn't like him. Our friends told us that y'all had some type of beef. That was really it.
Mark, Let's turn to you for a second.
You can't convict somebody in America based on that on rumors a capital murray case.
How's that happen?
Well, unfortunately, I think experienced listeners of your podcast will know by now that that's Sadly, that's not the case that when there's a lot of pressure in a community to solve a certain crime, when they identify a suspect, they go down a certain road that they don't want to go back from. They get their conviction once that train is in motion. If you're lying there on the tracks, they run over you and you get convicted.
I want to explore that too, because in this case, what is is the idea that after Brian had been identified as a suspect, and after the wheels of let's call it justice and quotes had started turning, another more likely suspect emerged, right, who may have actually been the killer? But they never that was not followed up on because it wasn't the narrative that they had signed on too. Right, they'd picked their guy. Everybody was determined to solve this case or to clear it off their desk. Not to
solve it, right, but to get rid of it. And if an innocent guy got caught in the crosshairs, and so be it, so be it. So the hearsay is admitted into court, which seems odd too. I mean, would you if you were representing him at that time, would that still have been allowed to be admitted into court?
Yeah, I don't know. I'm not sure about the rules of evidence in West Virginia, but I'm sure they found a way to spin it and sort of use the notion that there were witnesses who somehow implicated him even
though they didn't as a means of conviction. And from what I understand about Brian's case, there was evidence that came out about other suspects that the police essentially buried and put away that his attorney, member paid attorney, private, well respected established attorney found out about and didn't follow
up on. That is just egregious and it's unusual. But I think there's a real lesson here, which is that it's not just about the people who who can't afford to represent themselves, who get bad public defenders who can't follow through and give adequate representation. It happens at every level. If that machinery of justice is determined to get you, they probably will regardless of your personal circumstances, and that's just shocking and in my view, totally unacceptable and outrageous.
An everybody's feel I mean, because this can happen, and I think Brian is a great example of this, right, I talk about the fact that this can happen to anyone. It literally can happen anyone, or he wouldn't be sitting here because he ain't that guy. Right, So you got convicted of capital murder that moment. Take us back there. You're in the courtroom. You're not that far removed from having been the guy on campus who had it all?
And did you expect that the jury was going to come back whether guilty or an innocent verdict?
The entire time I expected them to come back with an innocent verdict. I had been making plans because remember, like I said, I was on bond. I had made bond and had been home and was driving myself every
day from the hotel back and forth to court. And so the day of the conviction, I had driven myself from the hotel to the courtroom because they said they had a decision, and I was eager to get it over with because I wanted to go home and so my anticipation was that it would be not guilty, that I would be acquitted and go home and then deal with everything kind of after that.
But that was far different from the reality. I actually knew.
I found out that there was a conviction a little bit before they read it in court, because when they called the jury out from the box, they have a jury sheet, and the jury sheet has different lines, and the first line is not guilty, second line is, you know, first degree murder. Third line and fourth line are the different the underlying charges. I guess you would say so second degree manslaughter are different variations of the homicide charge.
And when the jury walked out, the foreman had it in his hand, but he had it in his hand, and as he stepped I could see I couldn't tell which line had been checked, but I knew that it wasn't the first one, and I knew that the first one was not guilty. So for about two minutes, I knew that it was some kind of guilty verdict, but just didn't know what.
And I was in total disbelief.
In the court room. I'm assuming your family was there.
Right, so my entire like I said, I have a small family, but we're very close knit, so I had my mother was their father, both my siblings, cousins, and some friends were there.
And it must have been I mean, it's just like
the worst kind of imaginable sort of nightmare. You're there surrounded by all these people who know you couldn't possibly have done it, who love you and care for you, and are people who have accomplished so much in their own lives and have been a part of the justice system at one level or another, even including your aunt who's a judge, and who are suddenly powerless to stop this grave injustice from happening to a person that they love and care about deeply, which is you.
And then it's.
All just a I just my head explodes when I try to even imagine this. And I wasn't there, but you were there, and you were in the middle of it, and now you get taken off to prison.
Right. So it was.
Worse than that, actually, because prior to us actually going into the courtroom, the marshals, who had been obviously there for the entire court proceedings, took me aside and asked me, you know, not even me, but they took me in. A couple of mine family members aside and asked, do you want to talk to the media or anything afterward? Because we have sat through several or hundreds even of court proceedings here, we can kind of tell one way
or the other which way it's going to go. We really feel like you shouldn't even be here, that this is going to be an acquittal. So if you don't want to talk to the media, let's figure out a way to get you out of the back door and into your current back to the hotel. Asked me where the hotel was, because their anticipation was that if you don't want to talk, then let's get you out of here.
And we're honestly sorry for this. And that was the conversation that I had literally before I walked into the courtroom itself.
Even they knew you were in Oh somehow other twelve other people call the jury couldn't figure it out. So I want to talk about the prison experience. Eleven years in a place that must have been as terrifying and foreign to you as could be imagined.
So you got taken off to which prison.
So initially you're taken to jail, right, So I spent about a year and a half in the jail awaiting transfer to prison. So from the courtroom I was walked down and put into a holding cell for about four or five hours to give my clothes up and the
change and into kind of basically jail jumpsuit. And then later that night I was transferred to the jail where I ended up staying for about a year and a half, and then after a year and a half, I was then transferred to the state's maximum security prison, which is called Mount Olive in West Virginia.
And the jail, the jail is is that in a building or is it like a Is it a sprawling complex?
Is it it's a standalone complex, So it's it's sprawling, but it's they're all interconnected.
Because in many cases jails like Rikers Island or Harris County are even more dangerous in maximum security prisons because of the fact that there's really no order there right because people are transient. It seems insane that you were kept there for a year and a half before transferring you to prison. I mean, how did you get through that way?
So I would say that the worst thing was for me, you know, I felt like, and this was the case throughout I felt like as a man, you can deal with even a terrible thing that happens to you. I could deal with something that happened to me, as bad as it was and as much as I wanted to change it, it was something that I felt like I could adjust to and deal with in the moment, because I always felt that I would eventually come home. I
just didn't know when. The thing that was the worst for me was the prospect of losing my parents or seeing what my incarceration did to my family, and you know, the things that they had to deal with, and at the same time be helpless about it.
Like you said, it's nothing that they can do. They do the time with you.
I think anyone who's ever had a family member in prison, anyone who's been around a family who's had someone in prison, knows that those close family members especially do every minute
of that time with that person. And so having my parents, my siblings, my really close friends go through that it was no fault of mine, but for sure no fault of their own, and not be able to do anything and not really know how I'm taking it, because I know how I'm taking it, but they don't, and so they might expect the worst, and so having them or seeing them rather go through that, I would say that was definitely and it's not even close the worst part of the experience.
For me, because we were walking around with that guilt, right or r right. I mean, ironically, you're innocent, and you have guilt because of the fact that you're even though you're not responsible, you're feeling responsible for this misery that you know your family's going through, only because they love you and they care, right, It's just it's a totally twisted cycle.
Was there anything positive at all?
Yeah, you know there there are, ironically a lot of different positive moments. Humans are a resilient kind of species, and especially if you're a strong person. And I've seen the system break a lot of people and so I don't want to say that they're not strong. But for the people that you know have hope, for the people you know that that are able to kind of adjust to their not accept it, but to adjust to the environment, you can find people doing things that make them feel better.
Right.
So for me, that was helping people in even worse situations. In mind, I had a terrible situation. I was given a life sentence without the possibility of parole, And so that meant that if the sense were kept the way that it was, I was never going to be given the opportunity to come home. I was to die in prison. It was a death sentence, just an extended one.
Well, what is worse than that? Not much, But you said there are people even worse situations.
All, so there are people in worse situations in mind in that you know, they came in, didn't have any kind of family support, still had those really really long sentences or life sentences, but they didn't have the advantage of being able to call home and talk to somebody. They didn't have the advantage of already having an education.
And so you know, when I was able to help people, to tutor people to get their ged or to help them through the really limited college classes that they had, or to even help them with their legal work, because a lot of times people were stuck with the really terrible lawyers or no lawyers at all, and were responsible for their own legal work, but couldn't read, or couldn't read well enough to be able to analyze what their case was as compared to what the law was, and
how to juxtapose those two things. So being able to help people with their law work and also with kind of feeling like they accomplished something, whether it's getting a ged or taking college classes.
That's where I found my solace.
Amazing that you could dig deep enough in this midst of this darkest place that you could possibly find yourself in to help others.
I mean, it's as simple as that. There's really no better way of putting it. And so let's get to the appeal.
You had sort of a dream team, right, not like the OJ dream team, like your own version of that you had. I mean you actually had sort of legal royalty on your side.
Right, Yeah, I did. And again, you know you said that, like what could be worse in my situation, My situation was made far better by the fact that I had distinct hope as opposed to just kind of nebulous, Oh, I think and I hope that I'll get out one day. I really was able to believe and to kind of know inside that the people that were working on my
case were the very best. So Covington and Berlin, which is either the top or one of the very top law firms in the country, took my case pro bono, which is fortunately because there's no way, even with a professional family, that we would have ever been able to
afford their services. And not only did they take my case pro bono, but they put amazing lawyers on my team, and so for the first few years of the appeal, even with that, But it's important to point out that it was eleven years that it took for my case to be overturned. But one of my lead attorneys was Eric Holder, who ultimately became the Attorney General of the United States in two thousand and nine when President Obama was elected, and so he did an amazing job. Jim Garland,
Sarah Wilson, Sarah Frederick, Paul Schmidt. There are amazing lawyers that put not only hard work, but they put their really their soul into into the case.
They called me.
I did as much work with them as I did with anyone else, and ultimately the case was overturned.
It's really amazing to listen to you.
I mean, you're very calm and sort of ethereal type of being for the short time I know you. But eleven years it took, even with the support of an amazing and accomplished and brilliant family and representation at the highest level, that someone could hope for years. I'm getting the chills just thinking about that. And it turned to Mark for a second because the conviction was overturned. So for the average person, you go, Okay, that's it, right,
go home. Conviction overturned. Mistakes were made. We're sorry, mister Ferguson. Can we get you a ride somewhere? You know what I mean? Do you need a lift? That's not the approach that West Virginia took. They still wanted their pound of flesh.
Yeah, So from my understanding is they appealed this reversal, right, which kept Brian for another year and a half right in prison, despite the fact that the conviction had been overturned, but the indictment still stood, and so they were appealing the fact that he should have been released at that point, which is actually very common in wrathful conviction cases. And
it's really appalling and sickening. And sometimes it's even after clear, you know, demonstrable DNA tests and they still will appeal.
That though, what is it? It's so strange and Brian, maybe you have it might not Mark, you must because it makes me nuts.
Well, it's the very simple human reflex of not wanting to admit you were wrong morally, they've been so invested in it. Sometimes they just want to believe it. Many cases they really do believe it, they convince themselves, and then they don't want to admit publicly that Often a case that even might have made their reputation, that their reputation of their office is grounded on, was based on
a terrible, horrific mistake. And this happened so many times, where you'd think there would be they'd be on their knees begging for forgiveness and apologize, but no.
And on their way to go look for the guy who actually did it exactly before he killed somebody else.
And if they really cared about justice, that they cared about law and order, right, these concepts they like to talk about, then they would be doing those things. No, but they want to keep that person that they know and come to learn is innocent, if they didn't know it already, keep that person in just to preserve their reputation, preserve their careers. And it's just unconscionable.
You don't seem angry, what's up with that?
You're not the first person to point that out. But what I'd like to say when anyone mentions that is that you know there's a threshold beyond which you're not worried about retribution, or you're not worried about being mad about the situation. If you would have caught me after maybe two or three years, yeah, I'd have been pissed. I was still pissed that my name was even brought up in a situation like this, that these people twisted the law, that they hid evidence that they knew another
person was actually the one who committed the murder. But after a while, after you have to worry about your parents ever seeing you on the outside again. You have to worry about ever, you know, as you see your friends getting older, graduating from college and postgraduate degrees and having families and going off and doing all kinds of things, and the world passing you by. At some point you just want to come home. And so when you get
that opportunity. For me, when I got the opportunity, I was far more happy to be home and to have the opportunity to build my life again than I am mad. Like that's not even a close. Those aren't even competing emotions in my mind.
That's amazing. There's some sort of spiritual enlightenment going on here. That's that's kind of awesome to behold.
You hear that with a lot of exguneries, then I hear.
It over and over again, but it never gets old and it never ceases to amaze me. And everybody that I've I mean, I think every exunery I've ever met, and there's hundreds of them, have had some variation. Everyone's got their own take on it, everyone's got their own unique way of explaining it, and each one went through their own journey to get to that place, and of course so therefore there everyone has a little bit of a different way of expressing it. But it's absolutely remarkable
when you hear somebody like you. I hope you understand how much that is inspires everybody else around you, and how much it inspires guys you know, like Mark and myself and so many others who are in this fight and trying to help prevent other people from following your situation, trying to help you know, other people like you find the freedom that they deserve and recover the life that
was taken from them on the outside. And let's get to that too, because we got to still talk about the Alfred plea because it's a fascinating and terrifying concept that is hard for a lot of people, I think,
to wrap themselves around. Because what happened in your case, which we see not infrequently in wrongful convictions, is that after this year and a half where you're now in this crazy limbo, right, you've known all along you're innocent, and they may have known all along you're innocent, but now you know that they know that you're innocent, right, and yet you're still in prison, and at a certain point you're faced with a decision that I don't think
anybody who hasn't been there can even conceptualize, which is that it's really, do you want to bet your life? Hey, Ferguson, We just fucked you up, right, We just took you and just ground you up, and you're still here and that annoys us, right, and now you know you're you're in a position to make us look bad. We don't like that, right, And you're in a position to be able to sue us and get a lot of money.
We don't like that either. And the tables are turned. We don't like that. We're going to give you a choice, right, which is.
That even though we know that the right thing to do is to let you go and move on with your life. And like I said, we're going to go look for the guy that really did this, because there is no statute limitations on murder. There's a monster that's walking among us in our community where we live. But instead they came to you with a much different idea. You want to talk about that.
Yeah, So in my case, actually they knew the person was incarcerated. He had apparently been known to be very violent and especially with guns to people in that community. And so as is that happens, he ended up in prison, and so he was in the prison, in a federal prison actually for I think fifteen years. So they weren't actually worried about this person walking among them in their communities.
What they were worried about, like you said, was losing money was me suing when they dropped the case, and they made it very clear to my attorneys after they put in their appeal, that appeal took a year and a half, that I had to stay in prison after my case was overturned the Supreme Court of the state.
So the West Virginia Supreme Court once they got the case and then they voted to uphold the decision to release me, making kind of and what I've heard is unprecedented comments from the bench that this should have never happened, this is a travesty of miscarriage of justice, and that
this case has bothered us for years. Saying things like that you would think would influence a prosecutor one way or the other, but it didn't because they have the discretion to do as they will with respect to retrying
a case. And so after they made that decision, they being this Supreme Court and I was released, the West Virginia prosecutors still had the option to retry me and made it clear to my attorneys that at this point we could drop the case, but we're playing with house money, and by that they meant if we retry him and lose, we're in no worse position optically practically than we are right now.
The case.
There's egg on our face. You know, everybody sees that we messed up, and then we tried the wrong person. If we retry him and lose, that that position doesn't get worse.
But that's if we lose.
If we win, he gets a brand new life sentence with no possibility or parrole and this time there's no coming back from it, So what do you want to do?
So, Mark, doesn't this sound like double jeopardy? How do they get away with that?
Yeah?
Well, I mean when the conviction's overturned, it's like a trial never happened.
So they do start over.
And so what they're effectively saying is we are going to try you for murder and go for the maximum sentence, which is what he'd had before, or we will let you go with this Alfred plea where it's time served. It's technically legally a conviction means there's a record, but you get to claim your innocence, right, And it's this very bizarre choice. It's not always offered, but when it is a lot of times people do take it because
there's that fear. What I mean, this is West Virginia, right, this is going into a courtroom after what he'd been through already. How's he supposed to know it's not gonna go the same way again, even though there's no evidence. There's no evidence the first time, and okay there's more now, but who knows?
Right?
But the key about the alphared plea, it's not a conviction with just time served and says, I plead guilty, I did it. He maintains his innocence and he gets to claim his innocence and they get technically the conviction, but then he's out. And I think many lawyers would say, take the deal because you need to get out. Out is out. And there are people who don't take it and who get convicted and they could have walked out that door.
Yeah, and what a thing to live with that is so literally, Yeah, even if it's you know, look, even if you had somebody there saying, look, it's a it's a one percent chance, Brian, like you just do everything's in your favor. I mean, what do you what are you going to do? Like you could You're going to go back to prison for the rest of your life. It's almost like a Sophie's choice. But at the same time, I guess you got to take it. And we know
and there are people who roll the dice. Yeah, and you could say, well, that's a principal thing to do. It's a brave thing to do. It's also a crazy thing to when you know what they're capable of. And we've seen cases where they'll come right out and say, look, we got a new jailhouse, nitche. We've got somebody else that's gonna we're gonna roll out and they're going to testify against you, and you know we're going to get you.
But the key thing is Brian always maintained his innocence, and he could maintain his innocence while taking that plea and afterwards. So it's very different from a guilty plea for time served, which sometimes innocent people will take sure where they admit guilt for something they didn't do because it lets them out. The Alfred plea lets him maintain his innocence throughout as he did.
The prosecution made it very clear, and I think as close to word for word as I can get, the quote was, we're extremely confident in our ability to convince our jurors of whatever we want to.
So that sounds like a threat right there. Says a lot.
So you were finally free, right to go home, and no one would blame you, least of all me if you came out and decide, you know what I'm gonna do.
I'm gonna I'm gonna get drunk. I'm just gonna drink.
I'm just gonna like I'm going on a bender, right, because look at what I just came out of, and I deserve to go have to de live my life like I'm in a rap video, you know what I mean. But that's not really what happened though, right, I mean, your story is remarkable in so many ways, but not least of which because of what's.
Going on now.
And you know you're now a senior at Georgetown, Yes I am, so you've got what else is going on?
So right now, I am the executive director of the Mayor's Office on Returning Citizen Affairs in Washington, DC. So the office is the only legislatively mandated office of its kind in the country, and basically the mission is to provide information, support and services to individuals who come home from incarceration back to the district.
So you're giving back in a way that you are uniquely qualified.
To be able to do.
Correct.
It's sort of a great full circle. Look, we'd all like to give you.
Back those eleven years and make that just just to RaSE that from what we.
Can You can't you can't get you can't ever get back the time. But you know, when I came home, the thing that was really on my mind was how many people went out of their way to help me. How many people stepped out of their comfort zone and what would have been completely acceptable for them to do or to not do, to go above and beyond to
help me. Marcu is definitely one of those people. The lawyers that I had, they didn't need to do any of the stuff that they did, And if it weren't for what they did, there's no way that I would be in a position i am today or anywhere near there. So it's I believe a requirement for me to give at least some of that back, as much of it as I can. The people, like I said that there are worse positions than I was when I came home. I was fortunate enough to have a family to come
home to. I didn't have to worry about where my next meal was coming from, or where I was going to get money to get food or anything like that, or clothes, or where I was going to live when I was looking for a job or anything like that. These are problems they face a lot of people when they come home from prison, whether they did two years or twenty years.
And I didn't necessarily have to deal with all that.
I still had tremendous hurdles, but the fact is that I had the supports and people help me through my situation, and so I want to do that for other people who are in even worse situation than I was when I came home.
If one person clapping wouldn't sound so weird, I give you a round of applaus right after that, you know what I mean.
But yeah, that's that's amazing.
And you know, and I think a lot of people that are that do get involved in this stuff. I mean, I can't speak for everybody, but many of us recognize that. But there before the grace of God, go I right,
this could happen definitely to anyone, because it did. I think it's great that there's so much interest and momentum behind an awareness that there's a huge number of people like you who need help, both people that were wrongfully convicted and people that are out the type of people you're helping now and have served their time and are just in this country. The punishment is so disproportionate in general, So the crime and the punishment continues with the stigmas
that exist after you get out. I mean, some of it is deliberate, some of its government mandated punishment. I mean, you can't vote and all this other stuff, and some of it's just society looking down on people and not wanting to give people a second chance. When we see both xouneries and people who are formally incarcerated, who served their time, as you were saying, accomplishing extraordinary things. I want to ask two more things. One is, when you're finally released, what did you do.
I got the hell out of West Virginia. This is the first thing I did. I wanted to drive. I told so my father picked me up, which you know, my father had been even when I had a life sentence with no parole and the appeals were stalling or going nowhere and there wasn't any discernible date to look forward to. He was always in my ear. Listen, I'm gonna pick you up. I'm gonna pick you up from right here, and we're gonna go wherever you want to go. And to have him be outside the gate when they
let me go, it was a beautiful thing. It was one of the best moments in my life. But when we got in that car, I told him to get me the hell out of the state, and so we drove until we got to Maryland and then we stopped to eat and I don't even remember.
Where it was, but it was great.
It must have been incredible.
It was amazing.
Okay, so now comes the thing we typically do, as everyone who listens to the show knows, I like to just turn over the floor to you for closing thoughts.
Let's call it closing thoughts.
I think if I had to come up with closing thoughts right now, what's on my mind is just the opportunity that exists for people that are coming home from prison. As you mentioned, the federal system is its own thing, but in a lot of these states and a lot of these cities, DC especially, there's a tremendous amount of
resources and services that are available to people. And like you said, the tide is turning with respect to how people look at the criminal justice system of mass incarceration, what needs to be done for people not only when they come home, but before they even get there in the prison. The treatment that's going on, a lot of it is criminal in and of itself, but DC and I work at the Mayor's office on returning citizen affairs. If you got to come home to somewhere after having
been incarcerated. DC is a great place, and you know, we serve as an example for a lot of different things, one of which is the band of Box law that's happened then. I know New York is following suit on which is basically prevents employers from screening people for their criminal records and so that gives people opportunities for jobs. The mayor has dedicated millions of dollars to the re entry community in DC and has you know, made the
priority of the needs of the returning citizen community. You have different nonprofit organizations all throughout the city and the nation that are really the kind of backbone of the
movement to help people once they come home. And I want to really take my hat off, not just because I'm a student there, but to Georgetown and to other universities like that, but especially Georgetown because of what they do in the re Entry space Mark and the Prison Justice Initiative is an amazing example of that that they have identified the needs of this community as a priority as well and have utilized their resources and the brain power that exist in a university like that, a top
tier university to be able to make a change. So I think that my last thought would be to just take my hat off to everyone who's doing the work, everybody who's listening that has either done the work or who is inclined toward people who are incarcerated, whether wrongfully or otherwise, because ninety seven percent of people that are incarcerated are coming home. So the question is what kind of neighbor do you want? What kind of person do you want is going to be at your school, is
going to be in the store with you? What kind of society do you want?
Do you want to participate in and contribute to?
So those things I think are what are on my mind and what I want to have the audience take away.
Mark, Yeah, so I agree with everything that Brian just said. But let me just close with something about Brian, because I think it's probably already clear to your listeners what an amazing person he is and how strong and resilient and caring he is. But he has so many different dimensions that might not come across right away on this podcast.
But I got to know Brian. I remember getting an email from him a couple of years ago, and you know, dear Professor Howard, very polite and so on and saying very little but just about his own experience, and that he'd be interested in having a meeting sometime, and I thought, yeah, I definitely I'm interested. And when we met in my office, within five minutes I knew this guy is a winner. This guy is unbelievable. And we talked about the possibility
of him coming to Georgetown because he'd stopped. He'd been at West Virginia and he'd stopped after two years despite having a great record, but that was over and it's hard to pick that up again. And we came up with the idea, why not have him be a transfer student to Georgetown, And so I supported that and wrote a letter of recommendation very long, where basically I was
threatening to resign if Georgetown didn' admit. I said, if Georgetown is worth anything of its reputation of in terms of academic excellence, where he had the record and deserved it, just oh yeah, but also in terms of Georgetown's tradition of giving back and as a Jesuit institution of caring
for others and so on. And he was admitted as a transfer student and then came on and then actually was in my classroom and I was teaching a course called Prisons and Punishment, which has about fifty students, and Brian was one of those students, and we talked beforehand and I said, you know, I'll let you decide when to reveal your story, and if you want me to, I'm happy to if you want to, you decide when
the right time is. And I remember it was several weeks into the class and he'd already been active and asking questions and making comments and so on. But then at one point he said to the whole class, now might be a good time for me to tell you my story, what I've been through, why I have a connection with this issue. And you should have seen the jaws drop in that room, total silence and admiration and awe.
And over the next few months, the role that he had in that classroom and in these students' lives, the respect that they had for him, it was life changing for them for me too, And I got course evaluations at the end of the semester that were through the roof, but so many of them said having Brian in this course was unbelievable, right, And so I'm really grateful to him, but not just in terms of what he did to me and for my students, but what he's giving back
to so many people around him, right, And so it's one of these things where you never would wish this type of horrible thing to happen on anyone, but in a way, Brian is the person to have it happened to because he is so strong and he's taking from that something to help change this horrific system. And I think he's going to be a leader in the future, whether it's in DC or nationally. He's got an incredible future and we're all going to hear a lot more from him and about him.
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And I'm a proud donor to the Innocence Project and I really hope you'll join me in supporting this very important cause and helping to prevent future wrongful convictions. Go to Innocence Project dot org to learn how to donate and get involved. I'd like to thank our production team, Connor Hall and Kevin Wartis. The music in the show is by three time OSCAR nominated composer Jay Ralph.
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