#205 Jason Flom with James Davis

Since our initial release of James Davis's story, there have been some incredible developments. This is a re release of that story with new content outlining the great news. On January twenty fourth, two thousand and four, James J. Davis went to a big party at the Brooklyn Masonic Temple to celebrate his little brother, Daniel's birthday. James's night was cut short when he drank too much and vomited several times. Daniel put him in a cab to meet with his

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On the phone from prison where he's been for almost twenty years, we have James J. Davis. Hello, Jay, thanks for calling in and I hope that we'll be able to make a difference. And with us today we have Elizabeth Felber, who is the supervising attorney in the Wrongful Conviction Unit of the Legal Aid Society.

Thank you for having us.

Let's go back to the beginning. James, you had a rough child a growing up in Brownsville and Brooklyn, right, Yeah, very.

My mother and my father weren't really in my life. It was small. My grandmother and my brother. My father died when I was in fourth grade. Roughly two years later, my mother passed away. The year before that, my brother father passed away, so both of us had no parent by the time I reached sixth grade. I had to keep people from picking on him outside as well as keep people from picking on me and bullying me. So that's when the fight started happening. I started getting into

And that's when you ended up in juvie.

Yes, when I make it the juvie. I'm going to school and I met this teacher, a guy named mister Bliss, and he convinced me to take my TV and I ended up passing. After I passed, he was like, you can go to community college and get going to high school now for re education.

So I understand you accepted the CAPE for your community college in North Carolina, near where your aunt lived, no small feat considering your record, but your probation officer wouldn't transfer your supervision out of state, so you were trying to get yourself into some computer science classes locally.

Around that time, I found out that my brother was into the streets, and that's pretty much where I got back involved in the streets, selling weed and being there for this case.

Elizabeth, take us back to January twenty fourth, two thousand and four. What happened that faithful night?

Okay, So January twenty fourth was his brother Daniel's birthday, and Daniel wanted to go to a party that was being held at a Masonic temple lodge where they hosted events. It was a party for people with January birthdays.

We all grew up in the projects. Bio is an older guy from the neighborhood that he's like a well like god. He does parties. He knew my brother as well. My brother he been talking about his birthday for a long time, so they put him on the fly I guess on my brother birthday. My plan was to like, we just going chill, maybe call up some girls to come hang out at the projects with us. He was bent throwing going to the party because his name was

So by the time he got to the party, he had had a few already, and then he proceeded to have a few more drinks in the bathroom because they told him, okay, you can have your own drink, but you have to put some shade on.

It before you know it. I was trying to rush my drinks so that we can actually get out the bathroom. I wanted to see what the party was really like in the Hennessy, and the moat turned my stomach over. That was the start of the end of the night. I threw up maybe once or twice in the bathroom, and before I know it, through the laughing, I hear my brother pretty much like, come on, man, now, I got to take you back home. We just got here. We ain't even fully been in the club long enough.

So they went outside. They got a cab and James called his girlfriend, Canine Johnson, and took the cab to her place and she met him outside. Her mother didn't like James, so they would stay with her aunt.

I got there two forty five maybe three. So when I got there, she's sitting on the steps already. I step out the cab.

They I threw up in.

Between cars before I even tested the sidewalk. She came running down the steps, rubbed my back I think, and walked to our house, stop at the store and went.

Into our house, so he was long gone before anything happened. At the party, which was around four in the morning, a fight broke out and somebody was seriously stabbed. We now know that was Jammel Black and Blake Harper was shot and killed. A couple other people were shot, but not seriously. James had already left the party hours earlier.

So you wake up the next morning at your girlfriend Kneen's her aunt's house. Really, and one of the guys you were with, Jamel Black, had been stabbed the night before. How did you hear that news?

Well, both of us up. The news is on. It's about the Masonic temple. Immediately I called my house on the landline in my aunt is like it Jamel got stabbed and somebody got killed, but nobody knew who the guy was that got killed. So I'm like, I'm coming over there. I got there. My brother pretty much told me I wasn't really involved in it, but it was crazy in it, a fight broke out, people shooting, girls screaming, and everybody run in.

Police had responded to the scene and they interviewed a number of people at the club, and no one that they interviewed knew the identity of the shooter. But he was described as a young, light skinned Blackmail with braids on the back of his head. Now, James, is that an accurate description of you at that time?

No, I actually did have raids at the time. I had a low season like waves.

So police have already interviewed witnesses at the scene the night before. You're a friend who has stabbed Jamel Black. They call his house, but they get his sister on the phone.

Instead, Tina Black, like the first girlfriend I ever had.

What we learned was that Tina Black still harbored a flame for him and was hugely jealous when she found out that he had a new girlfriend, and out of spite, she told the police that James did the shooting, even though you can tell by the only police record on her she wasn't at the party that night. She was very sick with juvenile diabete, too sick to go to a party. The police should have known that she wasn't at the party, and yet they just focused on him.

Right, So the people that were there couldn't identify the suspect. The woman who wasn't there does identify a suspect, And of course we know that Tina later on confessed to her mother and to others as she had lied to the police. Now we're up to the park where the detectives went to the hospital, right, and the interviewed Jammel Black.

So the detectives actually went to the hospital the day of the incident and they were told he was just coming out of surgery. He was too out of it. The doctors wouldn't let him interview Jamel. Jammel testified out her hearing and he told the court that what happened was those detectives came back later and Jammel told them he had been stabbed by the guy who was subsequently killed and this guy named Tay Hall was helping him out of the party when he says, oh shit, pushes

So let's fast forward then to a couple of months after the shooting, right, and that's when the warrant squad came. They were actually looking for your younger brother when they arrested you, and you weren't even aware that they were looking for you because you knew that you didn't have anything to do with this and there was no reason to suspect you of anything other than being drunk and throwing up on the sidewalk.

They took me from my house under the guys that I had a warrant, which I did. I did have a warrant for disorderly conducting do community service, But they never took me to the court building, took me down to like homicide headquarters where I'm at Detective Hutchinson for the first time before they took me to the precinct. At the precinct, they pretty much was asking me do I know Jamail Black? And do I know what happened

Can you tell us a little bit about this lineup and how things went so wrong?

So the lineup in itself was already suggestive, but there were three people who viewed the lineup. One of them was jose Machakodi. He was the first witness that they brought into view a photo spread about six weeks earlier, and it was unclear why he was called. He was the brother in law of the man who died, but he was not one of the people that had been originally interviewed. It's pretty common knowledge that when you've picked someone out of a photograph, you pick them again in

When you think about the convenience of Tina Black Junior given my name to the detective, and then a week later, jose Machakodi, the drug building, violent robber who's a humble bober, now just happens to walk into the precinct. Though he didn't stay at the crime scene when everything happened, he fled the crime scene. He walks into the precinct and he picks my picture. He's the only one that goes to the precinct and it just so happens that he's

This episode is underwritten by Paul Weiss, Rifkin, Porton and Garrison. A leading international law fer. Paul Weiss has long had an unwavering commitment to providing impactful, pro bono legal assistance to the most vulnerable members of our society and in support of the public interest, including extensive work in the criminal justice area.

After the line up, they told me I was being charged with murder, and he offered me a deal pretty much to take the questions and asked me to tell him that I did it because he already heard about the story of what happened. Somebody told him that two groups of guys was fighting and the guy in one of the groups had a knife, and the guy and the other group had a gun, and he shot the guy with the knife to defend himself. But I can tell me that I can help you. I speak to

That's wrong?

Right there, the fingerprinted me and put me in a holding cell for the rest of the night.

Now things go from bad to worse right the trial. There's a number of problems at both trials, although the first trial, amazingly, in spite of the fact that you had substandard defense, you still ended up with an eleven to one hungury in favor of a quittle.

You have this this one guy, Jose Machikoti, who's laying the cause of this fight on his brother in law. Well, the two prosecutors witnesses beside him, I say and that he started the whole fight, and he's saying that I had nothing to do with it. I'm a humble barber. I never committed a crime again after I was locked up all of those years ago. You have a conflict between your own witnesses.

Canein Johnson. His girlfriend did testify at the first trial.

She's explaining to them how I came to her aunt's place while we didn't stay at her mother's house because some of us was like a CEO or x CEO at the time. I guess she didn't think I was good enough for her daughter.

I think that, in part was part of what led to the eleven to one Equila that she was a very persuasive witness.

But at the second trial, the DA is saying that I threatened. One of the witnesses. Sean Belton recants, but it's I can't really consider that recanting because he went back to the initial statement that he never seen anything. Havel Poe. We had his testimony read into the record because throughout the whole thing he never identified me. He only referred to me as looking similar to one of the guys. The other person that they say picked me out of a photo or Ratey never signed on none

Me out of a lineup, And all you needed was your star witness Kenean Johnson to show up and counter Machakot, just like she did at the first trial.

But at the second trial, I'm not with my girlfriend anymore, so our contact is kind of really touching. Go is you know that I'm only calling to notify her court dates and what's going on with my life, which she's trying to avoid. I guess I don't know. My lawyers said he spoke to her and she was supposed to be coming in and then she didn't show up, but she was still being nice to him on the phone. He called her again and then she cursed him out. She told him that he sent police to her house

Anyone who's listening is probably wondering right now, Well, if I was representing him back then, I would have checked to cell phone records, or I would have checked the cab records. You could have gotten hold of a cab company and see if anybody because you took a cab right, And none of that stuff was done right.

The weird thing is, out of all of the easy stuff that we think of that could have been done, my attorney at the time hired a chiropractor or child doctor to do medical examine or work. And I've never even seen the medical examine, the work, or any paperwork that he had done. But he didn't go and check a cab. He didn't go and speak to none of these witnesses. That's in the DD files from the police reports. But you found an adopted the player as a medical

So meanwhile, the story goes on. Mister Machacote was murdered by a drug dealer five months after James's second trial. Yes, after he was trying to rob the drug deal there for the second time in a month. So yeah, he was tortured and killed. And I mean, this is some Quentin Tarantino stuff now, but this is the guy that the authorities were painting to be a wonderful citizen who was bravely coming forward and now he's a simple barber and blah blah blah. So that's all out the window.

So we learned this as the hearing was going on, the actual innocence hearing that we litigated last summer, and we're appealing now. During our hearing, I reached out to the assistant US attorney because people were prosecuted federally for killing Machakodi and through it, I met the FBI agent who told me that at the time of the trial, Jose Machakoti was under their investigation. It was a joint NYPD FBI investigation into drug dealing, major drug dealing in

No, that would have been an inconvenient fact to bring up as they were trying to present him as the perfect witness, right.

And what was in it for Matchakodi? You know, I don't want to go down too deep a rabbit hole of conspiracy theories, but he was on parole. The night of this murder, he had violated parole by being out past his curfew. And the fight that Jay was referring to, a lot of the police reports say a Spanish guy wearing a fur coat grabbed a bottle within a fight on the floor that was Macha code, So that was

It's almost like an exclamation point on the whole thing. You know, he ends up in like a scene from Reservoir Dogs being tortured to death by a guy who he was trying to rob for a second time, a drug dealer. I mean, nice witness.

Right, and the first time he entered at gunpoint and tied them up and robbed them. So it wasn't his first rodeo.

No, And it sounds like they turned the tables on him, and then he took this false testimony presented to the grave with him.

Yes, I didn't know the justice system actually takes this long, but I thought, maybe, no, two years, I'll be back home, they'd fix this whole thing, and I'll be home. Two years turned to seventeen and I'm still fighting and trying to convince them that they actually locked up the wrong person.

And then, to compound this tragedy again, the little brother that you felt so responsible for was murdered in twenty twelve. I mean, I can't possibly begin to imagine your pain. But your grandmother's still here, my.

Brother, my grandmother is like my oldest friends in the world. My grandmother been there for as long as I knew. I know she know my pain, and my brother was there with me through everything. So it's like I lost out on with little I was able to spend his life with him in seventeen years and my grandmother's like she was sixty three. I dismissed all of these birthdays and times to spend with her. I think that was my first Christmas ever, actually really buying my grandmother my

Yeah, I can't imagine. We need to do everything we can to bring you home, James. Yes, So now you know we get to the post conviction investigation, and of course you had a meeting with the conviction review unit in Brooklyn.

That was actually before I became involved in the case. Susan Epstein, who did the appeal and did a phenomenal investigation, brought the witnesses to the Conviction Review Unit. They had the case incredibly for five years. It's not exactly clear what happened, but one refrain that is throughout the transcripts of those interviews is why didn't you come forward sooner?

And there's lots of them, right, It's not like this is one person. These are people who are, you know, members of the community, who are not kids anymore either.

I don't know why they dragged their feet and they never came right out and said we don't believe you, we think he's guilty. Even after we brought the motion and started the hearing, they said to the press, you know, we're still looking into it, or something to that effect. For some reason, they just were unpersuaded.

And that brings us to the hearing we've been referring to this entire time. You and Susan filed a four to forty motion, which is New York legal leese, for a motion to set aside the judgment that was in September twenty eighteen, and you argued for James's actual innocence as well as ineffective assistant of counsel and newly discovered evidence at this hearing back in June of twenty nineteen.

Yes, we were pretty optimistic going into it, so we had eight witnesses, including James. James went first, so he told the story that you heard about leaving because he was intoxicated. And then Jammel Black came in and he had initially refused to cooperate and sent a letter to Susan saying he ruined my life because James had slept with his girlfriend when he was locked up at Rikers and he held a grudge. But he came in and

I think it's also worthwhile to mention Tina Black, a young woman who named James in the first place, is sadly no longer with us. In twenty thirteen, she died of complications related to the very diabetes that had kept her from the party that faithful night all the way back in two thousand and four.

And then lastly, and maybe the most emotionally compelling witness was Tina Black Senior, the mother. So she came in, you know, with the cane. She's like crippled by arthritis. She basically was racked with guilt that her daughter eventually confessed to her and that she had set James up and that he was never coming home, and that she was still in love with him. So that was extremely compelling testimony. So that was essentially our case.

Then January twenty four to twenty twenty, sixteen years to the after Blake Harper was tragically murdered, the judge denied James Davis's wrongful conviction motion in its entirety. I remember reading that the first time, we're going, oh god.

Right, we were stunned. And then we asked the judge to reopen the hearings so that we could call this FBI agent, so that we could show that they would have known about this evidence that Matchi Coodi was not just a humble barber, but he was a major drug dealer in Brooklyn, and the judge refused to reopen the hearing. And now there's really literally one stop left on this. You don't get to appeal a four to forty as

So it turns out that the last stop in the second department of Pellet Division, Jay and Elizabeth Hail Mary pass was a great success. And I have with me right now, James J. Davis. Jay, welcome back to wrongful conviction, finally breathing free.

Hey man, thank you, Jason, thank you for having me back. It feels good to actually be doing this from my own cell phone, ins out of a jail phone.

Yeah. I mean, obviously this should have never happened. It would have been better if you never had to go through this in the first place. But now, from what I understand, Elizabeth was able to finally prove that your trial counsel was ineffective because he failed to present any of the laundry list of alibi witnesses that would have easily and certainly cast reasonable doubt and proven your innocence

I gotta think Susan and Elizabeth and the rest of the Legal Aid Society for the help that they gave me.

Is without them, I wouldn't be here right now.

So that's the great news. But the truth is we're not completely out of the woods yet because after all, the Brooklyn DA has the choice to either appeal the decision, retry you, or dismiss the charges, and we're all hoping and so many of us are praying that they choose the latter, because, as we've outlined here, out of the three who originally identified you, there's Sean Belton who recanted, and Harold Poe who didn't testify at the second trial

I've been trying to spend time with my family. Men, you, my grandmother, me.

And have been talking one on one about creating new memories because, as I told you before, my mother was murdered at the Mother's Day and my brother was murdered right at the Father's Day. So we've been putting positive energy into the universe to create new memories for them.

Two occasions and me coming home started it off.

So we're trying to continue try to do something nice for our birthday, create some better memories, cover up the old ones, just have some happy moments, Man, enjoy the rest of our time together.

And is there any way that our wonderful audience can show you their support.

There's a go fundme base that my family is running for me right now, and I'm trying to get me be adjusted back to society. Anything that the audience can do to help would be great.

Man.

I'm just happy to be here and have this opportunity.

We will absolutely definitely have that link in our bios so our listeners can help. And I can honestly say, and everyone who knows me knows this. Nothing makes me happier than news like yours. So thank you again for talking with us. And with that, I'd like to give your closing an argument and update. And what I mean now again is I'm just gonna kick back in my chair, turn off my microphone and just listen to whatever you have to.

Say, Jason, Man, I just want to say thank you. Man.

I want to thank you again, thank Susan Epstein, Elizabeth Felber and the Legal Aid Society for the help that they've given me.

Man.

I don't want to thank God. Man is without him I wouldn't be here.

Thank you for listening to Wrongful Conviction with Jason Flahm. Please support your local innocence projects and go to the link in our bio to see how you can help. I'd like to thank our production team Connor Hall, Jeff Clyburn and Kevin Warnis. The music on the show, as always, is by three time OSCAR nominated composer Jay Ralph. Be sure to follow us on Instagram at Wrongful Conviction and