#233 Jason Flom with Mark Denny

described three assailants. Two weeks later, on January eight, Raphael James and Mark Smith were on their way to a party with Raphael's sixteen year old cousin, Mark Denny, when the two men stopped the car outside of another store that they intended to rob. Mark wanted no part of it. While they argued, police pulled up, searched the car and found a gun. James and Smith were suspects in the December twentie incident, and Mark Denny became a suspect by association.

Mark was bailed out of jail that night and ignored his cousin's request to raise bail buddy so out of spite, Mark's cousin named him as an assailant as well, even though the victims repeatedly said that there were only three assailants and had identified Bierra, Smith and James. The detectives pressured the female victim with a suggestive lineup to change the number of assailants from three to four, and Mark

Denny was ultimately convicted. Years later, Raphael James recanted excluding Mark from the crime, but it took an investigation by the Brooklyn cru to reveal the corrupt identification process in which the female survivor was re victimized. Mark Denny was finally freed exactly thirty years from the date of the crime. This is wrongful conviction. Welcome back to Wrongful Conviction. I'm your host, Jason Floman. Today I have a guest who's

a really special guy. And he's special to me because I had the privilege of meeting and actually having lunch with him three days after he was released from prison after thirty years for a crime he didn't commit. So, without further ado, let me welcome and introduce my friend Mark Danny. Mark. Welcome to ronfo Conviction. Thank you Jason for having me so. Mark. This crime happened when you were just sixteen years old. Sixteen right, and the crime itself is like something out of a out of a

horror movie. But before we get into the whole situation and how you got wrapped up in it. Mark, tell us, what was your life like growing up. Were you born and raised in Brooklyn. No. I was born in Guyana, South America. I was there all the way up until seven years old. Then I migrated to America. My childhood experience in Guyana was very fun filled, and that's pretty much how I grew up. My grandmother left to Margaret

to America. She made certain things happen and I was able to be flowing in and I was so happy again. My grandmother was like my everything. When I first came to America, I was living in Flatbooh section of Brooklyn. I was living with my grandmother and after a while, my cousin, Raphael, he decided to come and live with a two So it was me him living with my grandmother,

just like he was in Guyana. And Raphael is a pivotal character in your story, and it becomes clear later that he was into some really bad stuff, dark stuff. But before all that, it seems like you had a pretty happy and saved childhood. And let's bear in mind as we listened to the story that this was the nineteen eighties in Brooklyn when both crime and police misconduct were out of control, right, And the crime in this case is, even by the standards of the day, is

just brutal, disgusting and really really sad. We're talking about an incident that happened in December twenty seven around two am. And what happened was two masked men forced their way into a Burger King that was about to close in Brooklyn, right, and two employees were there, one male and one female, were closing up the shop. They these guys came in and they forced the male employee to undress and forced him into a storeroom. A third assailant entered the restaurant

at some point. They had blindfolded and forced the eighteen year old female employee to take her clothes off as well, and then all three men raped her in the back room. It's horrible. The male employee also told police that the men forced him to sexually assault her as well. I'm sorry you have to hear this, but this is These are the facts of the case. The three men fled with around three thousand dollars in cash receipts from the

restaurants safe. I mean, even during this high crime era, this incident stood out and you find out later that your cousin Raphael j along with his friends Mark Smith and Eddie Fierira, that they actually did this to the girl at your local Burger King, who was a girl that you happened to have had a crush on. Right, But for the time being, this incident is just more insanity in the neighborhood that's grown accustomed to insane things happening. So about two weeks passed by, it's January. Tell us

what happened that night. My cousin wanted to go to a certain party, but he wanted to hold my aunt's car. She wouldn't let him hold a car, so he kind of talked me into doing it, under the impression that he'll let me come with him. So I would and barrow my aunt's car, and they directed me to where the party whether it was supposed to be in Manhattan. Then we got in front of a store and it was me, my cousin and his friend, and his friend wanted us to pull over, and they started talking about

it's too early to go to a party. They wanted to do a robberie real quick, and automatically became afraid for a lot of reasons, and the many reasons. Was I was a kid and I never really did anything dangerous. You know, I was resistant. We stood in the car arguing about it. But to make a long story short, nothing happened. No one decided to do anything because I

was there. I don't know how long we was in front of the store, but I guess the people in the store probably seen us, got suspicious called the cops. So the cops pulled up and they was waiting to see what happened. And as he was driving off, they pulled us over and I was in the back seat. My cousin was in the front seat with his friends, and out of nowhere, a gun was tossed to me. So, like you described, it was Raphael James driving and Mark

Smith in the front pastor seat. And they, of course were suspects in the December twentie robbery at rape in Brooklyn. You became a suspect as well, just because you happened to be in the car with them, Right, But did you even know that they had been involved in this insane crime? No? I did not, if you think for me, became aware that this is what they do on a regular because that's how they was trying to convince me

it's easy. He did it before, So the whole thing of what my cousin was actually doing for a living, I became aware of all of it at that very moment. So he was some kind of stick up guy. This was like a regular thing for him. But you were just a kid who was in the wrong place at the wrong time. And we all got locked in that night as a resulting me being in the car with them. You know, I got billed out that night, and he didn't.

Him and his friend Mark Smith stayed there and Mark Smith gave me a bunch of jury to bring home to Pawn for him to help make build money. And my cousin, now Raphael James, he wanted me to go to my grandmother house and get some kind of wedi at stash and sell it it was supposed to be

like a pound and get him build money. So now here I get built out with all this jury in these duty to go do stuff for people that just finished almost got me killed and got me locked up, and tricked me into going to a party that they claimed wasn't even no party, you know. So I was piste off and it is the energy I came out with. So when I went back to my friends the next day and I explained it to them, you know, there was all on my side. It was all against the

mode almost got you locked up. You could have been a jail now you gotta go to court. Now you're gonna come out here and go sell drugs and jury for the You know, it made me felt like, you know, they just mailed me, felt like it wouldn't have been the right thing to do. And when you didn't do what your cousin and mark Smith had told you to do, and your cousin found out about it, he was really passed and he eventually made a statement sending investigators in

your direction. It stayed him to such an extent that I guess he always wanted to give me back, because in a statement he said he just wanted to put me in jail. So I can see what he was going through when he was in the he needed my help. But I don't even see how. I don't even see

the logic in that. I don't see that. So while both victims had reported three assailants right three and the other three guys, your cousin and his friends Eddievier and Marksman had been identified from either photographic or live lineups. That should have been the end of it right there, right but with your cousin had told detectives, it didn't stop right there. This is when the identification process got corrupted.

It's now March. Detectives told the female victim who had maintained that there were only three assailants, right three, and she had already identified the three, but she had been through an unbelievably traumatic experience, and remember she was blindfolded for most of it. So the detectives told her that they had one of her attackers and that his name was Mark Denny, and they put your picture in a

photo lineup, and she still didn't pick you. But two days later, you're at your grandmother's house and these cops come and take you back to the precinct where they interrogate you and eventually puts you in a live lineup, and she picks you the person remember whose picture she saw but did not identify two days earlier. And now the number of assailing goes from three to four. Now you were the only person who appeared in both the

photo and live lineups. And we know that type of suggestive technique plays psychological tricks on anybody, right, if you see the same person over and over again, your brain will start to adjust, and people can be easily influenced by this type of manipulation. And this is not just me saying it. It's been proven over and over again in countless studies. So her account was altered to make

room for four assailants. Yet the male employee only viewed the live lineup, and of course he did not identify you, and he was the one who was not blindfolded, and he maintained that there were only three assailants. And of course there was exactly zero physical evidence pointing to you because you weren't freaking there, but the other three guys had all left fingerprints and other evidence at the scene.

I mean, I don't know what the hell these detectives thought they were doing, but it definitely wasn't in the interest of justice, especially not to you, a sixteen year old boy at the time. You know, it took me to the prison. They smacked me around, asked me questions over and over and over that I really didn't have any answer to. I would telling me I really didn't know nothing, and they smacked me around. It took me to the line of room. They put me in there

and claimed I got picked out. I didn't know what to do or what to say other than what I was already saying. I was really like an empty vessel at that moment that was just being done with whatever that authority felt was appropriate to try to resolve a nasty case, and that became a nightmare. This episode is underwritten by a i G, a leading global insurance company, and by Accenture, a global professional services company with leading

capabilities in digital, cloud and security. Working to reform the criminal justice system is a key pillar of the ai G pro Bono program, which provides free legal services and other support to many nonprofit organizations and individuals most in need. As part of Accenter's commitment to racial and civil justice. Accenter's Legal Access Program provides pro bono legal services in partnership with more than forty organizations, bringing meaningful change to

people and communities worldwide. There was like fivedollars something like that, and then they finally took me to write as Island. You know. I was scary because all the reputations in the neighborhood, you know, is about people going to right As Island and coming out what I really want to do is just tell anyone that would listen to my story and get them to help me out. But I had no increment of how ugly in and repulse people are by the nate to of sex defense and jail.

So when I got there, the first level of abuse was from the guards, because when you come in there, get your criminal records so they know what you're coming in for. That crime is esteem is one of the most disgusted in prison sex defense period by the civilians, by the criminals, even the dirt bag, you know, so me having that title automatically it started off with abuse. You know, I started to intermingle. I felt that if people understood my situation that they would take my side

and help me out. But they didn't. You know, I just became a target. The gods beat me down. One day on my way back from the mess all. They beat me down to a point where you couldn't even recognize me. Friends that I had that they didn't even know it was me walking through the hallway because my face was so bad. Jesus. I don't know. I don't know how people can behave this way. I mean, the

records Island is a notorious place. It's no place for any human being, much less a kid like you and situation, and you certainly didn't deserve any of this ship to happen to you. So how long Mark were you held in Rikers before the trial? I was a requizan and a belieful approximately one year. So Eddie Vieira and Mark

Smith pled guilty and was sent to prison. But you and your cousin Rob fail James went to trial together, and at that point you still had no idea that he had made this statement naming you as an assailant, a statement that, of course he later recanted. So who represented you? Oh? Man? I had this lawyer named Harry Dusenberry.

He was a straight bows o man. I mean from the way he dressed, his jacket sneezes midway between his wrists and his elbows, his head looking all craziest pants as how waters he just looked like a clown, like a joke. That's ridiculous, yess I out of a movie or something. So okay, So you're represented by this guy who can't even find clothes that fit right much. Let's figure out the law. And he was a public defender, No, he was actually a paid attorney, Like, I don't know

where my parents got this guy from. He didn't really communicate it with me at all, and the relationship was not good. They came to a point where he was charging my family seven thousand dollars. My grandmother had to work give the money to my mother to give to him. So it came to a point where where the payment was supposed to be done, he was claiming that he was still short two thousand dollars and if he didn't get it, my case is gonna full apart. Mark, did

he visit you in prison? Did he prepare for the case at all? He navicated prison and visit me. I would see him when I go to the courtroom in the back of the courtroom and the holding pins. So that trial, your grandmother was called to the stand in your defense, and she testified that you were home with her on the night of the crime. But no one seemed to care about that. You know, it's so easy for them to disparage her as being willing to lie

for her grandson. Then, of course, the female victim who had been pressured into changing her memory, right of three assailants changing get to four, she was called to identify you, but as we know, she was also blindfolded throughout most of this incident and repeatedly stated that she couldn't remember what happened. Meanwhile, the other victim in this case maintained still that there were only three assailants and did not

identify you as one of those assailants. So for a fleeting moment, this kind of looked like it might have gone your way, which would have been the right way, of course, But then this statement from your own cousin and co defendant, Raphael James, came to light and sealed your faith. My co defender, Raphael Jays, they say that he made a statement when he was questioned, and in his statement they asked him who was all there, and he said Eddie Vieira, he said Mark Smith. And he

said and my cousin, Mark. You know, this is my cousin. This is a blood relative, and we're talking about some as serious as a race. So I guess even though it was all those in the cases, that it wasn't me. I think it's because of the ugly and nasty nature the case that made a lot of people just become blinded to the truth, an act that in a manner disregarded truth. Now we know that he later recanted this statement and excluded you from the crime, but at this

point you were basically doomed. I mean, it arguably all comes down to him. Had he never told detectives that spiteful lie to begin with, they would have never been any motivation for them to obtain that corrupted I d or to basically coerce the victims to change the number of assailants from three to four. But of course that's not how this went. I was really depressed at that whole thing. I was just waiting fit to be oval, but I wasn't really listening when the victim pointed at

me and actually said that I rape it. That told to me, and it was hardbreaking to me because seeing the victim for the very first time up on the stand. The store that the crime took place in is a restaurant that as a kid, me and my female cousins were going that store and play in the playground area, So I saw the person before, but I never said anything to the female in my life. But one of the things that I noticed was that she was very beautiful.

She had a very very bright aura to herself. And when I actually seen her for the first time in that courtroom, up on that and that broke my heart because in my head I was thinking to myself about my co defendive rapper. James said right next that, hold up, you know that I know that girl that they used to tease me about being infatuated me. I can't really explain it to was like, he just brokes up in me. I started crying because someone that in my childhood timeline

who's pass that our cused that I was infatuated. It ended up being the very source that's condemned me. And it's because of my cousin. That is a lot. Man, That is heavy. Right. This whole thing would be hard enough for anybody to process or or deal with without all the those other factors mixed in. So there you are you. I mean, you had no shot of getting justice in this scenario whatsoever. And the trial, of course lasted only two days, right, two days for man's life.

So mark the moment that the verdict was read. Do you even remember what that was like? No, man, I cried, I broke down. I was trying to tell the judge for the very last time I wasn't there I told her that my cousin lied on me. I learned everything about the case and everything as I was going through

the process. I didn't even know he made a statement dragging me in, and it devastated me of travel because I had to sit next to this person that throughout the whole trial until that statement came out, he was acting on nice and like he was concerned and telling me don't worry, I'm gonna beat it and blah blah blah blah. Ne when the statement come out showing that he pulled me into it, I couldn't believe that. Yeah,

that just as another layer of horror to this whole scenario. So, okay, so you're convicted, you're taken away, sentenced to nineteen to fifty seven years in prison. These numbers couldn't even have made any sense to you much longer than you have been alive at this point in time. Right, But we know that in these cases, when you come up for parole, if you don't admit guilt, the chance of you getting

out on a crime like this is virtually nothing. So it's really effectively a life sentence that they gave you at this point in time, Right, So what happens next? And how did you survive this entire ordeal? Which prisons were you win? And how did you find the strength

to survive this impossible situation? You know, I wasn't just about all the max is in New York State, And in spite of the harsh criticism and stigma that I had to carry for all those years, I would admit that they were prisons where I actually was able to find peace. There was prisoners, you know, who had great influence, who was actually able to put the break on a out of the fund up I was going through in

there because they gave me the benefit of doubt. I met people that encouraged me just based on hearing me speak. It was peaceful moments where I was able to tap into my intellectual abilities. I was able to get education. I got my g D and there got my barber certificate. In there. Then I spent a lot of time in solitary confinement where no one can get to me, even to sell by yourself. And I embraced those moments where to another person's solitary confinement may be held to me.

It was refused, it was silace, it was peace. I've heard other people talk about that. Can of us who haven't been through it can imagine any of this. But was there a lowest point while you were in prison where you actually, you know, we're on the virtual giving up hope. And there came a point where I was about to commit suicide. My mind went through all the things that life has to offer. I actually ruled myself

out of the picture. What happened if I was no longer here, Yeah, there would be a little bit of the emotions, There'll be a little bit of this, they'd be a little bit of that. But just like all the people I knew, after a while, everything just passes on. So somehow I got it all, listened to my ad and said that, you know, it's a waste of time of me even hanging out, cause it seemed like I cursed God out, I ripped the Bible up. You know, I believe that it was no truth for no one

because no one was accepting my truth. It was only making things harder for me. I never thought I was coming out because even though I completed my minimum and I went to parole, they wanted to know the truth, and my truth and them was a lot. So I was never getting out there and they know better what good behaviors I didn't tell those good behaviors was not getting me up. It was like situation I go. So

you appeal the conviction in but it's denied. You filed a petition for a bit of habeas corpus, seeking a new trial, based in part on a statement from Raphael James that you weren't involved in the crime. But the petition is denied. Eventually, Eddie Vieira, Mark Smith, and your cousin Raphael James, they're all released on parole, but you aren't released because the state, the Parole Board, as usual, they wanted to hear you admit your guilt to this

crime you didn't commit. They wanted to hear you basically gravel and you wouldn't do it because you didn't do the crime. So, okay, tell me about how Nina Morrison and the Innocence Project got involved in your case and what happened next. So I was going to low Library or Research and I got a bunch of organizations that responded to claims of innocent and I wrote all of them. A couple of them wrote me back, told me I

was in another state. They really didn't have jurisdiction. It was jurisdictional issues, and you know, did not I believe it was. In two thousand nine, I got a letter from the innocent, probably in the Morrison, telling me that they're gonna help me. And I was a solitary confinement when I got that letter that let him made me feel so good because it just pointed out all the different reasons why they believe I was in the right.

So I was able to take that letter as a badge of honor and show it to people in their security wise and civilian wise, and and make wise that even if you don't believe my own words, look there's people who actually believe. You know, those letters from her and that whole turning point right there was great to me. But then it this took so long. I didn't think I was gonna come out anyway, because then she told me that they couldn't find a forensic evidence. That's what

they was waiting for for years. And then when they told me that they couldn't find it it was lost in some laboratory that was destroyed by Hurricane Sandy, I was crushed. I just started going in about how the facts was in the record is right, there. What the

hell is they looking for? Is right? It? So Nina Morrison requests an investigation from the Brooklyn Conviction Review Unit, which they carried out, and as Sire, you concluded that the identification process was while it was chest absolute nonsense right, it had serious problems, taking into account three months had passed between the crime and the lineup, that after being through a traumatic event like that blindfolded, that the victim viewed the line up after having seen your picture, which

is obviously really suggestive. I mean that could contaminate anybody's memory. And of course all three of the actual culprits, your cousin add A Bieira and Mark Smith all said that you had nothing to do with it. They put a lot of energy in and they came back with evidence that was consistent with my claim, with what my code of finer Raffle James claimed at the VR and Mark Smith, both, according to the investigation, gave up statements that was thorough

and exonerated me. Maybe one decided to just tell the truth in the and so all these things, put together, with all the different errors that already existed, paved the way for me to be exonerated. So that brings us to December twenty, two thousand seventeen, which is exactly thirty

years after the initial horrendous crime took place. You're joined by Barry Shack, Nina Morrison, and then also the people leading the cru at that time, which was Mark Hale and Lisa Perlman, and King's County District Attorney Eric Gonzalez, who was sitting in the front row, said that you're wrongful conviction and this is a direct quote. Happened because little was known back then about memory retention and retrieval

and their effect on eyeways identification end quote. The case was finally dismissed with the consent of prosecutors, along with a conviction for possession of contraband that occurred after you were incarcerated. So then there you were December twenty, two thousand seventeen. You're finally freed. Can you tell me about that day? Like, what the what the how was going

through your mind? Prior to me coming out? I had to go from this prison to that prison, and interestingly, one of those trips led me back to Riker Zigna where it all started. I thought occurred to me the day that I left Ranker Zion that I was convicted

and depressed and thought my life was over. When I was going over that bridge to leave Rika Zion to go to Upstate facility, I said to myself as that bus was going over bridge, I'm gonna leave my spirit right here and I don't know when, but someday I'll be back for you, because I don't want you to

go with me. And the interesting thing is that on the day that I was leaving to go to court to come home, at that very moment, as the bus was on the bridge, I remembered those same words, and it was like it was just this suspended wait for me. I just wholesome at that every moment that I received what I left. I went to court, everybody was there, you know, people seeing the past, family members, you know, loved ones. I was going through all kinds of motions.

I got up in front of the court and I made a statement, I wish I was the hero to save that girl, because on that day, you know, she really needed one, but I wasn't there and I couldn't help out. I am so afraid now about how easy a person could lie, and the more ugly the lies, the more people tend to believe is the truth. But sometimes I worry about the people of jail that didn't get a chance to prove their innocence and died because this whole new momentum of criminal justice reform is just

when in history hasn't been that way. So therefore a whole lot of injustice was always happening. People was going in there and dying and not coming out. Man. I could have been one of those people. Man, So you know, it's scary how destructive a lie could be. The truth is everything, man. I learned how to understand that and respect that, so you're at least, but then you're immediately facing something else you've been working for its full citizenship,

but your conviction and put all that in jeopardy. Right before I got exonerated, I was scheduled to be deported. My green card was revoked, and I was up to the parole board to release me into the hands of Ice, and from there was straight on the plane, straight back

to Guyana. But in the course of me regaining my exoneration and ultimately being innocent, and so now I'm going through the process of getting my naturalization, it's just a matter of me maintaining focused keeping a good behavior, you know, and I believe citizenship is important to that because it will put me in a better position to say and do a lot and maybe even into into duors that I would otherwise not be able to. Well. I think this country owes you a hell of a lot more

than just citizenship. And I'm so glad that the Immigration Justice Clinic was able to prevent your deportation, where Immigration and Customs Enforcement inform your lawyers that because all your criminal convictions were returned, they wouldn't attempt to detain or deport you, and you were free to seek citizenship and remain here with your family. And you also have a book coming out soon, is that right? The Book of

School The Awakening Process, a self empowerment journey. That's beautiful, Mark, And we'll put links to that, you know where you can purchase the book and all that stuff in our bio. So now here we come to closing arguments, which is my favorite part of the show, and I just want to thank you Mark for coming here, getting on the mic and sharing your story. And so how this works is I'm going to turn my microphone off, but I'm just gonna kick back in my chair and just listen.

So whatever you feel is left to say, the mic is yours, you know, to WoT my anxiety experience, you know, looking back at it, not from my hindsight, and you know, taking into account all the dysfunctions as going on in the world, it thrives and capitalizes and create, you know, livabool conditions for other people to benefit from. So now the words at a point where they need that in order to benefit I thought about this while I was in prison. No crown, no cops, no officers, no facility,

all the different contracts that's connected to that. It's tons and tons of family that will become impoverished if there was to remove the element of crime, so capitalizing off of it, which is creating prisons. And don't get me wrong, I learned that also prisons or structure, if a person want to change, they can change for the better. But the being that the justice system not that it needs

these things in order to function properly. I think it's an abuse of that justice that the measured by wishes treats the people who are caught up in these systems. Is it's cruel and unusual. They're giving out sentences that's impossible for human It only lives up to seventy five years to complete triple life two hundred years, three hundred years.

It shows that the value that people have been told you Lorso justice needs to become more sensitive to that because at the end of the day of the justice system is there to correct and fix people and put them back in the position of function in a way that they like. Then they shouldn't be so terminal, they shouldn't be so extreme. They shouldn't establish means on which this goal of correction becomes impossible. Bad is always gonna be, but the extreme to rich bad is punished. That right then,

is something that the justice system needs to correct. And the reason why I believe ultimately they will fall in shot because when it comes to the truth, they are not embracing that truth and it trickles all the way down to the criminals, you know. So the issue is the truth. We have to learn how to overall embrace the significance and the importance of truth, because if we ultimately lose that, man, then the people at the bottom

is no different from the people at the top. And if that's the case, then I don't know what to say about that. Hopefully someone would hear. Hopefully someone would be sensitive enough to acknowledge the truth of these things and make the change it's necessary. That's my hope. Thank you for listening to Wrongful Conviction. I'd like to thank our production team Connor Hall, Justin Golden, Jeff Clyburne, and

Kevin Wardis with research by Lila Robinson. The music in this production was supplied by three time OSCAR nominated composer Jay Ralph. Be sure to follow us on Instagram at Wrongful Conviction, on Facebook at Wrongful Conviction podcast, and on Twitter at wrong Conviction, as well as at Lava for Good.

On all three platforms, you can also follow me on both TikTok and Instagram at It's Jason flop ronvul Conviction is the production of Lava for Good Podcasts and association with Signal Company Number one