#338 Jason Flom with Dewayne Dunn

At ten pm on September third, two thousand and eight, forty six year old Dwayne Done returned to his Elkhart, Indiana apartment. He joined his girlfriend, Leitha Simms and their next door neighbor, sixty year old Angel Torres, who were having a few beers. The men's friendly conversation eventually turned

I grew up in Annapolis, went to George Washington High School and liked it, playing football, fishing, just stuff like that. Then I came to Elkhart later after I graduated and come up to Elkhart to work at the jobs. Back then, you can quit a job and go get a job the same day.

So you were working in the RV industry.

Yeah, Rby trailers tripping and receiving all that Forkliffe. I used to move those side walls for RB's, the big Rby's used to move the walls, the roof and the floors, all that. Just working and raising my family.

Yep, you and your girlfriend Lea the Sims were raising two kids. And so in two thousand and eight, you're forty six years old and you're living in an apartment building at Elkhart and Angel Torre has lived in the apartment next door where both of your second story apartments shared a deck and the same rickety set of stairs leading up to or down from it.

That's right. It's a normal stairs, like say if you're going up to a second floor apartment. But the railing was loose wooden stairs, and you know, we was always putting something on it because we were staring for the little kids when they were up there, that they were going to fall through the railing. So I had get some other kind of fencing to put up through there, and the metal poles were broke.

Sounds pretty dicey, but okay, so you were you two guys friends?

Oh yeah, well, we used to hang out, sit out, on the porch, drink beer. Sometime I'll have cookouts. He would come over sometime. He would cook come over, just doing navally.

Things okay, and so on this particular night, the night of September thirty, two thousand and eight, what happened.

Went out to walk the dog and came back. It was it was in the evening. It was late, probably around ten, and for some reason I went over his house. And I don't know if he was just drunk or wasn't. He got upset, got mad and asked me to leave. So I left, and then he went to go get his baseball bat of something. We tussled a little while and I left went in the house. For some reason, I just came back out on the porch, and I guess he seen me. He comes out on the porch,

And Willie is Leada's son, a teenager at the time, who also cased by the name of Jamar. So then what happened.

Me and him walked down the stairs, went around his body and we stood on the street and I checked on him a couple of times, and then I would walk to the edge of the street to see if the police were coming. One police offer came and kept going, maybe another half a minute or so later. Then one come up to side street. He stopped and we waved

So when the police arrived at the scene, The paramedics are called and mister Torres is taken to the hospital for treatment. Some investigators from the police department arrive at the scene, They take photos, they collect evidence. So he was very severely injured and was taken off life support a couple of days after he was taken to the hospital.

Let's talk about that blood spatter. From what I've read about your case, the state's theory eventually became that Dwayne had beaten him with an unknown object after the fall, and there were what were categorized as cast off patterns on surrounding objects and surfaces from the alleged repeated swings

They found a little bit of blood on Duayne's shoe and a little bit of blood on the inside of the shorts that you were wearing. And there was no doubt that Dwayne had been at the bottom of the staircase trying to help mister Torres, and mister Torres was bleeding at that time, so if blood ended up on Dwayne, that would not have been surprising.

So not only is that blood easily explainable, but so are the spatter patterns. And as it turns out, while Angel Torres's blood was in fact pooling on the ground, quite a few people had trampled through the scene.

Yeah, the paramedics walked through it. All the police were in it. They took the baseball battis and picked it up and leaned it up against the car.

And the bat was the only freaking thing they ever found. As we mentioned, it was under his body with no spatter, and a thorough search was conducted. There were no other implements on the scene. So anyway, the police brought you in for questioning.

The first two detectives that were on the case. They kept me down there, and they went to every place I told them I went. They went to go check. Then they came back and they said all right. Then they came back the next day. The clothes. They put it all in bags, and they said, well, we're going to go send this to the lab and test it. I said, no problem.

And as we mentioned, there was a droplet of Angel's blood discovered on your shoe and on the inside leg of your shorts, which was consistent with you having entered the scene having tried to help your friend, but definitely not consistent with multiple swings of a blunt object and blood flying everywhere. In fact, you were the only one, ironically, that was hit with a blunt object.

When they took Dwayne in for questioning, they took photographs of his body and they found injuries where Dwayne had been hit by the baseball bat by mister Torres. They found clear evidence that he had been struck at least several times. Everything they found at the scene in terms of the physical evidence, was matching up with what Dwayne and Letha and Jamar were saying that happened.

Now, the police had also questioned Letha and her son, who were the only two witnesses to what happened. What did they tell the police?

Nothing that Dwayne ever touched them, That that was what was said. They investigated for a while. Look, I say, maybe thirty forty days later, maybe two months, the two detectives came back to my house one day. I said, mister dumfar as we concerned, this case is closed because we can't find anything.

I said, all right, right at this point, Letha and Jami saying that you hadn't touched him, that they had heard him fall down the stairs, and had come rushing out to see what the commotion was and hadn't witnessed any beating. After that, even the autopsy hadn't ruled that the cause of death was homicide, but rather the cause of death was deemed uncertain. So for all of the reasons I just mentioned, signs pointed clearly to an unfortunate accident.

I say, maybe six months after that, she put us somebody else in the case. He brings me downtown and we.

Saw the same thing in Andy Royer, Atlanta Canan's case, where after their case went cold, A new detective was assigned to close it, and again, just like Andy, they tried to get a confession out of you.

He's the one that started pushing the issue. Are you hitting you did this? You did that? Just you know you kicked him? You did that? I said, man, I don't know what you're talking about. I ain't did nothing. He said, well, what if we got a witness to say, is that you kicked him? I said, well, your witness is lying. He said, well today you're going home, he said, but I want you to know it. We're still owing this.

Now they had enough to get an arrest warrant, but they needed to find some way to support what they knew was a shaky and patently false statement. I mean Letha eventually went on to RecA the trial. So now we see another move that we've seen before in Elkhart, in Andy Royer's case, when the Indiana Police Lab wasn't giving Vicky Becker the fingerprint analysis that she wanted, so she tapped fingerprint analysis, knowing fingerprint analysis fraud David Chapman

He said it was a homicide, but all he ever seen was the pictures. He never looked at the body or anything.

Doctor Wagner agreed that the cause of death was blunt for its trauma and that mister Torres had died as a result of skull fractures and other injuries. Where he disagreed with doctor Trnka is that whereas doctor Trenka said that the manner of death couldn't be determined because he didn't know whether it was a fall or whether mister Torres had been injured at the bottom of the staircase. Doctor Wagner was certain that mister Torres had been injured

But when I kept trying to tell them and explain to him that when he slipped, he tumbled at least twice, he flipped head over foot at least twice before he hit the ground.

I mean mister Torres suffered severe injuries. There was no doubt about that. But there was an explanation, There was a scientific, medical explanation for why those injuries were so serious, and they were due to the condition of mister Torres.

Dwayne, did you know now they had what they needed to get a conviction.

Yeah. I remember the morning that they came to the door. I got ready to go to work and uh knot came on the door. My brother went and got it. He said. The police come to the door and they said, a Dwayne done here. He said, Bro, they looking for you. I said, open the door, let him in. I ain't dead none. So he came to the door. He said you Dwayne. He said, well, I need you to step outside. Said we got a warrant for your arrest. I said, a

So you were charged with first degree murder and awaited trial in jail for nine long months, and you were assigned Cliff Williams, the chief public defender for Elkhart County.

I don't think much of anything was done for Dwayne in terms of investigation prior to going to trial, and in fact, Cliff Williams, there's a lot he could have done that he did not do.

The trial started on a Monday. He came to see me on that Friday. This was one of only two times he came to see me the whole time I was in the jail. And then he was telling tell me that he's going to prepare over the weekend, and he had another attorney with him. She was as an assistant. I don't remember her name, but she was there. So we were talking and he was talking about, well, the state's going to have experts. We're gonna let them talk.

God, We're going to take a quick break and we'll be right back. The Pacers Foundation is a proud supporter of this episode of Rawful Conviction and of the Last Mile organization, which provides business and tech training to help incarcerated individuals successfully and permanently reenter the workforce. The Pacers Foundation is committed to improving the of Hoosiers across Indiana, supporting organizations that are dedicated primarily to helping young people

Dean Marx is a blood spatter expert, and he testified that there were numerous areas of blood spatter at the scene and that's some of that blood spatter had been caused by cast off, meaning that there was an object that had blood on it that had been swung, and that the blood had been cast off of this object and landed on different surfaces side of the building, a car, and that indicated that mister Torres had been killed with a blunt object and that the blood spatter at the

And as we now know, blood spatter analysis has been totally debunked as what it is, which is junk science. It's not science at all. In fact, we did a deep dive into this kind of quote unquote evidence and testimony in our podcast Wrongful Conviction Junk Science, which of

And you have to keep in mind we talked about this previously, but at the scene, there are pools of blood near mister Torres's body, and multiple people are stepping in these pools and they're causing blood to splash, They're getting blood on their shoes, which is then being cast off as they walk. Numerous people, paramedics, police officers, maybe even Dwayne when he was trying to help mister Torres

And unfortunately, most people serviana jury are going to be unaware that this so called expert was merely jumping to conclusions and not ruling out all of these other possibilities. Instead, this expert was only an expert in testifying or test the lying. Let's call it what it is, to whatever the state's theory was, and it'll become clear that Wagner was no different. Yet, this really was all they had against the word of what, unfortunately can be considered two

Willie testified that he had seen mister Torres go after Dwayne with the baseball bat, and that Dwayne was defending himself, and that during this struggle, mister Torres lost his balance and fell backwards down the steps, and as he was falling, his back hit the banister of the steps, and he sort of flipped over and landed on the pavement at the bottom of the staircase. Leitha testified that she heard

And not only did they corroborate Dwayne's verdic of events, but also Leva testified that the detective had bullied her into saying Dwayne was guilty just in order to get the arrest warrant. And Cliff Williams did and back point that out.

Yeah, So he said, now, you said, the detective that forced you and made you say that, is he here? And she said yeah, and she pointed him out. But the jury, I guess they just overlooked it.

So it appears mister William's efforts were just not enough.

You have two lay people who were not scientists, testifying about what they saw, and the state has two experts with all sorts of degrees and training going to testify that this was a homicide. You can't take the risk of the jury believing the experts over the lay people. You have to prepare the case such that you have your own experts. Then you can combine the eyewitness testimony with the expert testimony and have a full defense, and the only party that had expert testimony was the state.

And unfortunately he was facing Vicky Becker, who was willing to go even farther than that.

There was a line that the prosecutor used in their closing argument to the jury in which they were referring to Litha and Jamar and their testimonies, and the prosecutor said to the jury, you don't find swans in a sewer.

Wow, not only had one of your friends died, but now you your girlfriend, life partner, and young Willie. All black people were being called by this white prosecutor human waste, certainly not swans in her telling, white as the driven snow. And she said this just as the jury was sent out to deliberate. So what was it like when they came back in.

Well, at first I kind of looked at him, and then I kind of had that feeling like, man, they getting ready to come back with a guilty verty. They sentenced me to fifty eight years, first time ever been in prison, almost fifty years old. Now I'm here, I am on my way to prison, and I couldn't wonder what my mother was thinking, my kids are thinking. I mean, I mean, and they talked about be bad on TV the news. I mean, it's like I was someone a murderer.

But you didn't take this lying down. From what I understand, just like on the outside, you went to work. You're a worker, that's what you've always done, and now you had your life at stake.

So I had to learn how to do the law work, learn how to look up, how to look up cases, because I couldn't let that go. I kept thinking in my mind, man, I can't let them get away with this. You know this can't happen like this. So I just went to work. I had an attorney in mister Walker. She did the direct appeal, but she already told me that if you don't have something blunt, it just turns around, it's going to, you know, smack them in the face. That they're going to shoot that down. And they did.

And it's worth noting that the hearing was held in front of the same judge, Terry Shoemaker. So now the appeal moved on from direct appeal to state post conviction, and Dwaine, you were working on your own at that point, filing your own motions before John got involved.

So my best issue was there expert witness. Why didn't I have an expert witness? And then the jury to me, it wasn't a fair jury. Now I'm a black man, Neil cart Why any black jewors? There was forty nine prospective jurors and there was only one black juror. When they got to the black juror, Shoemaker struck him down, the judge himself because he said he knew him when he was a prosecutor. So now I'm looking up there me, I'm like, man, this can't be right. It can't be fair.

And while that is a very important issue, one of the crux of so much of the injustice in our system, it can be very difficult to get traction in court rather than the ineffectiveness of your trial counsel, which John latched onto when the case fell on his desk. And John finally did what your trial attorney simply did not, which was to look for a forensic pathologist who was not part of the Elkhart machine to review the case.

And I found someone, a forensic pathologist by the name of doctor Thomas Sosio. He was unequivocal that all of the injuries suffered by mister Torres had been caused by a fall down the steps. He knew from the witness testimony that there had been an altercation. He didn't know if mister Torres had lost his balance and fallen down the steps. He didn't know if mister Torres had been pushed down the steps. But he knew that the injuries that mister Torres suffered had been caused by the fall,

In addition to that, though, there were even more reasons, which we mentioned earlier, that the States expert doctor Wagner hadn't considered, or just you know, put blinders on and ignored.

The level of alcohol that was in mister Torres' system. The alcoholism, long term had made mister Torres susceptible to severe injuries. It had caused osteoporosis, which made his bones more susceptible to breaking. It had caused his liver to be enlarged and more susceptible to damage. There was only one laceration on the skull, which is consistent with the fall. If mister Torres had been beat with the bat, doctor Sosio would have expected to see more lacerations on the skull.

So you guys were able to get an evidentiary hearing. You got an expert whose summation destroyed the state's case. And by now, of course, it's all the way up to twenty seventeen, and blood spatter analysis had been fully debunked and exposed as a junk science, and Judge Shoemaker had retired, so he was out of the way.

The new judge who had been elected to take Judge Shoemaker's place, had been a public defender in prior practice, and so I was cautiously optimistic that the new judge was going to give us a fair shake. But when we arrived at the hearing date, the new judge was away at the new judge training session, and so, much to my surprise, the hearing starts, court is called the order and Judge Shoemaker walks out from the chambers and

Yeah, unpleasant to say the least. I mean, he ruled that you failed to establish that this new evidence would have changed the outcome and trial, and the Indiana Court of Appeals upheld the decision, even though this testimony refuted the state's.

Case during the trial. There was no time that they hurt anything like that. They were always kept hearing beating, beating, beating, beating. And the thing that we needed, all we needed was one juror. So who's to say what one juror would have said?

Right?

So, the question is not does this new evidence prove that the jury would have acquitted Dwayne? The question is whether it's there's a reasonable probability that this evidence would have made a difference to at least one juror. So Judge Shoemaker and the Indiana Court of Appeals were applying a much more stringent standard than what the law calls for.

Not only that, but Shoemaker also stuck his head right in the sand when Cliff Williams took the stand to admit his ineffectiveness.

Cliff Williams was still with us at the time that we presented our case to Judge Shoemaker, and he testified that he never deposed the state's experts, He never tried to consult with an expert of his own, and he didn't have any reasons for that. It wasn't a matter of strategy, it was just something that he had overlooked,

So now you had to file your federal haby's appeal in twenty eighteen, and you finally didn't have to deal with Shoemaker anymore.

I said, well, maybe we can get a break now now that we're not in front of him. It's out of his court and it's out of Elkhart period.

And what you have to remember is that Dwayne was on his own. I don't practice in federal courts. Dwayne was not represented by an attorney. He was representing himself, and his federal habeas petition was dismissed as untimely. Dwayne by himself, got it back on track, got his petition back in front of district court judge. Then, working by himself, he convinces the judge that he's entitled to a new trial, that the Indiana courts have got it wrong. He's not

This brings us up to December of twenty twenty and you're going up in front of Judge Philip Simon. Judge Simon refused the case. Everything you brought up in your appeal and all the ways the trial went wrong, which are considerable as we've already seen. And then on top of that, he agrees that Judge Shoemaker applied the wrong legal standard when he denied your petition for a new trial.

If you apply the right standard, it's pretty clear that doctor Sosio's testimony there's a reasonable probability it would havemit a difference for the jury.

And it certainly shows that there was in effective assistance of counsel in Dwayne's case. So at this point things were finally starting to look up.

Well, yeah, man, I start to see daylight again. I mean I might, I might have a chance. But then you know, they got to go through the appeal process because they get the same their sade gets the same appeals that we do. So now I'm going my way to the Seventh Circuit and this is where you got three judges. So I didn't know really what to expect there because so when you know I wouldn't know a federal lawyer. That's when Michael took over.

And that would be Michael Hosbrook, director of Indiana University Morror School of Law's Federal Habeas program. And as it happens, he's right here with us today. Michael, it's about time. Welcome. I'm so glad to welcome you to a wrongful conviction.

Thanks Jason.

We also have Alex Dolan, who at the time was one of your law students, I understand, and then went on to become a public defender. Alex, Welcome, Thanks Jason. So let's pick up the story here with you guys. It's twenty twenty and Dwayne is getting ready to file his appeal, the federal Habey's appeal. How did you two get involved?

It was sort of an insight job. I got an RSS feed of everything that's filed in the Southern and Northern districts of Indiana, and I look at them every day. That's that's thirteen hundred filings, but I know which are the habeas cases. And I saw Judge Simon's order granting Dwayne relief and said to myself, well, the state's going to appeal that. And I arranged for the Seventh Circuit to appoint us in the case.

Michael called me not long after the Seventh Circuit had appointed us and he told me, Hey, I have this case and I want you to argue for it. And as we went through it and I was reading everything about Dwayne's case, I remember thinking what an injustice it was, and how frustrated I was, and how at that point he was basically losing every step of the way in the state courts due to some misapplication of the law, misunderstanding of the facts.

From the start, Cliff Williams, Dwayne's trial lawyer, misunderstood the cases being about the bat. As we put in our brief, this case was never about the bat. Then, one of the lines that sticks with me from this case is doctor sozio on Cross saying to me, it's a fall all day.

And if I could just talk about Dean Marx for a second and sort of this category of what they call blood splatter science. Dean Marx himself had actually been involved in another wrongful conviction case of a man named David Cam from southern Indiana who was accused of murdering his wife and his children. Mister Cam had a significant defense.

So Judge Simon absolutely dismantled in his opinion the state's case against Dune and then Alex in the Seventh Circuit. I mean, I cannot tell you how terrific his preparation and presentation this was. He laid out all the pieces of the state's dismantled case and showed the Seventh Circuits

There was one moment where I got to very forcefully say no, no to him misstating a fact. And you know, to me, from the public defender mindset, the best thing that I can ever do for a client is push back when somebody in authority is incorrect or attempting to, you know, violate my client's' rights.

So after Alex gets up in front of this three judge panel arguing all the points that we've been talking about, Dwayne, you tell us what ultimately happens. We win, right, They actually upheld Judge Simon's ruling.

That's right that there should have been another expert witness on our side. The jury should have hurt, you know, something different.

So you've had your victory in the seventh circle. But now they have an opportunity to take this to the US Supreme Court or potentially retry Dwayne if they chose to. And again, this is Vicky Becker. She'd been willing to do a lot, and so they had sixty days to decide or you'd be released, which would have been just before election day twenty twenty two, when Becker was running unopposed, which, by the way, someone needs to do something about that

I think it was Friday afternoon before we were going to go up the following Monday night, and I saw Vicky Becker had filed. Noticed they weren't going to reprosecute him.

So here's two officers come up to Maya door. I'm sitting in a sale. They talking about pack up. I said, pack up for what you got to leave you going? I said, go on where? And they wouldn't say nothing. So I said, well, man, don't you touch nothing in the sale. So I go down talk to the sergeant. I said where am I going? He said you going home? I said what I said? For real? He said, yeah, you've been set free.

So you've only been out since just recently November twenty twenty two. How are things going for you. I understand it's been a little rough finding work.

Well, because that's on my record seeing a lot of jobs out here? Now, is that the decent ones? You got to get background checks. And when they run the background check, the first thing they go they see this sixty year old man that's been all of work for so long, and Danny comes up. He was convicted of murder. So that doesn't look good on the background check.

Well, maybe there's someone out there listening who might have a job for you. What kind of gear are you looking for?

Well, anything in the factory, something, you know, something positive, something to keep me busy right now, just so I can get back on my feet. If they're out there in the Soalbin area, you sure I'll take the help. I'm not too proud to you anyhow.

Great. Well, yeah, if there's anyone out there listening who could put Dwayne onto a job lead, we'd really appreciate it, of course. And you know, one of our listeners whatever avid listeners, and one of our great sponsors is Stephen Simon of the Indiana Pacers Organization he's one of the owners of the team. And Steven, if you're listening, this is a great guy here, you know, and maybe you

I think what I want to say in closing is, again, this should have ended in Judge Shoemaker's court, and the delay and getting Dwayne released is terrible, and obviously we're incredibly happy at it it worked out the end, but in a way it didn't to me.

There are injustices happening in trial courtrooms every day. As somebody who's been at this trial level and has seen what goes on. There might be dozens of people in courtrooms, hundreds of people, thousands of people across the country who are going through this process and are being wrongfully prosecuted ultimately convicted for a crime they didn't commit. It's really

I just want to emphasize that Dwayne deserves all the credit in the world for going into federal court by himself and winning himself a new trial. I have all the admiration and respect for what he did. You know, I have to say that with Judge Simon made his decision and I heard about it, I was thrilled for him, but at the same time, it was sad to me that it had taken so long to get to that point.

First of all, I just like to say thank you, man, just thank you for this time. Thank you for a chance for y'all to give me a chance to say a little bit about what happened. But a lot still needs to be done, man, because there's a lot of guys that are still in prison that it didn't commit a crime, that are just as innocent as I was. And our justice system, man, is it works for those that are capable and able to get the right people

You, thank you for listening to Wrawful Conviction Special thanks to our Wonderful production team Connor hall, Any Chelsea, Jeff Clyburn, and Kevin Watis, with research by Lyla Robinson. The music in this production was supplied by three time OSCAR nominated composer Jay Ralph. Make sure to follow us on Instagram at Wrawful 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