#391 Jason Flom with George Toca

On the night of April twenty third, nineteen eighty four, outside of a convenience store in New Orleans, two young men approached a couple and attempted to rob them at gunpoint. In the struggle that ensued, one of the perpetrator's, seventeen year old Eric Batiste, was shot and killed by his partner. The shooter ran off, and the couple gave a description of the shooter to the police. Eric and his friends

Thank you, Thank you for the faith, for everything, your commitment to the calls of convictions and stuff.

And with George today to help us tell this story is Richard Davis. Richard is the legal director of the Innocence Project of New Orleans, also known as IPNO, one of the most respected innocence organizations, not just in the country but in the world. And I'm really happy Richard to have you here today.

Thank you and thank you for having us all.

So, George, what was your life like growing up? You were just seventeen when this happened, So you're just a kid.

Yes, I came up and a single parent home. My mom but that she had seven kids and we lived in a new all the projects. Never met my father, so it was it was tough. And not having a father there. Just watch my mom's struggle. We didn't have much to eat close the west, it was tough.

You were known as chicking George back Dan, which is kind of where did you get that nickname from?

Was growing up?

Loved animals and we started stealing chickens and people don't give me chickens. I ran away at the kid because my stepdad became abusive to my mom. And so I met a guy land Terrence, and his mother missus Burnt and me. I just went to the house. I ain't won't leave one day and she's like, well, you come on in. So she really bought me clothes, help me go to school and things like that. She was a

You know, but it stuck.

And tell me about your best friend, Eric Batiste. How did you guys meet?

We met in about four to fifth grade, I think at Phillips Weekly School. We met and we just instad became instant France. And we had so much in common, like I said, coming from broken homes and uh, we just we just had like a real bob peer love.

So you and Eric were, as I understand it, pretty well known to the neighborhood police as a couple of young kids who were into these petty crimes. But it turns out that Eric was also getting into much more serious crime, which is what ultimately led his unforse an untimely death and to your tragic, wrongful conviction. Richard, can you tell us what happened on that fateful night of April twenty third, nineteen eighty four.

Yes, So the crime that Georgia was arrested for, it was two young men were seen trying to rob a white couple in the early hours of the morning on a street in New Orleans. It turned into an altercation, and one of the people trying to commit for robbery accidentally shot the person he was with, a young man named Eric Batiste, who was a seventeen year old who

And the officer you're referring to was a local cop named Marlon Defillo.

He and I definitely had a history, you know, coming up in my little Lapeno crime Looks career. The arrest me a field time, I had a few wires out, and so he knew me and Eric best friends, So you know, he's the main reason why my name got implicated in his crime. You know, I didn't do it.

Which should have been obvious as soon as the two victims described the man who had killed Eric Batis to the police.

So they described an assailant who was I think five ten or five eleven and who was older than Eric. George was maybe five five or five six at the time, and he also was a very young looking seventeen year old two and he was significantly smaller both an Eric and the description of the second person.

But even though George didn't fit that description. Officer to Pillow, who had already fixed his sights on George for the murder, completely ignored that fact. And there was something else about George that would have been obvious to the victims had he been the second assailant, yet they never mentioned it when they were showing George's picture in a photo array.

George had extremely prominent gold teeth at the time, like buck teeth, kind of that you could see with his mouth closed. Even and Neve, a witness, described the person that the shooter as having gold teeth. The mugshots, of course, didn't show George's heights, so they didn't know he was smaller, and his gold teeth weren't clear in the photos, and then they made those identifications, and that's their case, and that is the basis for George getting life without parole.

And I just wanted to take a quick second to talk about how terribly unreliable eyewitness identifications can be. Now, anyone can see that George doesn't match the description that these two people gave, and yet they themselves id'd him as the shooter after viewing his photo, Richard, can you plane what might have been going on there?

So as far as we could piece it together. Twenty to thirty years later, they were shown a photo array containing George. Because it was a photo array rather than a live lineup, his height isn't displayed in that and it wouldn't have been apparent to them how distinctive his gold teeth were. And so they make an identification from a photo. I believe it was administered non blind, so by an officer who knew who the suspect was in

So first off, the photos are not clearly displaying the features that excluded George. In addition, it was non blind, when the only way they should ever be done is that the lineup should be administered by somebody who has no knowledge of who the suspects actually are, nor any

And then, as we see in a lot of cases, once they have identified someone from a photo that becomes the person they stick with and find ways to discount all the contradictory evidence.

I mean, had they even cared a tiny bit, they could have looked beyond officer to Fillow's hunch and found truly contradictory evidence. George, after all, had an alibi, Plus there could have been alternative suspects.

Anyone looking at the case knows that the person they're looking for is someone with a connection to Eric Patis, So it's a pretty small universe of people to look at. And George and his girlfriend they had been in a place called the MRV Motel at the time of a crime. They had been with a group of people, including Eric, earlier in the night. They had parted ways about four hours before Eric was killed, and had gone together to the MRV motel rented a room there.

And let's not forget that George was underage. I mean, he wasn't even close to being of age. But apparently at the MRB Motel no things were a little more fast and loose. He didn't necessarily need a credit card or even ID to check in there.

When we investigated the case years later, it is not hard to find a lot of people who knew that that was the motel in the neighborhood you went to when you were underage, because they didn't ask too many questions coming back years later, we even had the priest from the church across the road saying that this was in nuisance business. They were always renting rooms to underage people.

George had no idea what had happened to his best friend until the next.

Day when I got to know that my friend was was cool. I couldn't believe it.

I was just in shot. I was going to the seeing more than the villain.

But you know, my friend mother told me, I don't go down there, GEORDI they might think you had something to do with it. But then the next day my friend of mine, Jul, told me that, George, you want to know that you wanted for Erica's murder. And my life is really just to stop from there. Because when I went home and my mom was like, George, get your stuff a run, I'm like, man, I didn't do it.

I'm not running.

So I always believed that, you know, the justicism was the good guys, you know, the judges and the d's and stuff like that.

With rumors swirling around that the police were looking for him. George thought he'd better go down to the station and tell them he had nothing to do with Eric's murder. But before he was able to do that.

They had a knock on the door and there was Ball in the philot lead new pack hell bent on a recipe, and he'll put my head out in the back, like I got you, George, you know, and you're under the rest of him. I'm like, I didn't do it, man, I didn't kill my best friend.

I wasn't with Eric. I was in a hotel when it helped.

Man, You're like, yeah, well I finally got you, And I'm like the fellow, I didn't do it.

Man.

You know, he was so excited to get me in handcuffs. So when he got me down to the priests and he told her the two detective, this is George right here, you know, and uh, he just throw me to the wolves.

Literally to the freaking wolves. Like Officer de Fello, the precinct detectives were determined to pin Eric's murder on George by whatever means necessary.

And they beat me until I give me confessed. I'm like, I'm not I didn't kill my best friend. I'm not confessing. You know, I didn't do it. I've never killed nobody. I'm not no murder and I didn't kill my friends, so I'm not assigning nothing.

And they beat men be men.

But then after I got your abiavement a while the tech a little bit road. He told me and said, George just.

Exceed, don't fit the description.

But uh, they get your good lawyer, and uh, you figured out working out, you know, working out.

On your home.

This episode is sponsored by marsh mccleannan, the world's leading professional services firm in the areas of risk, strategy and people. It's legal and compliance department provides pro bono legal assistance and other support to underrepresented communities and individuals. Two days after his best friend was killed, George Toko was arrested in charge for a second degree murder. He spent the

I just went to court one Monday. He like, you ready, we're going to try this morning. I'm like, wow, it really and I say it is Eric mother out there is my family.

Nobody would there with my.

Mom, my girlfriend Danielle.

That was it.

I mean, I thin't even I was going to try out that moment for the first green murder, the faith, the depth been.

And unfortunately George was also facing the note glorious Judge Frank Shay.

Frank Shay took pride in how many jury trials he could get through in a day, how fast he can move his cases, not providing any kind of justice.

Some trials in front of Frank Shay went as quickly as get this ninety minute. Yeah you heard that correctly. Over his thirty three year career as a judge in Section G of Louisiana Criminal Court, Louisiana went from thirteenth to second in the nation for incarceration, and since his reign ended, some of the faulty convictions coming out of

George's lawyer had really done very little investigation of the case. And this is not a not a difficult case to investigate it.

Right, Like we talked about earlier, Eric Batisse did this with someone he knew, so there's not a long list of potential suspects. And George's girlfriend Danielle was there to testify that they had parted with Eric about four hours before his death and gone to that infamous MRV motel where it seems everyone in town knew that a very young person could get a room.

But the defense law was not prepared for prosecution, calling the owner, who, of course wants to protect his business, and so I said, no, of course, you do everything by the book. No wonder was young looking as George would ever get to rent room there, Which is I mean going back, we found just everyone from the neighborhood knew that was the motel you can rent room when you're underage.

Well, who knows what else was going on behind the scenes there, Right, it's entirely possible that the cops either threatened the motel owner or that he very well might have faced some sort of charges himself. So for him, it was probably expedient to go ahead and testify to what they wanted him to say, right exactly.

I think that's always at least an employed for it. When when you're running a someple sketchy business in law enforcement comes cooling, you want to make law enforcement happy.

I mean, right off the bat, that would have been a great way to impeach that witness. But George, it just didn't even occur to your attorney. It just didn't even think to raise that on cross examination.

He thought like he thought I was guilted.

He didn't care.

He was so inferior of just Shaye and other people either just scared the object or just doing anything. He didn't have the investigative team.

You know.

He could have simply got the hotel phone records that would exonerate me within thirty days instead of thirty years. He could have got the dinal records for the gold teep. He didn't go get that. He just didn't care.

But then there's a whole other element of this, Richard, which is the victim's family, what was their role in this because they believed throughout in George's innocence, right, I mean that would seem like some powerful testimony.

So I think what we see here is that for police and prosecution, they wanted to treat Eric as a victim so they could use a murder charge against George, how they could get life of utrole against George. That essentially they were only treating Veeric as a victim to the extent that it helped them punish George, and nothing to do with compassion for the family keeping even just like basic professionalism in terms of keeping them informed.

And as a result of that, they weren't even notified of the trial as I understand it against George. That would be powerful for a jury to see the victim's family sitting right behind the accused. I mean, that's going to have an impact on people, right, Yeah.

And I think when they heard the evidence about this older, this older, taller person with son, they you know, they already knew it wasn't George, because they knew George wouldn't like of them if he'd been responsible for Eric's death. But they'd have had, you know, like additional that realising to know it wasn't George. If they known this description, you know they know George, they know Eric. They know George's not the older tool to us and compared to Eric.

So predictably, George, you were convicted of second degree murder and given a mandatory sentence of life in prison without the possibility of parole. This was on April twenty third, nineteen eighty five. But I have to ask how long did the trial take and how long did the jury deliberate?

It was it was a two day trial.

It was it a circus, it was it. It wasn't nothing done right. The judge kept rushing the winner's office. Stands he had a five o'clock appointment to go to I think I go to the golf golf events he had. He had no respect for black people at all. And and then most shocking, he sluck into the jury deliberating rum the second day of trial and directed the jury verdict.

Wait what the he went into the jury room during the deliberations.

He got titler waiting for the jury to come out thereat rum, and he went in there and it's imagine that's what he told me. To kill him out there so he could leave so the track could show that he actually went into the jury rum and discussing took part into the jury deliberation of my trial. So after he came out of there the jury they all agreed

No, I didn't do it.

And I just do believe that God knew and that it was gonna work out for me.

So that's why I just just kept.

Hold on to mount Mount Troop and my faith and uh I began to pass, so you know, and God spoke to me, you know, like like he let me know, like George, get in the position to be to be blessed. You got you gotta start going low live Berry, get out, get out the TV room, and and this depressed state just sitting around crying about stuff that's not gonna change or not. You gotta you gotta start doing something to

Wrote Oprah Winfrey.

I wrote anybody anybody can read talk for help, shall my store? And then I, uh, Calvin came to Lord Liberry when I said, man, I got an innocent product and knew all that.

Richard comes back to you. Now, how did Ipno select George's case? And how do were you able to undo this tragic miscarriage of justice?

I believe Calvin Duncan, another of our clients, recommended it. Who asked Calvin Duncan was very active in our organization

So a really auspicious start with Judge Parker, but still there was truly compelling evidence to support George's innocence claim.

In the course of our investigation, we had found fingerprint lifts where it appeared that the person who had shot Eric had touched the car at the crime scene we filed in two thousand and four, and we're going to move to have these fingerprints examined. We had located with fingerprints and had them moved for safe keeping to the head of property evidence at a Clerk of Court's office at a criminal court at two Lane Abroad on the

So Hurricane Katrina literally washed away one of the greatest hopes for relief in your case. You can't make this stuff up.

When it's when it's say we found it, and they hear that, then I'm like a part print or something he touched the call. I'm like, you know they're gonna show me at were one me and that you know, they don't they don't examinerate me.

So yeah, and they got that phone, go I was it was, I would devastate it. That was the first time I actually.

But there was still a glimmer of hope. EPNO had managed to track down multiple witnesses who had either given affidavids or who had been willing to testify on George's behalf at the original trial, but they were never called by the defense.

They were with the group when they split up at the like the night before the murder, and so they knew that, like George and his girlfriend went one way and Eric and a couple of other people went another way, so they knew who Eric had left with, and lo and behold, it includes a guy called Edison Lierson, who

So how was this evidence received by Judge Parker.

After hearing all these witnesses testify. This is in front of the judge. We had tried and failed to accuse him. He was essentially more aggressive than for prosecuting. And the judge says, I believe your witnesses are liars essentially, so or I don't find them credible. So I'm not even going to consider if you're entitled in utile and I'm going to procedurally by you. So the judge kicked George's case out of court, but.

You were able to appeal that and managed to get Georgia new hearing. And around this time, the US Supreme Court had been making a number of landmark decisions in juvenile justice, including Miller versus Alabama, in which mandatory life without parole sentences were ruled unconstitutional for juveniles.

And of course George was a juvenile and had automatically been given life without parole, so that was a question of whether this was retroactive. And obviously being made eligible for parole, being able to be possibly released is better than nothing for George, but it's not what he deserved. He's innocent, he'd never had a fair trial. But we want to want to shoot for every target we can to try and improve Georgia's situation.

But when IPNO raised Miller versus Alabama as it applies to George's case with the Louisiana Supreme Court, they ruled that the statute did not apply retroactively, which was an issue that the Supreme Court in the United States had yet to reserve.

So we took the issue to the US Supreme Court, and the US Supreme Court actually chose George's case as the one to grant Sergio rari for that they were going to use his case to decide if a ban on automatic juvenile life without parole sentences was retroactive. And we have been lucky enough to get Brian Stevenson of Equal Justice Initiative, who trouble all lists know, is like the best in for business when it comes to this

And New Orleans Parish District Attorney Leon Connezauer's decision here is is pretty telling. I mean, let's face it, clearly he had some trepidation about facing Brian Stevenson and probably getting his ass handed to him before the Supreme Court. But not only that they'd be facing off on a case like Georgia's.

Even amongst anyone who has been sentenced to juvenile life without parole, George was unusually sympathetic. He was innocent the crime and issue, while it was legally met with a different definition of murder, it was an accident and he had, you know, this incredible prison record. So I think looking at that, I think you can understand why a prosecutor who may not want the barn automatic juvenile life about pro to be made automatic, would not want George to be the test case on the issue.

So George, at that point he made the heart wrenching decision to take the sentence reduction, keeping your conviction in place, and on January twenty ninth, twenty fifteen, you were finally released after thirty long, miserable years.

You know, having to take a pleeple's up. I didn't do it in my bedfind I mean it was a double name ya. I thought I'd walk out and victory elect everybody else. But it was good to get out of prism and being able to see my mom, you know, seeing her if a spent the time my mondre she died not like a your other. So that's the audit bright side, because coming home, it was great to be out of jail. It was a great eat some nice food,

But it's important to understand what George was up against. At that time. No one knew how the Supreme Court would have ruled on the retroactivity question. If they had ruled against it, kind of zars plea deal would have been gone and George would have had to continue his appellate fight. If, on the other hand, they'd ruled in favor, George would still be looking at a life sentence, but with parole eligibility as well as a continued fight to

The one recognized that for the first time in clear or that proving your innocence with evidence, even if it wasn't DNA, was a basis to vacating conviction, which was something we never had when we were litigating George's case. And second gave prosecutors for power to essentially propose resolutions to the court that the court could accept, even if that wasn't necessarily a strictly legal right to for thing.

Since the new prosecutor, Jason Williams, had formally represented George as an up and coming defense lawyer, he had to recuse himself and could not propose a resolution in this case.

Fortunately, Judge Campbell appointed a special prosecutor, a guy named Ron Wilson, who you know, had a real understanding of the circumstances of Georgie case, and he's thought, well, the appropriate use for prosecutor's power in this situation is that we should vacate George is guilty plea conviction it was unjust, and that we should dismiss the case against him. This

You know, like, right now, since I've been exonerated, I can sleep, I can dance, I can leave I can look hold my head up, I can look in the mirror, you know, because that's who I am. I'm not a mur I like right now is one big part. I'm always dancing there and laughing, because yeah, that's that's my real proton.

Well, George, you deserve to be laughing. You've been through so much and I know you're going to make the best of everything that's coming up for you. And in fact, you've started your own business, a landscaping business called Royal Horticulture, and I know you talk about it a lot. You just love working outdoors, right, Yeah, I keep.

My dope and and I won't be locked in a whare. I love to be out you know, and is my dream to be successful a landscape company as well as real estate.

Folks, if you're in the New Orleans area and you need some landscaping work done, look up George Toka. We'll have a link to Royalty Horticulture in the bio so you can find them. So with that said, we now turn to the closing of our show, which is called Closing Arguments, and this is the part of the show that first of all, I thank you guys Richard Davis and George Toka, thank you so much for being here

So I guess the thing for me is just seeing the different is made to George, for difference between merely being out of prison, being physically free, and the I guess for want for better expression, spiritual freedom that has come to him with being actually exonerated. And I think that has just been so striking for me. We worked very hard on George's case, a lot of people working on this case over the years, but I, you know, always thought it was not just a shame but the tragedy.

Again.

I like to say in clauding that you know America's you know, one of the greatest countries, well degreed country you know, in the world, and I love love it, but like I said, I know there's some some bad things about our country, and one of them is the you know, the justice system where a lot of the predators and that some of the racist things that still exists.

How our lives are just get destroyed.

Behind some deed a lawyer who who just wanted for their career and not really valued a human aspect to the job. And that would take a young kid at seventeen or whoever age and just destroys life like that and just you know, Cinema Prinden for the rest.

Of his life. I lost a lot.

I don't have any children, never been married, and a lot of the years of my life was going I can't get back, and I struggled with that at the time. But I also gained a lot. And so you know, I realized in my life, I can't live in anger and all that and and be better. That's not who I am, and that's not a good way to live. You know, my mind to it is like Jesus Christ.

Thank you for listening to Wrongful Conviction. You can listen to this and all the Lava for Good podcasts one week early by subscribing to Lava for Good Plus on Apple Podcasts. I want to thank our production team Connor Hall, Andy Chelsea, and Lyla Robinson, as well as my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Clibern. The music in this production was supplied by three time OSCAR

The Boy Burned the Land in the Joy with