#480 Maggie Freleng with Marty Levingston

Marty Livingstone doesn't claim he was an angel.

When he was younger, we was running around doing stupid things, like he was running around. He was running doing doing street stuff, just run around, acting stupid, getting into fights.

He grew up on the streets learning from other kids like him.

So like we called ourselves wanting to be different, little things like different or like trying to form. So I ain't know what the heck we was talking about, So like.

A gang or like a music Like what what do you mean by form?

Something like you know, like form something like you know, like we're trying to like a click, like like a click, like, oh we did we did? Like but we're trying to find We boys, we brothers, a group.

Of friends having each other's back. Marty says he was never part of a gang or commit any serious crimes. He was a young dad getting his degree at the time that his life came crashing in on him. One day he got a phone call from his mom.

I said, mother, what's going on? She said, the US Marshall was here. Now.

As I mentioned, Marty wasn't an angel. He admits that he was familiar with the police. In fact, he had been accused of a shooting before, but that was cleared up. It hadn't been Marty. Normally he wouldn't be too worried, but he says this time his gut told him something was off.

Really on this one, it's like I felt something. It was different, like this one is different. My name is Marty Leviston. I was wrong for the convicted for fifteen years.

From Lava for Good. This is wrongful conviction with Maggie Freeling today. Marty Levingston Marty Livingstone was born on August thirteenth, nineteen eighty four, to Sandra and Marty d. Levingston in Cincinnati, Ohio.

Life wasn't I'm not gonna say life was average. Child, No, I got a it's eight of us WHOA So my mama was my mama six counting me. Then my father had two before then, so I got three brothers and well, three brothers and three sisters. The oldest will be Telicia Evans, Dron Levingston Darlene.

Marty is somewhere in the middle of all the siblings then me. Growing up, Marty says he was a daddy's boy.

My mom used to tell me stories about how she used to be trying to like feed me. Like if she puts some in her mouth and she tried to feed me with it, he I smack it away. No, but she says, soon as my daddy do it, I could eat it. I eat it. So my dad was just like I actually like my dad to come get me when I was seven, six, seven, eight years old and I could just go. I used to go everywhere with them.

So but then Marty's parents split up and his dad moved out.

That's what shows me how powerful my mother or he is because us like she kept us with a roof over our head, kept food on the table, like you know what I'm saying. I don't know how she did it, but I used to sit back and and watch her make miracles happen.

Not only did she make it happen, but Marty remembers lots of good times in his busy home full of love.

Sometimes it'll be out of kids, it'll be probably about it could be good ten of us, ten eleven, twelve of us, because if my cousin's over there, that's counting them too. So oh yeah, so' we be fighting over cereal, fighting over cereal boxes, cookies, video games, like it was just everybody. You know, they could pete in fighting, arguing. But when you look back at it now, it was like that was fun.

Marty says. Life was good. But then in nineteen ninety six, when he was in his teens, his mom moved the family to the Hawaiian Terrace apartment complex in Mount Airy, a neighborhood in the outskirts of Cincinnati, which at the time was dealing with a lot of crime.

That's when I actually start you know, picking up things like, you know, learning things and things like what, oh will the wrong things?

Marty says. He started getting into trouble for things like selling drugs.

I start trying to find myself at that time, Like, you know, my father was away at the time, and so like I'm trying to find you know, where was your dad at the time. My dad was incarcerated.

What was he incarcerated for.

Well, he's incarcerated for you know at that time, was probably have some drug possessions or something.

How did that affect you.

When he left me? Like when he left at that time, like I was hurt. You know, I was hurt, and I'm trying to find myself and and it affected me affected me a lot.

Marty started learning how to be a man from the streets.

I was starting to get taught the wrong things at that time, like you know about just everything about women, by life, by everything period. I was starting to get taught those things like you know, like this how we should do it, This is how we should look at women, This how we should look at people.

At sixteen, Marty had his first kid and went on to have three more. Marty says he was aimless and getting cues from all the wrong people. Back then, stories of neighborhood gangs were all over the local news. Not a story you will see only on five. You know, you used to only hear about gangs like the Crips and.

The MS thirteen Bloods, crips living and hanging out in areas you may least.

Expin information tonight on a local store busted for dealing drugs officers. Marty says he wasn't part of any gang, but he was still involved with groups of kids and young men breaking the law.

Like I'm gonna tell you, like I wasn't no angel. You know, it was idea live a lifestyle, so you couldn't do that in that area. So they end up evicting my mother about it.

There, Marty left the neighborhood, but not the lifestyle. He says. He kept acting foolish into his twenties and eventually made a name for himself with law enforcement.

I had running ins, I had priors, I had I had juvenile record. Yes, I had priors. I was out there in the streets and moving around and stuff like that.

Though in between run ins with the law, Marty spent part of his early twenties trying to get his degree.

I was going to job court. I was going there for to be for business business management.

What would you have wanted to do with business management? What were you thinking?

For real? I ain't know what I was doing. I look back now, I shouldn't have went in there. I should have went and got carpentry or something. But like so, I'm like, I think of business managed, because at that time, everybody that's from the streets be saying business business management.

Putting two and two together business management and Marty's lifestyle, I can kind of guess where he was going with that degree.

So I'm going to Cincinnight job court school at the time, And so my dad had called me and said, I just heard your name on the news, I say for what on the on the on the radio, they say he was looking for you for a shooting.

I said, huh, shooting. This was Marty's first major arrest. It was in two thousand and six that was.

Full tempted murder Forlonius Assault.

Marty was arrested for a drive by shooting at the University of Cincinnati. Two men had been injured, but Marty says he hadn't been involved and the case against him didn't go very far.

The witness that got shot he dated my little sister at the time, and so he even coming there, like, I know who shot me? He ain't shoot me. He was up there. I seen him up there, but he ain't shoot me. And so that case ended up getting dismissed.

Still, Marty was on the police's radar now more than ever. And not long after, Marty was arrested for another shooting, but this time there was no survivor to say it wasn't Marty. On the evening of December twenty eighth, two thousand and seven, two shooters opened fire at the Hawaiian Terraces apartment complex. So do you remember when this happened?

Yes, I remember like yesterday.

Tell me what you remember.

Well, what happened was, So I'm in the house. I'm in the house. I'm on my mother houses. Three days after Christmas, I got my daughter with me. So I'm in. I'm in the house. I was actually laying down because I had a real bad migraine. I received a call by a friend of my friend of mine name Andre. He called me. He said, brother, I heard a lot of gunshots out here. He go outside, he says, ambulance, fire trucks everywhere. I say, wow, what happened? So he

The victim was nineteen year old Michael Grace. According to reports, Grace had been living with his aunt at the Hawaiian Terrorists Apartment Complex. Prosecutor said that the teenager had been trying to escape his former connections to a gang called the Taliband, but on December twenty eighth, that former life caught up with him. Grace was in a car with his friend Carlos Mayo when members of a rival gang allegedly picked a fight with them, which ended in his fatal shooting.

There. So I got up I went in my mother room and I said, Mom, somebody just got killed in Hawaiian Village because we called it Hawaiian Village too. I said, well, man, you know they will try to put that on me.

Remember, Marty used to live at Hawaiian Terrace before his family was evicted. He was connected there.

She said, well, you went out there, you was right here.

But Marty knew his relationship with the streets and the police would work against him.

My name always came up when something happened, even in why I wasn't even being in that area no more, my name still came up.

Why did you think they were going to try and put it on you?

Anytime something happened, they either go questioned me, or pull me over, or do something like that. So I knew that area. I knew either they go try to put this on me, they go come question me, they go do something.

But they didn't, at least not until after the New Year, when a witness named Savannah Sorels appeared.

So she was a young woman who lived in the area, lived in a position where she could see the shooting from a window in her house.

This is Donald Castor.

I'm an attorney and a professor of clinical law at the Ohio Nissance Project at the University of Cincinnati, and I was privileged to be one of Marty's attorneys. In his post conviction.

Proceedings, Donald says that Sorels told police she saw Marty and his co defendant David Johnson kill Michael Grace, and when.

They showed her a picture of Marty and out of David, she said to each that that was them. So Marty and David were charged.

Once in custody, Marty tried to tell the police that he'd been home with his mom and daughter the night of the shooting, that they were making a mistake, just like last time, except this time friends and relatives of Michael Grace were pointing the finger.

Now I have a whole neighborhood that's saying that they think they thinking that I killed their cousin, brother, our friend, whoever. And so that's what made that one different.

And this time detectives had Robert Taylor, a jail house informant.

Robert would come forward to the lead investigator on Marty's case and say that he heard Marty and David talking about the case through the air ducks in the Hamilton County Justice Center.

That's the jail Marty and his co defendant David Johnson were being held in. Robert Taylor claimed that through the air ducks he'd heard Marty admit that he'd killed Grace, that they were members of rival gangs and they were fighting over stolen guns before the shooting. Marty says Taylor was known in the jail as a snake.

They caught him white chocolate. Watch him. He is snitched. He jumping on people's cases. He doing this and doing that.

So Marty stayed away from him, but it didn't matter.

I end up getting the a visit from my attorney and he basically was telling me who they was using against me on my case. And he showed me a picture of him. Said, do you know this guy? I said, that's the jail house snitch that'd be running around here. He's like, well, yeah, they're about to use They want to use him as a witness on your case.

Police had an informant making serious accusations, but over the following months, the rest of their case against Marty seemed to fall apart. At a pre trial hearing, Savannah Sorel's, a key witness, changed her statement.

Savannah came into court and said again, now, I said it with Marty, but I didn't actually see Marty. She said, I saw David.

Remember David was Marty's co defendant.

And I knew that David and Marty hung around together a lot, so I assumed that it was Marty with him, but I didn't actually see who was with David. I could just see that there was somebody with David. And she said that, you know at under oath. In a pre trial court.

Proceede and Carlos Mayo, the person who was with Michael Grace during the shootout, told the authorities that Marty hadn't been there the night of December twenty eighth.

When he testified they was firing and my code defended and they asked him like, okay, did you know do you know more? To he said, well, I know him enough to identify him if I if I seen if he was there, I would have seen him. I would have knew he was there. But no, I ain knew of him until they put him on the news.

This sounds so crazy to me. I feel like there's more people saying he wasn't there than he was there.

There was nobody who said he was there besides.

Robert Taylor, the snitch, right, the snitch who turns out was getting a pretty sweet deal for testifying.

He offered testimony to support the police because he was facing a murder charge. It was the first major offense he had been charged with. It's pretty clear he was scared and didn't want to convicted, and in fact, he got a monster plead deal from the prosecution in that case, was allowed to plead the involuntary manslaughter only did it few years in prison to testify to testify against Marty and others. But Marty was sort of the Marty and David was sort of the big case.

That got him that deal.

But with the pre trial testimony of Sorrels and Mayo in his favor, Marty thought surely the charges against him would be dismissed. But then the judge set a trial date.

I'm like a trial date, Like, I mean, I really about to say the trial and is I got a whole witness getting up here saying and I commit this crime.

Even though it might seem really weak to take to trial.

There was a lot of pressure to get this case solved and resolved because at the time there was an increase, or at least a perceived increase in gun violence in Cincinnati. There was a lot of impetus to put somebody away for this crime.

Amid this climate with fear of violence and constant stories of gangs in the nightly news. Marty went to trial in January of two thousand and nine, prosecuted by Gus Leone and Anne Flanagan. So tell me about trial. So in my notes, I actually don't have any kind of defense. Really did that actually happen? Was there no defense?

Well, so it's it's I'm trying to remember, did help put your family on this an ALTI?

Marty's defense attorney in two thousand and nine was Hal Arenstein.

No, okay, yeah, we talked. I talked to Hall about that, and he was like, you know, putting the putting your family up there, They go, okay, you put your mom's up there. They go your mom? Alaugh, oh you you put your this and that? Like but when I look back now, I'm like, I should have put my mom up there.

So I went up there for you.

No one, no, no one.

There was no defense presented, and that was a pretty common defense perception that juris don't believe alibis from family members.

Sure, but how was he defense without a defense?

So I think the idea, and let me be very clear about this, Hall is a really good attorney. I take no issues with anything that Hal did in this case.

I think the idea that was that this case was just so weak.

From the prosecution's point of view that no jury would convict. And I think that if this case were tried today on that evidence, juries were skeptical enough that they wouldn't. But in two thousand and eight, before there was a little bit of the more sophistication that the jury seemed to have now, and when people in that time were afraid of the perception of increasing gun violence, Marty was convicted.

Sentenced to thirty one years to life for murder, felonious assault, and tampering with evidence.

When they say it guilty, I'll say, I'll say how like, I mean like what, I'm like, I look back, my mom said we'll pill it, and I'm like like wow, So like it it ain't kick in right away because I still ain't know the law. I still I never been to prison before, so I ain't know how nothing was I ain't know how the process is with these appeals and stuff like that, I ain't know. I just ain't know nothing. I was lost in the whole situation.

Shortly after his conviction, while he was still trying to process everything, Marty says, his grandma sent him a passage from the Bible.

Song twenty three The Lord is My Shepherd. Shend me that scripture and she said, baby, she told me, like, you ain't gonna be able to do that without God.

So Marty says, he continued reading the Bible and started going to church.

I need some hope, I needed some faith, I needed some beast.

And he started to reckon with the life he led before prison.

I'm locked up for something I ain't do. But whow I'm locked up? So I had to start looking at looking at that something led up to this, And that's when it got to show in my lifestyle. The lifestyle while I was living lay it up to this. Because if I wan't in the streets, if I wasn't running around saying that don't happen to them, That happened to people like that. But I'm if I wasn't running the streets, my name would it never came up in that at all.

So Marty says he decided he was going to change.

So I'm like, let me, let me get me together, let me let me learn how to be a father. So I started taking classes on dad and I and you know, fatherhood classes don't how to be a father or you know, like even even how to be a husband or how to be a brother, how to be how to beat those and what do it really mean?

Marty put in a ton of work on himself and his case for years. He appealed his case on issues like suggestive witness identification because police had shown Sorels only one photograph instead of a lineup to confirm Marty as the shooter. Plus another witness had come forward claiming that she'd seen the shooting and Marty hadn't been involved. Also, Marty wanted DNA testing on the shell casings found at

So one day I'm sitting up in a bed. It was twenty twelve, and so he said, levis, do you have a visit. So I'm like, I'm like, damn, I wonder who this is. I ain't got no visit set up, Like, I don't know if somebody was coming to visit me. So I'm like, so I'm thinking, I'm like, oh, that must be somebody important. So I went ahead and hurry up put my stuff on.

When Marty got to the visiting room, it was Donald.

So I come in there. He got he gotta he got a missus Donald. He got a look on his face. Mister Donald got a serious look on his face. He you know, I'm coming in here, Like hold on, I know he want he won't playing no games. So I'm like, he coming there, you know, he talking to me. I'll tell him he's going though, he say, he said, give me a few days and I'm gonna talk to somebody. I ain't telling you it's a goal yet, but I'm gonna talk to somebody and just call me Monday and

But meanwhile, Donald couldn't wait to get started.

I came back to the office and I started telling everybody either they got to senizen guy Marty Levingston, and we gotta get him out and here.

So Donald and the Ohio Innocence Project to work on Marty's case for years. They tried to find new evidence to get Marty back in court. Then their break came in twenty twenty one. Because of developments in what's known as touch DNA testing, Donald and his team applied for post conviction testing on all the evidence that hadn't been

Maybe I'll grant it, but I want to have the hearing, and I want to make this state tell us what evidence exists that could be tested.

But that never happened. Before any DNA testing could materialize, prosecutors went back to Marty with a new deal, and.

At that point the prosecution was willing to offer what's called this dark please deal.

So the key to understanding what a dark plea is is when it's offered.

Okay, this is Justice Michael Donnelly.

I presently serve as an Associate Justice on the Ohio Supreme Court, where I've served since two thousand and nineteen.

Justice Donnelly is an expert and a vocal critic of what he calls dark pleas, which are deals prosecutors make behind closed doors with people who claim they've been wrongfully convicted who are looking for a new trial, like Marty.

When you're on the front lines of the system and you see the injustice that occurs as a result of a non transparent system and people being coerced into plea bargains, that should not I think it's an obligation on all judges to speak up.

But he didn't always have dreams of advocating for justice and practicing law. He actually wanted to be a musician.

So the music career didn't work out the way I expected, but I've been able to incorporate my love of music into my life.

In his mid forties, he started a band.

We're called Faith and Whiskey, and our motto is, if you don't have one, you better have the other. We do a lot of benefits, including the Legal Aid benefit here in Cleveland, which is the legal event of the summer. I call it the Jam for Justice.

So you find being a rocker at night Supreme Court judge by day they work well.

Say yeah, Well, my kids think it's cool.

Justice Donnelly says he used law school as a delay tactic to get his music career off the ground. But next thing he knew, he was an assistant county prosecutor and then.

Went into civil litication, practiced a total of twelve years before taking the bench as a trial court judge.

Justice Donnelly was a trial court judge for fourteen years.

So I'm fully aware through my observations during those fourteen years of the coercive nature of plea bargaining as it exists.

In the modern day please or deals where the defense, prosecution and judge come to an agreement on a conviction and sentencing instead of at trial.

And very early on in my career, and what I describe as one of the biggest epiphanies of my career, I began the question the ethics of what takes place in that back room.

He says, judges have outsized power when it comes to backroom negotiations.

There's no objective criteria that judges use to accept or reject a plea bargain. Like sometimes you might be in a judge's back room chambers and that you've come to an agreed sentence with the prosecution and the defense, and the judge might say, I don't agree with that. I think this person has to do five or ten or whatever. And this gets set in the back room and the questions never raise. You know what guides the judge to do that.

Now, when it comes to people like Marty, people have been convicted but claim they're innocent, Justice Donnelly says, the deck is even further stacked against them.

It is very difficult to have the court system look at your case for a second time and reconsider it.

And judges can take their time deciding on a post conviction case.

And the judges sometimes let those motions languish for years. For years, there's no speedy trial or the equivalent of speedy trial rights for innocence claimants.

In Marty's case, it took several rounds before a judge even agreed to allow DNA testing, which could have opened the doors for a brand new trial. But before Marty got a second chance at proving his innocence, the prosecution approached him with a new deal, the dark Plea. Here's Marty's attorney, Donald Caster again.

So what they said is, look, we will support emotion for a new trial, and the basis for the motion of the new trial is just going to be we, the prosecutors, believe that Marty was over sentenced. In exchange, we will expect Marty to plead guilty to involuntary manslaughter. He will be immediately eligible for release and the case will be behind him. And it's a tough thing. I don't you.

Know what was the option if you didn't take.

That, to keep fighting over the DNA evidence, And even if everything fell perfectly into place, it would be another at least couple of years of litigation before we got a new trial order.

At least, Donald says Marty had a tough choice to make.

Marty was was getting anxious. His parents were getting older. Yes, he wanted to see them again. His parents, his kids are growing up without him.

Justice Donnelly says, this is the crux of the dark plea.

Do you want to take the risk of what's behind door number three? You want to take the risk, you can do that, or here's the keys to your jail cell, which one you're gonna take. That's that's exactly what happened.

What's happening.

So I've never criticized anyone for taking the dark plea because it's so unconscionable.

So even though Marty would have to forego the opportunity to prove his innocence, he decided to take the plea.

You know what, I'm gonna gon hit and take it. I know, I'm gonn probably be on parole and I'm just go I'm just get out. I'm just go get out. I'm just gonna get out and prove them wrong and show them wrong. Like nah, I'm I'm no, I was not who y'all who I was not that, So you took it, y'all took it.

On February sixteenth, twenty twenty three, Marty stood in front of Judge Wendy Cross.

So you're nervous, I'm nervous, a heart beating. That's when. That's when she said it's a good day. The judge said that. Judge Cross said it's a good day, and they she said everything that she you know, and she said you will be going home to your family.

Then I just looked up, like, what did anyone like, did you hear anything? Was there a gas for a scream or.

Fab Yeah, they had to quiet down, yes day, Yes you heard. I heard them. It was different than when they said guilty, guilty, it was crying and screaming. This time it was joy.

Dark pleas are a really bittersweet moment for everyone. In fact, when Marty went home finally, I think what Judge Cross said exactly was it's always a good day when.

Justice was done was done.

And that was hard for me to hear because I was sitting in the room and while I was very happy that Marty was going home, it didn't feel to me like justice.

Was happening that day.

That bitter sweet feeling is one Justice Donnelly shares, which is why he's made it his mission to stop the practice of dark please.

This is the way power works in the dark.

If it were up to him, the judge in Marty's case wouldn't have allowed for a backroom deal with the prosecutors. She would have held a hearing out in the open. Let Marty's lawyers prove his case and make the prosecution stand by theirs.

Because when a hearing takes place in an open court where the press contend it can attend and observe, you see the merits or the lack of merits rise or fall to that standard that the innocent advocates are trying to get. Hey, the theory of guilt that was told to the original jury has been completely undermine and then it becomes clear to the judge you have to put the defendant or a new trial or not.

As far as in his own courtroom, Justice Donnelly decided long ago to put all backroom conversations on the record.

That way, everybody's held accountable, the prosecutor of the defense, lawyer and me, the judge.

Justice Donnelly actually coined the phrase dark plea because he says, if you can name it, you can fix it.

If this term were to become commonplace in saying, and you could say, Judge, they want to offer me a dark flea, and the judge could say, no, we're not letting that happen.

Marty was released in February of last year into the arms of his loved ones, and since getting out, Marty he has wasted no time catching up on life.

Everything been great. You know when I first came home, you know, I I got married two months later to my wife, Latoy Elevenston, and we got married April to eighth, and since then, it's just been it been, it been because I'm learning now. So she she, she, we we kind of bump. Here is a lot because I'm I'm still learning. She been out here.

So what's one of the hardest things You're learning?

Patience? Like being patient with things, like being in line for something, or even even like you know, just even dealing with finances and stuff. It's just different little things that I have to learn.

What's what's it like being back with your kids? I mean some of them you really didn't even see them grow up.

I'm starting to learn how important I am and my responsibilities as a man in the house, you know, because you gotta think I'm coming inside of the house with some children that don't don't know me. You ain't grow up with me. So like they gotta learn my space. I gotta learn. I gotta learn what to say. Not they like they learning me too.

Marty works as a stationary steam engineer and has a clothing line with his cousin called Extravagant Culture Department, and he's been attending speaking engagements with Justice Donnelly and Donald at the OIP the Ohio Innocence Project to advocate against wrongful convictions and dark Please. Marty not only considers them colleagues, but family or if.

He been with me all the way through, you know, like just even like if I'm going through something, I could call them for anything, Like I mean, I call him all during the day, like I called him, mister Donald, take some callum. I call anybody from down there and they go pick up to me and it's not fake. If I need to see him, I still go down to the office all the time down on the college. I think I'll come in there more to anybody.

You may be there more than I am.

Yes, so I always go down there and check on everybody. It's my family.

So thank you for listening to Wrongful Conviction with Maggie Freeling. Please support your local innocence organization. You can go to the links in the episode description to see how you can help and to read more about Justice Donnelly's work on Dark Please. This episode was written by me Maggie Freeling, with story editing and mixing by senior producer Rebecca Ibada.