#546 Jason Flom with David Smith

On October sixteenth, twenty fifteen, twenty four year old Courtney Tolliver was struck by a blunt object in her Portage County, Ohio trailer home. After running to the neighbors for help, she was rushed to the hospital and put into a medically induced coma. When she regained consciousness, her memory was unclear. Soon detectives suggested David Smith, a man who had texted her that day, but she said it wasn't David until she was facing her own charges. Then her memory made room.

For that possibility.

This is Wrongful Conviction. Welcome back to Wrongful Conviction, where we returned to Portage County, Ohio. Now, the last time we covered a case out of there was Tyrone Noling and that one lives rent free in my head, and

Welcome back, Yeah, thanks for having me back.

And she's here to help tell the story of the man himself, David Smith. Thank you for joining.

Us, right, thank you. I appreciate you.

And typically we like to hear about our guest lives. You know, before all this insanity came to pass. And with David, that's forty seven years. I mean, he wasn't he wasn't a youngster when he went to prison. But those forty seven years they weren't easy ones, were they.

I was taken from my real parents at the age of six, giving up for adoption. I had eight brothers and sisters, and I went from foster home to group home, foster home to group home, and finally a man picked me up as someone that he wanted as his son. In order for him to adopt me, he had to have a wife, so he married my mother under false tensus for real. Because fast forward, it was a whole lot of abuse in the home, I mean extreme abuse,

So after his mother left him in this man's custody, he found a way to get himself out of that awful situation.

At the age of ten, I warded myself back to the state. We went in to see the judge on some kind of official business dealing with the adoption park, and I told the judge I'm not going back there, and he looked at me and he couldn't figure out why. And I said, I'm just not going back with that man, while he was sitting right next to me. And that day forward, my life began by myself, without me having any kind of guidance or direction. The only thing I knew to do was to survive. It didn't tailed me

And that's where he lived with his girlfriend, Margaret Austin, while both getting his cleaning business off the ground and remaining in touch with friends in Portage County, including the victim in this case, a twenty four year old woman named Portney Tolliver who was also involved in the drug trade.

Nine one one gets a call from a neighbor that Courtney Tolliver is wandering around sort of between trailers and collapses on the ramp of her trailer and and they believe she's muttered something about being hit with a hammer. The police arrive, she is taken by EMS and then life light. She is put into a medically induced coma and during this time the Portage County Sheriff's Office begins

And it was a size six footprint that was inside the blood, a woman's size six shot. The detective said that they didn't step into blood, They didn't do none of that. So whose size six shoot was this?

There was a lock box which someone opened, whoever did this, that was not swabbed or fingerprinted. It was gathered but never used as evidence and has since been lost. There was a laptop that the contents of which were never investigated, that was lost. And she had two cell phones.

Courtney described one cell phone as her family phone and the other as her drug phone, but at the time of trial, the state claimed to only have the records for the family phone, which she had used to text David about a ride to Cleveland.

And so throughout that evening they go back and forth with text about a ride to Cleveland, and throughout the next morning, Dave says, I have a job interview. We know from the location of his cell phone. He goes to a job interview, and then there's text back and forth, and then she drops off the texting and he says, what do you want to do? I'm pulling up and then no response.

But she was text messaging people steal on that other phone when this crime was supposed to have occurred with me. Anyway, they say it has happened between ten thirty and ten forty five with me. But at ten forty something she was still on the phone, text messaging and making calls with whoever she was talking to.

But the drug phone record and this exculpatory context were not discovered for many years. Nevertheless, the police visited David, who confirmed his number, and they probably visited the people on the other phone log too, And soon Courtney came out of the coma.

She cannot speak because she's intubated, and she writes down who did this to me? She had been engaged in a number of drug transactions the night before and the next day early in the morning before this attack. They don't investigate any of those people in any manner whatsoever. They don't investigate any other person she contacts or calls.

Or they did, but they just didn't keep any record of it. Now, when Courtney's intubation tube came out, they interviewed her again and again she said that she had no recollection of what had happened, and in between that visit and the following one, they ran some of the crime scene evidence through CODIS, the national database, and they came up with a possible match, not a true match,

When they go interview her on December ninth, they hold up a single photo of David Smith and tell her this man is a dangerous man. We already spoke to him. He did this to you. He wanted you dead. He doesn't care about you. And she does not identify him as her attacker. She says, why would he do this to me?

And she seems to have some foggy recollection of her attacker.

She states that the guy had blue tip Dreds. I don't have blue tip Dreds. I think I've been bald for twenty five years at least. And the blue tip Dreds is the person that their mother called and asks did you try to kill me? And his name is Hood.

In a recording, her mother says, we called and asked him why he did this?

And this is a person that she been known forever, good friends, they do business together, they kick it together. They was like peanut, butter and jelly. Why would you call him and ask him did he try to kill you?

So Corney and her mother had their own suspects. They even mentioned others in that recording, some of whom were on that other call log. But at this point the police appeared to be hoping for their possible codus match with David was going to be confirmed, but it wasn't, so now they began to scream.

What we found later with these alternative suspects is detector Johnson's calling the BCI, people who handle the DNA testing and telling them we have these alternative suspects. They could have been involved. Here's why they actually let Courtney Tolliver's children's father out of jail to help investigate for them.

Our baby daddy was talking to his mother and his aunt on the phone in the county jail and said that she said who did it to her?

And then they don't disclose the information they get from him. And then as BCI is calling back saying these other people's DNA. Most of his DNA isn't matching to anyone, almost all of it. Then Johnson starts to just narrow in on David. Smith refuses to give anyone else's DNA and refuses to turn over any discovery about these other alternative suspects.

At this point, they returned to the DNA that had been a possible match to David. And if you've ever seen a DNA analysis graph also known as an electro pharah, it looks like a series of little peaks marking genetic alleles that are present in a given sample, which are measured in relative fluorescence units or RFUs, And it seems like there were enough peaks in common with David and this DNA sample to trigger a possible match in codis,

It's an amplification process, which was a process they used for the first time in Portage County in his case, and they're only supposed to amplify a certain number of times and that amplification creates static, and those static points either can cause you to misteray actual alleles as static, or you can have static so high, which is nothing. It's not real information. It's created from the amplification process that can be read as an allele, a marker in

This triple amplification process produced an electro pharagram that differed from previous iterations in order to produce this result, and it's unknown whether these differences may have been actual genetic information or nothing at all. So there's a potential here for subjectivity, false positives and negatives, and definitely a lot of room for doubt.

But an unreliable process in this case produced a result that there's a one in one fifty chance it's anyone but David Smith or Courtney Tolliver, which is not a match at all. So one in one fifty chance means it could have been twenty seven thousand other people in Portage County.

So at this point they returned to court me for an identification, and they doubled.

Down on David.

Obviously, without that identification, they had some trash DNA and that's about it. She continues to not identify David Smith as her attacker for several more months until February of twenty sixteen. She had I believe eight or nine felony drug counts pending. In February, those counts are resolved with

So no more assailant with blue dreads and no more felony drug charges. Maybe she had no idea who had hit her, but now at least she found a way that she could get something out of it.

No, I think she has an idea, and I think that what really transpired is something that her and the person that did it is going to take to the grade. I mean, if somebody beat me like that, I'm gonna know who it was beat me.

Nevertheless, it was enough for an arrest warrant on April first, twenty sixteen.

That morning, I have my cell phone in one hand and my car keys and the other. I chirked my truck and I stepped one foot in and when I look in the rearview mirror, it's a black, undercovered car bumper to bumper with me. He pulled out his gun. He's like, free, stick your hands out, and I stick my hands out and I said, what's this about? Officer? He put the handcuffs on me, and then he said, you have a warren for a tempted murder. And I damn that passed out. Like what.

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It was the biggest case of Portish County. Everybody at that time at Portish County Jail tried to get on that witness list to testify against me so they could get out of jail. The detectives was pulling up on people, talking about you ain't gonna get in trouble. All you got to do is just tell us you was down there witting. I mean, all this is video and recording.

Eventually, the investigators came upon some willing participants who they could actually use, starting with a couple who knew David from the drug trade, Randy Milem and Florence Fontanella. And Randy was the one who made the first statement.

I mean, if you looked at the video of this interview, be like, this is a dope fiend trying to get out because she's telling the the detectives all these ale Lander's statements. But he's also saying, are you going to go to the judge and tell her to let me out? He came up with a story that I told him I did it. I told him I left the hammer at the house, that me and this girl did it together.

Then Florence Fontanella, who was facing her own charges, was approached about being in Randy's car during the alleged confession.

The DEA went to her house and asked her up and she said, I don't know nothing about that. She said, I was in the vehicle, Winnie, and I never heard that man say he did anything. And the very next day they had a warned for her arrest. When back picked her up brought it to Forty County jail, she wrote a statement, I was in the car and I didn't hear none of that. She made recorded calls on the phone and said Randy must be in trouble and I didn't hear none of that. But two weeks later

And then once Florence hopped on board, Randy recanted. So now they couldn't afford to lose Florence as well.

Florence found it Tello. She was scheduled to go for sentencing a week before my trial. They postponed her sentencing to make sure that she testified for the deal that they gave her. She went to treatment facility by Addings.

Instead of prison. Yet she switched her story quite literally when she.

Got the deal, and they pulled a similar stunt with another acquaintance of David's who was named Lisa Frame. Ironic name much, Lisa Frame, Come on now.

Lisa Frame was in Jefferson County jail and Lisa Frame drove a black car. A black car can be seen driving in and out of the trailer park around the time they believe the crime happened. And to me, it's pretty clear if they knew someone. It was a known associate of David Smith with a black car. She was in jail. They went to the jail threatened to charge her with conspiracy to commit attempted murder unless she told them that she drove Dave Smith there.

And so she said, would tell me what you want me to say then, and I'll say it.

And this insanity is on tape.

Yeah.

She says there was a day she gave Dave Smith a ride, but she wasn't sure what day it was. She took him to the trailer park. He was in there a couple minutes and he came back. He had no blood on him or anything. He wasn't in any state of outrage or upset or panic or anything. She doesn't say anything about having a hammer on him, but she says he has something and wrapped up in his shirt, which she thinks is a gun, and she reiterates she has no idea what Dave this happened.

Lisa Frame said, I called him several times that would have blocked me and Lisa Frame into that day that time. But they said that they took her phone and plugged it into the computer and they couldn't get nothing out of it.

Oh, I'm sure.

And not only did they plug it in and decide that it wasn't computering, but they then thought, should we keep it?

Should we keep it?

Should we store it somewhere important? Nobody knows it has disappeared into thin air. And in all of the phone records that were available in this case, they got one set of phone records which helped the tail they were spinning, and then everything else was unavailable.

So to shore up Lisa Frames date and time, they pulled surveillance footage from a Walmart parking lot showing two black cars traveling in the direction of the trailer homes around the time of the last text message from David, and then only one leaving shortly after. And we could get into how possible or impossible it was that these were even her car, and how long it would take

Before twenty sixteen, when they come up with the electro faarrograms, the peak had to be taller than seventy five RFUs otherwise it could have been static and it's too risky to consider it. But in between October twenty fifteen to Fall twenty sixteen, BCI published a paper saying, now, just in the nick of time, they're allowed to lower the threshold to fifty RFUs and count peaks that really fall in that high risk static range.

So this lowering of standards allowed for the triple amplified DNA sample to be presented as a partial match to both David and Courtney, which is a confusing result, and implied that it could have been David, but it eventually turned out it could have also been so many others.

Yes, the neighbor across the street, in fact, when we compared it, had more alleles in common with this sample than Dave Smith did, and had blood on his pants and was present when the police arrived. And I'm not saying he did it, but I'm evidencing how we manipulate DNA to say what we wanted to say, and that's what they did in this case.

And the steak got one last helping hand. David's attorney filed to suppress the victim's identification because if you remember, the December ninth, twenty fifteen, interaction was recorded when Lieutenant Johnson was suggestive with the witness.

Yes, he literally is saying, this man is dangerous, he wanted you dead. We know that he did this, and she's still not identifying him. And what is crazy is Tolliver's mother is in that same interview, and in the course of the conversation, Tlliver's mother is talking about other people that they believe did this.

By name specifically Hood with the blue tipped dreads. But the motion to suppress the id was denied, and by.

The time we get to the first trial, they don't allow that to be played in court. Instead, the court says, well, they have the transcript of it. The jury's going to get the transcript.

But it took me ten years to find out that those transcripts wasn't even accurate. In the first place.

The transcript had the names of the other potential suspects redacted, and it had it redacted in such a manner that it then sounded like his mother was still talking about David Smith. We called him and asked him why he did this, implicating that they believed it was Dave Smith, when really what they said about Dave Smith was why would he do that to me? She said, he gave me a ride once? Why would he do this?

So even if the jury planned on reading them, they'd be misled by the redacted text anyway. And that's how both Lieutenant Johnson and Courtney Tolliver testified about the identification without being irreparably impeached. Instead, the cross examination was new. While Courtney took the.

Stand, she testifies with one hundred percent certainty that David Smith came to her door and attacked her with a hammer.

And despite cross examination, this was still a bludgeoning victim naming her attacker.

But this is the key to a one hundred percent sure This dream summary never came up to that detective shoulder that picture. And then now she's saying, in my dream, I dreamt it was him. But there was never a dream summary in the hospital on November seventh. But whatever it was that the detectives came to the hospital and asked you, and you say it, I have no memory of.

That, perhaps having not heard the contextual audio recording or having not heard a word about the deal she got for her nine felony drug charges. Sadly unsurprising that the jury accepted the bogus idea as truth and then came the quote unquote supporting evidence. Like Florence Fontanello, who had her own issues.

Initially, she says that David Smith had nothing to do with this, and she says it in these Facebook communications with Margaret Austin. Randy Mulam comes forward and tells them what they want to hear. Then she all of a sudden switches to Team State and She says David Smith made an admission to her.

When my attorney actor, well, what did you hear in the conversation, she said, I didn't hear nothing but him say, got the bitch with a hammer.

And she's confronted with these Facebook texts, but maintains that David Smith made an admission to her.

She told the jury the reason why she didn't come forward because she was scared.

The jury was also unaware of the deal that she had received, as well as the threat that Lisa Frame had sidestepped with her testimony, which was supported by surveillance footage of random black cars traveling toward the trailer park.

There's not a single photo of what her actual black Cadillac looks like. Even though they had a search, weren't for it, and they searched it all. They took not a photo of anything. But they did take a floor mat and they tested the floor mat for either Dave's DNA or blood or any blood splatter at all. Because this was one of the bloodiest crime scenes I've seen. There's not a drop respect of blood on the matt

So after hearing only some of the impeaching issues about every single one of the state's witnesses, and having heard the identification of the attacker without the context of how that identification came to be, the jury went to deliverate.

I mean, there's a lot of evidence that the jury wasn't able to deliver right on, and they came back two days later with a guilty burden twenty three years flat. They told me I wasn't coming home till I was seventy one years old, and I just started it at forty seven. I was angry about it, but I wasn't bitter because before I left out of that court room, I told the detective Lieutenant Johnson, I'll see you again in trial, and he said to me, I'll be there. And for ten years I made sure that I was

Like so many of our guests, David learned the law, and after his direct appeal failed, he began fining motions pro se, meaning on his own, without the up of an attorney.

I did a post conviction on ineffect assistance of council for the not playing those audios in court. They shut that down. She said that there was nothing outside the records because these transcripts and audios went back to the jury. Subsequently we found out they never went to the jury.

Did never happened, And subsequently he filed his federal habias based on the impermissibly suggestive identification, citing the transcript of the December ninth, twenty fifteen recording, a transcript that they had thought was both complete and seen by the jury, and the filing made its way to the Sixth Circuit by twenty twenty two, by which point Kim had already joined the fight.

By this time, Kim had set me the audio and the original transcripts of Courtney Tolliver's interview with Lieutenant Johnson, and when she said it to me and I was reading it, I said, Kim, these transcripts, it's not accurate. She like, what you mean? I said, they took evidence out of these transcripts. Send me to audio. I marked off where all the meat was, taking out the transcripts, the identification to somebody else and everything else, and I

Though, We were procedurally in a place where you can't expand the record, and so knowing that they weren't going to allow me to expand the record at that time, I was just like making up other things to file that i'd have a reason to attach the transcripts.

So when they read the motion, they're going to read the transcripts. And that's what we.

Did, without regard to the fact that they removed a part of the transcript which contained exculpatory information and identified an alternative suspect. The court was just like, this wild identification procedure overly influenced her, and it's so bad. It's to such an extent that there's no way it can overcome even the stringent protections of EDPATH.

EDPA is the Anti Terrorism and Effective Death Penalty Act, which was signed into law in the wake of the nineteen ninety six Oklahoma City bombing. And in order to reverse a state court decision quote, every fair minded jurist would have to agree end quote. So what they're saying is that not a single quote unquote fair minded judge in existence could have seen this another way. And the Sixth Circuit ruled that this seemingly impossibly high standard had actually been met, and.

That's when they awarded him a habeous corpus on the condition that they have to release him if they don't retry him without that identification within six months.

And it was just hard that it took me all this time. Quote just see where really happened to that case. Yeah, evidence didn't change, nothing changed, but it was jud just that seeing, hey, but this may did to this do this a right? You should have never went.

To trial, so the state tried to stay the decision, which brought them about six weeks against the six months they were given, meaning they had to retry him by March thirteenth, twenty twenty five, and with the clock ticking, the state appealed to the denial of the stay as well as filed for sir tierrari with the US Supreme Court, both of which were almost unanimously denied in January of twenty twenty five.

Since the ruling in July of twenty twenty four, I'd been actively filing defense motions, all of which went ignored until January for a trial that had to start by mid February, and so by the time they were responded to, like our emotions for expert, all of those deadlines that expired for us. And then two days before trial, they find a box labeled Detective Johnson. It was in the back of some garage and it contained exculpatory information. It referenced confidential informants.

And this confirmed suspicions that Kim had raised before the July twenty twenty four ruling.

While I'm working on David's case, I am randomly working another federal drug case and I'm in the trial and a confidential informants name is disclosed, which is wildly protected, but it is a name I recognize. So I go back to Portage County and I say, I have documentations signed by Portage County Sheriff's office indicating that this person was paid as a confidential informant right around the same time of this case, that they were on the payroll

The people that they had on the list suspects are confidential informants, and that.

Would explain why they never even called them into interview them, not one of them. Did they identify their whereabouts at the time of the crime, did they get their cell phone records to see their location or their communication with Courtney Tolliger.

Which definitely adds context as to why this second phone long was allegedly never gathered into evidence. And additionally, there was new context for how David's and only David's cell phone location had been obtained.

When he got the warrant from my cell phone tower evidence. He told the judge that his DNA is on this scene and that's what he used to get a search WARM. When the people from BCIs and you have to do further investigation. This is not evidence, but he took it to the judge and the judge gave me a search WARM from my cell phone tower evidence.

The big part of the first trial I was like, her last text message was to David Smith, she never texted anybody again. F that well, her other phone makes clear she's continuing texting and engaging with people for fifteen or twenty minutes after they believe the crime occurred, and that she has constant contact with one person more than

And that was an issue for everything that was found in Lieutenant Johnson's garage as they moved into the retrial in February twenty twenty five.

Another one of the big issues at the retrial is that the state investigator who photographed the crime scene has retired and literally told them, sorry, I'm not coming in, So we were denied the opportunity to cross examine him about the photos on scene. You literally can't question anyone about anything you see in the scene. How can you develop arguments when you can't even point things out.

Like whether or not the hammer was even the murder weapon at all. When the stool in the photo, well, it was an interesting alternative.

What's interesting about it is someone touched it after it was used, because there's both blood under it that it is resting on top of and blood on top of it, so that is going to have meaningful evidence on it. Did they collect it? No, you didn't pick up the only hammer on scene, and you didn't pick up the thing that looks like a bludgeoning object covered in blood. You didn't pick up the plastic bag which was sitting on top of pile blood and also blood spleater on it.

But without that witness or a more well documented crime scene, the defense was hamstrung in this regard. But that was not the case when they confronted the DNA evidence at a pre trial hearing. As we discussed earlier, the triple amplification process on the DNA sample drew into question what were peaks and what was just static, which brings in room for subjectivity to something that should just be an

I compared it to the neighbor, he had moraleles in common with that sample than David Smith did. When you bastardize the process, you get shit in, shit out. And to watch these experts sit up there and try and make sense of a senseless DNA procedure was just It was painful.

The way she went in there and took the evidence and threw it in the trash. The prosecutor came walked over and said, listen, I'm gonna ask my boss if we could just walk him out of here with time serve and let him go. So the day before the trial started on February to twenty four, and they put it on the record time served. I said, no, I didn't fight like this just to go in there and plead guilty to somebody didn't do. I want my name

It is a habeas corpus in which he has to be released unless they try him within six months without using Tolliver's identification of Smith, which is suppressed and excluded. I have read it and retyped it so many.

Times, and they were trying to interpret those words to make it permissible to have the victims identified David but not expressly as her attacker, right.

Like, no, it doesn't say that. Like these are the highest judges in the country. They weren't confused. They meant to press and excluded. And when she woke up, she didn't remember anything about the day. So any identification which includes an identification of David Smith from that day would be the result of their overly influential, impermissible identification tactics.

The day before trial we found emotion. And as for clarification, the Norther distrect Court of Appeals than not it summarily, because what is do to clarify?

They said, we can't interpret what the six circuit means. What the six circuit means is you cannot use Tolliver's identification of Smith, which is suppressed and excluded. When that order comes out, I think, oh, thank god, this explains it to them. But they take it the other way. They're like, see, they said, we can't interpret what the six circuit does. So obviously the six circuit means she

And it would be hilarious if it wasn't so freaking sinister. And then they found a second way to bring it in.

In the opening statements, he says, Courtney, Tolliver is going to come in here and tell you that David Smith hit her in the head with a hammer.

And then Courtney took a stand.

They say, well, can you identify the person that you said came to your house? She said, yes, that ball guy over there with a yellow shirt to brown souno and they said, well, let the record reflect she identified David Smith and it just said no. And she said, he was just standing on my porch. Okay, now what happened. I hit the legs and he opened the door and came in, and this thing I felt with a stroke and I woke up in the hospital.

But somehow, in their minds this skirted the Sixth Circuits order that her identification was to be suppressed and excluded due to Lieutenant Johnson's impermissible procedure.

And then after they get her to do this whull identification, I got to cross examine on the fact that it was a wildly prejudicial identification procedure. And they're like, oh, no, you can't cross him on that. You'd be opening the.

Door, meaning the door to allowing her identification. It's unfucking real.

And I'm like, is it genuinely your takeaway from the Sixth Circuits order that her identification is allowed? But I can't cross exams on the unreliability of the identification. You think their point was to make it worse than it was before.

Yep, they did.

They thought that, and then they found a way to make it even worse with Florence Fontanello, who by this time had recanted, but they weren't interested in hearing that, so they claimed they just couldn't find her.

They got the court to admit her testimony from the first trial again, even though she had issued an affidavit saying that she had lied.

They took the twenty sixteen transcripts and read them into a twenty twenty trial.

So we can't cross examine her. They just read her testimony and everyone reads their own part, same prosecutor, same judge, And I'm like, I'm refusing to participate in this display of injustice. Like I'm not going to sit here like the defense attorney from ten years ago and read his part. I would make it very clear to the court that I'm not a part of this. We're just re enacting the same trial that was considered to be on constitution.

Well, what if we did was set there without being able to say anything.

I was so pissed off as I sat there in court, I ordered little Oscar statues and gave them to the judge and the prosecutors the next day, like here, since this is just a play, congrats on your acting.

Nobody liked them, So the jury heard Florence Fontanellez recanted twenty sixteen testimony as well as the state's non identification identification right, and despite being threatened with opening the door to the full force of the unconstitutional evidence, they were able to provide some evidence about Courtney's two phones, and the records for the drug phone revealed that she had been active after the state had contended that this crime occurred,

The detectives was saying they don't remember anything, and then with Kim refreshed their memory with their reports, they steer with Sam, I don't recall.

That we had all this testimony about how they lost all the evidence, and then after they realized it was lost, sought a destruction order from the judge to destroy it so that we couldn't use it I could get one person to testify about some of the timing of the text and the second set of cell phone records. And because I wasn't allowed to admit those records, I was

Kim fought everything tooth and nail, and they went in there and came back at twelve o'clock with a guilty verdict, but.

A plan to return the Sixth Circuit was already in motion. After all, these fucking people acted like they couldn't properly comprehend the Sixth Circuit's order. But if the conviction was vacated, then technically the Sixth Circuit no longer had jurisdiction, so David would have to start his appeal all over again. So David made sure that a copy of the Ohio Department of corrections docket was taken for evidence.

When we filed the motion back to the court, they saying, hey, this case was vacated. The federal court don't have jurisdiction no more. My evidence was the docket, which there's no general wintry in there, that the case was vacated. Two the transport order. Three the ODRC website still said that I was convicted, that I was still under conviction, that it was never vacated. We fouled that most marks the twelve. After they found me guilty, the Jews answered they gave

Not shy and saying how could you guys have done this, like you touched the third rail, and not being from New York, he then had to explain what the third railmant to get into opposing council, like it's the thing you don't touch. That's how you get electrocuted. You don't touch the third rail, and you guys danced on the third rail. What did you put me in a position?

What am I going to do?

And even though the Northern District Court initially had a differing opinion than the higher six Circuit, they had no choice but to honor the higher court's ruling because the state's jurisdiction argument held no water. The conviction had not been vacated, but rather only a new trial had been ordered.

On May to twelve, he called his back to the Northern District Court of.

Appeals and I thank god the District Court did not agree with them, and they ordered that David Smith be granted an unconditional habeas corpus and that he'd be released. But then he stayed his order for seventy five days through the use of an administrative stay, which we appealed, and the Sixth Circuit basically said, there's no such procedure as an administrative stay in this context and he has to be let out. And that was on July third.

Now it's a lot of third I was free on July four if I was on a boat with my attorneys and.

We took a picture from the boat of the Federal Courthouse. Like everything that's happened. Now you get to view it from this side. Yeah, and I sent it to the prosecutor.

When I first got out, I didn't want to live with nobody, to deal with nobody. So we have a guy who was also exonerated, who has an exign of ree house in Cleveland.

We have so much injustice, so we have a lot of exgneries and they take care of each other. So one of them bought a house for all ex honeries to live in when they're in this position when they first get out, Charles, Checks and Raymond.

We had the good fortune of covering Charles's story with Maggie Feeling, and we'll make sure to link it in the episode descriptions, so check it out.

I've been doing Charles for a long time, so I mean he was familiar with me, But for like the first three weeks, the only thing I did was went from my bedroom to the bathroom, to the kitchen back to my bedroom, like I was steal in a sale. Since I've been home, Kim gave me a job with the law firm.

So right now on the docket, it's his appeal. I'm confident we're going to win. We've already had rulings from the Sixth Circuit when they released him, saying that they don't believe that the warden has a winnable position, so that's really favorable. Nonetheless, we're going full steam ahead and that's submitted to the court and it's going to be decided without oral argument. And so as soon as we get a decision, that ankle monitor is going to come

And we'll link ways to contact Kim and get David to support he needs, and with that we're going to go to closing arguments. Closing arguments, everyone knows is my favorite part of the show, where I'm going to kick back in my chair, turn my microphone off and leave my headphones on and just listen to anything else you want to share with our amazing audience. And so Kim, you go first, and then just hand the microphone off to David. Then he could take us off into the sunset.

This is a case with one of the most egregious identification procedures I've ever seen. Which is so appalling about it is how many courts justified and upheld the conduct, who gave it a pass in the state court at the appellate level, at the Ohio Supreme Court level, at the district court level, and federal court. It took eight years to get any justice, and then when we finally got that justice by way of an order, the state court threw it out in totally ignored it conduct that, frankly,

In Ohio, we have a feal that's on the ballot called the absolute Immunity View. If it's passed in Ohio would be the very first time that anything like this has been passed. And that deal makes judges, prosecutors, detectives, police, anything of authority can be prosecuted for what they do for violding the person's constitutional rights because right now, like it is so thick where they don't have to answer to nobody, they could do what they want and put

Thank you for listening to Wrongful Conviction. You can listen to this and all the Lava for Good podcast one week early and ad free by subscribing to Lava for Good plus on Apple Podcasts. I want to thank our production team Connor Hall and Kathleen Fink, as well as my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Cliber. The music in this production was supplied by three time

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