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[00:00:00]

This is Sarah Koenig. Before the episode starts, I have a quick message. Our latest serial production show is out now. It's called Nice White Parents, and it's reported by Chana Joffe. Walt, if you're a this American Life listener, you probably recognize her name. She's done some of the best, most thought provoking stories that have ever aired on this American life, including a bunch of stories about public education for nice white parents.

[00:00:24]

Hannah spent years reporting in this one middle school in her neighborhood until she finally realized she could put a name to the unspoken force that kept getting in the way of making the school better white parents.

[00:00:37]

This show taught me a lot. It challenged me and I cannot wait for you to hear it. You can find nice white parents wherever you get your podcasts. You try to help us avoid me, OK? Previously on Serial.

[00:00:52]

And don't you think you owe it to him to tell this jury who shot this little boy and not be afraid anymore? Sir, the defense attorney came to me at the first pre-trial and said, you're going to dismiss this. You, sir, are going to be looking at the harshest possible.

[00:01:08]

OK, if this is me all the way up here, every time I go outside, I just look at everybody differently. You know what happened. But you want to say that. I don't think that's what happened. That's my job, he said that's why you're getting out. Yeah. From this American life in Chicago, it's serial one courthouse told week by week. I'm Sarah Koenig.

[00:01:35]

This is one of those cases that is so puzzling because so many people are so certain of what they saw, who was involved, and we just have no way of knowing what it is and what it is.

[00:01:47]

And, you know, one break could change all of that. One break and change at all.

[00:01:53]

This is a prosecutor named Brian Rhatigan.

[00:01:56]

He's talking about the Aviel Wakefield case, the one where the baby was shot in the car. He and another prosecutor were in charge of that case. They're the ones who sought a 13 count indictment against Davon Holmes. They're the ones who argued a year later to let him go. And an exit, Brian, that they haven't solved it.

[00:02:14]

Hey, Mike, why why does it have to be this one? Why does it have to be the five month old?

[00:02:19]

When I asked to interview someone about Avios case, the county prosecutor's office easily could have said this is still an open investigation. We can't comment, but they did not do that. Instead, they gave me Brian and Brian told me a lot. I went to Brian chiefly to find out why the case fell apart. Did they release Davon Holmes because of some technicality or did they release him because Rangi first, though, we spun through the reasons they thought it was Darvon to begin with.

[00:02:47]

Initially, they had anonymous tips that it was Daymon people who said, this is what I know, but you didn't hear from me.

[00:02:53]

Just said, no, this is my information. You'll never find me if you bring me into court or if you try to put me on paper, record me, I'll deny that I ever said any of this stuff.

[00:03:02]

But, you know, meet me in this park at eight o'clock and I'll tell you, I mean, I really like the stuff you see in the movies, in the movies.

[00:03:09]

That's exciting. In real life, not so great. But Brian said he was hoping to persuade one or two of those people to become witnesses.

[00:03:16]

By the time the trial rolled around, they had the jailhouse statement from that guy who I'm calling John, the guy who'd known Davon since he was little. Their brothers were friends. Brian told me more about what John said, but he also told me they didn't really find it credible since some of the other people John had mentioned in his statement didn't seem to have a connection to Davon. They were older. For one thing, Brian's office was also looking into the guy Aveos father thought was responsible for the shooting, but they didn't have enough evidence to charge him with anything on Darvon.

[00:03:47]

They also had his cell phone records putting him in the neighborhood at the time, his own neighborhood. They also had his statement to the detectives in which he said he'd been up the street at the Family Dollar when it happened again, a statement Davon told me he never made. It didn't add up to much, but then they got the landscaper's ID.

[00:04:06]

The landscaper, remember, was the guy who finally chose Devon's picture out of a photo array third time around, almost two months after the shooting, as I thought it was, the landscaper's ID that made the prosecutors feel comfortable, like they were looking at the right person.

[00:04:21]

The landscaper came off as genuine, believable. And Brian told me, the landscaper, he came to them. He showed up one day at the justice center, took the elevator up to the ninth floor to the lobby of the prosecutor's office.

[00:04:33]

Brian gets a call at his desk.

[00:04:35]

There's a guy out here says he wants to talk to you.

[00:04:38]

So I show up to the front. I say, hi, how are you? You know, introduce myself. And he says, I've got some information I want to talk to somebody about. So I called the homicide unit. I didn't talk to him again. We don't want to be witnesses. So I call the homicide unit. They come over here, they pick them up and they talk to him. And when they're talking to him, there was there was a belief at the beginning from the officers handling the case that this guy knows who it is, but he's not going to pick them out.

[00:05:08]

Brian says this guy was like a lot of witnesses. They deal with wanting to do the right thing, afraid to do the right thing, waffling.

[00:05:15]

He came down here a number of times and contacted the homicide unit a number of times saying, listen, I'm I I wanted to do this. I wanted to come forward, but I do not want to come to court. I do not want to testify.

[00:05:28]

I've got kids. He talked to us.

[00:05:30]

He wanted us to move them out of out of where he was living because he was afraid of living in the neighborhood. He was living in Cleveland and.

[00:05:37]

But not in that neighborhood. No, but he was. But he still was working in that neighborhood afterwards and those type of things. So he had he had his own concerns.

[00:05:45]

But I think if if you asked him again, he would still believe that Devon Jones was the one. And do you think David Holmes is the one?

[00:05:53]

I think that there was pretty strong evidence that we found during the course of this and and that he was not.

[00:06:02]

He's not. Now we turn to part two of our conversation, what made the case against Davon collapse, though? I just want to note the amount of evidence Brian had laid out does not seem like it should be enough to take a person to trial for aggravated murder, much less convince a jury to convict a person of aggravated murder.

[00:06:23]

But it is enough. I'm not saying it would have been a slam dunk for the state, but assuming the landscaper showed up to court and testified, it's not far fetched to think Davon might have been convicted. He easily could have gone down for this murder. But about a month before the trial was supposed to start, Brian said they were made aware. He doesn't want to say exactly how, but they were made aware of a phone call, an exonerating phone call.

[00:06:47]

We had some evidence of somebody else that we believe is involved in the case on a recording that they didn't know was being recorded, saying that Devon was not there. Was it? Can I ask it? Was it a jailhouse call?

[00:07:03]

It was not. It was not.

[00:07:06]

Again, Brian didn't want to divulge too much about this recording. He thinks that if this case is ever going to be solved, this call might be the key. So just want to say too much about it. But what surprised me was it didn't come from the detectives. It didn't come from their side. The most I can say is the recording came to them. Once it did, they all sat down in a conference room in the prosecutor's office, the defense attorneys, Brian, the cops, and they listened to this call.

[00:07:34]

It was between someone who knows and cares for Davon and a young man I'm not going to name in the call. Nobody identifies the shooter. But it was pretty clear the young man knew what had happened the day Aviel was killed. Brian says he understood right away that he had to take it seriously.

[00:07:50]

When you actually hear somebody say it, when they don't know that they're being recorded and that that changes things. There were only a few weeks from trial at this point. Now they scrambled, they needed to verify that the recording was real, that the people in the call were who they said they were and that the call itself wasn't theater manufactured to spring Darvon.

[00:08:14]

Once they did all that, they reassessed. Do we still think Daymon Holmes is the guy? They weren't sure. Maybe not. They decided they couldn't proceed, filed a motion to dismiss. The phone call ended the case against Avon, but it also gave Brian new evidence to work with the young man in the recording. He sounded involved in some way. Brian called up detectives he knew in the fourth district. Do you know anything about this guy? Funny thing they said.

[00:08:42]

As a matter of fact, we're looking at him for a carjacking, also for shooting. Brian says, can you hurry it up? Chop, chop. And they do pretty soon they've got him in custody. They charge him for the carjacking and for the other shooting, even though these wouldn't normally be cases for Brian's unit since nobody died, Brian Prosecutive tries to get the guy to cooperate, start squeezing him.

[00:09:05]

I'll help you out on a plea if you help us on the Wakefield case, 12 years is better than, say, 30 years, right. The guy won't talk, won't talk, won't talk. Brian tried for months. Nothing.

[00:09:17]

Last fall, the guy pleaded guilty in those cases to ag robbery and attempted murder and was sentenced to 17 years. Brian knows that this guy serving time for something entirely else might be the closest they'll creep towards justice. In this case, the kind of sideways justice will Al Capone and Brian had said, which is a funny thing for him to say, because Brian looks a lot like a young Al Capone.

[00:09:42]

It's unsatisfying. I know the crime isn't solved. That's unsatisfying, obviously. But also, Damon sat accused for a year that shouldn't have happened. But when I asked around the justice center about it, people said, yeah, that's a shame, but at least they corrected it. No one was demanding an inquiry into what went wrong or yowling for reform. No hand-wringing. There was more resignation. What are you going to do? Judges say they can't control what cases the prosecutors bring to them.

[00:10:12]

Prosecutors say they're relying on the detectives. Detectives say their information is only as good as what the public coughs up. Can they help it? If people lie or withhold? I get it when no one feels fully responsible for the outcome. When blame is spread out and diluted in a situation like Devons becomes easier to shrug off.

[00:10:32]

What are you going to do, starts to feel like an answer rather than an urgent question? I ended up spending a bunch of time with Brian Rhatigan hanging around while he did his job, in part because I liked him right away and also because he is one of the most powerful people in the justice center.

[00:10:55]

He'd never admit that. I'm not sure he fully sees it. But it's true. Prosecutors are the most powerful people in any courthouse.

[00:11:03]

Defense attorneys will tell you they'd rather have a fair prosecutor and an unfair judge than a fair judge and an unfair prosecutor because of all the people who shape a criminal case, the prosecutor has the most discretion, especially at the crucial beginning when the thing is still germinating, the prosecutors deciding whom to charge and with what crimes. He's also deciding what the plea deal is going to look like.

[00:11:25]

And don't tell the judges in the building, but often the prosecutor is more or less deciding the sentences people get. Because of this big power they hold, prosecutors of late have been the focus of blame for a lot of the problems in our system and the focus of reform efforts, and that's not undeserved, but it is incomplete.

[00:11:44]

Most of the prosecutors I've talked to, it's not that they're gunning for cheap assembly line justice or for unprecedented, discriminatory, devastatingly high rates of incarceration. It's that that's the job we've given them. I feel like I can't explain this without telling you some history of how we got here, but I want to explain it. So here goes. Our worst modern era of crime in the U.S., if you look at the FBI stats, began in the 1960s and 70s, most people now agree we were under policing and also under incarcerating.

[00:12:17]

Then we swung way, way, the other way.

[00:12:20]

Cops made more arrests, which meant more prosecutions.

[00:12:24]

But the huge increase in arrests and charges did not correspond to a commensurate increase in the number of prosecutors or the number of cops.

[00:12:31]

But that's another story. There's one statistic really hit me. In 1974, there are around 17000 local prosecutors dealing with around 300000 felony prosecutions. By 2007, the number of prosecutors had jumped to about 32000.

[00:12:48]

So a significant increase, but they were dealing with nearly three million felony prosecutions. That's a tenfold increase from 1974.

[00:12:58]

The upshot, vastly more prosecutions handled by relatively fewer prosecutors.

[00:13:03]

The only way for them to keep afloat plea bargains is one Cleveland judge said to me, plea bargaining isn't part of the criminal justice system.

[00:13:12]

It is the criminal justice system. Pleas are cheap. They lead to more convictions and to more incarceration.

[00:13:20]

And we've given prosecutors many tools to negotiate these pleas.

[00:13:24]

Lots of forces helped this push toward harsher criminal justice, economic forces, the forces of racism and discrimination, some unfortunate U.S. Supreme Court decisions, politics and more politics.

[00:13:37]

But the one you don't always hear about is legislation. In the decades post 1970, most states began revamping their sentencing guidelines and their criminal codes. A lot of crimes were being defined both more broadly and more specifically. Theft, fraud, burglary, robbery, assault, sexual assault, kidnapping.

[00:13:56]

Their definitions expanded, which made them harder to defend against. And they carried more serious penalties.

[00:14:02]

Same with laws about guns and especially about drugs. Expansive criminal codes allow prosecutors to expansively charge because a single criminal act doesn't have to be singly charged. You can pile on as many charges you want. Doesn't matter if they overlap, so long as each one requires you to prove something slightly different.

[00:14:22]

That's how an armed robbery can end up charged as, say, eight felonies that sound like echoes bouncing around a canyon, committed a theft while having a deadly weapon, committed a theft while having a deadly weapon, and either displayed the weapon, brandished it, indicated that he possessed it or used it.

[00:14:38]

On top of all that, you've got sentence enhancements, what are known in Cleveland as suspects that you can tuck inside particular charges, repeat offender suspects, gang specs, gun specs to the one I saw most in Cuyahoga County, usually one and three year mandatory prison time for the use of a gun, even though the use of a gun is baked into the definition of many charges already.

[00:15:01]

The result is a kind of indictment, shock and awe.

[00:15:08]

Charging like this, what's known as stacking charges are just overcharging induces please, of course it does, because the prosecutor can, according to the indictment, however he needs, if you plead, will drop everything but the felonious assault or you go to trial on the full formidable indictment.

[00:15:26]

And chances are if you go to trial, you're going to get convicted of something. Just the visual of a long indictment is a signal to the jury. Look at this list. He must have done something. And while some charges probably are going to emerge at sentencing, as a rule, the more stuff you're convicted of, the longer your sentence is going to be. So, yeah, you plead.

[00:15:49]

That's why the prevailing practice in most prosecutors offices is to charge crimes as harshly as they can, it might swell prisons and eviscerate entire neighborhoods, but it is efficient. All of this brought me to Brian Rhatigan. I wanted to know something very basic.

[00:16:06]

How does he make his decisions? How much of what Brian's doing is coming from Brian, his own sense of what's right and how much is beyond his control, the job we've given him?

[00:16:17]

Yeah, Brian works in the major trial unit homicides mostly in his office. He's got a mini fridge and an Irish desk and a window with the blinds drawn that overlooks Lake Erie. It's nothing fancy by a long shot.

[00:16:30]

Case files and boxes of evidence are piled around complaining chair Brian looks sharp, though he wears a suit every day.

[00:16:38]

He never knows when he might be pulled into a courtroom. But the way his beard stubble scrapes against his collar, you understand he's enduring the costume, not enjoying it. He doesn't appear to revel in his power. He favors the Ashok's variety of dominance. From what I can tell, Brian is universally respected in the justice center. He's forthright, he has compassion. He can take a joke. He's 38, married to little kids, a regular, amiable guy.

[00:17:07]

The days I spent with him, he had twenty cases on his docket, one aggravated vehicular homicide, a rape case, one felonious assault, which he normally wouldn't get. But the guy assaulted three police officers. The rest murders are aggravated murders, mostly drug deals gone bad or some bullshit like retaliation thing, you know.

[00:17:26]

Yep. All day people are knocking, calling, texting. He's getting updates on cases, giving updates on cases to be decided.

[00:17:35]

Yes.

[00:17:37]

Hey, Brian takes a call from Rey Diaz, a homicide detective. He's working on a shooting case happened outside a nightclub on the West Side. Detective Diaz tells Ryan they're about to interview a witness.

[00:17:50]

Great, right? Call me when you're done. All right. This is a guy that we've been he was with the defendant and we've been trying to get him to come in and do an interview. And every time he says he's coming in, he cancels or I didn't have a ride or we'd show up at his house and he's not there. So we last week, I printed out a subpoena for the two homicide detectives. They went and served them.

[00:18:12]

And so he just called and said he's going to be here today.

[00:18:14]

So this is excellent timing. Brian has a pre-trial on that case this afternoon. Right now, though, he's about to have a meeting with two other detectives on another case.

[00:18:24]

They just walked in.

[00:18:26]

Hey, Art. Hi, Rhonda. Hi. Articles and Rhonda Gray, the same one from Damon's case. And no, they wouldn't let me record them. They were there to talk about a case that had made the news wasn't the kind of shooting you usually hear about in Cleveland, it had started as a squabble between strangers on a city bus, then spilled onto the sidewalk where an older man had shot and killed a younger man. Brian, explain to me that this case was unusual for them because the entire episode was recorded by security cameras on the bus.

[00:18:59]

This is one of those rare cases where you you see the whole story, 90 percent of our cases were not watching them unfold.

[00:19:08]

And if if something is caught on, you know, on camera or whatever, usually it's from a distance and you don't hear the dialogue and you don't get to see everybody's reaction. You don't have seven different angles or nine different angles on it. You know, this is like the outlier crazy. I can't believe I'm I have to watch this whole thing and see all the decisions that were made that led to this guy dying because you're watching it. You're watching like God and you want to tell him to stay off the bus, just out the bus.

[00:19:36]

This incident happened three and a half weeks earlier. The older guy was in jail, but he hadn't been indicted yet. They're meeting with detectives this morning is to figure out how they're going to handle it, what charges Brian, should present to the grand jury. This is a tricky one, though, because Brian can see how the whole thing on spooled now. He's not sure a crime even occurred. The stories in the newspaper had quoted police as saying that the older guy, the shooter, had been harassing passengers on the bus.

[00:20:04]

But the bus videos show the opposite. The older guy, the shooter, he was the one being provoked. It's possible this was self-defense. We go to a conference room, there's a big screen set up so they can watch the footage from the bus. Brian had mentioned something about seven or nine camera angles, and I thought he was joking, but he wasn't for exactly this reason.

[00:20:25]

Crime city buses in Cleveland are wired up like itinerant bank vaults. The footage we're watching starts from before the beginning when everything was calm.

[00:20:34]

Hey, we have a deal with you. Thank you. Thank you. The older guy, the shooter, his name is Abdul Rahman, had gotten on the bus at Public Square right near the justice center. He's in his early 60s, but he looks older. He's got a long gray beard, a loose sweatshirt, his scruffy. He's not homeless, but he might have been mistaken for homeless. You see Mr. Rahman sitting in a window seat by the rear doors of the bus minding his own business.

[00:21:00]

He's holding what looks like a folded newspaper magazine in his hand. Then a younger guy sits down next to him. They don't know each other, but evidently the younger guy starts insulting. Mr. Rahman. You can't make out what he's saying. But other passengers told the cops later that he was complaining to Mr. Rahman that he smelled bad. This younger guy is not the one who gets shot, by the way. Mr. Rahman gets up, tries to leave his seat.

[00:21:24]

The younger man blocks him. Ryans watched all this before, but he can't help wishing it won't go the way it's going to go. Sky just keeps John Allen. Just go sit. There's an open spot right there. Just go sit there. The younger guy is being an asshole, ginning up a confrontation. But as Brian pointed out, asshole is not a criminal offense. He finally lets Mr. Rahman pass. Mr. Rahman stands by the bus doors, but he doesn't move to a different part of the bus.

[00:21:54]

He's still arguing with the younger guy who's starting to get physical. Now he slaps the folded magazine for Mr. Rahman's hand. Mr. Rahman bends rather gracefully to the floor, picks it up. Lisa, you're going to get shot. It's not clear, but you can hear Mr. Rahman say, I like my freedom. As in I'm not going to fight with you.

[00:22:17]

Oh, no. They start name calling bitch, you bitch. Younger guy says, call me another bitch. I'm going to fuck you up. It's familiar the scene, a bunch of strangers getting into it on public transportation and the whole time you're doing the bystanders trigonometry. How long till my stop should I say something? Where are we? Should I move seats at this point? A woman named Rachel asks the men to Canet. She's sitting nearby with a few other people, including her boyfriend, Andrew Easley, the man who's going to get killed in about two minutes.

[00:22:55]

Rachel says to the guys arguing, hey, can't you see my niece is sitting right here, the woman in get your ass off the bus and calm down. And he does. Mr. Rahman gets off at the next stop, but then he lingers on the sidewalk. You just want to scream, walk, walk the extra five blocks, for God's sakes. But he gets back on the bus ten seconds later. The younger guy says this is especially hard to hear, but it's important because it's possible.

[00:23:25]

This is what jacked up the situation. He says, I got a CCW CCW stance for carrying a concealed weapon gun license, he's implying that he's armed right now. Legally, he does not have a gun, but presumably Mr. Rahman doesn't know that. Then the younger guy pulls the cord to signal he wants to get off. At the next stop. He says to Mr. Rahman, C'mon, let's get off the bus. We're like, let's take it outside.

[00:23:55]

You and me. He's up in Mr. Rachman's face. Start slapping at him. Suddenly, Mr. Rahman pulls a gun, his own gun. He's got it in his right hand and he points it at the younger guy's head. Rachel and the other people on the bus start freaking out.

[00:24:13]

The bus pulls up to the stop, Rachel muscles her way to where Mr. Rahman is, the doors open, and then she kicks him square in the butt, straight off the bus onto the sidewalk.

[00:24:28]

Her boyfriend, Andrew Easley, is right behind her now.

[00:24:31]

He steps off the bus. He's tall and lanky, dressed all in white, long white shorts, white shirt, white hat, white sneakers. He strides toward Mr. Rahman, who's walking backwards now. Mr. Rahman holds up his gun again, waves it around a little. Andrew easily retreats quickly back onto the bus where the younger guy who started all this is hovering by the open doors. Then you hear Rachel and someone else say something you especially wish they had not said, which is that's a water gun.

[00:25:05]

Mr. Rahman is walking away now, but Andrew and the younger guy go after him again, finally, right as someone on the bus says something like, why do you all go to beat up on this old man?

[00:25:17]

Mr. Rahman shoots Andrew Easley in the torso. He falls, someone starts screaming.

[00:25:25]

Mr. Rahman jogs away. The police have statements from some of the people inside the bus, but the statements aren't as reliable as the myriad recordings we've just watched. The detectives can see for themselves how the thing cranked up emotionally block by block as the bus traveled east on Superior Avenue and Mr. Rachman's house, they found a gun. It fell out onto Detective Eckles, his foot, when he was looking through Mr. Rachman's clothes.

[00:26:04]

They don't have casings, but they're 99 percent sure it's the same gun from the bus. So no question what happened here. Abdul Rahman used his own gun to shoot Andrew Easley. The question is, was it a crime?

[00:26:19]

OK, Brian says so really the issue is, did he have a choice? He had these two guys coming after him. One of the detectives nudges back, says, I feel that argument won't work.

[00:26:29]

After all, Mr. Rahman could have made other choices. He could have gotten off the bus earlier. Brian says when he gets off the bus the last time he's walking away, he's not re engaging and he's got two guys after him. One of the detectives suggests Brian might change his mind when he sees this one last video, we watched it later. One more camera angle.

[00:26:52]

The part the detectives wanted Brian to see is Mr. Rachman's posture right at the end.

[00:26:58]

So at that point, he's I mean, he's going backwards, but he is doing that weird boxing shuffle. It's true he's doing a boxing shuffle like he's fixing to fight, I learned Mr. Rahman wasn't always called Mr. Rahman decades ago. He was called Riccardo's Spain and he was a heavyweight fighter.

[00:27:19]

He mostly lost his professional bouts, 23 losses out of 26 fights, one of them.

[00:27:25]

And now, ladies and gentlemen, man, your battle stations was against Mike Tyson. Atlantic City, 1985 giveaway.

[00:27:33]

Oh, left the legs of gone. This is all over. Yes, it is. I don't believe it. That's at inside a minute. Yes, it is.

[00:27:42]

38 seconds, which is not the fastest Tyson ever knocked a guy out. Now I understand why the detective wanted to be sure Brian saw that last video, because it does make you wonder, was a former heavyweight who can still muster a boxing shuffle really afraid of those two guys on the bus? After the meeting with the detectives, I'd say Brian was leaning slightly self-defense, but he's still not sure, and because he's not sure, he's going to let the grand jury make that call tomorrow when they present the case for indictment.

[00:28:15]

Technically, of course, the grand jury is always supposed to make that call. They're the ones who vote on whether there's probable cause to charge someone with a crime. But well, for you, lawyers and legal eagles ham sandwich, I know for the rest of you, I will spare you the ham sandwich cliche and just explain. The grand jury is supposed to be a citizens check on government power, but in practice, grand juries usually vote the way prosecutors want them to vote.

[00:28:38]

Probable cause is a low, low standard. You just have to show that it's logical to believe this person might have committed this crime at a grand jury presentation.

[00:28:46]

There's no judge, no cross-examination, no defense.

[00:28:50]

In fact, in Ohio, according to the state bar quote, Even if a prosecutor knows of information which would help show that the accused person is innocent, he is not required to present it to the grand jury. So how it works is that the cops and the prosecutor tell the grand jurors what they think happened. The prosecutor presents them with a proposed indictment here. All the charges, we believe, fit this crime. If you guys agree, sign right here.

[00:29:15]

Someone's got to figure out what charges is he going to ask them to vote on tomorrow, like what will you write up in the indictment in terms of the charges?

[00:29:22]

I don't know yet. Murder, I think, is the high end that it would be. And below that is voluntary manslaughter. And I think it goes between those two. And involuntary manslaughter is basically like heat of in a heat of passion or are you being provoked? It's a crime that's that's provoked but answered.

[00:29:40]

And that's your you're deciding.

[00:29:43]

Yeah, well, I'm the decider. No, I'm not the decider. I am not the decider. I don't decide anything except for what suit I'm going to wear that I know it's sure he has to run stuff by the bosses down the hall.

[00:29:55]

Usually Sol Awadallah, who supervises his unit, his brother Mo, is also in the major trials unit.

[00:30:01]

But the idea that Brian's not deciding anything, man, because he could play this various ways, Brian could show the jurors one camera angle or seven camera angles.

[00:30:14]

He could present all the statements from the people on the bus or just the ones that say Mr. Rahman was the aggressor.

[00:30:21]

He could put murder on the proposed indictment and never mention the word self-defense. But this one, he tells me he really can see it either way, crime or no crime.

[00:30:32]

So his plan is to put the whole megillah in their laps, let the grand jurors decide he's going to show them all the camera footage, read them all the witness statements. He talks it through with a paralegal, Naida, who's preparing the materials for the grand jury.

[00:30:47]

And what should we do? The should we do the video before we talk about what each one says or play the video? What do you think? I think I want to play the video first, see that he doesn't want the camera footage to be colored by the statements, so it's going to be footage first and he decides he is not only going to mention self-defense, he's going to explain self-defense.

[00:31:12]

Tell them what the legal elements are.

[00:31:14]

I might have you throw something together for me real quick on self-defense. I've got stuff. Let me go.

[00:31:21]

So he goes and gets the pages to establish self-defense.

[00:31:27]

The following elements must be shown. And this is out of an Ohio Supreme Court case. The Slayer was not at fault in creating the situation given rise the situation. Slager had a bona fide belief that he was imminent danger of death or great bodily harm.

[00:31:41]

You didn't instigate it. You had a genuine fear that you'd be killed or badly hurt. Are you fulfilled your, quote, duty to retreat and then you tried to get away.

[00:31:50]

But if you just want to add in those two things, I want to give it to you. I'm going to give it to you.

[00:31:54]

And then you can a while later, Brian tells me he's thinking he's not going to put murder on there, just the voluntary manslaughter.

[00:32:03]

This is not set in stone yet, but I believe it's just going to be voluntary manslaughter. I don't think there's going to be a murder charge. Oh, when did that get decided? It hasn't been decided. That's why I said I'm just I think that that's what it's what it's going to be.

[00:32:14]

But there's clearly some agitation here. There's clearly some you know, he's being prodded. All right. I mean, I think you can see that in the video. It's and it's clear from the beginning the guy, the kid won't even let him get out of the seat. I mean, there's some he didn't start this so messy.

[00:32:33]

And it could be I mean, here in really from my perspective, like, it's not if it's not so much matter what I think right now, it's it's kind of what the what the grand jury is going to think, you know. So I'll play it for them and tell you.

[00:32:48]

I mean, you have you have a point of view that you're going that's going to come across for sure, how you present things, how you what you stress, what I mean, it's probably hugely influential. I don't mean in a in a in a creepy way. I just feel like.

[00:33:02]

Yeah, I think so. But I also try to be fair to the process, you know, I mean, I don't want them to just say. What do you think, what do you think? You know, because then what's the point, I might as well just I might I if it was if I was going to do it that way, why even do the whole thing? Why why play the video for why talk about what each witness in there says.

[00:33:24]

Why talk about where they are in the bus. I could just go in there and say, you know, he shot them. He shouldn't have shot them. Indictment, murder, you know, if in a case like this, I think it is so important to give the full picture and if they have the full picture, they should be able to make the decision based on that. Not not on what I say. Afterwards, I went down to the first floor atrium to get a snack.

[00:33:48]

The atrium has a little cafe and tables and chairs that you have to choose carefully because they are frequently sprinkled with bird poop.

[00:33:55]

Now, you know, I was chatting with Emanuel and then we started talking to these three defense attorneys we knew at a nearby table. I told him about the Rahman case, about how much material Brian Ratigan was going to show the grand jury and their faces.

[00:34:09]

One looked furious, another was smirking. I feel like one of them rolled his eyes at me, but I might be making that up. Regardless, the gist was clear.

[00:34:18]

He's putting on a show for you. It's never like that. They said they never have that much evidence before they go to the grand jury.

[00:34:25]

People get indicted for stuff in 90 seconds. No discussion. They knew you were coming, sucker. These are all people who know Brian Rhatigan, who respect him, but such was their disbelief that actual fairness could be at work upstairs, they almost couldn't allow it was possible.

[00:34:43]

I told Brian about this conversation a little awkwardly, he was just like, oh, you got played, sister. I'm not telling you got this sentence. Why? Cause why not? Because then I'll be busted if the record are.

[00:34:57]

Ted, Jack, your secret's safe with me. I did not tell, but I did want to know, what did Brian think of what the defense attorneys were saying, that prosecutors and cops are taking cases before the grand jury, often seeking severe charges based on thin information before the crime has been investigated in any real way. His answer was, yeah, that does happen sometimes you do get cases that are solid right from the get go or maybe get lucky with evidence, like with this rackman case.

[00:35:27]

And again, sometimes there's just not there's just not enough there and or we think we have enough. And then you learn information later on. And again, remember, a lot of times, too, you're under a time crunch.

[00:35:40]

He's talking about speedy trial rights for defendants. Also, if they don't indict within 10 days, the defendant gets a preliminary hearing before a judge to determine probable cause, which the prosecution does not want. That is a whole procedural nonsense that you do not want me to get into right now, I promise.

[00:35:58]

But what it all means is that they are in a hurry to get cases to the grand jury. Brian told me it's all about speed, unfortunately. And again, speed might not be a problem if you didn't have 13000 felonies to process, but you do.

[00:36:13]

So, yeah, it's obviously not ideal when investigations aren't fully cooked. But Brian said sometimes you've got a major crime in front of you if somebody is arrested for it and you've got to make a determination.

[00:36:24]

I mean, what are you going to do if you if you really think that you have the guy that you have the right guy, do you want him out on the street to, you know, say it's a murder, you want him on the street to go do another one?

[00:36:37]

Or do you say, you know, I think we've got enough here? You know, it's so it's not perfect.

[00:36:45]

And sometimes because of that, he said they make mistakes and sometimes because of that.

[00:36:51]

And this is me talking now, you end up with cases like Damons. But what are you going to do? More after the break. This afternoon, the main thing Brian's got is a pre-trial, a humble back of the hallway pre-trial, which is precisely where I'll get to see the most powerful guy in the equation. Brian, do the very thing a half century of legal tinkering has primed him to do, negotiate a plea.

[00:37:26]

The case is the one that Detective Ray Diaz called about this morning. It's a nightclub shooting. The defendant named Dominique Williams had been at the MNM Saloon, and when the place lit out for the night, Williams allegedly shot and killed a guy right outside a bunch of shots, fairly close range. As Williams was running away, an off duty police officer working security at the club started after him. And Williams shot at him, didn't hit him. The cop shot back and hit Dominique Williams in the.

[00:37:54]

But he was arrested on the spot. A gun was found under a porch nearby. Detective Diaz calls again and tells Brian about the witness he'd brought in to interview the witnesses a friend Williams was at the bar with and apparently the friend talked to them.

[00:38:11]

OK, so we've got he's identified he's identified Williams as a shooter then.

[00:38:18]

Yes. OK. All right, well, that's a pretty good statement for us then, I guess, huh?

[00:38:26]

Yeah, yeah. When you when you come up here, can you are you you think it'll be done with him? By what time is it.

[00:38:34]

Sorry, 115. OK.

[00:38:38]

Brian's pre-trial in this case starts in 15 minutes. This call puts Brian in a stronger position to negotiate.

[00:38:44]

Was the first time on the way to the elevator, Brian says his supervisor saw Awadallah in the hallway, gives him a swift update on this new evidence.

[00:38:51]

Oh, that's good. Circumstantial to look eyeball witness.

[00:38:54]

Yeah, we take the elevator up to 16 head to the pre-trial area. Brian finds Dominique Williams's attorney, Craig Weintraub. He's been assigned this case along with another attorney who didn't show up today.

[00:39:07]

They sit down. Craig starts to talk about a possible plea. He doesn't know about the ID witness.

[00:39:12]

Cops are interviewing downstairs at this very moment.

[00:39:16]

We got to present an offer to you. Is that the deal? OK, well, one thing I should tell you, Diaz, the guy that Williams was with his body at the bar, that we were able to track them down. They just interviewed him today and he Edesia. Guy says, yeah, he walked outside, walked out before your guy, and then Williams walks out. He says, Then I see annatto walk out.

[00:39:45]

That's the victim, Derrick Janetta.

[00:39:47]

And he goes, you're not it doesn't say a word. And Williams ran it off like five shots at him. How is he tracked down what it what was the story? I put a subpoena out to him, put it on a door.

[00:39:59]

Where did you go into to drag him out of Farnam at his mom's house, you know, what do you think? Yeah. OK, yeah.

[00:40:09]

And so now that he's seen sunlight, where did he go, by the way? Why did he disappear and what's been his story. How come he hasn't stepped forward to say, oh my God, I witnessed a homicide.

[00:40:21]

My understanding is that he's been in contact with Diaz and stuff. And just as stood them up like five or six times to come down, got more important things to do.

[00:40:28]

He doesn't want to be a rat, a rat on your guy. I think currently he has. Brian is used to Craig Weintraub.

[00:40:36]

He's probably done about ten murder cases with him right now.

[00:40:39]

Unfund fact about Craig Weintraub. He represented Ariel Castro, the guy who imprisoned three women in his house for ten years.

[00:40:47]

After a case like that, maybe you either quit the law or you stick it out, wisecrack your way through the day whenever possible.

[00:40:56]

Regardless, I know what you're talking about now. He was the guy I walked in and I saw him leave being led by Diaz. He had the cane and a dog he the guy couldn't see. Get it. Brian plays along.

[00:41:09]

He was being led by Diaz. Those are those are props you'll get rid of before the trial.

[00:41:15]

Yeah, I'm going to get them into the courtroom. We're going to practice how many steps straight, how many steps to the right. You know, guys do. That's what we do best. They start talking numbers.

[00:41:25]

It sounds like an auction, but that's how they're negotiating this plea. First, figure out a prison sentence Dominic Williams can live with, then figure out the charges he'll have to plead to. That'll add up to those numbers.

[00:41:37]

I was looking at a range of like maybe 12 to 15. You don't get smiles on their you see.

[00:41:48]

Yeah, no, you're not going to.

[00:41:49]

I was going to read to 12 to 15 until you found this guy slithering around.

[00:41:56]

Brian's laughing because laughable. There's no way 12 to 15 is more like armed robbery time. Weintraub knows that.

[00:42:04]

What do you think a bottom end number is on this flat timer or it's going to be it's going to be a big number if that's not going to be a life tale. You know, I mean, that's the that's the issue here.

[00:42:15]

I'll translate flat time means the number is the number. Twenty years is twenty years. But murder charges in Ohio carry what's called a life tale. Murder starts at a mandatory fifteen to life. Aggravated murder starts at a mandatory twenty to life. Williams is charged with both kinds, which come with a raft of guns. Because if you get a life tale, say 20 to life means you have to serve 20 years before you can apply for parole, which you're not likely to get, at least not the first time around.

[00:42:44]

So 20 to life could mean 20 years or it could mean you spend the rest of your life in prison. Dominique Williams is 27 years old. Understandably, he wants flat time for that to work. They're going to need to reduce the charges to some kind of manslaughter.

[00:43:01]

What do you think? Realistically, it's not twenty's I mean, it's not tennis. It's not to molest.

[00:43:07]

I mean, so the little piece that was before the other guy said, yeah, he's the one that shot them and I watched them.

[00:43:14]

Yeah. It's not it's not a good factor, you guys. I mean, I really think it could be a manslaughter with a range of maybe, you know, 14 to 20. Potentially. But be that as it may, I forgot, I've got I have a police officer I got to worry about, too, so keep that in mind. I mean, that's you know, that's where you're talking. If you want to range, you're talking.

[00:43:41]

High 20s in the mid 30s probably, or he just takes it on the chin and does a murder. And he's got the life tale. All right, let's figure it out. Yeah. Whatever number they settle on, they're confident the judge will go for it. By the time we get back to Brian's office, the detectives on the Williams case are waiting for him to tell him more about the witness interview.

[00:44:04]

It's Ray Diaz and also Detective Jody Remington.

[00:44:08]

So any record or anything on this kid or not? He did five years federal time for something.

[00:44:13]

Yeah, Brian and the detectives are easy with each other. No errors or formalities. You can tell they worked together a long time.

[00:44:20]

Did he know what the beef was? No. He said that he tried to eat. People have been talking, but he said as far as he knows, it was for no reason. Watching how closely Brian works with detectives all day gave me an appreciation for why the system finds prosecuting a cop so excruciating, Brian has had to do it. Just a month and a half ago, he prosecuted a Cleveland officer after he shot and killed a teenager, 18, who'd broken into a store.

[00:44:48]

The cop was charged with negligent homicide, a misdemeanor, and Brian took it to trial. Not with relish.

[00:44:55]

Nobody wants to do harm. I mean, nobody no judges don't want them. Prosecutors and defense attorneys are one of the police that are investigating them, don't want them because they're hard. Legally, they're complicated because cops are allowed to kill people in certain circumstances, but also for Brian, their morally complicated Brian supports police officers. He knows how many guns are on the street. He thinks their job is harder than it's ever been. But he also doesn't think that 18 year old deserved to die that night by prosecuting the officer.

[00:45:29]

Brian didn't feel like he was taking a side. He felt like he was doing his job. But at the trial, the police made it obvious they did not feel the same way.

[00:45:40]

You were in that room, what was the thing that seemed the weirdest to you in that room? Me at the table by myself and like 40 police officers on the other side, I mean, that was weird, wasn't it? I mean, it was weird. It was strange, you know, and then I had one detective that came and sat with me finally. But, you know, that's weird.

[00:45:58]

I mean, I know I know them. But that's you see what I mean, how easy it can turn into us versus them, how they can, how they could. It looks like we've turned on them. The all around discomfort of that, the police feeling attacked, Brian, feeling as if they're glaring at him like he's a traitor. Plus the public perception that the government suits on the ninth floor will never really give their all to prosecuting their pals.

[00:46:26]

In blue is why Cuyahoga County recently changed its policy. Local cases of police shootings are now farmed out to prosecutors from another county. Incidentally, the judge in that case found the officer not guilty and the judge was endorsed for re-election by the police union soon after. Neither outcome surprise, Brian. Back to the Dominique Williams case nightclub shooting, Brian asked the detectives what they think Williams his sentence should be.

[00:47:06]

I know you guys really don't give a shit, but what do you guys think of for a number for Williams?

[00:47:20]

I'm always open when it comes to that. Yeah.

[00:47:25]

You're buying into the shit that that our victim did something before this to bring this about.

[00:47:32]

He may have. I think the problem that Dominique has is, I mean, he shoots him five times, he's not armed. And then he knowingly runs from a police officer who's identifying himself and he has the audacity to turn and shoot at policemen. I mean, they're talking flat time. And I mean, I don't know, am I off base by saying Twenty's is a no go? I mean, you're and now the the one witness has identified them and said he's the shooter.

[00:48:01]

So, I mean, I I'm not on the case, so I don't know if it's my place to speak, but yeah. Twenty seems low.

[00:48:06]

That's Chris Schroeder, another prosecutor who was waiting to talk to Brian about a different murder case.

[00:48:11]

For a guy who is not I mean, it sounds like he's executed this guy outside and then he shot at the cop as he was fleeing and shoot twice at the officer and find two casings. And it I know we found two casings, but I know the policeman thought he shot more. Right. But even even this we brought in today said he stood over him and shot him after he was down.

[00:48:33]

I said, yeah, yeah.

[00:48:34]

I mean, so if you want five time, it's a at least 30. Right. I mean. I would, yeah. All right. OK. After the detectives left, Brian and Chris Schroeder discussed a double homicide, if that guy wants to plead, Chris said it'd have to be something like 40 to life or 50 to life.

[00:49:00]

It's going to have to be a high, high mark, he said. I found these huge numbers shocking, I'm not even sure why, obviously, I know people get multi decade sentences, life sentences all the time. Maybe it was because I had just been reading about Germany's sentencing practices, where a sentence for the very worst crimes usually lasts about 15 years at most.

[00:49:23]

Or maybe because I've now seen and talked to people, young young people who were staring at the prospect of 10 years or 14 years and they were desperate.

[00:49:34]

Brian and I talked about this for a while. I told him about my conversation with Charles Wakefield, Abel's father. He wanted the person who killed Aviel to be punished. But he also considered what happened to his daughter a quote unquote, accident. He knows whoever shot her didn't set out that day to murder a baby. It was a mistake. By Justice Center standards, his vengeance was very conservative. I can't remember how it came up, but so he kind of threw out the number like 10 years.

[00:50:03]

And I was really surprised because I was like, you know, person gets convicted for that murder.

[00:50:07]

There's no way 10 years is coming out the other end like, you know. And but it was interesting to me like that that seemed he could balance the scales in his head with with a ten year sentence like that seemed about right to him.

[00:50:19]

Do you think 10 years is fair, though, for killing of killing a kid?

[00:50:24]

I mean. I don't know, the fare is such a weird thing because I feel like it totally depends on the person, right? So like I say, it's. An 18 year old or a 17 year old, maybe 10 years, is fair because by the time that person is closing in on 30 years old, they've totally changed and matured and like realize like, whoa, I mean, a lot of horrible choices.

[00:50:54]

Like, I don't know that you're going to have a difference between 30 and 50 or 30 and 60 or 30 and 70 in terms of a danger to the public. I get that.

[00:51:03]

But shouldn't there be some aspect of a significant punishment for it, too? And I don't know that 10 years after taking the life of somebody is enough. I just don't I mean, I. I understand that there's going to be there is going to be that change and hopefully there is there's that real realization, like in your late 20s or something like, holy shit, I fucked up, you know, I fucked up.

[00:51:25]

But I don't know that that's just because you have that realization, then you should be able to get out.

[00:51:31]

There should be some aspect of a punishment with 10 years is a punishment for, I don't know, ten years, ten years for like it's not just that it was a baby, OK? It was a blatant disregard for everybody's safety on that street. Thank God somebody else didn't get shot, OK? At this point, I feel like even I need a reminder, it is not Brian's job to sentence anyone that's for the judge. But certainly Brian is teeing up the sentences people get.

[00:52:00]

And when he's thinking about sentences, it was also striking to learn what Brian was not thinking about deterring crime or who exactly is getting locked up. He doesn't come to work every day thinking about criminal justice policy. That's not what's guiding him.

[00:52:15]

I, you know, deterrence and laws and how to fix communities and all that type of stuff. Like, I try not to I try to think of it that way. I think it's just we're better off worrying about our our victims here, because when I'm talking to somebody that had their son killed or their daughter killed, her mother raped and murdered, they don't care about the deterrent. They don't give a shit about somebody else's kid or whatever they care about.

[00:52:45]

What am I doing for them? And that's what I that's how I try to keep it. So I try to think of what can I it's the best thing I can do for these people. You know, sometimes it's a place sometimes it's going to trial, whatever. It's. I don't know that we ever if we deter people, we hope we do. I mean, that's why we have some of these sentences and things like that. But, you know, we've got gun spikes now for people that if you commit a crime with a gun, you're going away from our prison.

[00:53:14]

You know, we have one of your gun suspects and three year and five year and eight year specs. And I think they're great, but I don't know if it's eliminated the amount of guns that are on the streets, you know, I mean, is it deterring the next guy from picking up a gun? I don't know. Brian is using all the legal and procedural tools at his disposal, all the tools we've given him to resolve cases mostly through pleas, but he doesn't know if what he's doing is making Cleveland any safer.

[00:53:42]

He can't consult research that'll tell him what sentences equal what result, or a statewide database showing whether sentences are being applied equally without racial bias. Because and I know I've mentioned this before, but it bears repeating because it is a massive black hole in our own understanding of our own criminal justice system.

[00:53:59]

But there is no comprehensive data on sentencing. We don't keep track.

[00:54:05]

What we do know is that overall, more and more prosecutions, longer and longer prison sentences, while they do have some effect on crime, but not that much, it's very little bang for such huge bucks.

[00:54:19]

That's why Brian concentrates on the only result he can really see day to day, which is when some measure of peace descends on a crushed family. So that's what he aims for, a punishment big enough to trigger the healing power of retribution. I mean, that's the way you have to look at it, he said, because if you look at it any other way, you'd lose your mind. Dominique Williams wasn't going to agree to 30 years flat time.

[00:54:54]

He also rejected an offer of 20 to life. Instead, he took it to trial. He was convicted easily. He's now serving a sentence of 35 years to life. And the grand jury vote on the Abdul Rahman case, they know build the voluntary manslaughter, they did not think he should be charged with a crime for shooting. Andrew Easley seems they decided it was self-defense. After spending about seven weeks in jail, Mr. Rahman pleaded guilty to illegally having a gun and he was sentenced to two years probation.

[00:55:26]

Brian met with Andrew Easley's family to tell them about the grand jury vote. He said they were unhappy about it, but that he thought they understood it. Many months later, I interviewed Andrew Easley's older sister, Jacqueline. She did not understand it. She had watched the security tapes from the bus. She didn't understand why the prosecutors didn't charge the two people whom she thought incited the thing. Andrew's girlfriend, Rachel, who'd kicked Mr. Rockman off the bus, and the younger man who'd initially bullied Mr.

[00:55:55]

Rahman. And she didn't understand why Mr. Rahman himself wasn't charged.

[00:56:00]

She didn't think he was acting in self-defense when he shot her brother, the two people they did put their hands on, he didn't shoot. So you had every reason to shoot if it was self-defense. You know, they come up hitting you, slapping you, kicking you OK? Yes. My brother and touching my brother and said one word to you.

[00:56:22]

Could you understand how a grand jury could watch those same tapes and come to a different conclusion than you did. Now? We did ask how you know why, but, you know, they really didn't give an answer, say, you know, all we do is present and it's up to the grand jury. That's all I get.

[00:56:44]

Right. Do you believe that? No, I don't. I mean, I know a lot a lot about the justice system politics, but no. When I asked Jacqui what would have been different for her family, what would have felt different if Mr. Rahman had been indicted for murder or manslaughter? She couldn't say exactly. It might have helped some, she said, but it wouldn't have helped a great lot.

[00:57:12]

Either way, her brother would still be gone and the pain of that would still be radiating through her family. Even so, she said she wanted it. And the best outcome you can hope for when a crime happens to you is that your pain is acknowledged, that the person who harmed you is punished and that you get some reparation. And believe it or not, that trifecta does happen. We met someone next time on Sirio. Serials produced by Julie Snyder, Emmanuel Joce, Ben Calhoun and me with additional reporting by Italia Makovski editing on this episode from IRA Glass.

[00:58:11]

Whitney Dangerfield is our digital editor. Huge congratulations to her for having a baby. This week, research and fact checking by Ben Feiglin. Sound design and mix by Star Nelson. Additional production from Kate Dolinsky. Music Clearance by Anthony Roman Sutherlin is our director of operations.

[00:58:28]

The zero staff includes Emily Condon and Julie Whitaker, Kasey Whouley, Frances Swanson and Matt Tierney. Our music is by Adam Dorn and how Wellner with additional music from Matt McGinley, Nick Thorburn and Wes Schwartz. Our theme song is by Nick Thorburn and remixed by Out of Door special thanks to Lisa Knowler, Donna Weinberger, Sarah Andrews and Scott Shoemaker at the Ohio Criminal Sentencing Commission. Raam Subramanian at the Institute of Justice.

[00:58:52]

John Pfaff, Paula Boggs. New thing, Rachel to sound.

[00:58:56]

Judge Pinky Carr, Kimberly Corral, Kim Yoder, David Raphael, Mike Barba and Katie Fuchs. The art on our Web site is made by Adam Mayta.

[00:59:04]

He created the mural for this episode and math studio. Did the animation please check it out on our website, serial podcast dog that serial podcast dog, where you can also sign up for our email newsletter and be notified when new episodes are released.

[00:59:19]

We're also, of course, on Facebook and Twitter. Serials are production of This American Life and WBCSD Chicago.