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[00:00:01]

On January 24th, 2004, James Davis took his little brother Daniel, to a big party at the Brooklyn Masonic Temple to celebrate his birthday. James Knight was cut short when he over served himself vomiting several times. Daniel put him in a cab to meet his girlfriend, Courtney Johnson, two hours later. A fight would break out in the club, resulting in their friend Jamal Black being stabbed. And another man, Blake Harper, being shot and killed by police, were to interview people at the scene and get a description of the shooter, a light skinned black man with braids.

[00:00:36]

But James didn't have any brains at the time. He had short hair with waves. Police would call stabbing victim Jamal Black's home speak to his sister, James, a spurned ex, Tina Black, who would flippantly named James as the shooter even though she wasn't at the party. Police found Jamal at the hospital who told them the identity of the real shooter, Taylor Hall. So was it Tay or Jay two weeks later? Josie Magico, who was at the club that night, would enter the precinct.

[00:01:08]

And second, Tina Black's ID. About six weeks after that, James would find himself the target of an interrogation, a sham lineup and a murder charge. Only after his case was picked up by the Legal Aid Society would it be revealed that Jose Magico Tate was in fact one of the most dangerous drug dealers in Brooklyn and the subject of a joint FBI NYPD investigation. Chakotay was murdered five months after his erroneous testimony had sent James to prison for the rest of his life.

[00:01:38]

This is wrongful conviction with Jason Flom. You know, we create these podcasts with the aim to educate as well as to inspire action. Now, we'd love to hear from you. We'd love for other listeners to hear what you've been inspired by when listening to these incredible human stories and what you've been inspired to do. Have you written a letter, talk to a friend or parent about it? Have you donated money or dedicated some of your time? What's your story?

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Come leave all of us a note in the review section of Apple podcast. Tell us how you've been moved. And and remember, and I truly mean this. No action, no story is too small to share. What's yours.

[00:02:28]

Welcome back to Wrongful Conviction with Jason Flom. That's me. I'm your host. And today you're going to hear a story that when they write the history of wrongful convictions, they could put this on the cover because this story is so outrageous that, well, you're just going to have to hear it for yourself. We were prepared for prepaid call from an inmate at New York State Department of Corrections and Community Supervision. This call is subject to recording and monitoring, to accept charges, press one to reduce charges, press two, if you would like.

[00:03:01]

Thank you for using Securus.

[00:03:03]

You may start the conversation now on the phone from prison where he's been for almost 20 years. We have James Jay Davis. Hello. Jay, thanks for calling in. And I hope that we'll be able to make a difference. And with us today, we have Elizabeth Delbar, who is the supervising attorney in the wrongful conviction unit of the Legal Aid Society. Thank you for having us. Let's go back to the beginning. James, you had a rough childhood growing up in Brownsville and Brooklyn, right?

[00:03:30]

Yes, very. My mother and my father were really in my life. It was more of my grandmother. My brother school was good up until maybe in fifth sixth grade where we started noticing that your clothes aren't the same as everybody else's and people pick on us, stuff like that. My father died when I was in fourth grade roughly two years later. My mother passed away the year before that. My father passed away. So both of us had no parent by the time I reached sixth grade.

[00:04:04]

Did you feel like a certain amount of responsibility, you know, as the older sibling at that point?

[00:04:10]

I think I have all of the responsibility. I had to watch that. My little brothers, I had to keep people from picking on him outside, as well as keep people from picking on me and bullying me. So that's when the fight started happening. I started getting into a lot of trouble. No, everybody has your mother joke, Joe. I've got to imagine that they stung, you know, a lot more with all you'd been through already.

[00:04:34]

So now you're staying at Grandma is looking out for your younger brother, but who's looking out for you?

[00:04:39]

By the time I was 14. I was getting beat a lot. I have a cousin who was supposed to be disciplining, but getting in trouble at school and in the neighborhood, and it was kinda excessive. So what ended up happening? I started to run into the streets as much as I could for as long as I could. I was doing a lot of stupid stuff. I was never problem people. I was selling we or whatever the old and the old, the guys on the corner might be able to supply.

[00:05:13]

And that's when you ended up in juvie, yes or no? When I make it to juvie, I'm going to school. And I met this teacher guy named Mr. Bliss very, very, very smart guy. Like he knows something about anything or whatever you want to do. I like that he he had that much knowledge. And I confided in him about school and and he convinced me to take my job. And I ended up passing that I pass.

[00:05:42]

He was like, you can go to community college and skip going to high school. Now, for me, education, I was taking like biology and global history economics classes, and it was giving me credit for somebody come and check my work.

[00:05:57]

So I understand you were accepted to keep your community college in North Carolina near where your aunt lived. No small feat considering your record, but your probation officer wouldn't transfer your supervision out of state. So you were trying to get yourself into some computer science classes locally.

[00:06:13]

Around that time, I found out that my brother was in the streets and that's pretty much where I got back involved in the streets selling weed and being there for this case.

[00:06:25]

Elizabeth, take us back to January 24, 2004. What happened that fateful night?

[00:06:32]

OK, so January 24th was his brother Daniel's birthday. And Daniel wanted to go to a party that was being held at a Masonic Temple Lodge where they they hosted events. It was a party for people with Jan.

[00:06:45]

Birthdays on my birthday was coming up. It was more whatever you want to do, I'm going to participate. Feel is old. The guy from the neighborhood that he's like a.. Well, like he does parties. He knew my brother as well. So them was promoting the party deal. And another guy I don't know which one of them. My brother. I've been talking about his birthday for a long time. So they put him on the fly.

[00:07:13]

I guess Jay was not really a partygoer. He was a quiet guy. I think he'd tell you himself he'd rather stay home with friends, smoke weed. But he loved his brother. He was fiercely protective. So he decided to go with them as well. My brother. My birthday, my plan was to like, you just want to maybe call up some girls to come hang out at the projects with someone they can drink for free and hang out.

[00:07:36]

He was bent on going to the party because his name was on the flyer. So it comes to be almost o'clock. And I wanted to surprise my brother. So I walked to the liquor store before close to get a bottle of Moet and a bottle of Hennessy. And when I got back, my brother was like, Oh, I forgot the party.

[00:07:57]

And Jay was not a big drinker. So by the time he got to the party, he had had a few already. And then he persuaded the bouncer to let him or one of the hosts to let him combine the two drinks he was drinking, which were Hennessy and champagne, kind of a disgusting combination. He threw them you we put them together. He went into the party and he proceeded to have a few more drinks in the bathroom because they told him, OK, you can have your own drink, but you have to put some shade on it before you know it.

[00:08:27]

I was trying to rush my drinks so that we can actually get out the bathroom. I wanted to see what the party was really like. Plus my brother, you know, smoked. So he's out on the dance floor most of the time anyway. So I don't want to get out there, actually enjoy some of his birthday with him. And the mixture didn't agree with me. The industry and the mall with my stomach over that was the start of the end of the night to maybe once or twice in the bathroom and before I knew it to a laugh.

[00:08:59]

And I hit my brother pretty much like, come on, man, now I got to take you back home. We just got here. We ain't even fully been in the club long enough for negotiation. I just told them not to walk me outside. I catch a cab and I go to my girlfriend's house.

[00:09:15]

So they went outside, they got a cab, and James called his girlfriend, Kanene Johnson, and took the cab to her place and she met him outside. Her mother didn't like James, so they would stay with her aunt.

[00:09:30]

I got 245, maybe three. So when I got there, she's sitting on the steps already. I step out the cab. They got to work in between cars. Before I even testified, she came running down the steps of my back, I think. And what on stop at the store and went into our house. And that was the I think she had a couple of jokes and I had to go again.

[00:09:56]

So he was long gone before anything happened at the party, which was around 4:00 in the morning, a fight broke out and somebody was seriously stabbed. We now know that was Jamal Black and Blake Harper was shot and killed. A couple other people were shot, but not seriously. But James had already left the party hours earlier.

[00:10:18]

So you wake up the next morning at your girlfriend codenames her aunt's house. Really? And one of the guys you were with, Jamal Black, had been stabbed the night before. How did you hear that news?

[00:10:28]

Well, both of us, the news is all about the Masonic Temple. Immediately, I called my house on the land and first thing I said is my brother is my grandmother. He came in last night. He's in a sleep. You know, they had a fight, right. And acts from my aunt as my aunt. Probably no more than my grandmother was. And more on is like here, Jamil Gustad and this guy got stabbed and somebody got killed.

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But nobody knew who the guy was that got killed, so I'm coming over there. I got the Observer pretty much told me I wasn't really involved in it, but it was crazy. And the fight broke out. People shooting, girls screaming and everybody running.

[00:11:17]

Police had responded to the scene and they interviewed a number of people at the club. And no one that they interviewed knew the identity of the shooter. But he was described as a young, light skinned black male with braids on the back of his head. Now, James, is that an accurate description of you at that time?

[00:11:33]

No, I actually did have read that that had a little Caesar like waves.

[00:11:40]

So police have already interviewed witnesses at the scene the night before. Your friend who was stabbed, Jim'll Black, they call his house, but they get his sister on the phone instead. Now, James, you have a storied past with this young woman, correct? Tina Black, like the first girlfriend I ever had. We've never done anything together, but we've been like close friends ever since. Being boyfriend and girlfriend had like eight or nine years old.

[00:12:06]

And when I went to juvie home, made contact again somehow. And we was talking about pretty much moving in with each other when I came home. But when I came home from juvie, it was like, I don't know if she gave me like the cold showed up at three and a half years almost. I'm coming home to a girlfriend thinking that, you know, sex is like great deal on the list. One of the first things at the scene, each other's family and kicking in for a little bit and how much it was like, nah, I'm not trying to do that.

[00:12:41]

So I was like not relieved of the pressure and peer pressure and anything. But this is stuff that we've been speaking about for like over a year already. After that day, we never spoke as girlfriend and boyfriend again, but we see each other in person and we always remain cordial. But we never spoke on a relationship or any of that stuff ever again.

[00:13:01]

What we learned was that Tina Black still harbored a flame for him and was hugely jealous when she found out that he had a new girlfriend. And out of spite, she told the police that James did the shooting, even though you can tell by the only police record on her, she wasn't at the party that night. She was very sick with juvenile diabetes, too sick to go to a party. The police should have known that she wasn't at the party, and yet they just focused on him.

[00:13:30]

The second page of the detective notebook says Purp James Davis Jr.. So was just tunnel vision from then on out. Right.

[00:13:37]

So the people that were there couldn't identify the suspect. The woman who wasn't there does identify a suspect. And of course, we know that Tina later on confessed to her mother and to others that she had lied to the police.

[00:13:50]

It just seems like so many different things went wrong that didn't need to wait. And this now we're up to the part with the detectives went to the hospital. Right. And they interviewed Jamal Black. So could you can you talk about that a little bit?

[00:14:01]

Sure.

[00:14:02]

So the detectives actually went to the hospital the day of the incident and they were told he was just coming out of surgery. He was too out of it. The doctors wouldn't let them interview Jamal. Jamal testified at our hearing and he told the court that what happened was those detectives came back later and they wanted to know what happened. And at first he wasn't really engaging with them. But then they made it seem like they thought he was the shooter, which makes sense, because if there's a brawl and one person gets shot and the other person gets stabbed, you kind of think that they're somehow related.

[00:14:37]

And so because of that, Jamal told them what happened, which was he had been stabbed by the guy who was subsequently killed. And this guy named Taylor Hall was helping him out of the party. When he says, oh, shit, pushes Jamal to the ground and you hear shots fired, Jamal looks up and he sees Taylor putting a gun back in his pocket and saying, I got to get out of here. The police are coming. But there was no written report about that conversation and it never came out at the hearing.

[00:15:09]

The judge said I was just not credible, that they wouldn't have a report about it. Well, it's also not credible that you wouldn't interview the person who was stabbed because they would most likely have the most relevant information.

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So let's fast forward then to a couple of months after the shooting, and that's when the warrant squad came. They were actually looking for your younger brother when they arrested you and you weren't even aware that they were looking for you because you knew that you didn't have anything to do with this. And there was no reason to suspect you of anything other than being drunk and throwing up on the sidewalk. And they arrested you, brought you to the precinct and interrogated you for hours and hours.

[00:15:49]

Maybe they thought you were going to confess or something like maybe even a false confession, but you never did know.

[00:15:55]

They took me from my house and under the guise that I had a warrant. Which I did I did have a warrant for disorderly conduct and do community service, but they never took me to the court building. They took me down to homicide headquarters, where I met Detective Hutchinson for the first time before they took me to the precinct at the precinct. They pretty much respect for me. Do I know Jamal Black and do I know what happened to Jamal Black?

[00:16:25]

So I explained to them the same thing that I just was telling you about getting drunk and leaving a party. And that seemed all right. They left and then they came back and they were still asking me about the party and where I was at. So I gave them more detail of who I went with, who actually walked me to the door or whatever, where I went after I left the party and they left again. But this time I'm I'm I'm feeling funny.

[00:16:52]

I'm like I keep asking me, where was that? The next time you came in? I think he started asking about the shooting. You know, the guy that got to know the guy that got killed. But I know one of the guys that got shot because I went to school with him as well. But I don't know the guy that got killed in from there. I don't I don't remember exactly the rest of the questions, but it was pretty much all about the shooting.

[00:17:16]

That's like when when am I going to court? I'm going to be going to court. And I know what we're going to do is we're going to put you in a lineup. I'm like, oh, man, I need a lawyer is like, do you have a lawyer? I'm like, no, I don't have a lawyer, but I have a lawyer in my family who can come and represent me. And he asks me for his name and phone number.

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I don't have a phone number for him, but he should be listed. My uncle Robert Robert Davis is a lawyer. I don't want somebody president, but he tells me if I don't have a number for him, then he can't call them. And they just took me back to the room and left me in a room. And from there it went to the line up and he came back with four guys. Three of them is dark skin, two of them heavyset.

[00:18:03]

This can't be the people that they're going to put in the lineup with me. Nobody looks like me. Nobody favors me in no way, shape or form. But I'm like, this can't be any bring two more guys in, like Indian looking guys. Oh, my God, this is this is the six letters, can you tell us a little bit about it, this line up and how things went so wrong?

[00:18:26]

As he says in his own statement, this is not a fair line up. So the line up in itself was already suggestive. But there were three people who viewed the line up. One of them was they matched. He was the first witness that they brought in to view a photo spread about six weeks earlier. And it was unclear why he was called. He was the brother in law of the man who died, but he was not one of the people that had been originally interviewed.

[00:18:50]

It's pretty common knowledge that when you picked someone out of a photograph, you pick them again in the lineup because you recognize them as the person. But the lineup happened six weeks later at the lineup. The two other witnesses, Harold Poe and Shawn Belton, they were brought there by the mother of the deceased. And according to their testimony, she called them and said they have the guy they think who did it at the precinct and they want you to just come to see if you can identify him or something to that effect that's already contaminating the lineup because there is a pressure put on them that this is the person they have, the person they feel compelled to pick one person, especially especially when the mother of the deceased has chauffeur driven you to the precinct.

[00:19:32]

So they picked James, but one of them said always from the beginning, well, he resembles him except for the braids, because when James got arrested, his hair was short. And the other guy, Sean Belton, now, originally he had said, I didn't see anything when the police spoke to him. Now, he said, oh, I just said that because I was afraid. But the description he gave before he viewed him was someone wearing a skull cap.

[00:19:54]

And that's nowhere in any description. And also five, ten. And James is like five, seven. So he didn't even describe someone that looked like James. So that's how they picked him. There wasn't a fourth person at the lineup who did not testify at the trial or the hearings. And what Detective Hutchinson said about him was we picked him out. He just wouldn't sign the the sheet saying he had again, you know, some things just your alarm goes off.

[00:20:19]

That smells fishy. So we caught up with him. He did not want to be involved. He made that one hundred and fifty percent clear. But what he told us was, no, I never said that was the guy. That's why I wouldn't sign. And what I said to them was, if you say that's the guy, that's the guy. So to me that says they were being prompted to pick James. And I should just add that Sean Bell ten at the second trial, recanted again and said I just glanced at him.

[00:20:46]

He gave four separate statements. So that was him. And the other guy always only said he resembled him. So essentially it really came down to host match.

[00:20:54]

Cody, when you think about the convenience of Tina Black June, you give him my name to the detective. And then a week later, Jose, magically the drug deal. And finally, Rob, who is a humble Baldwin, now just happens to walk into the precinct. No, he is there at crime scene. When everything happened, he fled the crime scene. He walks into the precinct and he takes my picture. He's the only one that goes to the police.

[00:21:26]

And it just so happens that he's known in this neighborhood. To me, the whole the whole case is where from beginning to end, I think that this was a misunderstanding, maybe from speaking to Jamal Black and telling them this story he told them about and then exited about, hey, is she telling them change? And they just went from there when the easiest thing that they can do to close the case in. And it just so happened to me that I was convenient but a.

[00:22:12]

And Adaminaby told me I was being charged with murder and he offered me a deal pretty much. Detective Hutchinson asked me to tell him that I did it because he already heard about the story of what happened. Somebody told him that two groups of guys was fighting and the guy on one of the groups had a knife and the gun had a gun and he shot the guy with the knife to defend himself. Then you tell me that if I can help you speak to the VA, like what the hell kind of shooting, then why the fuck would I tell you at this time that I'm telling you, I wasn't even aware of I wasn't being for anything.

[00:22:51]

You know, if I was you, I would have did the same thing if it was me. A guy comes at me with a knife and I got a gun, I would have shot him. So in general, I was like, what do you want me to admit? This time I didn't do as wrong as I did and told them, if you would've told me that this what this is about from the beginning, I probably would have never spoke to you.

[00:23:10]

I wouldn't have tried to help you. But here it is. I tried to help you and I turned out to be the one going to jail. Pretty much. They fingerprinted me and put me in a holding cell for the rest of the night.

[00:23:21]

So now things go.

[00:23:25]

From bad to worse, right, the trial, there's a number of problems at both trials, although the first trial amazingly ended up and it hurts me to say this, and I know you must have had a lot of sleepless nights over this, James, but the first trial, in spite of the fact that you had substandard defense, you still ended up with an 11 to one hung jury in favor of acquittal. I rarely hear that. So talk about the trial from your perspective, James.

[00:23:58]

So his trial is going on. I'm reading the paperwork that they gave me the day before my trial actually started. I'm still going through paperwork and I'm noticing that, you know, they black out the names so you don't know who's who. But I'm listening to the stories and now it's making sense with the details from the police station, because now I'm saying, oh, this is the guy that said he never seen a friend at the crime scene that changed his story the other two times to this story now, which happened to be Sean Bell in his first statement to the police at the crime scene was, I never seen what happened.

[00:24:37]

I was talking to two girls and shots went off and I ducked for cover to protect myself. I never seen anything have hold throughout the whole thing. He never identified me from the precinct to trial. He only told the officers that it was two guys that look like each other that had a fight in the shoe and then everything. He only referred to me as looking similar to one of the guys in that trial. He said, I resemble the guy that you've seen at the precinct.

[00:25:09]

He never picked me out and said definitively, that's him right there that I've seen during the shooting, like. You have this this one guy, Jose, magically, whose name is the cause of his murder, his brother in law. Well, the two prosecutors, witnesses. Beside him, seeing that he started the whole fight, you have a conflict between your own witnesses really pointing the finger at this guy saying that he did X, Y, V, that caused us to come over and be of assistance to him.

[00:25:43]

But this is your main witness, Jose Magical, and he's saying that I had nothing to do with it. I'm a humble barber. I never committed a crime again after I was locked up all of those years ago. But here it is, you got two witnesses that you put in on stage and you want us to believe that they identified me, but you don't want us to believe that they seen that this guy is lying and he started a fight that led to this shooting and stabbing.

[00:26:11]

Did you think you were going to be exonerated, as you should have been?

[00:26:15]

I thought that I would be at the first trial because the jury that we have previous acts and questions that were relevant that should have stood out to the police officers that did the investigation to the DA's office, that got the paperwork from the police officers and go to my lawyer and put on the best case. The jurors use the common sense.

[00:26:39]

Cunneen Johnson, his girlfriend, did testify at the first trial. I think that in part was part of what led to the 11 to one acquittal, that she was a very persuasive witness because she was very persuasive at the hearing as well.

[00:26:52]

She's explaining to them how I came to the house, stand over her aunt's place. She's explained pretty much above it. And like me as much why we didn't stay at her mother's house as her mother was, was like a CEO Accio at the time. So it was like kind of a conflict of interest. This guy is selling weed and always smoking with no job. I guess she didn't think I was good enough for her daughter in the first trial.

[00:27:20]

Ended up with an 11 to one hung jury in favor of acquittal.

[00:27:24]

Even the judge said it must be wrong if one of the things one way and you go against that. But at the second trial, the DEA is saying that and one of the witnesses have the whole day really changed his testimony. We had his testimony read into the record because throughout the whole thing, he never identified me. You only referred to me as looking similar to one of the guys, Sean Bell, and recants. But I can't really consider that we can't.

[00:27:58]

And because he went back to the initial statement that he never seen anything, the other person that they say pick me out of a photo array, never signed or none of the pictures. But the detective is saying, I made a mark next to the picture that he picked out because he is like that. Don't even make sense. The only only witness that they have was holds a match. Actually, they're actually positively picked me out of a lineup.

[00:28:26]

And we find out later that the state's sole remaining witness, Jose Magico, the testimony on which their case rested was not the humble barber that the state made him out to be, but rather a full time drug dealer prone to extreme violence and under a joint investigation by the FBI and the NYPD. And all you needed was your star witness, Kanene Johnson, to show up and counter countermarch day like she did at the first trial. But at the second trial, I'm not with my girlfriend anymore, so I will contact is kind of really touch and go.

[00:29:00]

If she knows that I'm only calling to notify her of court dates and was going on with my life, which she's trying to avoid, I guess I don't know, but and can mean jobs. And the day before she was supposed to come in or two days before we spoke. And then I didn't hear nothing from her lawyers say he spoke to her and she was supposed to be coming in and then she didn't show up, but she was still being nice to him on the phone.

[00:29:28]

He called again and then she pushed him out. She told them that he sent police to her house there like 1:00 in the morning. But we learned that day in the courtroom that it wasn't actually my lawyer that sent the police, that it was the district attorney who subpoenaed her, even though in court she said, I never planned on calling this girl as a witness because I don't know what she's going to say. Even though she heard my witness say at the first trial, it was well known that my case that her mother didn't like me, but they still subpoenaed her and sent police to her house at like 1:00 in the morning while her mother's house, which actually infuriated her mother and caused her mother to kick her out.

[00:30:17]

That right there pretty much still the deal as far as her coming to court. And at that point, I was ex like, put me on the stand. If she's not going to come in, I'm the only thing we got left. You mean do nothing else with nobody else. So call me on the stand like they're going to eat you alive, which with your prior history and stuff, they eat you alive and the jury see that and Anna finds you guilty.

[00:30:44]

That's the last thing I wanted. So I'm no lawyer. One of them got me and me guilty. Anyone who's listening is probably wondering right now, well, if if I was representing him back then, I would have checked his cell phone records, I would have checked the cab records. We could have gotten a hold of the cab company and see if anybody because you took a cab ride and none of that stuff was done.

[00:31:13]

The weird thing is, out of all of the easy stuff that we think of, that could have been done. My attorney at the time hired a chiropractor, a child doctor to do medical examiner work. And I've never even seen the medical examiner work or any paperwork that he had done. But he didn't go in check a cab. He didn't go and speak to none of these witnesses and the files from the police reports. But you found a doctor to play as a medical examiner from your office building.

[00:31:44]

It's sad to say, but if you don't have money to actually pay for a lawyer in the justice system, doesn't really work for you, is really that it does. You rarely come across lawyers like Susan and Liz or people like you that actually go out of their way to help somebody out to show that they're innocent. And I appreciate every bit of it. The office is telling me that I have to get off the phone. He he's pressing them because of the time frame, I guess, because we was really only supposed to get like a half hour of phone calls.

[00:32:17]

No problem. Do that around a couple of guys that had a friendly head and know my situation, that wanted to make sure that everything was alright. But he will be with today or tomorrow or whenever I can. Thank you again. Thank you again. I appreciate you. And I hope you all have a nice day. I will speak to you.

[00:32:36]

So, yeah, we'll be back in touch for sure. But Vijay, the blogger, has hung up.

[00:32:46]

What an unbelievably calm and gentle spirit he's got. Here he is in this chaotic situation in a maximum security prison in the time of covid with people whose phone time he's sort of, you know, borrowing or whatever and guards who are going, you know, and yet he is so focused, which makes me even more sad, thinking about the lost potential that the simple act of kindness from the parole officer 20 something years ago could have just avoided this whole thing.

[00:33:18]

And God knows what he'd be doing with his life now contributing to society and probably building a family and everything else. So so meanwhile, the story goes on. Mr. Moccia Coté was murdered by a drug dealer five months after James. His second trial. Yes. After he was trying to rob the drug dealer for the second time in a month. So, yeah, he was tortured and killed. And I mean, this is something Quentin Tarantino stuff now.

[00:33:44]

But this is the guy that the authorities were painting to be a wonderful citizen who was bravely coming forward. And now he's a simple barber and blah, blah, blah. So that's all out the window. But there was also Brady violations in this case. Right. So can you speak to that?

[00:33:58]

So we learn this as the hearing was going on, the actual innocence hearing that we litigated last summer and we're appealing now, it was actual innocence and ineffective assistance of counsel. That's when we finally got eight witnesses in to talk and support James's story of innocence. So during our hearing, I reached out to the assistant U.S. attorney because people were prosecuted federally for killing Matthew Cody. And through it, I met the FBI agent who told me that at the time of the trial, Jose Mascia, Cody was under their investigation, was a joint NYPD, FBI investigation into drug dealing, major drug dealing in Brownsville.

[00:34:40]

And lo and behold, in the spring, which was when the second trial was happening, a confidential informant was buying huge quantities of heroin and cocaine from Mexico. Now, we don't know if the assistant district attorney knew that, but it's hard to believe that the detective who used to be a narcotics detective in Brownsville did not know that this man was a one of the major, most violent drug dealers in Brooklyn and be under investigation by the FBI. So that was never disclosed.

[00:35:13]

No, that would have been an inconvenient fact to bring up because they were trying to present him as the perfect witness. Right. So he was so brave. So there's the Brady violation because this wouldn't be complete without that, right? Right. So they have an obligation to turn over this information that they knew about. And that's what we believe happened here. And, yes, it does seem like that happens all the time. And what was in it for Mexico City?

[00:35:38]

You know, I don't want to go down too deep a rabbit hole of conspiracy theories, but that he was on parole the night of this murder. He had violated parole by being out past his curfew and the fight that Jay was referring to. A lot of the police reports say a Spanish guy wearing a fur coat grabbed a bottle, was in a fight on the floor. That was magic, Cody. So that was also a violation of parole.

[00:36:02]

So I don't know whether they threatened him with having him locked up, whether there was something corrupt going on. You know, it was the Seventy Fifth Precinct, which is notorious and has had some problems with corruption over the years. I don't know what happened. Even the FBI agent, although he said, you know, he was not a bad guy, that's what he how he referred to Mexico City, which is a computer database that you're supposed to check for any witness.

[00:36:27]

And in fact, the day they interviewed the witnesses at the club, they did. Hida checks on those witnesses, but there's no Hida check in the paperwork for Mexico City. So there's just something fishy about Mexico, Cody, and why they're so protective of him. And all we do know is that when the prosecutor got up in summation and said he's such a credible witness and, you know, he's credible because he was so honest about his past and now he's a barber, well, he might have been honest about his past, but he wasn't really honest about his present.

[00:36:58]

So, you know, in addition to the problems with ID evidence in a situation like that, you also have this unsavory character pretending to be someone that he's not. Wow. Yes, it's exhausting. This one's actually. So tell me about it.

[00:37:18]

I'm still writing the brief for the appeal, so none of that's disclosed to the defense of James. A second trial. Right. And we know about the whole that magical thing. Of course, it's almost like an exclamation point on the whole thing that he ends up I mean, I'm sorry the guy got murdered, but so, such a short time after this, as if to really just drive this home. You know, he ends up in like a scene from Reservoir Dogs being tortured to death by a guy who he was trying to rob for a second time, a drug dealer.

[00:37:53]

I mean, nice witness, right? And the first time he entered at gunpoint and tied them up and robbed them. So it wasn't his first rodeo. Now, I know it sounds like they turned the tables on him and then, yes, he met his demise and took this this false testimony presented to the grave with him. Yes.

[00:38:20]

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[00:38:53]

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[00:38:55]

And click on store and I'll see you out there now. You know, we get to the post conviction investigation. And of course, you had a meeting with the conviction review unit in Brooklyn. And this would seem to be one little ray of light. So where do we stand with that? So that was actually before I became involved in the case. Susan Epstein, who did the appeal and did a phenomenal investigation, brought the witnesses to the conviction review unit.

[00:39:28]

They had the case incredibly for five years. It's not exactly clear what happened. But one refrain that is throughout the transcripts of those interviews is why didn't you come forward sooner? The assistant district attorney assigned to this case just seemed very suspicious from the beginning. And she gave some of them a really hard time. But she got a lot of this information. I mean, she went to prisons and she spoke to Jamal Black, who's currently incarcerated, and he told her that it was he who did the shooting.

[00:40:00]

And she also fixated on some inconsistencies that I think are not material. The story that was told was coherent. Each witness corroborated one another. The vast majority of the witnesses told them that Che's hair was short. He cut his hair because he had some kind of skin condition. So just like you'd remember a party because you were throwing up all night, you'd remember that someone had short hair because they thought it was ringworm. It's not entirely clear that's what it was, but it was some skin condition that they remembered as his hair was short.

[00:40:30]

But they had all this information. And honestly, I. I don't know why they dragged their feet and they never came right out and said, we don't believe you. We think he's guilty. Even after we brought the motion and started the hearing, they said to the press, you know, we're still looking into it or something to that effect. But for some reason, they just were unpersuaded. That's weird.

[00:40:51]

I mean, look, there's even inside of a picture of you, you know, like Brooklyn, where we'd like to think that everybody is on top of their game. I don't know. I can't really explain. You have these witnesses who are actually bravely coming forward now. Right. And there's lots of them. Right. It's not like this is one person. These are people who are, you know, members of the community who are not kids anymore either.

[00:41:15]

And. Right. And I think it's also worthwhile to mention why James, his brother Daniel, and the black jurors were unavailable to testify. Tina, the young woman who named James in the first place, is no longer with us. In twenty thirteen, she died of complications related to the very diabetes that kept her from the party that fateful night back in 2004. And sadly, Daniel James, his younger brother, who put him in the cab that night, tragically was murdered in 2012.

[00:41:48]

So now the Brooklyn SEIU hasn't come to a decision and they still could do something about it if they so choose. But you and Susan Epstein weren't exactly waiting around for that. And that brings us to the hearing we've been referring to for this entire episode. You and Susan filed a 440 motion, which is New York legalese for a motion to set aside the judgment in September. Twenty, eighteen and two argued for Jameses actual innocence, as well as ineffective assistance of counsel and newly discovered evidence at this hearing in June of twenty nineteen.

[00:42:24]

Yes, we were pretty optimistic going into it. So we had eight witnesses, including James. James went first, as you saw, was very intelligent, humble, low keyed, and I think he makes a good impression. And he went first and also so they couldn't say, oh, of course, he said this. He sat through the whole hearing and listen to what everyone else said. So he told the story that you heard about leaving because he was intoxicated and then you, Schimel Black, came in.

[00:42:51]

And one thing about Schimel black that was really, I think, very persuasive. He had initially refused to cooperate and sent a letter to Susan saying he ruined my life because he had James had slept with his girlfriend when he was locked up at Rikers and he held a grudge. And he even told me when we were preparing to testify because he had a bad quality. I have I get it from my father. I can really hold a grudge. But he came in and he told the whole story.

[00:43:17]

First of all, he helped walk James out to the car, but then they started to get into a fight about this girlfriend again. And he went inside and he met up with the shooter. So he told the whole story about how he got stabbed because his younger brother was involved in the fight. And he went over and he heard this guy say, you thought this was over. He turned around. He was steps. He goes through the whole incident of how the stabbing happened and how the shooting happened and how it was OK.

[00:43:43]

And then how he told this to the police. We also had the woman who cut his hair, who, although she didn't remember exactly when she cut it, she did remember that she told him it was breaking off and that he had to cut it and that the last time she saw him, his hair was short. And you had Corey Hines, who was at the party in the bathroom, laughing at him as he was throwing up. Sadly, his brother had signed an affidavit saying, I put him in a cab and send him to his girlfriend's house.

[00:44:11]

He was murdered in 2012. So we didn't have his him as a witness. We had his affidavit and we believe the judge should have allowed that into evidence and he didn't. And we had Kanene Johnson, the girlfriend who didn't show up at the second trial. We actually had to do what's called a material witness order to have her arrested, to bring her in, which I really didn't want to do. But she came in even though she was mad at me about that, she got on the stand.

[00:44:39]

So when that happens, they assign an attorney to you. And the attorney came in and said to the judge, she's willing to testify, but she's terrified of the family. And what came out on the witness stand is that after she testified at the first trial, friends and family of the deceased followed her not just out of the courtroom, but out of the courthouse, calling her names, threatening her. If we're going to find out where you live, if we see you on the street.

[00:45:03]

And it was so bad that James's attorney put her in a cab because he was afraid of her having to take public transportation home. So here she is. She hasn't seen James since the first trial. And she gets on and she essentially says exactly what she testified to years before that. She met him at her mother's house. He got out of the car. He was staggering. Like stupid drunk is kind of how she put it and and threw up.

[00:45:27]

And she got him a ginger ale at a bodega and they walked to his house. So she told that entire story. The two new witnesses that I found also particularly compelling. One was in the statement by James. He refers to Beau. His real name is Ernest. Ernest was one of the promoters. And we found him and he was willing to testify. And a few days before he testified, we asked him, well, how is it that you remember that he was there?

[00:45:51]

And he said, because we used to have a competition about who had the better waves in our hair. So I remember when he came in, I was joking about whose waves were better. So unprompted, he basically said he had short hair at the time. So he said that on the witness stand. And he also said somebody had thrown up by the bar and he asked the bouncer what happened here. And he said, oh, you know, those two brothers?

[00:46:15]

One of them was drunk. And I told him they had to leave. So that was information we didn't even know about. And then lastly, and maybe the most emotionally compelling witness was Tina Black senior, the mother. So she came in with the cane. She's like crippled by arthritis. She basically was wracked with guilt that she knew her daughter. Her daughter eventually confessed to her. And she went through all this stuff about they got a call one day from Rikers and her kids were there and she said, who's at Rikers?

[00:46:44]

And they said, James, that she said was James at Rikers? And one of the son said. Your dumb ass daughter still like she remembered little details like that, and then bit by bit, her daughter revealed to her that she had set James up and that he was never coming home and that she was still in love with him. So that was extremely compelling testimony. So that was essentially our case. It was like so many people who added little bits and pieces to the story and created this really cohesive story about what really happened there that nobody bothered to investigate.

[00:47:17]

Then there's another sort of what could be seen as a devastating blow that took place on January 24th, twenty, twenty sixteen years to the day after Blake Harper was tragically murdered. The judge denied James Davis's wrongful conviction motion in its entirety. I remember reading that the first night going, oh, God, right. What?

[00:47:39]

We were stunned. So he he ruled against us on everything. We by the end of the hearing, we had three points. One was that we had proved James was actually innocent by clear and convincing evidence. That's the standard that his lawyer was ineffective by not doing a proper investigation. He didn't even hire an investigator. That's what James was referring to when he said he hired a doctor. He hired a doctor who appeared to have been his brother to review the medical records.

[00:48:06]

So he knew what he had to do to get paid to hire someone. So we had an ineffective assistance of counsel point. And then we asked the judge to reopen the hearing so that we could call this FBI agent, so that we could show that they would have known about this evidence that Mexico City was not just a humble barber, but he was a major drug dealer in Brooklyn and the judge refused to reopen. The hearing originally said, I'll sign a subpoena for an FBI agent because you have to subpoena them, then changed his mind on that, said you didn't prove it, but he didn't give us a chance to completely prove it.

[00:48:41]

And so he denied every aspect of our hearing. And now there's really literally one stop left on this. You don't get to appeal these. They call them for 40 hearings in New York. You don't get to appeal a 440. As a matter of right. You have to ask permission is called seeking leave to appeal. And we did get permission to appeal. So we are in the process of writing a brief. And this is the last stop.

[00:49:05]

We are going to the second department appellate division and asking them first and foremost, to find him innocent and dismiss these charges. Do you know when that hearing's going to be?

[00:49:15]

We're shooting for September, hoping to get the brief filed in time for September. If it's not September, it will be October. There is a petition and we're going to link to it in the episode descriptions. So for anyone who feels outraged, as I do and wants to help James go to our episode description and there will be links to take you to action steps that you can take. Hello.

[00:49:42]

This is a prepaid collect call from an inmate at New York State Department of Corrections and Community Supervision. This call is subject to recording and monitoring to accept charges, press one to refuse charges. Press. Thank you for using Securus. You may start the conversation now. Hello.

[00:50:02]

Oh, James, glad you're back. Elizabeth and I spoke a bit about your post conviction litigation and where you're at now.

[00:50:08]

Legally speaking, I didn't know the justice system actually takes this long, but I thought maybe, you know, two years, I'll be back home to fix this whole thing and I'll be home. Two years turned into 17, and I'm still fighting in trying to convince them that they actually locked up the wrong person and then to compound this tragedy again, the little brother that you felt so responsible for was murdered in 2012.

[00:50:37]

I mean, I can't possibly begin to imagine your pain, but so your grandmother's still here forever.

[00:50:46]

And my grandmother is like my oldest friend in the world. My grandmother been there for as long as I know. I know she knows my pain because she lost her mother and she lost her daughter the same way I did. Well, not the daughter, but my mother, the same way she lost her mother. And my brother was there with me through everything. So it was like I lost out on what little I was able to spend his life with them.

[00:51:11]

And 17 years of my grandmother's life, she just turned 80, June 19 like she was 63. I just missed all of his birthdays and time to spend with her. I would have been an adult where I could actually, because I just I think that was my first Christmas ever, actually really buying my grandmother my own gift. And she was so happy for that. And for every year since the summer, I needed to pray for her. Every night I knew how to be strong for me because that's one of the reasons that I live for my grandmother.

[00:51:50]

By the grace of God, she just turned 18 and 19. My mother was murdered two weeks or a week and some change at the Mother's Day, which was hard for my grandmother and then my brother on Father's Day right before her birthday. So it's like I've had a real rough journey. A journey is just as rough. So this is like my closest friend, like outside of my father that passed away the same demons I got. He got the same low budget clothes or whatever you want to call them.

[00:52:22]

I got he got a in the neighborhood in the house over not having our parents or my mother being a crackhead. He got the same thing we did. We endured everything together. So it's like this the only person I really, really know my struggle. So to lose him while here I. The hard blow. Yeah, I can imagine your story, your life has exhausted, it's taken so much out of me and I've only listened to it, I can't imagine having lived it.

[00:52:55]

We need to do everything we can to bring you home. James. I want to thank you, I mean, we have, as our regular listeners know, at the end of each episode, we have our featured segment, which I call closing arguments. And this is where I first of all, thank you. And then I just kick back in my chair and turn my microphone off and leave my headphones on and turn it over to you for whatever else you think needs to be said.

[00:53:26]

So now, Liz, over to you for closing arguments. All right.

[00:53:31]

Well, first of all, thank you so much for for taking the time to listen and to speak to James and to get to know what a what a good person he is, what a smart, humble, kind person he is, and for giving us this chance to to tell his story to as many people as possible. There was from from the day he was arrested. I'm going to get emotional. Let me be clear. And convincing evidence of his innocence, not just clear and convincing, compelling evidence of his innocence.

[00:53:58]

And he told everyone what they needed to do to learn that he was innocent. From the beginning, he told Detective Hutchinson, go speak to he listed about six names. And, you know, from those six names, there would have been twenty five thirty other people because this was a huge party and a lot of people knew him. But whether it was tunnel vision, a lack of respect or indifference. Detective Hutchinson did nothing to investigate, the prosecutor did nothing to investigate, and the person who under the law has the obligation to investigate did not do so.

[00:54:33]

He kept telling James, well, it's their burden, it's not our burden. But this is a 21 year old facing murder charges, facing life in prison, which he's now serving a life in prison sentence. Seems to me you have both a legal and a moral obligation to do everything you can to prove his innocence, to prove he's not guilty. That's the standard at a trial. When you have so much evidence, it's almost obscene to turn your back to it.

[00:54:57]

And yet that's what happened at this trial. And yet 15 years afterward, these people came forward and, you know, they may know each other from the community, but somewhere in their 30s, somewhere in their 40s, somewhere in their 50s, they weren't all hanging out together, conspiring to tell a story to help James. They told different pieces. And what they didn't remember, they said they didn't remember. But each and every one of them painted a very vivid picture of a young man who loved his brother very much, who went to the party because he wanted to celebrate with his brother, who got stumbled down, throwing up drunk, left the party kind of out of it, met his girlfriend, spent the night at her aunt's house and wasn't even there when the shooting happened.

[00:55:40]

And yet, incredibly, once again, the judge chose not to listen to James. In fact, in his decision, he said, well, you can't listen to anything he said because he's the defendant here. He's he's convicted. And, of course, he has an overwhelming interest in the outcome, which is not the law. So he just disregarded everything James said, despite the fact that most of it was corroborated and substantiated by the other witnesses.

[00:56:08]

You know, he also said you had to have direct evidence. There was no direct evidence that James went to his girlfriend's house that night. Well, there was a huge amount of circumstantial evidence. They walked him to the car so they didn't see the cab leave. I mean, circumstantial evidence is extremely compelling and used all the time in court. So he discounted circumstantial evidence. And he also wouldn't let us bring in Daniel's affidavit, even though, again, the federal law says when you're talking about actual innocence, you're allowed to bring in everything, even if it wouldn't come in ordinarily at a trial.

[00:56:43]

So Daniel is dead. He was murdered. But we have his affidavit and guess what it says. I put him in a cab and it went to convince House. So we did have that piece, but we weren't allowed to put it in. So once again, justice was denied for James. And I think we've already been through just the shaky, questionable evidence that was the prosecution. This is the last chance. There's nothing after the second department appellate division.

[00:57:07]

And I just I just hope people hear this and they're rightfully outraged and they demand justice for James because he really is innocent and he deserves to go home. That was well said, thank you. Beautiful closing argument, actually, and I've heard a lot of them. And now, James, over to you for closing arguments. You are an incredible person. Your spirit comes through even over the phone, even in the most stressful situation. We are just an inspiring guy.

[00:57:42]

What can I say? And so we're going to keep fighting for you out here. And I thank you for being on the show and shining a light on this awful injustice. And now turn it over to you for closing arguments.

[00:57:56]

I want to say thank you to you again. Thank you to Elizabeth. So, Susan, I have seen the whole Legal Aid society, everybody that's been helping me with my case. Without them, I probably would have gave up this fight. They kept me strong, incredibly motivated for all of the stuff that's going on in the world. Today is so much on my mind. I think that our justice system really needs to be looked at on our side and on it.

[00:58:21]

And the treatment is really, really no different. And it's got all the waiting starts at law enforcement with the investigations and the things that they may do if they make one bad mistake and they change somebody's life forever and the human like everybody else, everybody is entitled to make mistakes. But when you don't try to fix your mistakes, you just lie about them or cover them up. You only make things worse for people that actually have a fair shot.

[00:58:53]

You're stealing people's lives away from people, people, families actually still love them and care about them and is suffering just as much more should be done on on getting things right, opposed to just worrying about convictions and putting people away far. Because in our case, we make a poor judgment decision, we send people away that shouldn't be locked up. People do deserve to have a fair shot at whatever the trial grand jury hearings or even the benefit of the doubt when an officer comes to the rescue.

[00:59:29]

It's no different on the inside that everybody here deserves to be treated so harshly when you're already sentenced for a crime, you're already been punished. You don't come to prison to be punished more or tortured. You come to correct whatever bad behavior was going to do the time that they gave you.

[00:59:52]

That's what they say, that you did the crime, do the time, but not supposed to be tortured and abused. What about the people that actually do the crime that just like a casualty of war, they get tortured and beaten and everything to it all seem like a fair and impartial trials are what actually takes place.

[01:00:17]

A label, you think, and they send you away and they make it hard for you to prove it and then get back out. Even when you do prove it, it's still hard for them to let you go. They say, well, it sounds like he's telling the truth and it's the same thing. And we learn that these other guys were liars and all of these other things. But I don't know, maybe he's still guilty. Let's just keep them in there and double or triple or quadruple checking in.

[01:00:45]

The same with some of his life away, even though he might be totally innocent. And it seems like he is from what we've been looking at, but not 100 percent sure. He didn't prove it to me, 100 percent saying this is crazy or something like this. Where?

[01:01:14]

Don't forget to give us a fantastic review wherever you get your podcast. It really helps. And, you know, I'm a proud donor to the Innocence Project and I really hope you'll join me in supporting this very important cause. And in so doing, helping to prevent future wrongful convictions. It's easy. Go to Innocence Project Dog to learn how to donate and get involved. I want to thank our amazing producers, engineers and editors, Connor Hall and Kevin Amortise the music and the show is by three time Oscar nominated composer DJ Ralph.

[01:01:48]

Be sure to follow us on Instagram at wrongful conviction and on Facebook at Wrongful Conviction podcast. Wrongful Conviction with Jason Flom is a production of lava for podcasts in association with Signal Company No. One, Northparkes. For NPR ex.