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In the early 90s, the crack epidemic was in full swing and violence between rival gangs, the Redtop crew and the yellow top crew, among others, gripped Harlem and other parts of the city. On June 10th, 1993, a slender, light skinned man in his 40s with a gray ponytail rolled up to a building on West one hundred and thirty Fifth Street and opened fire, wounding 15 year old Henry Gomez and killing 18 year old Manny Kintaro. The case went cold for two years.

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Then two members of the yellow top joined forces with a corrupt detective and officer team to bring a close to this case in exchange for leniency in their own cases. Officer AJ Morlino had been involved in dealing at some point himself. The detective was Mark Tavern's, the same one responsible for Danny Rincón wrongful conviction in the bungling of another Redtop crew shooting in the Bronx. These members of Yellow Top made up a story that Pablo Fernandez had been hired by Redtop to carry out the June 10th shooting.

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Then Tavern's and Morlino used misleading identification tactics to trick or coerce several teenage eyewitnesses to build what they knew was a farcical case. The prosecution followed suit to turn Pablo, a stocky, darker skinned twenty two year old with short black hair into this slender 40 something light skinned shooter with a gray ponytail. Pablo spent almost twenty five years behind bars, and it took nearly a decade and a half of pro bono work from legal giant Paul Weiss to win his freedom.

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This is wrongful conviction with Jason Pflaum. Welcome back to Wrongful Conviction with Jason Flom, that's me. I'm your host, and today I want to introduce first the attorney who spent thousands of hours pro bono on this case. So Dave Brown, thanks for being here on the show today. Thanks for having me, Jason. And with us, of course, is the person who endured this nightmare that you're about to hear about and lived to tell this story.

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So now it's my great privilege to introduce you to Pablo Fernandez. Thank you for being here with us today. Thank you. And this story goes back to the early 90s. Pablo, you came from the Dominican Republic, right? And you ended up as a teenager in upper Manhattan at the height of the crack epidemic.

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What was it like growing up in that crazy time that we've heard so much about in some way different to the guy with the industry? You see in a lot of the crack, the floor, you see a lot of crack. People walk in the street like you saw.

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The gunshots could be heard regularly around the clock, not just at night time in those days. And you had a police force that was out of control as well. And Dave, take us back to the original crime and how this turned into this terribly flawed case and ultimately wrongful conviction. The crime in question took place on June 10th. Nineteen ninety three. It was a drive by shooting where a car drives down one hundred thirty five street stops. The gunman gets out for just a few seconds from the passenger side, fired several shots, kills many Cantero wounds.

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Henry Gomez jumps back in the car and the car drives away. A number of eyewitnesses saw that shooting. They called in to nine one one with descriptions. Some of them were interviewed by the police either that evening or in the days that followed. And they all described the shooter as having light skin in his 30s or 40s, tall, thin, build, gray or salt and pepper hair pulled back in a ponytail. And Pablo looked nothing like that description.

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In nineteen ninety three. He was twenty years old. He had short, dark hair, stocky build. He had never worn his hair long, much less in a ponytail. And the case went cold, we believe, because the police failed to follow up on leads. They sent officers who didn't speak Spanish to conduct interviews in the neighborhood around where the shooting took place. And they just came back and reported, well, we couldn't communicate with some of the witnesses because they spoke Spanish.

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Wow. And just we think there was no serious effort to really solve this crime. So the case goes cold. Approximately two years later, NYPD officers engaged in a really brazen and corrupt scheme to manufacture evidence against Pablo. Faced with the facts that he bought no resemblance to the shooter and there was never any physical or forensics or ballistic evidence that connected him to the crime. And there was absolutely no motive for him to commit the crime. But let me start with the police officers who were the primary architects of this plot to falsely incriminate Pablo, NYPD officer Albert Molina.

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He went by AJ, who had ties to the drug trade himself from before he went to the police academy. And also Detective Mark Tavern's.

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Our audience might remember Mark Tavern's from another case that we covered recently, Danny Renken case, and, of course, all the corrupt tactics that he used to make that preposterous case stick as well. The corrupt and unconstitutional tactics that they used were not unique to them. I mean, these were commonplace and live PD homicide and serious felony investigations during the early 1990s. And the way they constructed this false case was based on perjured testimony.

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At the center of this corruption investigation were two members of the yellow top crew who were rivals of the Redtop crew. Now, in those days, of course, the crews were named after the colored caps of the crack vials that they sold. Those yellow tops had two motives to give up, seemingly useful but false information to the police. One was to help their own charges and the other was to try to inflict damage on their rivals. The Redtop crew and these two individuals that worked with Bellino and Tavern's were Raymond Dilli Rivera and the leader of the yellow top crew, whose name was Martin Chango.

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Mahi's now is was known in the streets to be a crazy, violent drug dealer, and he was arrested in June of nineteen ninety four, charged with three counts of murder, one count of attempted murder and multiple drug conspiracy charges. And he was facing potential life in prison. He decided that he would cooperate with the Manhattan DA's office and testify against other people to get a lighter sentence. He put away dozens of people who worked for him. And around that time, Rivera, who was one of the chief lieutenants and the yellow top crew, came in to the Manhattan DA's office and he confessed that he had committed more than 500 felonies, including assaults, robberies and attempted murder.

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He was never charged for any of those crimes. So somehow Molyneaux and Tavern's urged these two co-operators, Macías and Rivera, to say that they knew Pablo had been hired to do this shooting for the leader of the Redtop crew.

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They said that they saw Pablo being paid money to do the shooting about twenty five hundred dollars. And one of them said that after the shooting, he saw Pablo come back and meet with the person who had hired him to do the shooting and take out a shell casing and say this is the bullet that killed Cantero. They said that they knew that Pablo wore disguise like a wig or he painted his hair.

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And of course, we would have also had to believe that he had a makeup artist on hand who could have changed his skin color. But you can't be stocky and pretend you're skinny. That doesn't work.

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None of this is true. And then early nineteen ninety five, Detective Tavern's and Officer Bellino found two eyewitnesses who had seen the shooting. Now, when these kids saw the shooting, they were approximately 13 years old and both of them were cousins of Manny Cantarell, one of them. His name was Heathcliff Rosario and the other's name was Jorge Rosario. And both of them had reported seeing a light skinned shooter, long gray hair, 30s or 40s, do the killing.

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But they were pressured by Morlino and Tavern's to falsely identify Pablo as the shooter, in part because the police just kept pointing to pictures of Pablo over and over and over, saying this is the shooter. The police officers lied to him, Cliff and Jorge Rosario, and said even though he may not have been the shooter, he had something to do with the crime. So you should say that he did. And if you look at the picture from Pablo's lineup, there are six men and five of them are wearing white t shirts that Pablo was put in completely different clothes to make it easier for the witnesses to falsely incriminate him.

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I think this is something they had done many times before. You would think that it would be incredibly difficult to frame an innocent person for murder. It almost seemed effortless for these corrupt police officers.

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And Pablo, what was it like going through this for you?

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Did you understand what was going on in the beginning?

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No, I learned a little while later, but I just have my so my first baby in the life that we like the one day.

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I mean, the fact is. I know. But I think those with the accusation that I have something that I know that I'm not the. My soul. Every time I see myself on the go. It was it's impossible, I think, for anyone who hasn't been through it, to imagine what you went through. I mean, you're 20 years old, you're still a kid now. You're thrust into a very adult situation that you didn't cause and you didn't create.

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And I want to just highlight one of them. The Innocence Project has led the charge, among other organizations, to make videotaping of interrogations mandatory, but also the photo arrays lined up procedures, all of that. Anything involving eye witnesses should also be videotaped. That's the only way we can clamp down on these type of practices. And they're not always as the fairest as this one was. Right. But if they're influencing the witness in any way, the jury must know about that.

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And that brings us to the trial, which was January nineteen ninety six. And let me start just a few weeks before the trial begins, actually, because it appears that Molyneaux and they knew approaching the trials was a weak case. They had to co-operators obviously had motives to lie and fabricate evidence. And then you had these two teenagers who had been pressured to lie. And so it looks like they went out to try to bolster this case. And they found two more eyewitnesses and one of them, whose name was Hazes, Cornelio Camela, recounts in the mid 2000s, actually, as do the Rosario's.

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But Kanala, when he came forward, he said that he had been pressured by the police officers and they showed him a picture of Popolo, not even a photo array, just a single photograph of Pablo saying this is the person who did the crime. And then they told him, you don't have to testify in court about the fact that you saw this photo. So this witness is found two weeks before the trial. It's now two and a half years since he saw the murder.

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And he testifies that he still recognizes Pablo, even though he was supposedly wearing a disguise at the time. And he says he's never seen any pictures of Pablo up until then, although, of course, just two weeks before the trial started, he indeed was shown pictures of Pablo. But that's all covered up so that you can do nothing.

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They say nothing is like if somebody told you that you could do nothing. Everything was like, no problem.

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When the jury came back, what was that moment like?

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Told me that I thought I wanted that I feel my body like it, like a hole in that environment that I look about to see my family. All my family was crying. I was crying. I was crying like a bullet. When you know that you E.M.S. the are you guilty of something that you will do if I lose my family, my son and everybody? This episode is underwritten by the AIG pro bono program. AIG is a leading global insurance company, and for over a decade, the AIG pro bono program has provided thousands of hours of free legal services and other support to non-profit organizations and individuals most in need.

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More recently, the program added criminal and social justice reform as a key pillar of its mission. The case against Pablo really began to fall apart just a few days after the trial when the DA's office came to Pablo's trial counsel and said we've had to arrest Officer AJ Molina because we discovered that he was under investigation by the New York state troopers for dealing large amounts of cocaine to undercover cops a few years prior before he went into the police academy. And for some reason, that investigation stalled.

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But it was reopened during the trial. Molina was arrested right after the trial, but the DA's office never followed up to prosecute him. And after about five years, the case is dismissed for failure to prosecute. Now, it's my theory that somebody who's dealing large amounts of drugs and it goes into the police academy does not stop after they've become a police officer. And we'll see what comes to light in a civil case. But I think this was likely a corrupt officer through and through.

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Again, we know during this time there were other officers in uptown Manhattan who were dealing drugs themselves, providing protection to drug dealers, robbing drug dealers inside the drugs themselves. And Morlino certainly seems to fit that pattern.

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And one would think that that would cause an immediate reopening of the case or a retrial or something. But of course, we know that it took almost twenty five years for this to be resolved and thousands of hours of pro bono legal work from you and your team at Paul Weiss. You know, it's one of the things that gives me hope, just the fact that there are people like you and and firms like Paul Weiss and so many others that provide almost limitless resources of human talent to help someone like Pablo get out of what is an almost impossible morass.

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Dave, you didn't get involved the two thousand five, but talk to us about this crazy appellate process.

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The next major event occurs in 2002. Hickling and George Rozario both recanted their trial testimony and they met with a lawyer who was representing Pablo at the time. And they provided sworn testimony stating that Molina and others had pressured them to falsely identify Pablo as the shooter. The heckler stated that he was positive that Pablo had not shot Cantero. Jorge said that he never would have identified Pablo as the shooter if he had not been told by the police that Pablo was involved and that he had been pressured to identify Pablo after being shown Pablo's picture.

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Again, the appellate courts did not consider this evidence enough to free the next year in 2003. And regardless of the second victim of the shooting, he provided sworn testimony that Pablo was not the man who shot him and didn't look like the shooter. That is not enough either.

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Now, in 2005, my law firm got involved.

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Paul Weiss, one of the top law firms not in the city, in the world, comes in, you know, to the rescue.

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How did his case land on your radar?

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Now we do a lot of pro bono work. And Paul Weiss, including criminal defense work, criminal justice reform work. But as your question indicated, you know why of all of the thousands and thousands of criminal defendants in the New York state system, how do we get involved in this case? Well, there was a Yale law student named Andrew Goldstein, who, because of a program at Yale Law School, became aware of this case. And then he came to apologize for our summer associate program, which lasts about eight to 10 weeks.

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And when he came in, he said, can I get some support from Paul Wise to help me on Pablo's case? And we said, sure, we thought this was going to be something that we helped Andrew Goldstein with for a summer. While that summer lasted 14 years, Andrew ended up coming to the firm as an associate where he worked on the case. And then he left us after about four or five years and he became a prosecutor in the US attorney's office in the Southern District.

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And he went on to work on Bob Mueller's team a few years ago and is now back in private practice. And just so overjoyed that the case that he brought in as a law student ended with such a great result, even though it took just such a long time for justice to be delivered.

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What did it mean to you when Dave and his team first got involved with your case and to have their support? And how did that feel?

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The lawyer that I have before they even the thinking they told you, look, you got a disloyal United State. Maybe in the war, you got one of the best for you, and I was so happy my family to be equal, you know, I want to be in the best thing that I can be. That's that's the only way I can home.

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And I want to get to that. You know, the good part is your freedom. So let's go right back to that post conviction history. In 2005, Paul Weiss took the case and then there was another recantation.

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In 2010, 2010, Haynes's Cannella recants. And again, that motion is denied.

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One of the reasons that the New York State judge said that this witness was not to be believed because he said, well, he was trying too hard to be convincing when he recanted, which is just such a ridiculous and and bizarre thing to say. And we lost in all the state court appeals in the federal district court. And now we go up to the federal appeals court. And we knew that if we lost it was over, we would have only had the ability to appeal to the Supreme Court and there was almost a zero chance that they would ever have taken this case.

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So this was really our last stop. And this is really a case that shows you the value of perseverance.

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Well, it certainly does, because in February of twenty nineteen, the U.S. Court of Appeals for the 2nd District finally overturned the conviction, ruling that it was unconstitutional and cited the state courts denial as a quote unquote, an unreasonable determination on the grounds that Canela was and again, I'm quoting here, trying too hard to be convincing and quote, So now the conviction is overturned, but the indictment still stands because there's no statute of limitations on murder. And the D.A. comes at you with a deal, right, to go free immediately if you plead guilty to manslaughter.

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But yet, on the other hand, they could still retry you. You had 25 to life. So parole was just around the corner. But there's no guarantee there either because who knows? Like if you wouldn't have admitted guilt if you had refused the deal, you might still be sitting in prison today.

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And the state is never mind that they can only deal with it from the beginning. I will fight for my freedom. So after all, this did work in my case, being tried to be free to prove my innocence, and I'm going to do nothing to disprove nothing. This year, I'm refocusing on what it means to take care of myself, and it couldn't be easier than with daily harvest. Daily Harvest delivers delicious food built on organic fruits and vegetables right to your door, and it takes just minutes to prepare.

[00:21:03]

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It's a little bit of oil. It's absolutely freakin delicious, trust me. And so easy and easy to clean up, too. So get started today. Go to daily harvest dotcom and enter promo code conviction to get twenty five dollars off your first box. That's promo code conviction for twenty five dollars off your first boxset. Daily Harvest Dotcom. That's Daily Harvest Dotcom. You know, at first we had the defense team thought, there's no way the DA's office is going to retry this case, the heckler Rosario has recanted.

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Jorge Rosario has recanted hazings. Canela has recanted. We learned that Rivera was a quadriplegic and gravely ill and not even able to speak. And then he was a drug dealer who had served a significant amount of time in prison. And there's absolutely no case left. And so during the spring of twenty nineteen, the DA's office was making one disclosure after another. To us, that showed the case was even worse than we had known. But we contacted Martin McGuinness and he made some incredible disclosures to us.

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We told our investigator when I was cooperating with the police, I was supposed to go back to Rikers Island after I testified or after I met with the DA's office. But Molino and Tabernas would take me all around the city. We would go to Dallas barbecue. We would get drunk. They would take me to his girlfriends, take me shopping. I was drinking a lot of the time. I was drunk when I testified. I viewed Tavern's as a friend, basically indicating that he would have done anything to please the police.

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He also said the police had given him marijuana to sell in prison. I mean, this was just amazing to us. And we got similar disclosures from the Manhattan DA's office about Macías in July of twenty nineteen information to show that he said, I'm not going to testify for you again. The police told me to lie in the trial in 1996 and I'm not going to testify again. So then we learned just some shocking information about Raymond Rivera. Raymond Rivera said that he saw Pablo two days before the murder and that he witnessed Pablo being hired to shoot Quintero.

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Now, at this time, according to what the DA's office disclosed to us, Rivera could not have been in upper Manhattan witnessing Pablo or anybody else being paid to do this murder, because during this time, Rivera was actually incarcerated in state prison more than 300 miles away from New York City. And that meant that his testimony was just outright perjury. He could not have been in New York. He could not have been in Manhattan. They were prison records.

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New York state records show that he was incarcerated at the time. And when these disclosures came out, the DA's office decided to stop fighting the case. And Pablo was first released on bail in August of twenty nineteen. And then in September of twenty nineteen, the DA's office asked the trial court to dismiss the case against Pablo. In September of twenty nineteen, the two days before his birthday, Pablo walked out of Manhattan Criminal Court. Finally, a free man.

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The day that you've been waiting for for twenty five years has finally come, you're innocent, your lawyers knew you were innocent the whole time, your family knew you were innocent the whole time. Now everyone knows the court has said it. What was that moment like when you were finally declared actually innocent and set free?

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Well, it was amazing. It was my day every day. I was thinking in they. And I know that one day you're going to come, and that was the day I was so happy that the two came out and that I was free when in the same way I feel a little better. My father passed away when I was in June 2014. And one of the things that I wanted is to see my family, my mother, my father, the sea, my freedom.

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They see me out with my father and I had opportunity to see. He know that for sure. Hey, you know my theory. I feel happy that I'm free, but they this in this entire field little. I don't know, have to say, but I feel in my father, my in my heart that I can see him, that I can hold a show and follow up here with you again. The good news is your home now never going back, and Pablo, I have to ask how.

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I mean, people out here in the free world trying to find love, going everywhere, looking online. I'm here on they're going out. And you found love from behind the walls of prison. I mean, you're a charming guy, but still. That's amazing. Can you explain?

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We know each other full well before I get a laptop when I get in jail. A friend of mine, he was my wife, Tanya, best friend, brother. We see we formed the seating area and we started talking about people doing when amazingly, Tanya. So he said, Lisa, my sister is Tanya this ring. So the same day he called his sister that I was here. And this day I got a visit from Tanya. A said that they were together, the whapping 2003 CNAME when they seized all we could see.

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Yeah, and you two got married. I mean, it's amazing really. She stuck by you the whole way. It's beautiful. And it's just got to feel amazing. And I know I speak for so many others, all of us here at wrongful conviction and everyone in your in your very wide circle. Now, when I say that, we wish you to all the best that life has to offer. Any other news now I got in? So now come on.

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Great stuff. Congratulations to you both. Thank you. So, I mean, there's really no where left to go after that. So let's just end on a high note here and go straight to closing arguments, which is, of course, a segment on the show, my favorite segment when I thank both of you, each of you, for being here. And then I shut my microphone off. Just kick back and listen as I hear whatever you want to say, whatever you want to talk about.

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And let's start with David first and leave you Pablo, for last.

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Thanks, Jason.

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I just want to say that it was such an honor and a privilege to represent Pablo, to fight for him, to meet his family, his mother, his sisters, other members of his family, his wife, Tonya, who is just such a lovely, impressive woman. I'm just so happy for Pablo and Tonya. Even though Pablo, the twenty four years in prison and 14, 15 years of their marriage, Pablo was incarcerated, now that they got a chance to be together and to have a child together and to other children, and this will be a third.

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And this is just really wonderful. As I said before, it's just so rewarding to do this type of work. I would urge every lawyer I know to try to get involved in criminal justice reform work. It doesn't have to be an innocent case. But there's so much work that needs to be done around criminal justice reform. And especially if you are at a large firm, like always, there's so many resources that you can bring to bear and there's so many prongs that need to be righted, especially in the New York criminal justice system.

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There have been a lot of cases that the NYPD has been involved in that had terrible, unjust, tragic results. And these cases can also be a lot of fun. It is fun to be on the right side of history and on the right side of justice. And it's energizing in the morning to get up and know that you're fighting for an innocent person. I want to say thank you. I feel so grateful to your wife, everybody, that working on the case, that's all every single day.

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No, I'm saying they do that. They yes. They made my my day true. They made my feed or my family happy.

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Now, I enjoyed my song recording everything because they feel so happy for them and for my family to make funny. My family feel like they are my family. I feel like they. And thank you for that. I mean, they put all that to come out. You know, I know so many people like me, innocent people they know have the opportunity that I have these Braemar. Don't forget to give us a fantastic review.

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Wherever you get your podcasts, it really helps. And I'm a proud donor to the Innocence Project, and I really hope you'll join me in supporting this very important cause and helping to prevent future wrongful convictions. Go to Innocence Project Thug to learn how to donate and get involved. I'd like to thank our production team, Connor Hall and Kevin Awards. The music on the show is by three time Oscar nominated composer DJ Ralph. Be sure to follow us on Instagram at wrongful conviction and on Facebook at Wrongful Conviction podcast.

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Wrongful Conviction with Jason Flom is a production of Loba for Good podcast in association with Signal Company No. One.