#570 Guest Host John Huffington with Elmer Daniels

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1:02Hey everyone, it's CalPen. I'm inviting you to join the best sounding book club you've ever heard with my podcast, Earsay, the Audible and I Heart audiobook club. Every episode I nerd out with amazing guests and dive into the best new audiobooks available on Audible. It's the book club for your ears! Listen to Earsay, the Audible and I Heart audiobook club. On the I Heart Radio app or wherever you get your podcasts. January 15th, 1980, was Martin Luther King Day. As a young folks, with the day off from school and Wilmington Delaware through a party. At about 5 p.m., two white 15-year-olds, a male and a female, left the party and headed towards some train tracks. There are some discrepancies between their accounts, but according to both of them, a black man and tan pants and a green jacket chased the young man away before raping the young woman. The young man said that the assailant was a former classmate named Elmer,

2:05and the young woman identified 18-year-old Elmer Daniels from a photo array. Then, a search of Elmer's home turned up a tan pair of pants and a green jacket. In addition to the ID and the items of clothing, an FBI agent testified a trial about hair's family, Elmer's pants and the young woman's undergarments that constitute what he called a double match. But this is wrongful conviction. Welcome back to Wrongful Conviction. I'm John Huffington, a former guest, and we'll have my episode linked in the bio. I spent 32 years in the Maryland Department of Correction, 10 of those years were on death row. During that time, an FBI whistleblower exposed a fellow agent for testifying beyond the limits of science in my case and many others,

3:06one of which we will be covering today. I'm so honored to be filling in for my dear friend, Jason Flom, as we welcome Elmer Daniels. Can you introduce yourself to the audience? My name is Elmer Daniels, and I'm a 2018 exonery convicted in 1980 for a rape that never happened. And before we unpack all that, I just want to introduce your attorney who's also joining us, Amica Eggway. Welcome to the show. Thank you. So, Elmer, before any of this happened to you, I just kind of want to hear a little bit about your life growing up in Wilmington, Delaware. Okay, I came from a two-parent household. I had my great-grandparents, my grandparents, my mom and dad, big family. I wasn't a bad kid. And I knew right from wrong, and I based all my decisions on not getting the AS woman. That's for real. I'm being honest. And that was the 60s and 70s kid growing up. But you did stray from that guiding principle, at least on one occasion. It did something, well, you know, it was kind of commonplace in the 60s and 70s, right? Yeah, I went for a jewelry ride.

4:07All right. That was the only thing that I actually was, as a minor, convicted of. It was on my record. And it was in Ellsmear. I was a young kid and bumped into the van. The keys fell in my light went on. Oh, there's a van. You know, let's see how far you can go in it before you get caught. I got caught. Now, when you got caught for that, did you do any jewelry time? Yeah, I went to Bridge House. I stayed at Bridge House for 90, maybe 90 days. Because you could just go and then your parents come get you. You know, so she let me bake for a while. You know, and let me see how I was. And actually that, that was enough. So a little tough love, you know, steered your way from the petty crime. I mean, obviously, jewelry riding is certainly not a violent crime. But that incident is why the police had your mug shot in January of 1980, when the alleged rape occurred. Emily, can you fill us in a little bit on the details? The underlying crime was an alleged rape of a 15-year-old white female who left a party on January 15, 1980 with another 15-year-old white male.

5:09They went to some nearby railroad tracks. When they get there, their stories differ. According to the 15-year-old male, he engaged in sexual intercourse with the 15-year-old white female. The white female denies that she ever had sexual intercourse with the male. Nonetheless, the female claims that while they were talking on the railroad tracks a black male came up to them. The 15-year-old male ran away. And after he ran away, the black male allegedly held her down and raped her for two and a half minutes. The black male allegedly had his hands on her neck. And both the alleged victim who will refer to as GS, and the young man who will call KC. Both of them said the alleged assailant was wearing cacky pants and a green jacket. And GS described the alleged assailant as having a big news and nails that were bitten down as far as they could go. So what happened next? She goes back to the party and tells people that she had been raped. The police are called.

6:09When the police come, naturally, they want to speak to the 15-year-old male and question to him on what occurred. And he gives about four different accounts. And the first time he says, some male named Jack Smith came up. The police followed that lead, find out that it's false. After about three or four stories that are inconsistent and contradictory and turned out to be false, the police turned around and charged this 15-year-old male with hindering prosecution. They also threatened to charge him with the actual rape itself unless he tells them what really happened. And under that duress, the 15-year-old male says, I was some guy named Elmer. I don't know his last name, but I was in the same eighth grade math class with him. That's going to turn out to be significant because the name of the middle school was called Biod Middle School. Elmer had, in fact, intended by a middle school. But back in 1978, when this 15-year-old male was in middle school, Elmer was in the 10th grade at a nearby high school. There was a three-year age difference between them. He was 15, Elmer was 18.

7:10They won in the same eighth grade math class together. I'm curious, did you even know Casey? Never met him before. Never met the girl until I walked into the courtroom. Wow. As the first time I actually seen both of them. So now they go looking for a kid named Elmer that attended Biod Middle School. But the three-year difference between Elmer and Casey should have been enough for the police to see the Casey had lied. Again, this time for the very obvious benefit of not being charged in the rape himself. But instead, they pulled Elmer's mug shot. And at this point, GS had already seen upwards of 300 mug shots. And who knows how suggested this identification process was. In addition, we know from study after study that cross-retrial identifications are less accurate than guessing. But nonetheless, that's what we have here. And they got an arrest warrant for Elmer. 35 days into my 18th birthday. A knock on my door. 618 North Heritage Street City, Wilmington. Our brother opens the door. Police enter and say they were looking for me because they were charging me with a crime of rape.

8:13At that time, not knowing what that was. I had to ask the question, what is that? After being explained what that was by my sister, I was like, you know, I didn't know what to think. But I did know, I'm going to jail. So Elmer, you weren't even there. Where were you when this happened? Yeah, I wasn't there. I was playing basketball at church cross-street from my house. You had to sign in and people that I was with. Their names were on there. And all the childhood friends and neighborhood and all their names was on there. But they had a problem with me because my name was on the bottom of the list. But it's on the list. Where are your girls at? Now this church basketball court was well over a mile from where the incident occurred. Yes, but police said I could run from where I lived to where the crime happened in two minutes. That means 60 seconds there. Mr. crime is 60 seconds back. And he said he drove it and he got there in two minutes. So if I was running, there's no way I'm going to get there in two minutes. And then doing assault at last, so it was three minutes. And come back. So we got a total of seven minutes.

9:15So basically you were running a mile and under a minute. So that's impossible. Now this was the pre-DNA error. But a rape kit was performed and physical evidence had been collected. So what can you tell us about that? There was blood. There was semen. And there was hair evidence. They weren't able to match the blood type to Elmer. They had semen. DNA didn't exist. But there was nothing they could use to match that to Elmer. And I'm sure had there been a blood type president in the semen that matched Elmer? They would have made huge smoke about that. But secretor status isn't even mentioned. So we've got the impossible on foot round trip. The blood type didn't match. The three-year-age difference. As for the hair evidence, there were hairs collected from Elmer's pants, as well as hairs collected from G.S.'s undergarments. And we'll get to that in just a bit. But first, when they tossed your house, they found items of clothing. Cacky pants and a green jacket. This is what the alleged assault was supposed to have been wearing.

10:15They actually found the pants in a third bedroom closet. They were pair of khakis, but they were old. When you put clothes away and you pack them, they went through the house and they found those. They found jacket in my brother's bedroom on the second floor, which was his jacket had his name on it. But they tried to save it belonged to me. So there was a notebook that was inside the jacket. Fingerprints were lifted from that notebook. There was an FBI agent who testified that he could not exclude Elmer, but he couldn't include him either. And when we got involved, some retests those fingerprints and those fingerprints were negative for Elmer's fingerprints. So that goes to show the lack of evidence that that jacket belonged to Elmer. In addition to having another name engraved on the inside. So they were really just trying to fit a square peg into a round hole from the very beginning. The police were eager to find someone. There had been two previous rapes by alleged black males of white woman back in 1980.

11:15And the police wanted to find out if Elmer was a serial rapist. And they actually tried to link him to the previous two rapes and that came out to be not true. So they dropped that and proceeded to want to prosecute Elmer. We believed to send a message and to appease the community that we can't hang them like we used to back in the 60s. But we can send a message by giving an 18-year-old male a life sentence. There was a no bail situation. I'm assuming. The bail was actually $5,000. Wow. And did you post that bail? No, then I wasn't if I met you for the two posts of bail. So why you were stuck in jail from January until trial in May of 1980. I understand that the court had pointed a psychologist to make a recommendation on your mental state. And in interviewing you, he raised a red flag, saying, among other things that, hey, G.S. has said that her sale had a big news and nails that were bitten down to the nub. That wasn't the case with you.

12:15I went in my natural sense in self-in-state. It was comfortable and he and I had a conversation. But at the same time, he was observing the things that they said were part of me that weren't. And he made that agitation in his notes. That court appointed psychologist actually took the time. He states in his letter, I try not to play detective, but I have to write your honor to state that I believe Elmer Daniels is innocent. And we have that letter. He sees the district attorney and Elmer's public defender. And he goes on to list why he believes that Elmer is in fact innocent. Okay, so you have a public defender. How often did you even talk to? Did you meet? Well, I met the defense attorney, Everpan Kowski. By the time I got to trial, I had only seen him twice. But the first thing that he offered me when I met him was a deal. And I'm like, deal for what? And he said, well, you know, judging that, they got all the evidence that I see against you. Because he had ran all over the evidence with me that he felt was making me guilty.

13:20The first deal was five to fifteen to life. That was for second degree. I'm like, well, we're going to, we're going to try. Right. We're going to try. If they're going to get me, they're going to get me because I'm going to go down fighting. So the jury was going to hear from G.S. and K.C. as well as this puff of smoke from the FBI fingerprint analysis about the notebook in the green jacket. And then our favorite, the FBI agent who also testified in my case, special agent Michael P. Malone. And he's going to testify about hairs allegedly found on G.S.'s undergarments. And he's cacky pants that had been packed away in a third bedroom closet at Elmer's house. I always say that I don't blame the jury for convicting Elmer because the hair analysis would have had a tremendous impact on anyone. They had this FBI agent who supposedly had all the credentials as an expert and was a prolific testify on behalf of the FBI. He testified as you know all across the country.

14:20He appears and he says in Elmer's case that there was a double match. What do we mean by a double match? He said there was hair that was found on a pants when Elmer was arrested that belonged to a Caucasian individual. And there was hair found on the underwear of the victim that belonged to an African American individual. And he testified to the jury that there was a microscopic match between the hair and the victims underwear that belonged to Elmer. And the hair that was found on Elmer's pants was belonged to the victim. And he said it was a double match that this is something he's never even come across. You can imagine the impact that that would have had on a jury. Back then there wasn't any DNA but that kind of testimony is equivalent to DNA identification. Okay, I get the definition of double match but guess what? If neither one of them is the right hair then you've matched nothing. You just have two hairs in two different places or three different places

15:20that actually aren't the same hairs. Am I right in just that basic assumption? Absolutely and that's one of the things when we fast forward when we send the transcripts to the FBI and they had to admit the special counsel from the US Department of Justice wrote to the Attorney General of Delaware admitting their agent testified as they put it beyond the means of science aka also known as he lied. And you know he used that phrase to elevate it to some extreme like I've never hardly ever seen this or you know this is a double match and you get this catchphrase. Like you said 12 people like you and I are hearing this when you have an FBI agent Sutentide Jager Hoover were all taught to believe in the infallibility of their work because I had a similar thing agent Michael Malone in my case was to a 98.9% certainty. But we learned later that one he probably didn't even do the test himself and DNA conclusively proved that he was lying. I get what you're saying as far as that goes.

16:20So everything stacked against Selmer we've got these junk sciences going on. Did your lawyer contact the people that have played basketball with you? The guy that ran the director he actually testified he signed in I knew he was there. He know all his friends even some of our friends testified. But since these people knew you obviously the prosecution just shot holes in your alibi by attacking their credibility on that angle. But what about the age discrepancy between you and Casey? I mean obviously you guys were not in the same year school. The prosecutor presented a middle school teacher to say that Elmer was in the same eighth grade math class. We believe that teacher did in fact teach Elmer but this year's prior. And Elmer also to making more confusing Elmer also had brothers who had that same teacher. And a sister. Yes we all had him for home room. We all had him. But Elmer then takes a stand and tells the jury no I was not in the same eighth grade math class as Casey.

17:20The prosecution then calls us a rebuttal witness at detective who is a name defendant in the lawsuit that we have going on now and he's still alive who says Elmer was in the same eighth grade math class as Casey. So you can see how the jury would say well if he's going to lie to us about being in the same eighth grade math class as Casey Casey testified to it. The teacher testified to it and this rebuttal witness came and testified to it. It must be true. And where we fall the prosecutor is just like we pulled the transcripts. He's an agent of the state the school districts are agents of the state. He could have easily pulled those transcripts. But they had an narrative and they were going to follow through an narrative that Elmer was in fact the Empress. Yeah, that is definitely improper. Did G.S. take the stand in this case? She was one of the first witnesses. What's your analysis of the cross examination? Unfortunately, there was several things that he could have certainly explored.

18:22Contradictions not just in her testimony but the testimony of Casey. One of them big ones was Casey's claim that he had sexual intercourse. That should have been explored. There was some other evidence that we don't need to get into that shows that she didn't in fact have sexual intercourse. But none of that was explored. I do want to ask Elmer. It's one thing to have, you know, FBI agents and folk up there and they're describing evidence and talking about things. It's another thing when it gets personal. How did you feel when you sat there and listened to G.S.'s testimony? I'm basically sitting there as an 18 year old kid. She's lying. Literally, she's lying. And what could I do about it? Right. I have people who protect their heart interests, don't know if I protect the mind. So I sit there, watch, listen. I can't explain because it makes it worse. So I had to sit there and swallow it. But at the same time, you can't understand why someone would do that. So between G.S. identifying you and special agent Malone making his double match, any of the other defense efforts were doomed to fall short.

19:24When they found me guilty a month later, they sentenced me. I never forget I'm a sister birthday. So they give me 45 years to life at the possibility of parole. But the thing about it is they convicted me, sentenced me off of me a deal in the process. Before trial after trial, gave me time, pulled me back into court 18 months later off of me a deal. Paul's there for a second. I got to keep up with you on that part of the story. 18 months, they come back with this deal. Now, common sense tell me when they did that because they did it before trial, during trial, and then you convicted me and give me the time, and then you're coming back to offer me a deal. You know what I mean? But then they blamed it on the fact that because I had no real serious criminal history and due to the lack of physical trauma to the victim, then they didn't feel it was conducive to give me what you gave me. And so all those flags went up, something's wrong. And that's what I just kept saying to myself. Sun's wrong. Why would you come back and offer me a deal?

20:25You knocked me in my head and said, that's what I deserve. Somebody in there knew something was wrong, but that somebody couldn't do any more than they were doing. What if your soda actually did something for you? Introducing Skypop Protein Soda with 10 grams of complete protein, zero sugar and 45 calories, Skypop Protein Soda offers four delicious flavors with big taste and real benefits, light, refreshing, and ready for wherever your day takes you. It's any time protein that helps you reach higher. Skypop Protein Soda, reach for the sky. Get your Skypop Protein Soda now at Target or Harris Teeter. Hey everyone, it's CalPen. I'm the host of Earsay, the Audible and I Heart Audio Book Club. This week on the podcast, I am sitting down with Ray Porter, the narrator of Andy Wears Audio Book Project Hail Mary,

21:27massive sci-fi adventure about survival and science, and what happens when you wake up alone very far from earth? I really had to make a decision because I caught myself getting that frog and my throat and starting to get teary as I'm narrating some of these sections and it's like, okay, yo, yo, is this indulgent? And I really thought about it. I was like, no, at this point, it would kind of be betraying the trust, the author and the listener have in telling this story if I don't go through it. But there's places in this book that deeply emotionally affected me and I left it on the mic. That's great. Because it served the story. People will say, like, oh my God, I cried at the end. It's like, yeah, dude, me too. Listen to Earsay, the Audible and I Heart Audio Book Club. I'm the A Heart Radio App or wherever you get your podcasts.

22:42Visit washablesofist.com today and save. Authors are subject to change and certain restrictions may apply. When I went into the penitentiary, it only held 500 people. And you could stretch it at seven. Imagine seeing three penitentiaries built. And asking you, do you want to build or be a partner? I'm not building anything you're putting in. I mean, I'm going to be honest with you. Early into being incarcerated, I wanted to fight you at every cause. I'm scared. Second, I'm not going to let you do anything to me. I learned real early because of a guy that was familiar with my family and knew my father kind of pulled me to the side. He let me know. He said, listen, you're angry. But if you don't change, somebody's going to kill you or you're going to kill somebody because you're angry. And he said, let me ask you something. And I said, what? He said, I know all the guys is in here. Who did something to you? And that made sense to me because they were there before I got there. And so there's a code of ethics.

23:42There's inmate code of ethics. And then there's the code of ethics for the officers because they want to go home. So what you see, you see, but you don't see it. And in a penitentiary, all you have is your word. I found out that over the course of time, the most important quality that we have as a human being to be able to communicate with people becomes stagnated. We're around the same people every day. We do the same thing, 23, 24 hours a day and then turn around repeated tomorrow. It's just like getting up going to work. I guess that's why I like going to work. It's a process. But for me to see all those things and I'm not going to get into all the violent parts of that because I don't need that to steer my emotions because it does. But I never thought that I wasn't going to see the other side of the fence. That never entertained my mind. But I knew I was going to be here for a while. My whole mindset was that since I'm going to be here, I might as well go ahead and do what I got to do. I got my high school diploma, started dabbling and everything else that I could. Closed myself in that eight by ten.

24:42And I started opening up those books called Law and Rules and Codes of Ethic. And I started finding out what specific words meant. And I didn't even know what layman terms meant until I got back into the courtroom. And I used a terminology. And I don't know where he's speaking. He's speaking a language. I need to know what he's saying. And that's when I learned to have a judge have them explain to you so you can understand. So you set yourself on the positive path and got involved in your own legal fight. But what happened in his initial appeal? So after he was convicted, he had an effective assistance claim. They appointed him attorney there, but they appointed him another attorney out of the public defender's office. So that's, yeah, of course, it's a conflict of interest. It's like a private firm, another associate, you know, going after, you know, another attorney, you know, that's what happened. Anyway, after that was quickly shot down by the judge, Elmer, who, you know, Tom had a 10th grade education and had a life sentence.

25:43Even though he requested to have a pellet council, he was denied a pellet council, and he was forced to fight this case on his own, pro say, for the next 36 years. You know, Elmer's official sentence was 30 years to life. After he hit 30 years, he petitioned for parole. He kept getting denied. They want you to admit you're crying. And that, when you do that, you can't take it back. And so that was my biggest issue going through all this. I wanted something that was rightfully mine, but would I sell my soul to get it back? Finally, after 35, 36 years, there was a sympathetic African-American female on the parole board, who seemed to really listen to what Elmer was presenting, to show in fact he was innocent. And we believe she advocated for him to be released on parole. I was parole November, 2015, and had met Emeca on January 26th, 2016. Had an expungement summoner up on a church

26:43on Fifth and Clayton Street. If you were convicted of a crime, and your crime is like five years old or older, you can have those things removed from your record, because that is one of the things that is hindering you from being gainfully employed. And so he got up and spoke my life into existence. Everything that came out of his mouth was literally me. He said, just imagine for a moment that you are a young man and you go to prison, you're 18, 19 years old, and you come out as a 56, 57, 58-year-old man. I'm somewhere around there, 54, somewhere like that, and I'm shaking my head. And he said, then, you know, after you come out, your life is basically over, and now you got to get it back together, but you don't know what to do, because the one thing that's hindering you is what you actually went to prison for. And so I still didn't wait to talk with him, and when I got the opportunity to say what I need to say, my first question to him was, you know, you spoke my life just now and up here, and I just said 35 years in a pit of entry, and I have evidence that proved I've never committed

27:45a crime at all, and I have it right here in my hands. And I remember the young lady coming to tell him, Mr. Mecca, your seats ready, and people were in line waiting on you, and he said, come on. And so I went from the end of his line, to the front of his line, got his last card, and all he said was, okay, I'm gonna help you. And of course, you're nothing. And we've been here ever since. You know, Elmer was convicted in May of 1980, and I was born in August of 1980, so I feel one of my life missions, the reason I'm here in Earth, was to cross pass with Elmer, and help write the injustice that was done to him. But unfortunately, you know, instead of being able to just focus solely on clearing his name, your efforts were split, because Elmer got sent back to prison on a parole violation. When he was released, he was given two conditions. Number one, he had to obtain and maintain employment. And number two was, because he was a convicted sex offender, he had to take certain classes in order to be rehabilitated. So on the first condition,

28:45Elmer obtained employment at a local barbecue restaurant, and three weeks into work in there, that restaurant gets a call from the state police, stating that Elmer is a convicted sex offender, and they were coming out the next day to put posters in the restaurant to notify patrons that Elmer was a convicted sex offender. So you can imagine what happens next. The next day Elmer was brought in, and it's told, unfortunately, he has to be let go. So despite the fact that they cost Elmer to lose his employment, that was cited as the first violation. The second condition was to take these classes, which Elmer takes all the classes, and upon completing all the classes, he said in order to get a certificate of completion, he had to admit guilt. And my whole thing was, I'm willing to participate, but if you ask me if I did it, I'm going to say no. You're reputting me just because I'm simply saying no, but you're not listening to why I'm saying no. He has a constitutional right to maintain his innocence, but he was told we're going to find out

29:46it's a second violation. So after tasting freedom for eight months, after being locked up continuously for 36 years, he was sent back to prison with a clear message that, unless you're willing to admit guilt, you're not going to see the light of day again. What if your soda actually did something for you? Introducing Skypop Protein Soda with 10 grams of complete protein, zero sugar, and 45 calories, Skypop Protein Soda offers four delicious flavors with big taste and real benefits. Light, refreshing, and ready for wherever your day takes you. It's any time protein that helps you reach higher. Skypop Protein Soda, reach for the sky. Get your Skypop Protein Soda now at Target or Harris Teeter. Hey everyone, it's CalPen. I'm the host of Earsay, the Audible and I Heart Audio Book Club. This week on the podcast, I am sitting down with Ray Porter,

30:46the narrator of Andy Wears Audio Book Project Hail Mary, massive sci-fi adventure about survival, and science, and what happens when you wake up alone very far from earth? I really had to make a decision because I caught myself getting that frog and my throat and starting to get teary as I'm narrating some of these sections and it's like, okay, yo, yo, yo, is this indulgent? And I really thought about it. I was like, no, at this point, it would kind of be betraying the trust, the author and the listener have in telling this story if I don't go through it. But there's places in this book that deeply emotionally affected me and I left it on the mic. That's great. Because it served the story. People will say like, oh my God, I cried at the end. It's like, yeah, dude, me too. Listen to Earsay, the Audible and I Heart Audio Book Club. On the I Heart Radio app, wherever you get your podcasts. Sink into affordable luxury. Anna Bay is the only machine washable sofa

31:46inside and out, with stain-resistant slip covers and a cloud-like frame duvet, everything goes right in the wash. Plus, the modular design lets you change the look of your space any time. Visit washablesofas.com to upgrade your home. Shop up to 60% off site-wide, with sofa starting at just $699 and a 30-day money-back guarantee. Shop now at washablesofas.com offers are subject to change and certain restrictions may apply. So, Emma Conn cover for you, basically the same thing that happened in my case. And if it's all right with you, I just want to do a little bit of a rundown of that history right now and make sure you know everything that was going on at that time. Go ahead. So, Agent Michael Malone of the FBI, who was their premier hair microscopic examiner, who also became the center and the hub of an international scandal that basically took the FBI lab down where they don't do microscopic hair examinations anymore. But this actually started in August of 1989.

32:48There was the guy that ran the metallurgical lab whose name William Tobin and he raised concerns about Agent Michael Malone's testimony in a different case because he knew he was lying and he brought it up then. And then fast forward a little bit. There was the Oklahoma City Bombing case. I'm sure you've heard about that. After that case of whistleblower came out of the FBI lab, Dr. Frederick Whitehurst. And he wrote letters. He made a lot of allegations basically he was saying that the FBI lab is being coerced into always presenting evidence favorable to the state. They were trying to tell him how to do it. They weren't following best practices and he raised a lot of issues about Agent Michael Malone. Well, the Inspector General's Office, which is above the FBI, launched a big investigation and in 1997, they issued a report and they named Agent Michael Malone and said that he consistently misrepresents evidence and testifies

33:48outside of his area of expertise. I think as Emma said earlier, layman's terms it sounds like he just called him a liar. So I have a copy that report. I know about it, but I can't do anything with it. It's not enough to go up against an FBI agent. Say he lied in my case, you know, it just wasn't enough. Now, what nobody knew right after that report came out, the FBI themselves launched a new investigation and they brought in outside forensic scientists to look at every case that Malone had touched. Mine was in that mix. I'm sure yours was, but they never made it public. So the FBI, they sent that to my prosecutor with a letter saying, hey, there's something wrong with the Huffington case and my prosecutor covered that up for the next 14 years. I would not have known about it if it wasn't for Spencer's shoe at the Washington Post. In 2015, Spencer wrote the article that exposed the whole scandal that was going on with the FBI lab. At that point, they started scrambling. They knew that report was coming out.

34:49In my case, they ended up DNA testing the hair and they were not my hairs. And that's how I want to rid of actual innocence. But not to get off into that, I'm just saying, this started in 1989. Really coalesced and formulated in 1997 to 1999. And you weren't contacted. They didn't tell you. It wasn't until, I think, 2015, after the article came out, where the innocence project got involved with the DOJ Department of Justice. And at that point, they started making some notifications to some defense lawyers. But you and I both, it cost us probably an extra 15 years in prison, because they were withholding this information from us. No, that's the first I heard of. So I want to turn to Mecca, who I'm sure knows pretty much everything I just said. You're coming on board. It's 2015. The articles come out. You've got not only hair evidence, it's questionable, but you have the Asian in question. The guy that's at the heart of the whole storm, Michael P. Malone.

35:49So we saw, you know, the Inspector General's report, all the documentation, what was going on. So we knew we had a serious issue. So we sent the trial transcripts to the FBI. They pointed a special counsel, who was looking at this case. And he wrote a letter to the Attorney General of Delaware, stated, as we said earlier, that the agent had testified beyond the means of science in Elma's case. And that was cited, along with what we talked about earlier, with the transcripts showing Elma was not the same eighth grade math class as KC. Not to mention all the other reasons that should have kept them from pursuing Elma at all. But now, unfortunately, the biological evidence in this case had been destroyed. So it was never going to be a slam dunk on the exoneration through DNA testing. But how did Delaware react to the evidence that you had amassed? So the Attorney General's Office fought two for nail to not release Elma and to give him alternate solutions.

36:49And this is a consistent theme that I've seen in a number of wrongful conviction cases, even if they're going to let you go. The next thing they do is try to mitigate or totally eliminate any potential civil liability that will result in you getting compensated. And one of the ways they do that is never totally exonerate you. They offered him a commutation, which is your guilty, but we're just going to cut short your sentence. So I want your audience to think about this. If you're guilty, you're going to jump at that. But Elma was willing to spend the rest of his life in jail in order not to admit to a crime that he knew he didn't commit. And so he turned that down. And so only after we back them in the corner and they had no choice, did they finally say, okay, we'll agree to overturn the indictment, remove the charges, but we're still not going to say you're completely innocent. And if you're going to get compensated, you're going to have to fight tooth and nail again

37:49to get compensated. Because Delaware is one of, I think, 12 states that's left that doesn't have any compensation for people who have been roughly convicted and incarcerated. Well, we'll get the compensation in a minute. But first, I really just want to acknowledge what you were willing to do with what you had on the line. I'm just happy for you that you were able to force their hand and win your freedom. What was that day like? I mean, how did you feel? They asked me how I feel about it. When he told me he said that too, how you feel? And then my response was, I don't know. Just this day came and it's here. You know, you thought you would react one way in your mind because they hadn't happened. You're going to do all these things. But when he literally told me and asked me how I felt, I just simply said, I don't know. That I can relate to, trust me on that. Yeah, I got a whole lot of aren't you happy? Was that me? Yeah, I am. But I don't grab that. They took celebratory away from me. It's just another day. It's another Christmas. I know the significance. It's just another day. It's very eerie to have this conversation

38:50and you express the exact same sentiment I did because I've never talked about that on my release date to anybody. And so you just said that. I was like, yeah, nailing it. You're saying exactly how I felt. Everybody is looking for your feelings and you don't have them. Right. You don't have them. And because you have become immune to it, people think that something's wrong. Yeah. I mean, you know, inside and I think you could probably like, I didn't celebrate holidays, birthdays, any of that. And when I came home, I still don't. I really don't do much for holidays or birthdays. What I started doing was celebrating what I called my freedom day. The day I came home, July 22nd. And I was doing it for a number of years. But when I came home, I wasn't fully exonerated. I had to take it out for plea. That carried on for 10 years. It took me 10 years after being home. I just got mine straight this year. So this year is the first year I've ever been whole. But I had made a statement to a friend of mine last year. I said, I'm never, I'm not going to celebrate my freedom day anymore.

39:50Because all I did was trade one prison cell for a bigger one. I still have the stigma. I still am not fully clear. And then this year I was. I was fully cleared. And I actually got to spend it with, you know, our mutual friend here, Jason Flom, and celebrated the way he should be celebrated as an honestly free person. And that does me something. And I know it's important day to you. And your battle's not over though. You never got compensated. No, no, no. So right now, December 13th would be five years. You know, and December 12th is my birthday. So December, I say I celebrate two birthdays. So I'm like you, I'm waiting to get to that point where I don't want to celebrate that. But it keeps me humble. It keeps me conscious of the possibility of it could happen to you again, you know. So I'm conscious of that. Well, at least you have Emica by your side. So like you said, your freedom day is December 13th, 2018. They removed the charges, but didn't recognize your innocence

40:52to mitigate their civil liability. So are you suing them? Yeah. We sued the FBI, which is the United States government, and we sued the City of Wilmington and the police department. The United States was dismissed from the case after they filed a motion claiming immunity. And the federal judge through his credit, even though he said, you know, I have to follow the law on immunity, he made the attorneys for the United States apologize on the record to Elmer. But nevertheless, despite the fact that they recognize it was a tragedy, they were not willing to compensate them even a dime. And neither has Delaware. Now, I know that no amount of money could ever make up for what they took from you, but that very least, it could help you live out the rest of your life, which you still get to do thanks to Emica. And at the beginning of all this, like I said to Emica, when I met his wife Mary Jane, I told him there's not an ocean-wide or deep enough for me to even begin to tell him where he has really done for being. And I never cried over this, but it's been five years.

41:53Some of it's been hard. It's really been hard. But for me, I was just finding a way to stand up, just standing there and walk. And I know how I'm doing it, but I'm doing it. And if I could get a couple of men together, and I could help them straighten out their life, I would go forward in a heartbeat because they need people like us to really give them insight on what you're facing, what you're going to be dealing with. If I help one, I did something. If I helped many, then I'm doing a whole lot of something. Someone opened the door for me to come back through. It would be real unfair for me not to try to pay that forward. You know, I feel that same obligation, because I had a great law firm that got involved in my case, Robeson Gray, and they got me out. And the only way to repay any of these folks is to live the best life we can live. And to pay it forward, like you just said, I knew what you're saying. There's a weight on our shoulders right now to pay that forward so that they feel good about what they did.

42:53When they point to you, Emma points to you and talks about Umher. Look what Umher is out here doing. He's taking care of all his business. That's going to make it all worth it. People believe in you and people support you for sure. Yeah, but I hadn't had a chance to look at that reflection. You just gave me that. I'm sitting here and I did all this. I call it crap because it's really the meaning of it, but I'm doing it because it does mean something. You know you're doing the right thing. You were doing the right thing fighting for your life. Never giving up. Never surrendering your integrity. Your name. Your character. Your humanist. You know you hung on to that. And you're here today to give back. And you're going to find your way. And that's how it's going to work. But what can our audience do to help? I know you got to go fund me and they can certainly help you out. And we're going to make sure we put a link for your go fund me at the end of this podcast. But overall, either Elmer or Amica, what can we do as a community here? Where do we need to step up?

43:53Well, one of the things is we need to get a bill in Delaware to help those who have been wrongfully convicted and incarcerated get compensated. Elmer was instrumental in getting a bill drafted. We got it through a committee in the state house of Delaware. But the bill was never put on the floor. So we want to put pressure on Governor John Carney, the leaders of the Delaware Senate and the Delaware House of Representatives to say Delaware should join the majority of states in having a wrongful conviction and incarceration bill. So that's one of the things that we can do to help make sure someone like Elmer is treated fairly. You know, when Elmer was released, he was just released with a shirt on his back in the middle of winter, given three days' worth of diabetic medicine to the point where, what's that medication right now that went to a diabetic shock? And no resources have been provided for him. No one's checking on him.

44:53So we want all of that to change. And Elmer is an advocate for that. He's a warrior. Well, I got to say, folks, this has been an honor for me to be a part of this conversation. To meet both of you all. Elmer, you're my hero. I want to thank wrongful conviction and Jason and Connor and everybody for letting me do this. At this point in time, we always like to give our guests that last word, whatever's on your heart, whatever's on your mind, wrap it up for us, tell me what you think. Thank you guys for giving us a platform to talk about this important issues because unfortunately, that many other Elmers out there across prisons, across America, and by casting light on the injustice that goes on, hopefully it can make a change. Hopefully it can make a change in laws to say that there should never be a time bar, procedural time bar, and innocence. If someone is innocent and has evidence to show that they're innocent, they shouldn't be precluded from presenting that in court, which is what happens a lot of times. The merits never get heard. The state should not be allowed to destroy evidence,

45:54like helping an Elmer's case, where someone who's facing the life sentence has forensic evidence destroyed, so they cannot scientifically exonerate themselves. So by casting the light on cases like Elmer and the other cases that you're doing, you're making a difference and causing people to really think that we can make a change in that criminal justice system. Okay. I think, given a little bit more time, I know that I'm gonna be okay. It's nice to meet you, John. This is the kind of thing that I aspire to want to always do, be able to talk about it. I'm down because I know that I'm a voice. I know that they can't change, you know, what has been done, but I can change prevent it from happening to someone else. So with that, I want no more victims. I don't want no more guys going, if we can get one thing right, that's the one thing we need to get right. You know, it's easy to put me there, but it makes it hard for me to get myself out when you don't get the whole truth. Give it, give it, give it, give it up. Truth is, if I'm judged by a jury on my peers, I've never seen one of those people that I grew up in in my neighborhood

46:55sitting at jury pool. Those are a jury on my peers. I have to go back to that neighborhood, so those are the people that I have to go back to, those are the people that I have to deal with me. But I didn't see those people, because those people knew who that young man was. That's what we deal with. Thank you for listening to Rowan Full Conviction. I'm your guest host, John Huffington. I'd like to thank our executive producers Jason Flom, Jeff Kempler, Jeff Clyburn, and Kevin Waters, as well as the production staff, Connor Hall, Andy Chelsea, and Kathleen Fink, with Research by Shelby Sorrows. The music in this production is by three-time, Oscar-nominated composer, Jay Ralf. Be sure to follow Rowan Full Conviction across all social media platforms at Lava For Good, and at Rowan Full Conviction. You can find me on Instagram and Twitter at Huffington John, and you can find my book, Innocent, and I've seen Miss Carriage of Justice at johnhuffington.com or wherever books are sold. Rowan Full Conviction is a production of Lava For Good podcast,

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