Off Duty: The Prosecutors | Ep 5

0:00This is the Guardian. A password manager should be the first security purchase you make for your team. Why? Because compromised passwords are the number one way bad actors attack companies. And small businesses are their favorite targets. But unlike a lot of security challenges, passwords actually have a pretty simple solution. One password lets you manage all your businesses credentials. So you can feel confident that your data stays secure as your company grows. Find out more at onepassword.com slash special offer and start securing every login. Raul Palma Pettis had gone missing. Again, the video game repairman had the evidence that could break open Alex's case. And he was the only one who'd seen it.

1:00And now he's gone. Not answering any of Eric's calls or texts. Eric keeps checking his phone. When finally, after more than a week, he hears the ding of an incoming text message. He shows his phone to Jennifer. He says, I had a brain eating amoeba. And so Jennifer and I are looking it up and we're like, brain eating amoeba is like so rare. So we were trying to figure out what it was. Because he's English isn't his first language. He's Cuban. So anyway, we assumed it meant Adema. Right, we were trying to figure it out. Adema. When you get swelling from retaining fluid. So we thought, you know what? He just misspelling Adema. That makes sense. His head hurts. He maybe fell. You know, some swelling, maybe some bleeding. But it wasn't a typo. He contracted an amoeba that gets into your nose. Travels to your brain and starts destroying your brain tissue. Luckily, this is extremely rare.

2:00Unluckily, it's usually fatal. One, people rarely get them. And two, when you get them, it's like a 90% mortality rate. You don't survive most of the time, a brain eating amoeba. Of the 167 people who have gotten this amoeba, just four have lived. One of them was Raoul. Your expert gets a brain eating amoeba? That is next level, you know? And then he lived, though, right? So you can't even say you're unlucky. It's like a miracle. So at this point, Jennifer Black was feeling pretty good. Her star witness had survived a brain eating amoeba. She'd gotten a sworn statement from him saying that he'd heard Tyrone Clay's voice on the PlayStation. Evidence that he'd been gaming when Officer Clifton Lewis was killed. The timing was perfect. The state was gearing up to finally bring Tyrone to trial. He'd been waiting in jail for 10 years, without ever being tried,

3:04much less convicted. And now, with this evidence, maybe he'd go free. One of the state's attorneys leading Tyrone's trial was Nancy Aducey, who'd originally prosecuted Alex Villa. Jennifer considered her a friend. I'd never gone to have drinks with her or anything like that, but I was very, very friendly with her. We've worked together on many, many things. We don't always see eye to eye, but that's the nature of our work. In the three years since Alex's trial, Aducey had been promoted to head of Cook County's Conviction Integrity Unit. Its purpose is to review claims of wrongful conviction, which is great, Jennifer figures. Nancy will hear this new, potentially exonerating evidence, and she'll do what prosecutors are supposed to. Assess it fairly. The police might have crossed lines. The forensic slab might have missed key data. But now, it was in the hands of the head of the Conviction Integrity Unit.

4:09The wheels of justice turned slowly, but maybe they really would finally start to turn. Right? From the Guardian, I'm Melissa Segura, and this is Off Duty, Episode 5, The Prosecutors. So, just a backup for a moment and explain where things are. It's now 2022. Alex was convicted in 2019, but for various reasons, he hasn't been formally sentenced yet. And Jennifer and Eric have been working to get a new trial before the sentence even comes down. Roving Tyrone's innocence is a big part of their strategy. If he was home playing video games, then he couldn't have been at the mini-mart with Alex.

5:10His confession had to be false, and if his confession was false, then the whole story might fall apart. But Jennifer has been around a long time, and she knows they might need more than the PlayStation evidence. Some way to prove, for a fact, that not only Tyrone, but none of the men could have been at the mini-mart that night. Going through documents, she notices something. We saw somewhere, in a warrant or something, that the Chicago Police Department was communicating directly with Facebook. The CPD was asking Facebook to give them expedited access to personal accounts, because the situation was urgent. Like, this is a emergency, we have to do it right now, and when it's exigent circumstances, you can ignore the Constitution, long in the short of it. So, they're trying to get Alex's Facebook account. This sets off Jennifer's spidey sense. If the request was so urgent, where were the Facebook records?

6:11She doesn't have them. And legally, prosecutors have to share all the evidence they have that might prove someone's innocence. It's a principle so sacred. The cases can be thrown out if a prosecutor withholds materials that are favorable to the defense. Jennifer and Eric had already noticed they didn't have Alex's cell phone records, or phone records from his co-defendants, or his girlfriend. Now they're missing this Facebook data too. And if those things are in their files, what else might be missing? We became suspicious that the police got evidence that they hadn't turned over. So she figured she'll just go directly to the prosecutors. Nancy Aducie and her partner on the case, Andy Varga. Both Nancy and Andy were experienced prosecutors. They both came to the state's attorney's office in the mid-90s. The office culture focused on winning convictions. The generation of lawyers before them had a tradition.

7:12After their first victory at a jury trial, they cut their neckties and mounted them to the wall, a trophy. But Jennifer knows them as straight shooters. She likes and respects them. If this is all just an oversight, they'll obviously correct it. And if it's something more serious, they'll want to know. Plus, they have a legal obligation to turn it over. She writes to Andy and starts to tick through the list of things she's missing. First, do you guys have those text messages between Alex and his girlfriend when Alex says they're arguing at the time of the murder? And also, there was a mention of an FBI cell phone analysis, a map of their locations. Do you have that? Andy writes back to Jennifer. He says he'll ask the FBI about that map and pass it along when he gets it. And he tells her that he searched his email every way he knows how. And he can't find any of that cell phone data she's asked for.

8:14Jennifer wasn't about to accept Andy's word for it, that this info just couldn't be found, Eric told me. It was out there, somewhere, and she was going to find it. So one of the things that she's particularly good at is finding ways to discover information that other people can. And not only that, it's not through brute force, she'll think of a way through it. And so it began. So I started small. She files a public records request focusing on one detective's emails. Then it just built and built. And then I realized there was so much going on in the case that we went really broad and started just saying anything with Alexander Villa. Meaning she's requesting any emails containing Alex's full name. And we even went as broad as anything with Villa. So you can imagine what we got. So I don't know how many millions of emails we went through like an astounding. A shocking amount of emails. She also sends out a subpoena to the FBI for that cell phone analysis.

9:16The one Andy said he'd forward along when he got it and hadn't. The FBI responds with a map. It shows an FBI agent had taken the location data from the suspect cell phones. The agent put color coded dots, marking each man's approximate location on the night of officer Lewis's murder. As soon as they see it, Jennifer and Eric know just how much this would hurt the state's case. It's a stunner. Melvindy Young, who's the guy, the only independent eyewitness, who's there sees Villa get out of that car according to the state. But the map seems to show something else. He is miles away at the exact time of the crime. According to that map, Melvindy Young, the diabetic, couldn't have seen Alex enter the mini-mart. He wasn't there. The same map places Edgar those phone near his home in Humble Park. More than three miles away from the mini-mart at the exact time of the crime.

10:21Like it's just one fucking bombshell after another. You know, you're like, what? Now, just because a garthose phone is pinging from Humble Park doesn't necessarily mean a garthose is the one using that phone, right? Then Jennifer and Eric pull up another data source. The actual text messages from a garthose phone. How do we know he has a phone in his hand? Well, we got phone dumps, so extractions of cell phones that showed us the content of that. And he's texting his girlfriend about having sex. The phone's just littered with things that it's him talking about stuff he's involved in. The entirety of the text message is makes it clear that that's his phone and he's using it. Some of them are outgoing phone calls, meaning that the person unlocked their own phone, typed in whatever phone number or picked their contacts and called them. So unless somebody started texting his girlfriend about having sex with her, you know, it's about as ironclad as you can get that he had the phone.

11:22The attorneys keep mining at Garthose cell data and realize that on the night of the murder, at Garthose didn't talk to any of the other suspects. They had not communicated with him that day. They hadn't communicated with him that week. They hadn't communicated with him that year. They did not talk to him. So these men had allegedly robbed a store together. But they'd never talked on the phone. Jennifer and Eric go back through the transcripts of Alex's trial, just to make sure they haven't missed something. But nope, the cell phone map never comes up. There were a few plausible explanations. One, Alex's original lawyers did see it, but chose not to bring it up. Two, the prosecutors hadn't seen the map themselves. Or three, they saw it, but didn't turn it over. Then Jennifer and Eric look at the date that the FBI map was first generated.

12:26January 6, 2012. On that day, Melvin, Edgar though, and Tyrone were all still sitting at the police station, giving their confessions. But the FBI map, which the police already had, strongly suggested those confessions couldn't be true. Alex goes in. Clay goes in. Edgar Cologne is driving Melvin Young's in the cart. If any one of those people aren't there, this story really falls apart because why are so many different people saying this story that it's not true? It lends even more and more support to all these defendants and a witness who were saying, they coerced me. You know, this is made up. And the fact that they all have the same made up story is very suspicious. The next day, CBD held a press conference to announce that Tyrone Clay and Edgar though Cologne had been charged with Lewis's murder. Even though police had a compelling reason to believe they couldn't be the right men.

13:30So now, if you're Eric and Jennifer, it's like you cast this net out, hoping to catch a few things in it. And when you pull it back in, it's full of all sorts of stuff you didn't expect, which is great for your case and enraging. And it also leads you to wonder, what else is out there? What would happen if we cast an even bigger net? And how exactly would we even form that net? That's when Jennifer thinks, well, we already have all the police reports related to the case. But what if we could get our hands on the reports about the reports? The metadata. Metadata is data that's associated with data. So let's say you have a photograph. The photograph itself is the actual data that you're producing. But along with that is other data that's kept with the photograph.

14:31For example, the location it was taken, the time it was taken, what camera it was taken by. Police reports have that kind of data too. You submit the police report, the data itself is a police report. But in this case, Jennifer wants to know, well, when was that police report created? When was it submitted? Who approved it? And so the metadata is all the information that goes along with that police report that gives you an idea of how it was created, stored, and when it was approved. For instance, one of the documents they get back after they requested the metadata is a draft of a police report. But it's weird this draft. It's a Microsoft word instead of the police department's usual software. And in the draft, it says Alex's hand is, quote, somewhat deformed and not functioning properly. But the final report, the one that exists in the official case files, doesn't say any of that. Instead, it says that Alex via his hand looked, quote, abnormal.

15:31What name appears in the metadata of that change? Nancy Aducey. And then I look and there was an edit she had written in all caps, like a question or something. And then I'm like, what the what? And it made me question other decisions she possibly had made and what other things she had done. And the change in describing Alex's hand wasn't just semantics. A key part of Alex's defense at trial was that his hand was too injured for him to have vaulted himself over the counter, like the killer did, that he could not physically have done what the man in the surveillance video does. The details about Alex's hand looking deformed and not functioning would have supported Alex's claim, but changing the description of Alex's hand to, quote, abnormal. Well, that could mean anything. And here's another thing Jennifer notices in the document she's requested.

16:35People with access to the drafts of that police report. Nancy, Andy, and most of the other officers they were communicating with. They used their personal email addresses to send drafts back and forth and make changes. That might seem like a small, bureaucratic error, but using their personal emails could have kept important evidence out of the hands of Alex's defense team. Evidence that under the law, they were entitled to have. This all makes Jennifer question everything she thought she knew about Nancy and Andy, and the role of prosecutors to do what's right. I thought I was friends with these people, like I gave the chance after chance after chance to try to do the right thing by Alex and not have all this mess. And I said to Andy Barg, just give him a new trial. Do what's right. I said that over and over to Nancy. But this new information didn't just change Jennifer's feelings about Andy and Nancy.

17:39It could change the future of Alex's case. A password manager should be the first security purchase you make for your team. Why? Because compromised passwords are the number one way bad actors attack companies. And small businesses are their favorite targets. But unlike a lot of security challenges, passwords actually have a pretty simple solution. One password lets you manage all your businesses credentials so you can feel confident that your data stays secure as your company grows. Find out more at onepassword.com slash special offer and start securing every login. Hi, I'm Jane Kostin, former writer and podcaster for places like The New York Times, The Atlantic, and National Review. And now I'm here to hang out with you. Five days a week. On what day? Crooked's daily news podcast. That's right.

18:40Now who's respected on both sides? Okay, yeah, it's not me. It's probably still just Dolly Parton moving on. These days it's hard to separate what matters from all the noise, especially when the noise somehow also feels like it's made out of knives. That's why every weekday the team and I scour the headlines to bring you the stories that matter most to the way you live in just 20 minutes. Listen to the show wherever you get your podcasts. Jennifer reaches out to Tyrone and regard those lawyers and tells them what she's discovered from her records requests. They're outraged, especially about the FBI cell phone map, which strongly suggests that the men were nowhere near the minimar on the night of Clifton, Lewis's murder. Prosecutors should have given them that evidence too. Like I told you earlier, turning over evidence helpful to the defense is sacred in criminal cases. In the fall of 2022, Edgar though in Tyrone's lawyers asked Nancy and Andy about it in court.

19:42Nancy tells the judge that she'd never received the 2012 cell phone map from CPD. She went on to say she knew about it, but there were issues with the data and didn't think it proved anything. She said she didn't think it was admissible. To be clear, there was no ruling on whether or not the map was admissible. Andy chimed in to say a 2012 police report shared with the defense in 2016, referred to the existence of a cell phone analysis. So quote, bottom line, everyone has known about this. He says Alex Tyrone or regard those attorneys could have asked for it and they didn't. The prosecutors continue their argument in court papers, writing that the cell phone map doesn't prove anything. Because they say the map is wrong, they argue that the FBI agent who created it back in 2012 wasn't an expert,

20:43and made mistakes. They say two other FBI agents had since plotted the calls differently. So this map you have, it's wrong and so we didn't have to turn it over. The attorneys representing Alex, Edgar though in Tyrone, say one, whichever map you look at. None of them ever show the men's phones together or anywhere near the mini-mart. And two, it doesn't matter which map is right. The law is clear. Prosecutors have a responsibility to turn over evidence that could help the accused prove their innocence. And they didn't. In December 2022, it got those attorneys asked a judge to sanction Nancy and Andy and remove them from the case. Before the judge could rule on that, the higher-ups at the prosecutor's office intervene. They pulled Nancy and Andy off the case.

21:48We can't be sure exactly why they were removed, but Tyrone and Edgar those lawyers aren't satisfied. They want to find out if there's more evidence that the prosecution didn't turn over, so they do something practically unheard of. They subpoena Nancy and Andy, plan to put them on the stand, under oath, and grill them about all the missing evidence. In June 2023, Nancy and Andy are subpoena to testify. Tyrone's lawyer prepares to call them to the stand to answer questions about their alleged misdeeds. Why were they using personal emails? Why was the map not handed over? Had they intentionally hidden the truth? This puts the state's attorney's office in a bind. Nancy and Andy take the stand, and its office risks a brutal reputational beating if they testify the important evidence was never disclosed, or worse. Or it drops the charges against Tyrone and Edgar though,

22:52and the testimony is moot, because there would be no case for them to testify in. So that's what the state's attorney's office does. They drop the charges. The charges against the two men were dropped Wednesday ahead of a hearing during which police and prosecutors were set to be questioned over their handling of the 2011 investigation. With the charges dropped, Nancy and Ducy and Andy Varga no longer need to testify. In Tyrone and Edgar though are free. The state's attorney's office had worked for 10 years to prosecute these men for the murder of a police officer. Now, it seemed like they'd rather scrap the case than risk airing their dirty laundry. What did all this mean for Alex? Not much actually. Nancy and Andy also prosecuted Alex, but his case was heard by a different judge, so this ruling wouldn't affect him.

23:54Still, it was a day for celebration, 11 years, five months, and 15 days after being charged with the murder of Clifton Lewis. Tyrone Clay walks out of the Cook County jail. I felt so good, man, walking out that door. The officer was like, man, I know you a good dude, man. And he opened the door for me. He was like, man, don't never look back. Let your past be your past. Let your future be your future. Go ahead and live your best life. That's what he told me. Now walk that the way my hands are like Rocky, my bag and my hand. Yep, the best experience of my life because why I just came from I thought I won't go make it out. I ain't gonna lie. A gartho head straight from the courtroom to get his ankle monitor removed. So I went down there and he was like, oh, we need the paperwork from the judge or whatever, so we had to wait. So I was like, okay, I could wait another day or whatever, and it'll be like two

24:54weeks, a little bit more than two weeks before they took the bracelet off. So even after you freed me, you didn't free me. I still had to abide by these rules for two weeks. That's just a little bit of a Chicago system for you. Alex finds out about Tyrone in a gartho from Amanda, his girlfriend and the mother of his then 13 year old son Damien. I was happy that I felt like some sort of justice has been served, but I felt like better sweet than I was left behind, you know, like I wasn't. Like my family wasn't celebrating along with her family or I wasn't leaving, walking out with the, you know, like, my forgotten about, you know. At this point, Alex has been locked up for more than a decade, six of those years awaiting trial and three years since his conviction. Being away from my family, not having your freedom is,

25:55it's like nobody can understand until they're actually in that situation. I can do the simplest things like I went to one of my sons, baseball games. You know, I couldn't attend my daughter's graduation. Those are things that tear me up inside, you know, because not only have they that this to me, but to see everybody else that loves you hurt as well, there's, there's, uh, I think that's, that's what hurts me the most. But for the first time since his arrest in 2013, Alex has reasoned to hope. Jennifer is working to get him a new trial and how could any judge keep him in prison if the guys he supposedly killed officer Lewis with have had their cases tossed. Maybe he'd soon be in

27:00the stands at Damien's baseball games. During Alex's visits and calls with Damien, he sees more and more of himself in his boy. Way he sleeps, the way he eats, the things he likes, his hair, has the fame of college as we love sports like me, has a beautiful sense of humor, always laughing like we could laugh until we cry tears with each other. Amanda Damien's mom says Alex and Damien talked all the time and she hoped soon it wouldn't be by phone. I would just tell him all the time, don't worry babe, no matter what is happening in court or what's being told doesn't mean it's not going to come to light and your dad will be home. Alex and Damien start planning for when that day comes and Alex walks out of prison. They've had for Florida, make a new life, toes in the sand, far away from the reach of the Chicago police department,

28:03which could be soon there was a hearing coming up seeking a new trial for Alex. Jennifer is worried because of the judge in Alex's case. James Lynn had been a hard-nosed prosecutor before taking the bench, so getting him to reconsider the conviction of an admitted gang member in the murder of a cop would take mounds of indisputable evidence. But Jennifer and Eric believe that they have that kind of evidence. Plus, Jennifer has a rapport with Lynn going all the way back to 2018 when she was representing a police officer, Jason Van Dyke. One day in court, Lynn had pulled her aside. He's like Jennifer, you represent Jason Van Dyke, that's the cop. And I said yeah, he goes, can't lift it. And then he said, Jennifer, you are a warrior. And when he said it, it enabled me to see myself in a way that I don't normally see myself and

29:10like that's the bullshit term of today I feel seen, you know, so I felt seen by him. Maybe that personal connection would help this time. You know, I was stupid enough to have hope. Lynn sets a date for late August in the same courtroom where Alex was convicted. He had vowed to close out the case before his retirement in just a few days. On the day of the hearing, cops line the courtroom gallery. Like they hissed during my argument, like arts. And for them to be hissing me and I wanted to turn around and be like, you should be ashamed. Each one of you in here knows he didn't do it. You all know, because all the cops do know he didn't do it. I've had other officers tell me, oh, we all know he didn't do that. And so if you'd be here hissing at me, I was like, bring it. Jennifer makes her case to judge Lynn, the cell phone map, the PlayStation, the edited police report. I was like, once he hears all this and he sees the

30:12proof of it, maybe then he'll understand how bad this is and he'll give him a new trial. Lynn acknowledged that Alex's co-defendants had their convictions thrown out. But he said, Alex wasn't convicted just based on their questionable confessions, extracted in the police station. Remember those three other witnesses who said Alex told them he killed officer Lewis, the ones we told you about in episode three. The guy who said he was kidnapped, the one allegedly pouring for a loco out the window, and the other one at the nightclub, we now know all of them had their own trouble with the law at the time they gave their statements against Alex. Lynn relies on those witnesses, despite all the evidence Jennifer and Eric had found undermining their statements. Because of those three witnesses, Lynn says, Alex's case is not the same as Tyrone and it got those. Alex will not get a new trial. His conviction will stand.

31:18He won't be there for any of Damien's games. They won't be packing a van and heading toward Florida. And Alex will again be parenting from behind bars. A reporter from the Chicago Sun Times notices the tears and Jennifer's eyes as Lynn makes his ruling. It's just crushing, bone crushing, heartbreaking. We knew it was going to be sentenced to life in prison for something he didn't do. Judge Lynn sentences Alex to life in prison. Jennifer and Eric would go back to the drawing board and prepare an appeal. He got found guilty. He got sentenced to life and the other people got out. But they didn't have time to lick their wounds. Alex had been sent to a maximum security state prison, 250 miles away. There's always worse things that can happen. She was right. It's just that the danger wasn't where she thought it would be.

32:41The Guardian made repeated attempts to speak with the Chicago Police Department. The department did not have anyone available to answer our questions. A spokesperson wrote in an email. In court documents, officers deny any misconduct in the case. Former prosecutors Nancy Aducey and Andy Varga, along with their legal representatives, did not respond to multiple interview requests or a detailed list of questions. They denied they engaged in any wrongdoing in court papers. Also in court filings, prosecutors argue there is no showing a bad faith by either Aducey or Varga. No officers or prosecutors have been accused of wrongdoing by officials or charged in connection with this case. The Cook County State's attorney's office declined to comment, citing pending litigation. In court papers, they denied misconduct in this case.

33:47We tried reaching Judge James Lynn and did not hear back. This is the Guardian. A password manager should be the first security purchase you make for your team. Why? Because compromised passwords are the number one way bad actors attack companies, and small businesses are their favorite targets. But unlike a lot of security challenges, passwords actually have a pretty simple solution. One password lets you manage all your businesses credentials so you can feel confident that your data stays secure as your company grows. Find out more at onepassword.com slash special offer and start securing every login. Hi, I'm Jane Kostin, former writer and podcaster for places like The New York Times,

34:51The Atlantic and National Review. And now I'm here to hang out with you. Five days a week. On what day? Crooked's daily news podcast. That's right. Now who's respected on both sides? Okay, yeah, it's not me. It's probably still just Dolly Parton moving on. These days it's hard to separate what matters from all the noise, especially when the noise somehow also feels like it's made out of knives. That's why every weekday the team and I scour the headlines to bring you the stories that matter most so the way you live in just 20 minutes. Listen to the show wherever you get your podcasts.