You try to help this oldboy?
Right.Okay. Previously onserial.
And don't you think you owe it to him to tell this jury who shot this little boy and not be afraidanymore,sir?
The defense attorney came to me at the first pre-trial and said you're going to dismissthis.
You,sir, are going to be looking at the harshest possiblethat.
Okay. It pisses me all the wayoff.
Like every time I gooutside, I just look at everybodydifferent.
Like, you know whathappened.
But you want to saynothing.
I don't think that's whathappened.
That's mylawyer,Tub. He said that's why you're gettingout?
Yeah. From this American life inW.E.Z.
Chicago, it'sserial. One courthouse told week byweek, I'm SarahCanig.
This is one of those cases that is so puzzling because so many people are so certain of what they saw who was involved and we just have no way of knowing what it is and what it is and youknow, one break could change all ofthat.
One break could change itall.
This is a prosecutor named BrianRadigan.
He's talking about the Aviel Wakefieldcase, the one where the baby was shot in thecar.
He and another prosecutor were in charge of thatcase.
They're the ones who sought a 13 count indictment against Dave onHolmes.
They're the ones who argued a year later to let himgo.
And it eats at Brian that they haven't solvedit.
They'relike, why does it have to be thisone?
Why does it have to be the five monthold?
When I asked to interview someone about Aviel'scase, the county prosecutor's office easily could havesaid, this is still an openinvestigation, we can'tcomment.
But they did not dothat.
Instead they gave me Brian and Brian told me alot.
I went to Brian chiefly to find out why the case fellapart.
They released Dave on Holmes because of some technicality or did they release him because wrongguy.
Firstthough, we spun through the reasons they thought it was Dave on to beginwith.
Initially, they had anonymous tips that it was Daveon.
People whosaid, this is what Iknow, but you didn't hear it fromme.
Justsaid, this is myinformation.
You'll never find me if you bring me in a court or if you try to put me on paper or record meout, deny that I ever said any of thisstuff.
But meet me in this park at eight o'clock and I'll tellyou, Imean, really like thisstuff.
You're seeing themovies.
In themovies, that'sexciting.
In reallife, not sogreat.
But Brian said he was hoping to persuade one or two of those people to become witnesses by the time the trial rolledaround.
They had the jailhouse statement from that guy who I'm callingJohn, the guy who'd known Dave on since he waslittle, their brothers orfriends.
Brian told me more about what Johnsaid, but he also told me they didn't really find it credible since some of the other people John had mentioned in his statement didn't seem to have a connection to Daveon.
They were older for onething.
Brian's office was also looking into the guy Aval's father thought was responsible for theshooting, but they didn't have enough evidence to charge him withanything.
On Daveon, they also had his cell phonerecords, putting him in the neighborhood at thetime, his ownneighborhood.
They also had his statement to the detectives in which he said he'd been up the street at the family dollar when ithappened.
Again, a statement Dave on told me he'd nevermade.
It didn't add up toomuch.
But then they got the Landscaper'sID.
TheLandscaper,remember, was the guy who finally chose Dave on's picture out of a photo array third time around almost two months after theshooting.
As Ithought, it was the Landscaper's ID that made the prosecutors feelcomfortable, like they were looking at the rightperson.
The Landscaper came off asgenuine,believable.
And Brian told me the Landscaper he came tothem.
He showed up one day at the JusticeCenter, took the elevator up to the ninth floor to the lobby of the prosecutor'soffice.
Brian gets a call at hisdesk.
There's a guy out here who says he wants to talk toyou.
So I show up to thefront.
Isay,hi, I'll introducemyself.
And hesays, I've got some information I want to talk to somebodyabout.
So I called the homicideunit.
I didn't talk to himagain.
We don't want to bewitnesses.
So I called the homicideunit.
They come overhere. They pick himup.
And they talk tohim. And when they're talking tohim, there was a belief at thebeginning.
From the officer's handle in the case that this guy knows who itis, but he's not going to pick himout.
Brian says this guy was like a lot of witnesses they dealwith.
Wanting to do the rightthing, afraid to do the rightthing.
Waffling. He came down here a number of times and contacted the homicide unit a number of timessaying,listen, I wanted to dothis.
I wanted to comeforward, but I do not want to come tocourt.
I do not want totestify.
I've gotkids. He talked tous.
He talked to us and we were going to move him out of where he was living because he was afraid of living in theneighborhood.
He was living in Cleveland and not in thatneighborhood.
No, but he still was working in that neighborhood afterwards and those types ofthings.
So he had his ownconcerns, but I think if you asked himagain, he would still believe that Devon Holmes was theone.
Do you think Devon Holmes is theone?
I think that there was pretty strong evidence that we found during the course of this and that he wasnot.
He'snot. Now we turn to part two of ourconversation.
What made the case against Devoncollapse?
Though I just want tonote, the amount of evidence Brian had laid out does not seem like it should be enough to take a person to trial for aggravatedmurder.
Much less convinced a jury to convict a person of aggravatedmurder.
But it isenough. I'm not saying it would have been a slam dunk for thestate, but assuming the landscaper showed up to court andtestified, it's not far fetched to think Devon might have beenconvicted.
He easily could have gone down for thismurder.
But about a month before the trial was supposed tostart, Brian said they were madeaware, he doesn't want to say exactlyhow, but they were made aware of a phonecall, an exonerating phonecall.
We had some evidence of somebody else that we believe is involved in the case on a recording that they didn't know was beingrecorded, saying that Devon was notthere.
Was it a jailhousecall?
It wasnot. It wasnot.Again, Brian didn't want to divulge too much about thisrecording.
He thinks that if this case is ever going to besolved, this call might be thekey.
So he doesn't want to say too much aboutit.
But what surprised me was it didn't come from thedetectives.
It didn't come from theirside.
The most I can say is the recording came tothem.
Once itdid, they all sat down in a conference room in the prosecutor'soffice, the defenseattorneys,Brian, thecops, and they listened to thiscall.
It was between someone who knows and cares forDevon, and a young man I'm not going toname.
In thecall, nobody identifies theshooter, but it was pretty clear the young man knew what had happened the day Aviel waskilled.
Brian says he understood right away that he had to take itseriously.
When you actually hear somebody sayit, when they don't know that they're beingrecorded, and that changesthings.
There were only a few weeks from trial at thispoint.
Now theyscrambled. They needed to verify that the recording wasreal, that the people in the call were who they said theywere, and that the call itself wasn't theater manufactured to springDevon.
Once they did allthat, theyreassessed.
Do we still think Devon homes is theguy?
They weren'tsure. Maybenot.
They decided they couldn'tproceed, filed a motion todismiss.
The phone call undid the case againstDevon, but it also gave Brian new evidence to workwith, the young man in therecording.
He sounded involved in someway.
Brian called up detectives he knew in the fourthdistrict.
Do you know anything about thisguy?
Funny thing they said as a matter offact, we're looking at him for a carjacking, also forshooting.
Briansays, can you hurry itup,chop,chop, and theydo.
Pretty soon they've got him incustody.
They charge him for the car jacking and for the othershooting.
Even though these wouldn't normally be cases for Brian's units since nobodydied, Brian prosecuteshim, tries to get the guy tocooperate, starts squeezinghim.
I'll help you out on a plea if you help us on the Avial Wakefieldcase.
Twelve years is better than say 30years,right?
The guy won'ttalk, won'ttalk, won'ttalk.
Brian tried formonths,nothing.
Last fall the guy pleaded guilty in those cases to agroabery and attempted murder and was sentenced to 17years.
Brian knows that thisguy, serving time for something entirelyelse, might be the closest they'll creep towards justice in Avial'scase, the kind of sidewaysjustice.
We'll al-caponehim, Brian hadsaid, which is a funny thing for him tosay, because Brian looks a lot like a youngal-capone.
It'sunsatisfying, Iknow.
The crime isn'tsolved, that'sunsatisfying,obviously.
Butalso, Davon sat accused for ayear.
That shouldn't havehappened.
But when I asked her on the Justice Center aboutit, peoplesaid,yeah, that's ashame, but at least they correctedit.
No one was demanding an inquiry into what went wrong or yowling forreform, nohand-ringing.
It was moreresignation.
What are you going todo?
Judges say they can't control what cases the prosecutors bring tothem.
Judges say they're relying on thedetectives.
Detectives say their information is only as good as what the public coughsup.
Can they help it if people lie orwithhold?
I getit. When no one feels fully responsible for theoutcome, when blame is spread out anddiluted, a situation like Davon's becomes easier to shrugoff.
What are you going todo?
I'm going to ask you aquestion.
I ended up spending a bunch of time with Brian Radigan hanging around while he did hisjob, in part because I liked him rightaway.
And also because he is one of the most powerful people in the JusticeCenter.
He'd never admitthat. I'm not sure he fully seesit, but it'strue.
The prosecutors are the most powerful people in anycourthouse.
Defense attorneys will tell you they'd rather have a fair prosecutor and an unfair judge than a fair judge and an unfairprosecutor.
Because of all the people who shape a criminalcase, the prosecutor has the mostdiscretion, especially at the crucial beginning when the thing is stillgerminating.
The prosecutor is deciding whom to charge and with whatcrimes.
He's also deciding what the plea deal is going to looklike.
And don't tell the judges in thebuilding, but often the prosecutor is more or less deciding the sentences peopleget.
Because of this big power theyhold, prosecutors of late have been the focus of blame for a lot of the problems in our system and the focus of reformefforts.
And that's notundeserved, but it isincomplete.
Most of the prosecutors I've talkedto, it's not that they're gunning for cheap assembly line justice or for unprecedented discriminatory devastatingly high rates ofincarceration.
It's that that's the job we've giventhem.
I feel like I can't explain this without telling you some history of how we gothere, but I want to explainit.
So heregoes. Our worst modern era of crime in theUS, if you look at the FBIstats, began in the 1960s and70s.
Most people now agree we were under policing and also underincarcerating.
Then we swung way way the otherway.
Cops made morearrests, which meant moreprosecutions.
But the huge increase in arrests and charges did not correspond to a commensurate increase in the number of prosecutors or the number ofcops, but that's anotherstory.
As one statistic really hitme, in 1974 there were around 17,000 local prosecutors dealing with around 300,000 felonyprosecutions.
By 2007 the number of prosecutors had jumped to about32,000, so a significantincrease, but they were dealing with nearly 3 million felonyprosecutions.
That's a tenfold increase from1974.
Theupshot, vastly more prosecutions handled by relatively fewerprosecutors.
The only way for them to keep afloat, pleabargains.
As one Cleveland judge said tome, plea bargaining isn't part of the criminal justicesystem.
It is the criminal justicesystem.
Please arecheap. They lead to more convictions and to moreincarceration.
And we've given prosecutors many tools to negotiate thesepleas.
Lots of forces helped this push toward harsher criminaljustice.
Economicforces, the forces of racism anddiscrimination, some unfortunate US Supreme Courtdecisions,politics, and morepolitics.
But the one you don't always hear about islegislation.
In the decadespost-1970, most states began revamping their sentencing guidelines and their criminalcodes.
A lot of crimes were being defined both more broadly and morespecifically.
Cept,fraud,burglary,robbery,assault, sexualassault,kidnapping, their definitionsexpanded, which made them harder to defendagainst.
And they carried more seriouspenalties, same with laws aboutguns, and especially aboutdrugs.
Expansive criminal codes allow prosecutors to expansivelycharge, because a single criminal act doesn't have to be singlycharged.
You can pile on as many charges as youwant.
It doesn't matter if theyoverlap, so long as each one requires you to prove something slightlydifferent.
That's how an armed robbery can end up chargedas,say, eight felonies that sound like echoes bouncing around acanyon, committed a theft while having a deadlyweapon, committed a theft while having a deadly weapon and either displayed theweapon, brandishedit, indicated that he possessed it or usedit.
On top of allthat, you've got sentenceenhancements, what are known in Cleveland assuspects, that you can tuck inside particularcharges, repeat offenderspecs, gangspecs, gun specs in the one I saw most in KaiogaCounty, usually one and three year mandatory prison time for the use of agun, even though the use of a gun is baked into the definition of many chargesalready.
The result is a kind of indictment shock andawe.
Something likethis, what's known as stacking charges or justovercharging, inducesplease.
Of course itdoes. Because the prosecutor can accord in the indictment however heneeds.
If youplead, we'll drop everything but the felonies assault or you go to trial on the full formidableindictment.
And chances are if you go totrial, you're going to get convicted ofsomething.
Just the visual of a long indictment is a signal to thejury.
Look at thislist, he must have donesomething.
And while some charges probably are going to merge atsentencing, as arule, the more stuff you're convictedof, the longer your sentence is going tobe.
Soyeah, youplead. That's why the prevailing practice in mostprosecutors' offices is to charge crimes as harshly as theycan.
It might swell prisons and inviscinate entireneighborhoods, but it isefficient.
All of this brought me to BrianRadigan.
I wanted to know something verybasic.
How does he make hisdecisions?
How much of what Brian's doing is coming fromBrian, his own sense of what'sright?
And how much is beyond hiscontrol?
The job we've givenhim.
Brian works in the major trialunit, homicidesmostly.
In hisoffice, he's got a mini fridge and a neatish desk and a window with the blinds drawn that overlooks LakeErie.
It's nothing fancy by longshot.
Case files and boxes of evidence are piledaround, complainingchair.
Brian looks sharpthough.
He wears a suit everyday.
He never knows when he might be pulled into acourtroom.
But the way his beard stubble scrapes against hiscollar, you understand he's enduring thecostume, not enjoyingit.
He doesn't appear to revel in hispower.
He favors the aweshocks variety ofdominance.
From what I cantell, Brian is universally respected in the JusticeCenter.
He'sforthright. He hascompassion.
He can take ajoke. He's38,married, two littlekids, aregular, amiableguy.
The days I spent withhim, he had 20 cases on hisdocket.
One aggravated vehicularhomicide, a rapecase, one floniesassault, which he normally wouldn't get but the guy assaulted three policeofficers.
Therest, murders are aggravatedmurders.
Mostly drug deals gonebad.
Or some bullshit like retaliationthing, youknow?
Yep. Peopleday, people areknocking,calling,texting.
He's getting updates oncases, giving updates oncases.
Bedecided,yeah. Holdon.
Hey,Ray. Brian takes a call from RayDiaz, a homicidedetective.
He's working on a shootingcase.
Happened outside a nightclub on the westside.
Detective Diaz tells Brian they're about to interview awitness.
Great,Ray. Call me when you'redone.
Allright. This is a guy that we'vebeen, he was with the defendant and we've been trying to get him to come in and do an interview and every time he says he's comingin, he cancels or rightin, have a ride or we'd show up at his house and he's notthere.
Sowe, lastweek, I printed out a subheena for the two homicidedetectives.
They went and served them and so he just called and said he's going to be heretoday.
This is excellenttiming.
Brian has a pre-trail on that case thisafternoon.
Right nowthough, he's about to have a meeting with two other detectives on anothercase.
They just walkedin.Hey,Art.
Hey,Rhonda.Hi.Hi. Art echoes and RhondaGray, the same one from Davon'scase.
Andno, they wouldn't let me recordthem.
They were there to talk about a case that had made thenews.
It wasn't the kind of shooting you usually hear about inCleveland.
It had started as a squabble between strangers on a city bus and then spilled onto the sidewalk where an older man had shot and killed a youngerman.
Brian explained to me that this case was unusual for them because the entire episode was recorded by security cameras on thebus.
This is one of those rare cases where you see the wholestory.
90% of our cases were not watching themunfold.
And if something is caught on camera orwhatever, usually it's from a distance and you don't hear the dialogue and you don't get to see everybody'sreaction, you don't have seven different angles or nine different angles ofit.
Youknow, this is like the outliercrazy, I can't believe I'm wanting to have to watch this whole thing and see all the decisions that were made that led to this guydying.
Because you're watchingit.
You'rewatching,like,God,just, and you want to tell him what to stay out thebus, just stay out thebus.
This incident happened three and a half weeksearlier.
The older guy was injail, but he hadn't been indictedyet.
The meaning with detectives this morning is to figure out how they're going to handleit, what charges Brian should present to the grandjury.
This is a tricky onethough, because Brian can see how the whole thingunspooled.
Now he's not sure a crime evenoccurred.
The stories in the newspaper had quoted police as saying that the olderguy, theshooter, had been harassing passengers on thebus.
But the bus videos show theopposite.
The olderguy, theshooter, he was the one beingprovoked.
It's possible this wasself-defense.
We go to a conferenceroom.
There's a big screen set up so they can watch the footage from thebus.
Brian had mentioned something about seven or nine cameraangles, and I thought he wasjoking, but hewasn't.
For exactly thisreason,crime, city buses in Cleveland are wired up like itinerant bankfaults.
The footage we're watching starts from before the beginning when everything wascalm.
Okay, what happened to him when he thankedyou?
The olderguy, theshooter, his name is AbdulRahman, had gotten on the bus at Public Square right near the JusticeCenter.
As in his early60s, but he looksolder, he's got a long graybeard, a loosesweatshirt, he'sscruffy.
He's nothomeless, but he might have been mistaken forhomeless.
You seeMr. Rahman sitting in a window seat by the rear doors of thebus, minding his ownbusiness.
He's holding what looks like a folded newspaper or magazine in hishand.
Then a younger guy sits down next tohim.
They don't know eachother, but evidently the younger guy starts insultingMr.
Rahman. You can't make out what he'ssaying, but other passengers told the cops later that he was complaining toMr.
Rahman that he smelledbad.
This younger guy is not the one who getsshot, by theway.
Mr. Rahman getsup, tries to leave hisseat.
The younger man blockshim.
Brian's watched all thisbefore, but he can't help wishing it won't go the way it's going togo.
This guy just keeps Johnin.
Just gosit. There's an open spot right upthere.
Just go sitthere. The younger guy is being anasshole.
He's ginning up aconfrontation, but as Brian pointedout, assholeery is not a criminaloffense.
He finally letsMr. Rahmanpass.
Mr. Rahman stands by the busdoors, but he doesn't move to a different part of thebus.
He's still arguing with the youngerguy, who's starting to get physicalnow.
He slaps the folded magazine fromMr.
Rahman'shand.Mr. Rahman bends rather gracefully to thefloor, picks itup.
It's notclear, but you can hearMr.
Rahmansay, I like myfreedom.
Asin, I'm not going to fight withyou.
They start namecalling,bitch, youbitch.
The younger guysays, call me anotherbitch, I'm going to fuck youup.
It's familiar thisscene.
A bunch of strangers getting into it on publictransportation.
In the whole time you're doing the bystanderstrigonometry, how long till mystop?
Should I saysomething?
Where arewe? Should I moveseats?
At thispoint, a woman named Rachel asks the men to canit.
She's sitting nearby with a few otherpeople, including herboyfriend, AndrewEasley, the man who's going to get killed in about twominutes.
Rachel says to the guysarguing,hey, can't you see my niece is sitting righthere?
Get your ass off the bus and calmdown.
And hedoes.Mr. Rahman gets off at the nextstop.
But then he lingers on thesidewalk.
You just want toscream,walk, walk the extra five bucks for God'ssakes.
But he gets back on thebus.
Ten secondslater, the younger guy saysthis.
It is especially hard tohear, but it'simportant.
Because it'spossible, this is what jacked up thesituation.
Hesays, I got aCCW. CCW stands for carrying a concealedweapon, gunlicense.
He's implying that he's armed rightnow,legally.
He does not have agun, but presumablyMr.
Rahman doesn't knowthat.
Then the younger guy pulls the cord to singly he wants to get off at the nextstop.
He says toMr.Rahman, comeon, let's get off thebus.
Like, let's take itoutside, you andme.
He's up inMr. Rahman'sface, starts slapping athim.
Suddenly,Mr. Rahman pulls agun, his owngun.
He's got it in his righthand, and he points it at the younger guy'shead.
Rachel and the other people in the bus start freakingout.
The bus pulls up to thestop.
Rachel muscles her way to whereMr.
Rahmanis, the doorsopen, and then she kicks him square in the butt straight off the bus onto thesidewalk.
Herboyfriend, AndrewEasley, is right behind hernow.
He steps off thebus. He's tall andlanky, dressed all inwhite, long whiteshorts, whiteshirt, whitehat, whitesneakers.
He strides towardMr.Rahman, who's walking backwardsnow.
Mr. Rahman holds up his gunagain, waves it around alittle.
Andrew Easley retreats quickly back onto thebus, where the younger guy who started all this is hovering by the opendoors.
Then you hear Rachel and someone else say something you especially wish they had notsaid, whichis, that's a watergun.
Mr. Rahman is walking awaynow, but Andrew and the younger guy go after himagain.
Finally, right as someone on the bus says somethinglike, why do you all go to beat up on this oldman?
Mr. Rahman shoots Andrew Easley in thetorso.
Hefalls. Someone startsscreaming.
Mr. Rahman jogsaway. The police have statements from some of the people inside thebus, but the statements aren't as reliable as the myriad recordings we've justwatched.
The detectives can see for themselves how the thing cranked upemotionally, blocked byblock, as the bus traveled east on superiorAvenue.
AndMr. Rahman'shouse, they found agun.
It fell out onto DetectiveEccles' foot when he was looking throughMr.
Rahman'sclothes. They don't havecasings, but they're99% sure it's the same gun from thebus.
So no question what happenedhere.
Abdul Rahman used his own gun to shoot AndrewEasley.
The questionis, was it acrime?
Okay, Briansays. So really the issueis, did he have achoice?
He had these two guys coming afterhim.
One of the detectives nudges backsays, I feel that argument won'twork.
Afterall,Mr. Rahman could have made otherchoices.
He could have gotten off the busearlier.
Briansays, when he gets off the bus the last time he's walkingaway.
He's notre-engaging. And he's got two guys afterhim.
One of the detectives suggests Brian might change his mind when he sees this one lastvideo.
We watched itlater. One more cameraangle.
The part the detectives wanted Brian to see isMr.
Rahman's posture right at theend.
At thatpoint, he's goingbackwards, but he is doing that we're boxingshuffle.
It'strue, he's doing a boxingshuffle, like he's fixing afight.
I learnedMr. Rahman wasn't always calledMr.
Rahman. Decades ago he was called Ricardo Spane and he was a heavyweightfighter.
He mostly lost his professionalbouts, 23 losses at a 26fights.
One ofthem... And now ladies andgentlemen,man, your battlestations...
Was against MikeTyson.
AtlanticCity,1985.Oh, the legs havegone.
This is allover.Yes, itis.
I don't believeit. That's well inside aminute.
Yes, itis. 38seconds, which is not the fastest Tyson ever knocked a guyout.
Now I understand why the detective wanted to be sure Brian saw that lastvideo, because it does make youwonder.
It was a former heavyweight who can still muster a boxingshuffle.
Really afraid of those two guys on thebus?
After the meeting with thedetectives, I'd say Brian was leaning slightlyself-defense, but he's still notsure.
And because he's notsure, he's going to let the grand jury make that calltomorrow, when they present the case forindictment.
Technically, ofcourse, the grand jury is always supposed to make thatcall.
They're the ones who vote on whether there's probable cause to charge someone with acrime.
Butwell, for you lawyers and legaleagles, Hamsandwich, Iknow.
For the rest ofyou, I will spare you the Ham sandwich cliche and justexplain, the grand jury is supposed to be acitizens' check on governmentpower.
But inpractice, grand jury is usually vote the way prosecutors want them tovote.
Probable cause is alow, lowstandard.
You just have to show that it's logical to believe this person might have committed thiscrime.
At a grand jurypresentation, there's nojudge, no crossexamination, nodefense.
Infact, inOhio, according to the statebar,quote, even if a prosecutor knows ofinformation, which would help show that the accused person isinnocent, he is not required to present it to the grandjury.
So how works is that the cops and the prosecutor tell the grand jurors what they thinkhappen.
The prosecutor presents them with a proposedindictment.
Here are all the charges we believe fit thiscrime.
If you guysagree, sign righthere.
So Brian's got to figure out what charges is he going to ask them to vote ontomorrow.
Look, what will you write up in the indictment in terms of thecharges?
I don't knowyet. Murder I think is the high end that it wouldbe.
And below that is voluntary manslaughter and I think it goes between thosetwo.
And voluntary manslaughter is basically like heat of passion or are you beingprovoked?
It's a crime that'sprovoked.
And that'syour, yourdeciding?
Yeah, this iswell,no, I'm not thedecider.
I am not thedecider. I don't decide anything except for what suit I'm going to weartoday.
No, it's sure he has to run stuff by the bosses down thehall.
He saw a Dala who supervises hisunit.
Hisbrother,Moe, is also in the major trialsunit.
But the idea that Brian's not decidinganything?
No. Because he could play this variousways.
Brian could show the jurors one camera angle or seven cameraangles.
He could present all the statements from the people on the bus or just the ones that sayMr.
Rockman was theaggressor.
He could put murder on the proposed indictment and never mention the wordself-defense.
But thisone, he tells me he really can see it eitherway.
Crime or nocrime. So his plan is to put the whole McGillah in theirlaps.
Let the grand jurorsdecide.
He's going to show them all the camerafootage.
Read them all the witnessstatements.
He talks it through with aparalegal,NIDA, who's preparing the materials for the grandjury.
Should we do the video before we talk about what each one says or play thevideo?
What do youthink? I think I want to play the videofirst.
Seethat? He doesn't want the camera footage to be colored by thestatements.
So it's going to be footagefirst.
And he decides he is not only going to mentionself-defense.
He's going to explainself-defense.
Tell them what the legal elementsare.
I might have you throw something together for me real quick onself-defense.
I've gotstuff. Let me go see if I can findit.
He goes and gets thepages.
To establishself-defense, the following elements must beshown.
And this is out of a high spring courtcase.
The slayer was not at fault in creating thesituation, giving rise to thesituation.
Slayer had a bona fide belief that he was imminent danger of death or great bodilyharm.
You didn't instigateit, you had a genuine fear that you'd be killed or badlyhurt.
You fulfilled your quote duty toretreat.
Meaning you tried to getaway.
But if you just want to add in those twothings, I'm going to give it toyou.
I'm going to give it toyou.
And then youcan... A whilelater, Brian tells me he's thinking he's not going to put murder onthere.
Just the voluntarymanslaughter.
This is not set in stoneyet, but I believe it's just going to be voluntarymanslaughter.
I don't think there's going to be a murder incharge.
When did that getdecided?
It hasn't beendecided.
That's why Isaid, I think that that's what it's going tobe.
There's clearly some agitationhere.
There's clearlysome...
He's beingprodded. I think you can see that in thevideo.
It's clear from thebeginning, the kid won't even let him get out of theseat.
There'ssome... He didn't startthis.
And it couldbe... Not so much matter what I think rightnow.
It's kind of what the grand jury is going tothink.
So I'll play it for them and tellthem.
Imean, you have a point of view that you're going to come across forsure.
How you presentthings, how youstress.
It's probably hugelyinfluential.
I don't mean in a creepyway.
I justmean...Yeah, I thinkso.
But I also try to be fair to theprocess.
I don't want them to justsay, what do youthink?
What do youthink? Because then what's thepoint?
If I was going to do it thatway, why even do the wholething?
Why play the video forthem?
Why talk about what each witness in theresays?
Why talk about where they are in thebus?
I could just go in there andsay, he shouldn't have shothim.
He shouldn't have died him withmurder.
In a case likethis, I think it's so important to give the fullpicture.
If they have the fullpicture, they should be able to make the decision based onthat.
Not on what Isay. Afterwards I went down to the first floor atrium to get asnack.
The atrium has a little cafe and tables and chairs that you have to choose carefully because they are frequently sprinkled with birdpoop.
Now youknow. I was chatting with a manual and then we started talking to these three defense attorneys we knew at a nearbytable.
I told them about the rockmoncase, about how much material Brian Radigan was going to show the grandjury.
And theirfaces, one lookedfurious, another wassmirking.
I feel like one of them rolled his eyes at me but I might be making thatup.
Regardless, the gist wasclear.
He's putting on a show foryou.
It's never like that theysaid.
They never have that much evidence before they go to the grandjury.
People get indicted for stuff in 90seconds.
Nodiscussion. They knew you werecoming.
Sucker. These are all people who know BrianRadigan, who respecthim.
But such was their disbelief that actual fairness could be at workupstairs.
They almost couldn't allow it waspossible.
I told Brian about this conversation a littleawkwardly.
You were justlike, oh you got playedsister.
I'm not telling you who saidit.
Why? Because then I'll bebusted.
The record isover. Isaid,Jack,Bob, your secret's safe withme.
I did nottell. But I did want to know what did Brian think of what the defense attorneys weresaying.
That prosecutors and cops are taking cases before the grandjury, often seeking severe charges based on thin information before the crime has been investigated in any realway.
His answerwas,yeah, that doeshappen.
Sometimes you do get cases that are solid right from the get go or maybe get lucky with evidence like with this rock moncase.
Andagain, sometimes there's just not enoughthere.
Or we think we have enough and then you learn information lateron.
Andagain, remember a lot of timestoo, you're under a timecrunch.
He's talking about speedy trial rights fordefendants.
Also, if they don't indict within 10days, the defendant gets a preliminary hearing before a judge to determine probablecause, which the prosecution does notwant.
That is a whole procedural nonsense that you do not want me to get into rightnow, Ipromise.
But what it all means is that they are in a hurry to get cases to the grandjury.
Brian told me it's all aboutspeed,unfortunately.
Andagain, speed might not be a problem if you didn't have 13,000 felonies toprocess.
But youdo. Soyeah, it's obviously not ideal when investigations aren't fullycooked.
But Briansaid, sometimes you've got a major crime in front ofyou.
Somebody's arrested for it and you got to make adetermination.
Imean, what are you going todo?
If you really think that you have theguy, that you have the rightguy, do you want him out on the street to say it's amurder?
You want another street to go do another one or justsay, I think we've got enoughhere.
So it's notperfect. And sometimes because ofthat, he said they makemistakes.
And sometimes because ofthat, and this is me talkingnow, you end up with cases likeDavons.
But what are you going todo?
More after thebreak.Hello, this is Yawane Kamalafa from New York Times Cooking and I'm sitting on a blanket with MelissaClark.
And we're having a picnic using recipes that feature some of our favorite summerproduce.
Yawane, what's yourdrink?
So this is a cucumber agrofresco.
It's made with freshcucumbers, ginger andlime.
It's really easy to put together and it's something that you can do inadvance.
Oh, it is sorefreshing.
New York Times Cooking has so many easy recipes to fit your summerplans.
Find them all atnytcooking.com.
Thisafternoon, the main thing Brian's got is apretrial, a humble back of the hallwaypretrial, which is precisely where I'll get to see the most powerful guy in theequation,Brian.
Do the very thing a half century of legal tinkering has primed him todo.
Negotiate aplea. The case is the one that Detective Ray Diaz called about thismorning.
It's a nightclubshooting.
The defendant named Dominique Williams had been at the M&M saloon and when the place let out for thenight, Williams allegedly shot and killed a guy rightoutside.
A bunch ofshots, fairly closerange.
His Williams was runningaway, an off duty police officer working security at the club started after him and Williams shot athim, didn't hithim, the cop shot back and hit Dominique Williams in thebutt.
He was arrested on the spot and gun was found under a porchnearby.
Detective Diaz calls again and tells Brian about the witness he'd run intointerview.
The witness is a friend Williams was at the bar with and apparently the friendtalked.
Okay, so we'vegot, he's identified Williams as a shooterthen.
Okay. Allright.Well, that's a pretty good statement for usthen, Iguess,huh?
Yeah. When you comeup,Ray, canyou, are you goingto, you think it'll be done with himby, by what time isit?
Shit, it's allright. One15.
Okay. Brian's pre-trial in this case starts in 15minutes.
This call puts Brian in a stronger position tonegotiate.
On the way to theelevator, Brian sees hissupervisor, SaulAoudala, in thehallway.
Give him a swift update on this newevidence.
Oh, that'sgood. He's from super-stantial tolike, I've allwitnessed.
We take the elevator up to16, head to the pre-trialarea.
Brian finds Dominique Williams as aattorney, CraigWeinthraub.
He's been assigned this case along with another attorney who didn't show uptoday.
He's sitdown. Craig starts to talk about a possibleplea.
He doesn't know about the IDwitness, cops are interviewing downstairs at this verymoment.
We got to present an offer toyou, is that thedeal?
Yeah.Okay.Well, one thing I should tellyou,Diaz, the guy that Williams waswith, his body at thebar, that we were able to track himdown.
They just interviewed himtoday.
And he IDs yourguys. Hesays,yeah, he walkedoutside, walked out before yourguy, and then Williams walksout.
Hesays, then I see a netta walkout.
That's thevictim, DerekYaneta.
Hegoes, Yaneta doesn't say aword, and Williams ratted off like five shots athim.
How was he trackeddown?
What was thestory? Put a subpoena out tohim, put it on thedoor.
So where did you go into to drag him outof?
On him at his mom'shouse, youknow, what do youthink?
Yeah.Okay.Yeah. And so now that he's seensunlight, where did he go by theway?
Why did he disappear and what's been hisstory?
How come he hasn't stepped forward tosay, oh mygod, I witnessed ahomicide.
My understanding is that he's been in contact with Diaz and stuff and just has stood him up like five or six times to comedown.
He's got more important things todo.
He doesn't want to be arat.
He doesn't want to rat on yourguy.
I think he currentlyhas.
Brian is used to CraigwineTrabbe.
He's probably done about 10 murder cases withhim.
Unfun fact about CraigwineTrabbe.
He represented ArielCastro, the guy who imprisoned three women in his house for 10years.
After a case likethat, maybe you either quit the law or you stick itout.
Why is crack your way through the day wheneverpossible?
Regardlessof... I know what you're talkingabout.
Now he was the guy I walked in and I saw him being led byDiaz.
He had the cane and adog.
He think I couldn'tsee.
Getit? Brian playsalong.
It was being led byDiaz.
Those are props you'll get rid of before thetrial.
I'm going to get them into thecourtroom.
We're going to practice how many stepsstraight, how many steps of theright.
You guysdo. That's what we dobest.
They start talkingnumbers.
It sounds like anauction.
That's how they're negotiating thisplea.
First, figure out a prison sentence Dominique Williams can livewith.
Then figure out the charges he'll have to plead to that'll add up to thosenumbers.
I was looking at a range oflike...
maybe 12 to15. You don't get smiles onthere, yousee?
Yeah,no. You're not goingto...
I was looking to read to 12 to 15 until you found this guy slitheringaround.
Brian's laughing becauselaughable.
There's noway. 12 to 15 is more like armed robberytime.
Why in Trump knowsthat?
What do you think a bottom-end number is onthis?
Flat timeor...Yeah, it's going to be a big number if it's not going to be a lifetale.
Imean, that's the issuehere.
I'lltranslate. Flat time means the number is thenumber.
20 years is 20years. But murder charges in Ohio carry what's called a lifetale.
Murder starts at a mandatory 15 tolife.
Aggravated murder starts at a mandatory 20 tolife.
Williams is charged with bothkinds, which come with a raft of gunspecs.
If you get a lifetale, say 20 tolife, means you have to serve 20 years before you can apply forparole, which you're not likely toget, at least not the first timearound.
So 20 to life could mean 20years, or it could mean you spend the rest of your life inprison.
Dominique Williams is 27 yearsold.
Understandably, he wants flattime.
For that towork, they're going to need to reduce the charges to some kind ofmanslaughter.
What do you thinkrealistically?
It's not20s. Imean, it's not20s.
It's not20s. That was before the other guysaid,yeah, he's the one that shot him and I watchedhim.
Yeah, it's not a goodfactory, youguys.
Imean, I really think it could be a manslaughter with a range of maybe 14 to 20potentially.
But be that as may Iforgot.
I have a policeofficer.
I've got to worry abouttoo.
So keep that inmind. That's where you'retalking.
If you want torange, you're talking high 20s into mid30s,probably.
Or he just takes it on the chin and doesn'tmurder.
He's got the lifetail. Allright, let's figure itout,yeah.
Whatever number they settleon, they're confident the judge will go forit.
By the time we get back to Brian'soffice, the detectives on the Williams case are waiting for him to tell him more about the witnessinterview.
It's Ray Diaz and also Detective JodyRemington.
So any record or anything on this kid orno?
He did fiveyears' federaltime.
Yeah,something. Brian and the detectives are easy with eachother.
No errors orformalities.
You can tell they've worked together a longtime.
You know what the beefwas?
No. He said that he tried toeat.
People have beentalking, but he said as far as he knows it was for noreason.
Watching how closely Brian works with detectives allday, gave me an appreciation for why the system finds prosecuting a cop soexcruciating.
Brian has had to do it just a month and a halfago.
He prosecuted a Cleveland officer after he shot and killed ateenager,18, who had broken into astore.
The cop was charged with negligenthomicide, amisdemeanor.
And Brian took it totrial, not withrelish.
Youknow, nobody wants to dothem.
Imean,nobody, no judges don't wantthem.
Prosecutors, defense attorneys don't wantthem, the police that are investigating them don't wantthem.
Because they'rehard. They're legally they're complicated because cops are allowed to kill people in certaincircumstances.
But also forBrian, they're morallycomplicated.
Brian supports policeofficers.
He knows how many guns are on thestreet.
He thinks their job is harder than it's everbeen.
But he also doesn't think that 18-year-old deserved to die thatnight.
By prosecuting theofficer, Brian didn't feel like he was taking aside.
He felt like he was doing hisjob.
But thetrial, the police made it obvious they did not feel the sameway.
You were in thatroom. What was the thing that seemed the weirdest to you in thatroom?
Me at the table by myself and like 40 police officers on the otherside.
Imean, that wasweird. Wasn'tit?
Imean, it wasweird. It wasstrange, youknow.
And then I had one detective that came and sat withme,finally.
But, youknow, that'sweird.
Imean, Iknow, I knowthem.
But you see what Imean,though, how easy it can turn into us firstthem.
How theycan... It looks like we've turned onthem.
The all-around is comfort ofthat.
The police feelingattacked.
Brian feeling as if they're glaring at him like he's atraitor.
Plus the public perception that the government suits on the ninth floor will never really give their all to prosecuting their pals in blue is why Kaiohoga County recently changed itspolicy.
Several cases of police shootings are now farmed out to prosecutors from anothercounty.
Incidentally, the judge in that case found the officer notguilty.
And the judge was endorsed for reelection by the police union soonafter.
Neitheroutcome, surpriseBrian.
Back to the Dominique Williamscase, nightclubshooting.
Brian asked the detectives what they thinkWilliams' sentence shouldbe.
I know you guys usually don't give ashit, but what do you guys think of for a number forWilliams?
I'm always hoping when it comes tothat.
You guys findit. He mayhave, Ithink, the problem that Dominique has is he shoots in fivetimes, he's notarmed.
And then he no-only runs from a police officer who's identifying himself and he has the audacity to turn and shoot at apoliceman.
They're talking flattime.
Am I off-base by saying 20s is anOGO?
And now the one witness has identified him and said he's theshooter.
So Imean, I'm not on thecase.
So I don't know if it's my place tospeak, butyeah, 20 seemslow.
That's ChrisSchroeder, another prosecutor who was waiting to talk to Brian about a different murdercase.
For a guywho, Imean, it sounds like he executed this guy outside and then he shot at the cop as he wasfleeing.
And he shoots twice at theofficer.
I know we found twocasings, but I know that the policeman thought he shotmore.
But eventhis, we brought intoday, said he stood over him and shothim.
Oh, he shot after he wasdown.
Yeah, Imean, soit's, if he wants flattime, it's at least30,right?
Imean, Iwould.Okay. After the detectivesleft, Brian and Chris Schroeder discussed a doublehomicide.
If that guy wants toplead, Chris said it had to be something like 40 to life or 50 tolife.
It's going to have to be ahigh, highmark, hesaid.
I found these huge numbersshocking.
I'm not even surewhy.Obviously, I know people get multi-decadesentences, lifesentences, all thetime.
Maybe it was because I had just been reading about Germany's sentencingpractices.
We're a sentence for the very worstcrimes, usually lasts about 15 years atmost.
Or maybe because I'd now seen and talked topeople,young, young people who were staring at the prospect of 10 years or 14 years and they weredesperate.
Brian and I talked about this for awhile.
I told him about my conversation with CharlesWakefield, Avel'sfather.
He wanted the person who killed Avel to bepunished.
But he also considered what happened to hisdaughter, aquote-unquote,accident.
He knows whoever shot her didn't set out that day to murder ababy.
It was amistake. By just a centerstandard, his vengeance was veryconservative.
I can't remember how it cameup, but so he kind of threw out the number like 10years.
And I was really surprised because I waslike, youknow, a person gets convicted for thatmurder.
There's no way 10 years is coming out the otherend.
And but it was interesting to me that that seemed he could balance the scales in his head with a 10 yearsentence.
That seemed about right tohim.
Do you think 10 years is fair though for killing akid?
Imean, I don'tknow. The fair is such a weird thing because I feel like it totally depends on theperson.
So like say it's an 18 year old or a 17 yearold.
Maybe 10 years is fair because by the time that person is closing in on 30 yearsold, they've totally changed and matured and like realizelike,whoa, I made a lot of horriblechoices.
Like I don't know that you're going to have a difference between 30 and 50 or 30 and 60 or 30 and 70 in terms of a danger to thepublic.
I getthat, but it shouldn't be some aspect of a significant punishment for ittoo.
And I don't know that 10 years after taking the life of somebody isenough.
I justdon't. Imean, I understand that there's going tobe, there is going to be thatchange.
And hopefully thereis.
There's that real realization like in your late 20s or something like holyshit.
I fuckedup, youknow, I fuckedup.
But I don't know that that's just because you have that realization then you should be able to getout.
There should be some aspect of a punishment with 10 years is a punishment for I don'tknow.
10years. 10 years for likea, it's not just that it was ababy,okay?
It was a blatant disregard for everybody's safety on thatstreet.
Think about somebody else and getshot,okay?
At thispoint, I feel like even I need areminder, it is not Brian's job to sentenceanyone.
That's for thejudge. But certainly Brian is teeing up the sentences peopleget.
And when he's thinking aboutsentences, it was also striking to learn what Brian was not thinkingabout, deterring crime or who exactly is getting lockedup.
He doesn't come to work every day thinking about criminal justicepolicy.
That's not what's guidinghim.
I, youknow, deterrence and laws and how to fix communities and all that type ofstuff.
I try not to think of it thatway.
I think it's just we're better off worrying about our victims here because when I'm talking to somebody that had their son killed or their daughter killed or mother raped andmurdered, they don't care about thedeterrent.
They don't give a shit about somebody else's kid orwhatever.
They care about what am I doing forthem?
And that's whatI, that's how I try to keepit.
So I try to think of what canI, it's the best thing I can do for thesepeople.
Youknow, sometimes it's apolice, sometimes it's going to try outwhatever.
But I don't know that weever, if we deterpeople, we hope wedo.
Imean, that's why we have some of these sentences and things likethat.
But, youknow, we've got gun specks now for peoplethat, if you commit a crime with thegun, you're going away from ourprison.
Youknow, we have one year of gun specks in three year and five year and eight yearspecks.
And I think they'regreat, but I don't know if it's eliminated the amount of guns that are on thestreets, youknow, Imean, is it deterring the next guy from picking up agun?
Brian is using all the legal and procedural tools at hisdisposal, all the tools we've given him to resolvecases, mostly throughpleas.
But he doesn't know if what he's doing is making Cleveland anysafer.
You can't consult research that'll tell him what sentences equal what result or a statewide database showing whether sentences are being applied equally without racialbias.
Because, and I know I've mentioned thisbefore, but it bears repeating because it is a massive black hole in our own understanding of our own criminal justicesystem, but there is no comprehensive data onsentencing.
We don't keeptrack. What we do know is thatoverall, more and moreprosecutions, longer and longer prisonsentences, while they do have some effect oncrime, but not thatmuch.
It's very little bang for such hugebucks.
That's why Brian concentrates on the only result he can really see day today, which is when some measure of peace descends on a crushedfamily.
So that's what he aimsfor, a punishment big enough to trigger the healing power ofretribution.
Imean, that's the way you have to look atit, hesaid, because if you look at it any otherway, you lose yourmind.
Dominic Williams wasn't going to agree to 30 years flattime.
He also rejected an offer of 20 tolife.
Instead, he took it totrial.
He was convictedeasily.
He is now serving sentence of 35 years tolife.
In the grand jury vote on the Abdul-Rachmancase, they no build the voluntarymanslaughter.
They did not think he should be charged with a crime for shooting Andreweasily.
Seems they decided it wasself-defense.
After spending about seven weeks injail,Mr.
Rockman pleaded guilty to illegally having a gun and he was sentenced to twoyears'probation.
Brian met with Andrew Easley's family to tell them about the grand juryvote.
He said they were unhappy aboutit, but that he thought they understoodit.
Many monthslater, I interviewed Andrew Easley's oldersister,Jacqueline.
She did not understandit.
She had watched the security tapes from thebus.
She didn't understand why the prosecutors didn't charge the two people whom she thought incited thething.
Andrew'sgirlfriend,Rachel, who'd kickedMr.
Rockman off thebus, and the younger man who had initially bulliedMr.
Rockman. And she didn't understand whyMr.
Rockman himself wasn'tcharged.
She didn't think he was acting in self-defense when he shot herbrother.
The two people that did put their hands on him didn'tshoot.
So you had every reason to shoot if it wasself-defense.
They come up hittingyou, slappingyou, kickingyou.
Okay,yes,self-defense.
My brother in touchyou.
My brother in the seat won't work toyou.
Could you understand how a grand jury could watch those same tapes and come to a different conclusion than youdid?
No. We did askwhy, youknow,why, but youknow, they really didn't give ananswer.
Theysay, youknow, all we do is present and it's up to the grandjury.
That's all Igot. Do you believethat?
No. I don'tknow. Imean, I know a lot about the judicial systempolitics, butno.
I don't believeit. When I asked Jackie what would have been different for herfamily?
What would have felt different ifMr.
Rockman had been indicted for murder ormanslaughter?
She couldn't sayexactly.
It might have helpedsome, shesaid, but it wouldn't have helped a greatlot.
Eitherway, her brother would still be gone and the pain of that would still be radiating through herfamily.
Evenso, she said she wantedit.
The best outcome you can hope for when a crime happens to you is that your pain isacknowledged, the person who harmed you ispunished, and that you get somereparation.
And believe it ornot, that trifecta doeshappen.
We metsomeone. Next time onSerial.
Serial is produced by JulieSnyder, a manualJochi, Ben Calhoun and me with additional reporting by EdelieSkowski, editing on this episode from IraGlass.
Whitney Dangerfield is our digitaleditor.
Huge congratulations to her for having a baby thisweek.
Research in fact checking by BenFalen.
Sound Design and Mix by StoneNelson.
Additional production from KateBelinsky.
Music clearance by AnthonyRoman.
Seth Linde is our director ofoperations.
The Serial staff includes EmilyCondon, JulieWhitaker, CassieHowley, FrancisSwanson, and MattTierney.
Our music is by Adam Dorne and Hal Wilner with additional music from MattMcGinley, Nick Thorburn and WestSchwartz.
Our theme song is by Nick Thorburn and Remix by AdamDorne.
Special thanks to LisaNoller, DonnaWeinberger, Sarah Andrews and Scott Schumaker at the Ohio Criminal SentencingCommission, Ram Subramani and at the Vera Institute ofJustice, JohnFaff, Paula BoggsMewthing, RachelDeCell, Judge PinkieCarr, KimberlyCorral, KimYoder, DavidRaphael, MikeBarber, and KatieFuchs.
The art on our website was made by AdamMada.
He created the mural for thisepisode, and Matt Studio did theanimation.
Please check it out on ourwebsite,serialpodcast.org, that'sserialpodcast.org, where you can also sign up for our email newsletter and be notified when new episodes arereleased.
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