Update: The Unthinkable
Carol shares a shocking development in the case of Phyllis Cottle's brutal assault, one that she knew might come.
The Ohio Innocence Project has prompted a forensic review of evidence, raising the possibility that Samuel J. Herring, the man convicted of the crime, may be innocent.
Herring, now 67 years old and wheelchair-bound, has spent nearly 40 years behind bars. He has maintained his innocence.
Now DNA testing of recently unearthed evidence may reveal the truth.
So, what if the justice system got it wrong? And if Herring is innocent, then who did it?
Host - Carol Costello
Producer - Chris Aiola
Audio Engineer - Sean Rule-Hoffman
Contributor - Nijah Golliday
Production Director - Brigid Coyne
Executive Producer - Gerardo Orlando
Original Music - Timothy Law Snyder
The Marshall Project’s story on Samuel Herring: https://www.themarshallproject.org/2023/11/09/after-nearly-40-years-behind-bars-in-ohio-dna-testing-is-finally-underway?
For additional information about Phyllis Cottle’s case, please visit our newly-launched website (www.carolcostellopresents.com), Carol’s Facebook page (Facebook.com/CarolLMU) and Instagram page (www.instagram.com/carolcostello).
I'm Carol Costello. This is Blind Rage, The Unthinkable. It's hard to explain how I feel, even though I knew this day might come. Am I stunned? Yeah. Sad? Oh yeah. I am achingly sad. I told you in the final episode of Blind Rage Season 1, there was a possibility the man convicted of brutalizing Phyllis Cottle could get out of prison. Today, I can tell you that for sure, there is a chance. If you live in Northeast Ohio, you know what I'm talking about. There has been a new development in the case, a potential bombshell.
According to the Marshall Project, a nonprofit news organization focusing on inequities within the criminal justice system, quote, The work of the Ohio Innocence Project has prompted Summit County prosecutors to agree in October to a forensic review of seven pieces of evidence collected from the Cottle Rape. Bindings, wire, Cottle's clothing, a can of car refinisher, and a white cloth. The Ohio Innocence Project claims Samuel J. Herring did not brutalize Phyllis Cottle, that police got the wrong man, that prosecutors, the judge, the jury, they all got it wrong, that Samuel J. Herring is innocent. If that's true, Herring has spent 40 years in prison for a crime he did not commit.
Cleveland TV reporter Tara Morgan, who partnered with the Marshall Project, talked with Herring behind bars. This is what he said, quote, I care what people think. I want to prove my innocence regardless if I did all the time. I want them to know I wasn't the one who did that. I just want everyone to know I wasn't the man. They had the wrong guy.
Herring is 67 now. He looks far different than he did in court in 1984. His hair is white, he has a white beard, and suffers from spinal stenosis, a condition that affects the lower back. He uses a wheelchair to get around. Herring told the Marshall Project, as he has for the past 40 years, that he never met Phyllis, that it was a case of mistaken identity, that he did not do this.
To be clear, I knew this day might come. In 2021, a friend of mine requested records from the Summit County Prosecutor's Office. And that's when he discovered we were not the only people reexamining Phyllis's case. There it was in black and white.
Mark Godsey, the co-founder and director of the Ohio Innocence Project, requested public records in regards to the case against Samuel J. Herring. When we stumbled on that document, I thought, oh my God, it took me 30 years to share Phyllis's story with the world and now this? What a crazy coincidence. Crazy. I decided not to divulge the information unless the Innocence Project filed a legal brief or requested DNA tests. I wanted to tell the world Phyllis's story.
Like I told you early on, I'm no longer objective when it comes to Phyllis. She is and remains my superhero. But if there is evidence Herring did not hurt Phyllis, he should be freed full stop.
Phyllis Cottle did her job. She survived. And she forced herself to remember every indignity she suffered to lead police to that horrible house where she was raped repeatedly. She kept her cool after a suicide attempt in court. She told her story. She did not lie. It was up to Akron detectives and Summit County prosecutors after that. From the get-go, it was a difficult case. There wasn't a victim who could point to a perpetrator and say, he did it.
Here's former Summit County prosecutor Bob Balford. Do you have any doubt at all in your mind that Samuel Herring was the guy?
No, I don't.
Still, you didn't have any physical evidence. You didn't have the knife. Right, right. You didn't have a witness who could say that's him, right?
Well, I mean, that's like every homicide case you ever try.
The lead detective in the case, Chris Contos.
Is there any doubt in your mind that he did it?
Not in my mind. No, no, no.
Prosecutors told me they based their case on circumstantial evidence. There was some physical evidence, but not much. DNA testing was rather primitive in 1984 and often not dependable. That said, some physical evidence was introduced in court.
Although the Ohio Innocence Project says the forensic science used in the case was junk science. I agree with that. That's why I didn't spend much time on it. Still, there were similar fibers found on both Phyllis' and on Herring's jacket. There were hairs found on the bindings and clothes that were similar to Herring's. There was contaminated semen found on white fabric from the scene.
The big ticket items for prosecutors: an eyewitness who positively identified Herring in court as a witness for the defense. The man, nicknamed Chili Mo, told the jury he saw Herring with a gym bag acting nervous at the 1286 bar, not far from the crime scene.
If you look in his testimony in the direct, he says, “I think I see him there.”
So Sandra Robinson now knows she has a problem.
And she crossed right over. I read it again this morning. He says, I think I see. He starts to say, I think I see him there. And it's funny, I lean over to Fred. I said, Fred, don't cross him. He looks at me, but then it was clear he had to clear it up, right? But it was, I'm like, wow. And when he said that, I think I see him there, Fred goes, hey, happy birthday, Bob. And then Fred gets up and he basically, that's him, right? That's him.
So. So Fred gets up and cross-examines him and says, do you see…?
He says, is that an absolute ID? He goes, yes, it's an absolute identity. That's him.
That ID led police to a cab driver who dropped off an anxious man near the parole office. Herring was at that parole office that day. He was carrying a gym bag that he refused to bring into his meeting with his parole officer. The most damning clue? My gosh, his family owns a house, right? Herring's family owned the house where Phyllis was attacked.
Still, DNA is powerful. A laboratory is testing items that have been stored at, of all places, the Title Division in Talmadge, Ohio, for decades. The Marshall Project and a local reporter discovered it. As far as anyone else knew, the evidence from Phyllis' case was long gone. If nothing conclusive turns up, the lab will test additional materials.
So what could this all mean? Here's my legal guide, former prosecutor Emily Palfrey.
If the Innocence Project filed papers in this case, it would not surprise me. And I think that people need to understand that when they do this, a lot of times it goes nowhere. And sometimes it just means You know what, we've looked at this case. We think it's worth another go ahead. It doesn't mean that anything necessarily is going to happen.
Well, the Innocence Project has had successes.
I'll say this, that the system is meant to work a certain way. And I think that sometimes cases that the Innocence Project, oh, this person was in prison for 50 years and they've lived out their life and that's not the norm. It doesn't happen that often. And people go to prison based on the system that we have in this country every day. And in some ways, as frustrating as it can be to hear that they want to go in and look at these cases again, in another hand, it almost is like, you know what? Let them do that. Because it's going to show that even though the system doesn't look today how it did then, it worked then the way it was supposed to. And let's explain how much things have changed, but it is hard, and it's hard for families to hear it when a loved one has had to go through this. And as difficult as it can be for those families, it also is, I'm sure, difficult in some ways for this person to get a false sense of security that just because the Innocence Project is involved that they're going to get off. That's not the case.
Keep in mind, Emily is a former prosecutor. Prosecutors indirectly represent victims and their families. Defense attorneys and certainly the Innocence Project would have a much different perspective.
Like I said, I chose not to publicly share all I knew about the Ohio Innocence Project because if the Innocence Project decided to drop the case, I didn't want to inflict unnecessary pain on Phyllis's family. And believe me, they are in an awful place. But that journalist still lives inside me. I have the responsibility to investigate further.
Phyllis' family sat down with Summit County prosecutors so they could explain what new evidence the Ohio Innocence Project has that might free Samuel Herring, or at least cast reasonable doubt on those guilty verdicts. And I have to admit, it's a lot to take in.
Is it possible everybody got it wrong? Detectives? Prosecutors? Me?
And if it wasn't Samuel Herring, then who did it?
I spoke with Dolores, the former Summit County Sheriff's deputy who guarded Phyllis' hospital room after the attack. She told me this. She said if Phyllis were alive today and this was brought to her attention, she would welcome it.
So now, a new chapter begins. I'm Carol Costello. Stay tuned for more Blind Rage.