Why That Case? An Interview with The Ohio Innocence Project

Carol: My goal in sharing Phyllis's story was, and is, a testimony to her courage. I'm no longer objective about this case. I mean, how could you be? But I am a journalist. I have an obligation to uncover whatever I can about this case and share it with you. When the Ohio Innocence Project uncovered DNA evidence in the case against Samuel Herring, I was intrigued. And I felt terrible for Phyllis' family and what this could mean for them. You know how it turned out. The newly found DNA was tested, and it belonged to the man already in prison for brutalizing Phyllis. Samuel Herring. That still boggles my mind. I needed some answers. I needed to understand why that organization decided to take on Herring's case. I needed to see things from another point of view. It took some time, but the director of the Ohio Innocence Project, Mark Godsey, agreed to talk with me.

Do you regret taking on Samuel Herring's case?

Mark: No. I feel bad that people in the position of the victim's family have to suffer from the system. But to regret taking on this case means you don't get any innocent people out of prison. You just have to stop. And I've witnessed the suffering of so many families. where their innocent family member was put in prison, and the reunions, and the healing that happens when a correction occurs, that I would not make the trade. I personally, if I was going to make that trade, then I'd just quit.

Carol: I'm Carol Costello. This is Blind Rage, Episode 18. Why that case? It's important to know who Mark Godsey is before we delve into why his Ohio Innocence Project took on Samuel Herring's case. We, and I'm generalizing here, tend to see the world unambiguously, in black and white. I try not to do that. It's important to consider those shades of gray so we can draw the right conclusions because let's face it, innocent people are sent to prison. According to the National Registry of Exonerations, 3,481 people have been freed from prison since 1989. And we hear mostly about the victories and less about cases like Herring's. But those kinds of cases are important to understand too. So here goes. Mark Godsey founded Ohio's Innocence Project in 2003. It's part of the Innocence Network, a coalition of independent innocence organizations, all with the same mission, to combat wrongful convictions and reform the criminal justice system. Ohio's Innocence Project operates out of the University of Cincinnati's law school. Godsey is a hard-nosed guy with a big heart. He started his career as a prosecutor. He fought to put people in prison. He didn't fight injustices in the system to get them out.

Mark: I was a prosecutor for many years, and I got into the innocence work almost by accident. So what happened was I became a professor. That law school had an innocence project. The professor who was running it was on sabbatical, so the dean sort of said, well, you've got all this criminal investigation background, so you're going to run it this year, and you really can't say no when you're the new person. And I was very skeptical. But the case they were working on at the time, the guy ended up being exonerated by DNA. And I had been doing internal eye rolls when they talked about the case. I was this sarcastic, smug, former prosecutor listening to these stupid law students that are idealistic, bleeding heart liberals who all these people are talking about are clearly guilty. And then the one case they were focusing on the most, the guy ended up being innocent. So it was a huge, like, not only eye-opening experience, but just that fact, but just meeting him. So then I had to meet him.

Carol: You mean the man who was wrongfully convicted, you met him? And how did that open your eyes?

Mark: Well, I was just really ashamed at how I had behaved. Because I got to see his humanity.

Carol: You're so emotional now. Tell me about that. Why is it hitting you so hard remembering this?

Mark: It always does. I sat there and like scoffed at this stuff. Like he deserved it. He's a rapist. And then I like sat in a room with him and had him tell his story.

Carol: And then it hit you and all of your, was it cynicism? was stripped away?

Mark: Well, it's just what happens when you become part of the system. I mean, bureaucracies, I write about that in the book, like it's the humanity stripping nature of bureaucracies when you're part of a system and everybody's in like working as a cog in these wheels and you've got the party line and, and you give great esteem. You have great, the system is doing good things. And so you get a lot of self-worth and identity out of, this wonderful system that you're a part of and how dare you question it because, you know, you're just this little peon and this has been acting this way for decades, if not centuries. And it's, you know, the sum is greater than the whole of the parts and you don't question anything. And this is what bureaucracies do.

Carol: Godsey wrote a book about his journey to advocacy called Blind Injustice. I know, irony. In his book, Godsey writes about Clarence Elkins, who was wrongfully convicted of raping and killing his mother-in-law and sexually assaulting his six-year-old niece. The Innocence Project worked to free Elkins. It took years. Prosecutors insisted Elkins was guilty, despite DNA evidence that proved his innocence.

Mark: And we would go to court, and these prosecutors would just be these smug, come up with these ridiculous stories like, oh, yeah, the DNA doesn't, and the victim's vaginal cavity after she was raped and murdered doesn't match your client. But she probably shook hands with, this is literally an argument that was made, shook hands with a man earlier that day and went home and masturbated, and the man's DNA rubbed off inside her vaginal cavity. Just crazy arguments, and I'm just sitting there like, the levels of denial, but I also knew that was me because that's how I was, right?

Carol: And you called it in your book, psychological denial. Yeah. Like even though you knew something was awry, you just ignored it because you've convinced yourself that what you were doing was right.

Mark: I don't know if you want to call it a rut or you have a certain way of thinking that is groupthink because everyone around you thinks the same way, which causes you to not question things.

Carol: Godsey founded Ohio's Innocence Project in 2003. He and his team of lawyers and law students have freed 42 people from prison. I think a lot of people wonder exactly how the Innocence Project works. I mean, I know you get like, I don't know, how many requests do you get from people who want the Ohio Innocence Project, for example, to look into cases?

Mark: So we've been in operation 20 years and the last, it's probably over 13,000 people have written to us saying, I'm innocent, I'm in prison. And it's, I think it's three or 400 new ones a year.

Carol: And for people to request your services, they have to fill out an application or do they write a letter? Like, how does that work?

Mark: They have to fill out an application. And if they just write a letter, then we send them the application.

Carol: The application is online. It asks inmates 58 questions like, are you claiming actual innocence? How did you become a suspect? Did eyewitnesses testify for or against you? Do you have an alibi? And was there DNA evidence? And if so, what kind? I've posted the application in the show notes so you could see the rest. Godsey can't talk specifics about Herring's application because of attorney-client privilege. Is there anything in that application, words or phrases that pop out that make you say, hmm, we should look into this one?

Mark: Sure. So there's like red flag evidence. So there's a lot of people wrongfully convicted on bad forensics. And so when somebody fills out the form and we see they were convicted on And, you know, 2004 on gunshot residue evidence, they were convicted on arson evidence, they were convicted on shaken baby syndrome. Those are huge red flags we're going to dive into and look at. Now, they could be convicted on junk science and still be guilty. So we're going to look into it and see what the other evidence is. But a lot of times, we'll find a case where that's really all there was. So those jump out. Some people aren't really claiming innocence. They don't get it. They're saying, I was convicted of being the trigger person, but I was just a getaway car driver. And so we just cut that case. And some of them, they're just really vague. But when we start investigating, it's pretty clear that the evidence was overwhelming and they were guilty. That's the most common outcome of an application.

Carol: Oh, no, but junk science is the big one.

Mark: Well, that's just the most obvious to see. Because the potential clients, the incarcerated persons, they often aren't savvy enough to articulate some of the things we're looking for. But they will usually know, like, oh, they used arson science against me, or they used this. And so that'll pop out on an application. It'll cause us to take a closer look. DNA evidence continues to get more sensitive. So even if you were convicted in 2012 and they said it was inconclusive, you can go back with modern technology and get a result now. So we're looking at things that like could be DNA tested. And while we're digging into the case to figure out these things, like what caused this person to get convicted? Was it things that we know are problematic that need another look? We're also looking like, is this evidence overwhelming?

Carol: So how many applications do you accept per year in general, do you think? Like this application seems reasonable. We're going to look further into this and check this out.

Mark: There's a pretty high percentage that within a short period of time, you can tell they're guilty and the evidence is overwhelming or there's like nothing you could do on this case. And so the way I describe it is it's like files on a conveyor belt. And they're just moving along one file after another, and there's things that are coming and swinging and knocking some of them off. And it's a bunch of random things, but eventually one is still on the conveyor belt after a really long time. And you kind of go, okay, let's have a three-hour meeting about this case. Let's schedule it for two weeks from now, learn it inside and out, and let's talk about this case for three straight hours. because it stayed on the conveyor belt for a really long time. And sometimes after that, we realize, okay, it's not a good case. It's not something that he might be innocent, but the evidence has been destroyed and there's nothing we can really do here. He might be guilty. We don't really know. Or like, wow, like every single turn, everything this person said has turned out to be true.

Carol: More when we return. I know you don't want to talk much about Phyllis Cottle's case or Samuel Herring's case, but I wondered if you could address some of the family's concerns in their statement to the press. They were upset with the vetting process and said that it could have been done more carefully.

Mark: Well, I haven't responded to it because there's kind of no point. Like, I just don't want to make them more upset. Right? I can understand the family being really upset. And to get into a media argument with them doesn't make sense. And I don't want to do that. They can make me be the bad guy. It makes them feel better. That's OK. It doesn't bother me. I don't want them to be more in pain. But I mean, you've asked me to talk about it. And you've covered this case. So I will talk about it.

Carol: Phyllis's family released a statement to the media urging the Ohio Innocence Project to be more careful in vetting its cases. The family also asked the Innocence Project to, quote, keep in mind its actions affect others in ways they may not realize or understand.

Mark: So if you had the best vetting process in the world, Sam Herring's case would be one of the top cases that you should go forward with DNA testing on. The science that was used to convict him is junk science. The eyewitness identifications had every problem that you can look back now from today and see back to the 1980s. And you can say, this is a potentially bad ID. And so when you look at the pillars of conviction, they were very weak. and there was the potential for DNA. So there's any innocence project in the world would take that case.

Carol: DNA testing used in the case against Herring most likely would not stand up in court today. And it is true, the survivor in Herring's case could not identify him because he blinded her. Other eyewitness testimony, with the possible exception of Chili Mo, was not 100% reliable. So when new DNA evidence came to light and investigators found a serial rapist convicted of similar crimes around the time Phyllis was attacked, the Ohio Innocence Project took on the case. Well, why did you do the DNA testing first?

Mark: Because that'll give you the answer.

Carol: So instead of taking the whole thing to court, you do the DNA testing first.

Mark: Right. That's being super careful. So we put everything together and we pointed out all of them. Just because there's flaws in the case doesn't mean he's innocent. right, just because the science used to convict them is junk science. just because the eyewitness IDs by today's standards have earmarks of unreliability doesn't mean that people were actually wrong. And then you had this bizarre connection where there was a serial rapist that had the same MO as this case. So I would be willing to say that no matter who vetted it, this would jump out at the top. And so that is a case where you go, we're going to try to do DNA testing because this is a case where there could be DNA. And so we put everything together to convince the prosecutors to do DNA testing. And we wrote it all up, all the problems in the case. If the DNA is going to come back and show I'm innocent, this is what we would file. So you can see it. And they were convinced. They looked at it and they're like, you're right. And if we didn't do it that way, what would happen is we would file in court for DNA testing, which would make it public. And then it would drag on for years in the courts. And then after five years of agony for the family, there would finally be DNA testing. And it would come back and give the results matching Sam Herring. Like, the prosecutors handled it extremely professionally by looking at this and saying, let's just do this as quick as possible. You are right. This case needs DNA testing. And let's do it as quickly as possible. Let's not prolong this for the family. Let's get it over with. If you take the position that we have to know before we do the testing what the testing is going to show, then there would be no Innocence Project. And every innocent person would stay in prison. And you may decide, if you're a crime victim family, that that's the way it should be. And I understand that. But I would point you to the families of all the people who have had their family members taken away for 20, 30, 40 years. And they would tell you the opposite. They would say, there's not a situation that's going to make everyone happy. And there has to be a process to vet these cases and to do DNA testing. And you don't get to keep my innocent family member in prison for the whole life just because this happened to you. And I'm sad that happened to you. But there's two sides to every story.

Carol: Can you explain how that new DNA evidence turned up? Like who found it?

Mark: This is why I give so much credit to the prosecutor's office. We scheduled a meeting with the Summit County Prosecutor's Conviction Review Unit, who that's a specific part of the prosecutor's office designed to look into these cases. And we showed them all the work we had done, showing that the foundations of the case are very weak. And this is a case where we should do DNA testing. And then they were able to find it. And the reason why they can find it is because they're law enforcement. So when they call or they go over to the property room, the people, it's not like, you know, a law student calling from five hours across the state where they go, yeah, yeah, yeah, no, we can't find it by, it's a totally different response. And so to their credit, they were able to find it.

Carol: And this evidence that was thought to have been long gone contained DNA from 1984 that scientists in 2023 could do something with. So, looking at Samuel Herring's record, which was a long one, and his criminal activity started when he was 11 years old, do you look at those things? Yeah. As you examine whether you're going to accept the case or not?

Mark: Yeah, and, you know, and we talked about this with the prosecutors, too, when we were meeting with them about whether we should do DNA testing. And he didn't have crimes like this. He had more, like, nonviolent stealing things.

Carol: There were complaints filed against him from women who he allegedly abused, but no charges were ever filed.

Mark: Oh, so no charges were filed.

Carol: But he did have that in his background. Like, one woman was so afraid of him, she left town and went to Detroit to hide out.

Mark: There's no requirement that somebody have a completely clean record, but if they're having a, they have a record that is not the same as what they're in for. So this guy's in for life and a very violent crime. And in this case, you look at the MO, we had one of the leading profilers in the country that works both for law enforcement and defense on both sides tell us, Sam Herring didn't do this. This MO is so similar to the alternate suspect. So we were very careful to, like, you know, talk to these individuals and do our due diligence. You know, we spent a really long time with this profiler. It cost a lot of money, invest a lot of money, and to try to get these answers. And he came back and was like, and you can see, we gave this report to the prosecutors, and they were all so persuaded by it. If he did these things when he was young, he should pay the price for what he did. But if he didn't do this, you don't send somebody to prison for life for a crime they didn't commit. So this was much more serious than the prior things. And there were good reasons to think he could have been innocent for this particular crime. And my judgment on that was, if he did those other things, he should pay for them. But you don't convict somebody and send them away for something they didn't do. And so the DNA test will tell us that.

Carol: The prosecutor's office released a statement saying that the Innocence Project was manipulated by Samuel Herring. How do you react to that characterization?

Mark: Well, I don't really care what they say. I mean, I understand why they say that. I'm really appreciative of how they handled the case. So it's not like I'm going to get in a tit-for-tat about, like, I just don't care. So a couple of things. One of the problems with wrongful convictions is that people start to believe that they are perfect human lie detectors and they can look at somebody's demeanor and tell whether they're telling the truth or not or whether they're innocent or guilty. And that is a big fallacy. And science proves that's a big fallacy. We are really bad at lie detection. And so we've had people exonerated. that if you were to ask the attorney who was in charge of that case how they thought the DNA test was going to come back, they probably would have been like, I don't know, he might be guilty. And then it comes back and he's totally innocent and it matches somebody else. And it's like, and then we've had cases where the person's super convincing that they're innocent and the DNA comes back and matches them like multiple times. So not only does a science tell us not to pay attention to that stuff, I have 20 years of experience knowing not to pay attention to that stuff.

Carol: Well, tell me why he was so convincing, because you talked with him in prison, right?

Mark: I'm speaking generically. I can't talk about Sam Haring specifically, his attorney-client

issues, about my conversations with him. I'm speaking in the abstract that, like, there are people who don't make eye contact and who seem very shifty when they're talking, and they don't have good answers for things, and the DNA proves them 100% innocent. There are people who are extremely compelling and talk about the psychology of my God, this is the process of grief I had to go through to be wrongfully convicted, and it matches what the real people say. And then the DNA comes back, and it shows them guilty. So I've learned. And this is a lesson for the Innocence Movement. This is what we're trying to teach law enforcement. There's over-reliance given to demeanor. So I'm not going into a prison visit with Sam Haring or anybody and being like, I want you to put on an Oscar-worthy performance and convince me so I can be manipulated and do this. Way too much experience for that. That is a very low factor on how they come across and to what weight we give it.

Carol: I'm just thinking in general, like if you look at someone like Samuel Herring in a wheelchair, he's never going to be well again. He's been in prison for three decades, almost four. You might, as a human being, feel more sympathy for him than you should.

Mark: No, I've been doing this too long. I've had too many cases where people like him, the DNA comes back and matches it and shows they're guilty. I guess I'm cynical in that respect. Another lesson from the innocence movement is we all make mistakes. And you have to always be willing to say, I don't always know. I don't always know. So let's try to be as objective as possible. Let's always be willing to admit when we get more information, now that we have this, my instincts before were wrong. That's another reason why wrongful convictions happen, because cops aren't trained, detectives aren't trained to fight tunnel vision. And so they go down and they get tunnel vision, they become convinced of something, and then they make all the square pegs fit into the round hole to get the person they're convinced did it. And so I'm trying to fight, it's like the opposite of that psychology. We're trying as much as we can, we're humans, we're not perfect at it, trying to stay objective, we're trying to follow the science, demeanor doesn't matter very much, we're looking at the pillars of the conviction, we're looking at DNA can give us a result, we're humble, I don't know the answer, we're gonna try to let the science tell us the answer, and we're gonna be happy with whatever result comes out.

Carol: So I'm just wondering, like, after you've done all this work on a case, When that DNA testing came back and it matched Samuel Herring, what was your reaction?

Mark: I will answer it in the abstract. I tell my students, if you're sitting around hoping that a DNA test comes back and shows somebody innocent, you're messed up. Because that means everybody got it wrong, the real perpetrators on the outside, and it's tragedy for everybody.

Carol: Do you regret taking on Samuel Herring's case?

Mark: No. I feel bad that people in the position of the victim's family have to suffer from the system. But to regret taking on his case means you don't get any innocent people out of prison. You just have to stop. And I've witnessed the suffering of so many families where their innocent family member was put in prison, and the reunions, and the healing that happens when a correction occurs. that I would not make the trade. I personally, if I was going to make that trade, that I just quit.

Carol: I just think there's just so much psychological stuff attached to this particular case, as far as Phyllis' family is concerned. You know, she was blinded in the attack. She was admired for remembering those many details that led police to where the rape happened. Yeah. She never wavered. And she sounds like she was amazing.

Mark: She was an amazing person. I've always saw that, yeah.

Carol: So I just, I know that some people may wonder if you take that into account as well as this victim was. I mean, she never varied her story. The details were always the same. You couldn't shake her. On cross-examination, you couldn't shake her.

Mark: So in no way, like, if he had—DNA had been—proven him innocent, does that reflect on

Phyllis Cottle as a person? Right? I mean, it's not like it would have been her fault. This had—you know, she's an amazing person irrespective of this. But you either decide that it's worth it to get innocent people out of prison, If you accept that, then there's a process that's to it. If you're a realistic person, you realize that you don't know the answer. before you do the DNA testing. If you're a careful, thoughtful person, you say that we do the best vetting we can and try to be as careful as we can. And the prosecutors agreed with us that there were concerns and there should be DNA testing. Whether they say it publicly or not, they did. And I'm sure they were hoping it would come back and match them. And in any case, I hope it comes back and matches the person. But this is one that thoughtful people should actually, now that we have better technology, go back and test the evidence to be sure.

Carol: Thank you, Mark. I really appreciate it.