How Innocence Becomes Irrelevant (No Way Out, Part III)

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Since Benjamin Spencer was tried and convicted for the murder of Jeffrey Young three decades ago, lots of new evidence has surfaced that undermines his conviction.

If you've listened to our last two episodes, you've heard much of that new evidence, but a jury never has.

Yet, Spencer's only potential path to a new trial is razor-thin.

What would it take for this evidence to be reconsidered?

And what does that mean if he's innocent?

This is Radio Atlantic.

Hi, I'm Matt Thompson, Executive Editor of The Atlantic.

Today we're bringing you the third and final episode in our three-part series on the story of Benjamin Spencer.

If you haven't, I highly recommend that you go back and listen to parts one and two.

In those two episodes, you've heard a lot the jury that sent Spencer to prison did did not hear in his trials.

You've heard, on tape, as two of the three living witnesses who testified against Spencer go back on their testimony to our reporter, Barbara Bradley Hagerty.

You've heard about an alibi witness Spencer's jury never knew about.

You've heard a plausible alternate theory of who murdered Jeffrey Young, and you've heard two of that person's friends say he did it.

All of this was enough to convince the foreman of the jury that sent Spencer to prison, as well as the Texas judge who considered his case, that he is innocent.

In the next few moments, Barbara Bradley Haggerty will answer the question we started with, the question that haunts a number of people who've heard this story every day.

Why is Spencer still in prison with little hope of a new trial?

Then, we'll be joined by Jeffrey Goldberg and Alex Wagner to discuss Ben Spencer's story and what it says about justice in America.

Here's Barbara.

As spring turned to summer and fall to winter, Benjamin Spencer began to worry.

After two years in the county jail, he asked to transfer back to prison.

At least the place was familiar, less noisy, better suited to permanent stays.

I guess I began to lose hope

the long I was in the county jail because I began to wonder why, what's taking the court of criminal appeal so long?

And so I'm thinking

they must be looking for a way not to

grant me the relief.

And so my worst fears became my reality.

Three years after Texas Judge Rick Magnus declared Spencer innocent, the Court of Criminal Appeals rejected his recommendation and denied Spencer a new trial.

That's a pretty rare event.

Judge Magnus has presided over thousands of cases, and he's been overturned only five times.

In this case, he thought they were flat out wrong.

But at the district attorney's office, prosecutors were celebrating.

Faith Johnson, the current DA, says the decision enshrined respect for jury verdicts and justified their position in the case, which had been a thorn in their side for more than two decades.

This wasn't our first rodeo.

We've been going at this since what, 1987?

And we've had two trials, we've had writ hearing, we've had the Court of Appeals.

So you have all of this that's gone on for so many years that, and

this decision has been upheld for so long.

And for one man to say he should get a new trial, well, he he was wrong.

And that's what we're saying.

I mean, we love Madness, but he's wrong.

The eight judges of the Court of Criminal Appeals, all Republican, all elected, most of them former prosecutors, required only 21 pages to dismantle Spencer's arguments.

The burden of proof had flipped from prosecution to prisoner.

Having lost at trial, Spencer is now guilty until he can prove he's innocent.

And before he can prove he's innocent, before he can get a new trial, he must provide new evidence, unassailable proof that he did not commit the crime.

The problem was it just wasn't newly discovered evidence.

That's kind of what really hurt Mr.

Spencer the most.

Judge Larry Myers wrote the majority opinion.

We're sitting at his kitchen table, his three yellow Labrador retrievers snoring softly at our feet.

Bald with a fringe of white hair, Myers seems grandfatherly, earnest.

We talk about a key part of Spencer's case when a forensic visual scientist said that the eyewitnesses who testified testified against Spencer could not have identified him accurately given the lighting conditions at the time.

He says those lighting experts did not offer new evidence, just a new way to look at old evidence.

And that evidence, the crime scene at the alley, had changed since 1987.

Gladys Oliver's house had been torn down and rebuilt.

A new shed had been constructed.

Trees were bigger.

What about the testimony that another man, Michael Hubbard, was the actual killer?

Isn't that new new evidence?

Basically, it's just a theory.

It's just a proposition.

It wasn't conclusive by any means, and it probably wasn't anywhere near as strong as the actual evidence of Mr.

Spencer's guilt.

So what would constitute new evidence?

Of course, it's a matter of interpretation, since Judge Magnus believed the visual science passed the test.

But the appellate court sets the bar higher.

New evidence must be something that does not change and was unavailable at the time of trial.

The gold standard is DNA.

In particular, DNA that's never been tested.

But it could also include other irrefutable proof, such as security camera video that's never been seen.

Myers says it's incredibly difficult to win a new trial.

The Texas judges call it a Herculean burden.

And that makes sense.

Think about it.

If every inmate who claims he's innocent could win a new trial, the system would grind to a halt.

But Judge Myers concedes the bar is so high that innocent people are surely in prison.

He's witnessed that himself.

And there's some actual instance cases where we denied relief that I just went, I was totally in,

I was so mad about that

I

was not happy about that we did it, but there's nothing I can do about it.

So but if you are Ben Spencer and you are innocent or someone else and you are innocent, where does that leave you?

Oh, I don't know.

Mr.

Spencer has been in jail for a long time.

Mr.

Spencer may be eligible for parole.

But you feel that you all

reached the right opinion here.

I hope we reached the right opinion.

You know, you can't ever say with absolute certainty.

You don't want anybody in jail

who is innocent.

And I feel like it was the best we could do based upon what was brought to us at that particular time.

I just,

I hope Mr.

Spencer,

I'm not saying I hope he's innocent.

I'm just saying that if he is,

I just hope that we did the right thing in this particular case is what I'm hoping, and

that Mr.

Spencer has hopefully been rehabilitated.

Did you hear that bit at the end?

Mr.

Spencer has hopefully been rehabilitated.

To Judge Myers, what matters is that the court properly followed a legal process.

The question of whether Ben Spencer is actually innocent or guilty seems to fall outside of the court's authority.

And now that the appellate court has denied Spencer a new trial, his future falls into the hands of the Texas Board of Pardons and Paroles.

They too have no role in determining whether Spencer is actually innocent or guilty.

It's up to them to decide only whether he's rehabilitated.

Spencer comes up for parole every February when the Texas Board of Pardons and Paroles considers his petition.

But every year, since he became eligible a decade ago, they've turned him down.

His supporters are baffled by this.

He has a near-perfect record, three infractions in 30 years.

His co-defendant, Robert Mitchell, was released on parole back in 2001.

He died of a heart attack soon after that.

The parole board might look more favorably on Spencer if he showed remorse for the crime.

But consider what that asks of him.

I mean, it's hard to have remorse for something you didn't do.

The parole board's decision is no doubt influenced by the family of Jeffrey Young, the victim.

Young's family has a right to object to Spencer's release.

Jay Young says they do most every year.

If he did get parole, I'd be very upset, but it wouldn't change my life because my dad still isn't.

He won't come back either.

He's not getting parole.

On February 15th, 2018, just a few days ago, the parole board ruled against Spencer.

It's not surprising, since the district attorney told the parole board she believes Spencer is guilty and should not be released.

The next time his case comes up is February 2019.

The parole board does not explain its decision.

The only clue comes from the cryptic statement denying parole based on the nature of the crime.

Well, that's never going to change.

Jim McCluskey of Centurion Ministries.

What happened to Jeffrey Young, as tragic and as brutal as it was,

will never change.

So

I'm just hope and pray that someday the parole board will get tired of denying him and will

eventually let him go home.

There is one more route to a new trial, although it's a long shot.

Spencer could petition for another hearing, But to get into court, he must find what the court considers new evidence, 30 years after the crime, when he's behind bars.

All the evidence presented in Judge Magnus' hearing, the lighting experts who undercut the eyewitnesses, the new alibi witnesses, the alternative suspect in Michael Hubbard, even the evisceration of the jailhouse informant, that's old news now.

Spencer's team threw everything into that hearing 10 years ago and won.

But that means that Texas's highest criminal court has now seen that evidence and decided, against Judge Magnus' recommendation, that it's not enough to trigger a new trial.

In that sense, Attorney Cheryl Watley and Investigator Jim McCluskey say, the blessing has become a curse.

Ironically, that's the catch-22.

We need new evidence.

We need the proverbial breakthrough.

Short of an absolute, unforeseen miracle, there's not much daylight.

In reporting this story, investigator Darrell Parker and I dug up some intriguing items that I initially thought might constitute new evidence.

For example, we tracked down Israel Williams, the younger brother of the alibi witness, Christie.

Israel swears that he saw Ben Spencer at his house with his sister around 9.30 or 10 that night, about the time that Jeffrey Young was being attacked a couple of miles away.

If Israel is telling the truth, it bolsters Spencer's defense.

Parker also used a new technology called photogrammetry to recreate the crime scene on his computer.

Using photos of the alley taken in late 1987, police sketches, and measurements that Parker took this summer, he made a three-dimensional reproduction of what eyewitness Gladys Oliver could see from her window.

He plugged in all the natural and man-made objects in the area, trees, a shed, a large camper parked near the alley, and concludes, There's no way that Gladys Oliver could have seen Ben Spencer get out of a car.

Armed with the photogrammetry, Parker paid a visit to Jimmy Cotton two weeks ago.

Remember, he's one of the eyewitnesses who corroborated Oliver's account.

Parker told him the computer reproduction indicated that Gladys Oliver might have been lying, and he asked if Cotton had lied as well.

Cotton said nothing for a few seconds.

Then he told Parker that he did see the BMW that night, but didn't see anyone get out of it.

He said that a day or two later, Gladys Oliver told him to say he saw Benjamin Spencer.

Last week, on February 13th, Cotton drove to Cheryl Watley's office and signed an affidavit to that effect.

Afterwards, Watley turned on Parker's iPhone.

So can you just tell us your name, please?

Jimmy Lee Cotton III.

Mr.

Cotton, did you testify at Ben Spencer's trial?

Yes, I did.

What did you say at the trial?

I said I seen him get out of the car.

When you say you saw him get out of the car, was that true?

No, it wasn't.

What wasn't true about it?

I didn't see anybody get out the car.

So why are you telling us now?

Because it's the right thing to do.

He should not be locked up with something he didn't do.

In the affidavit, Cotton states that Gladys Oliver instructed him and another young man in the neighborhood to tell the police he had seen Spencer get out of the passenger seat.

We know from police notes that she did direct the police to these two teenagers.

You may notice a possible inconsistency here.

Cotton told me the police fed him Spencer's name.

Now he's saying Oliver did.

Perhaps both are true.

After Cotton signed the affidavit, Parker asked why he lied.

Because Miss Gladys said go along with her story.

Why didn't you choose to tell the truth at the trial?

Because they said if we changed our story, we was going to get locked up.

Earlier, Cotton had told Parker that Oliver mentioned a big reward, but officially at least, he would not admit he lied for the money.

So in the past few months, we've dug up several pieces of new evidence.

Let's review.

1.

Israel Williams confirmed he saw Spencer about the time Jeffrey Young was being assaulted miles away.

2.

A digital reproduction suggests that Gladys Oliver's view of the alley was blocked and she could not see anyone get out of the BMW.

And now, 3.

Jimmy Cotton has sworn that he never saw Ben Spencer, but that Gladys Oliver orchestrated the whole thing.

Parker visited Oliver at her apartment a few days after Cotton confessed to lying.

She sounded confused, he said, and she claimed she could not remember a thing about that March night in 1987.

And yet, the DA and the Court of Criminal Appeals may not consider any of this new evidence.

It may not meet Texas's Herculean standard to win a new trial.

Now, let me get a little meta here.

Spencer's story reveals a collision in the legal system, truth versus evidence.

It could be that the truth is on Spencer's side, but there's no evidence to confirm it, no path to proving his innocence.

In other words, once the legal system finds him guilty, it's as if that judgment is set in amber, and you need an extraordinary instrument, an evidentiary cudgel like DNA, to free him.

Benjamin Spencer rises early, around 1.30 in the morning.

He dresses quietly, trying not to disturb the 110 other prisoners who share the large dorm room.

Each man has his own cubicle with a bunk, a table, and a locker box for his possessions.

By 4 a.m., he has arrived at his job as a general clerk in the prison's education department, filing papers papers and running errands.

He works until mid-afternoon.

He likes the staff he works with.

As to the other inmates, Spencer keeps to himself.

He'd made friends, but they've all been paroled by now.

He tries not to dwell on what he's missed in the past three decades.

Creating a family with Deborah, finding meaningful work, helping his parents as they age.

The stuff of life that has passed him by.

I tell people all the time, this is not living, this is what I call existing.

You exist

for people who've been involved in spencer's story there's something unforgettable about it something bothersome a pebble in the shoe even for people who think he's guilty the detective the prosecutor the district attorney the appellate judge spencer's case is lodged in their memories 30 years later now consider the lineup of people who believe he's innocent the judge who reconsidered his case the witnesses who originally testified against him the jury foreman alan Ledbetter.

There's rarely a day that goes by where Ben doesn't cross my mind.

I drive by the courthouse where we convicted him each morning in my commute to my office.

You know, I have daily reminders

of his plight, just recognizing that

it's

so wrong.

More than 18 months after Spencer had been declared innocent, a few dozen dozen of Spencer's family and friends gathered on the steps of the Dallas courthouse.

Alan Ledbetter stood off to the side.

A group of teenagers from Spencer's childhood church began to sing Hard Fighting Soldier, and soon the crowd took up the gospel hymn.

I ask Ledbetter if he remembers the words.

He frowns, concentrating, a little embarrassed.

Haltingly, he whispers the verses to himself and then closes his eyes.

Battlefield, I am a hard-fighting

He knows the hymn from his church choir,

sitting with him years later.

It's as though he's back on those courthouse steps.

You gotta walk right and talk right and sing right and pray right

on that battlefield.

You gotta walk right and talk right and sing right and pray right.

Right on that battlefield,

I'll keep on bringing soul to Jesus by the service that I yield.

A white face in a choir of black Texans, the jury foreman who once passed judgment on Spencer and now wants him freed.

In my hand, the sword and shield.

I got a helmet on my head.

In my hand, the sword and shield.

I'll keep on bringing soul to Jesus Jesus by the service that I yield.

Ben is my hard-fighting soldier.

In that moment, I wonder once again about the sly nature of truth.

There is an answer in this story.

Either Ben Spencer killed Jeffrey Young or he didn't.

But without DNA or other irrefutable evidence, the facts are hidden.

Neither the math nor the emotional intensity helps us here.

On both sides, there are prosecutors, judges, jurors, witnesses, family members, and friends who would swear by their position.

It's possible we will never know the truth, and this uncertainty comes at a cost, not only to Spencer, but to Jeffrey Young's family, who are the only verifiable victims.

Sometimes people look at this as winners and losers.

Jay Young.

Based on decisions by public figures,

DAs, judges, court of criminal appeals.

But that's never going to change the fact that we're the losers here, that we lost our father.

30 years after Benjamin Spencer was condemned to life in prison, he and his supporters are left with a battered faith in the justice system.

But what of that larger faith?

Jim McCluskey says he's never questioned the religious call that redirected his life at Trenton State Prison nearly four decades ago.

But after spending half his life trying to free people who paid for crimes they did not commit, McCluskey is hounded by doubts in the existence of of a just God.

If he's real,

or she, but if God is real,

then why?

What's the purpose?

What's the redeeming value of all this unjust suffering?

And I don't have an answer.

And by the way, I've studied this issue at the seminary.

None of the theologians over the millennia can answer that question.

But he pushes through, his faith bent but not broken, because an imperfect faith is better than none.

It's a dilemma that Ben Spencer understands well.

I don't want to die in this place.

I mean, I don't want this to be my life.

I don't want this to be on my life's end.

What about his initial conviction that the truth will set you free?

He says that's already happened when Judge Magnus declared him innocent.

And that's why I can go to sleep at night because knowing the truth will prevail whether I ever get out or not.

The truth has been said.

The truth has been spoken and the truth has been acknowledged.

And although I'm not fully satisfied with that,

I find satisfaction in it.

In the course of my reporting, I filed a request with the Dallas County Crime Lab.

I asked if they had preserved any biological evidence, specifically DNA, from the crime scene.

Spencer's trial predated widespread DNA testing, and no one would have thought to look for it back in 1987.

I was stunned to see a notation in the medical examiner's report that the lab may have preserved fingernail clippings from Jeffrey Young's right hand.

There is a chance that Young scratched his killer and captured his DNA.

I asked District Attorney Faith Johnson if she would agree to have the clippings tested.

Absolutely.

Because we don't want any innocent person to be in prison.

It's not clear when that testing will happen.

Of course, the DNA could have degraded.

It could point to Benjamin Spencer, or it could point to someone else.

Without exoneration by DNA, Spencer's future rests in the hands of people who have been disinclined to grant him freedom in the past.

Will the district attorney, Faith Johnson, consider or dismiss Jimmy Cotton's recantation or the other evidence we've turned up in the past few months?

Would the judges on the Court of Criminal Appeals consider any of this new evidence, evidence that meets its Herculean burden, if Spencer's case ever got to them?

For now, Spencer will wait another year, hoping that somehow the DA and the parole board change their minds and deem him worthy of freedom.

Because barring a DNA miracle, it seems that Benjamin Spencer has no way out.

Stick with us.

In a moment, we'll discuss Spencer's story with Barbara and my esteemed co-hosts, Jeffrey Goldberg and Alex Wagner.

Charlie Sheen is an icon of decadence.

I lit the fuse and my life turns into everything it wasn't supposed to be.

He's going the distance.

He was the highest TV star of all time.

When it started to change, it was quick.

He kept saying, No, no, no, I'm in the hospital now, but next week I'll be ready for the show.

Now, Charlie's sober.

He's gonna tell you the truth.

How do I present this with any class?

I think we're past that, Charlie.

We're past that, yeah.

Somebody call action, aka Charlie Sheen, only on Netflix, September 10th.

Hello, Barbara.

Hello, Matt.

Welcome.

Thank you.

It's good to be here.

And now we're joined by Jeff.

Hello, Jeff.

Hi, Matt.

And Alex over in New York.

Hi, Alex.

Hi, guys.

So,

quite a story.

Could I do a step back question?

Let's go all the way back, Barbara.

This is an amazing story, and you tell it amazingly well.

I want to know what feelings you're left with after doing this remarkable story, not only about your protagonist, but about the system.

Yeah, it feels a little Kafka-esque.

Now, we have to be really sure.

I have to state this clearly.

I am not saying that Ben Spencer is innocent.

We do not have, you know, absolute proof of that, so I just want to get that out there.

And yet, if he is innocent, it seems like the system is really set up.

to keep an innocent man in prison.

And, you know, I think about the fact that he has had all of these things done for him.

Centurion ministries investigated the case for four years.

A lawyer was hired and got the case before a judge who then decided that he deserved a new trial based on actual innocence.

We've investigated this.

NPR did a story.

All of this stuff has happened.

And yet it could be that at the end of the line, you know, the system will keep him in prison.

And so for me, it's a little bit of a discouraging outcome.

Barbara, let me ask you the question that I think the typical listener wants to know from you, who's been so deep in this.

What do you think?

I recognize that journalistically you're not going to issue your own exoneration, but what do you actually think happened?

So I wake up at night thinking about this because I go, oh my gosh, I break out in a cold sweat and I go, oh my gosh, what if I'm wrong?

What if he is actually guilty and that DNA shows that, right?

I think about that.

And then I add up everything and I look at the witnesses who have recanted, the witnesses that have come forward that were never testified in the trial, the judge that says he's innocent,

the two people that say their friend confessed to this.

And I go, okay, the math adds up.

I think he's innocent.

Barb, you're waking up in a cold sweat at night.

What about the people who have recanted their testimony or come out and said, you know, what I said wasn't true,

who effectively put this man in jail?

What has the emotional tenor of those conversations been like?

Right.

That's been really interesting.

Of course,

one of the people won't speak to me.

That's Gladys Oliver.

She's kind of the state star witness.

But the other two I've talked to have been really, really interesting.

So I talked to the jailhouse informant, who was the only one to connect Ben Spencer to the actual assault of Jeffrey Young.

And he told me, no, you know what?

Ben Spencer really never told me that.

I don't think Ben Spencer is guilty at all.

And then he said, so...

What's happened to Ben?

And I said, well, he's in prison.

He's in prison for life.

And there was this really really long silence.

And then I said,

how does that make you feel?

And there's a long silence.

And then he goes, like shit.

And then Daryl Parker talked to Jimmy Cotton right after he had recanted and said that Gladys Oliver orchestrated the whole thing.

And after that,

Jimmy Cotton said to Daryl Parker, who was the investigator, he said, so do you know Spencer's family?

And Daryl Parker said, yes, I do.

And he said, would you tell them that I am so sorry that I've done this to him?

Wow.

One of the themes that you highlighted in the story, Barb, that really sticks with me is

the way that West Dallas, this predominantly black part of Dallas, was read superficially in some ways by the folks outside it.

So Jeffrey Young lived and worked in another part of the city, but most of the folks who've been at the center of this story, most of the witnesses in his trial, the two friends of Michael Hubbard who pointed the finger at him, most of them come from West Dallas.

And in this milieu, they drew all sorts of distinctions about themselves and their social circles that others, that the outsiders in this story, did not draw.

We heard a reference by a police officer to one of the alibi witnesses for Ben Spencer that the jury didn't hear from, Sandra Brackens.

We heard them refer to her as a crack whore.

Right.

And then we hear from her on tape, and she's just this, this, you know, this sweet, haunted, eloquent person.

We hear a lot of folks draw a distinction between Ben Spencer, who had gotten in trouble with the cops once or twice for joyriding,

but had never been convicted of a violent crime.

Right.

and Michael Hubbard, who actually had not only dabbled in robbery with his friend, but also had been convicted years later for these brutal assaults.

And I'm curious about now, as you've gone back and reported this story, has the racial picture within Dallas, the way that, for example, the police officers see this part of the city, has that changed?

Yeah, it has changed, but it took a long time to do it.

I mean, we know that Dallas is known for community policing.

David Brown, the police chief, was highly respected.

So things have changed.

But let's just, if we can, go back to that era because it took a long time for it to change.

So I don't know if you remember the movie A Thin Blue Line, the documentary.

Right, exactly.

That was Dallas in the 1970s.

And in that case, you had the, you had a, it was in this case a white man, poor white man who was convicted, wrongly convicted of murdering a policeman.

What was interesting about that and what the movie showed is that there was this culture,

this attitude of the police and the prosecutors in Dallas in the 1950s, 60s, 70s, and 80s.

Why those four decades?

Because there was a DA named Henry Wade, and he basically was DA for almost four decades.

And under him, the ethos was solve a crime very quickly and get as long a sentence as you possibly can.

So in some cases, the sentences were more than a thousand years, right?

And so that was the ethos back then.

And when you think, when you look back, now we can look back at that time, and what we see is that there are a lot of exonerations from people in that era.

So far, 17 exonerations, and there's got to to be more, because a lot of the people convicted in the 50s, 60s, 70s, and 80s are dead or on parole or something.

They're not worth reinvestigating.

So it's a lot of people who've been exonerated from that era.

And that was the era of Ben Spencer.

How did race play into that era, to the Wade era?

So most of the cops were not black.

And this was at the height of the crack epidemic when Ben Spencer was arrested.

And so there was this sense, and I've got this from people who are historians of the city, that kind of any minority will do.

If the minority didn't do, if that black person didn't do this crime, he did this crime.

And so you might as well put him away because we're saving the city trouble.

So there was this real antagonism between...

Was that ever articulated by Wade or others, or was it just sort of a generally assumed

posture?

It was generally assumed, but

Wade tried to get blacks off juries, for example.

He actually was struck down by the Supreme Court for trying to get blacks off juries.

So it was a very, very racist era.

Barb, the other sort of factor in this is also class.

You mentioned that the Young family was friends with Ross Perot, who at the time was really powerful.

So not only was it a question of racial dynamics, but they were richer.

They had more power in the criminal justice system.

Given all that, are you surprised that the Young family hasn't in any way cooperated with the sort of reinvestigation into Spencer's guilt or lack thereof?

Yeah, that's a really hard question.

I mean, I think what's going on with the Young family is that they want closure.

I mean, I've talked to them many times, the sons many times, and what they say is, look, two juries convicted Ben Spencer back in 87 and 88 because he got a retrial.

And, you know,

those juries heard all of the best evidence and, you know, they got it right.

And their view is, gee, people changed their,

they changed their testimony later, they changed their accounts later.

You know, the jury foreman who believed they made a big mistake, he had kind of buyer's remorse, he feels guilty.

So what they say is, you know, they got it right the first time and we trust the legal system.

And so far, the Court of Criminal Appeals and the District Attorney have agreed with them.

They have no doubts that you can see?

I can't see any doubts.

Do you believe that they have no doubts?

I think they're beginning to wonder about all the evidence falling apart.

And it's a hard thing.

I mean, I think that

the question of what their mind tells them about everything that they've heard and how they grapple with their experience is probably

we can't see inside of that, but I imagine that, I mean, our brains are, among other things, they are rationalizing machines.

Right.

Well, also, I mean, just imagine the pain and the anguish that they've gone through.

And then to have the chapter reopened and to somehow be almost implicated in this crooked, if it is crooked, processing of a man and the throwing away of decades of his life is just adding trauma on top of what is a horrible, horrible thing to befall a family.

Yes, and I think one thing that they really object to is they say this story has always been couched, and I don't think we did it, but this story is usually couched as, you know, the wealthy, young, white professional family versus the poor blacks the guy in the BMW versus you know the poor blacks and and I don't think I don't think that's actually the story because we're not implicating blacks who shouldn't be implicated when it's actually a white.

You know, we're not doing that.

Because the other, much more viable suspect in many people's mind is a black man, right?

So we're not, this isn't really a racial issue, but they've felt that it has been tinged with race and wealth and

prominence.

And I think that bothers them.

I mean, it is a racial issue in the sense, I'm not talking about the young family.

And obviously they...

Criminal justice is a very important thing.

They lost a family member.

It's horrifying.

And to understand their psychological processes, that's another subject entirely.

But it is a racial issue because I just find it hard to believe that in Texas, a

white middle-class person, certainly,

would be treated as, well, if he didn't do this, he did something else.

Right.

Maybe I'm being naive about it, but I just think that there is a double standard that we're talking about.

Trevor Burrus, Jr.: And there is.

And you see it kind of in the sentencing.

So a black man who killed a white man got the death penalty, but a white man who killed a black man wouldn't.

So there was always disparity there.

Yeah, and that persists.

Well,

and just to put a finer point on it, you mentioned this and the proliferation of plea bargains in terms of getting felony convictions.

And this is a sort of institutionalized system whereby, especially black Americans, whether guilty or not, are made to enter into plea bargains just so they don't serve extended jail sentences.

I mean,

94% of felony convictions at the state level are the result of a plea bargain, and 97% at the federal level.

Those are staggering figures, and they are what people of color have come to expect.

Innocence has nothing to do with it.

Yeah, and

one of the alternate paths that this story might have taken is that back in 1988, before his retrial, Benjamin Spencer could have accepted a plea bargain and could have said, regardless of the truth, that he was guilty.

And he might have been out years before now.

He might have.

In that scenario.

And he said, and of course he said, no, I'm not going to plead guilty to something I didn't do.

He was also a man of kind of great faith.

And so he thought the truth will set me free.

But the other reason he didn't want to do it is he said, look, if I plead guilty to this and I'm out in in five years, I'm still going to have a target on my back.

Every time some crime occurs, the police would look at him and say, gosh, we railroaded Spencer once, we're going to do it again, and that he would always be their prime suspect.

If he actually admitted guilt, do you think he would get out the very next year?

He would have.

And expressed remorse whether he felt it or not for all the obvious reasons.

You mean now?

Yeah, now, now.

Like, if he actually went in front of the parole board and said, you know what, I did it.

I feel terrible.

I'm sorry.

I've done 30 years.

Please let me out.

Do you think he'd get out?

I don't think he would.

And I'll tell you why.

Okay.

Because the DA is opposing it.

She wrote a letter saying he shouldn't get parole, and also the family opposes it.

And those two are very, very powerful.

But remorse is a big factor when a parole board looks at these people, right?

It is.

And most people get parole after 20 years.

He's now been in for 31 years.

But there apparently are very powerful, like the DA doesn't always intervene, and she has in this case.

And the family doesn't always come forward and say, you know, he shouldn't get out.

My dad didn't get parole.

And so you have these very powerful people coming forward and saying, no, I don't think you should give him parole.

Aaron Powell, if the wrong person was imprisoned for the murder of Jeffrey Young, that error was also not costless.

When I think about other alternate stories and other ways that this could have gone, if Michael Hubbard was in fact the person responsible for Jeffrey Young's murder, then if he had been in Spencer's place, then he would not have been out of prison to have brutally assaulted those people in Dallas those years later.

Absolutely.

I mean, when you think about it,

so Michael Hubbard gets out in 1992, then the string of brutal robberies begins, 10 of them.

Very much, very the same M.O.

as what happened to Jeffrey Young.

And so 10 men, executives, are like beaten brutally.

Some of them can't ever work again.

If Michael Hubbard is the killer, not only has Jeffrey Young's family suffered, but 10 other families have suffered too, needlessly, if he had been convicted the first time if he were the actual killer.

As it pertains to

the DNA piece of this, Barb,

part of the problem here is there was not a lot of forensic evidence.

Then there's

bad DNA collection.

Have we gotten better and is it less likely that things like this happen in the future?

Oh yeah.

So back then they didn't even know about DNA.

The first DNA case in Texas was in 1989.

So they didn't even know to collect for DNA.

It just, people have kind of lucked out if Dallas happened to keep any biological evidence from cases long ago.

They lucked out because there might be DNA there.

Now what happens is police actually collect DNA evidence right away, right on the crime scene.

So what that means is that the number of cases, the number of DNA exonerations is going to dwindle.

In fact, this is a problem for the Innocence Project because

what they have really based their exonerations on is DNA evidence.

Well, as more and more of the people who had

convictions back in the 70s, 80s, 90s, where they're now finding DNA, as more and more of these people get parole or die or whatever, you're going to have fewer and fewer DNA exonerations.

And so what's going to happen is people are going to have to do, like the Innocence Project, they'll have to do kind of the gumshoe investigation that places like the Centurion Ministries does right now.

Trevor Burrus, Jr.: Based on your reporting on this story and stories like this, what percentage of people who are in jail for felonies, in prison for felonies, do you think might be innocent?

That's a huge question.

No, it is.

And I've actually tried to get the answer.

The answer is frightening.

It's one, obviously.

Right.

And I've got to beg, you know, ignorance on this point because I've asked a lot of experts about it.

And what people say is: look, most cases don't have DNA.

And what that means, most crime scenes don't have DNA.

And what that means is that there are, and people have say tens of thousands of people who claim they are innocent, but there is no DNA in their case.

And so there's no path forward.

So there was a witness or an opposing witness, and that was convicted based on witnesses.

Right, right.

And we know that DNA shows that, you know, witnesses lie, eyewitnesses don't see correctly, you know, they see the wrong, identify the wrong person, forensics is faulty.

We see all these problems, and it's brought out by DNA exonerations.

Oh, my gosh, all these people were wrong.

But if you don't have DNA, then there's no one to say, oh my gosh, all these

jailhouse informants and eyewitnesses and all of that, all these people were wrong if that DNA was wrong.

Has anybody ever tried to put a number on this question?

Well, I've talked to people who have tried to, and the figure I come up with is tens of thousands.

Wow.

That's depressing.

How do we fix that?

Well, you know, and here's the issue.

In Ben Spencer's case, he's had this huge investigation and he's had us look at all of this, and still he is stuck, right, because there's no DNA.

Think of all those people who have no one looking at their case, who don't have pro bono lawyers looking at this, who don't have a major magazine looking at it.

They don't have a chance.

Yeah.

Aaron Powell, Jr.: So DNA seems to be this sort of key to

Spencer's potential release, and yet there is no DNA.

And yet the very sort of premise here that DNA is the be-all, end-all is a fundamentally political belief, is it not?

That's true.

Or it serves political purposes.

I mean, I think DNA is the best forensic tool that we have.

It's just, it is a revolution.

It's called a revolution for a reason.

However, it has become a

kind of a thorn in people's side because DNA has so increased the expectations that it's really hard to exonerate anyone without DNA.

DNA gives political cover to the judges and to the district attorneys because if it turns out that it's Michael Hubbard and not Ben Spencer, then everyone can throw up their hands and say, oh my gosh, the DNA points to Michael Hubbard and not Ben Spencer.

Of course we're going to let Ben Spencer out.

But if there's no DNA, then the district attorney and the judges, all of whom are elected by the way, they can just kind of slide away from the issue because they don't want to be looked at as soft on crime.

They don't want it to come back and haunt them and be used in political ads that, oh gosh, you know, this judge voted to let a murderer out of prison.

So what's happened with DNA is it's raised the expectations and it's politicized the process.

To go back to the point about plea bargains for a moment, last year Emily Yaffe did a story for us, which we titled Innocence is Irrelevant, about the plea bargain.

And one of the implications of cases like Spencer's is

his is the scenario that prosecutors threaten defenders with every day.

They say, you know, listen, you can let this go to a jury trial, and who knows what may happen.

You may be in prison, as Spencer has been, for most of your life.

Or you can take a plea.

Guilty or not.

It's a more surefire thing.

We will tell you with a strong degree of confidence how long you're going to spend in prison.

So in a perverse way, Spencer's case itself feeds into

the broader problem.

I mean, if you were faced with that choice where someone was presenting you with a surefire sentence that certainly is longer than

you may feel you deserve, but still shorter than most of your life.

Right, right.

That's a really great point.

And there's something else that's interesting about this case.

I've thought about this a lot.

You can look at all of the players and say that there are no bad guys.

No one is to blame.

So you look at the detectives

and you say, well, they followed the best leads they have.

You look at the district attorney, the prosecutors, and you say, well, they built their case on the detective's work.

You look at the jury and they say, you say, well, okay,

they came to their decision based on the evidence that was presented to them.

You look at the DA afterwards and you say, well, okay, she doesn't want to, or they don't want to kind of revisit this case because there's no DNA evidence in it.

You look at the Court of Criminal Appeals.

Oh, he didn't meet the Herculean burden, which is essentially DNA evidence to prove he's actually innocent.

What you have here is a process where

everything can be perfectly done.

The procedures can all be followed perfectly.

And yet, at the end of the day, you may have an innocent man in prison for the rest of his life.

But this entire edifice is built, the entire edifice you described is built on the testimony of a person who could be the villain, right?

That's the same thing.

A woman who says she saw something that science tells us couldn't be seen.

Right, right.

And I've thought about Gladys Oliver as well.

And you know, the only thing I can say,

we don't know exactly what's in her mind right now, and we can't get at it because it's too foggy, right?

But the one thing you could say is she did see Ben Spencer earlier in the evening, and maybe she conflated, you know, the times.

You don't know.

Although Jimmy Cotton's assertion that she orchestrated everything

to point toward Ben Spencer, that's pretty damning in my opinion.

So maybe there is one person about that.

Yeah.

Looking at people acting

in terms of malice, that seems fairly malicious.

Aaron Powell, Jr.: Yeah, there may not be clear villains, but

there are folks who might not be thinking as much about the consequences of their actions, such as in this case, possibly the police.

Yes, yes.

Detective Briseno, Jesse Berseno,

he had a number of leads that he just never pursued, including Michael Hubbard.

He was told about Michael Hubbard...

less than a month after the murder of Jeffrey Young.

So he just made choices to believe some people and not believe other people.

And the only people he believed were those who pointed toward Ben Spencer's guilt.

And the only people he didn't believe were those who pointed away from it.

So I think,

and it's not like this was last-minute breaking news for him right before the trial.

You know, Michael Hubbard's name comes up.

No, he had the name less than a month after the murder.

So I think there is a bit of at least laziness or tunnel vision here.

What did he say about that omission?

We heard a little bit from him about, you know,

that you believe

some witnesses lie, what have you.

But

what did he say about the things that he did not put in front of that jury?

Well, so he didn't really want us to talk at all, right?

It was like pulling teeth getting him to say anything.

This was a case that he is,

that haunts him, basically, and not in a good way.

It's like it always comes back to bite him.

And so basically all he would say is, you know what?

People change their story.

The best testimony is right after, he implied, the best testimony is right after the killing, you know, that when you get the witnesses right away, that's the best testimony.

And he said, you know what, if people say that,

you know, we fed them information, which a number of people did, that we fed them Ben Spencer's name, well, they're just lying.

You know, they're just lying.

And he didn't really want to talk very much about it, to tell you the truth.

Barb, Ben Spencer

has a son, right?

That's right.

A son who was

he all a son who he almost raised, who grew up, who met his father father on the other side of prison plexiglass that's correct right what is that what what is that relationship now and to what degree is his son

has his son taken up this fight

so that's the hardest thing for ben spencer is um not being able to to be in his son's life um they have a cordial relationship but not a really strong one because because ben spencer hasn't been there for him during all the kind of turning points of one's life now he's this man is 31 years old or just about 31 years old

You know, he has a fine relationship with his dad, but it's not close.

And he has not really taken up the fight.

The person who's taken up the fight the most is Ben Spencer's ex-wife, Deborah,

who has remained loyal to him, even though she divorced him.

He urged her to divorce him because he didn't want her life to be ruined by his incarceration.

But she has remained loyal to him the entire time.

But the great sadness for him is that he hasn't been able to be part of his son's life.

Aaron Powell,

you've spent plenty of time with Ben Spencer himself at this point.

And both he and Jim McCloskey have been men of faith.

How has this experience, and how does Spencer's, the prospect of him spending more of his life in prison,

how has that adjusted his faith?

Yeah,

it's really hard.

I mean, I think he is dispirited, especially after the 2011 denial of a new trial.

And what he says is, you know what, the truth may not have set me free, which is something that he was hoping, but the truth has been spoken.

That's what he says, that the judge, you know, the judge found me innocent and that I deserved a new trial.

Most people think that I am innocent.

The truth has been spoken.

And so he kind of has to cling to this idea that

he's been vindicated in some way.

Jim McCluskey is also interesting.

He was a seminarian 40 years ago,

and now he's freed, gotten freed 61 people off of death row and life sentences and all of that.

Hundreds of years, wasted years of lives, right?

Like those 61 people represent hundreds of years of wrongful incarceration.

And what Jim says is he thinks, you know, what is the redeeming purpose of all of that waste?

What is the redeeming purpose here?

And what he has come to is this notion that C.S.

Lewis talks about about a bent but not broken faith.

That

you just

put one foot in front of the other.

Gosh, my faith is a little bit tarnished.

Gosh, you know, there's a story in the gospel where a man comes to Jesus and says, please heal my son, you know, if you can.

And Jesus says, what do you mean, if I can?

And the guy goes, Lord, I believe.

Help me with my unbelief.

And what Jim says is, 40 years ago when I was a seminarian, I could say, Lord, I believe.

Now, after all these years of seeing all this tragedy and and all these wrongful convictions, all I can say is, Lord, I believe, but help me with my unbelief.

So, Barb, this is a story that you've said has stuck with many of the people who've been involved in it.

And now, I imagine it has stuck with our listeners,

for good or ill.

But thank you for telling it.

Well, thank you for giving me the chance to spend so much time

telling the story.

It's been amazing.

It's remarkable.

It's really one of the most moving moving and interesting stories we've ever told of the Atlantic.

So thank you for doing it.

Well, thank you.

Barb, you said that you wake up in a cold sweat.

There's no one that listens to the series here, parts one, two, and three, and does not come away with a bruise on his or her conscience about how we can do this.

to American citizens, to men and women who are part of the fabric of this country, to wrongly potentially incarcerate them for life.

It's staggering.

Yeah.

Once again, no keepers this week, but I think we've just heard quite a bit to keep.

Barb, thank you again.

Thank you.

Jeff, Alex, till next time.

Thank you.

Thanks.

Before we end this series and roll the credits, a footnote.

We received a letter from a fellow inmate of Benjamin Spencer's, and we thought it was worth sharing part of that letter with you.

Again, we can't say whether Spencer is innocent or guilty, so the thoughts in this letter represent only the perspective of its writer, a man named John Adams.

He says, quote, I spent 12 years at the H.H.

Cofield unit with Spencer, and I'll never forget the first time I saw him.

Another prisoner pointed him out, that's Spencer, the barber.

He's innocent.

An outsider wouldn't understand how extraordinary those words were.

Among inmates, a guy claiming innocence is such a bloated cliché, it's beneath contempt.

We all know there are countless innocent men inside, yet it's still a surprise when someone we've known for years gets exonerated.

Even after my 21 years of incarceration, Spencer remains the only one I've ever known to be exempt from this general skepticism.

That in itself speaks volumes about Spencer.

I understand that Ms.

Haggerty's focus in her splendid article was the obstacles facing Spencer and other likely innocents in their quest for post-conviction justice, but I wish she had written more about why innocent people get convicted in the first place.

Former Attorney General Janet Reno summed it up pretty aptly when she said that justice is available only to those who can afford lawyers.

Like hundreds of thousands of other Americans, Spencer was stuck with an overworked court-appointed defense attorney who had little chance or incentive to interview eyewitnesses in depth, check credibility, and find motives for lying.

Court-appointed attorneys also lack the time and resources to uncover facts that tunnel vision police ignore and wind-motivated prosecutors withhold.

And many lack the showmanship necessary to inspire juries.

Jury trials are not as objective as the ideal.

People have always relied more on emotion than on logic in deciding what to believe.

Frankly, Spencer is merely a statistic, one of thousands of innocent victims trapped in a state-sponsored nightmare for no crime other than being poor.

This series, No Way Out, was reported by Barbara Bradley Haggerty over a period of months, produced by Kevin Townsend and edited by Libby Lewis, Kevin Townsend, and myself, Matt Thompson.

No Way Out is adapted from a story that first ran in the January-February 2018 issue of The Atlantic.

That story was edited by John Swansberg and Denise Wills, with additional editing and fact-checking from Scott Stossel, Yvonne Roltshausen, Ellie Smith, Janice Wolley, Karen Ostegren, Jake Polini, Katie Daniels, and Eli Lee.

The theme song of Radio Atlantic is John Batiste's exemplary rendition of The Battle Hymn of the Republic.

We very much want to know your thoughts and questions after listening to this story, so please leave us a voicemail with your contact information at 202-266-7600.

You can find this show at facebook.com/slash radioatlantic and theatlantic.com/slash radio.

In the episode description, you'll find a link to extensive show notes and the original magazine story online.

We very much appreciate it when our listeners rate and review us in Apple Podcasts and subscribe in their preferred podcast app.

But we appreciate you all for listening.

May you find truth and may you find freedom in it.

Till next time.

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