Episode Transcript
[00:00:00] Speaker A: Foreign.
It's Lacey, and I'm Lauren, and welcome to another episode of the Llamas podcast.
[00:00:11] Speaker B: And so today, Lacey's gonna tell us about one of her own experiences that kind of relate to the book club we've been doing about wrongful convictions and getting those overturned and how that process actually has played out in real life for her, not just in a book, but we're going to start. Her case is about a dui. So first, I think a question we all wonder with DUIs that we've received from other people is, does the breathalyzer actually work? Can it be manipulated? Like, is it safe for me to blow those type things? Sure.
[00:00:44] Speaker A: So I think overall, the Data Master is a good tool, but that is when you first follow the proper procedures, right? Just like with several things you think of.
So what Lauren's referring to is I have a DUI trial coming up, and so I've been prepping for that, and I was telling her that.
So with the Data Master, there are certain. There's an owner's manual, right? And there's certain protocols you're supposed to do. So the officer is supposed to instruct someone to give a long, continuous, steady breath because it's trying to get one liter of. Of error. So if they don't give proper instructions, it could cause the machine not to accept the sample correctly.
There's also a solution that goes into the Data Master. It has to be changed ever so, like, so often. It has to be kept at certain temperatures. That, too, can affect the test. But there's records that an attorney can get behind that to see if the Data Master was working appropriately. So, you know, we think about how doctors, like, collect our blood or, you know, our urine sample, stuff like that, and get it tested, and so that way it's not contaminated and stuff like that. Think about that when you're thinking about the Data Master, right? There are things that can. Can contaminate, essentially that number that pops out to make that number not be accurate. But if it's handled correctly and the machine is working correctly, I think overall, it is a good tool. It just. It has to be done by those standards, I believe, to be admissible and be a good test result.
Without going into detail. I mean, I took a weekend class on this and got my certification, so I could go into so much more, but to try to keep it simple in this episode, I think that would be my answer.
[00:02:39] Speaker B: So question. This isn't like on alcohol, but in general kind of testing with drug testing, is it true? Like, I Don't know if you know this, but, like, if you do eat like a poppy seed bagel, will that mess up your drug test?
[00:02:53] Speaker A: I don't, I've never seen it. I have heard that as well, so I don't know.
What I can tell you about Your analysis with DUIs is it is really hard to prove a good bit of drugs as far as impairment, because if it just comes back that it's in your system, you know, we have some drugs that stay in your system like 30 days. Like, marijuana can stay in your system up to 30 days. So if someone is arrested on suspicion of DUI and takes the urine test and it comes back positive for thc, it doesn't say when the marijuana was consumed. Right. It could have been done two or three weeks ago, which would be no, you know, that would not be an evidentiary fact factor in a, in a dui. So, you know, there's. That's one interesting thing to talk about with, with drug tests and DUI is it's sometimes hard with urine tests to prove, you know, when a drug was consumed, since some stay in our bodies longer than 24 hours.
[00:03:58] Speaker B: I hadn't really thought about that overall because, like, yeah, say you smoke pot yesterday afternoon, you're completely sober by the time you get in the car today, right? But you're right, like a urine test would definitely still show that because it hasn't had time to fully filtrate out your system, but you're not high, you're not under the influence. That's interesting to think about. So can you side topic then. Can you refuse a urine test?
[00:04:28] Speaker A: You can.
In my.
If I had a client and their facts were that they had not smoked for several hours prior to the stop and they had not had anything to drink and they blew a zero. Right. Or a 0.0, 1.02, something really low that would not indicate impairment of alcohol. I think I would recommend a urinalysis because the only urinalysis that have come back have proven my clients are not guilty of dui. The one. Now, if you have any other drug, I would not say this. So I'm saying solely if marijuana is in your system, you have. So it can come back as what's called hydroxy or carboxy thc. Hydroxy is the active metabolite. So if it comes back hydroxy, that test can be used to be introduced as potential evidence for driving under the influence because it indicates within a closer time frame to that analysis being done or the urine being taken, whereas carboxy that could be up to a month, you know, in your system. And so all the urinalysis I have seen, I've always been carboxy. And the cases that I can think of that I've come back as a 0.0. So no alcohol impairment, and there's nothing on the urinalysis other than marijuana have been dismissed because they've been carboxyl.
[00:05:53] Speaker B: One follow up and then we'll get to your case. If you test positive for having marijuana in your system, can they then arrest you for that?
[00:06:00] Speaker A: No, they can't arrest you for that. Because in South Carolina, to prove simple possession of marijuana, they have to be able to test it and weigh it just like any other drug. So they wouldn't be able to test, you know, because there's going to be certain products now because the, the, there's certain levels of THC that are legal here in South Carolina. So you could potentially test positive for THC and it not be marijuana. So that's another reason that was interesting.
[00:06:27] Speaker B: So, everybody, this is your DUI drug knowledge for today. But if you do get pulled over for these things, call an attorney, don't handle it on your own. But Lacey's going to tell us a little bit about one of her cases that relates to our book club. So I will let her give us some details.
[00:06:47] Speaker A: So I today I'm going to talk about the case of Thomas James. Thomas James is a former client of mine. He did let me know that I could share his story. And you know, I somewhat of a friend, as much of a friend you can have at this point, and a former client that is incarcerated. But I do believe he is innocent wholeheartedly and, you know, look forward at the end of this, Lauren, to get your opinion on it. So this trial happened in 2014. I can't remember when the murder was, but this was out of Ory County.
But I had just been practicing. I graduated in 2013, but I got my first attorney job in 2014 of July. This was in October of 2014. So pretty quick, after I started practicing criminal, all this case came up. And I'll never forget we had a, a paralegal at the time that was hired solely to work on this case. And she came in, she was like, he didn't do it. He didn't do it. We have the proof, and the proof was in the phone records. So. So Thomas was arrested for murder, but it wasn't right after the murder. So the murder involved.
She went by Kia Pertel. I think she had a different name that's her first name. But she was murdered in her home. She had a boyfriend.
A lot of the people involved were members of a gang. I can't remember what gang, but essentially what happened is it was involving drugs.
Kier Johnson was a driver and there was somebody calling the shots. And basically he said to go to this guy's house and rob him. Right. So he was trying to put a team together. There were text messages where he was trying to get Thomas to go, and Thomas said no. So there was text messages saying he wasn't going to go, he was going to stay where he was at, which was a friend's house that they, you know, partied at, hung out at, played mu, did music and would record like rap songs and stuff. So we have that, you know, text exchange that he was not going to be going.
We, we. I believe that there were four individuals that went because that's what the eyewitness said. But the state said three people went. But essentially Kier was driving his girlfriend's van.
He took with him. What we do know is two other people to this trailer to rob this man that went by splurge.
Once they broke into the house, gunshots ensued. I don't know what happened inside because Thomas wasn't there and Kia was shot in that crossfire.
In reviewing the evidence, I don't know if it was her boyfriend's gun or the, you know, intruder's gun that honestly shot her. I think it might have been pretty proven that it was the intruders, but there was some doubt. Regardless, that wouldn't matter in South Carolina because of the felony murder rule, if you are involved in the commission of a felony, which, you know, the two intruders were, you know, and breaking into this home with firearms and opening fire, even if their intent was not to shoot and kill someone. If someone is shot, even if by the boyfriend and defending himself, they could still be convicted under murder. So it really wasn't too relevant whether the shot came from her boyfriend or the two intruders. There were two witnesses in the trailer park that called 9111 of the. They described the intruders as being short, African American, light skinned males. They collected footprints and she was killed in her bedroom. I don't think she was out and about. I think she was like trying to hide.
But when the police came out, they, the van was gone.
They did collect footprints and the, the size of the footprints was like an 8 or 9, which would corroborate the eyewitness statements that these were shorter males.
So yeah, so they. Kier Ditches the van. He gets rid of the p whoever was inside. He ditches the van, tells his girlfriend to report it as stolen. That's how they kind of hone in on Kier Johnson.
He's arrested first because they're able to connect the dots with the van to the murder and the crime scene and Kier having access to it because it was his girlfriend's. So he gives multiple inconsistent statements. He did not name Thomas or his co defendant, Carnell Graham, who I also believe is not guilty of this crime.
He, you know, wouldn't name them. Kept changing his story.
Eventually by, I think the third statement he gave to the police, he gives two names. And I believe subsequently after that, he actually got a bond and was able to get out.
He names Thomas James of Carnell Graham. So they were arrested.
As far as evidence connecting to the crime to Thomas, James is like 6 foot tall. Carnell is even taller. Carnell wore like a size 14 shoe.
Thomas was I think around a size 11. So that didn't match.
One of the eyewitnesses stated she knew Thomas from around just growing up in the area and that it was not him.
And Carnell actually had an alibi witness his. He was with his girlfriend. So during the time of the the shooting, you can see on Kier's phone multiple phone calls and you can see the location. Right. So you see this. I know the Karen retrial is going on right now. They're talking about cell phone data and stuff.
Essentially, this was used in this case as well. So when we analyzed the cell phone data, you saw that Kier Johnson was at the murder scene. His phone was pinging there, which we already knew he was there, and he admitted to it. And being the getaway driver, Thomas's phone never pinged there. It always pinged downtown where he said he was at the friend's house. Carnell's phone was silent.
It was in the middle of the night. And his girlfriend testified that it was, you know, that they were asleep because this was like at 2 or 3am so she testified that they were asleep and stuff. But his phone never pinged there either.
The state stated that Carnell's girlfriend, of course, lied to cover up for him. And actually Carnell went to the victim's funeral. He knew her and knew the family.
He was deeply upset that he was accused of killing her. So I believe saw the issue with the cell phone data because like I said, it never put Thomas at the scene. There were two other numbers, and for legal reasons and other reasons, I'M not going to name the names of the two individuals, but we did get two names linked to those phone numbers. Both of those people were light skinned African American males that were shorter.
And so that, you know, that was the whole theory of the defense's case because like I said, the only evidence that they had against Thomas and Carnell was the getaway driver cares statement to the police, naming them like the, you know, the third time he talked to them or whatever. And that was really it. But they did call a jailhouse informant, which Lauren, we've learned about those in our book club. And he said that Thomas or Carnell can't remember which one confessed to him and talked about how they drove like a blue van there and that wasn't the right color of the van. But there were a lot of little things off about the case. So I didn't think that was credible, but the jury must have disagreed.
And then they also called somebody that was apparently friends with them or involved in this gang to the sand. I don't know how they were able to get this statement, but they. He testified that Thomas didn't have his phone on him. So that is why the phone never pinged at the murder scene was because he didn't have his phone on him, which I didn't find credible. It's just rare, you know, the, the other guy does. So it was just weird. But anyways, we did have a cell phone expert and they did testify, you know, that this number was Thomas's and was never at the crime scene. We did not. I was the associate on this and there was a lead attorney and he was my boss and I think so highly of him, don't get me wrong, but we all make mistakes as lawyers and there were some mistakes made in this case by him. He did not call the eyewitness that knew Thomas.
He just didn't call her. She was there, she was under subpoena, but she was never called.
[00:15:59] Speaker B: Did she have any type of criminal record or anything like that? I was just asking because I know sometimes, you know, like when you're picking a witness, you know, that possibly things about them that could relate to their character could come in. So I didn't know if there was anything bad about her.
[00:16:18] Speaker A: No, just didn't call her. And there was no trial strategy to it and that was just a mistake he's made and he's admitted that in post conviction relief hearings that he didn't call her and that was a mistake and that he should have.
So, yeah, so that didn't Happen. We also, we had the text messages printed that insinuated, you know, that he was not going on, whatever this was. Like, it wasn't. It was very vague in the text. But you could also understand it, which I felt should have come in as evidence. And he never tried to introduce it. And I think, I mean, I think those could have been introduced through the cell phone expert because he analyzed the data and could have stated that, you know, you can't maybe substantiate the time is sent it if they're trying to say that it wasn't there. But you can say this was on his phone, you know, for the jury to take into consideration. And that was not done.
So the jury deliberated. I can't remember how long, but they did convict both Carnell and Thomas.
And like I said, the only evidence was Keyere's statement.
You know, they used a jailhouse snitch, which was a common thing. Kier got probation.
Carnell and Thomas both got 32 years in prison.
The mandatory minimum in South Carolina is 30. So after this case, I lost it. Like, of course I cried. I just remember sobbing in the parking lot. My boss decided to retire. He said he couldn't do it anymore. This case really just crushed him on so many levels. And he. By the next year, he was done practicing law completely and had moved away.
So I was digging into it. So we've talked about post conviction relief through the book club, and you've seen that in the book, and you have to prove that counsel was ineffective, but you can also bring up newly discovered evidence, and we have both of those. And Amy Zimmercheck that we had on the podcast a couple weeks ago, she handled this case pro bono for me because I called and told her all about it.
And I was digging and I can't even remember how I found it. Lauren. But there was a guy, his name was Khalil Moore, that was arrested on murder, and he sued the city of Conway for wrongful arrest on that murder charge and got a hundred thousand, $200,000 settlement, something like that.
The only person that said Khalil did that murder and was wrong and lied was Kier Johnson, the same getaway driver for Thomas. We did not have that information before trial, but that would have been impeachment testimony.
So Kier was sitting in jail trying to get out. There was a murder, not this one, a separate murder. And Care's like, oh, I, I know who did that. Khil Moore did. Turns out Kil Moore was in another state when that murder happened.
But they arrested him before they did their due diligence. They just relied solely on Kier Johnson's statement, went and arrested Khalil. Khalil sat in jail. Well, the prosecutor in that case, which is at the same prosecutor's office that prosecuted Thomas James, but it was a different attorney. She, in this case with Khalil, got information that it probably that it was not Khalil that did the murder and it was actually somebody else, and she did the right thing. And she turned that over to the defense lawyer, which was James Gmore, and she sent him a letter. And we got a copy of that letter that said, just so you know, I have been made aware that it doesn't appear that Khalil Moore committed this crime.
And I was able to talk to the lawyers that were involved in the civil suit as well as this suit. And it turns out the only evidence they had was Kier Johnson's statement that Kilmore did it. And it cost the city of Conway hundreds of thousands of dollars. Like I said, it was 100,000 or 200,000. You can find a news article in K. Moore and find out how much that settlement was. So that all happened prior to our trial. Well, as far as knowing that he lied in another murder case to get out of jail.
So this was a common scheme of his, as well as impeachment material that if he gets caught in something, he'll tell a lie to get himself out. But the jury never heard that. So I found that out. After that, the prosecutor's office at least knew that he had lied about another murder and did not turn that over to the defense.
I got all those, the records and the letter and everything like that, and gave that to Amy to put in the post conviction relief application.
So, yeah, so. So that was never told to us. We didn't find out until after. I think the murder charge for Khalil was dismissed after our trial. So that wouldn't have come in in the civil suit. But the fact that they knew that he had lied about another murder to get out of jail certainly should have been turned over to the defense.
They did have the post conviction relief hearing. They. Amy got all of this information in, called the prosecutor about not turning this over to the defense. She said she didn't know about it, but the standard is, if it's within your office, you should turn it over. So.
So, yeah. So all that was presented, and my former boss testified to the things that he should have done differently, like calling the eyewitness who described them. And there were A few other things that came up. The judge ruled against us, so said that there is no ineffective assistance of counsel. And I can't even remember in the order about the newly discovered evidence, but the order took like a year to even get because the Attorney General kept changing. So the person that wrote the order wasn't even at the hearing.
And so because Amy submitted an order, he asked for orders from both sides and ended up signing the one from the Attorney General's office denying post conviction relief to Thomas. So she has filed a motion for reconsideration. She can still appeal it.
And I don't know where we're at with that. I'll have to touch base with base with her to see and maybe I can just do a quick video to let everybody know. But yeah, that is Thomas James. And I still am doing everything that I can to fight for him and get him out because I firmly convinced that he's innocent.
[00:22:50] Speaker B: One is crazy at this point that it has been 11 years. I mean, realistically this fall, 11 years, and he will have served at this point a third of his term already.
I will say. Well, just a few things I want to say. First is just because an attorney is called into a PCR doesn't mean it's malpractice. Because there are some decisions like your boss made in the time that he thought was the best decision for the case. And it may have been the wrong decision, but that doesn't make it malpractice. It just means, like with a pcr, you could say the counsel was ineffective because they didn't call this witness. But that was just a trial decision he made. That doesn't mean he's responsible for malpractice. So I think that's important for a lot of people realize because I think like, when you are planning for a trial, you know, hindsight is 20 20, you say like, well, crap, that would have made a difference. But in the moment you might have thought, oh, we've already bored the witnesses. If we bring this up after hearing all the cell phone data, you know, just stuff like that, they can be bored. So realistically, he realized after the fact, but that doesn't mean that he was in any way malpractice or negligent. It just was not the best trial decision.
[00:24:08] Speaker A: Right.
[00:24:09] Speaker B: I just want to bring that up so people don't think like, yeah, bad if they hear an attorney has like a PCR overturned on them. It's just, it's gonna happen sometimes. But I was thinking this, like, I mean, it's Crazy to me how much a jury gives weight to that jailhouse snitch. When you have experts who believed in cell phones and you have another person that was part of the group. Just I know they didn't know he was like a snitch at that point. But like, it's not like he was a credible person. You know, he was part of this crime and you know, he snitched to get less. Like, obviously I know they can't say, oh well, he told this, so we gave him, you know, two years instead of 30 type stuff. But you know, if they're talking that a deal has been made and what.
[00:24:58] Speaker A: They do here consistently, because I've seen it, is they don't make you a deal. We're not going to technically offer you something, but we all know that they are. But they do that because they don't want the person getting on the stand and telling the defense, yeah, I'm getting a deal from this. But it's also just not fair. Right, because he did get a deal. He only got probation. And the jury didn't know that. That never came out. He did not plead until after the trial because they hang that over his head. Like, you still have to testify at trial before we will get you this deal. And it's just shady.
So the jury never heard that. Which also made me think we did talk to the jurors after, during the post conviction relief process and there were a few jurors that said this, that they regretted their choice. And there were a few that said had they known he, they he had lied before on another murder case, they would have absolutely found him not guilty.
So that changed their decision. And like I said, that was information that we didn't have and should have.
[00:26:02] Speaker B: Hopefully she can get something by the motion to reconsider. Which I know even in a civil side emotion to reconsider is hard because no judge likes to say I was wrong.
But maybe in an appeal or something like that that she can handle. And I will say post conviction reliefs are treated differently than criminal cases. They are actually under the common pleas court, so they are not as part of the criminal court. So there is a different process for them than your criminal cases. But hopefully, because in my opinion, from what you've said, it does not sound like he did this and it doesn't sound like the state met their burden of proof beyond a reasonable doubt.
[00:26:44] Speaker A: Absolutely not. I remember like the prosecutor getting yelled at by the judge, like really bad for, you know, mistakes and stuff happening. And it was ugly. And I will Say he did yell at my boss one time too, because he got so frustrated with Kier. He like slammed a binder down and the judge was like, Mr. Frederick.
So he got yelled at too. But, you know, he was really coming down on the prosecutor. And I still just.
I don't understand. And honestly, I think some of the jurors don't understand either. I think it's just such a hard experience. And I just think we have to get out of this mindset of the police and the state, always get it right, because they also have a lot of pressure right from victims families, and they want to solve it, they want to close it, and they want to say, we got justice for you. But sometimes that can create tunnel vision and biases and we have to get out of this mindset too. Well, they must have done something right? So it's okay that Thomas is in prison because he must have done something.
No, we have to get away from that too. And I think that's part of the problem of why we see cases like this where we think so much this burden was not met. But yet we had a jury of 12, you know, disagree.
I also think there's pressures, like if there's other people that think that they're guilty and then it's like some kind of split, that pressure to. Because I do know they came back at one point and could not make a decision. And so the judge gave them an Allen charge, which basically says, go try again.
And I don't like how it's worded because it doesn't say if you can't make a decision, it's a mistrial explicitly. It really puts pressure on you to reconsider. Honestly, in my opinion, that's what I think the Allen charge does. But it's legal. It's fine to do under our statute. I just disagree with it. But yeah, so they, they did reach a mark where they couldn't make a decision, were sent back, and then came back with the guilty verdict. And I think those jurors that we talked to are some that were initially probably not guilty and got convinced, you know, throughout the discussions and, and now.
[00:28:59] Speaker B: Regret that when I do think there is a lot of pressure. Like, I have never been in a jury room and I probably never will because they don't ever pick attorneys as jurors, even though I was like, one. But like, I do think there's a lot of pressure because, like, if there's, you know, nine of you majority is there and they're like, you three holdouts need to change because I need to go get dinner. My kids need me. My show's on. Like, it's just nobody. Jury rooms are not fun.
I can just tell you from clerking for a judge for two years, like, it's not a fun process for them. They are herded around like cattle. They are tired.
I'm probably the only person that wants to actually be on a jury because.
[00:29:42] Speaker A: I want to as well. It pays.
[00:29:45] Speaker B: But I do think there's a lot of pressure once you get in that jury room because people want to go home. People want to be with their families. They don't want to waste their time. And if, you know, you come in and it's not against three, those three are going to be pressured to change.
[00:30:01] Speaker A: Right. Right. So like I said, this case was going to have some of the common themes that we've had in some of the past cases. Like I said, with the jailhouse niche, you know, getting a good deal and lying on the stand and those things that we saw in the book. So, you know, I think this wraps up if, if anybody has any thoughts about Thomas's case and please share this episode because like I said, I would love to bring more light to this case because I do think that helps in fighting the system is when people step up and say, hey, I know about this and I don't like it. This isn't right. So, you know, please message me if you have any questions you let and share this, especially if you also think after hearing this that Thomas is not guilty.
So with that, we are going to we wrap up this series of Framed. And I hope one day I can come and give an update that Thomas has been exonerated. I am looking forward to a lighter topic, our next series in being millennials in this world.
So I will. Are we going to start that next week?
[00:31:14] Speaker B: Yep, we're going to start our millennial topics next week. And Kim K. If you ever watch ours and want to get all the justice projects, you know, as part of this, go ahead and help us out here. But follow us on Instagram or YouTube and feel free to email DM us. We love to hear from you.
[00:31:34] Speaker A: Yep. All right, I'll see you next week.
[00:31:36] Speaker B: Bye.
