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Broken Justice Episode 3: When things go wrong – the full transcript

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Amna Nawaz: Hey y’all. This is episode three of a five part series. So if you didn’t start from the beginning, trust me, it’ll all make a lot more sense if you stop right here and go back to episode one.

Ricky Kidd: It’s, it’s been rough winding up with life without possibility of parole for something I didn’t even do.

Amna Nawaz: That is Ricky Kidd, who in 1997 was found guilty of first-degree murder and then sentenced to four life terms without the possibility of parole.

Ricky Kidd: Those were some dark times for me. My whole world was turned upside down.

Amna Nawaz: In America, the way our justice system is supposed to work is that whether you’re rich or you’re poor, whether you’re innocent or guilty, you get a fair shot when you’re accused of a crime — you get a lawyer who helps you make your case before a judge or a jury. But what happens when the police conduct a bad investigation, or they miss clues? When a prosecutor charges the wrong person and then bends the rules to make her case? And what happens when the defense lawyer — the person who’s there to catch these things — doesn’t have the bandwidth or the resources to do that?

Dan Grothaus: When you have a bad investigation and an overzealous prosecution and a lame defense…chances are you’re going to get a wrongful conviction.

Amna Nawaz: In the years since his conviction, Ricky has enlisted the help of an investigative journalist turned private investigator…

Dan Grothaus: It almost hurts me to go back over this case because this has been too long without any resolution.

Amna Nawaz: And a former public defender, turned trailblazer, in wrongful convictions — a man who’s spent his career trying to fix the wrongs created by the public defender system he used to work for.

Sean O’Brien: You have to have somebody who functions as counsel and the lawyer is what tests the adversarial system.

Amna Nawaz: And both of them say the system failed Ricky Kidd.

Sean O’Brien: A warm body with a pulse and a law license is not enough.

“Broken Justice” show theme montage:
Frank Carlson:
Do they have a nickname for public defenders?
Defendant: Oh yeah, yeah they call ‘em public pretenders
Public defender: These are my docket cases, probations.
Public defender: I have 119 open cases.
Public defender: 131 open cases.
Public defender: Hey, here’s your 200 cases. You have court in 20 minutes. It’s across the street. Go.
Public defender: I feel the stress of 150 souls on my back.
Public defender: And you know that some of them are slipping through the cracks
Automated Voice: This is a free call from
Ricky Kidd: Ricky
Ricky Kidd: I 100 percent believe that I’m in prison today because of the Missouri public defender system. [Broken Justice show theme]

Amna Nawaz: This is “Broken Justice,” a show from the PBS NewsHour about the public defender system in Missouri – and what it tells us about justice in America. I’m Amna Nawaz.

Frank Carlson: And I’m Frank Carlson.

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Amna Nawaz: Frank, after Ricky got convicted, how did he get this team to start working on his case?

Frank Carlson: Well it didn’t happen overnight. Ricky sat in prison for six years before he found this private investigator named Dan Grothaus. Dan was the first one to really dig into what happened to Ricky.

Frank Carlson: Nice to meet you.

Dan Grothaus: You’re kinda easy to spot.

Frank Carlson: When I met him at my hotel in St. Louis, I asked him to bring his box of Ricky’s case files.

Dan Grothaus: So this is when he started pestering me with letters, and every once in a while, he would call me in the office.

Frank Carlson: Ricky started writing Dan back in 2003, six years after he was convicted. And he kept writing him, and writing him, and writing him, begging him to look into his case. And if there’s one thing I’ve learned about Ricky in talking to him over the last year, it’s that he is tenacious. But Dan knew Ricky couldn’t afford him — though Ricky tried. He sent Dan a check for $500.

Dan Grothaus: [laughs] Never cashed that check. And I’ve explained this to Ricky at the very beginning – I said look, you know if you’ve got $50,000 or if you’ve got a relative who won the lottery, you know, I’ll work for money, but you know I can’t do this and take your money.

Frank Carlson: A couple of years after Ricky first wrote Dan — his business had been doing well. So he decided to take some time between Christmas and New Year’s to poke around Ricky’s case.

Dan Grothaus: What I would first try to do is prove he was guilty because that might be the easiest thing for me to do. And if I could prove he was guilty then you know we would just cut to the chase and we’d call it a day. If I could not prove he was guilty then I would make every effort then to prove he was innocent.

Frank Carlson: And as Dan went through Ricky’s case — going back to talk to witnesses, combing through old police records — he pretty quickly saw that things weren’t adding up.

Dan Grothaus: The more I dug into it, it was pretty clear to me that, that he was in fact innocent and we knew who the actual actors were.

Frank Carlson: In 2006, Dan took what he’d found to Sean O’Brien — and as you heard earlier, he’s a law professor known nationally for his work overturning wrongful convictions, especially for people on death row.

Sean O’Brien: Dan Grothaus started the investigation and then came to me and kind of begged me to take the case. I looked it over and I agreed to do it.

Frank Carlson: Ever since, Sean has represented Ricky as his pro bono lawyer, working alongside the Midwest Innocence Project.

Amna Nawaz: So Sean getting onboard with Dan says they both believe something went wrong, right? What did they find that made them believe that?

Frank Carlson: Well, there were a lot of things, but you can break them down into three basic categories: First there was Ricky’s alibi — it was rock solid. Number two, the state’s case was weak. And number three, Dan and Sean found evidence of who actually committed the murders. And that evidence didn’t point to Ricky. And both Dan and Sean say Ricky’s public defender, didn’t do enough to investigate any of those things.

Dan Grothaus: I would bet that an investigator that knew what they were doing could have spent 20 hours, on that case and come up with some reasonable doubt, maybe 30 hours. So.

Frank Carlson: Is that a lot or, is that?

Dan Grothaus: No, that’s not a lot! I mean that’s three or four days with lunch.

Amna Nawaz: Three or four days with lunch. That doesn’t seem like a lot, but there’s a lot to unpack there, so why don’t we start with the alibi?

Frank Carlson: Sure. Ricky says that on the day of the murders, he was with his girlfriend, Monica Grey, all day.

Dan Grothaus: Not all alibis are created equal. Some alibis are better than other alibis.

Frank Carlson: And you thought Monica was a good alibi?

Dan Grothaus: I, I knew Monica was a good alibi.

Frank Carlson: In court, Ricky and Monica both told the same story. They started the day with some errands, including a trip downtown to Ricky’s sister’s office — just after 11 a.m., which would put them miles away from the murders around the time they were taking place. Afterward, Ricky and Monica drove out of the city to the County Sheriff’s office.

Ricky Kidd: I knew that I had wanted to go apply for a handgun permit.

Amna Nawaz: Oh that’s right — because part of Ricky’s alibi was that he had been at the Sheriff’s Office on the day of the murders right?

Frank Carlson: Right – and so, Ricky filled out this handgun application.

Ricky Kidd: I couldn’t get it. The lady had told me that I needed a voter registration and some other document, I believe.

Frank Carlson: So Ricky left without the permit. And later that evening, after he got home, Ricky says he found out that George Bryant — a drug dealer and a friend of his — was dead. And so was another man, Oscar Bridges.

Ricky Kidd: I sat there shocked.

Amna Nawaz: And people backed up Ricky’s story of where he’d been that day?

Frank Carlson: Yeah. Ricky’s sister, his sister’s coworker, and other people they saw that day.

Dan Grothaus: There was no wiggle room. You know, Ricky was with Monica. Monica was with Ricky, you know, for like six hours before and six hours after and during the crime. So it was a complete alibi.

Amna Nawaz: So Ricky has an alibi, people back it up. Why didn’t it fly in court?

Frank Carlson: Well, Dan says that comes right back to Ricky’s public defender: Teresa Anderson, and what she didn’t do to interview and prepare the most important alibi witness, Ricky’s girlfriend.

Monica Grey: She prepped me for court, the day of court.

Frank Carlson: Here’s Monica remembering the run-up to the trial.

Monica Grey: The only time I met with her was to give her Ricky’s clothes for court, but she prepped me for court the day of .

Frank Carlson: Monica says they didn’t go through what questions Teresa would ask her on the stand, what the prosecutor might ask her during cross examination, how Monica could prove she was remembering February 6th, the day of the murders, and not some other day.

Monica Grey: I said “what am I supposed to say?” she was like, “the same thing you told the police and that’s it. That’s it.” She’d didn’t prep me at all.

Frank Carlson: I spoke with Teresa about this. And she disputes Monica’s account. She says they spoke multiple times by phone before her day in court. But whether or not Teresa and Monica spoke before then, Sean O’Brien — Ricky’s lawyer now — says Teresa didn’t start working on Ricky’s case soon enough.

Sean O’Brien: You can’t really develop a theory of defense. You can’t investigate what witnesses tell you to see if you can independently verify it.

Frank Carlson: And remember, Sean isn’t just a wrongful conviction lawyer and a law professor — he’s also a former public defender. And so he knows how the system works. And Sean and Dan both say that Ricky’s public defender started investigating too late to effectively corroborate what the alibi witnesses were saying — not just Monica — but the others too. And so that made it easy for the prosecution during trial to poke holes in their stories. Sean says, the cross examination of Ricky’s witnesses went something like this:

Sean O’Brien: “When did you first find out you were going to be a witness?” “Well, last Thursday.” “Well how do you remember in March of 1997 where you were on February 6th of 1996? How do you know it’s the right date?” “You know…” and the witness doesn’t have a good answer for that.

Amna Nawaz: So it’s easier for the prosecution to knock down the alibi witnesses.

Frank Carlson: Exactly. But there was still that visit to the Sheriff’s office — if Teresa Anderson could prove that Ricky and Monica visited the office on that day, she could prove they were telling the truth about where they were on the day of the murders.

So to do that, she introduced the gun permit application — the one Ricky had filled out. And sure enough, the date on that application said February sixth — the day of the murders. The computer timestamp on that application also matched that day — February sixth.

Amna Nawaz: That all sounds good for Ricky and exactly what Teresa should have been doing.

Frank Carlson: Right, but then she called on the supervisor of the Sheriff’s Office to verify that information. And the supervisor told the jury that the timestamp on Ricky’s application didn’t mean it was submitted on that day – it could have been submitted the day before. It also could have been sent in by mail. And so it didn’t really prove anything.

Sean O’Brien: When it comes to handling paperwork, never talk to the supervisor.

Frank Carlson: And the reason for that, Sean says, is that the supervisor wasn’t the person who actually handled the applications.

Frank Carlson: But when Sean and Dan went back to investigate, they found the clerk who actually processed the applications, in that Sheriff’s Office, on that day. And that clerk said that, based on the timestamp, Ricky’s application had to have come in on the day of the murders, and that the office almost never got them by mail. It backed up Ricky’s alibi.

Sean O’Brien: It just makes it more and more likely that Monica’s telling the truth about what day it was that they went out to the Sheriff’s Office.

Frank Carlson: But because Teresa didn’t present those things in court, the jury never heard them. After the break, we’ll tell you about the second problem with Ricky’s defense — the failure to knock down the prosecution’s story.

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Amna Nawaz: Ok, so we just went through the first failure in Ricky’s defense. What about the second one?

Frank Carlson: Yeah, the second was the failure to knock down the state’s case. The state relied on two eyewitnesses. The first was the daughter of one of the victims — the little four-year-old girl who made that 911 call. Four days after the murders took place, she was brought in by police to look at a photo lineup. And Ricky Kidd’s photo was there.

So was the photo of a guy named Marcus Merrill. That little girl picked out Marcus Merrill right away, but she didn’t pick out Ricky. And remember, witnesses said they saw three black men fleeing from the scene of the crime. Weeks went by. Police kept doing interviews, but by April they only had one suspect in custody, Marcus Merrill. So in mid-April, two months after the crime, detectives brought that little girl back for another lineup.

Sean O’Brien: It’s the little girl in a room with people who know who they want her to pick.

Frank Carlson: And she’s already seen a photograph of one of these guys in the video, Ricky.

Sean O’Brien: Right. Ricky’s the only one in the lineup who she had also seen in the photograph and allegedly she picks him out.

Frank Carlson: Fast forward to the trial. The prosecutor calls the little girl up in court.

Actor playing Amy McGowan: When is your birthday?

Actor playing girl: April 8th

Frank Carlson: There’s no audio available from this trial, so what you’re hearing is a reenactment of the court transcript.

Actor playing Amy McGowan: And that’s coming up soon, isn’t it?

Actor playing girl: Yes

Frank Carlson: The prosecutor asks the little girl to look around the room and point out the men who were at her house that day. Ricky Kidd and his co-defendant, Marcus Merrill, are sitting right in front of her. The defendants are both black men. And their lawyers, sitting right next to them, are white women.

Sean O’Brien: You couldn’t have a more suggestive lineup, you know, because you’ve got a lineup consisting of white lady, black guy, white lady.

Actor playing Amy McGowan: Can you look around, and do you see either of those two men that were at your house that day with your Daddy?

Frank Carlson: She looks around.

Actor playing girl: No.

Frank Carlson: She doesn’t point to anyone. The prosecutor asks her again.

Actor playing Amy McGowan: You don’t see them? You don’t see them here?

Actor playing girl: No.

Frank Carlson: The little girl doesn’t point at anyone. She never identifies Ricky in court as the killer.

Amna Nawaz: So the state only had two eyewitnesses and one of them fails to identify Ricky in court. So what about the other one?

Frank Carlson: Yeah, the second was a neighbor of the victims. And he did pick Ricky out in court. He told the jury he saw Ricky come out of the victim’s house that morning like, quote/unquote, “the terminator” and gun down one of the victims in broad daylight with a gold-plated .45. And, as you heard in the last episode, that neighbor said he didn’t just think it was Ricky. He told the jury he was, quote/unquote, “2,001 percent” sure it was Ricky. And so, it was crucial for Ricky’s public defender to impeach that witness, to knock down his story. And she tried to do that, but she didn’t get anywhere.

But then later, when Dan and Sean went back to investigate, they found so much evidence that she could have used to raise questions about this witness and his story. starting with the fact that other witnesses said they hadn’t seen that neighbor standing where he said he was — right in front of the house when the murders took place.

Dan Grothaus: Where he was would have a significant impact on how well he was able to I.D. who he saw.

Frank Carlson: Also, Sean eventually learned that the neighbor and a friend were smoking weed on the morning of the murders. That didn’t come out during trial either. And so Teresa could have used that fact — plus everything else — to undermine his story. And to undermine the state’s story of what happened.

Amna Nawaz: Ok, now we’ve gone through the alibi and the state’s case. But there was also a third problem — the question of who actually committed the murders. Now Dan and Sean figured out who the real killers were, right?

Frank Carlson: Right. So once Dan became convinced that Ricky wasn’t involved he started looking at the people Ricky said committed this crime, including his co-defendant, Marcus Merrill. And buried in police reports was the name of a friend of Marcus’ who made everything clearer: Eugene Williams.

Dan Grothaus: I remember meeting with him. He did not want to be found.

Frank Carlson: Eugene told Dan that on the morning of the murders — Marcus Merrill was at his house when two other men came over: a father and a son. Eugene said Marcus talked with the father and son about robbing a drug dealer just like George Bryant, one of the victims. And the father had a gun, a .45 — the same caliber found at the crime scene and the same kind that the neighbor, the state’s eyewitness, described.

Amna Nawaz: Wait, what this guy is telling dan seems like it alone could have changed everything.

Frank Carlson: Exactly, and that’s what Dan, and Sean, and Ricky think too. And what’s crazy is that even though Eugene was listed in police reports, he said detectives never talked to him, and neither did Ricky’s public defender, Teresa Anderson. When I met Teresa earlier this year, I asked her about all the things that Dan and Sean turned up.

Frank Carlson: How does looking at that kind of information, how should we think about that?

Teresa Anderson: I mean, yeah, I think there’s always things that you miss. I mean there’s no question about it. My investigator and I did go out to the scene numerous times but a lot of a lot of times people aren’t around or they don’t want to talk to you because they know why you’re there and um, there are going to be people that you miss. And that’s just the way, unfortunately, that it is.

Frank Carlson: You know, Ricky when I’ve talked to him about this, he said when he was first convicted he thought that he had a bad lawyer.

Teresa Anderson: Oh, yeah I’m sure he did.

Frank Carlson: He said but he says he’s since learned that he didn’t have a bad lawyer, he had a bad system.

Teresa Anderson: Yeah, yeah.

Frank Carlson: And that his lawyer didn’t have time to do all the things that he would have wanted her to do.

Teresa Anderson: Yeah.

Frank Carlson: Do you think that’s true?

Teresa Anderson: Yeah, I think that’s absolutely true. I mean I will say that the verdict was shocking to me. I mean it was, you know, emotionally hard. So I can totally see where he walked away going “Oh my god, I cannot believe this just happened to me, you know.”

Frank Carlson: After this conversation with Teresa, I kept thinking about how hard it is to separate the individual lawyer from the system that she’s operating in. I mean, like so many other public defenders, Teresa went into this line of work to help people like Ricky. And by all accounts, she went on to become a great lawyer. Sean O’Brien, Ricky’s lawyer now and a former public defender, he sees that same conflict.

Sean O’Brien: I feel bad for the public defenders, I really do. They’re great people and they have good hearts. And I feel terrible for ‘em but I feel worse for their clients.

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Amna Nawaz: All the failures we’ve heard about so far were things that happened in Ricky Kidd’s original trial, well before Ricky ever met Sean and Dan.

Frank Carlson: Right. But things kept going wrong for Ricky when he tried to appeal his conviction — in large part because he had to rely on the same public defender system that had just failed him the first time. In his appeals, his new public defenders were supposed to investigate Ricky’s claims and look at the things that went wrong. Here’s Sean O’Brien again.

Sean O’Brien: One of the most glaring things about this case is that in all of Ricky’s appeals where he is represented by public defenders, the word “innocent” does not appear one time. There is nothing they filed that raises any question that might make a judge deciding the case think there may have been a mistake here.

Amna Nawaz: His own lawyers never raised the possibility that their client was innocent?

Frank Carlson: Yeah. And Sean says if you don’t raise these kind of claims in your appeals, it makes it much harder to argue them later. And so with most of Ricky’s appeals denied, as far as the state was concerned, his case was done. The process had worked. A convicted killer was behind bars for the rest of his life.

Ricky Kidd: It’s, it’s been rough, it’s been rough winding up with life without possibility of parole for something I didn’t even do. It fell on my face and I just caught myself trying to deal with it the only way a 21 year old thought or knew how to deal with it.

Frank Carlson: Early on, Ricky was held at Missouri’s maximum security death row facility. And at first, he didn’t think he’d make it.

Ricky Kidd: It was dark even when it was light. It was cold even if it was hot outside. And it was definitely scary for a 21 year old, well 22 at that time, who’d never been in prison.

Frank Carlson: But Ricky was determined to keep working on his case, finding some way to move it forward — and to prove his innocence. And in the meantime, he also started working on himself. He says he took all the classes he could in prison, then he started teaching them.

Ricky Kidd: That’s what I think I’ve been successful at, despite the ugliness of what a wrongful conviction can produce. It also, for me, I allowed it to produce some good things and perhaps transferable to where, if I am able to reintegrate back into society, I can continue along the same line and be useful in some type of way.

Frank Carlson: It was during this time that Ricky convinced Dan Grothaus, the investigator, and Sean O’Brien, the lawyer, to take on his case. They worked for years and finally, in 2009, 13 years after Ricky was first locked up, a federal court agreed to hear his innocence appeal — the kind he’d been waiting for. And Sean thought the hearing was off to a great start. On the first day, as they were waiting for a witness to arrive, the judge said: “You know, one thing that really worries me about this case is that actually he, Kidd, he really had poor representation. God almighty.”

And then he continued: “The Supreme Court says that everybody has to have counsel. But I’m looking forward to the day that something goes up there and says they didn’t get any representation because the states won’t provide money for our public defender system.”

Once the hearing got started, Sean called Dan to testify to everything he’d found, nearly a decade after the murders. He introduced testimony from the clerk from the Sheriff’s Office. He called on Eugene Williams, the man who saw Marcus Merrill and the father and son at his house on the morning of the murders, and who said Ricky wasn’t there. He called on the neighbor, the state’s primary eyewitness, and poked holes in his story.

And then, the big moment.

Actor playing Sean O’Brien: Would you state your name please?

Actor playing Marcus Merrill: Marcus D. Merrill

Frank Carlson: They called Ricky’s co-defendant, Marcus Merrill, the other man convicted of this crime.

Actor playing Marcus Merrill: Basically, I guess, when he got up, you know, he ran into me and my gun went off.

Frank Carlson: There’s no audio from this 2009 hearing, so again what you’re hearing is a reenactment of the court transcript. He told the court in vivid detail how he and the father and son committed this crime together.

Actor playing Sean O’Brien: In fact, did you see Ricky Kidd at any time on February, the sixth,1996?

Actor playing Marcus Merrill: No sir.

Actor playing Sean O’Brien: He was not involved in this at all, was he?

Actor playing Marcus Merrill: No sir.

Amna Nawaz: Wait a second. So on top of everything else, you’ve got Marcus Merrill saying he committed this crime with two other men and that Ricky had nothing to do with it. So how is Ricky not immediately released?

Frank Carlson: Yeah, it’s shocking, but the judge said that Ricky still had a legal problem. And it’s pretty technical. In this Federal Court district, the rules said that if your lawyer in your original trial could have discovered this information and didn’t — let’s say, because she was too busy handling other cases — well then, tough. Those things can’t be introduced at this point.

Amna Nawaz: That seems wild. But, ok, what about Ricky’s co-defendant and what he just said? Marcus Merill — that Ricky wasn’t involved at all – that was new wasn’t it?

Frank Carlson: You’re right, that was new, that was the first time he’d said that in court. But then the judge said it wasn’t reliable because, in his eyes, that co-defendant had a reason to lie, like the possibility of getting a reduced prison sentence. And so the judge said he didn’t buy it. Here’s Sean O’Brien:

Sean O’Brien: You know I have never been more discouraged by an order. It’s difficult to explain to lay people, um, and not because lay people aren’t smart, because the rules are stupid, alright. It’s just the ability to emotionally detach from what’s really at stake: the value of Ricky’s life.

Ricky Kidd: They spit back in my face. “You had lawyers.” “I had your failed public defender system lawyers though.” “Oh yeah, well, oh well.” And then brush that under the carpet and somehow that’s supposed to be ok. It’s not ok and it should never be ok in the, in the nation that we live in, that should never be ok.

Dan Grothaus: It baffles me, you know, how the system could have not allowed Ricky out that day.

Frank Carlson: That was 2009. Ten years ago. But Ricky’s team didn’t give up. They’ve fought for years to get Ricky back into court, and this year, they finally got another hearing — another chance to lay out all their evidence and prove Ricky’s innocence.

Amna Nawaz: Meanwhile, as Ricky’s been fighting his fight, public defenders in Missouri have been been fighting their own battle to take control of their caseloads.

Steve Hanlon: At some point, when you get your face rubbed in the mud enough, you’ve got to stand up and fight back.

Amna Nawaz: And they told us they’ve found changing the status quo has a cost. And not all of them are willing to pay it.

Michael Barrett: How do I convince someone to work here? “Will I be able to practice ethically?” “Not always, no.” “Am I risking my law license by working here?” “Yeah, probably.” …I wouldn’t work here.

Amna Nawaz: That’s on the next episode of “Broken Justice.”

“Broken Justice” is hosted by me, Amna Nawaz, reported by Frank Carlson and produced by Vika Aronson. Editing by Erica R. Hendry and Emily Carpeaux. Engineering by Tom Satterfield.
Production assistance from Chris Ford. Fact-checking by Maea Lenei Buhre, Amber Partida, and Harry Zahn. Taka Yasuzawa and Alex Sugiura composed our theme music. Additional music by Blue Dot Sessions. The actors in this episode were: Dave Coles, Don McClerken, Gretchen Frazee, and Keri Gray. Thanks to Keri’s mother LaTasha Jones.

Sara Just is our Executive Producer.

Let us know what you think of the show and send your questions to podcasts@newshour.org. Tweet us at newshour and leave us a review in apple podcasts. Check out the show extras on our website: pbs.org/newshour/podcasts.

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