The Luckiest of the Unlucky

0:01I'm Aisha Roscoe and this is a Sunday Story from Up First where we go beyond the news of the day to bring you one big story. we're continuing with the story of ben spencer a man who has been fighting what he maintains is his wrongful conviction and sentenced to life in prison if you haven't listened to the first part of the series please go back and listen to that that's going to give you all the background that you need now barbara as you explained in the first episode the 1990s were this pivotal time in the American justice system. It was the tough on crime era, but it was also this time of technological change, including the arrival of DNA testing, which to date has helped to free about 3 ,600 innocent prisoners.

0:54You told us, however, DNA didn't help Ben Spencer because police didn't obtain any DNA from the crime scene. So while there was new hope for many wrongfully convicted, there wasn't that hope for Ben. That's right, Aisha. And on top of this, in the 1990s, Ben suffered a lot of personal losses. I mean, think about it. He lost his freedom. He lost his future. He lost his family. When Ben was arrested, his wife was seven months pregnant. So he lost the chance to raise his son. But for him, the worst thing was the toll that his life sentence took on his wife, Deborah. I talked to her, and she told me it was simply agonizing.

1:44I remember times he would call, and I would just cry on the phone. He'd say, don't cry. You know, it's going to be okay. He would always tell me, you know, I know I'm here. I want you to live your life. I want you to do what makes you happy. And, you know, I'll be okay. So in 1993, he asked Deborah to divorce him so that she could move on with her life. And after a couple of years of resisting, she did. Ben said she finally agreed. I knew that being in a relationship with a husband that wasn't present, she couldn't be too happy like that. In fact, I've been told a number of times that when she would come visit me that she would cry most of the way home.

2:31And I mean, it just, to me, that wasn't a life for anybody. You know, that was very unselfish of him, but so painful. And he really lost this lifeline, right, with who was his wife. Yeah, absolutely. But, you know, Despite the divorce, Debra remained his most loyal and faithful friend. And, you know, they stayed in touch. Outside of Debra, was there anything else positive going on in his life? Well, not really. I mean, he had friends, but one by one, they were paroled or exonerated. And he had his faith. But there wasn't actually very much good happening in his life. That is, not until May 20, 2001, when he gets a visitor.

3:18Jim McCluskey at Centurion Ministries. As I said, Ben had started writing to this ministry in 1989, but until this day, no one had actually come to talk to him in person. And Jim left the prison convinced that Ben was innocent. If you remember, this is how I put it. I walked away thinking, we can't leave this man behind. We just can't do it. He had nothing to do with this crime. But, you know, as you said, courts are very unlikely to go against a jury decision and his appeals have been denied. So so what does Jim do? Jim goes to work, right? Boots on the ground. He and another investigator began interviewing anyone even remotely connected to the case.

4:08200 people, actually, about 200 people. And Jim's goal was just to persuade a judge to consider new evidence in what's called an evidentiary hearing. And guess what, Aisha? He does indeed find new evidence that shows how flawed the investigation was and how flawed the trial was. Okay, so tell me more about that. Yeah. So first, there is a forensic visual scientist. Now, that's a guy who's an expert on what people are physically able to see in different lighting conditions. And he showed that Gladys Oliver and the two teenagers could not possibly physically identified anyone that night from so far away.

4:51And then second, the jailhouse informant. So at trial, Danny Edwards, the informant, had said that he never received a deal in exchange for his testimony. In fact, he told the jury that he testified out of moral outrage at Ben's alleged crime. But Jim McCluskey found evidence that the informant had received a deal to dramatically reduce his sentence. He was facing 25 years. He walked out after 14 months. But then Jim found something else. He found that police had ignored a far more likely suspect, one that they actually knew about way back in 1987 before either of Ben's trials. Remember, Aisha, I told you about tunnel vision, and that's when police or prosecutors have a suspect, and that kind of closes their minds to other options.

5:40Well, here's your example. Okay, so tell me about the other suspect. Yeah. Yeah, his name is Michael Hubbard, and during his reinvestigation, Jim McCluskey talked to two of Hubbard's friends, and they told him that Hubbard had confessed to robbing and killing Jeffrey Young. He described the entire assault. In fact, in the 1990s, Hubbard used a strikingly similar M.O. to attack other victims. He would wait outside of the office for these businessmen to come out on weekends or on nights. He would hit them over the head with a bat, steal the cash and jewelry. In fact, he was actually called the Batman.

6:25And Hubbard eventually landed in prison for those later attacks. He attacked 10 men and he got a life sentence and he's still in prison. And so Jim gathered all of this evidence and presented it to a Dallas judge. So did the judge agree to hold a hearing? Yeah. You know, and it's a really fascinating story. I've never heard of this happening before. Jim delivered the evidence to Rick Magnus, who had just been elected judge in Dallas County. And Magnus began to read the documents and he actually shut down his courtroom for a week just to immerse himself in the case. And then in 2007, a few months later, he called a hearing and Judge Magnus essentially re-litigated the case.

7:15He questioned the police. He grilled the witnesses. He also brought Michael Hubbard to court, and Hubbard actually claimed the fifth. Judge Magnus goes back, considers it, and the next year, in 2008, he arrived at a really surprising conclusion, one that he told me about a decade later. My finding was that he was innocent and that he should have a new trial or be acquitted. So Judge Magnus felt that Ben was basically caught in a trap. So what it boils down to, in my mind, and this is personal, this is Rick Magnus, not the judge of the 283rd speaking. What we have is another African-American male that was in the wrong place at the wrong time, that got caught up in the criminal justice system, and is now in prison for something that anyone who was in the area could have done.

8:09Wow, that's quite a statement. Yeah, and that's not okay with me. So that's why I'm sitting here.

8:31we're back with barbara bradley haggerty and the story of ben spencer so barbara uh this judge says there's no way that ben spencer committed the crime for which he's serving a life sentence But, you know, in the movies, you would think, OK, they opened up the bars and he's let right out. But that's that's not what happened. Right. That's right. This is not a Hollywood ending, at least not at this point. So in Texas, a judge can't just release a prisoner if he believes he's innocent. It requires the approval of the high court in Texas called the Court of Criminal Appeals. So Ben had to wait in prison for three years for his decision.

9:16And then in 2011, the Court of Criminal Appeals made their ruling. They said, no, you know what? We don't agree. There's no DNA in this case. Sorry, Ben. You're going to have to spend the rest of your life in prison. I mean, that just seems so unfair, especially when you have someone who was committing similar crimes with the same M.O., I mean, and then you have a judge that reviewed it and grilled the witnesses and found Ben to be innocent. So did the higher court, in rejecting what the judge found, did they give a reason? Was it just that there wasn't any DNA? You know, the problem is that in Texas, they have a very high standard to reverse a conviction and declare someone innocent.

10:07They actually call it a Herculean burden. And essentially what they need is brand new, indisputable evidence, like DNA evidence or maybe videotape that shows up that clearly shows that this person wasn't the perpetrator, but this other person was. And none of that existed in Ben's case. You know, after the high court's rejection, everyone fighting for Ben's freedom was simply devastated. And when I interviewed Ben, it's not really something he wanted to talk about. It was just too painful for him. It's really unimaginable what he's going through. And I mean, you know, at this point, Ben's been in prison for 30 years.

10:52And I just have to say that again. 30 years, and now he's essentially being told that there's really no hope. But then there's you and Barbara, and you get involved in 2017. Yeah, I mean, basically, I was trying to tell the story of how broken the system is. I think people didn't realize that even if a judge declared a person innocent, he can't get out of prison. I mean, how crazy is that? But, you know, Aisha, I had this crazy hope of finding new evidence. So I went to Dallas and I teamed up with Daryl Parker. He's that former police officer we heard earlier who became a private investigator.

11:35I teamed up with him. Okay, so you team up with this investigator who has this experience. But it sounds kind of a little crazy because didn't Jim McCloskey, He already was looking for new evidence with his efforts. And he talked to 200 people. He didn't find anything. But y 'all thought y 'all could find something. Yeah, yeah. And the thing is, we had to provide new evidence, not just the evidence. Jim's evidence didn't even count anymore. We needed to find something new. But, you know, Daryl and I spent weeks knocking on doors all over Dallas. And I got to tell you, I was amazed at what we found 30 years after the crime.

12:23Now, you'll remember I said Ben had an alibi, a friend he was with, but no one believed her. Well, Daryl and I ended up tracking down her younger brother who said he was with both of them at the time of the assault. But he had never been questioned. So that's new evidence. We eventually found one of the original three eyewitnesses. Another wouldn't talk to us, and the third was dead. And this guy's name is Jimmy Cotton, and he was one of the teenage boys that Gladys Oliver directed the police to, if you'll recall. Daryl and I found him at his mother's apartment.

13:09Can we come in? Yeah, come on in. Please, sorry. Hi, I'm Barb. Nice to meet you. Jimmy was tall. He was real thin. He had served time in prison. Now he was in his late 40s. And he told me that he felt a lot of pressure from the authorities, from the police, to identify Ben Spencer in 1987. The police were saying they had Benjamin under investigation for this murder and all this. I told him what I did. I said, it looked like him, the one that got out the car. I said, maybe it was him. And they went on it from there. And he said something else. Jimmy said that he also felt pressure from Gladys Oliver because she wanted to get the$25 ,000 reward money.

13:50She was all about the money. That's why she wanted the money. When they said they had a reward out, she was about the money. Did she say that before the police came to talk to you? Yeah, that's how everybody knows there was a reward out. So before we left, Jimmy said he felt really terrible, really awful about helping a man, helping put a man in prison for a crime he didn't do. And later, he signed an affidavit, and he took a polygraph in which he said he had not seen Ben Smithers that night, and that Gladys Oliver had pressured him. And he passed the polygraph with flying colors. Now, you know, Aisha, I've been a journalist for more than 40 years.

14:29By now, I'm showing my age. But I learned two new things when Daryl and I began hunting for evidence. And the first is kind of a basic rule of investigating and journalism and, frankly, life, which is just show up. You'll never know what you'll find. Yeah. I mean, you just knock on the door and see what happens. Exactly. What's the second lesson? The second is that time, yeah, it may be the enemy of truth, but it's also its friend. Okay, so, sure. Evidence disappears. Memories fade. Witnesses die. But also, you know, alliances change. Marriages collapse. People's consciences begin to eat away at them.

15:14You know, a person no longer has a reason to lie. That's what we found with Jimmy Cotton and also with Danny Edwards. He was the jailhouse informant because, remember, he was the one who said that Ben Spencer had confessed to him while he and Spencer shared a jail cell. Edwards got out essentially two months after he testified at trial. Yeah, so he was the one who said, oh, yeah, he told me everything, and I was so outraged, and that's why I'm testifying. That's right. That's right. Exactly. He was morally outraged. Yeah. So we found him. Daryl and I found him, and he was living at a halfway house.

15:51Danny had spent about half his life in prison by that point, and time had changed him, and also circumstances had changed, right? The statute of limitations for perjury in Ben Spencer's case had passed. It was only five years. It had been 30 years at this point. So Danny could speak to us without worrying about being arrested or without any consequences. And what he told Daryl and me is that Ben never confessed to him. Hey, we both were playing a game. We were young, you know. It's the best lie you win. You know, that's the way it is. It's the best lie you win. So now, you know, Ben Spencer's been in prison for 30 years.

16:31No, he's in for life.

16:42How does it make you feel? Like shit.

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18:14We're back with the Sunday story from Up First. So Barbara Bradley Haggerty has gone to Dallas to reinvestigate the crime, found two key witnesses from the original trial, and they both recant. She also found a new alibi witness. So what happens now? Well, my story aired on NPR and was published in The Atlantic, and I thought naively that the attention would create kind of enough outrage that Ben might be freed. But you know what? nothing happened, right? A radio or magazine story doesn't have any weight in a court of law. And so it was interesting, just like Jim McCluskey, now I was haunted by Ben's story.

18:59So I decided to write a book with absolutely no prospect of Ben's reliefs. But then, Aisha, something finally went right for Ben Spencer. A new district attorney for Dallas County was elected in November of 2018. His name is John Crizo. He's a black man, a Democrat, a former judge, and he's seen a lot of wrongful convictions. And so Ben's legal team approached Crizo and suggested that they wanted to try basically a new legal strategy. Rather than trying to get Ben declared innocent, which had failed before, they wanted to prove that he didn't get a fair trial, And that is a much, much easier standard.

19:42So Crouseau agreed to assign one of his prosecutors, a woman named Cynthia Garza, to dig into the new evidence that Daryl and I had uncovered. And this prosecutor discovered even more evidence suggesting that Ben was innocent. The wild thing about this case is it seems like anyone who even just scratches the surface a little bit finds evidence. And all the evidence is pointing towards Ben being innocent. Like there's no evidence pointing the other way. You're absolutely right. I mean, people keep finding holes. And Cynthia Garza discovered yet another hole. So as a prosecutor, she had access to all the police and prosecutors' files over the years, which, you know, journalists and defense attorneys don't have.

20:35So when she went through the files, she found that not only had Gladys Oliver taken money from Crime Stoppers, that's the reason the original conviction was vacated, if you'll recall, but she also received$5 ,000 to$10 ,000 from Ross Perot and lied about that too. This is how John Curzio put it. We know she's a liar. We've had it all along. We just weren't honest about it. And so finally, finally, finally, after all of these years, the district attorney said this man should be released. So on March 12th, 2021, Ben Spencer walked out of his cell. He met up with Deborah, and the two of them walked into the main lobby of the jail.

21:24Now, for some reason, the guards had allowed more than 200 people into the lobby of the jail. That never happens. And they were cheering and high-fiving, and they went crazy when they saw Ben, right? It was this incredible scene. It was like a Disney movie, right? And then Ben and Deborah, they stopped, and then they looked at this crowd, and then they began to slowly thread their way through the crowd as if the seas parted. So this is the movie ending that we've been wanting, right? We wanted the movie ending, and we're finally getting it. Not yet. Not yet. Oh, my goodness. To be clear, this was a conditional release because at any moment, Ben could be sent back to prison for life.

22:11It all hinged on the same high court that had denied him in the past, the Court of Criminal Appeals. In this court, these appellate judges, they're all Republicans. Most of them are former prosecutors. And they waited another three years to make their decision. But even with this Damocles sword hanging over Ben, he did his best to kind of move on with his life. He got a job from a man who believed he was innocent. He made up for lost time with his son who was, get this, 34 years old at that point. But the happiest thing he did was to remarry Deborah in January of 2022. Oh, wow. I mean, that is huge.

22:57And after so long, they can finally be together. I know. I know. She had been his most loyal friend, supporter all this time. So I went to the wedding, Aisha. It was in the middle of COVID, but about 500 people came to the ceremony. Everyone masked, right? And it was held in Deborah's church or Baptist church. And one scene is really etched in my mind. So I was standing at the back of the sanctuary and I was looking at the altar and Ben was in the tux and Deb was in a traditional white gown. and standing at the altar were five men, including Ben, who had spent years in prison. Ben knew them from prison.

23:43Of those five men, four of them had been wrongly convicted. Oh, my goodness. So how many years of life had been stolen from them, really? When you think about it, stolen from them. More than 100 years. In total, more than 100 years had been stolen from them. and 30 from Ben. So finally, in May of this year, the Court of Criminal Appeals issued its ruling. And for the first time, it ruled in Ben Spencer's favor. It agreed that he had not received a fair trial. But it didn't exonerate him. It didn't clear him of the crime. That decision was left to the district attorney, John Cruzeau. And Cruzeau set a hearing to announce his decision on August 29th of this year.

24:34And I was there, along with Jim McCluskey, and crowded into the courtroom to learn what Ben's fate was going to be. This was actually the same courtroom where Ben had been sentenced to life in prison 37 years earlier. Ben was at the front of the room, his 6 '4", graying hair, in his charcoal pinstripe suit and light gray tie. And Cynthia Garza stood up first. She's the prosecutor who had gone through all the case files and found the newest evidence. And she said that the state was dismissing the charges based on innocence. And then her voice cracked when she said this, quote, I want to apologize to you for this great injustice that was had upon you 37 years ago.

25:23And she walked over to Ben and they hugged and they were both crying. And then the judge did something really unusual. She came down from the bench and she stood in front of Ben. And she said, Mr. Spencer, I want to be the first one to shake the hand of this individual that is now found innocent. Congratulations. So, I mean, how did Ben react? I mean, after all these years, what, What did he say? How did he feel? Yeah, well, so here's how he used his time. He stood up and he reminded everyone that he and his family were not the only victims of the justice system. But the Young family were victims as well because they lost a loved one.

26:14And the person who was actually responsible for what happened to Jeffrey Young was not brought to justice. So I'd ask that you pray for the Young family and be mindful of them in this manner because they still lost a loved one. So I don't want them to be forgotten. You know, after all that Ben has been through, for him to take this moment, really that's supposed to be his moment of triumph, and to think about Young, the victim in this case, and his family and their suffering. It really says so much about who Ben is and his character and his morality, right? Right. Barbara, before I let you go, I'm wondering, how do you see the criminal justice system now, after all of these years reporting this story?

27:16Well, it's complicated. And first, let me just say that Ben Spencer did receive compensation for the injustice. But, of course, he lost arguably the best years of his life, ages 22 to 56. but the good news is the criminal justice system is getting better in some states. There's more understanding of the flaws, and some states are changing the law to prevent wrongful convictions. For example, Texas. I mean, Texas has severely limited the use of jailhouse informants, and prosecutors have to turn over all their evidence to the defense. I mean, Texas actually has become the model in the country, and it's done this for a couple of reasons.

28:01First, it turns out that a lot of people have been wrongly convicted in Texas and later cleared. Also, Texas still executes people, and it would look really bad to execute an innocent man. But the bad news is, getting an innocent person out of prison still requires dumb luck. Ben Spencer is the luckiest of the unlucky. But, you know, at the end of the day, Aisha, I'm kind of left with this question. In America, should a person's freedom depend on luck? Yeah, that is the question. That is the question that I think will stay with all of us. Barbara, thank you so much for sticking with this story and not letting Ben Spencer fall through the cracks and spend the rest of his life in prison.

29:01Thank you for all the work that you do. And thank you so much, Aisha, for having me on. That was journalist Barbara Bradley Haggerty. To learn more about Ben Spencer's story, you can check out Barbara's book, Bringing Ben Home, A Murder, A Conviction, and the Fight to redeem American justice. This episode was produced by Andrew Mambo and edited by Jenny Schmidt. It was engineered by Kweisi Lee. The rest of the Sunday Story team includes Justine Yan and Liana Simstrom. Irene Noguchi is our executive producer. A special thanks to Anchor Entertainment for providing audio of Ben's final court appearance.