Mike Ware – Innocence Project

An interview transcript from www.CrimewavesPodcast.com with the deeply insightful Mike Ware, head of the Texas Innocence Project on the fight for the wrongfully convicted, the fallibility of eye-witnesses, police investigations and jailhouse informants. And how Ware and his group saved an innocent man…

Declan Hill: You’re in prison. The system has labeled you guilty of murder. They’ve convicted you. The thing is you are innocent. You didn’t kill anyone, yet you are facing the death penalty. So who are you gonna call? There’s no use phoning a lawyer. They didn’t work out too well. A trial. There’s no use phoning a politician. Those guys campaign on locking up murderers. Your family can’t help. Your friends, the few that stayed with you are useless. The only hope that you have is a small organization that doesn’t have much money and only has a very, very few resources. They’re called the Innocence Project and they are your last hope.

Welcome to Crime Waves.

Good morning, good afternoon, good evening, wherever you are in the world. Welcome to Crime Waves. My name is Declan Hill and I’m an associate professor of investigations at the University of New Haven. Each week, myself and my students, and for this series, it’s been Eric Krebs, Erin Griffin, Alexia Miller and Caitlin DeLuke.

We bring you a story with one of the world’s best investigators. And this week it’s a continuation of a story that we heard last week with our DNA expert, Professor Angie Ambers. It’s the Innocence Project of Texas, a small group that works to reexamine cases where individuals may have been wrongly convicted. Our guest is the leading legal light of the group, Mike Ware. Mike is a prominent defense lawyer, and he took up the case of Lydell Grant, a young man who had been convicted of murder even though he was miles from the scene and did not know any of the people involved.

We began our conversation by talking about how Mike became aware of this particular case.

Declan Hill: Mike, how did you first become aware of the Lydell Grant case? 

Mike Ware: A letter came in from Lydell, his prison cell here in Texas, and the letter in some ways is much like or, was much like the hundreds of other letters we get every month, mostly from family or friends of prisoners, and adamantly maintained his actual innocence that he was, had been wrongly convicted of a murder, a, a, a brutal murder, that he in fact had nothing to do with and, and really knew nothing about.

I mean, I think he learned the most he knew about the murder in the actual trial from witnesses who he had never seen before that got on the stand and started talking. But it, it came to our non-profit, the Innocence Project of Texas, the letter I’m referring to, and, you know, it went through the system. And I’m a, an adjunct law professor, at Texas A&M School of Law Fort Worth.

We analyze these letters, and some of them we close out the next step, go to a full scale investigation. So this case was assigned to a student. In my clinic at Texas A&M School of Law, he’s assigned, he was assigned to read the transcript and to analyze the materials that we gathered for the case, which included the DNA test results and the trial testimony of the, of the DNA forensic experts.

Declan Hill: Mike, I, I’ve been an investigative journalist for decades and I’ve never met a guilty man in jail, they always come to me and say they’re innocent. What’s your perspective when you get these hundreds of letters a month at your clinic? 

Mike Ware: Well, not all the letters we get are from inmates claiming they’re innocent.

Of course, those cases we weed out pretty quickly and, and send them either to someone who can help them or, or just notify them that their situation is not one that we handle. We’re not an all legal services organization, having been a, a, a criminal defender well over 30 years, you know, it’s been my experience that most inmates own up to what they did.

They’re not claiming actual innocence. Maybe they feel they’ve been treated unfairly in some way, but most of them admit to their, to their guilt. And in some, you know, even brag about crimes they’ve committed. I suppose some even make up crimes they didn’t commit that they brag about it. So I think it’s a, an an inaccurate trope that everybody in prison maintains their innocence and, and when they do, it means something.

It’s not, it means they make it at least past the initial vetting system, that they are at least making a claim of innocence. And then there is sort of a vetting system from there. 

Declan Hill: Now, do you, Mike, do you have a sniff test? Because one of the things about the Lydell Grant case and many of the others that I’ve been, we’ve seen in the research for, for this interview is that at first the case for the prosecution seems very strong there. There are, are people, there are witnesses, There are eyewitnesses in, in some cases, 

Mike Ware: Yeah.. That, I mean, that’s the case in almost every exoneration. If you were to give the initial trial transcript, police reports, et cetera, to someone who did not know that that person is, it turns out that person did not do it.

One of those cases, probably every one of those cases would look very strong and undoubtedly that they were guilty, and those are really the most interesting cases because once you understand or prove or whatever, that this person actually didn’t do it, then all this other evidence starts to unravel and you realize the sort of misconduct, corruption, whatever that had to go into getting this innocent person convicted.

Declan Hill: Now, Mike, have you developed an instinct? Have you developed a kind of sixth sense that you can, you can pick up on something where somebody like myself would look at a, a similar transcript and just go, “Well, it seems like this guy actually did do the crime.” 

Mike Ware: Well, I have to be very careful about saying I, I’ve got an instinct.

I’ve got a sixth sense. To some extent I believe that I recognize red flags. Now, the instinct, the gut sounds like these detectives, when they are responsible for convicting them, I mean, they will say, You look back, “I instinctively knew this person was guilty”, and then it turns out they’re not. I think that kind of thinking is not productive in this line of work.

But I, I have developed, you know, through experience what I think are red flags and might be indicators of someone who was actually innocent, who was wrongly convicted. 

Declan Hill: Tell us about one of those red flags. 

Mike Ware: One of the first things I I look at is how did this person become a suspect? To begin with, assuming this is some sort of, you know, stranger on stranger crime, or it’s not a witness saying, “This person I knew and have known a long time did this crime.”

It’s, it’s say, a stranger on stranger crime. The witnesses are strangers. I look at how they become a suspect to begin with, and if the way they became a suspect somewhat random, that’s a red flag because here’s this person who’s become a suspect for no good reason. And then the case gets built around them.

Then the eyewitnesses who have described someone else to the police, someone who doesn’t fit the description of this now suspect at all. Now all of a sudden they’re picking this suspect out of photo spreads. Even though the description they gave the police at the time of the crime is completely different than the way this person looks.

That that’s sort of an example of, of a couple of red flag. 

Declan Hill: Hmm. Let, let’s get back to the Liddell Grant case. He, he’s written to you. How long has he been in jail at, at this point? 

Mike Ware: Well, I, I think we started, he, he may have written us as early as 2015, I believe, but we, we did not actually begin discussing him in my class, you know, of course we had to accumulate all the documents, including the trial, including the police reports, et cetera, until about 2018. 

Declan Hill: Wow. And it takes, takes that long. It takes three years just to begin that, that step for that

Mike Ware: Well to, to acquire all the written materials and to get to that step in the vetting process. It, it, it can take that long. So we started discussing his case in class along other cases that had been assigned to my students. I usually have about 12 students in the class, and they’ll each get a case and we round table it in class, and I, I try to direct them on what they should do next in their investigations.

And this case jumped out at us because in looking at the DNA test that was done in this case and testimony that was provided by the Houston Police Department crime lab person, it was obvious that that they had totally misled the jury on the DNA evidence. There was DNA mixture collected from the victim’s fingernails at in court, the testimony was that there was a mixture under the victim’s fingernails, and neither the victim nor Lydell Grant could be excluded from having contributed to that DNA mixture. Now, obviously the victim’s DNA is gonna be on his own fingernails. I mean, they’re his 

Declan Hill: Exactly. Yeah. I mean fingernails, it’s his dna, it’s his fingernails. Right! 

Mike Ware: And, and there was obviously somebody else’s DNA contributing to the mixture and it was, it was a pretty full two profiles and it obviously was not Lydell Grants. I mean, you know, I mean, it, I, I’m not a DNA expert, but I’ve done this long enough to, you know, have a, a moderately logical mind, and you could see from the reports that at many loci, neither a, an allele that matched either of the alleles of Lydell Grant or either of the alleles of the victim. 

Declan Hill: That’s very interesting, Mike. Let’s hold that because now we’re in the class. Which sounds fascinating. Most of our listeners would wanna be taking your class immediately. You’re in this small seminar group, 12 of your students, you’re looking at this, and the red flags are popping up, but it’s taken three years.

Three years while a man has been sitting in a in jail. Let’s go right back to the night. Of the murder, there is somebody who was killed. Tell us about the circumstances of that murder and then how Lydell Grant found himself involved in the investigation of that murder, please. 

Mike Ware: December the 10th. I believe of 2010, late in the evening, just prior to midnight, I think. The trendy montrose section of Houston, a lot of clubs there, a lot of nice clubs. It’s about 1145 at night. Young man in his twenties comes running up the steps to one of the clubs there, Club Blur. Says, “You gotta help me. He’s trying to kill me.” And about that time, the perp comes running up and, the, the perpetrator was described as a black man in his late twenties. You know, the, the height and weight varied from 200 to 260 to six feet to six six, so that they, you know, were within a range, but kind of all over the map. The bouncers told this young man that, you know, “You guys just keep this outside. You know, we don’t, we don’t need that kind of trouble in here, just keep it outside.” And so then a number of people watched while in the parking lot of this club, the young man was beaten and stabbed to death by the perpetrator. It was a, you know, I don’t know how long that took. It was, it was somewhat lengthy. I mean, the descriptions were that the young man was tackled, that he got up, got away, was tackled again, that the beatings commenced, that they were struggling, that he got away, was caught, was stabbed multiple times. And then,

Declan Hill: And this is the guy who a couple of minutes before had begged for his life, had begged to the thing, “Hey, just get, gimme help sanctuary.”

Mike Ware: Yes. And then by all accounts, the perpetrator stood up and strolled away. So 

Declan Hill: Leaving this, leaving a dead body on the ground. Maybe I’m preempting the story here, Mike. Is the, is the victim, is the man who was killed, who, who a few minutes before was begging for his life, “Just get me into this club. This man will kill me.”, “No, go away.” Who is killed on the ground? Is he a white man or a black man? And I’m sorry to, to, to bring that racial element up, but I think it may overshadow the case. Anyway, 

Mike Ware: He was white. He was a, I think he was in his late twenties white man. And although no one who witnessed the murder knew who he was.

He did live in the Montrose area, and of course there were, you know, a number of people who did know him. No one who witnessed the murder, knew him. No one who witnessed the murder knew the perpetrator. So the police of course arrive and the witnesses are eventually, I guess they give their description at the scene, but they’re eventually all taken down or go down to the police department and give recorded statements about what they saw. And, and of course the young man, the victim was eventually identified, but none of the people who knew him knew what this was all about. Nobody knew why this would’ve happened. Nobody even knew where the young man had been that day, much less the the hours leading up to this. And so why this happened and, and who did this is a complete mystery at this point. 24 hours later, approximately, he was parking his car, in that parking lot where the murder occurred, and one of the witnesses, I think it was one of the bouncers to the murder, saw him get out of his car and said, “That man looks like the guy who I saw commit this murder last night.” You know, here he is back at the murder scene, parking his car, which seems would seem pretty bizarre, but he this witness the bouncer called Crime Stalkers. And I guess, you know, helping to collect a reward. I think he did collect a reward.

Declan Hill: I just wanted to put a, a footnote there for all our listeners. Here’s the guy who turns the victim away from Help and Safety and Sanctuary. The victim is killed a couple of minutes later in front of this guy. He and I, you know the story already, he wrongly identifies Lydell Grant. And he profits off this thing. Irony upon irony. 

Mike Ware: So he of course, you know, gets information about the vehicle itself that he provides and, and that information makes it from Crime Stoppers to the actual homicide detective investigating the case. And of course, the homicide detective investigating the case, connects the car to Mr. Grant. And so, they look up Mr. Grant, I guess his DPS photo on his driver’s license, whatever. And, and, and you know, he sort of fits within the parameters of the description they gave of the actual perpetrator. He is, as it turns out, he and the actual perpetrator, have a birthday that is, that is exactly one year apart. So they’re, they’re very close in age, for example. And, you know, he otherwise generally fits the broad parameters that the witnesses had given in describing the perpetrator. So I think at this point they’re completely convinced they’ve got their guy.

Declan Hill: Okay.

Mike Ware: They put his photo in a photo spread, and this is throughout the day on Sunday. I think the following day, they go all the witnesses. We, we have found out since then that at least in many cases or some cases, the police suggested who they should pick, and that the photo spread was conducted not under best practices. But somehow or another, to some extent or another, six of these people picked out Mr. Grant’s photo as the perpetrator in the photo. 

Declan Hill: Mike. Just give us a sense of what best practices for a witness identification is. 

Mike Ware: It’s, it’s very rare and it, it was not true in this case. It’s very rare that they actually do live lineups anymore. You know, the people standing behind the one way mirrors or whatever.

I mean, I’m not saying it doesn’t happen, I just very seldom see it. It’s mostly done through photo spreads. In other words, the, the detective will assemble a photo spread. One photo is the suspect, the person he hopes the witnesses pick. And the other photos are what they call fillers. They’re supposed to look somewhat similar to the, to the photo of the suspect. Now, best practices there, there’s, you know, there’s now there’s been so many wrongful convictions exposed based on, erroneous eyewitness identification that there are now best practices. 

Declan Hill: Okay.

Mike Ware: And the most important thing, and was not true in this case, all of them start with the proposition that whoever administers the identification procedure, the trial identification procedure should not know who the actual suspect in the photo spread is.

Declan Hill: Ah, so there’s no tapping of the finger on the right photo. There’s none of that stuff going on. It’s all, it’s literally a double blind process.. Where neither the person or the person taking it knows who the right person is and, yes. 

Mike Ware: Exactly. And, and so, and in fact, you know, this photo spread was administered in late 2010 in the following spring 2011, we at the Innocence Project, got legislatively, got procedures changed in the code of criminal procedure, et cetera, whereby photo spreads from then on were supposed to be done double blind as you, as you just mentioned. But this occurred before that statute went into place and, anyway, he was, Lyddell was picked out by six people. And, you know, you can imagine the rest. He, the following Monday, he was driving along in the middle of the day minding his own business, running an errand or something, and the police pulled him over. Now, he, you know, provided his license and insurance, et cetera. I think that he probably thought he didn’t even commit a traffic violation, but, you know, whatever he complied with the officer. And the officer went back in his car and was on the radio or whatever, and the next thing he knew, he’s surrounded by, marked and unmarked police cars, uniformed plain clothes officers pointing guns at him, yelling at him to get out of his car, handcuffing him, putting him in the back of a patrol car and whisking him away down to police headquarters. And he has no idea what it’s about. He’s asking what it’s about. He’s not being given any information. He has no idea what it’s about. 

Declan Hill: And there goes the next nine years of his life. 

Mike Ware: Nine to 10 years of his life. They start asking him about this murder. What does he know about the murder? He, of course, knows nothing about the murder. They of course don’t believe him. They pressure him to make it easy on himself, you know, whatever. You know, all the good cop, bad cop, all the, they lie to him, you know, all sorts of stuff trying to get him to make incriminating statements about this murder that he had nothing to do with. You know, I guess he’s kind of like, the police are kind of like you mentioned, you know, “Everybody says they’re innocent. We know you’re not.” You know, I, I don’t think he had a, a lawyer to call. Off course, you know, if he had called a lawyer, you know, what could he have told the lawyer? You know, “I’m here for, apparently I’m here for a murder that I know nothing about.” And so he’s locked up, and you know, two years later he goes to trial.

He had an alibi witness for where he was that night at all times. The alibi witness showed up and testified at trials, testified credibly, of course, Alibi defenses never, never, never work. I’ve never seen one work yet. 

Declan Hill: Now, now just a second. Alibis are the first thing the detective checks and rules people out. What? Why In real life as a defense lawyer do you see alibi testimony not working? 

Mike Ware: Because the juries believe the police and the prosecutor and the government, not the alibi witness. The alibi witness is, Almost by definition going to be a friend or family of the defendant. And the, and, and the prosecutors argued this person would lie for the defendant. the police have no reason to lie. The witnesses have no reason to lie. Believe the police and the witnesses not the alibi. And, and that works because, you know, I mean, I’ve seen a lot of alibi defenses in reading the records because, you know, if someone is innocent, if they weren’t there, if they don’t know anything about the crime. What else can they do other than try to figure out where they were on that day and at that time, and who they were with and present that as: I couldn’t have done it because I was over here doing that. It never works. 

I, I know Jim McCloskey of Centurion Ministries has written a book about his innocence work. It’s in his book. He’s come to the same conclusion. Alibi defenses never work because juries assume the guy’s guilty, and therefore they assume anybody who comes and testifies to an alibi is lying for this guy. 

Declan Hill: That’s amazing. It’s fascinating. It, it, it’s a view into your world that, that I, I think myself and the listeners had no idea about because we, you know, it, it’s the standard fair in TV drama, you know, detective novels. Oh, so-and-so’s got an alibi. Well, we can rule him out. 

So we’re, we’re flash forward now that’s, that’s the events of 2010, 2011. It’s now we’re in a small seminar room with you and your students. It’s 2018 and you’re looking at this case and red flags are starting to pop up, like the witnesses didn’t know this guy. It’s kind of random. What else is going on in your mind, in your, in that legal instinct and mind of yours as you go through this case? 

Mike Ware: Well, the red flags, I mean, number one, Lydell had always maintained, passionately, maintained his innocence and, and that actually counts for something. you know, not that there aren’t guilty people that do the same thing, but it, it does count for something and it, and is a little bit more unusual than people might think that someone would passionately and adamantly maintain their innocence for years and years.

Declan Hill: So that is something unusual. You don’t see the average inmate, it’s not all that common for people to say after six, seven years as Lydell Grant did in jail, in incarceration, “I am innocent. I don’t belong here.” 

Mike Ware: Or, or, you know, what you might see is a story shifting over the years. “Well, I’m, I’m innocent because of this reason, or I’m innocent because of the other reason.” but this was pretty clear cut. I mean, either he was the guy or he wasn’t, and he’s steadily maintained that he wasn’t and that in fact had nothing to do with it and wasn’t there. And that, you know, that creates, like I said, a pretty stark black and white issue. There’s not a lot of gray there. I mean, either he was the guy or he wasn’t.

And, and then we discovered that, you know, they were basically lying about the dna that in fact he was excluded from the mixture, at least from what we could tell, we were amateurs and we were kind of like, If, if we can see this. 

Declan Hill: So what, what do you do at that moment? Because you, you are, after all, you’re a fantastic criminal defense lawyer. You’re a man on a, on a passion to make sure innocent people aren’t in America’s jail. But you’re not a DNA expert. So what do you do? What’s your, what’s your first step in that campaign? 

Mike Ware: Well, I, I contacted Angie Ambers, who I, I believe you know, she’s my go-to DNA expert and explained to her the situation and, and actually had her come to the class and teach a class on DNA using Lydell Grant’s case as sort of the, the teaching vehicle. We had discussions on what the next move to do, what she suggested, which is what we did, is that we get the raw data from the original DNA test and get it to this company in Pennsylvania, Cyber genetics, who has a state of the art software for analyzing DNA mixtures. It’s their True Allele software. And that we get their opinion about, you know, who’s in this mixture, whether Lydell Grant is excluded or what, and so we were able to do that. The Conviction integrity unit in the Harris County DA’s office said, “Well, why don’t we just retest the swab and just start from scratch? Start from the beginning.” I said, “Well, that’s fine. You can do that, and you can have the Department of Public Safety Lab do that. But the DNA test results from 2011 exclude Lydell Grant. Why? Why do I wanna reinvent the wheel? Why don’t I take what already excludes him and find out more information about?” And so we kind of went on parallel tracks. 

Declan Hill: In other words, you were doing far more than the average defense lawyer, which is to show, Hey, my client is incapable of being the person who you know, committed this murder. You’re now saying, Hey, you know what? I’m gonna help you identify the person who actually did kill this person. 

Mike Ware: Right. And, and of course in this kind of murder, the DNA under the victim’s fingernails is highly probative. It doesn’t necessarily mean that the dna, the foreign DNA contributor found in the victim’s fingernails is the murderer, but it is very strong evidence that they might be, and, and regardless they lied about it at trial. Now that’s a red flag. This information was so damaging to the prosecutor. They had to lie about it at trial. Now, to me, if, if the prosecutor has to lie and have their witnesses lie in order to get a conviction, it’s a red flag. 

Declan Hill: Well, I think you’re being incredibly kind to them. That, that, it just seems to me a, a miscarriage of justice when somebody is lying on the stand, lying about that testimony. Let me ask you a question. I’m sure it’s in our listeners’ mind. How do you pay for, what I presume is a relatively expensive test at this Philadelphia, or Pennsylvania company? Where does that money come from? 

Mike Ware: You know, we’re a nonprofit and we survive on grants and donations and such freestanding, non-profit. So Angie is of course, you know, not only is this her idea, she’s instrumental in getting this raw data, which is, is no easy task because it’s, it’s on a special software. Only people who know what they’re doing can use this information electronically. And Cyber Genetics does their true allele analysis of this mixture. And of course they say, well, “Lydell Grant’s definitely excluded. And, we believe we have a sufficient profile of the unknown contributor that we can upload it into the national database, the national offender database, CODIS, and see if the person whose DNA this is, is in the national offender database or their DNA profile is.

And so normally that has to be done by law enforcement and it’s, it’s, it’s not an easy thing to get done, even, even for law enforcement necessarily. The, the FBI runs the national database, you know, passes all the regulations governing it, and you can’t just enter stuff into the national database willy nilly at all. And so I said, “Well, okay, if you can do that, that’s great. I’ve never seen it done before by a private entity.” And they said, Well, they had a relationship with a sheriff’s office in Buford County, South Carolina that they believed that this profile was strong enough and met the, the qualifications for being uploaded into CODIS and that this sheriff’s office would do that, would do it for them.

And so that’s what happened and I would say that probably Angie Ambers and, and this employee of the Sheriff’s Department, who ran their CODIS terminal in Buford County, South Carolina are, are the two biggest, you know, unsung heroes in this case. Anyway, he did it and, and I think within a week or so he got a hit as to whose DNA this was under the victim’s fingernails.

Declan Hill: Wow. So that’s gotta be one of the more dramatic meetings of your professional career. You’re going back now to law enforcement, police prosecutors, and you’re saying, “Guys, not only is my client not guilty, but…” How does that meeting go? 

Mike Ware: Well, it’s funny. The CODIS notification of the hit first went to Texas Department of Public Safety because they’re the ones who uploaded the actual perpetrator’s DNA profile to begin with. So they get notified of the hit and they see that it’s a South Carolina investigation, so they notify South Carolina. I guess they think this was a South Carolina crime or something, and South Carolina notifies us. And so we almost immediately went to the district Attorney’s office, the conviction integrity unit that we were working with, and this would’ve been June of 2019. By now.

Declan Hill: Four years after that original letter was written from the prison cells to say, Hey, help me. 

Mike Ware: Yes. And they said, Well, this is very interesting, but you know, who is this Cyber genetics and what is true allele and, and you know, what are you sneaky individuals up to here? You know? 

Declan Hill: Yes. 

Mike Ware: You know, what are you trying to pull here is kind of the undertone of it I got and you know, of course they notified whoever they needed to notify, but I, I think their, their gut reaction was, this is some kind of scam and we’re gonna get to the bottom of it, but you ain’t, you know, we’re not, we’re not impressed with this, you know? 

Declan Hill: Right. 

Mike Ware: And, of course, you know, the truth is, true allele software is the software used by the Georgia Bureau of Investigation. It’s very similar to the Star Mix software that is used by almost all the law enforcement agencies in Texas, but I think this was all new to them. And so they, What are you talking about? Probabilistic genotyping software, you know, et cetera. And so they got the Houston Police Department Cold Case Unit involved, which I thought was fine because you know what needed to be done at that point. 

And, and by the way, the. The person who the DNA came back to, checked all the boxes. I mean, he fit the description that all the witnesses gave. He was, and he was from Houston and, and had actually been arrested, I think 30 feet from the very spot that this murder had taken place, maybe eight months before this. I think it was some kind of crack deal. He was definitely out of the Harris County Jail at the time of this murder, ’cause we checked, and you know, a little further investigation showed that he had fled the Houston area shortly after this murder and gone to Georgia and was last known to be in the Atlanta, Georgia area where there was an outstanding warrant for his arrest and where he had, after this murder had actually stabbed somebody else in Georgia that we had a police report for.

So the Harris County DA’s office was still very skeptical and the Houston Police Department cold case unit, they, they started going on interviewing among other things everybody, Lydell Grant had been locked up with or in jail with, which made me uneasy that at the time reeks of them patrolling for a jailhouse informant who will make up a lie that Lydell had confessed to them so that they can get a deal on their case.

Declan Hill: Let’s just review this for listeners who don’t understand what, what I call the jailhouse snitch system. That’s where the cops, the prison officials go and say to John Jane Smith, whoever. “Hey, you tell us what they’re really saying and we’ll knock three, five years off your sentence for good behavior.” well, of course they’re gonna go and try and do that work and some of them will say, Hey, there’s nothing there. Or some of them will, I presume, lie. Tell us more about that, Mike. This is your area. 

Mike Ware: Well, it, it can happen in different ways, but that’s the basic scenario. The basic scenario. I mean, it’s, it’s, it’s, it’s a known institution, you know, since the 1600s, and it can be very, it can be a very effective way to get convictions.

It’s also shown to be a way a lot of wrongful convictions happen, and it’s, it’s the easiest kind of evidence in the world to just simply manufacture. Sometimes the jail prisoner goes to the police or the DA. Sometimes the police or DA go to them. But basically what you’ve got is a willing seller and a willing buyer. And the willing buyer is the DA or the police, and they’re willing to buy a made up story by this jailhouse informant. 

Now, they don’t know that it’s a made up story, but it can be a made up story. I mean, the stories are easy to make up, and the story always goes something like this. “When the defendant and I were up there in the jail cell together, just the two of us, he told me he really did it.” 

And so that person is then given a deal or had cases not, they can even be paid money for it. Now, the state’s supposed to disclose all the incentives. They don’t always do, but they can give that jailhouse informant almost any incentive to tell this story in court that can easily be made up or fabricated. 

And so the jailhouse informant comes down and, and tells that story and they get their deal. Studies have shown juries for whatever reason, tend to believe ’em. They think that if the judge lets it in, it must be true. Or if the prosecutor and the police vouch for it, it must be true. Now, they don’t necessarily like the informant because, you know, they’re criminals themselves, but, but they believe ’em, you know, I mean, it sort of goes into the, the trope about how, you know, criminals are stupid and they’ll confess to anybody, you know, when they think it’s just them. But juries tend to believe ’em and it’s, it’s the most unreliable. One of the most unreliable forms of evidence there is.

Declan Hill: You know, Mike, I, I’m, I’m finding this fascinating because just in the last few minutes as this episode has been going on, we’ve heard about the fallibility of witness identification, which I, I think for myself and many of our listeners is new ground. We’ve heard about the fallibility of court testimony. About DNA testing. We, you know, everybody knows DNA testing can be very good, but, but, but the fallibility of the experts in those court trials, and now we’re hearing about the fallibility of these prison snitches, these jail informants, and all this is going on at this point.

Now it’s 2019 and your investigation has identified the actual perpetrator, but these blocks are being put up. What, what, what are your feelings at this point? What, what, What’s going through your heart and mind at that point? 

Mike Ware: Number one, I don’t like the way this investigation is going from the state and police standpoint. It looks like they’re trying to undermine the truth. It looks like it. 

Now, as it turns out, none of these guys that they interviewed, incriminated Lydell Grant, in any way. Now, one of them did, but then further investigation demonstrated that what he said was true was literally impossible. So one guy took the bait, but it didn’t work out. So I was relieved at that. 

But my thought was, you guys need to be finding this actual perpetrator. There’s an outstanding warrant for his arrest. You can arrest him, you can arrest him, you can question him. You can record and listen to his jail calls. I mean, that’s what they do to all my clients. Why can’t they do that with this actual perpetrator? 

Declan Hill: Particularly when he’s in prison or he has been in prison, you know, for, for a link to that area for a knife crime as well, a violent knife crime, you would think. And he matches the DNA. You would think this would be pretty much as, as far as these things go in the justice system, an open and shut case, let’s shift focus, let’s move. But it’s not happening. There is reluctance. Is the reluctance a kind of human element? We don’t wanna admit we’ve made a mistake. We don’t wanna look bad. Our egos are on the line?

Mike Ware: Yeah. , I I mean it’s, that’s part of it. It goes a little deeper than that. I’m just an armchair psychologist, but, I think part of it was, they, they, they’re the good guys. You know, in their mind and, and in popular culture, they’re the good. They couldn’t wrap their heads around the fact that this nonprofit had solved this crime for them, that they had gotten this guy and this nonprofit and our students, and Angie and you know, everybody who helped had solved this, had done their job for them. And I, I think that was part of it. 

Now let me say this, that eventually they did come around and really it, it was probably a good thing that they pushed back because when they did come around, it just made it all that much more credible. And this guy whose DNA was on the fingernails was in fact arrested for other reasons in Atlanta, Georgia. And these Houston Police Department cold case officers, investigators, got on a plane the Friday before Christmas in 2019. Flew out to Atlanta, sat down with this guy, and in a, about a two hour video recorded interview, it fully confessed to him. He, 

Declan Hill: Wow. What is the phone call? Let’s flip the, the switch Now. What, what is the phone call like when you tell Lydell Grant this is happening? How is that information given and what are, what are your feelings when that happens? 

Mike Ware: Well, when we got the, the DNA results, I, I won’t go into the whole procedure, but, under Texas law, you know, a favorable DNA result, and by the way, DPS Texas did go ahead and do their parallel retesting the original DNA swab, and they confirmed that Lydell Grant was excluded from the mixture. 

Now, that didn’t happen until about August, so it took much longer. They did not, according to them, did not come up with a sufficient profile of the unknown donor to put into CODIS. So thank goodness we didn’t have to, you know, rely on the police and their lab and that cyber genetics, you know, existed up in Pennsylvania. 

Once that happened, once that happened, there’s a provision in Texas law that says someone is eligible for bail. Once they get a favorable DNA test, they’re now, it doesn’t mean they’re entitled to bail, but they’re eligible for bail. So we tried to get the DA’s office to agree to bail for Mr. Grant, which is another long story, which they wouldn’t do, but eventually they did.

And, he got out on bail on, I think it was the Tuesday before Thanksgiving of 2019. And so when I called and told him about the actual perpetrator confessing, he was of course, very happy. I mean, we all believed he was gonna be exonerated regardless, but you know, this was, you know, to use a cliche, kind of the icing on the cake and it sort of foreclosed any other explanation for the actual perpetrator’s DNA being on the fingernails, which I could see someone trying to fabricate some innocent explanation for that. 

Declan Hill: So that is in all, that’s, a four year journey for your relationship with Lydell Grant. I know it’s ongoing, but it, it comes in that letter that he writes. The class, it filters through your system. You come in, you do the investigation, you go all the way through the courts to get him out. 

But this isn’t the only case like this that you’ve done, Mike, you’ve been working on something like on, on these kind of cases from 2006. So if you don’t mind, let, let me ask you a difficult question here. Is there one case? Is there one issue that keeps you up at night at three in the morning, you’re just like, “Man, I should have done something different. Or is there something like that?” 

Mike Ware: There’s many answers to that question. I don’t know where to start. 

Declan Hill: I’m thinking, you know, you’re, you’re in a state where there’s the death sentence and, and, and the research that our brilliant producer, Alexia Miller has done, showed me that 4% of people who who’ve been killed in, in the United States are now reckoned to have actually been innocent. So the state, the government sent an innocent person to their death. With all that tension, with all that drama, is there one case that stands out in your mind, even now, Mike? 

Mike Ware: Well, I mean, we do have a case now that I’m totally convinced this, this individual, and I can’t really talk that much about it. I’m totally convinced this person is innocent, who is awaiting an execution day.

Declan Hill: Wow. 

Mike Ware: There is no execution date on this case I’m talking about yet, but. You know, he was recently turned down by the United States Supreme Court. 

Declan Hill: Mike, I, I don’t want to jump into any legal stuff or jeopardize your case in any way, but let’s leave the discussion now knowing that you are fighting a case that is on death row there. There’s no date yet, thank goodness, for the execution. But, but that’s the stakes that you’re dealing with here. Life and death stakes of, of people in a system that even the Lydell Grant alone shows has got many problems. 

Mike, thank you very much for your work. Thank you very much for taking the time with Crime Waves Podcast.

I leave you with only one more request question, will you please come back and so we can talk about some of this other amazing work that you guys are doing there and some of the other larger issues that are around these cases?

Mike Ware: Absolutely. Thank you for the opportunity, 

Declan Hill: Mike, thank you for the opportunity. We really appreciate your work and taking the time like this. Thank you so much. 

Mike Ware: We’ll talk later.

(Extro)

Declan Hill: Hey everyone, it’s Declan. Thank you so much for listening to this episode. We’d also like to thank Mike Ware for both joining us on the podcast episode and, look, for his dedication to helping those in need within the criminal justice system, specifically the wrongly convicted. 

If you enjoyed this episode, please subscribe to us or like, or promote us in some way on social media, and we’ll see you next week for a very intriguing episode.

Thanks very much and we’ll see you then.