The Innocence Files (2020) s01e09 Episode Script

[man] When all four of my grandparents
moved here from Poland,
they were two of the founding families
that actually built this church.
And I still come here for Mass on Sundays.
It's one of the most beautiful churches
in the city, I believe.
Just beautiful.
That period, when I was in prison,
actually strengthened my faith in God.
I know a lot of people would think,
"Well, how can you have faith in God
when you're sitting in prison?"
I said, "Well, God didn't put me here."
But I believe
I know God can get me out.
During that time,
I had so many emotions
going through my mind.
I was pissed, I was scared.
But then again, I just decided
I have to do what I have to do
to find out what the hell happened
and how I can bring the truth to light.
[opening theme music playing]
[man] When I got arrested,
everything happened so quick.
I was sleeping,
and there was a knock on my front door.
Four plainclothes officers
rushed through my front door.
They tackled me. They threw me
on the floor in my living room,
handcuffed me behind my back,
and they told me
they had a warrant for my arrest.
They took me down
to the Macomb County Jail.
I was sitting across a desk
from Detective Ostin and Marlatt.
Detective Ostin asked me
where was I
on the night of April 30th, 1994
between 3:00 and 6:00 in the morning.
I said, "Yeah, I was in bed.
That's where I was at."
Then he called me a liar.
That's when they showed me the composite.
Detective Ostin asked me
who I thought the composite looks like.
I told him,
"I think it looks like Phil Collins."
And Ostin told me that he thought
the composite looks just like me.
I took my glasses off and I said,
"If you think that composite
looks like me,
you need these glasses more than I do."
And he said, "Well, you're a real
smart-ass, ain't you, Wyniemko?"
I said, "No, I'm not a smart-ass.
That thing looks nothing like me."
Um
I told him I wanted to call an attorney.
I said,
"You guys are making a terrible mistake,"
and Ostin's exact words to me were,
he said, "Wyniemko, one way or another,
your ass is going in that lineup."
Every one of them had a mustache.
I've never had a mustache in in my life,
and I was standing on a riser.
We were asked to say,
"What time does your husband come home?"
When the lineup was done,
Ostin told me, "Kenny, everything's okay.
You can go home."
[siren wailing]
And then the next day, Ostin and Marlatt
pull in behind my back bumper.
Ostin handcuffs me behind my back. I said,
"You want to tell me what's going on?"
And that's when Ostin, he kind of laughed,
and he said, "You know, Wyniemko,
I'm going to start calling you
the million dollar man."
I said, "Wanna tell me
what that's supposed to mean?
Because I don't have a clue
where you're going with this."
And his exact words were, "Wyniemko,
by the time I get done fucking with you,
it's going to cost you a million dollars
to get your ass out of prison."
[dogs barking]
[man]
It was summer of my senior year.
I had just graduated.
I was living in an apartment,
and my mother called me down,
asked me if I wanted
to have lunch with her.
She didn't have the heart to tell me,
um, what my father was charged with.
Yeah, this is McNichols right here.
[whispers] Fuck.
This area's changed.
And then I found out it was all over
the newspapers back here.
I was just devastated.
I mean, what would cause him
to do something this fucking severe?
I mean, um, my dad was never a saint.
It was kind of common knowledge.
You know, I mean, he had a reputation
for having a good time, you know.
Kind of a bulldog, kind of a pit bull.
[Kenny coughs]
And, uh, you know,
because of that reputation
and, you know,
how I heard of what happened.
I mean, you definitely wonder.
I mean, you definitely think
that, you know, he may be guilty.
[woman]
I pulled into the driveway,
opened up my garage.
Closed the garage door,
watched it go down
through the back window.
I was probably in bed by 3:15.
All I know is that I woke up when he
bounced on me
grabbed some underwear out of my drawer
and put it on my head.
He put handcuffs on me.
He said he had a razor blade,
and he would use it.
He unzipped his pants
while he would put Vaseline
on his finger and he would
And I am not into that.
I kept telling him it hurt
and at one point I started screaming,
and he told me to shut up
or I would get hurt.
He started talking
about wanting to shave my
He said he wanted to know
if I had a daughter.
Walked me down the hallway and he
His shoulders were probably even
to my chin,
and he was really broad, really big.
It was all chunks of fat.
He throws me up against the love seat
and pushes me forward
and enters me
basically his whole hand,
and he didn't have his glove on
fondling me
He asked me if I liked it,
and I was crying.
I kept telling him that
I was losing circulation in my hands,
so he tied me up with the nylons.
All I could smell was latex.
Then I could smell the smoke.
Cigarette smoke.
He had the mask on, I would say,
about 95% of the time, you know.
The only time he didn't
was when I was in a position
that he knew I couldn't see him.
I mean, he was real careful about that.
[tape recorder stops]
[siren wailing]
[man] In terms of thepain,
the suffering, the misery, the degradation
that this victim went through,
this, short of murder,
and maybe evencomparable to some murders,
was probably one of the worst crimes
that a person could be subjected to.
I was the elected prosecutor
of the county,
which meant that my job was to supervise
the work of the approximately
65 assistant prosecutors
that I had working for me.
After a terrible, horrendous rape
of that nature,
the Clinton Township police were,
understandably,
looking for the perpetrator.
Then they put out a press release
asking for the help of the public,
and they also put out a sketch
of the alleged perpetrator.
Five weeks later,
an anonymous tip came in.
We don't really know
where the anonymous tip came from,
but it eventually led
to the ex-girlfriend of Mr. Wyniemko.
[man]
You believe that that composite drawing
- looks like Mr. Wyniemko, correct?
- [woman] Yes.
[man] You didn't have any hesitation
when you answered that, did you?
- No, it kind of scared me.
- [man] Okay.
We had the interview
with Cathy Whitcher, and then,
in order to make even more certain
before we got an arrest warrant,
we did the search warrant at his trailer
and found several items in the trailer
which seemed to further implicate
Mr. Wyniemko.
[man]
There was a lot of circumstantial evidence
which pointed to Mr. Wyniemko.
At the lineup, the victim identified
Mr. Wyniemko as her assailant.
The original assailant
also used latex gloves,
and those items were eventually found
in Mr. Wyniemko's home.
Mr. Wyniemko was employed,
at least part-time, at a bowling alley,
and, as it turns out,
the original victim and her husband
were customers at that bowling alley.
[Kenneth Wyniemko] What happened that
I believe was a spark that lit the flame
that caused my arrest
it was on a Saturday night,
I was at work at Kingswood Lanes.
The place was packed.
Kelly, one of the waitresses,
came up to me and said,
"Kenny, there's a guy
that is bowling by himself."
She thought the guy
had too much to drink.
This area right here, that's where I saw
that he had two bowling bags,
and I looked in the bag, and he had
That's when I noticed
he had 12 cans of Miller Lite.
I said, "Well,
you're all done bowling for the night."
And he reached in his pocket,
and he pulled out a police badge
for Clinton Township Police Department.
I said, "Number one, I don't know
if that badge is real or not."
And he said,
"Kenny, I'm not going anywhere."
Came around, I got him in a headlock.
So I walked him out through this door,
walked him out through that door,
in the parking lot
It was snowing that day, I remember.
Threw him out in the parking lot.
About 20 minutes later,
two uniformed police officers came in.
One of the cops asked
if the liquor license was up to date.
And he started to walk
behind the bar himself.
I said, "Excuse me, officers,
the only people that are allowed
behind the bar
are the bartenders that are on duty
or myself.
That's it, okay?"
He says, "Okay, Kenny. Probably see you
five or six months down the road.
We'll come back and say hi to you."
I said, "Is that some kind of threat?"
And as it turned out,
about six months later, I get arrested
for for this, uh for this rape.
[man] In 1994, I was about 35 years old.
I was a CPA.
I had my own company at the time.
I got a jury notice,
and I asked the prosecutor
why she picked me.
And she goes,
"You're married, you own a house,
you have children, you own a business.
Those are all things
that are pro-prosecutor."
She knows who she was selecting
from the start and I just felt
that the defense attorney just took
whoever showed up.
I'm going to tell you,
when I went to trial on this,
I had no reservations
that we had the right person,
and that Mr. Wyniemko
was the perpetrator of this rape.
[Judge Marlinga] One of the senior
partners in a firm I had been with
had introduced me to Linda.
Linda said that she was going
to be going to law school,
and she wanted to be a lawyer,
maybe a prosecutor,
and I said, as one would,
"Well, you know,
when you get out of law school,
look me up.
We'll see if we can get you a job."
She was obviously an all-star.
She just had a way about her
in the courtroom.
She was a very ambitious,
a very well-spoken, driven personality
and, in my mind,
was a very good prosecutor.
[Kenneth] Judge Schwartz told me
that I'm going to take the attorney
that he's going to give me that day,
on a Friday afternoon,
and if I don't like who he gives me,
I can defend myself.
A good attorney could not defend a client
over a drunk driving ticket
over the weekend,
let alone a capital offense case
like mine was.
There were a couple of holding cells.
I can They're still there.
That's where we would wait
until they were ready for us to come up.
It's almost like I was feeling nothing,
other than scared.
Felt like I was in a fog.
There was testimony
from a forensics officer
that the semen found in the victim's bed
came back to someone with type A blood.
I'm type O.
"He smelled like cigarettes."
I didn't smoke back then.
There were footprints.
The officer said
it belonged to a size 12 shoe.
I wore a size 10.
Everything eliminated me
from even being in the house.
But this woman went through hell and back,
and you got Linda Davis telling the jury
that I'm a sexual pervert,
I should never see the light of day.
What would you think a jury's going to do?
I think he looked like the kind of guy
that could do it
and that's what I believed
to be the prosecutorial strategy.
I got the feeling that he did it.
I really true, he did it.
Tell me why you got that feeling.
Just his demeanor. The way he talked.
When I looked at him.
I'd look at him and
[Kenneth] Then when they brought in
the snitch, Glen McCormick,
I asked my attorney, I said,
"What's he doing here?
Why isn't he still locked up?"
[Roger Smith] Mr. McCormick,
who was in jail with Mr. Wyniemko,
came forward and indicated,
"Yes, Mr. Wyniemko acknowledged to me
that he was involved in the assault."
[Jerry Innes] The jailhouse snitch,
he just looked like a chronic drug user.
I didn't lend a lot of credibility to him.
But Ken's ex-girlfriend who testified,
she did have a lot of credibility.
She came through and said he stalked her.
[man] Tell me why it is that you sought
protection or assistance from the police,
as it relates to Mr. Wyniemko.
[sighs] I was just really afraid.
I mean, he scared me.
He really 'Cause
[Jerry] They made a big deal
about why there was no evidence.
The rapist had shaved
all his hair off his body.
Kenny's recently ex-girlfriend
had been assaulted,
and she had a rape kit done,
and she went through the whole process,
and based on him knowing her,
he also knew how the investigation
was going to go.
She said, um,
"Yeah, I made all these things The"
I don't feel real comfortable
talking about this in some ways,
because, you know, sex crime.
But what they got Kenny's ex-girlfriend
to say
was certain behaviors
that happened to the victim,
also happened in their private life.
There is multiple assaults on the victim
in different rooms of the house.
Came across as almost a fetishized attack.
It was bad.
And the victim identified Ken specifically
as the person that raped her.
I remember walking to court
the day we finally decided.
"What am I going to do?
If we vote to let him go,
then the victim has to go through trial
a second time," which is stupid.
That's what you're supposed to do
if there's a shadow of a doubt.
Well, we got down to it
and one of the jurors said,
"I don't want to say anything offensive,
but I've got brothers and we all date
and, ladies, I don't mean to say this,
but we'll sometimes talk about
what we've done in our relationships,
and I've never heard a guy
say they would do these things
that the rapist had done,"
and then we took a vote after that,
and he was convicted.
[Kenneth] The day of the verdict,
when the jury came back with its decision,
I can feel it right now,
like somebody hit me with a stun gun.
And then I remember hearing my dad crying.
He was crying, and he was saying,
"No, my son wouldn't do that."
To this day,
it's very, very painful.
Very painful.
My family life growing up
was just a blue collar,
God-loving, God-fearing family.
My dad worked for General Motors,
which back then
was kind of the standard practice
for people in the Detroit area.
In the winter time,
the canals would freeze over,
and my brothers and I
would play hockey out there.
I was drafted, actually,
by the St. Louis Blues
back in my senior of high school,
and my dad told me,
"Kenny, you're staying here in Detroit
and going to work for GM,"
because there was no money in hockey.
Here's the plant right here.
That's Fisher Body Plant 23,
where I worked at along with my dad
and my brothers, right there.
I was working here during the day,
and my father-in-law owned a bowling alley
and a nightclub in Detroit,
so that's what I decided to go into.
Since I was convicted of rape
and the judge had exceeded
the sentencing guidelines, uh
because he said I failed to show remorse,
uh, I was given a prison term
of 40 to 60 years,
which to me
I was 43 years old at the time,
so actually, for me,
that was going to be a life sentence.
I remember it being so loud,
some guys yelling,
"Hey, fresh meat!" You know.
"Hey, pretty boy."
"Hey, man, you got a nice ass, honky."
I was scared to death.
And this was the first place I landed,
right in here. 4014.
After the door slammed shut,
there was a guy next to me over here.
I was crying. He asked me if I was okay.
I said, "No, I'm not okay.
I'm sitting in here
for something I didn't do."
He said, "Yeah, that's Everybody
that's in here says the same thing."
And he asked me if I wanted a square.
I said, "What's a square?"
He started laughing.
He said, "Man, I don't think you ever
been locked up in the joint before."
I said, "I told you that I haven't.
I shouldn't be here today."
And that's December 27th, 1994.
I will never forget it,
two days after Christmas.
I took that cigarette from him,
and that's when I started smoking.
[Kenny Wymen] Reality didn't really set in
until the first time
I went to see him in Jackson.
And it was almost immediate, you know?
The floodgates were open,
and my dad just started basically
professing his innocence.
[man] Ken wrote to our office in 1995,
and Ken writes,
"I am writing to you on my behalf
after my family saw your segment
on The Phil Donahue Show.
I am serving a 40 to 60 year sentence
for breaking and entering,
armed robbery, and rape.
As God is my witness,
I am not guilty of these terrible crimes.
I am sure your organization
is overwhelmed with requests for help,
but if you can find the time,
could you please offer some help?"
I always regret looking at this letter
and thinking about Ken
that we didn't act more quickly.
We were inundated,
and remain, in many ways,
inundated by all the people seeking help.
Um I can't.
I got too bad of a feeling
sitting in that cell.
I was at Jackson for three and a half,
four years.
There were cockroaches everywhere.
The water would come out brown.
Sometimes the toilets wouldn't flush.
It was terrible.
Eventually, the feds ordered
that part of Jackson be shut down.
So everybody was shipped out of there
and moved to different prisons, okay?
[Kenny] The Ryan facility,
it's a lot closer to where I was living.
And holy shit, this is it.
This is it right here.
This was the gate right here.
That was it.
That's where we pulled in to see him.
[sniffs]
It's safe to say that
because he got locked up,
um
when he got locked up,
and, of course, the charges,
you know, it definitely makes me think,
"Well, you know,
what type of person am I?"
You know, I wanted to kill a lot of pain.
[sniffs]
You know, drinking alcohol, smoking,
you know, smoking weed.
[coughs]
[Kenneth] I put together a packet
of what actually happened
during the trial.
I sent a copy to Dateline,
to 20/20, to 60 Minutes.
I was looking for a lifeline, okay?
[woman] I first got involved in the case
when I was a reporter
at the Detroit Free Press,
and I received a letter from Ken
proclaiming his innocence.
It was well laid out, and I thought,
"These things seem pretty easy
to check out."
Not to sound lazy,
but you don't want to be
on a wild goose chase.
Initially, I talked to the detective who
investigated it with him and he said,
"You really should talk to Tom Ostin
about this. This is more his case."
And so I got with him on the phone,
and he told me not to waste my time.
He also wanted to make clear
that Ken was just a loser anyway.
A coke-head, you know.
Who's going to believe this guy?
He's a waste to society anyway.
I didn't really trust
what Ostin was saying
and because he didn't want me to do it,
then I even wanted to do it a little more.
I wanted to look into it.
[Kenneth] One of my fellow inmates
had the Free Press delivered,
so he came up to my cell. He said,
"Kenny, your picture's in the paper."
I felt like a little kid
a week away from Christmas.
Well, after seven years,
that was the first time I thought I could
see a light at the end of the tunnel.
Ken told me, and more than once,
that he, um, was going to kill himself,
and he was trying to figure out how
because he
thought there's no way
he was ever getting out.
Who would ever listen to him?
[woman] Ken had exhausted
all of his appeals by that time.
So Ken was out of remedies
until Michigan enacted
the post-conviction DNA statute.
The Cooley Innocence Project
opened sometime subsequently to that,
and that's when I got involved
in Ken's case, was in the spring of 2002.
For me, as a reporter,
the most difficult part
was I wasn't able to tell the story
until the Innocence Project and Gail could
get those legal filings public information
and then I could write about it.
[Gail Pamukov]
The Innocence Project at Cooley,
they had already done
a preliminary review.
I also met with Kim Shine,
and I took her file.
I became pretty outraged
at how thin the evidence was.
This woman was masked.
She was blindfolded.
The perpetrator was masked,
and she was asked
to give a composite drawing,
and she had difficulty doing so.
That composite was the thing
that got Ken roped into this mess.
[man]
We became involved in the Wyniemko case
by referral from Gail Pamukov.
When you look at the evidence,
they had no way of showing Ken was there,
they had nothing.
No fingerprints, no tie, no nothing.
So what we were looking at
is how did this happen?
[sighs]
[man] This is exhibit 16F.
Let me ask you if this is the composite
that you and the victim
worked on together.
- That appears to be it.
- [man] Okay.
"Suspect had a nylon over his head
for most of the assault.
Victim feels this composite
is approx. 60% accurate."
- That came from the victim as well?
- [Alexander Ernst] That's correct.
[man] Why did you show Catherine Whitcher,
the ex-girlfriend, the composite?
- Why did I show it to her?
- [man] Yes.
Well, I had a tip that somebody called in,
said it looked like Mr. Wyniemko.
He had a stalking case
with Catherine Whitcher,
indicating that
Mr. Wyniemko was bothering her,
and it was just with the information
that I had that I
With the tip, and his name
on the police report from the stalking
that I showed it to her.
[man] Am I right that in June of 1994,
you had gone to detective school?
I believe it was in June,
the beginning of June.
[man] Had you ever been
to a detective school before?
No, this was the first, uh
It was called basic detective school,
I believe.
[Linda Davis] That's what may have been
um, Tom's first big case with me
and he was, if I remember correctly,
floundering,
I thought he thought I was a witch
after this case
'cause I had him running in circles,
doing things.
[man] I thought you said Detective Ostin
was floundering or foundering.
I don't think
I said that he was floundering.
I said he was new at doing
the criminal sexual conduct cases,
though it has always been my position
that you gotta dot all your I's
and cross all your T's
to get a conviction.
[Kim North Shine]
Linda Davis, what I knew about her
was from my time reporting
at the Free Press,
um, and covering courts.
Sex crimes were becoming
her kind of specialty.
She was making a name for herself
through those kinds of cases.
[man] Can you recall your reaction
to the case itself
after having met with the victim?
I was impressed with her.
She's not our typical victim.
Usually they were low-income,
horrible witnesses, drug addicts,
and I remember walking out, thinking,
"This is, like, the ideal case,
where you've got somebody
who's really got a lot of integrity.
[Roger] Ms. Davis, the prosecutor,
took charge of this case,
and she took charge of all of her cases
and was also constantly directing
any of the officers in charge
to perform certain tasks,
and in fact, if I recall correctly,
she was involved
before the warrant was issued
and was present at the actual lineup.
[Linda] I said hello to her.
I told her to just relax,
that there was no pressure on her
to do anything at this point,
that I felt that we had a strong case
and not to feel any pressure.
- [man] Pressure in what sense?
- To identify somebody.
[male voice] Turn to the right.
[Linda] There was somebody on a speaker
that was saying,
"Number one, step forward,"
something like that.
And then, um, I remember her eyes
locking on an individual,
and I did not know which person
was Mr. Wyniemko at that point.
Uh, so I had no clue which person he was
in the lineup until later.
[Kenneth] The first time I saw Linda Davis
was before the lineup procedure itself.
When I was originally brought in
by Ostin and Detective Marlatt,
every now and then, this woman would
take Ostin away from the desk and talk.
Then Ostin would come back and sit down.
This woman would go back behind the glass.
And as it turned out,
that woman was Linda Davis.
[Linda]
Her eyes locked on Mr. Wyniemko,
and, um, she got very nervous,
and shortly after that,
she says, "I can't do this.
I need a break. I need a break."
The victim advocate then took her,
uh, to get her a drink of water,
and Tom and I stayed in the hall
and talked.
That, and, um
And then when she came back,
she said she wanted to hear them speak.
It was something about
when the sexual assault was taking place
that this person would say,
"Come to Daddy."
And I believe that she wanted him to say,
"Come to Daddy."
But I'm not sure of that phrase.
We were asked to say,
"What time does your husband come home?"
Okay?
[man] After the suspects said the phrase,
whatever it was,
what happened next,
to the best of your recollection?
She immediately pointed to Mr. Wyniemko
and said that she thought
that was the individual.
What's troubling about that
is she couldn't identify anybody
on her first view of the subjects
in the lineup,
and so to then go and have
some sort of unrecorded,
undocumented conversation is troubling.
[Linda] You can prove a case
by totally circumstantial evidence
if need be
and there were so many
so many circumstances in this case
that led to believing that Mr. Wyniemko
was the perpetrator of this crime
that the lineup was frosting on the cake.
[Marlinga] The job of a prosecutor
is to convict the guilty,
set the innocent free,
and protect everybody's
constitutional rights in the process.
This was a hardball, rock-solid,
unconstitutional lineup.
You have to see whether or not
the overall description
matched that of the perpetrator.
It didn't.
You have to take into account
whether or not
the victim had an opportunity
to observe the perpetrator.
She didn't. She clearly said she didn't.
[George Googasian] The prosecutor used
that positive ID in a very powerful way
'cause that's something prosecutors do.
"Madam, do you see the man that raped you
in the courtroom?"
"Yes, I do."
"Would you point him out, please?"
She points, and they say,
"Let the record show
that the victim has pointed
at Kenny Wyniemko as the rapist."
Now, if you're a juror,
it's just about over at that point.
[Kenneth] My dad passed away
when I was still in prison.
I was not allowed to go to the funeral,
which, to this day, still bothers me.
He should not have had to suffer
the way that he did.
He was a He was a good man.
He was a good father, good husband.
A proud veteran.
[Kenny sighs]
[Kenny] My dad has told me some things
that have happened to him in prison.
You know, um,
I know that he has seen people killed
for a candy bar. Um
Some guy tried climbing out
over a barbed wire fence,
[coughs]
and they shot and killed this guy.
Like, right in front of my dad,
like, right in front of everybody.
- Nice. Yes, baby. Yes.
- [man cheers and claps]
[Kenneth] Good job.
If you're convicted of a rape,
in prison,
you're on the bottom of the toilet bowl.
You're just above a child molester.
The inmates, when they found out
about my background in sports,
I played on the floor hockey team.
And that was a layer of insulation
that I was fortunate to have
put around me, you know, for protection.
I didn't take shit from anybody.
After the second game I played,
you straighten a couple of guys out,
you get a lot of respect
from the rest of the inmates.
They'll think twice about
trying to stab you or whatever,
and if anybody from the other team
took any cheap shots
against one of my teammates, well
I'd come and say hello to him.
Put it that way, put it politely.
I feel like hitting somebody right now,
as a matter of fact.
If that fucking cop was here,
I'd like to hit him.
[Thomas Howlett] I think the
Clinton Township police and Linda Davis
had a blindness to
the incompetence of their investigation
because of this tunnel vision
that they got
once they had
Ken Wyniemko in their sights.
There was a lot of tips that came in,
and a lot of them just didn't pan out.
[man] Would you agree that one reason
that certain tips can't pan out
is because they're not followed up on?
[indistinct speech]
It's possible.
It was frankly remarkable
how many leads
had not ever been pursued,
how many pieces of evidence
had not been tested.
[Gail] At the crime scene [sighs]
there was a pair of lavender panties
that were recovered.
Detective Ostin specifically directed
that the panties
not be forensically tested.
There was no explanation for that.
It's so unusual to have, you know,
law enforcement say,
"Don't test evidence."
It was in a report
that there was semen found
on a pair of underwear.
Um, I didn't question it.
I made an assumption
that it was Mr. Wyniemko's,
and it was explained to me by Tom Ostin
that the victim had had an affair
earlier that night,
that she had never
had that pair of underwear on
after it was initially taken off of her
by Mr. Wyniemko
and that it could not have
possibly been his semen.
So I did not send it for testing,
I would have otherwise,
and that was the only evidence
that was ever talked about
being sent away for DNA testing,
to my recollection.
DNA testing by 1994, 1995,
um, it was comparatively common.
Um, cigarette butts was always known
from the beginning
as being a great source of DNA
because people smoke them,
and you get a lot of saliva and skin cells
in a concentrated form in cigarette butts.
So police were always doing that.
Fingernail scrapings from the beginning
were always known
as a very good source of DNA
because, directly,
you knew that the fingernail scrapings
would be involved
in the struggle with an assailant,
so that was very good evidence.
You would look at the DNA on underwear,
of course,
and then you would always want
to compare it to nylons,
fingernail scrapings,
as happened in this case,
'cause you get
what's called redundant results.
I did not know that a cigarette butt
could even be tested.
I was thinking semen,
um, hair, things like that.
I did not even think about
somebody smoking a cigarette
being able to be tested, so
But all of that, to my recollection,
all of those things were kept as evidence.
[Gail] When I finally went
to the Clinton Township Police Department
in the summer of 2002,
the evidence locker
was put out on a table.
The amount of biological evidence
was astounding.
There was a rape kit.
There was a lot of evidence recovered
at the scene in terms of bed sheets,
pantyhose, you know,
things that had been used
for purposes of restraints,
the cigarette butt.
So there was a lot,
and in the fallis when
I really kind of put pedal to the metal
and decided to write the motion
to release biological evidence
for DNA testing in his case.
[Marlinga] Gail Pamukov wanted to know
if I would agree
to have some evidence tested
that might have DNA on it,
and I just said,
"Well, sure, of course. If he's guilty,
it's just going to confirm it.
If he's not guilty, God forbid,
then we're going to free
an innocent man."
[Gail] The motion I prepared
was set for hearing,
I believe it was on November 9th of 2002.
In April of 2003,
I, um, followed up with the crime lab
to find out what was going on
with the DNA testing.
Shortly, after that, I was called
by the assistant prosecuting attorney
and basically she said that things
might be happening in Ken's case.
To me, that was huge.
[Marlinga] I got the communication
from the state police,
and they explained that the scrapings
under the fingernails,
semen stains on the stockings,
and the DNA from the saliva
on the cigarette butts
were not that of Ken Wyniemko.
It was like an anvil
falling in my stomach.
I knew what this meant:
that he was stone cold innocent.
[Gail]
The DNA profile from the cigarette butt
and also fingernail scrapings
identified an unknown DNA donor
and definitively excluded Ken.
It was stunning.
It was just stunning, and I was elated.
I was just elated.
It was really amazing.
But as I was driving to the prison
to tell Ken,
I started to get really sad about it.
You know, there's no, um, playbook
in life to tell somebody,
"Look, you know, the last nine years
have been a big, huge mistake."
[Kenneth]
I was at the Ryan Correctional Center.
Gail walked in, and, um, she said
I am an innocent man.
Carl Marlinga wants me released
the next day.
And I, um
Well, I can remember I put my head down
on my arms like this,
and I started to cry.
Excuse me.
I think I floated back to my cell.
That night felt like ten years.
Gee, I was doing push-ups, I was praying.
And then finally on June 17th,
the courtroom was packed.
All my close friends were there,
my son was there,
and this cop is bringing me
up to the bench.
He's telling me,
"You ain't going anyplace."
And I went, but I'm thinking,
"You just wait a couple minutes, okay?"
[voice breaking] I just remember,
just, you know, "Just say it! Just say it!
Just say that he's free to go."
You know, "Just say that he can go."
[sniffs]
And I started saying that, you know,
just, you know, praying.
The judge, Servitto, said
"Mr. Wyniemko," you know,
"you are an innocent man.
You're free to go. Good luck."
It's a day I'll never forget.
June 17th, that's my
that's my second birthday.
[Kenny] He fucking walked out
with a big smile on his face,
with, you know,
with his fist up in the air.
And that was the first time
my dad saw his grandkids.
[Kenneth] If I can, I'd like to propose
a toast to good friends and to the truth.
[male reporter] But what about Wyniemko's
nine long years in prison?
Can there ever be compensation
or even retribution?
- Are you even thinking about that?
- I will down the line.
Right now,
today is a day of thanksgiving for me.
- Are you mad at the system?
- Yes!
Yes, I am, because, I mean,
why didn't they discover that earlier?
Not wait till it's going to be ten years.
I'm going to say I'm sorry.
It falls way short
of what I could possibly hope to say,
but I've got to say something
and to not say I'm sorry
would be terribly wrong.
[Gail] At the time,
Ken was the first person in Michigan
to be exonerated
under the post-conviction statute.
There was no resources at all.
So he had no clothes,
he had no money.
[sighs] No home.
No car.
No health insurance, nothing.
So, you know, I'm taking down
shirt size, pants size, shoe size,
you know.
Names and addresses of people
where he could maybe stay.
[Jerry]
Do I feel guilty about sending a guy away
for 3,500 nights in jail,
where he was subject
to brutality and that?
Yeah.
It makes me question
everything about our judicial system.
They made a big deal about, um
there not being testable DNA,
or not being testable, um, evidence.
I wouldn't have known about that
as a juror.
As an accountant, for sure, you know,
but, um, someone knew.
[Gail] The cigarette butt was identified
as being a critical piece of evidence.
They knew that the perpetrator
was a smoker. It wasn't tested.
Same thing for the fingernail scrapings.
It was in a sealed package.
It had never been opened.
The fact that everybody in the case
didn't step back regularly
and say, "Wait a minute.
We need to look at this again
and look at it again," is troubling to me.
[Kenneth] You can't give anybody
ten years of their life back
or the hell that they had to go through.
But somebody owed me something
for the injustice that was done to me.
Gail told me, "Kenny, I'm going to get you
the best civil attorneys out there."
[Thomas]
Ken came to, I think, all the depositions
and sitting next to an innocent man,
asking people what happened
to cause him to spend nine years in prison
was a fairly intense experience,
but there was enough
about what Ken told us
and about what he'd experienced
and the details he could provide
that made us think that
this was a case of civil rights abuse.
[Cathy] I remember seeing
- this
- [man] Okay.
Do you know As you sit here today,
does this look like anybody that you know?
- Yes.
- [man] Who do you think it looks like?
Wyniemko.
[Thomas] One of the key things in any kind
of criminal prosecution like this
is to be able to look at the bias
of the witnesses.
I was a little bit suspect
about the identification.
I wanted to make sure that it wasn't just
some crazy woman who wanted to get back,
but then when she gave so much detail,
that kind of overrode the fact that
I mean, a lot of girls are angry
at their ex-boyfriends
without wanting to accuse them of rape.
[Kenneth] I was dating Cathy
at the time of the rape.
She was going through a divorce
at the time
and as it turned out
she ended up moving in with me.
I asked her to move out
after I found out that she was
sleeping with her ex-husband again.
[man]
What is it that you recall specifically
that you claim Mr. Wyniemko was doing
as far as harassment
and leading
to the stalking charges back in 1994?
He just wouldn't leave me alone.
He was there wherever I went.
He just wouldn't
Told him no and it was like
he didn't want to see that.
[Kenneth] There was a message
on my answering machine
from Cathy.
She said that she was going to kill me,
and I can remember Lynn Davis,
she got real close to my face,
pointing her finger. "And I suppose
you still have that tape, right?"
I don't remember mentioning
I don't remember any tapes prior to this,
to him bringing it up.
But you know who had those tapes?
Detective Ostin.
I suppose she may say,
"Well, I didn't know
that the detective had those."
Well, even if you didn't know, um
you would turn to the detective,
and say, "Well, where are they?"
5.54 p.m., Thursday.
[answering machine beeps]
Kenny, this is Cathy. Pick up. Hello?
Kenny?
If you don't fucking leave me alone,
I'm going to fucking kill you myself.
Leave me alone.
[man] Does that sound to you
like your voice on the tape?
- It could be, I'm not sure.
- [man] Okay.
[Thomas] Those answering machine tapes
were stuck in a separate,
never-disclosed police file,
and they absolutely confirm
what Ken was saying,
and the juror never got to evaluate
that type of testimony.
[man] I think you said
that you wanted to make sure
that it wasn't just a crazy woman
who just wanted
to get back at Mr. Wyniemko.
What did you do to address that concern?
Um, I believe that,
and this is one of those things
where I don't know if I did it
or if I had Mr. Ostin do it,
but I believe I had Tom interview
this individual and I told him
to get as much detail
about their sexual relationship
as he possibly could.
[man] Why did you advise Miss Whitcher
that Mr. Wyniemko was a suspect
in a serious assault case?
To explain the reasons
why I needed to know
personal intimate details
of her sex life with him.
[man] Did you have any concerns
about how that would affect
her reliability as a witness,
to tell her that?
No, because I didn't give her any details
of what we were looking for.
[Barry Scheck]
The fact that some of the details
that she'd described of their sex life
corroborated the details
for the crime is troubling.
Could a detective have suggested, "Well
Hey, did he ever put handcuffs on you?
Was there ever anal intercourse?
Were there other things of this nature?"
And that's the way that a witness
who has a grudge against a defendant
could understand, uh, what she had to say.
The
The critical component was tainting
uh, with the fetish behavior
that the true rapist did,
and they bridged that
with his ex-girlfriend.
[Marlinga] When it comes to Linda Davis,
as to what what her motives were,
in 1994, she was cranking up
to run for prosecutor in 1996.
I think that she was trying to impress
the police in Clinton Township
that, "Look, I'm so tough and diligent.
I'm ready to go.
I'm not going to cut any slack.
We're going to go to trial immediately."
And it turns out that,
because I know that Tom Ostin
worked on her campaign in 1996,
um, I believe that there was
a very close relationship there.
[man] Do you remember how it is
that Mr. McCormick was identified
as a potential witness?
[Linda] I believe [sighs]
I believe this is how it was,
but I wouldn't swear my life on it.
I thought that he contacted
either
the prosecutor's office or Tom Ostin.
Have a seat.
That chair right there's good.
- Right here?
- Yeah.
[Marlinga] According to Glen McCormick,
this starts with a phone call
that is placed to him,
meaning that Linda Davis
wants to talk to him.
[Thomas] According to Mr. McCormick,
Linda Davis was directly involved
in developing his false testimony.
When the revelation came to light
- I'm not gonna bullshit you.
- Okay.
[Thomas] the Clinton Township Police
spent two and a half hours
asking Glen McCormick questions
as supposed
internal affairs investigators.
So we have you in a room
with Detective Ostin and Linda Davis.
- Correct.
- She comes in.
- Correct.
- Okay.
And
introduces herself.
- Yeah.
- And then
Right after the introduction
She, she basically, right at introduction
she basically told me,
"You're between the rock
and a freaking hard spot."
"And I'm the hard spot."
Glen, he was threatened with a charge
of habitual offender,
which is a life imprisonment offense
in Michigan.
And then he was told,
"If you can help us in this case,
we will make sure
that you are not charged
with habitual offender."
And so Ostin got him in the room alone,
and he said to him, uh,
"I'm going to leave the room for a while.
Here's the police report.
I'll be back in a little while."
His testimony against Ken Wyniemko
was then created in that interview room.
[man] So I'm not sure
At the initial interview, she goes,
"Would you mind a tape player here?
I want to record this."
Sure, no problem.
I got no problem.
But whenever she wants to say some
real nice to me
You are being sarcastic? [crosstalk]
That's what I'm trying to understand.
- She's clicking it off.
- Okay.
So she clicks it off
when she's being sarcastic?
Oh, yeah.
Before the interview even started,
she made sure
She made sure that
she had her foot on my neck.
[George]
"I did it, but they don't have shit."
That's what Linda Davis asked him to say.
That's a confession,
and that was fraudulent. That was false.
I didn't believe that he was that vital
to our case. He was more
Like I said, I thought he was
more frosting than anything else.
It was good to have him, but
It's absolutely impossible
that McCormick could have ever heard
a confession from Ken Wyniemko
that involved details that only the police
and the real perpetrator knew.
You can't unring that bell.
The jury heard it, and even though
they may think that Glen McCormick,
or in other cases, other snitches are,
you know, unsavory
and, you know, not very good people,
it doesn't matter.
[man] You've used the term
"frosting on the cake"
to describe both Mr. McCormick's testimony
and also the lineup.
With the understanding those were both
frosting on the cake, what was the cake?
[Linda] The circumstantial evidence.
I mean, it was overwhelming.
The fact that he hung out
at the bowling alley,
that they found evidence,
latex gloves, um, handcuffs,
which by themselves
are not strong evidence,
but taken in light of everything else,
it is.
The statements from his girlfriend.
[Marlinga] The public wants to hear
a prosecutor be tough on crime,
but if you're going to do the job right,
you have to explain,
"I'm there to enforce the law,
the whole law,
which includes
the Constitution of the United States,
which includes
the presumption of innocence."
And this happens all over the country,
where an assistant prosecutor
runs against the boss.
And usually it's that
the boss isn't being tough enough.
Why? Because the boss is being ethical.
But in order to do the job right,
you basically have to say,
"To hell with the pressure"
[scoffs]
"I'm going to do the right thing,
and if I get unelected, so be it."
I mean, there are worse things
than losing an election.
Being unethical is far worse
than losing an election.
Giving in to public sentiment
is far worse than losing an election.
You just have to do what is right
all the time, every time,
and not think about it.
[man] In light of learning about
the DNA testing,
did you change your mind at all
about the way you handled the case?
[Linda] No, and I will tell you that
when I received the call about it,
I didn't sleep that night
because I was awake all night,
reiterating everything that had happened
at that trial
that I could possibly remember,
uh, to see if I had overstepped bounds,
if the officers might have,
and, um, although I feel
that this is very unfortunate,
I don't I don't feel guilty about it.
[Marlinga] I remember that I had
a brief conversation with Ms. Davis
in which she still
expressed the belief that
Mr. Wyniemko somehow still was guilty
or somehow involved with the crime.
And, basically, that's about the last time
I talked to her about the case
because I could not fathom
how she could say that.
- Hello, my friend.
- [man chuckles]
- How are you?
- It's good to see you.
Good to see you.
I'm amazed you came back to this place.
[laughs]
- It wasn't easy, I'll tell you that.
- I know.
[Thomas] Ken was not somebody who was
welcomed back into society with open arms.
As far as, you know,
many people were concerned,
he must have done something
to be in prison for nine years.
When an opportunity for a fair settlement
can be achieved,
it needs to be taken into account.
[Kenneth]
We finally came to a settlement agreement.
The city of Clinton Township
and the Clinton Township Police Department
paid me $3.7 million.
That's a lot of money.
But again, if someone gave me
that kind of money to go back
to spend all those years in prison,
I would You know, I'd laugh at them.
You gotta be crazy.
[Thomas] I met with the victim.
I think she was having a hard time
processing that
she had been a party to a trial
about something that had happened to her
and an innocent man had been convicted.
The only way
that there's ever going to be closure
is for the victims to find that
the right person is found and convicted.
By convicting an innocent person
in between,
you expand the length of suffering
- for the poor victims.
- Sure.
So if the prosecutors would
do their job right in the first place,
all of that suffering would be abated.
It would never happen.
After Ken was released,
the unknown donor DNA sample
was put into the national DNA database,
which ultimately is what resulted
in them finding Gonser. There was a hit.
[male reporter]
Cameras roll as police scour this home,
hundreds of miles from Detroit
in northern Michigan.
Two different search warrants,
one common link:
this man, Craig Gonser.
[female reporter] He pleads no contest
to being a sexual delinquent,
having racked up
a laundry list of convictions,
over the years
caught masturbating in his car,
doing so while hiding in bushes,
and recently in front
of his one-year-old daughter.
[Marlinga] When you take a look
at the real perpetrator,
he's a huge man.
And when you look at his face, it doesn't
look at all like the composite drawing.
The drawing actually
looks more like Ken Wyniemko
than it does to the real perpetrator.
The bad news is that we are unable
to charge Craig Gonser
with that 1994 rape
due to the statute of limitations.
[Marlinga] Was there justice? No.
Nobody really paid the price.
Linda Davis became a well-respected judge,
and it doesn't seem that
the scales of justice
have been balanced at all.
We certainly did not have an instance
where the prosecutor, um,
was in any way disciplined or punished
uh, for engaging what certainly,
on the face of it,
appears to be
deliberate acts of misconduct.
[Thomas]
Unfortunately, prosecutorial immunity
is much broader than police immunity.
We were trying to get relief
for Ken Wyniemko
and suing a judge, you know,
just made no strategic sense.
[Gail] I think that these cases
put all of us on notice.
There's been 364 DNA exonerations,
which is a lot,
but when you think about the fact
that there is, what,
eight million people currently in prison
or in custody in some way,
it's just a drop in the bucket.
[Kenneth]
I came here on the day of my release
because I wanted to visit my dad's grave.
The last time I saw him
uh, when he and my mom came to visit me,
he started to break down.
He started to cry.
And he said, uh
He said he couldn't understand,
you know, when World War II broke out,
he was called, he answered the bell,
he served his country
to protect our freedoms.
Everyone's freedoms.
I should have brought some flowers.
And now the criminal justice system
has his son imprisoned wrongfully
for a crime he didn't commit.
He couldn't understand
how that was allowed to happen.
These problems have terrible repercussions
on not only the victim,
but on someone like myself,
who was an additional victim,
and our families, so
that fact alone strengthens my resolve
to do what I do now:
to fight for criminal justice reform
because it is long overdue.
[somber instrumental music playing]