The Tomasik Exoneration Part 2

Episode Notes

Transcript

State Bar of Michigan: On Balance Podcast

The Tomasik Exoneration Part 2

01/19/2018

[Music]

Intro: Welcome to State Bar of Michigan’s On Balance Podcast where we talk about practice management and lawyer wellness for a thriving law practice with your hosts JoAnn Hathaway and Tish Vincent, here on Legal Talk Network.

Take it away ladies.

JoAnn Hathaway: Hello and welcome to another edition of the State Bar of Michigan: On Balance Podcast on Legal Talk Network. This is JoAnn Hathaway, I’m a Practice Management Advisor for the Practice Management Resource Center at the State Bar of Michigan.

Tish Vincent: And this is Tish Vincent, the Program Administrator for the Lawyers and Judges Assistance Program at the State Bar of Michigan. We’re recording today’s show at the NEXT Conference in Detroit, Michigan.

We are here for the second in a two-part series covering the wrongful conviction of Dennis Tomasik.

Before we get started, Mary, please give us a summary of what we are here to discuss today and introduce those who are with you?

Mary Chartier: So today, I have co-counsel and my business partner Takura Nyamfukudza, who was part of the trial team for the second trial that led to the acquittal. Also with us are Dennis Tomasik and his wife, Kim. Dennis was wrongfully imprisoned for nine years until the acquittal in the second case and his wife stood by him for nine years and was a huge source of support and motivation for everyone in being able to gain the acquittal.

And today, we’re going to talk about the second trial as well as the effect of this on Dennis, his family, his wife, and where they are now.

Tish Vincent: Thank you. Well, we’re here to discuss that and so we’d like to hear from whichever one of you would like to start.

Mary Chartier: Well, Kim, do you want to tell us a little bit about the nine years that you fought for Dennis to get the retrial and then what the retrial was like in terms of the differences between the first trial?

Kim Tomasik: Sure, nine years. It was the struggle. We were very blessed in so many ways. We had so much support. At first when the accusation comes you think, “Oh my gosh, this is horrible,” but we had people paying our bills and helping us, helping to watch my kids when I would go to visit Dennis and protecting them, just taking care of us financially and mentally; friends coming over and saying, “Get out of the bed, you’re not doing anybody any good laying there. So, it’s time to get moving,” when I have my bad days. We were very blessed.

The difference between the two trials, actually the first attorney had exactly what Mary Chartier had and he didn’t use any of it, and I knew that if we could just get the new trial that we would be fine and I was blessed to have Marty Tieber and Kris Tieber take our case and he fought like crazy, and he never gave up. He didn’t walk away. Even when the money ran out he was determined to fight for the truth and get justice for my family and he did an amazing job.

Tish Vincent: Thank you. That’s very impressive. Unfortunate that you had to go through all that, but so good that people came forward and helped you like that. So Mary, who do you think we’d like to hear from NEXT?

Mary Chartier: I think Dennis is the reason that all of us are here. So, you want to talk to Dennis about his experiences and what life has been like since the acquittal?

Dennis Tomasik: Well, it was very hard walking in from being a tooling engineer at a plastics factory building dyes and special machines to walking into a prison cell. I worked very hard to keep my sanity in there and just keep working to prove my innocence and I really couldn’t really do a lot in there. I was very limited to what I could do, but I knew that my family, my friends were out there fighting for me the whole time, so I just — I had confidence that this would change and I know that over the years in the appellate process, I got shot down quite a few times and it was very, very heartbreaking to have something like that happen to you. You’re thinking you’re gaining and then all of a sudden you’re down again.

It took to the Supreme Court to reverse this, and it was the best day of my life when I heard that it was getting reversed, and it’s probably the hardest thing somebody could go through in their life other than losing a spouse or losing a child.

(00:05:05)

It was very traumatic for me. I had never got in trouble before my whole life, so I didn’t know nothing about prison or jail or anything, and to go in there with such a hard case, it was very hard. But, I always — I told everybody there what I was in there for, that I never committed this crime, and that one day I would walk out of there, so —

Tish Vincent: And you did.

Dennis Tomasik: Yes.

Tish Vincent: And you did.

JoAnn Hathaway: And Dennis, do you feel with some of your other inmates as you had indicated to them that you did not commit this crime, were there other people in prison too that were making the same type of assertions to you that, “I am — I was wrongfully convicted and I should not be in here.” Did you experience that at all?

Dennis Tomasik: Yes, I did. It was a very big misconception of the public. They have a misconception that everybody in prison says they’re innocent and that’s not true at all. There’s very few people that claim their innocence and the people who do are usually the people who are innocent and you can tell by the way they fight for their innocence. So, yes, it was hard but it was kind of an eye-opener to the people who I thought were innocent, but it’s not like people say that everybody claims they’re innocent because most of them claim they weren’t innocent.

JoAnn Hathaway: Well, you do hear of those experiences too where inmates sometimes do make confessions to fellow inmates even of crimes that they are not in prison for at that time, so —

Dennis Tomasik: I think a lot of that is a lot of propaganda from a lot of different sources. I really didn’t see that so much when I was incarcerated but it may happen but I didn’t really witness it. So it was a very traumatic experience to say the least but I stood strong and God was with me the whole time, took care of me, and I was very grateful for everybody and my wife and my children and all my friends who stood by me this whole time.

I mean, people don’t realize just a little letter in the mail how that brings up your spirits every day and keeps you going, to know that there’s people out there that love you and want you home, very traumatic to — just get that letter and feel so good about just a little piece of paper. It was nothing I experienced in my life before. So it really brings the whole thing of life right in front of you; to have your whole life taken away in a matter of two seconds.

Tish Vincent: And yet the messages you got from people who were out there and believed in you, and we’re taking the time to write to you and to reach out to you, it sounds like that helped you enormously.

Dennis Tomasik: Oh yes!

Tish Vincent: Yes.

Dennis Tomasik: 100%.

Tish Vincent: Yes.

Dennis Tomasik: And a lot of my friends would write me and they’d go we don’t really know what to write, so we’ll just write our daily events of what’s happening in our life.

Tish Vincent: Yes.

Dennis Tomasik: And that’s what they did and it was very good for me because that felt like I was still part of their life.

Tish Vincent: Yes. They haven’t forgotten you and then you had a group of passionate attorneys who were working with everything they could put into it.

Dennis Tomasik: And, this is when Marty and Kris were working on the appeals all those years.

Tish Vincent: Yes.

Dennis Tomasik: And it was very hard for them because they thought for sure that they could turn this around in a shorter amount of time, but they also let me know in the beginning that this is not an easy job.

Tish Vincent: Yeah.

Dennis Tomasik: Post convictions are very, very hard to turn around.

Tish Vincent: Yes.

Dennis Tomasik: And that don’t get my hopes up, but the hardest part I think was when in the appellate stages of it, in the infant stages of the case when I thought I was going up to a plateau and something was going to happen and then just boom. No.

Tish Vincent: I imagine.

Dennis Tomasik: And then the time period for all this to take place is years.

Tish Vincent: Yes.

Dennis Tomasik: It’s not like, we’re used to, oh, well, if something happens, we can change that in a matter of an hour.

Tish Vincent: Right. No. It’s years.

Dennis Tomasik: This is years.

Tish Vincent: Yeah.

Dennis Tomasik: And then every time that you’re shot down, it’s just like, it just takes all the winds out of your sails.

Tish Vincent: Right. And your hopes are raised and then it’s going to be years again.

Dennis Tomasik: Right.

Tish Vincent: Before you get another chance.

(00:10:01)

Dennis Tomasik: Exactly.

JoAnn Hathaway: Well, and this was eight years to be exact is that correct? And I know —

Tish Vincent: Nine. Almost nine.

JoAnn Hathaway: — Marty and Kris had indicated that they thought that that was basically an unprecedented period of time for an appellate process, so that’s quite a story.

Tish Vincent: It is quite a story. Mary, could you share with us the legal part of the story and how you came into it and what you saw and what you think you did that made a difference?

Mary Chartier: Sure. So originally when the conviction was reversed, Dennis had another lawyer and Marty Tieber, for anyone who knows him, is extremely passionate, very involved in his cases. So he’d contacted this other lawyer and said we’ve done all this work. We know witnesses who you should speak with. We have evidence that you should seek out, and I can provide this to you in a very well-organized fashion, and if you’re a trial litigator to have an appellate lawyer hand that to you, I mean, I would — if I could do a cartwheel, I would do a cartwheel, I mean, it’s just amazing. But the lawyer who was working on the case was apparently really busy and he said to Marty essentially like, and I believe the exact quote was, “dude, I don’t have time for you.” So Marty said, “Absolutely not.”

So he called the Tomasik’s and said you need another lawyer. And I’ve known Marty for a long time, I respect him a lot, and he called me and said, “You’ve got to take this case, or you have to meet with them. You’ve got to take the case. He’s factually innocent. I can give you so much to get you ready for trial and you have to do it.” And I respect Marty so greatly that I thought if Marty Tieber is telling me, this guy is innocent, this guy is innocent.

So quite frankly, they couldn’t afford our fees, but I met with Takura and the other trial team and said, “We’re going to be doing this and really putting a lot into it and not being compensated financially, but I really want to do it,” and everybody was 100% on-board. We had met with Kim who was amazing. So for nine years, she had documented so many facets of this case. So, in addition to getting this amazing file from Marty and Kris Tieber, we got from Kim boxes of going through transcripts and her graphing out inconsistencies and going through police reports and having done Freedom of Information Act requests and putting all of this together for us and then saying like, “Look it, here are some things that you may or may not be able to use.”

So, we were able to use a lot of it. Some of it we didn’t believe would advance the ball just because it would be so much minutia, but it was amazing. So, we met with Kim. We absolutely loved her. We had met with her son, Ethan as well. We met with Dennis, really liked him. And, then we just started working on the case and we worked on it for about a year before we went to trial, and really, any trial lawyer will tell you, it is boots on the ground. So Takura spent, I don’t know how many weekends tracking down witnesses literally all over the country, from Alaska to Florida, to Colorado, to Michigan, meeting these people at their homes.

A couple of witnesses who didn’t know Dennis, former teachers of the complainant didn’t necessarily want to be involved. He literally went to their houses, convinced them that they had to be involved. They had information that was relevant, and so I think it was just an amazing, and obviously, I’m biased, because I was a part of it, but it was an amazing trial team who put the hours in and fought for Dennis, the same way we would for any client.

JoAnn Hathaway: Okay, Takura, can you tell us. I know Mary had indicated you did a lot of the legwork with regard to the witnesses, and one of the things Tish and I talked about in segment one when we were covering this particular, the circumstance, we talked about how we were amazed because memories can wane, people move away. It can be hard. So, can you share some of the experiences that you had with the witnesses that you would like to share?

Takura Nyamfukudza: Certainly. So, again, as Mary just said, Kim did a lot of work for us. So, before I actually spoke with the majority of the witnesses, I knew about them; where they lived, who their spouses were, but meeting with a lot of them in their homes helped and just telling a little bit about Dennis’ story also helped some who absolutely had no interest in speaking to me.

I knew I was calling the right number, but at some point, I was questioning myself like, my goodness! Are my fingers that fat? Is this not a six? Am I dyslexic? Did I actually push a nine? But ultimately, the one witness who comes to mind, you know who I’m talking about. I was just fortunate enough to speak with a friend of hers who liked me and convinced her so that when I called her again and got an opportunity to tell just a little bit about Dennis, I was able to convince her to come on-board and go ahead and testify.

(00:15:02)

And again, a lot of these people didn’t know Dennis, so it’s not like they were testifying for somebody they liked, saying what they thought they needed to.

I remember listening to the story in Mary’s office, I was aghast. I couldn’t believe it. Then when I went to the Tomasik household and met Kim and her family, instantly, some people grow on you, but instantly, I fell in love with it. They took me around to a lot of the places where a lot of these things happened, where the kids grew up and very early on, I became ingrained. I spent six weekends. My mother lives in Grand Rapids, I was staying at her home, and even though I was in her home those weekends, I probably only saw her for a grand total of two hours because I was out and about, meeting people at our satellite office, in their homes and coffee shops and so on.

So, meeting people where they were comfortable, and I think they saw the passion, they saw the passion. I was persistent. I emailed, called, followed up and spoke with people after hours, and a lot of them remarked, “My goodness gracious, it’s after 5:00 p.m. You’re calling me and following up”. So I think they saw that we were putting a lot into this and like I often say, attitude is contagious. You want to make sure yours is worth catching. Them seeing how passionate we were, I think helped bring many of them around.

JoAnn Hathaway: Wonderful. So you indicated some of these witnesses, though I’m a bit intrigued, some of these witnesses had never met Dennis before, so who would these witnesses be then without naming names, but —

Takura Nyamfukudza: Right. So, the complainant’s counselor, one of his schoolteachers, those are two people who didn’t even know the name. I had to say his name four times and they said, “No, I’ve never heard the name before” and there were few others, but those are the ones that come to mind right away.

JoAnn Hathaway: I see.

Mary Chartier: Those witnesses were more again associated with the complainant and brought up issues that related to him. The witnesses who had lived in the neighborhood either as children or adults or who worked with Dennis obviously knew him, although some of the children said they knew Mrs. Tomasik because she was a stay-at-home mom and she was always there. They knew Mr. Tomasik because he might be around every now and then, they might see him on the weekend, but he might be outside working on a car, but some of them said, look at in all the years that they played with Ethan, they might have seen Mr. Tomasik once or twice, but they saw Mrs. Tomasik everyday which was in such stark contrast from what the complainant had said when he indicated that these incidents had happened pretty much every day after school, during a two-and-a-half-year timeframe and we were able to show that he was at work. So, he just couldn’t have committed them.

JoAnn Hathaway: Well, and what strikes me too is when you’re saying that Kim was a stay-at-home mom, she would have been there all of the time. So if all these contentions would — obviously, it would have been very difficult because you were a stay-at-home mom, so I’m sure that helped with the defense.

Mary Chartier: Takura did a great job in showing the jury how small the house was, so this wasn’t a mansion where you might be able to be in a wing of the home and no one would know you were there. The bedroom where this allegedly happened actually faced the driveway in the street, so with kids playing outside in the Tomasik household, a lot of kids played outside at, you would be able to see right into the room, you’d be able to hear anything that was going on, you’d be able to hear these screams that were allegedly happening.

We were also able to show through photographs that the bus stop was at the end of the driveway, so when the complainant was able to say, “well, I know there are red bunk beds in the room and trophies”, you could see that from the end of the driveway where the kids congregated for the bus stop, so you could look right in and we took photographs, you could see clearly into that bedroom.

But, Takura handled a lot of those witnesses and showed visually with a tape measure and other things in the courtroom how small the house was. We had a lot of photographs as well. Again, to point out, you’d have to believe not just that Dennis committed these offenses, but that his wife was there and turned a blind eye to it and that also, their two children were in the home and no one ever said a word and it just is so outrageous, even if we didn’t have him placed at work during the time, that it just wasn’t true and then we also had the added facts of, he literally was not home.

JoAnn Hathaway: So, your legal team really and the Tiebers really went out of their way to bring all the facts into the courtroom and then it was thrown out, that conviction was thrown out and you were freed?

Mary Chartier: The conviction actually wasn’t thrown out just to be —

JoAnn Hathaway: It wasn’t thrown out. It was — you were retried.

Mary Chartier: Right.

JoAnn Hathaway: Excuse me.

Mary Chartier: Right. So, the Michigan Supreme Court reversed the conviction —

JoAnn Hathaway: Okay. Reversed the conviction.

Mary Chartier: — Which paved the way for a second trial.

JoAnn Hathaway: Okay.

Mary Chartier: The prosecutor’s office decided they wanted to still go forward despite the evidence that had been presented to them by the Tiebers, so we had a second trial which lasted the better part of two weeks. The jury acquitted Dennis after 19 minutes.

(00:20:02)

JoAnn Hathaway: Okay.

Mary Chartier: They took one vote. They all voted “Not Guilty”. The only reason it took 19 minutes was because they had to use the bathroom and they showed us afterwards, they had a styrofoam cup. They all wrote down on a sheet of paper “Guilty or Not Guilty” and they all voted “Not Guilty” and they showed us the cup where they had all taken one vote, voted “Not Guilty”, and then they buzzed. We thought they wanted the exhibits and then the clerk told us, no, they had a verdict, and they came out and they acquitted him.

Takura Nyamfukudza: If I may add, I know I spend a lot of time tracking down witnesses and so on, but Kim, my goodness. She helped us help Dennis. Certainly, we had witnesses who testified about what the complainant did not do, where he was, and so on, but when he claimed, for example, that he was in their basement playing a particular gaming system, she had the original receipt showing that it wasn’t purchased for years after.

These bunk beds that he claimed he saw, we had the receipts because Kim saved these for us and we were able to show that all these claims he was making were not true. So a lot of the credit goes to Kim for everything that she kept and allowed us to present as exhibits.

Mary Chartier: And not just purchased by then, but the gaming system hadn’t even been manufactured, so the gaming system wasn’t manufactured for two years after this complainant had said and he was specific on the year. So, again, I echo Takura’s

sentiment that Kim had so many tangible receipts and objects that we could bring in to show the jury that these claims just weren’t true.

JoAnn Hathaway: Well, I think maybe you’ll have another potential team member here for your legal team.

Mary Chartier: I think so too.

JoAnn Hathaway: She’s a natural investigator.

Mary Chartier: But we have another case with the same trial lawyer, same judge and same former prosecutor, so we may be bringing them on-board on that.

Tish Vincent: You might need her help. Oh my goodness. I think we can talk about this for three hours. There’s so much.

JoAnn Hathaway: One thing we did want to ask you about, if each of you or both of you would like to talk and acquaint us with the Wrongful Imprisonment Compensation Act?

Mary Chartier: So, that was an act that was passed by the Legislature to try and compensate individuals who’d been wrongfully imprisoned. So, the case either needs to have been dismissed after a conviction was reversed or an individual has to have been acquitted at a retrial, but what most people don’t realize is, it’s not automatic. People think that you’re going to get $50,000.00 a year for each year you were imprisoned and that just automatically comes to you, it doesn’t.

You have to file a fairly extensive complaint and detail out the new evidence that shows that the individual is innocent and that’s what we’ve done for Dennis. Then it’s up to the Attorney General and they do consult with the county prosecutor and the complainant and an assault of crime has to be notified whether they are going to fight that award or not. If they choose to fight that award, it goes to the Court of Claims and then an argument has to be made and the Court of Claims can say, yes or no, whether they are going to award that and then it would be appealed up the ladder.

There are individuals who have been exonerated who are not receiving compensation. The Court of Claims has denied that to them, and I know those are being appealed. What’s significant for Dennis is he now is listed on the National Registry of Exonerations which is a joint project through U of M, MSU, and the University of California and they list exonerations very similar to Dennis’, where new evidence unequivocally shows that a person did not commit the offense, and we really hope that the Attorney General does not spend tax dollars fighting this. If they choose to do so, so be it. We’ll definitely fight it out. We think that we would prevail and we’ll never stop fighting for Dennis, but after all his family has been through, we certainly hope that they look at this and realize that a wrongful conviction occurred and a man spent nine years in prison when he never should have spent nine minutes in prison.

JoAnn Hathaway: Well, it looks like we’ve reached the end of our program. I want to thank all of our guests for joining us today.

Tish Vincent: If our listeners have any questions or wish to follow up with you, how can they reach you? Maybe Mary?

Mary Chartier: We have a website. Our law firm is Chartier & Nyamfukudza, which of course, those are the common spellings of both of those names, but our website is  HYPERLINK “http://www.cndefenders.com” www.cndefenders.com and we can be reached through email or telephone.

Tish Vincent: Thank you.

Takura Nyamfukudza: And now number, if I may add is (517)885-3305.

JoAnn Hathaway: Thank you. This has been another edition of the State Bar of Michigan: On Balance Podcast. I’m JoAnn Hathaway.

Tish Vincent: And I’m Tish Vincent. Until next time, thank you for listening.

[Music]

Outro: Thank you for listening to the State Bar of Michigan: On Balance Podcast, brought to you by the State Bar of Michigan and produced by the broadcast professionals at Legal Talk Network.

If you would like more information about today’s show, please visit  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com, subscribe via Apple Podcasts and RSS. Find the State Bar of Michigan and Legal Talk Network on Twitter, Facebook, and LinkedIn or download Legal Talk Network’s free app in Google Play and iTunes.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network or the State Bar of Michigan or their respective officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]

Continue Reading