The Innocence Case from Hell with Josie Duffy Rice

5-4

In this episode of 5-4, host Josie Duffy Rice joins Peter and Michael to discuss her new podcast, The Backfire Effect, which investigates the wrongful

Key takeaways

The case exemplifies how deeply flawed local justice systems can lead to wrongful convictions, even when physical evidence proves innocence.

Main topics

Wrongful conviction
Systemic failures in criminal justice

Notable quotes

He was demonstrably across the state at the time of the murder. And yet, here we are.

Conclusion

The Backfire Effect exposes a deeply broken criminal justice system where

Transcript preview

Speaker 3 (0:03) Hey, everyone. This is Leon from Prologue Projects. On today's episode of 5 to 4, Peter and Michael are talking to journalist and friend of the show Josie Duffy Rice about her new podcast series, The Backfire Effect. Josie's series dives into the case of Temujin Kenzu, a man serving a life sentence in Michigan State Prison for the 1986 murder of college student Scott Macklem. But Temujin says he could not have killed Scott. because he was hundreds of miles away when his murder took place. How can someone be convicted of a murder when they were halfway across the state when it happened? The answer includes, but is not limited to, corrupt cops, a drug-addled defense attorney, an imaginary ninja syndicate, and an amateur hypnotist. The Backfire Effect is the story of a truly wild case that also highlights some of the most insidious parts of our legal system. This is 5 to 4. a podcast about how much the Supreme Court and the criminal justice system suck. Speaker 4 (1:06) Welcome to 5 to 4, where we dissect and analyze the Supreme Court cases that have carried our civil rights to safety, like Donald Trump being carried from ground zero by firefighters. I'm Peter. I'm here with Michael. Hey, everybody. And our friend Josie Duffy Rice. Speaker 2 (1:23) Hi. You Speaker 4 (1:24) guys up on the Donald Trump ground zero story? Speaker 2 (1:28) Listen, I got to say, that guy's batting 100 for me. 1,000? Speaker 4 (1:32) A thousand. Speaker 2 (1:32) A Speaker 4 (1:33) thousand. You're doing great. Speaker 2 (1:34) A thousand. Okay. He's doing great. Speaker 1 (1:36) He is. I might be the only person in the country who believes his story. I do believe Donald Trump would look at ground zero and be like, we should go walk around there. We should go in there. Speaker 2 (1:47) What can we build here? The Speaker 4 (1:48) story he tells is, quote, I took the whole crew down there right after this happened. He says there wasn't too much we could do. Speaker 4 (2:01) Which seems like he's making it seem like we're going down to help. Like Donald Trump in his giant silk suit was going to somehow help out here. Speaker 2 (2:09) Honestly, the only reason he's going is if he thinks one of his investments is at risk. Speaker 4 (2:14) Right. Which Speaker 2 (2:15) is sort of what he seems to be implying. Like he's not like, oh, my children were down down. Speaker 4 (2:20) Well, no, no, no. Well, I mean, he wasn't he like verifiably on the phone a couple hours later, like talking to the news about how his building was the tallest now. So like when was that? Anyway, so then he he says that he was hanging out at Ground Zero sometime immediately after 9-11, possibly on 9-11. And the U.S. Steel Building was creaking. He says, we thought it was coming down on top of us and two firemen. big, strong guys. And I'm not a small guy. They grabbed me under the arms and said, got to get out of here. And they literally lifted me up and they started running with me. Speaker 2 (2:58) And what happened to the building? Seems like it was fine. I Speaker 4 (3:00) guess the building was fine. Yeah. Trump and like strong men like he Speaker 2 (3:05) loves them. He loves them. The Speaker 4 (3:06) psychosexual shit going on on the right. It's so surface level now that you can't even really make jokes about it. But the layers of lies here is. It's fucking hilarious. Like, first of all, he's obviously lying about all of it. But then even in this lie, he's telling he's getting carried by firefighters. Like, this is like you're having a teenage girl fantasy about going down to 9-11 and then firefighters rescue you. Like, what are you talking about, dude? Speaker 2 (3:37) He didn't carry them. They carried him. Right. He's not a Speaker 4 (3:40) hero here. He's the damsel in distress. That's right. 100%. Oh, man. All right. Well. Speaker 4 (3:50) So, Josie, we're having you on because you love me. Every couple of years you do a podcast and it's kind of right up our alley. And you've done one called The Backfire Effect, which is what's the state of it? Is it out now? Is it about to drop? Where are we? So Speaker 2 (4:05) it's out now as of yesterday. First of all, you just kind of like did a. devastating summary of my professional life, which is every couple of years you do a podcast. Speaker 4 (4:15) What are you talking about? That's the highest calling, Josie. Speaker 1 (4:18) Haven't some of them won awards? Speaker 4 (4:19) We've been podcasting professionally for like six and a half years and we win no awards. And every time you do one, you win like a like a Peabody or something. You've Speaker 2 (4:27) won awards to me spiritually, which are the only awards that matter. Speaker 4 (4:32) Every now and then we get someone emails us and is like, hey, would you like to pay us $150 to like be submitted to win? Super Speaker 2 (4:40) Lawyers podcast. Yeah, like some shit Speaker 4 (4:43) like that. It's like how you could get your child published in a poetry book in the 90s if you paid money. Right. That's the sort of competition that we're in awards wise. But you put out a podcast every couple of years and it will win a journalistic award. This one will probably win some award. Speaker 1 (4:59) We'll see. Yeah. And, you know, we wanted to talk about this podcast of Josie's because, you know, we talk a lot about. the injustice in the system that flows from the top, from the Supreme Court, which has often wide-ranging impact. But that's not the only place where there are problems, where there's injustice, and a lot of it happens, you know, at the trial court level, at the state court level. And this is just a great look. into one of those instances and a great window into broader issues like federal policy, like EDPA, which we'll talk about later. Speaker 4 (5:40) Yeah, the podcast is a great vehicle for discussing all of these different ways in which injustice manifests for normal people who are experiencing the legal system. So Josie, why don't you give us an outline of the show? Speaker 2 (5:56) So the podcast is called The Backfire Effect. It is about a case in Michigan where a man was convicted of murder. He was convicted of murder three days after I was born. And so our lives kind of like have this weird intersection, which is obviously his free life kind of ends and mine starts. And so he was convicted of killing his ex-girlfriend's fiance. Speaker 2 (6:23) Ex-girlfriend, I think, being a big term for what we're talking about. I mean, they dated. They dated for five weeks. He's also dating other people. She's dating other people. They date for five weeks. They break up. They don't speak again. And then four months later, her fiancé is shot and killed in the parking lot of a community college in Port Huron. Speaker 1 (6:39) Not only was he dating someone, he was engaged to somebody else when he dated this. He was Speaker 2 (6:42) engaged to someone else. He was engaged to someone else. To a pregnant woman. He had a Speaker 1 (6:47) pregnant fiancé when he dated this girl. That's how unserious their relationship was. Speaker 2 (6:52) That's also like an example of what kind of guy he was, which I think really does end up mattering in this case, right? Like he did not treat women well. He was abusive. He cheated. He was arrogant. And he, this was not his first child either. And he's 23, just like gallivanting around Michigan doing whatever. So, you know, he has kind of like created, I think, intentionally a perception of himself as Like, a badass guy who's not to be fucked with, who, you know, could hurt anybody he wanted and, you know, do whatever he wanted. And then this comes back in a really kind of aggressive way to hurt him when he's, like, accused of murder. That honestly should have been, like, the beginning and end of it. Like, obviously, you should look at the ex-boyfriend because it usually is Speaker 4 (7:38) some, Speaker 2 (7:39) like, dick dude who does feel jealous, is who, like, ends up killing people in this country. But pretty quickly... it should have been clear to the police and prosecutors that it wasn't him. He was like demonstrably across the state at the time of the murder. Speaker 4 (7:52) Right. Speaker 2 (7:52) And yet, here we are. Speaker 4 (7:53) Before you go further, I mean, like Michael and I have listened to the first half of the show, right? And that's sort of the story of the murder and how he gets convicted. And it almost plays out like true crime, except with no real mystery, because it's very obvious from the start that he didn't do it. And you're laying out the anatomy of this case. But it also just feels like the anatomy of like a certain type of case, like a taxonomy of this very specific type of like small town prosecution, especially decades ago. Yes. Speaker 2 (8:27) And police work. Right. Yes. Speaker 4 (8:29) Where you have like unbelievably incompetent police work. You have corrupt and incompetent prosecutors and defense attorneys. There are like preposterous. characters strewn throughout the Speaker 2 (8:43) defendant Speaker 4 (8:44) this aspect here even though he's demonstrably innocent he's a sort of ludicrous character in many ways yeah i feel like you don't meet that many normal people throughout this this story it's Speaker 2 (8:56) such a good way of putting it very Speaker 4 (8:58) early on you introduce us to a piece of evidence which is a witness statement born by hypnosis yes and When you start talking about it, I thought to myself, oh, we're about to like the rest of this podcast is about to be about how like hypnosis is fake. Right. Like this is like like but but actually that's just a tiny little sliver of the bullshit. As I was listening, I felt like I was listening to you describe like almost like this type of like. porkies level case that could only happen in like a small town in the 70s and 80s. Speaker 2 (9:38) Yeah, totally. And actually, like the way you described it, I think is totally right. I mean, two things you said really stick out to me. One is like it is such a like relic of a time. I was telling a friend of mine about this case who's a clerk, like a permanent clerk for a local judge. And she was like, this doesn't make any sense to me because like our jury would never convict on this. And I'm like, yeah, it was 1986. Like, it Speaker 1 (10:00) was Speaker 2 (10:01) a totally different time in terms of, like, how people thought about the criminal justice system, how people thought about prosecutors as, like, political beings or almost like seers who had a gut instinct that couldn't be, like, questioned. And also just the entire kind of concept of, like, what was... acceptable was very different i mean like the idea of mass incarceration we were 10 years out from that being in anyone's lexicon you know we are at a point where like politically the one thing that both parties just agree on beyond any sort of conflict is like you lock people up and you want them for as long as you can and crime is the number one issue and whatever and crime is like higher back then right so this is like a weird part here on is in this like weird place. It's between Canada and Detroit. A lot of drugs are coming through. Like, people are panicked. And here's this first murder in 18 months in this county. And people, like, act accordingly to the politics of the time. But I think it is also, like, the hardest thing about this story was just, like, how many weird things happen that, like, I can't give enough. Like, I'm like, this should be 20 episodes. Like, everything is bananas that happens. And you have to kind of, like, the hypnotism being one example, you just kind of have to, like, You can't really unpack like how insane it is to like have like done a class on hypnotism and decide you want to do it. Yeah. With Speaker 4 (11:19) the hypnotist defending it to Speaker 2 (11:20) this day, right? I love that guy, though. I love him. Speaker 4 (11:23) Incredulous at the idea that you might question hypnosis. Yeah. In this context. You Speaker 2 (11:27) know, it's one thing that was really interesting that he said to me that I think you guys will find interesting is I was talking about the case and he was like, I don't know, maybe this guy's innocent. But like also like he could be Ted Bundy. Ted Bundy said he was innocent. He convinced people. He was like, yeah, it was very much. That's the tone. You could be Hitler. That was the tone of like everybody. Right. It was like, Speaker 1 (11:45) we don't know. Speaker 2 (11:46) We don't know. And it's like, you guys are the bad guys. Right. Speaker 1 (11:50) Yeah. We don't know. That's that sounds like doubt, like reasonable doubt, actually. Speaker 2 (11:55) Right. Speaker 1 (11:55) Right. Speaker 2 (11:56) I would call it. Speaker 1 (11:57) Right. The entire thing feels like a fever dream. Like the hypnosis, it was weird, but also the prosecution. One of their theories being that the defendant, Timogen, was a member of like an international ring of ninjas, crime fighting ninjas, and that as an agent of the anti-prostitution, anti-drug ninja cartel, he may have assassinated this boy. Speaker 4 (12:20) Guys, we need to slow down. We can't get to the ninjas just yet. I will say that I believe it's... The fourth episode introduces the idea of an international ninja syndicate that was a pretty significant part of the prosecution. Pretty. Speaker 2 (12:40) Not small. Yeah. And it's funny because at the end, the prosecutor is like, it probably isn't real. But. Speaker 4 (12:46) But. Who Speaker 2 (12:47) knows? There's a lot of who knows. Speaker 4 (12:49) Yes. When I was listening to it, what I kept thinking was like with a lot of these sort of like botched prosecution stories, you hear the same sort of things over and over again. And none of them individually are very surprising. Like you're talking about the police not securing the crime scene. They barely talk to witnesses instead of taking like. you know, hundreds of photographs of the crime scene, which is pretty standard. They take like 15, I think you said. Speaker 2 (13:19) That Speaker 4 (13:19) sort of thing is the kind of thing I think that you hear from time to time when you're looking at a prosecution like this. And then also you have, you know, a defense attorney who is not. Not exactly all there in the throes of cocaine addiction. And Speaker 2 (13:39) crack cocaine. Speaker 4 (13:40) When crack was fresh on the market. Like this is. Like Speaker 2 (13:43) they had not perfected it yet. Real experimental shit. Speaker 4 (13:46) He just heard about it. He was like, yeah, Speaker 2 (13:47) I'll Speaker 4 (13:49) take some. And so, you know, you have the defense attorney who is drug addled, certainly not doing his best. You have like the prosecutor trying to make a name for himself. You have a corrupt cop, corrupt, like, you know. piece of shit cop. The Speaker 1 (14:05) judge who might be indebted to the prosecutor in like a little ring of corruption. Yeah. Speaker 4 (14:10) That's sort of small town corruption. Right. Right. But yeah, you start adding these all up and it's like this case has every archetype of the incompetent slash corrupt trial that you could possibly conceive of. And then you throw in like the hypnosis. You throw in the fact that this guy was on the other side of the state. And, you know, this is sort of the core of why we believe he's innocent. Right. He's on the other side of the state. There are tons of witnesses who are not his friends. Right. Right. Who hate him. Speaker 2 (14:43) Yeah. Who Speaker 4 (14:44) dislike him. Right. Who are like, no, he was on the other side of the state with me. And you have a prosecution who explains this. Speaker 4 (14:54) with a ridiculous theory. Josie, I'll let you explain this. I'll let you explain what the prosecution says, because this is sort of the core of the case, right? This guy was on the other side of the state. So whatever you think of him, whatever you think of the corruption of the trial, et cetera, all the incompetence, the prosecution has to explain why he, why there are like dozens of people saying he's on the other side of the state and how he could have possibly done it in that case. And the prosecution has a theory here, sort of. Speaker 2 (15:21) Yeah, I mean, it's like the prosecution presents their case. Their case is basically