The New Yorker Radio Hour - The “Times Square Two” Fight to Clear Their Names

Episode Date: December 15, 2020

As teens, in the nineteen-eighties, Eric Smokes and David Warren were arrested for the robbery and murder of a tourist near Times Square on New Years Eve; an acquaintance had accused them, receving a lighter sentence for an unrelated crime in exchange for coöperating with police. Warren refused a plea deal in which he would have had to accuse Smokes, and both received lengthy sentences. Over decades in prison, they maintained their innocence, but they faced an impossible dilemma: without parole, they might have spent the rest of their lives behind bars, and, in order to get parole, they would have to take responsibility and express remorse for a crime they insist that they didn’t commit. Now middle-aged men, and still best friends, Warren and Smokes continue to fight to vacate the charges against them. Jennifer Gonnerman looks at the impossible choices they faced in the justice system. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. I don't know one time we had a conversation, he said to me, he said, yo, man, do you got any feelings? So I'm like, wow, what are you talking about? Do I got feelings? That's Eric Smokes, talking with his friend David Warren. And he said, because, you know, throughout this whole thing, I haven't seen you cried yet. You know, we got convicted, we came home state, and I still haven't seen you cry. And I told him, no, I did my share of crying, but I couldn't cry in front of you.

Eric Smokes and David Warren both live in Brooklyn. They're middle age now, but they've been close since they were in their teens. Eric was a friend of my brothers. It seems like he was more older and mature, and he was like, God, and certain things I'll be doing, like, say if I'm doing something I ain't supposed to be throwing the rock across the screen. Hey, yo, what are you doing? Stop that. Come over here. You know, that sort of thing.

He always looked out for me. For most of the time that they've known each other, Eric and David were in prison. In 1987, they were convicted of second-degree murder during a mugging, and it's a crime that they maintain that they didn't commit. Staff writer Jennifer Goneran has reported on their case for the New Yorker, and she finds the evidence that they were innocent, compelling.

Here's Jennifer Goneran. Eric smokes and David Warren were best friends. growing up in one of Brooklyn's poorest neighborhoods, two black teenagers in East New York. If you look at photographs of them from the time, Eric was the tall, husky one. David was smaller and shorter and looks much younger. We used to go to the park.

Yeah, we did a lot of neighborhood things. Yeah, go to the park. Hang out in the community. Hang out in the neighborhood. You know, you mess with girls, you mess with guys. You just do, you know, do the neighborly thing. Yeah. You know, so that was real popular for us.

and crack a lot of jokes. Yeah. We did that. Yeah, we did our jokes. That was our thing. Yeah, that was what kept us going. Yeah. We just hung out.

You know, we just hang out. We're hanging loose, as you say. New Year's Eve, 1986, going into 1987, Eric Smokes, David Warren, and several of their friends traveled on the subway from Brooklyn to Midtown Manhattan to Times Square. Fessed up in 180 red lights, looking like the flashy city it represents. The big apple. And here we are at the crossroads of the world, Times Square.

So we arrived in Manhattan around 10 o'clock or so that night. It's Times Square on New Year's Eve. The streets are packed. There are a few hundred thousand people there shoulder to shoulder, everybody waiting for the ball to drop. We ended up at Latin quarters. It was a nightclub for teenagers. When they got there, they said they realized the prices for the club

had been raised for New Year's Eve, and they could not afford to get him. So they just hung around outside, watch the people go by. And then they said they eventually headed downtown and made their way back home to Brooklyn. So, you know, that was about it for us. Just, you know, being in the city,

enjoying the atmosphere and moving around as best we could because it was very crowded. So it wasn't like you could easily go from one point to the next. And we come home. Next thing you know, they take me in for questioning. The police wanted to know. about a crime committed a few minutes after midnight on New Year's Day. A French tourist by the name of Jean Cass had been mugged, knocked down and his head smashed against the sidewalk, and ultimately,

10 hours later in a hospital, he passed away. The next day, the police caught several young people mugging a man not far from Times Square. The police have been told that they should interrogate anyone arrested for robbery to see if they knew about the murder. Now, one of the mugging suspects, a 16-year-old named James Walker gave the police a name, another teenager, whom he called Smokey. As I'm crossing the street, a van pulls up in front of us,

and the officers jump out and call my name, hey, he's Smokey, because my last name is Smokey, so most people referred to me as Smokey. So he's Smoky, so I'm like, let me keep walking, because I felt something wasn't right about this. And for me, it was, my mother came to get me, said some police wanted. me. So I said, police want me.

And when you were at the police precinct, did you have anybody with you, a parent or a lawyer? No, everybody was there with me, just me. When I was first being questioned, they was asking me, well, we know it was an assault that occurred in Manhattan at this place, at this time. And I was like, I don't know anything about that. So they kept going on. Well, from there, it went from assault to a murder. Oh, well, you know, the guy died and you're going to get charged. with this, you're never going to see the light of day again. And I was like, well, that doesn't still change my answer.

I don't know anything about this. And then they start saying like, well, well, you know, your buddy's telling on you. And I start, you know, to myself, I'm like telling me about what. I know it had to be a lie. One fact about their interrogations that is important, they both told the cops the same story. On the facts and the evidence that they had, they could have pinned this on any number of young black guys in the city because they didn't get anybody at the scene

who was able to make an ID. That's James Henning, a lawyer who represents Eric Smokes and David Warren today. So what you have is you have a group of teenagers who are brought in for an interrogation on a homicide and you've got an officer who's got his first ever assigned homicide and he doesn't believe he's going to close it

and then out of the blue, he gets this kid who seemingly hands him Eric Smokes, who to him sounds like, you know, this is the guy. Just seven days after Mr. Cass was killed, the police arrested Eric Smokes and David Warren and charged them with his murder. It was an extraordinarily quick timeline. The police had started with no leads and then seemingly wrapped up in just one week. Eric was 19 and David was 6. and over the next few months, a prosecutor offered David various plea deals.

They were all contingent on him testifying against his best friend. If he pointed the finger at Eric, his own punishment would be minimal. If I'm not mistaken, the last offer was a year. And basically at that time, I could just went home. But of course, I had to turn it down because I'm not going to say he did something I know he didn't do. and I'm not going to say I did something I know I didn't do. At the time of the arrest and we going through back and forth to court, you know,

do that time period there. I was like, ain't nobody going to come to court and say we did this because we didn't do it. I was to tell my lawyer, listen, we can go to trial now, tomorrow, whatever, and I'm not taking no plea deal. Like, that was, that was, I spoke that to him early on. Like, I'm not plea dealing this.

I don't have nothing to do with it. I have nothing to worry about it. So when we got the trial and then they bring forth these people and they're saying these days, it was like, wow. Yeah, we looked at least like, do you know him? We were asking each other, do you know this person? The only person that we can say we knew was James Walker. James Walker was an acquaintance, a friend of a friend. And by this point, he had cut a deal with prosecutors that allowed him to avoid prison time on his own mugging case if he testified at their trial.

That was the thing that always got me. What made you pick me and Eric out of all the people in the world? The police also relied on the testimony of four other young men who claimed that they had seen the two at the crime scene. And when I went back and read the trial transcript from 1987, it was really jarring to see the level of pressure that had been placed by police on some of these witnesses. the police had to use what's called material witness warrants, meaning that they arrested them

and took them into custody in order to bring them to court and force them to testify. In at least one case, they held one of these young men in jail overnight to make sure they testified so that in the morning they could pick them up from the jail and bring him to the courthouse and put them on the witness stand. When the jurors came back after December, deciding on a verdict.

They told the judge, we would like the court to know that we did not come to a decision lightly, but with great emotional turmoil. I remember when the decision was rendered and they was escorting us out the court, told us to stand up or whatever, he just sat there. I had to hear them and say, oh, come on. Because it was like, it didn't register to him that we had, that we was found guilty, but we had to leave now. And when we got back, went back into the holding pens, the conversation was like, they really convicted us?

Like, unbelievable. Like, he was like totally lost on that. David Warren got 15 years to life. Eric Smokes was given 25 years to life. And at that sentencing hearing, Eric shouted out, I've been framed. Eric and David were both sent off to prisons in upstate New York. they were among the youngest people in the New York State prison system

and for most of their incarceration the two were held at separate prisons so they couldn't actually see each other or call each other on the phone but they would write to each other regularly about once a month he used to write me and be like why did they do this to us

and I'd be like you asking me like I got the answer to it I do not know and we realized early on we realized that all we had was us really. You know, we definitely had our family, you know, a few extended people out there who was on our side or what have you. But for the most part, we knew we had us, we had to believe in our union, our bond. It was like a marriage almost, you know. Both men tried to appeal their convictions, but their appeals went nowhere. And the year slowly ticked by.

1988, 1989, 1999, 1990, 1995. To pass the time, Eric started lifting weights in the prison yard and realized he had a real aptitude for it. He became known as one of the strongest men in the prison system. But for David, surviving in prison was much, much more difficult because he was smaller, shorter, younger. What kind of strategies inside did you use to hold on to your sanity? Well, I'll be honest About maybe about 97, 98

I lost all Focus of being like Oh, we're going to get out of here They somehow This situation is going to be rectified And it became like Okay I got four years left before I see the parole board

When Eric used to be like Yeah, what we're going to do about the case I used to be like, man, I don't want to talk about that. I really didn't because of all the negativity that this case had brought to me. In 2005, after the two had been locked up for 18 years, Eric Smokes got a letter one day, and on the return address, he could see the name James Walker. You know, mail call came around about 4 o'clock in the afternoon.

The officer came by, put a letter on my gate. I think I was locked in my cell at that time. So I see the name. I'm like, wow, I don't know what they expect from this, you know. This might be a pipe bomb or something. He apologized for lying on us at the time of trial to say, you know, what he said against us. And he was asking how it is that he can, you know, repair things. How can you fix things?

I told Eric, I don't want anything to do with that guy. you conjured up a whole story. You just told this fantastic tale to these officers. That's David Warren with his friend Eric Smokes. The story of their fight to prove their innocence

continues in just a moment. This is the New Yorker Radio Hour. This is the New Yorker Radio Hour. If you're just joining us, we're hearing the story of two men sent to prison for a murder that occurred when they were teenagers in the late 1980s. They maintain their innocence to this day.

David Warren and Eric Smokes were convicted largely on the testimony of another teenager named James Walker, whose charges on an unrelated crime were reduced in exchange for giving this testimony. 18 years later, Walker wrote a letter apologizing for lying to the police and implicating them in the crime. Staff writer Jennifer Gonerman has been reporting on Smokes and Warren's effort to clear their names. Okay, so this letter from James Walker, recanting his statement, testimony is the kind of thing that anyone who is trying to overturn his conviction would dream of receiving. Here on paper, he's apologizing for lying on the witness stand and explaining he doesn't know why he chose to give police, Eric Smokes's name. Quote, honestly, I don't know why I did it,

he wrote. One might think that this letter would be enough to overturn the men's convictions, that it wouldn't be that long before Eric and David walked out of prison as free men. But that's not what happened at all. Eric wrote to every lawyer and legal clinic he could think of, begging for help, trying to find somebody to represent him pro bono, and he included copies of Walker's letter. But in the end, he couldn't find any lawyer willing to take on his case. Their efforts to get their convictions thrown out had gone nowhere, and they were running out of options. They knew that the only way they were ever going to get out of prison was to persuade the parole board to release them. Tell me what it's like to be locked up to be insisting on your innocence

and then having to go before the parole board. What is that experience like? For me, during research from all the guys that I was incarcerated with that knew my story, he told me you have two options. You can maintain your innocence, and we know you're innocent, and staying here with us, forever or you have to, you can say that you did something that you know you didn't do

and try to get home. And it was a gut-wrenching decision for me that it weighed on me heavily, to this day it still weighs on me, that I had to make. And I chose to try to go home because I felt like I was between the, rack of the heart place. There's a, there's a phenomenon called the Innocent Prisoner's Dilemma. That's one of their attorneys, James Henning again. Where it's how do you explain and show empathy for something that you did not do?

And that's what you're facing and going to the parole board where you're in Eric Smokes or David Warren. And the nature of the beast with parole is that if you do not show remorse, you're a most likely, almost certainly not going to receive parole. Eric and David each had life on the back of their sentences, which meant that they might have to spend the rest of their lives in prison. There was only one way to avoid this fate, and that was to persuade the parole board to release them.

They said they felt they had no choice but to lie. They said they took responsibility for the crime, and in the end, they got to go home. That was a necessary evil. in order for me to get out. I mean, I struggled with coming to that conclusion or having to accept responsibility, but the uneasiness I had about it

didn't override my need for being free. David left prison in 2007 after about 20 years of being away, and Eric got parole in 2011 after 24 years. Eric and David had gone on trial as teenagers, and if David had decided to cooperate with law enforcement, If he had testified against Eric at trial, he never would have spent his entire adult life in a prison upstate. But he didn't hold that against Eric in any way. Instead, the two men stuck together. And when they came out two decades later, they were still good friends.

And this next part is pretty astonishing. Twenty years after they went to prison, both men ended up marrying the same women who had been their teenage girlfriends at the time they were arrested. My wife was my girlfriend at the time of arrest And she was my girlfriend that taught me arrest Yeah So that's, you know Ain't that something that's happenstance or something I don't know what they call it

I don't know what they call it Destiny Yeah that was destiny I guess You know because We didn't foresee that And when David had a daughter He asked Eric to be her godfather You try to put it all together

like because I have a young daughter and for me to try to explain all of this to her. It's exhausting for me. So imagine for a child eight years old because she want to know, well, why do they put you a goddady in jail? How did you decide to find attorneys and continue your fight to clear her name even after you got to prison? Few people do that. Our whole relationship is really predicated on Big Brother Little Brother. And in life, you know, in the perfect world, the Big Brother always look out for the little brother. So that's why I couldn't give up.

That's why when I got out, I couldn't let it go. You know, they would question they being a district attorney or maybe just random people in general would question. Why would you want to talk to a witness that testified against you? Why would not? I said I'm innocent. Why wouldn't I want to talk and say, why would you do this to me? Why wouldn't I want to know? In 2018, Eric and David finally got a hearing in front of a judge in state Supreme Court.

Now all the evidence in their case would get a second look. It was sort of like a murder trial in reverse. The lead detective and prosecutors from the original trial were now back in the courtroom, on the witness stand being cross-examined. Witnesses who had testified against them in. 1987 were called back into court too. But this time, two key witnesses who claimed to have seen Eric and David at the crime scene now recanted, saying they had lied in 1987 because they had been pressured by law enforcement. But James Walker, the man most responsible for sending

Eric and David to prison, couldn't testify. He had died one year earlier. When he died, we was like, you know, like the wind from on our sales was taken away. But, you know, at the same time, we still knew we had the letters and we had his affidavit, so we believed that that right did will sustain us. While Eric and David's murder trial had taken about a week, this hearing dragged on over the course of more than a year, with court dates held only occasionally. By the end, Eric was now 52 years old, and David was 49. How you doing, Eric?

All right? I'm well. How are you feeling? I'm well. I'm well. You know, a little anxious, but, you know, it's to be expected, I guess. On a cold January morning at the beginning of 2020, before the pandemic here, I met Eric and David on a sidewalk in front of a courthouse in lower Manhattan. On this day, the judge was to announce his decision. What would you predict is going to happen if you had to guess? Oh, well, I don't want to be a win. I don't really want to be. Okay.

He said win. They don't go win. Win. Okay. We went inside up the elevator, and everybody packed into a small courtroom. Eric and David were there with their lawyers, sitting in front of the judge.

Their families were behind them. There were a few reporters. This is calendar number three. In fact in two, four nine of 1987. Eric smokes and David Warren. And then the judge Stephen Antignati walked in and started to speak. My sort of thought process is laid out in great detail in my decision,

which is approximately 125 pages long. The court has not been persuaded. Accordingly, defendant's CPL motion under 440... He denied their motion. He denied their request to vacate their murder convictions. It don't get no better. Don't think it gets easier as the fight continues, especially when you get denial after deny you after deny, knowing the truth.

I was disgusted from the arrest date of January 8th, 1987, until now. It hasn't gotten no better. So how do I feel? I'm angry. Thank you, guys. It kind of crushed me, especially my young daughter seeing her emotions. I can believe it, but the only thing. The only good thing that I can say about that is that we didn't have to return to a cell after the decision. Yeah.

So they can't put me back into a cell. In his decision, the judge zeroed in on what they had said before the parole board years earlier. He wrote that their testimony taking responsibility for the crime was, as he put it, compelling evidence of their guilt. You know, it's disheartening to know that we had to, that we had to go through this to get to this point. You know, you got to walk the journey or perish. So we had to keep our eyes open and see every, had experience every obstacle that was before us and figure out where around it. I think the system is intensely resistant to admitting mistakes. I mean, what prosecutor, detective, or judge really wants to think, even for one minute that they made a mistake and sent the wrong.

man to prison for 20 years. Can you imagine having that on your conscience? And there's also often an intense resistance to saying that your colleagues might have made that same kind of mistake, too. But the only way for Eric and David to try to clear their names was to ask the same DA's office that had prosecuted them and the same court system that had sent them to prison to go back and reinvestigate their case. As Eric once put it to me, we're beholden to the courts. We don't have a choice. And now their only recourse is to seek justice within that very same system once again. Their lawyers are doing just that, but this time it will be an even tougher uphill battle to try to clear their names. So, you know, every day we think about this. Every day that we speak to one

another, that's... That topic come up. Topic of discussion. That's got to come up. Even going through the hearings coming home, some days, it was hard for me to. to process it and I have to come home and sit down for a minute just to get my bearings together, look at my wife, look at my daughter, and say, yo, you're free. Let it go. Because it eats at my soul. David Warren and Eric Smokes are working on an appeal. And Jennifer Gonerman is a staff writer who covers criminal justice. I'm David Remnick, and that's our program. I want to thank you for joining us. See you soon. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker.

The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.