Josie Duffy Rice
Josie Duffy Rice is a journalist, writer, and podcast host whose work focuses on prosecutors, prisons, and the criminal justice system. Her writing has appeared in The New York Times,…
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The trial of Temujin Kensu had happened quickly, just six months from arrest to verdict. What came next was unbearably slow. And with every year that passed, his odds of getting out of prison would go down. But then, one judge decided to rule in his favor. Was this his chance?
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00:15
Speaker 2
I was thinking to myself when I was watching this trial that there's absolutely no way he has anything to worry about. Neither Fred nor I knew that the prosecutor, until rebuttal, he brings up this theory that Fred had someone fly him down here.
00:33
Speaker 3
It was really surreal. It was like a Twilight Zone episode. These things are happening that don't make any sense, and you feel powerless to kind of rage against those things.
00:52
Speaker 1
In 1990, Timogen Kinsu was sitting in prison looking for a pen pal, a woman. Here he is talking to journalist Joy Marie Mann.
01:02
Speaker 4
So it was a newspaper, it was a pen pal connection in the Flint Journal. And there were just like thousands of ads. And so I saw red hair, green eyes, looking for my knight in shining armor, please don't hurt me. And I was like, oh my God, that's adorable. What happened to this woman that she put this in her ad? This is her ad. Please don't hurt me.
01:23
Speaker 1
The woman's name was Denise. He decided to write her a letter.
01:27
Speaker 4
I told her the truth about, you know, me and that I was in prison and that I was serving life, but I was innocent. And I got this letter back And it was nice, but it was kind of like, I got like 40 letters, you're the only one that I answered. And she goes, I don't know why you're in prison, but I imagine you belong there. And I was furious. And so I wrote this kind of snarky response back. I said, you know, how dare you assume that everybody in here is guilty? Don't you think anybody in prison might be innocent?
01:53
Speaker 1
So Timidjian tells her to call his lawyer if she wants proof of his innocence. And she does.
02:00
Speaker 4
She wrote this really nice letter back and said, I'm sorry. I actually talked to your lawyer. He said, you really are innocent. I'm so sorry for what happened to you. And then we started talking.
02:10
Speaker 1
Timogen was in his mid-20s. It had been four years since his conviction for a murder he says he did not commit. This man, who had heretofore been a wanderer, with a chaotic, at best, love life, already had children, one ex-wife, and one former fiancé. Now he was spending all his time in the prison's law library. trying to figure out how to get himself free. I'm Josie Duffy Rice, and this is The Backfire Effect. Episode 5, Time Barred. Timogen insists that he's innocent. And no matter how I spin it, and I've tried, no matter how many people I talk to or scenarios I imagine, I can't make the puzzle piece fit where Timogen killed Scott Macklem. It doesn't work. For every conjecture you need to make it work, there are five reasons it doesn't. But according to the state of Michigan, after his conviction, Timogen was a murderer. Outside of prison, not many people think about the criminal appeals process. When they do, they tend to imagine an appeal as a singular thing or event or moment. You take your case to a higher court, and they take another look. It's an insurance policy. Proof, perhaps, that it's never over. You can right a wrong. You have the opportunity to prove yourself. You can always appeal. But I'm here to tell you that the appeals process is something else entirely. It's less a moment than a state of existence. It's Sisyphus rolling the boulder up the hill. Timidgin was sure that his wrongful conviction would be temporary. He thought the worst was over. It had all happened so fast, just six months from arrest to verdict. But what came next was unbearably slow. Not long after he was sentenced in August of 1987, Timidgin filed a request for appellate counsel. He knew that he had a short window to do it. This was year one. David Dean was no longer his attorney. They'd in fact had a major falling out after Dean helped himself to Timidgin's belongings that were being held in a storage unit.
04:57
Speaker 3
Under Michigan law, within 90 days, you're supposed to have an attorney appointed to you if you don't have the money to pay for one, which obviously I did not at that time. My lawyer had stolen everything I owned in the world and I was destitute.
05:11
Speaker 1
After a year of waiting, he's assigned an appellate lawyer. It's 1988, year two. Only 10 to 15 percent of the cases appealed get favorable results, his attorney's first letter said. He told Timogen to avoid filing a grievance against his trial lawyer, David Dean, to avoid talking to fellow inmates about his case. Stay quiet, he seemed to say. Don't ruffle feathers.
05:36
Speaker 5
Behave.
05:37
Speaker 1
And maybe, just maybe, you have a chance. This was perhaps the first sign that the two were ill-suited, because as you can probably tell, Timogen is a fighter. Ruffling feathers, to say the very, very least. In fact, by the time he got that letter, it was too late to take his lawyer's advice. He was in the midst of a battle with the Michigan Department of Corrections to change his name from Frederick Freeman to Timogen Kinsu.
06:09
Speaker 3
So I had a fight with the MDOC to get recognition of it. They finally acknowledged it in 1988. And then the state formally acknowledged it in January of 1990.
06:18
Speaker 1
He says the name change was part of his journey into Buddhism that started years before he went into prison.
06:24
Speaker 6
By the time I was nine, I was reading anything I could get my hands on, on Eastern culture, philosophy, because it was a big part of the martial arts. And in a lot of the movies back then, it was really ingrained. There was no internet in those days. So I went to the library and I would get piles of books and read and read and read. And I liked the philosophy. It just felt like where I belonged. And I really immersed myself in it.
06:47
Speaker 1
He was thrilled to have a new name. And I'd guess he was thrilled to stick it to the Michigan Department of Corrections. Because to Timogen, every fight is a righteous fight. Timogen still insisted he was innocent. But the appeals court didn't care much about that. He was in new territory now. The trial was over, and his attorney would have to make a different kind of case. Here's Imran Syed. head of the Michigan Innocence Clinic.
07:20
Speaker 7
On appeal, there's not a retrial. There's not a, hey, court of appeals, let me show you all these 10 other things that show I'm innocent. That's not how an appeal works. The appeal only evaluates what happened at the trial.
07:33
Speaker 1
In other words, a direct appeal would only look at a bad jury instruction, maybe, or extreme prosecutorial misconduct, or perhaps evidence that shouldn't have come in because it was prejudicial. Best case scenario, Timogen would get a new trial. He wouldn't get out. It's not until the end of year three that his new attorney files an appeal, arguing that Timogen deserved a new trial for two reasons. First, because Philip Joplin, the jailhouse informant, had lied to the jury about the benefits he received from the prosecutor's office for testifying against Timogen. And second, because his attorney, David Dean, had not provided proper counsel. In year four, Temujin meets his new pen pal, Denise. In that same year, the appellate court finally rules, at which point they send his case back to the lower court for a hearing, which means his case ends up back where it began, in Port Huron. Judge James Corden had been the original judge in his case, and now, somehow, was tasked with deciding whether or not the trial he himself presided over was fair. Maybe you're starting to pick up on the overall logic of the appellate system here. Judge Corden takes almost a year to file a four-line decision denying Timidgin's motion for a new trial. It's year five. By this point, Timidgin and Denise are in a serious relationship. And she also changes her name to Amako They think it'll just be a few more years before they'll get to put this all behind them. Judge Corden's ruling means that Timogen's case is now sent back to the appeals court. Timogen is getting desperate. He's requesting documents from his attorney, trial transcripts five years after trial, but he doesn't get them. He wants to take a polygraph. He'll figure out a way to pay for it out of pocket, he says. I believe you are being somewhat unrealistic if you think that the results of a polygraph are going to make any difference in your case, his lawyer replies. But Temujin wants to fight harder. He waits a year, year six, and then another, before the appeals court ultimately rules against him. denying him a new trial in year seven. Timidgin now appeals to the Michigan Supreme Court. I tell you all of these appeals details, not because I expect you to remember them, but almost for the opposite reason. I tell you to convey the slog. Waiting years for the chance to get what you think you are due, and then, once they reject you, which they almost certainly will, you have to pin your hopes on the next thing, just to keep yourself from going crazy, knowing full well it might end in disappointment. Which it does. In year eight, he finds out from Amako.
10:41
Speaker 3
I'll never forget this call, till the day that I die. I called her and she didn't want to tell me that the Michigan Supreme Court had denied me. And so I could tell something was wrong. And I was like, you know, Amiko, what's wrong? And she just burst into tears. And I thought something bad had happened to her. And I guess it did, actually.
11:01
Speaker 1
In the eight years that it took three courts to consider and reject Timidgin's demand for a new trial, the world had changed. The Berlin Wall had fallen. Nelson Mandela was now president of the country that had imprisoned him for 27 years. Operation Desert Storm had begun. The internet became accessible. Rodney King was beaten by cops in Los Angeles. Bill Clinton had been elected. Kurt Cobain had died. You get the point. The world kept moving. The Temujin and the Boulder were back at the bottom of the hill. At least Timogen now had someone fighting for him on the outside, Amako, whom he described as a woman who accepted me for me with all my many flaws. As Timogen was waiting for the courts to do something, Amako was trying other avenues. She was trying to uncover new evidence in his case. And she was trying to get media in Michigan to care.
12:19
Speaker 8
Amako just never stopped chasing me for next steps, next steps, next steps.
12:25
Speaker 1
That's Bill Proctor. You've heard his name in prior episodes. Back in the 1990s, Bill was a television reporter on the TV in homes across southeastern Michigan every night. Everyone knew Bill Proctor. He'd started his professional life as a cop in D.C. before he became a journalist. Bill told me that hearing Timigen's story changed his life.
12:48
Speaker 8
In 1993, I was on the same path as just about every other reporter that I know. in television specifically, you get sent to a scene, the police or somebody official tells you what happened, you go and you report that because you have it from a quote-unquote credible source. And that's the way I had lived.
13:09
Speaker 1
Bill decides he wants to tell Timogen's story. He says he wants to put it on the evening news.
13:15
Speaker 8
And literally, I had two cops from Port Huron say to me, boy, he's fooled you too, huh? I mean, how does he get the likes of Bill Proctor to hear the bullshit that he's spreading? And I looked at both of them. I said, so you tell me how he did it. And they couldn't.
13:37
Speaker 1
Bill talks to alibi witnesses. He talks to jurors. He interviews Timogen's first attorney, David Dean. And Timogen finally gets his polygraph. Bill brings one into the prison for him to take, along with a polygraph expert from the Michigan State Police.
13:53
Speaker 3
He came into this thing absolutely convinced that I was guilty. He was gruff. And he had basically told Bill, you know, this guy's just full of shit. He's pulling the wool over your eyes. That's why he tested me three times. He went out and told Bill, that guy's innocent.
14:09
Speaker 1
Bill even interviews the former chief justice of the Michigan Supreme Court, Thomas Brennan, who says Timogen should never have even been convicted to begin with.
14:19
Speaker 4
My impression of it was that had I been the trial judge, I would have directed a verdict for the defendant of an acquittal.
14:26
Speaker 1
And it's Bill who first interviews prison informant Philip Joplin, who admits that he lied on the stand about Timogen confessing. It takes Bill a while to get all of this on the air, but he does finally in a 1995 week-long series. Here's how it was introduced on station WXYZ in Detroit.
14:49
Speaker 9
He's serving life for a cold-blooded killing. Tonight, a key witness recants his testimony. So will it affect the case of the Ninja murder? For the past nine years, he has been serving time for a murder he claims he never committed. His appeals have been consistently denied.
15:03
Speaker 1
But that could change.
15:04
Speaker 10
That's because Action News has learned key testimony was never given. And one witness now admits he lied on the stand. Channel 7's Bill Proctor is here with more of his close-up look at the case of the Ninja murder.
15:16
Speaker 1
Proctor's coverage led to national attention. And Temujin thought it all might add up to the thing that gets him out.
15:23
Speaker 3
Everybody's like, dude, you're going home.
15:25
Speaker 1
But it doesn't work. The media coverage generated a lot of chatter in Michigan, but silence from the court system. No apology, no reversal, no discussion. That was year nine. A year when another man, far away, would do something that would alter the future for Temujin and many others like him. Timothy McVeigh was a military veteran who hated the federal government, taxes, and Black people in that order. He was a right-wing radical, thought the NRA and the KKK were too soft on gun rights. Over time, he became an increasingly paranoid survivalist. In 1995, he assembled nearly 5,000 pounds of explosive material in the back of a rented moving truck. An early one morning, drove to a big federal building in Oklahoma City. He lit two fuses.
16:26
Speaker 11
If you are anywhere downtown, you probably heard it and felt it, an explosion of some kind downtown Oklahoma City. This is our tower cam shot, a plume of smoke rising in the air.
16:39
Speaker 1
The explosion killed 168 people, including 19 children in a daycare center. More than 700 others were injured.
16:49
Speaker 12
The bombing in Oklahoma City was an attack on innocent children and defenseless citizens. It was an act of cowardice, and it was evil.
17:05
Speaker 1
Bad policy is often built on national tragedy, and the Oklahoma City bombing was no different. Since the 1980s, politicians had wanted to make it harder for prisoners to challenge their convictions in federal court. Oklahoma City was their chance. One year to the day after the bombing, Congress passed the Anti-Terrorism and Effective Death Penalty Act, otherwise known as EDPA. President Clinton signed it days later. Tucked inside the law was a rule that applied to nearly everyone in an American prison. From now on, they had, with few exceptions, only one shot to challenge their conviction in federal court— and only one year to do it. Missed the deadline and the courthouse door closed. No matter what evidence of injustice or innocence was on the other side. Many people warned lawmakers of the monster they were creating. Here's Father Sean McManus, an Irish priest, testifying in front of Congress.
18:13
Speaker 5
I feel we have to appeal to the U.S. Senate not to indulge in the politics of the last atrocity. Destroying constitutional rights is not the way to build a memorial to the dead in Oklahoma City.
18:31
Speaker 1
But that plea to not indulge in the politics of the last atrocity fell on deaf ears. The practical result of EDPA is that people can lose appeals or even be executed on procedural technicalities. sometimes without any court ever weighing new evidence of their innocence. By the time the law passed, Timogen had been incarcerated for nearly a decade. It was year 10. Year 11, his appellate lawyer tells him he won't represent him again. Year 12, that was the year of the Monica Lewinsky scandal. 13, 14, the new millennium. 15, the year 9-11 happened.
19:08
Speaker 13
16.
19:08
Speaker 1
Meanwhile, Day after day. Hour after hour. Year after year. He waits. Timogen went into prison at the age of 23. By the early 2000s, he's 40. He can't afford an attorney. He's no longer entitled to one. And he knows, with a depressing clarity, that his chances of success would be even smaller on his next appeal.
19:40
Speaker 7
Each successive appeal is more and more limited. And we have a strong bias in our system against reviewing the facts, which I hope to understand normal person sounds insane, because what else are you reviewing if not the facts, right?
19:58
Speaker 1
But Timogen had something that a lot of people don't. Someone like Amako on the outside, willing to do whatever she could to make sure he was exonerated.
20:10
Speaker 4
She spent thousands of hours helping me format stuff on my case and put up our first websites just to get the word out.
20:17
Speaker 1
She finds him a new attorney, a well-respected lawyer in Flint. And he hires some outside help, a private investigator named Harold Kopis. Harold was a former FBI agent who lived clear across the country in Georgia. A real police guy through and through. He'd done a few stints tracking people down for the Dr. Phil show. He loved being a cop, loved going after criminals, loved being on TV. One day he gets a call from this attorney in Flint, asking if Harold would help him in his effort to free his new client, an innocent man.
20:56
Speaker 13
My reaction at that time, if you've been convicted and you're in jail, you're probably guilty. And that's not an unusual thought, typically coming from someone with a law enforcement background.
21:09
Speaker 1
Timogen's attorney says, look, just read the case.
21:13
Speaker 13
I read this briefing he sent me, and I said, my gosh, this is just injustice at the highest level. I can't believe this guy was convicted. And I can't believe how flimsy the evidence was.
21:29
Speaker 1
Harold lived in Atlanta at the time, but he started going to Michigan regularly.
21:34
Speaker 13
You spend about a week, 10 days, and you fly back to Atlanta. And I did that for two years. Every month or so, I'm up there in Michigan working, and working this case.
21:45
Speaker 1
By the time Harold got involved, it had been many years since Scott Macklem had been shot and killed. But in Port Huron, it was as if no time had passed. Lots of people still weren't willing to talk.
21:58
Speaker 13
I have his files, and because you're asking about them, I'm going to destroy them. And I'm saying, ma'am, that's really the wrong thing to do.
22:07
Speaker 8
Please keep them.
22:12
Speaker 1
Kopis' investigation was a bit different than Bill's. Less for TV, more for the courts. Timogen's attorney was looking for new evidence that could convince a higher court he was innocent. It's year 17 when they file another state appeal. But by year 19, it too had failed. The trial court, the appellate court, and the state Supreme Court had all denied Timogen the chance for a new trial. It's year 20, about the time another former cop gets involved in the case. He's not an out-of-towner like Harold Kopis. In fact, former Port Huron police officer Herb Welzer already knows many of the people in the case, the police, the prosecutors. You've met Herb. He spent 30 years with the department, including when Scott was killed, and he always assumed Timogen was guilty.
23:07
Speaker 2
I would read about it in the Port Huron Times Herald, and what would really turn me off is things that Timogen was saying about the criminal justice system in Port Huron and about alleged corruption.
23:24
Speaker 1
Herb says the case had come up a few times over the years.
23:29
Speaker 2
Captain Carmody... called me into his office, and he said, I just had a couple of men in here inquiring about this case, the Freeman case. He talked to me, defending to me the conviction, but he said, maybe one day, Herb, I'll have you take a look at this case further.
23:52
Speaker 1
It wasn't until after he left the force that Herb began to think that something about this case might have been wrong.
23:59
Speaker 2
I looked at it and I thought, maybe this guy really is innocent. And then I do a few more interviews and it just snowballed from there. It just kept going. I was thinking, if I was in prison for something that I didn't do, I would hope someone would help me.
24:15
Speaker 1
He didn't know what he was getting into. The decades he'd spend on this case, trying to help Timogen push the boulder. I said earlier... that Timogen is a fighter. Timogen, it turns out, is the birth name of Genghis Khan. If you're wondering why an innocent man serving life without parole for a murder he did not commit would change his name to the birth name of Genghis Khan, I wonder that too. Here's Timogen's explanation.
24:50
Speaker 6
The name change is typical in a lot of religions. Like in Islam, a person takes a spiritual name, a religious name. In the Eastern faith, the teacher gives you a name. So the name has a meaning. And my teacher at that time, Ego Vakensu, said that he felt that I had some pretty strong leadership characteristics and I come from a violent background. And he thought like Chinggis Khan, I would grow up one day to lead others and realize that violence is not the way to solve my problems. And eventually Chinggis became a great leader too. Fortunately, he never put off his violent ways.
25:23
Speaker 1
That is true. Since he's been in prison, while he's fought his conviction, Timogen also continued to fight the Michigan Department of Corrections. In 1996, he won a federal case that forced Michigan to allow him to use incense and place an altar as part of his religion, which he says led the department to rewrite its religious policies statewide. That same year, he won a federal court ruling that restricted prisons from inspecting legal mail. In 2016... a federal jury found that five Michigan prison officials had been deliberately indifferent to Timidgin's medical needs for 20 years and awarded him $ 325, 000. And he says he's won cases for other prisoners, too. These cases are different than his fight for exoneration. And yet, his reputation in one court follows him to the next. He's known in the judicial system as a frivolous litigator. Timigen, of course, says that's not true. He says he's pushing for basic decency. That if he has to be in here, he might as well fight. By 2006, Timigen has pretty much exhausted his appeals in state court. so he decides to take his case to the federal system. Habeas corpus is the last door. Only after a prisoner has exhausted the entire state system can they ask a federal court for the writ of habeas corpus. It's an argument, at its core, that a person's imprisonment violates the Constitution. Timogen files his habeas petition in 2007, and it's assigned to a judge named Denise Page Hood. If anything, the federal odds looked even longer than the state ones. For one, he filed late, which, under EDPA, the law passed after the Oklahoma City bombing, meant the federal court couldn't help him, innocent or not. Timidgin also wrote his habeas petition largely by himself. This is unusual. The habeas process is technical, and the law is opaque. To write this kind of appeal as a non-lawyer is usually a recipe for failure. He argued that he'd been the victim of prosecutorial misconduct. And he had to make that argument to Judge Hood, who sat on the United States District Court for the Eastern District of Michigan. She was one of 15 or so judges on that bench. Another of them was Robert Cleland, the prosecutor who tried Timogen for murder. It's hard to overturn a conviction no matter who you are. But for Timogen, the difficulty multiplied the moment Robert Cleland put on a judge's robe in 1990. Now, to give Timogen relief, a judge would have to do more than just disagree with a verdict. They'd have to look down the hall and effectively accuse a colleague, a fellow federal judge, of misconduct. Thanks to the work of Herb Welzer, Timogen is able to bring additional evidence that he didn't have during his earlier appeals. He'd discovered evidence of police misconduct, For example, the lineup photos that witnesses had been shown back in 1986, where Timogen's photo was an obvious outlier from a different police department entirely, those were not the same lineup photos shown to the jury. The jury had seen edited photos where Timogen's was made to look much more like the others, obscuring the fact that the witnesses had been prompted to choose him. Herb also discovered that police had hidden this fact from Timogen for 20 years. He had discovered more evidence of David Dean's addiction issues, and he tracked down Beth, the woman Timogen had been on a date with the night before the murder, far away in the Upper Michigan Peninsula. Beth, had never been subpoenaed to testify. So the federal court considers the new evidence supporting Timogen's habeas appeal. Year 21 of his imprisonment goes by, then year 22, and then finally, in year 23, he finds out that Judge Hood has done the impossible.
30:00
Speaker 3
I had called Amico, and she was freaking out. And she was like, you're coming home, you're coming home. And I'm like, wait, what are you talking about? And she said, they overturned your case. And I was like, what? She said, they overturned your case. And I was like, no. And she goes, yeah, it's all over the news.
30:17
Speaker 1
Judge Hood found that Timigen's constitutional rights had been violated. She issued an order requiring the state of Michigan to either grant Timigen a new trial within 90 days.
30:29
Speaker 1
Or set him free.
30:31
Speaker 3
I called a music store and I actually ordered the amplifier that I'd been dying for. I ordered a Peavey Viper 2x12.
30:39
Speaker 1
But it wasn't over yet. The state of Michigan appealed Judge Hood's ruling. This is something I found surprising. Why would they appeal? If there's evidence of innocence, they could have feasibly just let Timogen's conviction be overturned without having to deal with it themselves. I asked Imran Syed about this.
31:02
Speaker 7
The appeal happened because I think prosecutors in that situation appeal without even thinking about why. They're not sitting there thinking, well, the justice of the situation requires me to dial this back. They just think, under the law, can I win? And unfortunately, as we're talking about under EDPA, you can always win if you're the attorney general. You can win even if you shouldn't win.
31:24
Speaker 1
Now Timogen had to wait again for the state's appeal of Judge Hood's ruling to work its way through the system. Another year passes, year 24, and then, in year 25, the Federal Court of Appeals reverses Judge Hood's decision. They did not conclude that Timogen got a fair trial. They didn't say that Judge Hood's decision was wrong on the merits. Instead, they focused on the new appellate deadline created by the federal law EDPA. Timogen had filed too late. His habeas petition had to be dismissed as time-barred. Time-barred. Not innocent. Not guilty.
32:10
Speaker 7
Late.
32:12
Speaker 8
That law in the 90s that essentially ruined what had been a normal appeals process. And it put time limits, unreasonable time limits on people to get back into a federal court. And that's what is the basic foundational reason that Timogen never got a new trial. He had one ordered by Judge Hood. But it was very easy to say, oh no, too bad, so sad, your friggin' time is up.
32:49
Speaker 1
At that point, Amako had been working tirelessly for Timogen for 23 years. But Timogen says the reversal broke something inside of her.
32:58
Speaker 3
They took back my reversal right at the window where we found out she had cancer.
33:05
Speaker 1
Oh my gosh.
33:06
Speaker 3
I know it sounds really dramatic, but there's no doubt in my mind that the taking back that victory had a lot to do with her being so sick so quickly. It just broke her heart. You could see it. It just crushed her. she was sure that I was finally coming home. And I was heartbroken. And she was heartbroken. And I just, I think it really crushed her will.
33:30
Speaker 1
Six months after the appellate court reversed Judge Hood's decision, Amako passed away. Here's Timogen talking to Joy Marie Mann.
33:40
Speaker 4
I've never been like the suicidal type. That had me so shredded inside that for the longest time I didn't want to go on. I mean, she was my whole world. We had this life planned out. It was going to happen.
33:56
Speaker 1
One thing that Imran Syed has learned working for the University of Michigan's Innocence Clinic is how ordinary the path to a wrongful conviction really is. It often starts, he says, with a police officer. An officer who is very sure.
34:14
Speaker 7
The police get to investigate without anyone questioning them at the beginning. It's only after they identify a defendant, arrest that person, that person gets a lawyer, that questions start to be asked.
34:24
Speaker 13
But by then it's too late.
34:26
Speaker 7
And that leads to this kind of arrogance that is exactly the sort of thing that causes you to go full speed after the guy who was 500 miles away.
34:34
Speaker 1
The Michigan Innocence Clinic turns most cases away, he says.
34:40
Speaker 7
This is one of the hardest things to do in the law, is to meet the legal standard to overturn a conviction. There has never been an instance where that door opens easily.
34:48
Speaker 1
But Timogen's case is one of the few they've decided to litigate. They file another state case in year 26. The courts hold another hearing about the possibility of a retrial in year 28. But Timogen is denied again. Then they file another federal case. Under EDPA, you only get one habeas petition. To file a second one, you have to ask a federal appeals court for permission to even make a case. In year 31, Timogen got that permission. So with the Innocence Clinic, he tried again. The new federal judge acknowledged serious issues with the case. But once again, EDPA had closed the door. It was another denial. The judge said, quote, the court's hands are simply tied. This is a particular cruelty of the appellate system and part of the reason that Timogen is still incarcerated. The better your case for innocence at trial, the higher the bar to undo the conviction afterwards.
35:53
Speaker 7
He should have never been convicted to begin with. And ever since his conviction, that has been a mountain that he's had to fight against. The conversation has been, you already established this much, now you have to establish even more.
36:13
Speaker 1
Temujin Kinsu has known the goodness of people. He's had more of it than many of us, people who fight for him, who have taken his case pro bono. Amako fought for him. Herb, Harold, Bill, his attorneys, advocates, friends, partners, hundreds of people have invested in his exoneration. And it hasn't been enough. Because the appeal system is not moved by goodness, it is not moved by by a devoted wife or a dogged reporter or an FBI agent's instincts or a single cop's conscience or a lawyer's years of labor. All that human decency and all that evidence runs straight into a wall of paperwork. And the paperwork, at least thus far, remains undefeated. The fact that Timogen is a fighter, that he will file the lawsuit, that he'll file appeal after appeal, that he'll call the investigator, that he'll search for the evidence, file the Freedom of Information Act request, reach out to journalists, fight, fight, fight. It has been a boon and an albatross. If he didn't fight, he probably wouldn't be hearing about this case right now. And yet, the truth is that it's also hurt him. Not everyone wants to help a fighter. And to be honest, Timogen's fights are not always about justice. After his latest federal case, the court system basically had nothing left for Timogen. But there are other ways of getting out. The problem, though, is that those ways depend less on his case and more on his character. And even those closest to him will admit that for Timogen, trial by character is could be an even bigger challenge. Coming up on The Backfire Effect. He calls me every day. Why am I still in prison?
38:32
Speaker 10
Every day, twice a day.
38:34
Speaker 3
Give me good news and I never have anything to tell him except for we're being spun again.
38:46
Speaker 1
The Backfire Effect is hosted and reported by me, Josie Duffy Rice. Additional reporting by Joshua Sharp It's produced by Lydia Jean Cott with additional production support from Trina Menino. Our editor is Julia Barton. Our executive producers are Amy Gaines McQuaid and Jacob Smith. Our music was composed by Daniel Walter, sound design and additional music by Jake Gorski. Our fact checker is Lauren Vespoli and our show art was designed by Sean Carney. Special thanks to a few more people at Pushkin who made the Backfire Effect possible. Greta Cohn, Christina Sullivan, Eric Sandler, Morgan Ratner, Kira Posey, Jordan Additional thanks to Joy Marie Mann.
The Host
