Subscribe to Lemonada Premium for Bonus Content

Now under indictment, former President Donald Trump could be on trial as soon as August. Former acting FBI Director Andrew McCabe joins Andy to run through the latest charges, the mountains of evidence Trump is facing, and the potential outcomes of a trial. In a fascinating, in-depth discussion filled with insight into the legal process, McCabe also compares Trump’s case to other politically charged investigations, such as those looking into Hillary Clinton’s emails and Biden’s classified documents.

Keep up with Andy on Post and Twitter @ASlavitt.

Joining Lemonada Premium is a great way to support our show and get bonus content. Subscribe today at bit.ly/lemonadapremium.

Support the show by checking out our sponsors!

• Click this link for a list of current sponsors and discount codes for this show and all Lemonada shows: https://lemonadamedia.com/sponsors/

Check out these resources from today’s episode:

• Check out Andrew’s podcast, “Jack,” which documents the DoJ investigations of Trump: https://podcasts.apple.com/us/podcast/jack/id1317481380

• Find vaccines, masks, testing, treatments, and other resources in your community: https://www.covid.gov/

• Order Andy’s book, “Preventable: The Inside Story of How Leadership Failures, Politics, and Selfishness Doomed the U.S. Coronavirus Response”: https://us.macmillan.com/books/9781250770165

Stay up to date with us on Twitter, Facebook, and Instagram at @LemonadaMedia.

For additional resources, information, and a transcript of the episode, visit lemonadamedia.com/show/inthebubble.

Transcript

SPEAKERS

Speaker 5, Kenneth Dukes, Marianne, Dan, Liz Flock, Deven, Kiera, Judge, Speaker 10, Richard Rice, Jean

Liz Flock  00:01

This show contains violent content and scenes of domestic abuse.

 

Marianne  01:20

What I remember from meeting with her the first time was that she was nervous.

 

Liz Flock  01:30

On December 6 2019 Marianne Rosensweig arrived at Shelby County Jail in Columbiana, Alabama. She was there to talk to Devin who had been housed in the jail for nearly two years. Marianne wasn’t just any ordinary visitor. She was at Shelby on official business as a forensic and clinical psychologist hired by Deven’s lawyer, Dan Alexander.

 

Marianne  01:53

I’m not certain exactly what he told me about the case, but I do remember that he told me that she had shot her boyfriend in the back of the head and that fact made. It was difficult to explain it in terms of a self defense argument.

 

Liz Flock  02:18

When Marianne came to visit, it had been almost exactly a year since Deven lost her stand your ground hearing back in 2018. Deven wrote that the loss broke her spirit. Since then she’d been living out each day in this Alabama jail for her future was uncertain and the conditions were unbearable. There was constant conflict, fistfights and relationship drama. And with her bond set at $75,000. Deven wasn’t leaving anytime soon. In her emails to Aunt Lesley, Deven tried to stay upbeat. She gushed over cute pictures of her daughter that at Lesley sent. She wrote about how reading the Bible gave her guidance. And she often repeated variations of the phrase, everything happens for a reason. But other times she was barely holding on. She wrote to Aunt Lesley, locked down for 10 hours a day barely enough food to feel full sleeping on a mat so paper thin you can feel the concrete underneath you, not being able to shower when you want to. Can’t turn off the lights when you’re ready for bed. This isn’t living, even if I’m guilty of what I did. This is suffering. The gears of the criminal legal system turns so slowly. So Deven had to live day after day with the uncertainty of her path forward, whether she’d proceed with trial or get offered some kind of plea bargain and take it in a bid to get less time. If Deven did decide to go to trial and face a jury, she’d need to have a rock solid defense. That’s where Marianne came in. Dan thought a report from her could show Deven was in fear for her life the night she shot John. Marianne had worked hundreds of murder cases in her career, some of which involved abused women. She usually worked for the defense side, but she was quick to tell me that her evaluations are as unbiased as possible.

 

Marianne  04:16

I am not what we call in my business, a hired gun, which would be someone who is going to draw conclusions that are consistent with what the defense attorney is hoping that the expert will find.

 

Liz Flock  04:34

In fact Marianne told me she had previously been hired on similar cases where she found women’s accounts of abuse to be not credible.

 

Marianne  04:41

Women do lie it I don’t think that’s happens the majority of the time, but there are those cases you can can’t you don’t know by looking at a case on on the surface.

 

Liz Flock  04:51

Research shows false accusations of domestic violence and sexual assault are rare. But like Marianne said she doesn’t go into a case as automatically believing anyone’s story. She’s all about getting beyond the surface of a case. So that’s the mentality Marianne brought when she sat down with Deven for an interview in Shelby County Jail. Marianne began with a series of questions many about the shooting itself. But she also delved into Deven’s relationship with her mom, the first time she drank alcohol, and her experience dropping out of college, all to better understand the alleged crime.

 

Marianne  05:28

As we were talking, she would correct herself if she realized that she had given me some heads had made a statement previously that was was not correct.

 

Liz Flock  05:39

So compared to other women, or people in general that you’ve interviewed, did you find her to be credible on that first or second interview?

 

Marianne  05:51

Yes, I did. She also came across as being to me, she seemed to be almost honest to a fault.

 

Liz Flock  06:05

This is Blind Plea. I’m Liz Flock. If Deven was so credible, if she was telling the truth about acting in self defense, then why did she take a blind plea? Now if this podcast is the first time you’re hearing about blind plea, I’m with you. I hadn’t heard of them either not until Deven’s case and I’ve researched a lot of cases. The main difference from a regular plea is this. The defendant agrees to plead guilty without knowing the punishment. They don’t find out until after they signed the deal. And that’s pretty intimidating. So Deven’s decision to take a blind plea, instead of going to trial was one of the biggest one she ever made. She had to consider three factors. One, the realities of her case, how would a jury reckoned with the fact that she shot John in the back of his head while he was lying down? Two, the place it all happened Shelby County, as a black woman, would Deven even stand a chance in such a conservative place, especially considering she could face life behind bars? And three, the judge. How sympathetic would he be to Deven story? Because if she didn’t go to trial, a blind plea would put her fate entirely in his hands. weighing these considerations was part of Deven’s effort to navigate a system that wasn’t set up for her. And ultimately, the system one. And what other files do you have here? Because I know it’s a thick folder. You don’t have to necessarily go through all of it. But just like.

 

Marianne  07:44

Well some of it, this is not the totality of what I looked at, because a lot of that was not my computer. But let me pull this out.

 

Liz Flock  07:52

I’m watching Marianne […] through large stack of papers. Were in her home office in Tuscaloosa, Alabama, and it’s cozy. The walls are lined with bookshelves, a few houseplants sit in front of the large windows, taking in the waning afternoon light.

 

Marianne  08:08

My interview notes, which you will see that a lot of what when I’m writing, a lot of it is shorthand, which means that I went a page of my notes is probably at least two to three pages of someone else’s notes. And it looks like I have about, let’s say a number that might have over 100 pages of notes that I took from my interviews with with Deven and the other people that I interviewed.

 

Liz Flock  08:45

It’s safe to say Marianne is incredibly thorough. She interviewed Deven three times for a total of 11 hours. In her stack of files she has notes from those interviews, plus from interviews with many of the people you’ve already heard from on the show, John’s dad Henry, his mom, Christine, Deven’s dad and stepmom and her sister Simone. As for Alexis, Marianne relied on the taped interviews Alexis gave to the police right after John was killed. The final report she created and sent to Dan is 26 pages long and divided up into sections, including family history, a personality assessment, a mental health exam, and so much more. As she interviewed the people important to the case, Marianne came to the same roadblock. I did that there were two very conflicting accounts of what happened that night in the trailer.

 

Marianne  09:39

Alexis is saying in her interview that Deven had the gun Deven was shooting up the trailer that John was scared that Deven was going to shoot him and that she was also being abusive to him and that John was afraid of Deven and that Deven was the one who was the abuser. So right from the beginning, there’s that disparity, you know, it’s clear, it wasn’t just a difference of sometimes people remember things differently, or they interpret things differently. These were two very different presentations about what happened that night. So clearly, somebody’s not telling the truth. Somebody’s lying, either it’s Deven, or Alexis.

 

Liz Flock  10:36

This made me think back to the police interviews with Deven and Alexis. It’s unsettling how they tell almost the exact same story. But with the roles reversed. I was curious how Marianne handled that in her report, because it was a major roadblock in Deven’s case. I’m just wondering if you have any thoughts at all about that extreme disparity in this, these stories?

 

Marianne  11:00

At that point, when I have these two very what I’m trying to do is see, is there any anything that will help me to, you know, catch anybody and a lot, so to sort this out? Is there anything in the terms of the evidence that would show who’s telling the truth and who’s lying? And there was and that the, the key to that lies in the cell phone records.

 

Liz Flock  11:30

Authorities had extracted more than 14,000 text messages from Deven’s phone that stretched back about a year before John died.

 

Marianne  11:38

Particularly when I looked at the text messages, it was clear to me that you don’t have the voice of the person who’s dead who cannot be interviewed who’s admitting to acknowledging any way that he had been abusive to her even having fired a shot at her one time. And so it it’s was clear to me from the tax messages, that what Deven had said about him being abusive to her, and some of the specific ways that she had told me about how he had been abusive to her were there and the text messages. And so it did not fit at all with what Alexis was saying.

 

Liz Flock  12:35

As Marianne says, John acknowledged his abuse in the texts telling Deven that he knew the things he did emotionally and physically hurt her a lot. In those messages, he would check in with Deven about the injuries he inflicted on her injuries that left her bloodied, bruised and concussed. Deven would often text back that she was not doing well. At different times, she wrote that it feels like someone is ripping my head in half, that she needed stitches, that she was trying to get the blood out of her hair, and that quote, I feel like I got hit by a bus. John was sometimes kind in his replies telling her let me know if anything gets worse, okay? Or even apologizing. I’m stressed sorry, I take it out on you. But other times he threatened Deven in his messages writing, I’m gonna fuck you the fuck up or you need to pull the depression stick out of your ass. He often accused Deven of sleeping with someone else. And once he threatened to hurt her if the accusations were true. If I’m wrong, I’m sorry, he wrote. But if I’m right, it’s going to be a rough week. Many times their messages were more mundane, even loving. Typical tax partners sent one another. John asked for grocery lists from Deven so we could go pick up food for the trailer. And on the night to stay with Alexis, he wrote messages to Deven like, good night, I love you. I hope you guys are okay. I pray and make some money for y’all ASAP. I miss you guys. Deven would reply that she missed and loved him too. But those moments of peace never lasted. And John’s messages would inevitably become abusive again. It’s here in the text that you can see the cycle of abuse play out the stages of tension, violence, reconciliation and calm. The evidence is right there. But this conclusion of Marianne’s that Deven acted in self defense was remarkably different from where the investigators landed. As you heard in the last episode, investigator Mike Mehlhoff was fully on board with a Alexis’ story.

 

Marianne  14:50

He seemed to accept what she was saying as being truthful and that he began to see, Deven’s motive is being jealousy about John’s sexual relationship with Alexis rather than that she shot him out of fear that he was going to kill her.

 

Liz Flock  15:16

Did you ever see any indication when you were interviewing Deven that she was jealous?

 

Marianne  15:21

I did not see that. And I, of course, I questioned Deven about that and what she told me was that she, she knew that they were, she suspected that they were having sexual relations. But the way she looked at it was that was that much less sex that John was asking her for. So she did not object to his relation, his sexual relationship with Alexis.

 

Liz Flock  15:52

The jealousy angle that the investigators and prosecution had advanced and the standard ground hearing was one thing. But the more damning reality of the case was the indisputable fact that Deven shot John in the back of his head after he had been laying down for around five minutes.

 

Marianne  16:08

That’s often the case that women may wait for a moment when they feel like it may be their only opportunity that they can save themselves.

 

Liz Flock  16:23

According to Marianne, though, there’s a psychological rationale for why Deven didn’t just grab the gun, her cell phone and her daughter and run out of the trailer to call the police.

 

Marianne  16:33

She said she had, but wish she had as that’s what she would have done if she thought to do so, as she really didn’t want to kill him. In my opinion, it’s possible that her depression and or her level of intoxication interfered with her ability to consider this as an option.

 

Liz Flock  16:54

In her report, Marianne writes that at the time of the shooting, Deven was dealing with serious mental health challenges. PTSD from John’s horrific abuse, major depression from the isolation, violence and hopelessness she endured, and alcohol abuse as her means of coping. Marianne says all of these factors, especially the depression, impair Deven’s cognition so much that it was difficult for her to think of ways to escape her situation. When Marianne interviewed Deven, two years after the shooting, Deven told her she still felt depressed, but it wasn’t as bad as it was before. antidepressants and a few counseling sessions in jail had helped. After considering all of it, Deven’s mental state 14,000 plus texts, and many interviews in case files, Marianne had her conclusion, the same one our team came to.

 

Liz Flock  16:54

In conclusion, it’s my opinion that Devon was an imminent fear for her life when she made the decision to kill John.

 

Liz Flock  17:46

Marianne sent her report off to Dan. At the time, he was building Deven’s defense. And truth be told he was a little apprehensive about taking it to trial. Because even though Marianne’s report painted a sympathetic portrait of Deven, he knew the facts were the facts, and that a jury probably wouldn’t have the same understanding of why Deven shot shot and when she did, the way she did.

 

Dan  18:26

My concern was getting the jury to without a better way of Senate to walk a mile in her shoes, and I don’t know whether we could have gotten them all there.

 

Liz Flock  19:43

Because they don’t understand domestic violence or because she’s black or because.

 

Dan  19:47

All of the above

 

Dan  19:48

I mean, I tell all my defendants anybody, when you walk into a courtroom in Shelby County, eight of the 12 jurors already think you’re guilty. Like they don’t need to hear anything. It’s not innocent till proven guilty we can tell them that 100 times the judge will tell them that that’s not what they think. I mean, they think you’re sitting in that chair. You’ve done something wrong.

 

Liz Flock  21:00

Throughout the reporting process, our team talked to local lawyers, activists and community leaders about Deven’s case. And they had a lot to say about the fact that it all went down in Shelby County, Alabama. If Deven decided to put her life in the hands of a jury, she needed to understand Shelby County’s jury pool.

 

Dan  21:20

When you’re doing business in Shelby County, you better you better be ready to go to war, because they they do not play in Shelby County.

 

Dan  21:31

The likelihood of conviction it would be pretty hard, but.

 

Speaker 5  21:36

She never would have gotten a fair trial in Shelby County because a jury of her peers which would have been black women who looked like her almost non existent in the accountant.

 

Kenneth Dukes  21:48

I was told by an attorney that a black person doesn’t have a chance and should have been counted.

 

Liz Flock  21:55

That last voice is Reverend Kenneth Dukes. He wears many hats in Shelby County. He’s a pastor, founder and president of the Shelby County NAACP chapter, a bus driver for the Shelby County School System and a bunch of other things too, the community really looks to him for support. So he gets a lot of phone calls. His ringer went off a couple of times during our interview.

 

Kenneth Dukes  22:20

So you need to turn this off. This every day, I’m dealing with something I’m calling or encouraging or inspiring, or trying to put someone in contact with somebody that can give them legal advice on how to approach a situation, that’s kind of my daily thing now.

 

Liz Flock  22:42

The calls are often about difficult situations. Like in August 2022, when a local police officer was caught sending a racist text to his coworkers. It happened in the town of Vincent about 30 miles from Calera. Community members called on Dukes for support. And together they organized and packed a city council meeting.

 

Kenneth Dukes  23:02

And so it kind of pushed the mayor and the council and the county there had to do something. Ultimately, they voted to disband the police department.

 

Liz Flock  23:15

The department which had been made up of three officers was no more. After dissolving it the City Council announced they’d recruit and rebuild the police force from scratch. Duke’s was interviewed a lot about this incident when it happened. He told the New York Times this was the quote, tip of the iceberg when it came to racism in the community. He said something similar to our team.

 

Kenneth Dukes  23:38

My description of Shelby County is a beautiful place to live. It’s a wonderful place to raise a family. But it has those demons so to speak.

 

Liz Flock  23:53

This is the place for the landmark Supreme Court case Shelby County versus holder originated the one that gutted the Voting Rights Act of 1965. As a result, it’s become more difficult for many people of color and low income people to vote. So it’s not that surprising that a place like this is also lacking representation in its criminal legal system.

 

Kenneth Dukes  24:14

in Shelby County, we’ve never had a person of color to sit on a bench ever in the history of this county. We’ve rarely, if ever, have more than one person sit on a jury, you know, of color. The jury selection just seems like it just fell off when it comes to African Americans, you know, or just either people of color. And so we want to know why, and of course, they excuse me as well we just go to this random list of voting or whatever, you know, but it’s it’s systematic and has gone to intentionally. We know that for a fact.

 

Liz Flock  24:53

Duke says you’re just about guaranteed to get a majority white older jury in Shelby County, a jury that might be be more prejudiced against an interracial relationship like John and Deven’s. For context, Alabama was the last state in the country to lift their interracial marriage ban in the year 2000. And even though the ban hadn’t been enforceable, for decades, because of the Supreme Court decision, Loving versus Virginia, a lot of Alabamians still voted to keep it, that history speaks to why Dan was concerned,

 

Dan  25:24

The racial dynamic factors into my decision making in my strategy, because when I’m trying to tell her her chances of winning a trial, I mean, I have to factor in that I’m gonna have probably an all white jury and there’s still a certain segment of those people who, you know, don’t approve of no racial relationships, even let alone you know, anything else that comes with it, and I mean, it was always a dynamic in the back of our mind.

 

Liz Flock  25:51

Dan told me part of him really wanted to go to trial because he wanted to win this case with Deven.

 

Dan  25:56

But at the same time, there’s substantial risks there. Then, you know, she’s the one that bears that risk.

 

Dan  26:02

My disgust you know, our options with Deven, and basically what it boils down to is she is charged with murder, or she was charged with murder. So she’s looking at a potential life sentence on her murder charge. When he offered us a plea, a manslaughter that immediately kept the sentence at 20 years. And it made the basic range 10 to 20. […] matter what happened, she realized she could get it was 20 years.

 

Liz Flock  26:02

That risk was weighing on Deven as she sat in jail. If Deven went to trial, she could walk free, or she could face a hefty sentence. In Alabama, the range for murder with a gun is 20 years to life imprisonment. Reading through her emails from jail, you can tell Deven felt in the dark about the legal process. Her trial date was delayed over and over again. Then in April 2019, the prosecutor Daniel McBrayer finally made an offer for a plea bargain, a 20 year sentence for murder. But Deven said no deal. Even though she was afraid of trial, she and dad thought they could do better. But the longer Deven spent in jail, the harder it was for her to stick to her convictions. In May 2020, Deven wrote the following to endlessly I’m so tired and I feel really lonely in here. No one understands what I’m going through. I’m tired of waking up every day to this place. I’m tired of slamming doors and rude officers. I’m tired of being fed food that even a dog would turn their nose up at. I’m tired of feeling like I want to cry almost every day. In the summer of 2020, McBrayer approached Dan with a new option. Rather than offer a better plea bargain. McBrayer asked Dan if Deven would entertain a blind plea. I haven’t been able to confirm with McBrayer why he’s adjusted that, but it could be because he didn’t want to risk looking soft on crime by offering Deven a more lenient plea deal. Whatever the case, he suggested a blind plea. let the judge decide the sense. Dan was reluctant to consider it for Deven’s case because of the obvious risk. She and Dan would learn a range of potential years ahead of time, but not the exact sentence. As the name suggested they’d go in blind. But there was one reason to seriously consider a blind plea. They usually come with reduced charge and a Deven’s case taking one would mean she’d get manslaughter instead of murder.

 

Liz Flock  28:40

So she didn’t know exactly what she’d get. But she knew the cap, and 20 years at most sounded a lot better than 20 to life.

 

Deven  28:49

But we kind of weighed the pros and the cons. And just the fact that I could have been tried for murder and murder is heavy, no matter like how you put it or what you say or whatever, it’s heavy. I am guilty of something but what they are going to convict me of is not what I’m guilty of. So I accept the fact that I took his life but I’m not going to accept the fact that you think it was intentional or malice or anything like that. So in my heart, I was like, I think that it would be best for me to take the blind plea because really no matter what it was, it was going to be manslaughter. And that’s just less of a fool the time bracket is not as scary.

 

Liz Flock  29:40

So at last Dan agreed, and he and McBrayer went to speak to the judge to get his approval. The judge signed off on it. And then in August 2020, Deven signed the blind plea pleading guilty to manslaughter. She said she felt at peace as she signed the document because she figured at this point, she was going to prison. So she just wanted to start her sentence and get it over with.

 

Deven  30:07

I was just tired, and I seen how my stand your ground was so easily dismissed. So I guess my standard ground kind of gave me an idea of how they were going to treat me. And I did not want to be found guilty of murder, and have a sentence that I just couldn’t come home with. You know, because there’s women in here who believed in the justice system, and got 40, 50s life in 99 years and just crazy, crazy sentences. And I look back on that now. And I’m like, well, I’m glad that I took the blind seat because I felt like I wasn’t going to get my fair chance in trial, I just feel like the jury would have been more aligns of how the judges mentality was, and I would have been stuck and guilty of murder. I mean, that could have been my whole life.

 

Liz Flock  31:21

We looked into blind pleas over the last year, initial Google search brought up mostly news articles about people taking blind pleas and some explainers from regional defense attorneys.

 

31:32

What is a blind plea, you’re pleading guilty, so you’re really throwing yourself at the mercy of the court on that. So it’s completely up to the judge how you’re going to be sentenced.

 

Liz Flock  31:42

Pllus, a […] track from Alabama rapper Rylo Rodriguez […] not exactly what we were looking for. Looking deeper, we found that people often take blind pleas when their initial charges are serious crimes like Deven’s charge of murder, or when their charges especially on appealing to a jury, like a DUI where someone got hurt or died. Although some attorneys told us they only do blind pleas for smaller crimes. So it’s kind of all over the map. We also found that blind pleas happen in about half of all states, mostly in the Midwest and the South. They sometimes go by other names like open plea, cold plea, or pleading straight up. They always mean pleading guilty in exchange for an uncertain sentence. The more we dug, the more we realized how little information exists about blind pleas. And even experts on the criminal legal system. Like activists, reporters, and researchers didn’t have a ton of knowledge to share.

 

32:49

I don’t know, I don’t know anything about blind, please I just know about general plea, you know, plea deals.

 

Liz Flock  32:56

Why would someone take a blind plea? What is usually the reason someone is doing that?

 

33:04

You know, to be honest with you, I really I really just don’t know, because I feel like they are pretty rare. And I just haven’t seen them a lot.

 

Speaker 10  33:13

I was not aware until quite recently that there was such a thing as blind, please, where there’s even less information given to the defendant. And I think that they’re not allowed in all states to have to have this kind of procedure.

 

Liz Flock  33:31

Doing so is when I asked you about blind plea, that you found out about it?

 

Speaker 10  33:34

Yeah.

 

Liz Flock  33:37

With the help of the Sentencing Project, I put out a call about blind pleas to a listserv of lawyers and legal scholars across the country, and got only a few responses. And of those, the vibe was basically this isn’t a well studied area. If you learn anything more, let us know. The more I reviewed Deven’s case, the more I wondered whether she should have ended up with a plea deal at all, whether Dan had pushed hard enough in the standard ground hearing to include John’s history of violence, and whether she should have gone to trial instead. To get more perspective, I turned to Richard Rice, an Alabama attorney who specializes in standard ground cases. He’s actually one three, all of them involve domestic violence, which makes his track record especially impressive, because I’ve seen how hard those cases are to win. Richard acknowledge that hindsight was 2020. But he questioned Dan use of a blind plea.

 

Richard Rice  34:34

What’s the essence of informed consent I mean, how do you how is that even ethical? It’s a good idea if you want to try to put people in jail, because that’s your goal is to put people in jail, you know, as soon as them and you want to do so with as little risk as possible. And then when you plead guilty you waive so many of your rights to appeal. It’s almost impossible to have a successful appeal in most situations.

 

Liz Flock  34:59

Let me just hit pause on that thought for a moment. It’s a good idea if you want to try to put people in jail. Blind pleas and plea deals in general both usually involve pleading guilty to a lesser crime. But they also put people in prison who might have received a lesser sentence or been found not guilty if they went to trial, the vast majority of cases and in plea bargains, with this understanding, it’s difficult not to see please as a major force packing prisons. And like Richard said, taking a blind play means the defendant waives their rights to an appeal, which makes it impossible to challenge a final judgment.

 

Liz Flock  35:40

So you wouldn’t have advised Deven to take a blind plea?

 

Richard Rice  35:43

Oh, no, I definitely wouldn’t have.

 

Liz Flock  35:46

So what should Deven have done instead? Richard tells me he would have handled Deven’s case differently from the start. For one thing, he would have worked to get John’s history of abuse allowed in as evidence and to stand your ground hearing,

 

Richard Rice  36:00

We would have certainly wanted to get that type of information and for sure, you know, because these are things that she’s witnessed. And so when he says no matter what, I’m going to kill you and, you know, if you try to leave me and she knows that she can’t take any more she’s about to have to leave, then, you know, that goes to whether a threat is imminent, you know, is it believable, for sure, right, because of these previous experiences he has and so I think you do need to be creative and persistent about how you how you work to get that type of information in.

 

Liz Flock  36:31

But even if the judge didn’t allow John’s abuse, and Richard told me, there’s still a benefit trying, because those efforts from the defense would be on the record, making it easier to appeal the case. Richard says that if Deven was his client, and they had lost the Stand Your Ground hearing, he would have taken it to trial.

 

Liz Flock  36:50

For Deven, I think her lawyer was calculating that it was going to be a majority white jury, she killed a white man, and she was going to get 20 years or more so with the blind play, it would be less.

 

Richard Rice  37:03

Boy, I guess, if you had an all white jury, then that within itself could potentially give you a basis for an appeal. And that situation, you know, and I don’t know what they may say or what may come out in the interview process but, you know, you may even have some direct evidence of racial bias, I don’t know. But it is, you can’t we can’t be in a position where we have so much, you know, you’re overwhelmed or something that you know, that shouldn’t. That shouldn’t necessarily be the reason why somebody takes a blind plea or takes a plea deal in that type of situation because she had a viable self defense argument and a standard ground argument.

 

Liz Flock  37:47

For Richard, the only reason to even consider taking a blind plea is in the most extreme cases, like if the defendant is likely to be convicted at trial and get the death penalty. Now that Deven had signed the plea, she would find out her fate at a sentencing hearing. As the hearing approach, Dan told her that he was optimistic the judge would be sympathetic to her case.

 

Dan  38:11

And what I explained to Devin all along was, I had the sense that the judge wasn’t going to max her out.

 

Liz Flock  38:19

The reason Dan trusted the judge was because he knew him. William Bostick was the same judge from Deven standard ground hearing, the same guy Dan used to work for at the district attorney’s office.

 

Dan  38:31

As a defense lawyer, you know, many if you’ve been in that courtroom before, you generally have a pretty good idea of what that judges MO is normally going to be in these cases are they usually open to certain arguments are they closed off to certain arguments or they.

 

Liz Flock  38:47

Randy Horton is the defense attorney in Alabama, and he told our team that knowing the judge in a blind plea is crucial. He said that defense attorneys will often talk with the judge before taking a blind plea to get an idea of how many years the final sentence would be. If the judge indicates they’d be lenient toward the defendant, the defense is more likely to go for a blind plea. Randy told me these conversations are often informal and off the record. And if I’m being honest, it sounds a lot like a good old boys club to me, who in this case, we’re collectively deciding the fate of a young black woman.

 

Dan  39:26

Generally, if a judge isn’t fluid enough to kind of give me feedback on that I’m not generally a fan. And that’s just that’s just me saying if you’re not cool enough to give me a response, are you cool enough to leave to go with me down the path I want to take you down at sentencing.

 

Liz Flock  39:44

If I wondered before whether blind pleas were unjust now there was no doubt in my mind. I kept imagining Deven as a participant in some kind of demented game show, being asked to spin the wheel to decide her fate. Instead of playing for money, she was gambling for time for her life to see how many years she’d lose in the end, and the game was rigged, tilted toward powerful white men in the system against a black woman who had no connections at all.

 

Liz Flock  40:56

While Deven and Dan prepared for the sentencing hearing. Deven’s family and friends found out that she had signed a blind plea, her dad Jean wasn’t sure what to make of it.

 

Liz Flock  41:11

What do you think of this whole blind play thing? Because I had never heard of blind plea.

 

Jean  42:16

So I just I never thought much about it.

 

Liz Flock  42:18

She’s agreeing that she’s guilty, but she doesn’t know what she’s gonna get.

 

Jean  42:21

Right, that’s that’s how it works but she basically put her life in the hands of the judge.

 

Liz Flock  42:27

Today after signing her blind plea, Deven wrote a message from jail to her best friend Kiera to tell her what happened.

 

Kiera  42:33

All right, this is from August 27 of 2020. This was like in the thick of the pandemic.

 

Richard Rice  42:40

I asked Kiera to read Deven’s words aloud.

 

Kiera  42:43

I signed a plea deal to manslaughter. This is how I found out she did this. I know what you’re thinking, what the fuck Deven? Trust me. I’ve thought about this long and hard. It was not an easy decision, but it was the best one for me. If I went to trial, I know they would have found me guilty and the only charge that was on the table was murder. I could have been sentenced the life of the judge shall fit. This way if I plead guilty to manslaughter, the limit is capped at 20 years.

 

Liz Flock  43:09

In her letter Deven goes on to say that even though the cap is 20 years, she might get as little as 10. The minimum sentence, and anything fewer than 16 years would make her eligible for good time. A system where prisoners can reduce their sentences by behaving well. For Deven every 30 days of good behavior would equal 75 days of credit toward her sentence. After spending years in jail already. The promise of a shorter sentence proof powerful for Deven.

 

Kiera  43:39

I know you want me to fight but K. I just can’t do it anymore. I’m tired, this place is finally broken me and crushed my spirit. I have nothing left for these people. The officers or the inmates the way they put me through such dumb as shit. It’s enough to make me book.

 

Liz Flock  43:57

Deven also tells Kiera  that she feels the corrections officers at Shelby are picking on her on purpose. Recently, they confiscated her pens because she had wrapped them in paper. The pens in prison are soft and bendy, so that they can’t be used as lethal weapons. But it also makes riding with them incredibly annoying, which is why Deven use paper to stabilize them. It was things like this day after day that stacked up and demoralized her.

 

Kiera  44:25

Okay, so listen, I will call you as soon as I can. I did not want you worrying about me. And my sentencing date is November 2 of this year. Dan’s gonna help me set up some testimonies for the date and whatnot but I’ll let you in on the details when we talk on the phone. I miss your face. I love you stay up my beautiful darling. Love Dev everything’s gonna be alright.

 

Liz Flock  44:45

I wanted to know what Kiera made up this letter because this was how she found out about Deven’s decision to take a blind plea.

 

Kiera  44:52

I was frustrated with Dan, first of all because I’m not even a lawyer I think I could have gotten her off. After a while, I think Dan just got kind of tired of the situation as the Deven so they just said to hell with it, guilty.

 

Liz Flock  45:10

In November 2020, Deven and Dan arrived at the courthouse and colombiana for the sentencing hearing. This is when all the stakeholders the defense, the prosecution, even family members come together to make their final statements about how many years a person should get behind bars. It was the height of the pandemic so the courtroom was sparsely filled. Deven and Dan on the defense side. McBrayer on the prosecution and Judge Bostick presiding. A few key witnesses were seated as well. John’s and Sheila lead investigator Mike Malhoff, and the forensic psychologist Marianne Rosensweig. Everyone else during the court proceedings via zoom. Among them were Deven’s dad, Jean, her sister Simone and John’s mom, Christine. In a victim impact statement, Christine described her grief as a black cloud, and said John was well known in the community for his kindness. After all the witnesses judge Bostick told Deven he could tell she was quote, genuinely remorseful and sorrowful for killing John. And then came the sentence without much deliberation a term of 15 years in the Alabama Department of Corrections. In some ways, this was the judge showing leniency because had he given her 16 years, she wouldn’t be eligible for good time.

 

Judge  46:32

I think that he gave me the 15 because it’s like I seen where you were beat up. I seen that you had broken bones in your face. I seen that they had to take you to the hospital, but you could have done something else.

 

Richard Rice  46:47

In July 2021, Deven was moved to Giulia, Tutwiler Prison for Women in with Tonka Alabama to serve out the remainder of her sentence. It’s a maximum security prison for their spirit already crushed from years of abuse. Deven’s future look dark. She had served some of her sentence in jail already. For the year stretching out ahead were overwhelming. One glimmer of hope for Deven was getting out early somehow with good time are on parole. Until then, she was trapped. Next week on Blind Plea our team visit Deven at Tutwiler Prison.

 

Liz Flock  47:27

Hey.

 

Deven  47:28

Hi.

 

Liz Flock  47:29

We tried, but it was not possible.

 

Deven  47:35

Yeah, Christian they called the cops on you, crazy.

 

Liz Flock  47:43

If you or someone you know is experiencing domestic abuse, use the safe computer and contact the National Domestic Violence Hotline at the hotline.org or call 1-800-799-7233.

 

CREDITS  48:05

There’s more Blind Plea with Lemonada Premium, subscribers get exclusive access to bonus content. Like an interview with John’s dad, Henry and more excerpts from Deven’s detective interview the night of the shooting. Subscribe now in Apple podcasts. Blind Plea is production of Lemonada Media. I’m your host Liz Flock. This episode was produced by Kristin Lapore, […] Evans and Tony Williams, Hannah Boomershine and Rachel Pilgrim are also our producers. Story editing by Martina Abrahams Ilunga. Mix music and sound design by Andrea Kristinsdóttir  with additional mixing and engineering from Ivan Kuraev. Naomi Barr is our fact checker. Jayla Everett is our production intern. Jackie Danziger is our Vice President of narrative content. Executive Producers are Stephanie Wittles Wachs, Jessica Cordova Kramer, evoked media, Sabrina Merage Naim and myself, Liz Flock. This series is presented by Marguerite Casey Foundation. Help others find our show by leaving us a rating and writing a review. Follow me at @LizFlock. And for more stories of women and self-defense, check out my book The Furies from Harper books available for preorder now. Find Lemonada at @LemonadaMedia across all social platforms, and follow Blind Plea wherever you get your podcasts or listen ad free on Amazon music with your Prime membership. Thanks so much for listening.