Observations from Tony Viola, the only prisoner in America who proved his innocence yet remains in jail
Observations from Tony Viola, the only Prisoner in America
Who Proved His Innocence at Trial yet Remains In Jail
—- Exclusively Submitted to:
The American Prison Writing Archive
August, 2017 www.FreeTonyViola.com
Hello, I'm Tony Viola - The only person in America who proved his innocence at trial yet remains in jail. I'm honored that the American
Prison Writing Archive has invited me to submit this essay, which provides a brief overview of my case and a longer discussion about what it's like being in jail.
I was indicted three times and tried twice on identical charges by a joint federal-state mortgage fraud task force. Prosecutors said I tricked banks like JP Morgan into making ‘no money down‘ mortgage loans. Right
«from the start, I told everyone I'm innocent and I refused to plead guilty -- no matter what.
Before the first trial, prosecutors Mark Bennett and Dan Kasaris
.met with lender executives, who admitted that banks offered the loans
I supposedly tricked them into making. Prosecutors also obtained documents concerning the properties at issue in my case that confirmed banks waived conditions (like income documents or appraisals) in their rush to close loans. Prosecutors hid information that proved my innocence. Then, prosecutor- did the unthinkable: they ordered their Office Manager, Dawn Pasela, to befriend me, wear a wire and record discussions about my case. My friends held happy hours to raise money for legal fees and that's where
I first met Dawn. She said she was a criminal justice major who wanted to help me with my case. She donated money towards the cause and started spending time with me and my friends. I didn't know our conversations were being recorded and Dawn didn't know she would start liking me. Then she began having second thoughts about what she was doing. While still an employee of the prosecutor's office, she made copies of evidence that proved my innocence. After I lost the first trial, she told me she recorded our conversations for prosecutors then gave me evidence prosecutors hid, which I used to win the second trial.
People often ask how could I be indicted and tried in both state and federal court at the same time. That's because of a legal principle called dual sovereignty —— I'm a citizen of America and of Ohio and both
"sovereigns" have the right to prosecute me. This dual prosecution is extremely rare and generally reserved for mass murderers like Timothy
McVeigh. No court in my case has ever ruled whether or not the use of a joint task force for these prosecutions is permitted and the whole issue is better explained by a law school professor. The key point is this:
I was tried twice on the same charges by the same prosecutors who told both federal and state court judges they were working together through a joint task force.
Thanks to Dawn, I won the second trial. Banks were forced to admit they met with prosecutors before the first trial and they also admitted they approved loans knowing they were ‘no money down‘ transactions. Dawn offered to testify about how Prosecutors Bennett and Kasaris committed misconduct during my case. But when prosecutors saw Dawn's name on my witness list and realized she was helping me, they threatened to put her in jail. The day Dawn was scheduled to testify, she was found dead in her apartment by her parents. She was only 26 years old. The next day,
I was found not guilty on all charges.
I assumed there would be an immediate investigation into Dawn's death and that I would be released from jail since I had just proved my innocence after a six week jury trial. I filed a motion to be Released on Bond pending Appeal but that was denied. Instead, I was shipped around the country to jail after jail for months on end. I was moved from the County jail in Cleveland to the Federal jail in Cleveland, then to jail in
Youngstown then to jail in Pittsburgh then to jail in Oklahoma City then to jail in Atlanta then to jail in some place called Lovejoy, Georgia then to two jails in Kentucky. vJail transit, or diesel therapy as prisoners call it, is pure torture: handcuffs, leg chains, a chain around your waist like a belt. Sometimes, they "spitbagged" us, which meant we had to wear a cover over our head and sometimes, our handcuffs were chained to a "black box" so our hands were immobilized. Sometimes, I was chained to the guy next to me -— All this after I proved my innocence!
The government can't spend enough money on jail transit: Busses, vans, planes, transit centers, for no good reason other than to show people who's the boss, you don't mess with the feds. L
When I finally got to jail in Kentucky, I informed the Court of Appeals
I just proved my innocence and asked for a new trial or a hearing so I could present the proof of my innocence to the federal courts. I also asked for an investigation into Dawn's death. I waited a full year for the response: Sorry, we can't consider your request, you "notice of appeal" was filed before the start of the second trial, go back to the trial court and explain everything to Judge Donald Nugent. Judge Daniel Gaul ordered all transcripts and exhibits from the second trial made available to me
"at no cost in the interests of justice". But Judge Nugent denied my request to add these transcripts or exhibits to his docket, ruling that
I was "not allowed" to obtain an acquittal using different evidence. Proof of my innocence is in my locker in jail but no federal court or judge has ever granted me a Hearing or the chance to present this evidence.
I appealed that ruling and filed many more pleadings and, five years later, a bunch of stuff is before several different courts with no resolution in sight.
Every day that goes by seems like an entirely new injustice. None of my family or friends can understand why someone who proved their innocence at trial is still in jail. I work on my case every day so I can win my case and rejoin my family and friends and maybe resume a normal life.
But, at every turn, the Justice Department uses its power to delay my court submissions, tries to "narrow" the issues a court considers and quite often simply lies about key facts in my case. I think they're hoping
I'll run out of gas or give up or simply lose my mind so they can sweep my case under the rug.
I think about my friends all the time and I miss everyone very much.
I wish you could meet my beautiful and talented friend Sarah. I always told her that I was so lucky to be friends with her. It changed my life to be friends with someone I admire and look up to and Sarah and I were always there for each other. Sarah always makes everyone feel good about themselves and she's fun to talk to and spend time with. She's also extremely intelligent and always had really good business ideas. She helped me run and build the Real Estate company. But sometimes, she dated guys who were abusive and sometimes, she struggled with addiction. I'm so sad I can't do anything to be supportive of my beautiful friend, who I care about so much. I hope I win my case so I can be there for Sarah, like we were for each other back in the day.
I didn't win my case in time to be there for my best friend John
Rose. You would have loved John, everyone did, he was uniquely entertaining and the life of the party. John was an expert sailor and he traveled around the world and took amazing pictures of penguins and dolphins and turtles and manatees and all sorts of amazing wildlife. Women went wild over John, especially when he told exotic stories about cool places everyone heard of but no one had ever been to. But John often had dark thoughts. his Mom and twin sister were killed in the TWA 800 plane crash and I was always there for him when he needed to talk or when he needed a place to stay and regroup. One night, John got depressed and had too much to drink and wasn't thinking clearly and_he took his own life and now there's a huge hole in my heart.
I have a really big Italian family and everyone is very close with each other, especially the cousins. My Mom and Dad are really nice people and they're probably more upset than I am about what the government has‘ done to me. Lately, my Dad has been dealing with health issues and I'm not there to help my Mom, making things even more difficult for her. I used to spend time with my folks, talk baseball with my Dad and go shopping or out to lunch with my Mom. I often wonder if I'll ever see them alive I again, I don't know if I will. My Grandmother is 99 years old and I miss her a lot and hope to see her again soon, but I don't know if I'll win my case in time.
Many times, I think about Dawn and sometimes I have nightmares about what happened. I think about how courageous she was to come forward and help me. I think about how hard it must have been for her to wear a wire and fake a friendship with me. I think about the roller coaster of emotions she experienced when she started liking me and my friends, then when she blamed herself for my conviction. I have no idea how her parents are dealing with such a tragedy and I pray for them a lot. I am very grateful that Mr. and Mrs. Pasela have been helping me with my case. I wish I could put flowers on Dawn's grave and spend quiet time at the cemetery, just reflecting about the fun times we had together and thanking her for helping me.
Many times, I can't believe something so awful is really happening or why prosecutors get away with so many illegal actions, especially what they did to Dawn and her family. A Catholic priest once told me he couldn't wait to see what great miracle the Good Lord was formulating out of such tragedy and heartache. Thank God we have Catholic services in jail, I could have never made it this far without faith in God. Our Priest, Fr.
Vince, encourages me to be thankful for the good things, he challenges me to list them out or reflect on each one. I'm in good health and I get more mail than anyone else here. My friends have done a wonderful job with the www.FreeTonyViola.com web sits, my friends Melanie and Jen and Carla and Jill look up stuff for me and mail it in, they also help with an electronic newsletter and blog we have about the case. My friend
Kara is a saint, she teaches autistic adults and finds time to write letters and send books. Cousin Deb also orders books for the guys here since the jail library hasn't purchased any books in years. I'm thankful that
I like everyone and I get along with the guys here. I have made many terrific friends and come to see how much injustice there is in America --
I had no idea what actually went on in this country until the government came after me. But maybe this isn't so bad, I say to myself sometimes,
I can sleep in and work out and read books. I've taught classes and helped guys with their legal work. I have helped people get traffic fines waived or payment plans set up for child support or time off their sentences and, once, immediate release from jail. But then I say to myself, no,
Tony, you have Stockholm Syndrome, this is evil and unjust.
I struggle to come up with an answer when people ask why I'm still in jail after I proved my innocence. Courts of Appeals say they won't speculate or draw an inference in anyone's favor but, in my case, I proved
I'm innocent but they don't care. Courts look for reasons to deny relief, especially when a pleading is submitted by a prisoner. Asking for my conviction to be overturned is considered an attack on the integrity of the system itself, which many righteous judges don't find credible. Most judges used to be prosecutors, no prosecutor would bring a case if the guy wasn't guilty, I MUST be guilty. Prosecutors and judges are colleagues who work in the same building. Even thought my case is the most obvious injustice conceivable, the judges who've ruled on my case thus far can't seem to bring themselves to admit that there's something wrong here. Speaking of Judges, though, one judge cares a lot about my case. Judge Gaul writes me in jail, expressing his outrage and disappointment that I'm still here.
Judge Gaul saw first hand how Prosecutors Bennett and Kasaris lied about evidence they claimed didn't exist and he saw 35 witnesses testify for me, telling jurors I'm innocent. Kara says I already won because I refuse to be defeated. My friend Mark is a lawyer and he says I already won because the Courts never say I'm guilty and have never upheld my conviction.
He says I've been fighting the government to a draw and I'll eventually win. My friend Christine says I have to become a crusader and help change an unjust system, go around the country and give speeches and tell this story.
Many of the guys here should not be in jail. I've seen many people imprisoned because they have mental illnesses or because they struggle with addiction. I've gained a new awareness and sensitivity for people who have those afflictions and I see how hard being in jail is for them.
I've also seen many injustices when I help guys with their cases. Maybe someone is guilty but their sentence is excessive. Maybe there's a calculation error, like in my friend Stanley's case. We sent in a one page motion explaining there was a calculation error and his sentence was four months too long, and the government filed a 65 page brief saying the case was over, it was our fault for not pointing that out before, it's too bad.
I wonder how a culture inside the prosecutor's office that thinks like. that can be changed. I can't believe someone wouldn't say, sorry, Stan, we made a mistake, here's the correct sentence. Instead the response was, Yes, your sentence is wrong but it's your fault for not objecting earlier.
There's a lot of sadness in jail, especially around the holidays.
When I'm waiting to use the phone, I hear the guys telling their kids they'll be home in two or three more Christmases. I hear arguments with the ladies about money. I type letters for guys who have trouble reading and writing and it's terrible to see first hand how badly people out there are suffering because of America's system of mass incarceration.
I never saw so much needless cruelty until I came to jail. Many of the officers are good people but some love making people miserable and take pleasure in coming up with new ways to inflict harm. One Friday, the officers found contraband and the Warden got on the public address system and announced that we were locked down for five days, the phones and e mails were shut off and visitation was cancelled. But the guy next to me had his family flying in from Minnesota, his wife and kids were staying at a hotel nearby. He couldn't even call his family since the phones were shut off. The next day, an officer turned around all the visitors who came to weekend visitation. I understand the need to punish people and maintain order in prison but there was no reason for that action -- it was cruelty for the sake of cruelty. Many families spent a lot of money to travel this way and were hurt and enraged by that decision. I don't really like visits, it's always hard to say goodbye to everyone.
One time, my friend Jen visited me and the guy across from me had a visit from his wife and son, who was around three years old. The little boy started crying, then he started screaming, "Daddy, Daddy, tell the policeman you want to come home with us!" The parents told the child
Daddy was working at the jail, he didn't understand what was really going on. He kept asking "Why doesn't Daddy want to come home with us, Mommy?"
It was so sad that Jen got very upset then she started to cry. Jen ended up going out to eat with the boy and his Mom after our visit was over.
I used to teach a history class here in the evenings, something I really liked to do. We'd watch the world news then play a 30 minute DVD about history. I taught the American Revolution, the Civil War, World
War I and II, the Korean War, and the Vietnam War. We had over 50 guys in the class and everyone liked our discussions about current events and history. Someone told the staff that the class was really good, but some of the staff here during the day didn't know we were showing DVDs and cancelled the class.
When I was in the Cleveland jail, I was allowed to use a small room to prepare for trial. One day, I saw officers handcuff and beat up a guy then throw him down the stairs. I never heard anyone scream so much before and I became nauseous. The inordinate power officers have over inmates is not natural and I believe officers who abuse that power have deeply harmed themselves. Their souls are stained with the crime of violence and abuse of power and, I fear, it makes them less human. But some of the officers have gone out of their way to help me. Most know about my case and some slipped me pens, paper, legal pads or other supplies I've needed. Many of the officers try their best not to become_bitter or angry and try to be reasonable. A few even rebel against the system and are idealistic, trying to help guys when they can. But most times, the innate goodness of the person working in the jail is overwhelmed by an evil system.
They get worn down and give up trying to change things. It's just a job, they say, the federal government is too big for any one person to change.
The officers are resigned to the fact that they can't do anything about things they don't like. That's the ultimate irony: officers who have tremendous and unchecked power over inmates are powerless themselves.
My friends are confident I'll win at some point and that I'm the
-same person I was before I got here. I'm not so sure. Sometimes, I feel like a shadow of my old self, sometimes I feel I must have done something to deserve this, other times I wonder if I'll ever be as productive as
I once was. I ran a company with 150 employees and now, walking the track for an hour counts as a major accomplishment.
A long time ago, at the very beginning of this case, I told reporters
I'm innocent and that the government is wrong -- banks are the ones who should be prosecuted for mortgage fraud, not a real estate company. I've never regretted that decision. I would never plead guilty to something
I didn't do. I'd rather be in jail for 50 years than plead guilty and be in jail for one hour. Having said that, I understand why people plead guilty, even if they're innocent. Prosecutors threaten to indict your wife, your girlfriend, your daughter or your dog if that's what they need to do to get a guilty plea. I respect everyone's decision and everyone has to do what they think is best. As for me, I could never do that and
I'm glad I didn't.
I am summoning all of the courage and energy I can to win my case -- not for selfish reasons, but so we can stop this insane system from enabling criminal activities by prosecutors. We have to end unlawful "win at all costs" prosecutions in America. We need to stop the government from inflicting harm on whoever they target, just because they feel like it. We must end obvious injustices or else no juror or citizen will ever believe anything any prosecutor says, even when they tell the truth and follow their ethical duties. We need to drive change in America, maybe even jail some prosecutors who break the law to "win" their cases. Way too many innocent people are in jail and we are destroying lives for no reason whatsoever.
On most days, it's hard for me to see how anything good could ever come from this experience, especially after Dawn's death. But maybe her idealism will be the last word here. Maybe the Priest is right and evil and injustice will lose in the end. Maybe prosecutors Bennett and Kasaris will be held accountable for their crimes after a full investigation into this case. Maybe Christine is right and I'll become a crusader for justice.
All that sounds great and maybe that's what will happen. But, right now, if you ask me what I'd really like, I can tell you. What I really want to do is spend some time with Sarah, tell her how much I care about her, take her somewhere nice for dinner, see what's on her mind, and make sure she's OK.
If you are working on an APWA-related project, please let us know how you plan to utilize the Archive. We hope to share information about your work with our readers and, whenever possible, with relevant APWA authors.
APWA is an open access archive. We encourage use of the writings for research, course planning, and projects engaged in examination of the criminal legal system. Reproduction of essays in their entirety infringes on author copyright without their explicit consent from the writers. Please contact us if you plan to reproduce entire essays; we will do our best to put you in contact with the authors for consent, and their compensation for any project that is profit making.