Speakers: John Walsh, Felicia Ellsworth, April Williams and Vanessa Potkin

John Walsh: Welcome to In the Public Interest, a podcast from WilmerHale. I’m John Walsh.

Felicia Ellsworth: And I’m Felicia Ellsworth. John and I are partners at WilmerHale, an international law firm that works at the intersection of government, technology and business.

John Walsh: Today’s episode focuses on the historic exoneration of two men convicted decades ago for the assassination of Malcolm X. The Innocence Project, along with WilmerHale and the Shanies Law Office, dug through historical records decades after the February 21, 1965, murder of the famous black nationalist civil rights leader. WilmerHale’s efforts were focused on the wrongful conviction of Muhammad Abdul Aziz. Aziz and Khalil Islam, who died in 2009, always maintained their innocence. Both men eventually were exonerated at the same New York trial court proceeding on November 18, 2021. A third man, Thomas Hagan, actually confessed to the killing, and he was convicted in 1966, along with Aziz and Islam. Although Hagan made statements at trial supporting Aziz and Butler’s innocence, both men were convicted anyway and spent more than 20 years in prison before securing parole. Many years later, in January of 2020, Manhattan District Attorney Cyrus R. Vance Jr. opened a reinvestigation of the case at the request of attorneys representing Aziz and the estate of Islam. WilmerHale lawyers worked pro bono to support The Innocence Project as part of that effort. To break this all down—and it’s a complicated story—I’m joined today by April Williams, my partner in Washington, D.C., who led WilmerHale’s team on this matter, and Vanessa Potkin, director of special litigation at The Innocence Project. Well, welcome to the podcast, April and Vanessa, and thank you both for taking the time to be here.

April Williams: Thank you so much, John. I’m very excited to be here.

Vanessa Potkin: Thank you so much for having us.

April Williams: So, Vanessa, I am really excited to have this discussion with you today about the historic exoneration of two men convicted of killing Malcolm X. First, I thought it might be helpful for our listeners if we give a little bit of a backstory. So, let’s go back to the 1960s. Can you talk a little bit about what was going on in Malcolm X’s life at the time of his assassination?

Vanessa Potkin: Malcolm X was in a transition period in the mid-60s. He, of course, had risen to national prominence through his involvement with the Nation of Islam and ultimately ended up being the second in command. By 1964, he had left the Nation because of political tensions and personal tensions with the Nation’s leader, Elijah Muhammad. And after breaking with the Nation, he dedicated himself to Sunni Islam. He began experimenting with new tools for global and human rights-based movements. He specifically founded the Organization of Afro American Unity, which was a secular organization that focused on establishing economic independence for African Americans and promoting self-determination. So that was his focus at the time. Because of the tensions with the Nation and what was going on in our country at the time period, he faced repeated threats to his safety and just shortly before his assassination, his house was bombed with a Molotov cocktail while him and his family were asleep and they had to run out of the house. So, it was a very distressing time. He knew that he was in danger and in addition to being an international human rights leader, he was a husband and he was a father of four young girls and his wife at the time was pregnant with twins.

April Williams: What about February 21, 1965, the date that he was actually assassinated? Can you set the scene for what was going on that day?

Vanessa Potkin: So, on the afternoon of February 21, Malcolm X had started speaking to an audience of a few hundred people at the Audubon Ballroom in Harlem, New York. This was a meeting organized by his group, the Organization for African American Unity. He took the stand and went to the podium, was introduced and began to address the audience, and there was some type of disturbance out in the audience which we now know was a diversion to set the stage for his assassination. But it started off with this fictitious pickpocketing attempt and then a smoke bomb was thrown into the crowd. And amid this confusion, somebody who was armed with a sawed-off shotgun approached the stage and shot Malcolm X at close range. Two other armed men went up to the stage while Malcolm X was bleeding out already and shot him repeatedly. He was pronounced dead from the injuries that he sustained in the shooting not too long after. One of the men who had walked up and shot him while he was lying on the stage—a man known as Talmadge Hayer, or Thomas Hagan at the time—he was actually apprehended at the scene. He was shot in the leg and the crowd held him and he was ultimately arrested by the NYPD outside of the ballroom. But the other two people got away. Later, Muhammad Aziz and Khalil Islam would be arrested and ultimately convicted as being those two men, even though they were absolutely innocent and not even at the ballroom that day.

April Williams: What was the political climate following the assassination of Malcolm X? And how did that political nature affect the trial, if at all?

Vanessa Potkin: So, by this time, Malcolm X was one of the most powerful voices in the fight against racism, in America specifically. And I think that really cuts both ways in terms of how that played out in the trial because on one hand, there was a demand for a conviction. Malcolm X was one of the most important figures of his time. So, there was this desire for accountability, and to see that the people who killed him were convicted. On the other hand, when you talk about the political climate, this, of course, was the time of COINTELPRO and we now know much more about it than was upfront at the time. But that was the FBI’s undercover and illegal operations which really targeted groups and individuals in the United States that were deemed to be subversive. And the goal there was to disrupt, discredit, neutralize the activities of these movements and their people. Black nationalists and leaders like Malcolm X were being surveilled, and so he was getting it from all sides, and operations like COINTELPRO and the actions of the FBI not only impacted the trial because it really wasn’t a trial about truth, right? The full events couldn’t come out because several people in the ballroom at the time were undercover, you know, working for the FBI, working for the NYPD. So, that played a role in the trial not being really a quest for the truth. And at the same time, I think it still continues to play a role because while Mr. Aziz and Mr. Islam have been exonerated, the full extent of what happened and the events that led up to his assassination I don’t think are quite fully known.

April Williams: So, we know that there was a third man who actually confessed to killing Malcolm X and was convicted as well in 1966. He testified at the trial of Mr. Aziz and Mr. Islam and stated that the two of them were innocent. So, how is it that the jury still managed to convict these two individuals?
Vanessa Potkin: So, there were seven witnesses who came into court during the trial and identified either Mr. Aziz or Mr. Islam—or both of them—as the men that they saw commit this crime. So, the entire conviction was based on eyewitness testimony. There was no other evidence, but eyewitness identification testimony is notoriously unreliable, yet extraordinarily compelling to juries. So, when you have witnesses take the stand and say “that’s the man I saw,” juries believe it. We tend to think that we believe what we see, and we can remember what we see, but we know that the mind is not like a tape recorder and eyewitness identifications are like any other type of evidence, susceptible to contamination and mishandling. And really, eyewitness identification testimony of strangers, in particular, is one of the leading causes of wrongful conviction, and so it’s just now known to be notoriously unreliable. But, with so many witnesses coming in and making eyewitness identifications, it really cemented the verdict here. And, as you mentioned, this is notwithstanding the fact that Thomas Hayer, who initially denied any involvement, took the stand and retracted his prior testimony, admitted his guilt, and said Mr. Aziz and Islam were completely innocent. And this came after Hayer saw the trial unfolding and saw that these two other men were going to end up being convicted for a crime that that they didn’t commit. I think it speaks to how compelling eyewitness identification testimony is that you could have somebody who’s a participant in the crime take the stand and say “I did it,” these two other men are innocent and they’re still convicted. I think the other important thing about Hayer’s testimony is that witnesses had identified him as being one of the men who caused a distraction. And when he took the stand and admitted his involvement, he admitted that he was one of the people with a shotgun who went up to the stage and shot Malcolm X. And so, we know that witnesses also misidentified him as to his role and what perpetrator he was in the assassination. Hayer did say that he committed the murder with four other men who he knew. But he—at the time of trial—refused to say who those people were, and to actually name them.

April Williams: Let’s fast forward a little bit and talk about how The Innocence Project actually got involved with this case.

Vanessa Potkin: The Innocence Project became involved in the case after being contacted by a lawyer, Mark O’Donoghue, who had worked for many years with Muhammad Aziz, trying to help with his exoneration and ultimately helped with his parole almost a couple decades into his wrongful conviction. And so, Mr. Aziz and Khalil Islam never stopped trying to fight their wrongful conviction and get this conviction overturned. And in the ’70s, information surfaced, and they filed a first motion to vacate their conviction in state court in New York City after Thomas Hayer actually came forward and was willing, for the first time, to identify the four other assassins and name them in an affidavit and gave information about each person’s role. In addition, around that time it became known that a man named Gene Roberts—based on testimony in a completely different case—had been inside the Audubon Ballroom at the time. He was an undercover officer working with the NYPD and had been an eyewitness to the assassination and ultimately had information that corroborated the defense. I should add that at trial, both testified and provided alibi defenses. Mr. Aziz was home at the time that this happened, and Mr. Islam similarly provided an alibi and was nowhere near the ballroom at the time of the assassination. And despite this new evidence that came forward in the ’70s, the motion to vacate the conviction was denied. But in the intervening years, many historians have looked into the assassination and just done an incredible amount of research that really just had been amassed over the decades. At the time that we were contacted, there was a documentary that had been produced and was about to be released on Netflix called Who Killed Malcolm X? and we were approached by Mr. Aziz’s lawyer, who was retiring and just wanted to make sure that the torch was passed in the sense that somebody was going to take on the fight for their full exoneration. And it was happening at a time that seemed like there could be an opportunity for some momentum around the case.

John Walsh: When Hayer identified the people that had acted with him to kill Malcolm X—when he did that in the 1970s—was there an investigation of those people at that time?

Vanessa Potkin: Unfortunately, we see this a lot in wrongful convictions where there’s just tunnel vision on the part of law enforcement. There’s just a discounting of information, a discrediting, and even where new evidence surfaces that points to people who are the true assailants. Sometimes, that evidence is just ignored. It’s unbelievable. There’s no meaningful investigation undertaken because there’s such an investment in the conviction of maintaining the conviction and just a stubborn belief in the righteousness of who was convicted.

John Walsh: So, as we look at this case in 2023, two men were convicted unjustly, but some of the people who were actually involved in the crime were never prosecuted. Is that how this all turned out?

Vanessa Potkin: That’s correct. And despite the fact that they could have been pursued in the 70s, they could have been brought to justice. And when we look at this case, we see that Mr. Aziz and Mr. Islam, who you know, died before his official exoneration, he was pulled and he didn’t live to see the day in court when his conviction was overturned and certainly they’re victims of wrongful conviction. And then there’s Malcolm X’s family, his wife, his daughters, who grew up without their father and never saw justice for what happened to him, and I, to this day, believe that we don’t have a full accounting because of so many undercover officers in the ballroom. We don’t know the extent that the government was aware of this assassination plot and/or complicit. Given what we know and given the law enforcement misconduct that played a role in the wrongful conviction, there really should be official hearings or inquiry to get to the bottom of what happened. It does, it does matter, not only for the historical record, but just it’s significant.

April Williams: Do you think there will ever be an attempt to conduct additional investigation to figure out the other individuals who were likely involved in the murder of Malcolm X?

Vanessa Potkin: I don’t know if that’s something that will be undertaken by law enforcement, by a police or prosecutor’s office. I think probably if there’s further work, it would be some type of congressional or other type of inquiry into what happened.

April Williams: So, obviously there was a lot of work that went into working on this case. And, as you, of course, already know, around February 2020, the WilmerHale team was brought in to assist with legal research related to Brady violations and other constitutional law issues, as well as reviewing and analyzing thousands of documents, such as investigation documents, trial and appellate records, and FBI documents. But there became a point when you all determined that you had what you needed to move forward. Can you talk about the turning point in the investigation? How long did all of this take you and how did you decide how best to move forward?

Vanessa Potkin: I don’t know if there was a turning point in the investigation, as much as it was a slow build of this inescapable conclusion that these two men were innocent, and we actually know who committed the crime. You know, by the time The Innocence Project became involved in January of 2020, and as you mentioned, WilmerHale was one of our first phone calls. WilmerHale has been a partner with The Innocence Project on several wrongful conviction cases, and we knew that a case of this magnitude needed a good partner, that there was so much involved. And there were going to be some thorny legal issues. And so, we reached out to Debo Adegbile, and we just sought that partnership to proceed with the case. We also knew there was a clear path to exoneration. The Manhattan District Attorney’s office, at the time, had a conviction integrity unit in place, and there had been a request put into the conviction Integrity unit to embark on a joint reinvestigation. In particular, there is a person who was at the office at the time, Peter Castillero, who The Innocence Project was familiar with. Mr. Castillero had worked on the reinvestigation in the Central Park jogger case, which ultimately led to the exoneration of the Exonerated 5, and so had handled some really complex reinvestigations and wrongful conviction cases. And so, once we became involved, our first stop was to reach out to the District Attorney’s office and to ask for a joint reinvestigation, for us to work together to examine both the evidence that had already been brought forward in the past five decades and also see what else we could uncover. What’s so remarkable about this case is that in the five decades since their wrongful convictions, you have scholars, historians, so many books written Less Pains, The Dead Are Rising, came out right around this time, just so many people who had paid a lot of attention and thought and researched what had happened, public records request, documents that had been released throughout the decades from the FBI and other agencies. You know, in some senses, the truth was already out there. The reinvestigation really was focused first and foremost on getting officials to take a look at what had been amassed and also seeing where else we could go, and this involved getting access to documents from the FBI. Many documents have been released, but were heavily redacted. And now, during the reinvestigation for the first time, we could see them with either less or no redactions. In addition, there were witnesses who were spoken to that no member of law enforcement had been in touch with over the decades, even though they had been out and talking about the case actively and information that they have. So, in some ways this exoneration was a legal recognition of what historians and scholars and the public long had recognized, which is the innocence of Mr. Aziz and Mr. Islam and the identity of who actually had committed the crime.

April Williams: What exculpatory evidence was withheld?

Vanessa Potkin: So, there were at least 10 different FBI documents that discussed in detail the physical description of the shotgun assassin, and there were statements that, not only describe the person’s appearance, but also identified this person as being a Lieutenant from the Newark Mosque. And so, you had close to a dozen documents that really had information that was critical to the identity of the person who was actually the shooter for whom Mr. Aziz was wrongfully convicted of being. Not only were there physical descriptions, but the FBI also had specific files on this individual, that had information that tied him to the assassination. And none of this information was disclosed at the time of trial. There were additional FBI reports that also implicated one of the other individuals that identified as being one of his accomplices in the assassination. We discussed before the fact that Mr. Aziz was at home at the time that this crime occurred. During the course of the reinvestigation, we spoke with an alibi witness. This was somebody who knew that Mr. Aziz was home at the time of the assassination, because shortly after it occurred, Mr. Aziz had called into the mosque in Harlem, and the mosque had called him back shortly thereafter at his home. And so, this individual who placed the phone call and had dialed Mr. Aziz’s home phone number and had spoken to him, knew that he was at home at the time that the crime occurred. So, the new evidence in this case consisted both of alibi testimony that confirmed that Mr. Aziz was at home, and was nowhere near the ballroom at the time that the crime occurred, and critically close to a dozen FBI reports that contained information that law enforcement possessed near the time of the crime, and certainly during the time of trial that had critical evidence relating to the identity of who actually committed the crime. So, really key exculpatory evidence of third party guilt.

April Williams: Both men were exonerated at the same New York trial court proceeding on November 18, 2021. Can you talk a little bit about the specific reasons why they were ultimately exonerated?

Vanessa Potkin: Initially, when we started looking at the case and considering how this evidence would potentially support a vacatur of the convictions, we started looking into Brady and the rules regarding the government’s obligation to turn over favorable evidence to the defense at the time of trial. And there start to be some tricky questions when you have the FBI and a federal law enforcement agency conducting an investigation versus the state investigation and prosecution that’s going forward. But ultimately, the legal grounds that led to the official exoneration consisted of New York’s state newly discovered evidence law. And so, that is a vehicle in which people can get their conviction overturned when there is evidence that the defendant couldn’t have access with due diligence at the time of trial, and now has and it’s so significant that had it been available, the verdict probably would have been different. And so, that was the legal mechanism through which this historic injustice was finally corrected.

John Walsh: There are so many shocking things about this story, but one of the most shocking things listening to it is the fact that it took 45 years for this exoneration to happen from conviction in 1966 until the exoneration in 2021. Why did it take so long? That’s an extraordinary amount of time. Your thoughts on that?

Vanessa Potkin: It did not need to take that long. This wrongful conviction should have been cured and addressed in the 70s, when sufficient information, I believe, came out to redress what had happened. It speaks to just how incredibly difficult it is to overturn a wrongful conviction. And, the real difference between the 70s and 2020 and 21 was just the will of the District Attorney’s office to take another look, and to engage in the reinvestigation to get to the truth. And, that made all of the difference. Yes, we obtained new evidence and we obtained evidence that was significant in this reinvestigation. But there was significant evidence that had been there all along, and it should have never taken this long. But it took the will of a District Attorney’s office to join with us, and conduct a reinvestigation and to stand up and do the right thing.

April Williams: What was Mr. Aziz’s reaction to being exonerated?

Vanessa Potkin: Well, in court, he made a very powerful statement that he didn’t need a piece of paper or a court to say that he was innocent. It’s a truth that he’s lived with and he’s known all along. That something that at The Innocence Project, the bulk of our work is helping people prove their innocence who were wrongfully convicted through DNA testing. Oftentimes, we are in the position of getting test results back, and we talk to our clients and say, oh, we’ve got great news, you’re innocent and they’re like, yeah, I know I’m innocent. It’s what I’ve been saying all along, it’s just now we have proof of it. And so, that sentiment certainly resonates. This is something that Mr. Aziz has known, but the official acknowledgment of it was important to him and to his family, and in court on November 18th, 2021 you had District Attorney Cyrus Vance stand up and apologize for what had been done to Mr. Aziz and his family, and apologize for the misconduct of law enforcement and that is significant for individuals, victims of wrongful conviction like Mr. Aziz, and also just for the historical record.

April Williams: Did Mr. Aziz ever talk to you about the difficulties that he faced being convicted of a crime that he didn’t commit?

Vanessa Potkin: Well, Mr. Aziz was convicted wrongly of killing such a beloved individual--one of the greatest human rights, civil rights leaders of his time, of our time, and what he says is that when he was in prison, people recognized that he did not commit the crime. That if they had thought that he was the person who committed the crime, he wouldn’t have survived in prison, he would have been taken out. And, the fact that he survived and was able to live in prison reflects an understanding and a recognition by people that he actually wasn’t involved. I think every wrongfully convicted person suffers the stigma of just having committed a crime that they didn’t do. And so, just wrongly labeled being a murderer is bad enough, but the person who he was accused of killing, it’s kind of unbearable to think of the weight that he lived with over the decades.

April Williams: Do you know how he’s doing today?

Vanessa Potkin: He’s doing well. He has a wonderful family, and he never let this wrongful conviction stop him living and building a future for himself. I mean, obviously, this was devastating and has generational impact, but he’s an extraordinarily strong individual, and really endured.

April Williams: So, during the hearing, Mr. Aziz stated that his wrongful conviction was the result of a process that was corrupt to its core, one that is all too familiar to black people. What are some of the racial disparities we see in wrongful convictions?

Vanessa Potkin: There have been, as of January 2023, over 3300 wrongful convictions, and a disproportionate number of those wrongfully convicted, nearly half are black individuals. So, the racial disparities that we see in the criminal legal system definitely bear out in wrongful convictions. And, to put that in context, black people make up 13% of the US population and, 47% of the known exonerations. Those who have looked at the statistics, black people are seven times more likely to be wrongfully convicted of murder than white people, and a black prisoner serving time for sexual assault is 3.5 times more likely to be innocent than a white sexual assault convicted person. And so, again, we see not only racial disparities, in terms of who’s wrongfully convicted, but also what factors lead to wrongful convictions. And so, when we look at those who were wrongfully convicted of murder, like Mr. Aziz, the number of people who are wrongfully convicted based on official misconduct, that’s police or prosecutorial misconduct, is 76%, which is higher than white counterparts, which is significantly less. One of the great ironies of the case is what Malcolm X stood for, what he was fighting for, and then at the end of the day there would end up being who black men, wrongly arrested, prosecuted and sentenced to prison for decades for his assassination is just the height of irony, and also shows how the themes that he was fighting for 50 years ago are completely relevant today.

April Williams: So, what would you say to someone who is outraged by these sorts of cases and wants to find a way to get involved? Is there something that people can do?

Vanessa Potkin: There’s so many ways that people can get involved in helping prevent, overturn, redress wrongful convictions, innocence organizations, and there are 60 or 70 of them throughout the country are for the most part, nonprofits, organizations that are housed at law schools and always looking for assistance on cases. And so, our pro bono partners are essential in many of the exonerations that we’ve been able to obtain. So, getting involved pro bono, whether it’s lawyers on the case, offering paralegal help, there’s just a range of ways that folks can get involved. We have a client, who was recently released, and we’re in the process of trying to figure out how we can create a trust so that he can have funds as he’s reentering society and rebuilding his life. And we’re like, where’s the trust lawyers, and so there’s a wide range of help that’s needed. But also who is in office, what district attorneys are in office, what judges are on the bench. All of this matters. We want to have a fair and just and equitable society, and that really depends on people coming with different perspectives and experiences. My colleague at The Innocence Project, Nina Morrison, took the federal bench recently and she’s the first person in the country from an Innocence Project perspective that sits on the bench. And so, we need people to get involved because these are positions, we talk about district attorneys in particular, who are elected. District attorneys carry a lot of power in terms of discretion. In what cases to prosecute, and the perspective towards redressing past wrongful convictions. And, we see it in Manhattan and throughout the country. Conviction integrity units, where offices are dedicating resources to taking a second look at a case if there’s a potential wrongful conviction or a miscarriage of justice if it relates to sentencing. And, there are a number of reforms that we know will help make the criminal justice system better, fairer, more accurate. And so, it’s really helping to put those policies in place, it’s the work we do at The Innocence Project through our policy department, but it’s supporting officials, it’s supporting judges that allow cases like this to be rectified and help prevent them in the first place.

April Williams: Well, Vanessa, this was an incredibly enlightening and helpful discussion, and I just really want to thank you for taking the time to speak with us today.

Vanessa Potkin: Thank you so much and thank you to WilmerHale for all the work that you’ve done in collaboration with us on this case and others to help innocent people obtain their exoneration and freedom.

John Walsh: April and Vanessa, thank you very much for joining us and thank you for your hard work on this critically important matter.

April Williams: If you enjoyed this podcast, please take a minute to share it with a friend and subscribe, rate and review us wherever you get your podcasts. We hope you’ll join us next time.