Dateline   |  April 04, 2014

Graduation Night, part 4

The team supporting Tommy and Ray Highers presents its case to a judge in hopes of freeing the brothers from prison after 25 years.

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This content comes from Closed Captioning that was broadcast along with this program.

>>> private eye julianne cuneo and the others who joined her efforts for the highers' brothers believe the newly discovered witness john hielscher was telling the truth. now, if they could only find those four high school friends hielscher claimed were with him. were with him the night when he and they took a trip to buy marijuana from a neighborhood drug dealer known as old man bob back in 1987 . a trip that ended in gunfire. first, bad news. julianne discovered the driver of the car died. but his family confirmed he drove a white plymouth horizon . the same type of car an eyewitness had seen fleeing the scene.

>> that was important, to be able to make that connection?

>> right. because the linchpin is that these guys were in a white omni, omni horizon. they're the same car basically.

>> then one by one, they did find them. the kids now 40-something, who had been in the car, heard the very same things john hielscher told them. this man, john korver was riding in the front passenger seat and he confirmed the story.

>> you can just see it dawn on his face that two guys have been sitting in jail for nearly 25 years.

>> the woman who was a high school senior was dating one of the men in the car confirmed she saw it too. though getting her to talk was no easy task. but none was more reluctant than that young man who walked up the drive to the back door with john hielscher and fled down again in terror when a shot was fired. why wouldn't he talk about it?

>> pretty much all of our witnesses grew up in fairly wealthy, well to do families and it seemed to be an embarrassment that they had gone into east detroit to buy marijuana.

>> for months, he would only communicate through his sister, an attorney. he refused to tell the investigators what he knew, seemed to go to great lengths to avoid the call.

>> he wanted no part of it. which i really can't understand. it's not often that you get to be a hero.

>> finally, what could the lawyers do? they subpoenaed him.

>> it had to be done. we had two innocent men in prison. there was no choice.

>> finally, they all wound up right here, detroit's frank murphy hall of justice, spring 2012 . the lawyers appointed to represent the long imprisoned brothers, tommy and ray highers hoped to avoid this. they had allowed them to think the wayne county d.a.'s office might see the new evidence, see that a mistake was made and rectify it. but --

>> we had a prosecutor's office that was very uncooperative in the face of overwhelming evidence of innocence.

>> did that surprise you?

>> no. it's an amazing ability to blind yourself to everything except what you want to look at.

>> all rise.

>> of course, that was a defense attorney 's point of view. and so here they were in court to fight it out. just getting this hearing took a year of their efforts and persuading all those witnesses to testify about a moment in time so long ago was no less difficult. knowing that, tommy and ray's family became a sort of cheering section in court.

>> we filled up the room and we wanted to show everybody that we were there to back them up and we just wanted to be there for them.

>> all crowded the courtroom of judge lawrence talon who would decide if the new evidence merited a new trial.

>> finally, tommy and ray highers filed into court. the brothers who from day one insisted they were innocent, whose family never stopped believing in them. survivors of a quarter century in prison.

>> it was pins and needles . i mean, it was our life. if he didn't believe what he was hearing, we were going right back to the state pen .

>> there was never no more relief.

>> this was it?

>> that was it for sure.

>> good morning your honor. valerie --

>> when i got to hearing, it was all-out warfare.

>> you may call your first witness.

>> the defense began laying out the strange tale from the start with mary evans and her 2009 facebook post.

>> why have you come forward in this case?

>> on the streets, i always heard that highers didn't do it.

>> next the d.c. lawyer who just happened to answer that post of mary's.

>> would you please state your name for the record.

>> kevin zieleniewski.

>> he had awakened screaming obscenities that morning.

>> there were demons trying to prevent me and john hielscher from testifying in these hearings. i don't usually wake up in the middle of the night screaming obscenities.

>> on the stand, kevin retold the story that john, the old roommate, told him way back in 1993 .

>> he made a comment to the effect that wow, you wouldn't believe what happened that night.

>> so said kevin , he felt a duty to step in.

>> why are you here today?

>> two innocent people are in prison for life. i learned information that could help set them free. and i felt compelled to bring that information forward.

>> then one by one, the witnesses. the now 40-somethings who told the court about that night outside old man bob's house where they had gone to buy marijuana for their graduation party and that it was their friends, not the highers' brothers who came running down the driveway.

>> how did they look when they got in the car?

>> terrified.

>> why are you coming forward?

>> two minutes is too long in prison let alone 20-some years.

>> even the reluctant witness, the one they had to subpoena to get to court confirmed all of it. as did the man who threw the graduation party that night.

>> he was very forthcoming and said, sure i remember that day. they pulled up, they were a wreck and they told me what happened. and you just don't forget something like that.

>> finally, the man whose comments to his roommate nearly two decades earlier kept the old story alive.

>> defense calls john hielscher.

>> what was it like the process of testifying at this hearing?

>> i've been to combat, i've jumped out of planes and that was the toughest thing i had to do.

>> john hielscher, who was horrified he never found out for certain that old man bob was murdered told the story he had never before publicly discussed. complete with what he heard and saw after walking up to old man bob's back door.

>> i heard commotion coming from the alley behind bob's house. i saw four african- american males hopping over the chain-link fence from the alley and they were running towards the house.

>> okay. then what happened next?

>> i saw a larger african-american male with what appeared to be a shotgun and then i saw another african-american male with a handgun, told us to get the [ bleep ] out of there.

>> what did you do then?

>> i proceeded to turn around and run as fast as i could.

>> did you hear anything?

>> as i was turning to run, i did hear a gunshot.

>> were you scared?

>> i'm still scared.

>> have you ever been afraid like that after that?

>> when i was in combat.

>> are you telling the truth?

>> yes, ma'am.

>> and why are you you here?

>> because there's two innocent people that --

>> objection.

>> but then it was the prosecution's turn and wayne county assistant d.a. made it perfectly clear she didn't believe all those new witnesses coming forward to tell the story or what they said in their sworn statements, which she picked apart word by word.

>> no, ma'am. that's not correct.

>> oh, it's not correct. so your affidavit is wrong?

>> the assistant d.a. went method i cannily through the testimony of each witness and suggested sometimes gently, sometimes not, that they were all lying, had concocted the old story to help free tommy and ray highers.

>> i think --

>> my understanding is that --

>> listen to my question. aren't they friend with you on facebook? yes or no?

>> well, i would say no --

>> judge --

>> but said tommy and ray's attorneys it was the assistant d.a. who concocted a story.

>> the prosecution had nothing to contradict our theory, absolutely nothing. when you have nothing, you concoct something. and so what they concocted was a grand conspiracy theory.

>> did that surprise you?

>> it did. to have people who are unconnected to the defendants to come together in this huge conspiracy to cook this up doesn't make sense.

>> but in the end, it was up to the judge to decide if the new evidence was cooked up, as the prosecutor claimed, or compelling enough to give the highers brothers their first shot at freedom in 25 years.