Wayne County prosecutors accused of freeing innocent man only if he agreed not to sue

Before Gregory Berry could walk out of prison in December 2020 after more than 17 years behind bars for a murder he didn’t commit, he said he had faced a difficult choice: Agree not to sue for wrongful imprisonment or remain incarcerated for life.

Berry says his attorney told him that Wayne County prosecutors insisted on the waiver and that he had to make a decision soon whether to accept the offer. At the time, he says he was extremely ill with COVID-19 and feared he was going to die in custody. It was one week before Christmas, and he wanted to see his family. 

It seemed like a great deal at first. He was serving a life sentence for his alleged role in a fatal shooting at a gas station in Detroit. 

The case was rushed through so quickly that the judge acknowledged she had not been given time to review the file in advance, according to court files obtained by Metro Times.

“I only had about a day to consider the deal,” Berry says. “They told me the only way they would release me was if I took the plea. It’s unheard of.”

The Wayne County Prosecutor’s Office adamantly disputes that claim, calling it “completely untrue.” 

In a detailed written response to Metro Times, spokeswoman Maria Miller said prosecutors “did not in any way make Mr. Berry’s plea contingent on an agreement that he agree not to file a civil suit.” 

Miller added, “The CIU has never done that in any case. There is nothing that supports his contention.”

Miller said no such arrangement was discussed on or off the record and described Berry’s version as “completely disingenuous.”

“His voluntary no contest plea basically amounted to an effective waiver of his rights to file any lawsuit because he has a conviction arising from the criminal incident,” Miller wrote.

The Wayne County Prosecutor Office’s Conviction Integrity Unit (CIU), which investigates potential wrongful convictions, got involved in the case after Berry’s co-defendant Antonio Hamilton, an illiterate high school dropout, swore in an affidavit in 2016 that he lied about Berry’s involvement. During his original interview with police in 2004, Hamilton said a Detroit cop punched him, kicked him in the ribs, and choked him, demanding he say Berry gave him the gun and encouraged him to rob the victim. Hamilton also said he gave Berry the firearm after the shooting. 

In exchange for testifying against Berry, Hernandez’s murder charge was reduced, even though he was the shooter, and he was sentenced to 13½ to 22½ years in prison. He was paroled in September 2019.

A second witness later came forward and passed a polygraph, saying Hamilton had given him the gun after the killing, which contradicts Hamilton’s original claim that Berry supplied and retrieved the weapon.

What Berry didn’t know at the time was that the detective who took Hamilton’s statement was Barbara Simon, who has a long history of coercive interrogations, false confessions, and tactics that courts have found unconstitutional. At least 18 federal lawsuits have been filed against Simon, according to a complaint filed with the U.S. Department of Justice (DOJ). Four of them have resulted in roughly $25 million in taxpayer-funded settlements. 

The DOJ complaint also alleges that dozens of people may still be imprisoned because of Simon’s tactics.

Hamilton said he told Simon about a cop beating him, but she “brushed it off.” 

Berry says he would not have taken the plea if he had known about Simon’s controversial past.

“For them not to make me aware of the misconduct history of Barbara Simon and her coworkers — that was flat-out wrong,” he tells Metro Times. “If I had known her history, I would never have taken the plea. I would have fought for a new trial.”

He claims Wayne County prosecutors intentionally withheld Simon’s history from him so he would take the plea deal and not sue. In the years since his release, Berry has fought to withdraw his plea, arguing that he was misled, rushed, and deprived of critical information, including the CIU’s investigative file, which he has repeatedly requested.

His current attorney, Cecilia Quirindongo, argues in court filings that the CIU’s records about Simon should have been disclosed and constituted Brady material, which is evidence prosecutors are required to share if it could aid the defense. She also claims that requiring defendants to waive civil suits is “a customary practice” in Wayne County, a point the Wayne County Prosecutor’s Office strongly denies.

In August, a Wayne County Circuit Court denied Berry’s request to withdraw his plea. He plans to appeal. 

The Wayne County Prosecutor’s Office countered that Newman explicitly placed Simon’s role on the record during the hearing. 

“That was not a hidden fact,” Miller said.

Although Simon’s name was mentioned, Berry said he didn’t know about her controversial past. 

The case dates back to September 2003, when 23-year-old Octavio Hernandez was fatally shot at 4:30 a.m. while pumping gas on Vernor Highway in Detroit. Berry and Hamilton were together that night. Berry admits he drove to the gas station but says he had no idea Hamilton was armed or intending to rob anyone. According to trial testimony, Hamilton fired the fatal shot, then dove through Berry’s car window as Berry sped away. 

The case against Berry depended almost entirely on Hamilton. At Berry’s trial, Hamilton said Berry planned the robbery, provided the gun, and ordered him to commit the crime.

Two other witnesses testified that Berry was not involved, but they didn’t sway the jury, which found him guilty. He was sentenced to life in prison. 

By late 2020, the CIU had concluded that Hamilton’s testimony was unreliable and that “significant problems” had emerged “that undermine the integrity of the verdict.” 

On Dec. 18, 2020, Valerie Newman, head of the CIU, told Wayne County Circuit Court Judge Kelly Ramsey that a new trial would likely produce “a different result.”

“That is the reason why the prosecutor’s office agreed to vacate his convictions and sentence in this matter,” Newman told Ramsey.

Still, the prosecutor’s office said it could not substantiate “actual innocence,” and Berry was given a choice: Plead no contest to accessory after the fact, which carries a maximum penalty of five years in prison, or remain convicted of murder and serve the rest of his life in prison. 

The judge then sentenced Berry to time served and ordered his immediate release.

“I’m certainly pleased to see that that information came forward to change your role in this unfortunate set of circumstances,” Ramsey told Berry. “And on behalf of the court, we wish you the very best.”

The transcript shows the hearing was hurried. The judge had received the file only that morning and noted from the bench that it was “too thick to go through.” Newman asked the judge to consult Berry about the charges because she could not recall all three. The plea form wasn’t transmitted ahead of time, and the judge asked whether Berry’s attorney could sign for him if he wasn’t available.

Miller said the timing of the release reflected the realities of the pandemic. She noted it was Newman who coordinated with the Michigan Department of Corrections to ensure Berry could speak with his attorney both before and on the day of the hearing. The judge also “thoroughly questioned” Berry about his appellate rights, Miller said, and he stated on the record that he understood them.

Berry argues that he was manipulated by prosecutors. He was sick with COVID, the holidays were days away, the judge did not have the file until the morning of the hearing, the plea form was missing, and prosecutors had already acknowledged that the case was deeply flawed.

“They waited until I was sick with COVID and seven days before Christmas,” Berry said. “I feel like I got hoodwinked in that plea.”

Berry’s case raises new questions about how Wayne County prosecutors are handling convictions tainted by the work of Simon. Despite multiple federal lawsuits, millions in settlements, and findings that Simon coerced statements in other cases, prosecutors say they can only act on evidence specific to each case.

Exoneree Lamarr Monson, who spent nearly 30 years in prison after Simon obtained a false confession from him, recently filed a civil rights complaint with the U.S. Department of Justice warning that “men whose convictions were tied to Simon remain incarcerated, unable to secure justice due to lost files, missing evidence, and institutional resistance.”

Berry says he believes his case shows why “outside agencies should be looking at Barbara Simon,” and why defendants need full access to CIU records to make informed decisions.

“I don’t understand how the Prosecutor’s Office is going to police itself,” he says. “We are never going to get a fair investigation without outside oversight.”

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