In this episode of Wrongful Conviction with Jason Flom and Junk Science, host Josh Blumberg sits down with the Innocence Project's Director of Conviction and Promotions, Jason Fomom, to discuss the ongoing war on drugs and why we need to stop locking people up for crimes they didn't commit. Josh and Jason also discuss how to get people out of prison that don't deserve to be locked up, and why they should never have been sent to prison in the first place. They also talk about why we should all be free to drink alcohol in public, and how we should stop putting people in prison for things they don't even do. We also discuss why you should be able to drink if you don't have money to pay for a lawyer, and what you should do if you do have a lot of money to spend on legal defense. And, as always, thank you for listening and supporting this podcast. Please don't forget to rate, review, and subscribe to the podcast on Apple Podcasts, and share it with your friends and family! if you like what you're listening, share it on your social media, and tell a friend about it! and spread the word to your friends about this podcast! Cheers, Josh, Jason, and the rest of the crew! Josh, Josh Thank you for being here! xoxo, Josh and the crew at The Innocents Project. - Josh, Jasmine, Jason and Andre Ward, and the team at The Innocent Project Thanks for coming to our first episode of the podcast, Josh & Andre Ward - Thank you so much for coming out here! - Joe, Jasmin, Jason & the podcast & the crew. Joe, Joe, too, for joining us. Josh and Andre, for coming here, for being out here with us, and for bringing us out to talk about this episode, and we're so much love, and so much more. Thank you all the work you do so much, and thanks for being so much to all of our support, and all the support we can do this podcast, you're amazing, so much thank you, and you're all so much support, so thank you all of your support, we appreciate you, you deserve it so much of it, we really appreciate it, so we can see it, you know what we're gonna do it, and thank you.
00:00:42.000Jason has had a long, successful podcast called Wrongful Conviction with Jason Flom.
00:00:47.000I'm the host of a new spinoff of that called Wrongful Conviction and Junk Science, which examines all of these disciplines of forensic sciences that have been proven to be total bullshit, total junk, as the name would suggest.
00:01:27.000That you used to be able to clean your weed on and everything else on the album covers.
00:01:31.000But, yeah, I've been in the music business since I was 18, so I've signed acts over the years.
00:01:33.000Everybody from Stone Temple Pilots and Skid Row, all the way to Tori Amos and Katy Perry and Kid Rock, and more recently Greta Van Fleet and Lorde.
00:01:41.000And, you know, it's been an amazing run.
00:01:43.000Various times I was chairman and CEO of Atlantic Records, Virgin Records, Capitol Records.
00:01:50.000Eliminating mandatory sentencing, decriminalizing drugs, basically getting people out of prison that don't belong there and reversing mass incarceration, which I believe to be the worst failed social policy disaster since slavery.
00:02:03.000And it's really just an extension of slavery.
00:02:05.000So I really appreciate you having us here.
00:02:07.000And I can't wait to tell you the story of how we first met.
00:02:24.000I mean, the war on drugs is one of the most disgusting And confusing aspects of our enlightened culture.
00:02:31.000It's infuriating that we have a gigantic percentage of people that are in prison for nonviolent drug offenses, and then a lot of them are wrongly in prison.
00:03:03.000It doesn't make any sense, and it's the slowest battleship to turn, you know, in terms of the way our culture deals with it and handles it.
00:03:10.000We all know that it doesn't kill anybody.
00:03:12.000We all know that, look, I got a fucking bottle of whiskey right here.
00:03:23.000You know what's crazy is that when you said thank you and you like when successful people do this, when you said that, I almost felt like, I don't know the right way to articulate it.
00:03:35.000I never feel like I'm doing enough because there's so much bad shit happening to people.
00:03:40.000And, you know, I remember reading this book called Inside Rikers.
00:03:47.000I forget the author's name, Jennifer Wynn, but she did this study of the population of incarcerated people at Rikers Island and how such a large percentage of them were in there for petty drug crimes.
00:04:03.000And the recidivism was all about people that had drug and alcohol problems.
00:04:08.000It makes up over 90 percent of the population at Rikers Island.
00:04:11.000And she had a revolutionary idea, right?
00:04:15.000And give them vocational training and put them in jobs.
00:04:19.000And the recidivism rate in her program called Fresh Start dropped to almost zero, 0.3%.
00:04:25.000And it just shows you that the first episode of my podcast, there was a great quote, and I'm a sucker for quotes, from the guy that I interviewed.
00:04:34.000He's an attorney at the Innocence Project named Chris Fabricani.
00:04:37.000He said that the justice system is an efficient eating and killing machine for poor people of color.
00:04:52.000And my calling and Jason's calling sort of collided.
00:04:55.000We both work at the Innocence Project and we have sort of, I don't know, we've merged embryos and we've been trying to be modern-day Robin Hoods.
00:05:34.000And there was a story, Cuomo bid, sorry, Ferraro bid for cocaine kid, right?
00:05:41.000So the story, of course I read this, I was fascinated by, you know, drugs and stuff.
00:05:46.000And the story was about a kid named Stephen Lennon who had been sentenced to 15 years to life for a non-violent first offense cocaine possession charge in New York State.
00:05:54.000And just in case people think they might be, that might be misstating that.
00:05:58.000That was a non-violent first offense cocaine possession charge in New York State.
00:06:21.000And for you New Yorkers out there, remember that.
00:06:23.000And she had gotten letters from the sentencing judge, from the warden, and even Geraldine Ferraro had written a letter on behalf of this kid, you know, who had a good record in prison and everything else, and it had been turned down.
00:06:51.000Wrong place, wrong time kind of thing.
00:06:53.000And I decided I wanted to do something about it.
00:06:56.000So I only knew one criminal defense lawyer back in those days.
00:07:00.000And there was a guy named Bob Collina.
00:07:01.000He represented Stone Temple Pilots and Skid Row, who both were artists that I had signed.
00:07:05.000And so I had him on speed dial because, you know, they were getting arrested a lot in those days and, like, weekly.
00:07:10.000So Bob agreed to take the case pro bono, and long story short, even though he said it was hopeless, six months later we ended up in a courtroom in Malone, New York.
00:07:20.000And I sat there holding Mrs. Lennon's hand, the woman I originally spoke to, Shirley Lennon, who was in the story.
00:07:25.000Her husband Stan was on the other side of her.
00:07:26.000And they brought the kid in in shackles, like he was Manson or something, right?
00:10:11.000And at the time, I was, you know, a alleged expert in jury selection.
00:10:17.000So I was getting passed around this circle of criminal defense lawyers.
00:10:21.000And I had to lie about my age a lot, because I was 27, 28. And I was You know, regarded as an expert in jury selection and people would see me and be like, fuck, am I gonna take advice from this young kid?
00:11:02.000His friend had nothing to do with it and he was a vulnerable kid and they took him in an interrogation room and they beat a confession out of him and I was so horrified.
00:11:13.000I was so perplexed that this could happen in our country and what happened to him was They threw things at him.
00:11:24.000They did everything that you hear about happening in an interrogation room to him until he finally just said what a lot of people say, which is, okay, I'll tell you what you want to hear just to get out of the room.
00:11:35.000And he spent, you know, 13 plus years in prison for a rape and murder he didn't commit.
00:11:53.000Yeah, I mean, I hate injustice in any form.
00:11:55.000I just have a visceral reaction to it, and I hate it when it's in the form of bullying even more.
00:12:01.000You know, as a kid, my brother was a victim of terrible bullying.
00:12:04.000I think we all have been at some stage, but he was really, and that really affected me a lot, and maybe that informed me.
00:12:10.000I think I learned a lot from my dad, too.
00:12:13.000My dad always taught me, you know, about doing the right thing.
00:12:16.000I try to do that in my life, you know, but this is my way of giving back and it's extremely rewarding.
00:12:22.000I think anyone that's in this work with us would say the same thing, that it's the feeling that you get when you're able to have that impact on someone who's in a position through no fault of their own, that is the most dire circumstance anyone can find themselves in,
00:12:39.000like some of Josh's clients or our clients sentenced to death.
00:12:41.000Julius Jones is one we're working on now.
00:12:44.000Of course, James Daly in Florida, innocent on death row.
00:12:47.000It's like, those words should never be in the same sentence together.
00:12:50.000Let's talk about how you know they're innocent.
00:12:53.000Like, these individual cases you're talking about here.
00:12:59.000Well, so, you know, we could pick on any particular one.
00:13:02.000And on my podcast, Wrongful Conviction, we've covered a number of death penalty cases.
00:13:07.000And, you know, this one, Julius Jones, for instance, and Josh can speak about James Daly, who we also just did a podcast on recently, Josh and I did it together, which I thought was really powerful.
00:13:17.000I mean, again, he'll speak about that.
00:16:09.000We have a different perspective, a slightly different perspective because I'm an attorney that represents these guys and he's a justice advocate.
00:16:16.000But he does get to know the facts of the case.
00:16:19.000But for me, you know, I have three young kids and, you know, a lot of the crimes are rapes and murders that these guys are accused of, which is why they get long prison sentences, at least the cases that I deal with for the Innocence Project.
00:16:34.000And I'll give you two examples because I take it – a lot of criminal defense lawyers say, well, you're not supposed to ever ask the question, is the person innocent?
00:19:31.000He comes home and it's like five in the morning.
00:19:35.000And he wants a beer because he wants to try to come down.
00:19:38.000So he waits till the sun comes up and he goes to knock on their door and he sees a bloody shoulder blocking the door and he goes to push it open and the mother has stabbed 129 times.
00:22:28.000This woman has been butchered 129 times.
00:22:32.000The crime scene analyst in his case testified that we were swabbing for evidence of who the perpetrator was because in a knife fight, the perpetrator often gets nicked and cut, especially when you're stabbing someone that many times.
00:22:45.000So when the Innocence Project got the case, they said, well, what were the results of that blood test?
00:22:51.000You know how many drops of blood they tested?
00:22:57.000They never tested a single drop of blood because they thought that he was guilty.
00:23:01.000We had the blood tested and right within inches of the mother's body and in a bathroom where the state argued the killer cleaned up is the daughter's blood, a trail of the daughter's blood going to the bathroom,
00:23:18.000and then the mother's blood on the outside of the daughter's window.
00:23:24.000We did just a minimal investigation into the daughter and it turns out that she had a history of crazy violence.
00:23:34.000She had a condition called intermittent explosive disorder where you would snap and just go off the rails.
00:24:27.000The Florida Supreme Court throws it out.
00:24:30.000It says that there's obviously a real problem here, and the state, instead of saying, you know what, we screwed up here, they double down.
00:24:38.000And it happens in all of our cases, very rare, not all of them, most of them, where the state comes up with a new theory.
00:24:45.000They said, well, that must have been old blood from her cutting herself.
00:24:49.000And they had no explanation for why her mother's blood is mixed with her blood in her bedroom, why her mother's blood is outside of her window.
00:24:58.000I demanded proof there, and there was incontrovertible proof.
00:25:05.000There's a blood swipe on her mother's ass.
00:25:09.000Her mother is struggling to get out of the house and the killer grabbed at her and pulled her pants down and there's a four-fingered blood swipe.
00:25:20.000And I always thought it was weird or three-fingered blood swipe, excuse me.
00:25:25.000And I always thought it was weird that there was only three fingers in blood at someone trying to grab at her.
00:25:32.000So when I had her on the stand, I said, I got a court order to take pictures of her hands because I wanted to see if there were scars on her hand.
00:25:41.000And she lifts up her hand and her pinky is bent down like this.
00:25:46.000And I said, what happened to your pinky?
00:25:49.000She said, I cut my finger off when I was 14 because I'm a cutter and I severed my tendon.
00:26:15.000And I'm happy to report that after her examination and then an amazing examination by my co-counsel, Maury Parmer, which explodes a bunch of other lies, the ex-boyfriend's current wife came in and testified that he told her that the daughter killed her and that she snuck out of her house that night,
00:26:37.000his house that night, climbed out of the window, and then returned later in the night.
00:26:43.000They dropped the charges in the middle of his retrial.
00:26:45.000And I got to walk him out off of death row.
00:26:49.000And in Trump's America, they put an immigration hold on him.
00:27:08.000I got him an immigration bond and walked him out of the immigration center that night.
00:27:13.000And to Jason's point, I have never, other than the birth of my kids, marrying my wife, hitting a home run in Little League, I've never had, I've never floated like that.
00:27:24.000Fighters winning world titles that you, no better feeling than to restore someone's life.
00:28:23.000She denied him post-conviction relief.
00:28:27.000And he then gets his case overturned in the Supreme Court.
00:28:31.000Her credentials to serve as a judge in a death penalty case had lapsed.
00:28:37.000After his case gets reversed, she files for special dispensation to become a death penalty judge and says, even though I don't still have my credentials, I want to be the judge on his case, seeks out his case.
00:28:50.000They're seeking the death penalty, and she denied him the constitutional protections that the U.S. Constitution said that when you death qualify a jury, if you violate these rules, the case is going back on appeal.
00:29:04.000And I would say to her, Your Honor, You don't understand.
00:30:03.000And she finally had to declare a mistrial.
00:30:10.000Because a juror came in and said that they were all researching the case in the hallway.
00:30:15.000And that they thought that he was listening to music because he was listening to the translation on the headphones.
00:30:23.000So to get these exonerations, it is such a grueling fight.
00:30:26.000And if you meet Clemente, he is the most gentle, kind human being and is still in immigration limbo.
00:30:35.000And to tell you what a great man this guy is, I'm in there in Florida, like, fighting, like, I'm thinking there's no fucking way I'm going to get him off.
00:30:45.000And he's calling me going, listen, when we get him out...
00:30:48.000I'm going to get, we'll get him up in an apartment and we'll pay for this and pay for that.
00:30:52.000I said, this guy has no fucking clue what I'm up against.
00:30:55.000And to, you know, I'm such a, I'm so in his debt and I'm so in awe of him, even though he's my friend, that to this day, He and I have jointly supported Clemente financially, but he pays for his room and board and to be able to be in a position to help these guys and just help them start a life again.
00:31:18.000And, you know, this guy still believes in America.
00:31:21.000After all that's happened to him, he still believes it's the best place to be.
00:31:54.000And he—the prosecutors would come in and try to get rid of jurors that said, I believe that, you know, I'll listen to the facts and I will only get rid of, you know, I will consider life instead of death.
00:32:09.000And he was just so—and he— You know, they have immunity is the short answer.
00:32:14.000These judges and prosecutors, one of the many flaws of our system, right, Jason, is that they all have immunity.
00:33:50.000But it's a funny joke because we've got to inject a little humor into this, right?
00:33:54.000So on the podcast, on Wrongful Conviction, he talks about how when he went to prison he didn't speak English and he figured, remember this, Josh?
00:34:01.000And he said, I needed to learn how to speak English.
00:34:03.000I figured I'm never going to get out of here if I can't, you know, help in my own defense.
00:34:07.000So he asked the guard for a Bible and the guard said, there's no Bible to this.
00:34:55.000And my co-counsel, Lindsey Boney and Dylan Black, Southern gentlemen, who this case changed their lives, and that's Maury Parmer, who I mentioned before.
00:35:29.000Three days after he gets out, I always told him, I'm going to get you out of here in jail, I would say, and I'm going to take you to the beach and we're going to have a beer.
00:35:37.000And I would say to Jason, I'm starting to think that I'm not going to be able to live up to it.
00:35:44.000And I get a call like two days after he's out.
00:37:01.000I can't help talking about the death penalty when we talk about Shorty Clemente because in this country, a lot of people still believe in the death penalty.
00:37:12.000And what I say to people who believe in the death penalty is I respect your view, but what percentage of innocent people are you okay with executing?
00:37:22.000Because the system is fundamentally flawed.
00:37:25.000And even if the system was reformed in all the ways that we could sit here and think of, and I have some ideas on that.
00:37:33.000There's always going to be errors made.
00:37:36.000And so you have to accept that there are going to be mistakes.
00:37:40.000We know that, like in Florida, where Josh represents James Daly, and again, we did a podcast episode about his case as well.
00:37:49.000James is either going to be the 100th guy executed by the state of Florida or the 30th guy exonerated from death row.
00:37:56.000Clemente was the 29th, and I'm representing who should be the 30th.
00:38:00.000So they're not, even if all the people they executed were guilty, and we know they weren't, right?
00:38:05.000We know certain people like Jesse Tepero, who was absolutely innocent, executed by the state of Florida, in that gruesome execution where the electric chair quote-unquote malfunctioned and his head caught on fire, and they had to electrocute him three times.
00:38:17.000But even if they got those right, they aren't even batting 700. And then in Louisiana, you know, to your point before, Joe, a guy named John Thompson, rest in peace, was a good friend of mine.
00:38:30.000He came within a month of being executed by the state of Louisiana when an attorney, investigator, staring into a microscope and saw the DNA evidence that proved that he was not guilty of this murder and he was ultimately exonerated.
00:38:45.000And he wrote an opinion piece in the New York Times where he said, I don't understand why...
00:38:50.000The prosecutor who prosecuted, because he proved that they knew he was innocent before they prosecuted him, right?
00:38:55.000He knew it, and it was absolutely proven that was not in question.
00:38:59.000So he said, I don't understand why that prosecutor is not being charged with attempted murder.
00:39:04.000They tried to kill me, and they knew I was innocent, and I've proven that.
00:43:37.000To completely overhaul and change this method of policing and convicting people, it would require a massive undertaking.
00:43:45.000And that's why we're so appreciative that you give us this forum because there are so many amazing people.
00:43:51.000That it really literally takes being in the bowels, if you will, of the system and getting it beneath your fingernails and standing up and speaking truth to power.
00:44:03.000It's got to be terrifying to be there, too, to know that someone is willing to convict someone that they know is innocent because they want to win.
00:44:10.000And there's so many factors that go into wrongful convictions, Joe.
00:44:28.000And there are so many factors that I think some of them are preventable.
00:44:31.000And when we set out to do these podcasts, whether it's the wrongful conviction one or junk science that Josh is the host of that just came out, or even the false confession series that we did, Our goal is to educate the public because your listeners, you and me,
00:44:47.000everyone, Jamie over here, the engineer, is going to end up on a jury at some point.
00:44:51.000You may be holding somebody's life in your hands.
00:44:54.000And it's important for you to understand that the people that you hope We're good to go.
00:45:21.000And furthermore, they're allowed to lie in the interrogation room.
00:45:36.000You know, people who are innocent waive their Miranda rights.
00:45:38.00085% of people waive their Miranda rights anyway.
00:45:40.000People who are innocent almost always do because they don't think they have anything to hide.
00:46:37.000I mean, other Western countries, they're not, but here they are.
00:46:39.000So they can sit there, especially, and you know the people that are most likely to falsely confess are people, adolescents, right?
00:46:46.000Anyone whose brain is not fully formed, and we know that your brain is not fully formed until you're 25, and military veterans, interestingly enough, and they're disproportionately affected by this because they're used to obeying authority figures, right, and following orders.
00:46:58.000And so the Norfolk Four, a classic case of that, four guys confessed to a crime they didn't commit.
00:47:35.000All these blowhard politicians have the balls to introduce – because they're afraid to piss off the police union because they'll lose that vote, right?
00:48:50.000Which is, you'll hear from a lot of people that are victims of coercive interrogations is, I figured I would just tell them what they wanted to hear, get out of the room, and then sort it out.
00:49:11.000I don't know what he's going to do to you.
00:49:13.000But while he's out of the room, let me tell you, kid, the best thing for you to do is just sign a piece of paper and we'll sort this out later.
00:49:56.000And it goes on even after the conviction has been overturned, like in Clemente's case, like in my own adopted daughter, Nora Jackson's case, where the Tennessee Supreme Court unanimously overturned her conviction for murdering her own mother.
00:50:09.000And in their ruling, they excoriated the prosecutors for having played so loose with the rules, right, to say the least.
00:50:17.000And yet they came back in and said, listen, we're going to try you again unless you take a plea.
00:50:25.000And most people say to me, well, they can't try you again for the same thing.
00:50:28.000But they can because the higher court, when they overturn your conviction, the indictment still stands, the original indictment.
00:50:34.000And most prosecutors will say, well, you know what, it's a long time ago and we've been proven wrong and, you know, we're going to let it go.
00:50:41.000But if they really are vindictive, they may say, you know what, I want to protect this conviction.
00:50:46.000And let's not forget that every time we convict an innocent person, The real perpetrator remains free.
00:50:55.000And even if you're someone who may be pretty hardline, hardcore on law and order, whatever, a lot of your listeners come from different walks of life, different viewpoints.
00:51:05.000But everybody can agree that we want the person, especially these vicious, violent crimes, these brutal crimes, we should all want the real perpetrator off the street and not for the convenient purpose.
00:51:17.000Target to just get, you know, manhandled and brutalized by the system.
00:51:23.000And then that other perpetrator oftentimes goes on to commit more terrible crimes and creates more innocent victims.
00:51:29.000Josh, you were talking about Kamala Harris, and I think this might be a good time to talk about this because she might be the vice presidential nominee.
00:51:37.000What specifically did she do where there was someone who was innocent or someone who was wrongfully convicted?
00:53:04.000We're talking about a $12 DNA test to see if the biological material from a crime That has been preserved is actually the defendants, right?
00:53:16.000How do you block access to something like that?
00:53:19.000That seems like that should be a right.
00:53:20.000Yeah, it seems like it should be a right.
00:53:22.000But in a lot of states, there's legislation that says you cannot get access to it.
00:53:27.000And the rationale behind it is that it will open up a floodgate of criminal defendants asking for the biological evidence in their case to be tested.
00:53:35.000I mean, can you— Oh, that's the last thing we would want is more innocent people being freed.
00:53:38.000So what was her justification for this?
00:53:42.000You know, when she's asked for her justification of it, it's always been on a debate stage.
00:53:47.000And she'll always default to, I stand by my record as a prosecutor.
00:53:52.000And she's never had an explanation that I have ever seen.
00:53:57.000I don't know, Jason, there was, Jason and I were talking about this before we came on today, because there was a New York Times piece by, her name's escaping me.
00:54:06.000Lara Bazelon, which if any of your listeners want to listen to it, she goes into, you know, exhaustive detail about specific cases and things that Kamala Harris did.
00:54:18.000And, you know, the sad part about it, yeah, that's it right there.
00:54:22.000New York Times, Kamala Harris was not a progressive prosecutor.
00:54:26.000She was often on the wrong side of history.
00:55:36.000She has constantly in case after case, issue after issue.
00:55:41.000And look, the people that she hurts the most are people of color in this country because they make up, you know, Disproportionate number of people in jail.
00:55:53.000The truant children thing made me fucking sick.
00:55:57.000She went after the parents of truant children and threatened them with jail time.
00:56:02.000Imagine you're a single mom, you're just doing your best to put food on the table, you have to work two jobs, and your kids are understandably fucking up and not going to school because there's no father around.
00:56:58.000When the hair is attached to the human head, when you die, there's a physiological phenomenon that happens called post-mortem root banding, where a band goes around the root of your hair And it happens after you've been dead the minimum four hours.
00:57:18.000Prosecution's theory is that he picks up this girl, 16-year-old girl, walking home from the roller skating rink with his two buddies, throws her in a van, they rape her, kill her, and dump her near a cemetery, and it all happens in 45 minutes.
00:57:32.000The way that they finally find out that he was framed is it's a moving truck.
00:57:37.000They search his moving truck and they find hundreds of hairs because we all shed hair.
00:57:44.000They find one hair from the victim, and it's pristine.
00:57:47.000It's the only pristine hair in the truck.
00:58:00.000And we ended up finding out that the cop had access to the envelopes where the autopsy was.
00:58:06.000In any event, John Restivo, back to the DNA, the perpetrator ejaculated, And they had a lot of semen, a lot of biological material DNA. He fought for years to get access to the DNA. Finally gets access to it.
00:58:24.000They test the DNA and he's excluded and his two co-defendants are excluded.
00:59:09.000There's a happy ending in that regard in John's story.
00:59:12.000I was one of the lawyers that represented him in his civil rights trial.
00:59:19.000He was awarded 18 million dollars, a million dollars for every year that he was incarcerated.
00:59:27.000And you know, to show you like what the lasting psychological damage, so we got to go to a civil jury for civil rights violations against Nassau County, which indemnified this cop that framed him.
00:59:39.000And he got some closure that way, to the extent that you can get any closure.
00:59:44.000And we were outside waiting for the verdict outside of the courthouse, and he's smoking a cigarette.
00:59:50.000And he put out the cigarette and he took a paper bag, he took a plastic bag out of his pocket, grabbed the butt and put it in the plastic bag and sealed it and put it in his pocket.
00:59:59.000I said, John, what the fuck are you doing?
01:00:01.000He said, you think I'm going to let someone take my DNA and free me again?
01:00:07.000You know, and I get, you know, that's how bad it is.
01:00:10.000So think about that in the context of Kamala Harris.
01:00:14.000To block access to DNA, once you get the fucking DNA, you're still sometimes in a crazy uphill battle because there's prosecutors, in my opinion, just like Kamala Harris, that want to win and want to protect that conviction.
01:00:42.000I mean, we had a lot of evidence that he was innocent, and the state refused to let us test it, and they went ahead and executed him anyway.
01:00:47.000We also have cases like the Sedley Alley case.
01:00:51.000Which, ironically, is the same prosecutor that prosecuted my adopted daughter, Nora Jackson.
01:00:56.000But in Sedley Alley's case, he was executed, and the state denied him access to DNA. It was a horrible crime.
01:01:02.000A young cadet girl was jogging, and she was brutally, I think, raped and murdered.
01:01:09.000And he was executed for this crime, asking for the DNA to be tested.
01:01:26.000And we now have evidence of who we think it might have been because there was another guy who was a serial murderer and rapist who was in that area at that time.
01:01:35.000We don't know that it was him, but until we test the DNA, we can't know.
01:01:38.000And the state has refused to let her test it, even posthumously.
01:01:43.000So this goes on all over the country, and it's crazy.
01:01:51.000But one thing I do want to point out is that it's gratifying to see attention being brought by you and by others, people who are so prominent in society, and it's also become Such a hot-button issue that if you look at,
01:02:09.000I mean, her campaign was derailed because people were going, hey, what about Mayan Burrell, which was a 16-year-old kid that she prosecuted.
01:02:43.000There's a connection because it had something to do with him and the prior cases where he had exhibited police brutality.
01:02:54.000And that they had done nothing about it.
01:02:56.000She was connected to that in many people's eyes was eliminating her as being a possible candidate for vice president because they thought it was going to come up.
01:03:06.000I read that very briefly a few months ago.
01:03:26.000She also doesn't know who the president of Mexico is.
01:03:28.000But maybe now, Joe, maybe now we will have an environment where...
01:03:36.000Prosecutors, we know, are ambitious people, generally speaking.
01:03:40.000Everyone is, and everyone has the right to succeed to the level that they are capable of succeeding to, but not by cheating, right?
01:03:48.000Going back to what you said before, but now there's finally, even though there are no legal consequences, Except in the rarest, rarest, rarest of cases.
01:03:57.000But now, at least, there are real consequences in terms of running for higher office where these things can come back and bite you in the ass.
01:04:03.000And hopefully that will make people think twice.
01:05:10.000There's a lot of evidence of his innocence.
01:05:13.000We can go back through it, but it's a disgusting case.
01:05:18.000But he's still there, just like so many of these other people are.
01:05:21.000And I do want to talk about the compensation, because you raised that earlier, Joe, because I think that's an important thing for us to talk about.
01:05:27.000Because in the 27 years I've been doing this work, People ask me the question that you asked, both questions that you asked, actually.
01:05:35.000Most frequently, people who are new to it, I'm talking to them on the golf course, I'm talking to them anywhere we are, because I'm always out there talking about this stuff.
01:05:44.000And they'll say to me, did the people who framed them, did they have to face any consequences, right?
01:06:33.000And she's going state by state with exonerees to pass compensation statutes because 18 states have no compensation statute whatsoever for exonerees.
01:06:42.000And some of them, it's capped at $25,000.
01:06:45.000Or like in Illinois, it's 200,000 no matter how long you're in for.
01:06:48.000The cop that planted the evidence, is there consequences for him?
01:07:14.000You asked the question earlier that I'm not so sure I know the answer to, which is, you know, when they're in there interrogating someone, are they beating a confession out of them because they think they did it or not?
01:07:30.000I think that there are some cops that, you know, Barry Sheck taught me this once.
01:07:36.000He said, don't always demonize the cop because sometimes I think that they feel like That their hunch is better than the lack of evidence.
01:07:45.000In other words, they feel like, because they feel it, they think that the person did it, that they'll let the means justify, or the ends justify the means.
01:07:56.000So I don't know that they go in trying to frame someone, but there's always a point at which, like the story with my wife and the keys, where you have a choice to, you have to open your eyes and say, You know, are...
01:08:09.000Am I going to realize that there's no evidence here and get off this notion that this person committed the crime?
01:08:16.000The problem is with your wife and the keys, there's no consequences.
01:08:19.000You're a man, you say, I fucked up, I'm sorry.
01:08:22.000But if you're a prosecutor and you realize that this person is innocent and you back off and you lose the case, there's consequences for your career.
01:08:42.000There's a wrongful incarceration compensation statute in Florida, all right?
01:08:47.000And what it says is that from the time you were no longer incarcerated, You have 90 days to file.
01:08:58.000Clementi's case got overturned in, I think, 2013. The very day the Florida Supreme Court overturned his conviction, the state of Florida said, we're going to retry you.
01:09:56.000But it's very rare that they get compensated.
01:09:59.000And I think that that's where I have been...
01:10:04.000I'm inspired so much by Jason because here's a guy that uses and it's made me poorer, but I'm happy to be poor as a result because he's made it his mission in life.
01:10:17.000I mean, he's like a modern day Robin Hood.
01:10:20.000He's made it his mission in life to, I'm sorry if I make you blush, but he's like a hero of mine because he's He has made it his life's calling that, you know, the people in need and that need it most are going to get it as long as he can give it.
01:10:39.000And he's sort of brought me along on that ride.
01:10:43.000So we personally financially support as many exonerees as we can because we feel like it's the very least we can do to try to help, whether it's buying someone a car I'm helping them with their rent, with school tuition, whatever it is,
01:10:59.000because it's the very least we can do, and most of them are denied compensation.
01:11:05.000And until they can get back on their feet in some way, I mean, you think about it.
01:11:16.000I mean, look, Clemente— Would send my daughter from his prison cell exquisite drawings.
01:11:25.000He taught himself to draw on death row and he told me the only reason I learned to draw is because I literally would have lost my mind.
01:11:34.000I was losing my mind and I had to figure out something to channel my anxiety.
01:11:40.000So when he got out, Jason has been having these art shows for death row inmates because so many of them become good artists because they have so much time on their hands.
01:11:55.000And I said, Clemente, maybe we could do some art and raise some money for you.
01:12:21.000It's funny, though, because we were introduced by Nina Morrison, who is the super badass senior litigation counsel at the Innocence Project.
01:12:29.000And when she put us together, which was several years ago, I said to Josh, what do you do?
01:13:42.000And Josh, you know, he's spending, not only is he volunteering his services, he's spending his own money to finance the case, the parts that he can't cover himself.
01:15:14.000And it's not admissible in any courts.
01:15:17.000But I'm talking about things that you would probably think, just based on pop media, even if you're very well-read, which you are, you would say, oh, well, that's reliable, like bite mark evidence.
01:15:58.000So what the podcast does is it examines all of these episode by episode.
01:16:03.000It examines all of these forensic disciplines and it goes through to explain how and why, A, they're total bullshit and B, they are...
01:16:15.000In the face of it being total bullshit, still accepted.
01:16:19.000Now, like, the fact that you got emotional made me want to hug you because it was like, you know, it takes a special person to be able to get there on that level.
01:16:29.000But now I want to try to make you angry because I think it's the anger that should drive people.
01:17:13.000Is that bite marks on human skin are not only unreliable, but there has been study after study that the so-called experts that they call odontologists can't tell the difference between a bite mark and an insect bite.
01:17:51.000Not only is it bullshit, but the origin story of all these forensic sciences, you end up down a rabbit hole to some fucked up story that sounds like a wacky religion.
01:18:09.000There's a guy named George Burroughs who's a reverend in the late 1690s.
01:18:13.000He's accused of torturing young girls, okay?
01:18:17.000And one of the forms of torture is biting them.
01:18:21.000And he's tried and convicted and they take him around the courtroom and pull his mouth open and they point to the crookedness of his teeth, the ridges in his molars, and they compare it to the bite mark.
01:21:07.000And one of the ways that you can overhaul the system is, you know, everybody says, how do you, they ask me a lot, how do I get out of jury service?
01:21:14.000And I say, you know what, you should want to be there because God forbid you were accused of something you didn't do, wouldn't you want you on your jury?
01:21:21.000So one of the ways we want to do it is to get people thinking, you know what, I can make a difference here.
01:21:27.000Because there's no presumption of innocence.
01:21:33.000There have been studies done, my firm has done one, where well over 90% of people feel like if you've been accused of a crime, you probably did it.
01:21:44.000Look, I represented, how I met Lennox, I represented Lennox in a case.
01:22:11.000And he actually wasn't accused of anything.
01:22:14.000Lennox was suing a boxing manager and a promoter from ripping him off and for stealing from him.
01:22:20.000But if you ask people during jury selection, how many of you in a criminal case, and when I was, you know, a lot of jurors were asking, well, what did he do?
01:22:31.000But if you ask jurors in a criminal case, if a judge will let you ask it, which you should be able to ask, how many of you think my client, he was arrested, indicted, must have done something wrong?
01:22:52.000It doesn't exist in this country and it takes more people to be conscientious.
01:22:56.000And one of the things that we're trying to do on the podcast is educate them about these junk sciences so that if you're ever on a jury and you hear, well, the trajectory of the blood mark on the wall shows you that the person must have grabbed the knife from this angle.
01:23:20.000I'd watched a whole thing online about how these people figure out like how someone must have hit them this way and I've seen it in movies.
01:23:32.000So the second episode of the podcast I have a guest by the name of Pamela Koloff, who's an award-winning writer.
01:23:39.000She just won every award you could win for writing an article about an informant in a case of mine.
01:23:47.000And I got to know her and she wrote an amazing investigative piece about blood spatter evidence for ProPublica or Texas Monthly or the New York Times.
01:24:32.000There's so many things wrong with that.
01:24:34.000The way the blood travels out of the body from a static...
01:24:40.000You know, a static body versus one where blood is circulating already changes it.
01:24:46.000The temperature of the blood is different.
01:24:48.000If you're struggling and I hit you with a blunt force object, a hammer, a bat, and your arm is coming up this way, depends on the speed your arm is traveling.
01:25:04.000As is bite-mark evidence, even though in all 50 states, as is even though the highest court in Texas, based in the work of the Innocence Project, I mean the highest authority in Texas, strongly admonished the courts not to consider blood, to consider bite-mark evidence,
01:25:20.000but they still do, in spite of the fact that there's case after case that proves that these guys who make themselves out to be these experts don't know anything about what they're talking about.
01:25:29.000I mean, it's We should all be embarrassed and ashamed that this is allowed to go on in our courts.
01:25:36.000You think about it, Joe, forensic odontology was created as a practice so that if there's a disaster, if there's a plane crash, right, and bodies are obliterated, they can take a full set of teeth and they can compare it to your dental records.
01:25:48.000Now you take the idea that someone's going to bite an imperfect surface, right?
01:25:51.000Like a finger or, you know, your neck or whatever it is, right?
01:25:55.000And now you're going to go with a couple of teeth on an imperfect surface days or weeks later, and you're going to go, this must be Joe's teeth, because sometimes they don't even know if you have teeth or not.
01:26:06.000In the National Academy of Sciences report, They did a study, and they cite to it in the report, and you can get it online.
01:26:15.000They did a study where they would have people with no teeth bite human skin.
01:26:19.000And the people missing their two front teeth, the bite mark appears as if they have two front teeth.
01:26:26.000People that have two front teeth can bite down, and if their incisors are too long, it can make it appear that they're missing two front teeth.
01:26:35.000So it's just, you know, as far as blood spatter is concerned, there is a case, I think it's the Peterson case that my friend David Rudolph did.
01:26:44.000You know the staircase, that show on Netflix?
01:26:48.000Where the guy was accused of pushing down the stairs.
01:26:50.000I think it was in this case where they were trying to recreate, the blood spatter analysts were trying to recreate the spatter in the staircase.
01:27:43.000Like, for instance, there's this guy who runs this computer algorithm.
01:27:48.000And he claims to be able to take a mixture of a bunch of different people's DNA and untangle it, right?
01:27:55.000And basically be able to say whose DNA is what.
01:27:58.000And, you know, he won't give the source code for his data and And, you know, this shouldn't be a black box.
01:28:07.000So there's some things going on like that.
01:28:09.000But for the most part, when it's done correctly and the right standards are applied, you can bet on DNA. But a lot of these pattern matching disciplines, blood spatter, fingerprints in some instances, bite mark evidence, you know, and what are the other ones?
01:28:53.000At the end of the week, you can go into any court in the country and say, I'm a blood spatter.
01:28:56.000I always wonder, because I would see a house burnt to the ground, and they would say, oh, they determined it was started by a fire, and this is how they determined it.
01:30:07.000It's like, I mean, and it was an electrical fire.
01:30:10.000It was proved 17 years later by actual experts.
01:30:13.000What did they use as the arson evidence against her in the case?
01:30:16.000They claimed that there was a certain type of accelerant, which there wasn't.
01:30:20.000They withheld evidence that there was kerosene that had been present in the house from previous owners who had come forward and said that there was...
01:30:30.000So they had just decided that she was guilty and they were going to try to win?
01:30:37.000And the sick thing about it is that these arson cases, there was no crime.
01:31:26.000You know the desired outcome, so you confirm that bias.
01:31:31.000So, you know, they then start looking at a streak from a smoke stain on the wall and knowing that the theory is that there was a match struck and placed against the wall,
01:31:50.000They will say, well, that's why you see the pattern that you do of that stain on the wall of smoke.
01:31:57.000Where the reality is that there are a lot of different explanations for how something can look, the scientific analysis of charred remains, not remains of people, but remains of different things, chemical compounds and things.
01:32:11.000And if you're working to reverse engineer an outcome, And it's easy to make this stuff sound reliable because if you don't have experience with it – I mean, look, this is a big – I hadn't done any bite mark cases in all of my cases.
01:32:26.000So I actually tried to approach it with an open mind.
01:32:30.000I'm literally stunned at what I'm finding out doing research for the episodes because it sounds like some wacky religion.
01:32:39.000You know, that somebody invented in their house and people buy it.
01:32:42.000So is all this stuff still in use because no one has exposed the fact that it's all junk science?
01:32:50.000Or is it because it's established as a part of what they accept in trials and they just haven't made the corrections yet?
01:32:57.000Because if they did, then they would have to accept the fact that all these other convictions that were based on this junk science would be open to reinterpretation?
01:33:07.000In the trailer for Junk Science, Josh addresses exactly that, and he does it very eloquently, which is that, along with Chris Fabrikant, who is the Strategic Litigation Director at the Innocence Project, it was actually a post I created in honor of my dad,
01:34:48.000Innocent as could be, just misdiagnosed.
01:34:52.000You know, it's interesting too, Joe, because you, you know, earlier I made this like, it seemed probably out of place, this reference to Lennox Lewis.
01:35:01.000And the reason I made it is because it blew my mind at how many people walk into a court proceeding I think it's pretty obvious,
01:35:32.000But the preconceived notion that people walk into any criminal courtroom with is that the person must have done it.
01:35:42.000Most people think that if someone was arrested or accused, they must have done it.
01:35:46.000So that was why I said earlier the presumption of...
01:35:49.000So then when you hear this impressive sounding lingo about something you don't know anything about, and there's someone who is qualified as a quote-unquote expert, And they're sitting there using language you don't know.
01:36:02.000You can't really fault the jurors for falling victim to it.
01:36:06.000So that's what we're hoping to do is one mind at a time open up people's minds, if you will, and they're thinking about the way that they approach the accused in this country.
01:36:20.000Jamie's going to play the trailer real quick.
01:36:25.000Hi, I'm Jason Flom, founder of Lava for Good Podcasts and host of Wrongful Conviction with Jason Flom.
01:36:31.000True scientific expertise is built through rigorous study and review and is absolutely vital in a court of law.
01:36:38.000When you trace any of these so-called forensic scientists back to their origins, you get a It's a curious origin story.
01:36:46.000But what happens when one claims to be an expert in a discipline that isn't based in science at all?
01:36:52.000They take a course, 40 hours, you're an expert, and they're testifying all over the country.
01:36:57.000This is attorney and Innocence Project Ambassador Josh Dubin, whose name you've heard from me and from some of the people he's helped free.
01:37:03.000We hear horror stories of innocent men and women robbed of their freedom.
01:37:07.000We will examine how science, in fact, junk science, has played a role in wrongful convictions.
01:37:13.000He is the host of the brand new series from Lava for Good podcast, Wrongful Conviction, Junk Science.
01:37:18.000Whether it be bite marks or arson or blood spatter, for one court to accept a quote-unquote science as valid can lead to the spreading of that science, much like a virus, across the criminal justice system.
01:37:32.000Josh interviews actual experts who can shed light on just how dark things can be in the American criminal legal system.
01:37:39.000How is it that you could have multiple expert witnesses make that fundamental of a different finding with the same evidence?
01:38:47.000And the fact that there's all these people in jail for all these different things?
01:38:52.000Cameron Todd Willingham, rest in peace, was executed by the state of Texas in an arson case where his three children all died.
01:38:59.000And this woman, the wonderful advocate who had befriended him while he was in prison, got a hold of the top fire expert in the world, a guy from England, who has like over 100 patents, invented everything, and he proved all 20 of the prosecution's Those theses were wrong and that it had to be an electrical fire,
01:40:18.000I just don't want to start crying again, man.
01:40:21.000It's 2.38 as we speak, so we'll get you home for dinner.
01:40:23.000But if you don't mind, I would love to just put a sort of a shameless plug out there because this bullying thing bothers me so much that I wrote a children's book about it with my other daughter, Allison.
01:40:35.000It's called Lulu is a Rhinoceros, and it's about my bulldog, Lulu, who's actually not a bulldog at all.
01:40:40.000She's a rhinoceros trapped in a bulldog's body, and It's about her struggle to find love and acceptance in a world where she's judged by her physical appearance instead of what's in her heart.
01:40:48.000Just basically trying to teach kids that it's okay to be different.
01:40:52.000In the end of the day, of course, she prevails, but first she endures ridicule and bullying.
01:40:58.000I equally hate bullying, but I have an alternative perspective on bullying.
01:41:03.000I think it's a natural part of animals.
01:41:06.000It's a natural part of finding weakness in systems.
01:41:16.000And to teach kids how to fight, very young, so they never even think about bullying.
01:41:21.000So these instincts to find weaknesses in these systems, these societal systems, systems of friends and systems of communities, instead, you find them in yourself.
01:41:45.000I got the chills just now because, you know, as a guy that manages professional prize fighters, you know, I have an eight-year-old son.
01:41:58.000And I told you, he's got type 1 diabetes.
01:42:00.000And I knew as soon as he got diagnosed, he was, you know, close to his seventh birthday, he's going to get fucked with and picked on because he wears an insulin pump on his arm.
01:42:09.000But before that, I had this idea that...
01:42:59.000Because as soon as someone fucks with you, and you fight back in a way where you put that fire out very quickly, you're not gonna get fucked with anything.
01:43:08.000Well, that's one way, but I really think it should be universal.
01:43:50.000And the first thing that I realized, first of all, it changed me.
01:43:54.000I became a much, much easier going person, much easier to get along with.
01:43:59.000My insecurities faded away because now, instead of being constantly worried that someone was going to pick on me and beat me up, I was fighting.
01:44:07.000So I was always worried about, like, trained opponents and, like, regular life stuff was nothing.
01:46:34.000Every fighter that I know that was a great, successful, professional fighter I want to go so far and idealize them, but they are warm, sensitive, sweet human beings.
01:46:50.000Well, to be good, you have to address all things.
01:46:53.000You have to address your own insecurities, your own problems, your own flaws.
01:47:04.000Physical attributes are considerably more important.
01:47:09.000Physical attributes and speed and power, they're so significant.
01:47:13.000Because if you just teach someone how to throw punches correctly, the people that have speed and power, a lot of them, they're just born fast and powerful.
01:49:04.000I gotta say, not to sound bro-y or douchey about it, but I gotta say, when I started lifting weights and getting physically stronger, probably in college when I started to take it really seriously, I don't think that I would have had...
01:49:19.000This may sound dumb, but I know, as a matter of fact, that I would not have had the emotional strength to stand up to judges and the powers that be like I do.
01:49:59.000It does something for you psychologically to be able to stand up and say, you know, to be able to say, look, you're not fucking doing anything.
01:50:07.000I mean, in Clemente's case, at one point, the cop, every time me and the judge got loud, the cop would put, and it's in the transcript, the cop would put his hand and rest it on his gun.
01:50:17.000And this was probably not the right move, but I said, what is he doing?
01:51:16.000In the sternum, or right here, that I cracked four ribs.
01:51:22.000And when I was in the corner, Lennox was like, go dance in the last round because you're not quitting on your stool with me in your corner.
01:52:04.000I wanted to throw something in as well because picking up on what you said, Joe, there's an exoneree based in New Orleans named Doug DeLosa who I've developed a tremendous friendship with over the years.
01:52:18.000He was wrongfully convicted of murdering his wife and sentenced to life in prison.
01:52:21.000Actually wrote his own pro se motion, which means written by the incarcerated person himself.
01:52:27.000And it was granted by the Fifth Circuit.
01:52:29.000He was the only person to ever do that, and was freed after 14 years.
01:52:33.000And a couple years ago, I was speaking to him, because we talk all the time, because he does a lot of work helping other exonerees get back on their feet, and we worked together on that.
01:52:42.000And he sounded really down, and I was like, what's wrong, man?
01:52:45.000And he goes, man, my grandson is just getting brutally bullied at school.
01:52:50.000They broke his glasses, they threw him down the stairs, and this and that.
01:52:53.000And I was like, have you thought about taking him to martial arts?
01:52:57.000And he said, no, I hadn't really thought about that.
01:52:59.000And sure enough, he took his grandson to martial arts, and now he sends me pictures.
01:53:06.000And just like you said, Joe, I mean, I have never met the kid, but I have a lot of respect for him because he's taken the initiative, and he's doing great, and he's going to have a better life, exactly as you said, specifically because of that.
02:01:53.000You know, when he got out, he did do a lot of work helping other people.
02:01:57.000In fact, I'm working now on the case of an innocent guy in Washington State named Atif Rafay, who was convicted of murdering his whole family.
02:02:05.000And that was the last case that Hurricane Carter actually worked on.
02:02:08.000So, you know, I didn't want to leave that hanging.
02:02:13.000Well, I think it's wonderful that he did great things when he got out.
02:03:39.000But when Dewey was about to get out, Barry Sheck called me and said, listen, do you have someone in New York?
02:03:45.000A pro boxer that we could have a meet with it would really boost him so it was the week that he got out I had actually had at the time I was managing Paulie Malignaggi and I had Paulie come meet with Dewey and Paulie was real enamored with the work I was doing at the Innocence Project and Paulie actually took Dewey under his wing and we flew him up to Paulie's rematch with Juan Diaz up in Chicago and Really got him in the dressing room and got him behind the scenes
02:04:45.000I don't even know where that kind of grace comes from.
02:04:49.000I mean, I want to kill the guy myself, but that's beside the point.
02:04:53.000One thing I learned from Jay Prince, who, by the way, is probably the smartest negotiator, businessman, he would be a fascinating dude for you to speak to.
02:06:07.000And one night I was at dinner with Barry Sheck.
02:06:09.000He's telling me about this case of this guy, Walter Swift, who was in jail for something he didn't do and how he couldn't get the district attorney to pay attention to him.
02:06:17.000He like throws like a Hail Mary to me.
02:06:19.000I wrote an article about it in Ring Magazine.
02:08:37.000And I've always tried to get boxers and maybe you could help with MMA fighters involved.
02:08:44.000I always thought there was something synergistic about the Innocence Project and wrongful incarcerations because it's a fight to get them out.
02:08:50.000Well, I think there's a lot of people that know that people are wrongfully convicted, but they don't know exactly what to do and they don't know what, if anything, they can do to help.
02:09:22.000Yeah, we'll give you some links to not only whether it's petitions, signing up for the Innocence Project newsletter, you know, keeping your voice up by writing your governor, parole boards, politicians, and, you know, we can give you various ways that people in their communities can help.
02:09:40.000And I know you're chomping at the bit to talk wrongful incarceration.
02:09:44.000Yeah, and I'm so glad you brought that up, Joe, because there are things that people can do just by making their voices heard, and we need everybody, because this could happen to you, it could happen to somebody you love.
02:09:55.000I mean, no one thinks it can until it does, but it does, and it happens all day, every day, in courtrooms around this country.
02:10:01.000And the prisons are filled with people, you know, who are actually innocent of the crimes for which they were convicted.
02:10:09.000In fact, even, you know, it's interesting you brought that up because I can't leave out Christina Curl.
02:10:13.000That's a case I'm working on in Vegas of a woman who's been wrongfully accused of shaking her baby to death.
02:10:22.000The top expert, Barry Sheck, actually referred me to a guy named Randy Papetti, who actually wrote the book on shaken baby syndrome, who looked into this case for me and came back and basically wrote an email saying it is a certainty that nothing was done to this child.
02:10:34.000The poor child had a brain that was twice the normal size and suffered from sickle cell as well.
02:10:40.000And those factors are what unfortunately led to his demise.
02:10:44.000And now they want to lock her up for the rest of her life for something that she didn't do.
02:11:53.000And it's so important that we give these people, because even the ones that do get compensation, Josh knows this better than anyone because he does civil law as well, one of the many hats he wears.
02:12:03.000But It takes years and they come out to nothing.
02:12:06.000They come out to like a world they don't know.
02:12:07.000They haven't maybe been on the streets for 20, 30 years or more.
02:12:12.000And the process of getting started again is so, so daunting.
02:12:18.000And so if people want to look into their hearts and help on that level, that's a simple thing you can do.
02:13:06.000And no other country does it this way.
02:13:09.000And so when you look at inside the numbers, right, we have 4.4% of the world's population, but we have 25% of the world's prison population.
02:13:30.000Does it cost a fortune to keep this thing going?
02:13:33.000Us taxpayers, everyone's paying for it.
02:13:35.000You're listening right now, you're paying for it.
02:13:38.000Everyone pays for this bloated I'm not going to call it broken because it works the way it was designed, which is as a lever to control people, mostly poor people, mostly people of color.
02:13:51.000We lock, and this statistic sounds crazy to me even when I say it, but I know it's true.
02:13:56.000We lock black people up in America at six times the rate of South Africa at the height of apartheid.
02:14:03.000So we have 33% of the world's female prison populations.
02:14:30.000By over-criminalizing these people, by not investing in resources that could actually help those communities, but instead cycling them in and out of prison.
02:14:39.000You know, inside those numbers, Joe, we talked about 700,000 pot arrests every year.
02:14:43.000Mostly, again, people of color, even though they don't use drugs at a higher rate than white people do.
02:14:47.000In fact, most studies show that they use them at a lower rate.
02:14:52.000If I tell you how many people are jailed in America every year, and we call this jail churn, right?
02:14:57.000And it's important to talk about this now because of COVID, because now a Harvard study came out yesterday showing that this is a real thing, right?
02:15:06.00011 to 12 million people are arrested and jailed, at least for a short period of time in America every year.
02:15:17.000And those people, forgetting all the other problems with it, in this time of COVID, they go in and out and they bring the disease with them, as do the people who work inside the jails and prisons, right?
02:15:28.000I mean, the spread in the prisons is well known now.
02:15:33.000There's nowhere to social distance in a prison cell or in a prison environment.
02:15:37.000And, of course, there's all the workers that go in and out, not just the guards, but the, you know, the religious people, the, you know, the social workers, the people who work in all different aspects of the prison maintenance, whatever.
02:15:54.000You know, there's—I'll stop talking in a second, but the fact is there's a guy who I hope someday will get to be on your show named Alec Karakatsanis, who's the author of a book called Usual Cruelty, which is like my Bible now.
02:16:06.000And it is Usual Cruelty by Alec, A-L-E-C, Karakatsanis.
02:16:11.000He's got an organization called Civil Rights Corps, and he's been suing cities and counties all over the country to eliminate cash bail because cash bail is at the root of a lot of these problems.
02:16:23.000So money bail has existed since, you know, I don't know, it was a thousand years since bail was invented, whatever the hell it was, a long time ago.
02:16:33.000But bail historically was an unsecured bond, right?
02:16:41.000Which meant that they figured out they wanted to charge people if they didn't show up for trial, right?
02:16:47.000So what that meant is if you were arrested and you were supposed to show up in court, if you didn't show up, they would send you a bill, right?
02:16:55.000And people realized it actually started in San Francisco, strangely enough, which is now actually leading the charge in the other direction.
02:17:01.000But in 1899, they decided to start charging people up front.
02:17:05.000So you had to post bail money to be free until your trial.
02:17:12.000Now, this obviously affected one group of people, poor people, right?
02:17:17.000Because, and you know, we always see the mugshots of celebrities, right?
02:17:20.000When they're arrested and they're smiling, right?
02:17:22.000Because their lawyer is waiting outside to take them to a lobster dinner or whatever the hell they're going to go do.
02:17:28.000And what happened is that soon enough, And Alec taught me a lot of this stuff.
02:17:35.000Soon enough, it became clear that this could be an incredible profit center, right?
02:17:41.000That charging people for their own freedom, it's a bill you can't afford not to pay.
02:17:46.000But if you can't afford to pay it, you go to jail.
02:17:49.000So then emerged this bail bonds industry, right?
02:17:52.000Which is now a multi-billion dollar industry.
02:17:54.000And how that works is, if you're poor and you can't afford to post bail for yourself, Yeah.
02:18:17.000Now, if you don't do that, think about the consequences, right?
02:18:21.000So you're picked up for anything, shoplifting, could be mistaken identity, could be any crime at all, or any minor thing.
02:18:28.000Misdemeanors make up a huge percentage of the jail population.
02:18:31.000Most commonly, it's just driving on a suspended license.
02:18:34.000That's the most common cause of arrest, I think, in most places in America, driving on a suspended license.
02:18:40.000And they're going to put you in a jail cell.
02:18:43.000They're going to deprive you of contact with your family, of your ability to work, of your ability to take a walk, of your ability to avoid violence that may occur to you when you're in that cell, of all different types.
02:19:59.000They don't have time to come visit you in jail.
02:20:01.000You can't get them on the phone readily.
02:20:03.000You can't take your lawyer to the scene of the crime to show that you couldn't have been there because, or whatever, or the witness couldn't have seen you because the lights are, whatever it is.
02:20:13.000You have no ability to mount an effective defense if you're in jail, which is why 96, 97% of, well, Now we're talking felonies, but 96% of felonies, convictions in this country are a result of guilty pleas because people realize they can't fight it and they can't afford to sit in jail because they could lose their job,
02:20:32.000they could lose their home, they could lose their family if they don't either put up the money, which they don't have, or plead guilty.
02:20:42.000So this is a problem that is being addressed.
02:20:45.000Like I said, Alec has been winning lawsuits all over the country because it's a violation of the 6th and the 14th Amendment.
02:20:50.000You can't call it equal protection if two different people are charged with the exact same thing, but the one with money goes home and the one without money goes to jail.
02:21:00.000That is such a beautiful way to put it and so clear because I've been seeing people talk about different progressives that want to get rid of cash bail and how ridiculous that is.
02:21:14.000And what you're saying makes total sense and I've never seen it laid out like that before.
02:21:20.000And I didn't know that there were that many people that are in jail for things and they can't post bail because they don't have the money and so they just have to wait for trial.
02:21:27.000And what percentage of them did you say?
02:22:24.000One, you'll notice that the vast majority of people in any, certainly in any urban jurisdiction, in any big city, are people of color.
02:22:37.000And I sat recently watching this happen in Tampa, Florida, because I was working on the James Daly case, and they did arraignments before my hearing.
02:22:45.000And I sat with a bunch of public defenders, and I listened to them wince.
02:22:50.000Every time someone of color, a young person of color, is brought in, driving on a suspended license, possession of marijuana, possession of hydrocodone without a prescription, and they set their bail a thousand, ten thousand,
02:23:43.000And you start to quickly be able to do the computation in your mind.
02:23:46.000Where are they coming up with $1,000 or $500?
02:23:49.000And then they will re-offend and end up right back where they were.
02:23:53.000And what will really be striking to you is that I would venture to say in the high 80s, in terms of percentage, These people, what they really need is help with an addiction.
02:24:05.000And if we put a third of the money that we spend incarcerating people, keeping them incarcerated on drug and alcohol rehabilitation, the incarceration rate would plummet.
02:24:20.000And the recidivism rate, you know, people reoffending would plummet.
02:24:24.000And not only we don't have to hypothesize, that's in fact what happens.
02:24:29.000It happens in countries that, you know, decriminalize drugs and it happens in countries where there's not such an emphasis on jailing people and there's more of an emphasis on getting them help.
02:24:40.000And to answer your question, Joe, I just looked it up because I'm going to quote from the book, Usual Cruelty, again by Alec Karkatsanis.
02:24:47.000Between 80 and 90 percent of the people charged with crimes are so poor that they cannot afford a lawyer.
02:24:52.00025 years into America's incarceration boom, black people were incarcerated at a rate six times that of South Africa during apartheid.
02:24:59.000The incarceration rate for black people in the nation's capital where I live is 19 times that of white people.
02:25:11.000Well, there is no net benefit to society.
02:25:13.000In fact, it's been proven in the University of Pennsylvania.
02:25:15.000The Quattrone Center did a study that showed that people...
02:25:17.000They studied people who were jailed or freed for the exact same crime under the exact same circumstances, right?
02:25:23.000And this one posted bail and that one couldn't.
02:25:25.000And they found that the people who went to jail, even if for as little as a few days, were 40% more likely to be arrested for another felony in an ensuing year.
02:25:35.000So, because their lives fall apart while they're in jail, and then, you know, like I said, they lose their job.
02:25:40.000You can't just not show up for work for a few days and be like, I was in jail, you know?
02:25:44.000So, you know, and if I could, I'm just going to read the first paragraph of the book.
02:25:48.000Because this really, I think, puts it in stark contrast.
02:25:52.000The book is called Usual Cruelty by Alec Karakatsanis, which is K-A-R-A-K-A-T-S-A-N-I-S. It's kind of a tongue twister.
02:26:02.000And so the book starts off, on January 26, 2014, Sharnel Mitchell was sitting on her couch with her one-year-old daughter on her lap and her four-year-old son to her side.
02:26:12.000Armed government agents entered her home, put her in metal restraints, took her from her children, and brought her to the Montgomery City Jail.
02:26:21.000Jail staff told Charnel that she owed the city money for old traffic tickets.
02:26:29.000The city had privatized a collection of her debts to a for-profit probation company, which had sought a warrant for her arrest.
02:26:36.000I happened to be sitting in the courtroom on the morning that Chanel was brought to court along with dozens of other people who had been jailed because they owed the city money.
02:26:43.000The judge demanded that Chanel pay or stay in jail.
02:26:46.000If she could not pay, she would be kept in a cage until she, quote, sat out her debts at $50 per day or $75 per day if she agreed to clean the courthouse bathrooms and the feces, blood, and mucus from the jail walls.
02:26:59.000An hour later, in a windowless cell, Chanel told me that a jail guard had given her a pencil, and she showed me the crumpled court document on the back of which she had calculated how many more weeks of forced labor separated her from her children.
02:27:13.000That day she became my first client as a civil rights lawyer.
02:27:43.000And the idea that we send more or less like a SWAT team to the home of this woman to pull her away from her kids, what kind of planet is there where that's okay?
02:30:57.000But we have no choice but to fight back and mobilize and whether that means Putting pressure on local politicians or, you know, dare I say, run for office yourself.
02:31:11.000We need people that will speak truth to power by standing up for the people that are being oppressed in this country, as cliche as that sounds.
02:31:20.000You know, you're sitting here horrified by a few stories.
02:31:24.000You know, each one is more heartbreaking than the next.
02:31:27.000And when you actually see how it works in action and you live it with these people, You know, it changes you.
02:31:34.000It fundamentally changes you as a human being.
02:31:38.000I mean, I've never heard it laid out as well as you guys were laying it out, and I think most people listening to this probably are gonna agree.
02:31:46.000They knew, but they didn't know, you know, and it leaves you with this overwhelming feeling of Of helplessness.
02:31:57.000Like, besides running for office, what can be done?
02:32:02.000I mean, we obviously need to change some laws.
02:32:04.000We obviously need to, first of all, the conviction and arrest of people for non-violent drug offenses is fucking insane.
02:32:14.000It's insane, and it's a giant part of the entire problem.
02:32:19.000The fact that you can arrest people for traffic tickets and leave them in a cage, separate them from their children, that's fucking insane.
02:32:28.000The fact that we're supposed to be the shining beacon of democracy and civilization in this country, it's a joke when you look at our criminal justice system as you guys have laid it out.
02:32:40.000I don't want you to feel helpless, though, and I don't want your listeners to feel helpless, and here's why.
02:32:44.000The way that I, when I start to feel that way and I do sometimes, I start thinking of the strength that you have to have To survive an ordeal like John Restivo or Clemente Aguirre or Dewey Bezella or the countless other people that we have talked about,
02:33:08.000it is beyond belief to be accused of something you didn't do, but to be able to survive in conditions that are popularized by movies, but the worst thing that could happen to you in jail often happens to these people.
02:33:23.000And to have the resolve and not be helpless, at some point you overcome that helplessness, then I think it's in all of us to do something.
02:33:33.000And that path is different for different people.
02:33:35.000Not everybody is going to go out and be a civil rights lawyer or a criminal justice reform advocate, but there is something that all of us can do.
02:33:43.000Politicians don't like to be embarrassed.
02:33:45.000So whether that is writing an op-ed Writing to your local politician, calling the newspapers, like on the first episode of Wrongful Conviction Junk Science, I say, look, many of you are thinking, what can you do?
02:33:59.000One thing you can do is, for instance, just dealing with forensic science.
02:34:05.000Is write letters to your local criminal court judges.
02:34:44.000But I think part of it is fear of bucking the system.
02:34:48.000But one thing we do know, people act differently if they know that they're going to be embarrassed or exposed.
02:34:54.000The reason why the judge in Clemente's case that I told you about, that was the judge that wouldn't recuse herself in the Trayvon Martin case, even though her husband had represented George Zimmerman prior, We're good to go.
02:35:25.000We could either lay down and take it or get up and fight.
02:35:28.000And there's something that all of us can do.
02:35:30.000And I can tell you, Joe, I have seen, and when I say that it transformed me as a human being, I watched the pride of my 10-year-old daughter, my 8-year-old son, my 4-year-old doesn't get it yet, and saying,
02:35:49.000You know, my dad helped save his life.
02:35:52.000And to watch them, you know, these people become parts of our family.
02:35:56.000I'm telling you, man, you vibrate, you know, just to know that you physically saved a life.
02:36:04.000There is no more gratifying thing in the world, no sporting event, no cheap thrill at a club out with your friends drinking or whatever it is that gets your rocks off.
02:36:16.000I can tell you that if you have warm blood in your body, The reason why wrongful convictions and exonerations are so popular as a genre on podcasts or in movies is because it is that exhilarating to be able...
02:36:30.000I think that it taps into the best part of who we are as human beings, really.
02:36:35.000Because I think that we are fundamentally good in many ways.
02:37:56.000Oprah, Sally Jesse, defunct talk show host Maury Povich, Sally Jesse Raphael, and only one person answered, The Innocence Project.
02:38:05.000And that's not to pat us on the back, but, you know, you can write one letter and if it catches the right person's attention, you can change a life.
02:38:15.000Because voting, you know, in local races, especially local DA's races, local judges' races, so few people vote that your vote literally could be the deciding factor, and it will have a ripple effect.
02:38:29.000If they know that you're going to vote for judges and for prosecutors who do the right thing, who want actual justice and not just to win at all costs, like you said before, Joe, then that is going to make a huge difference.
02:38:41.000You know, Chesa Boudin just won in San Francisco by a very tiny margin, less than 1%.
02:38:46.000He has decarcerated San Francisco by over 50% in less than six months with no...
02:38:57.000And so the fact is none of those people needed to be in the first place.
02:38:59.000He's refusing to prosecute these low-level nudnik crimes that don't need to be prosecuted, people that need help, who need us as a society to give them a lift up, not to brutalize them and put them through this churn, this miserable system.
02:39:14.000Go to FAMM.org, Families Against Mandatory Mandatory, FAMM.org.
02:39:20.000Go to First72 Plus if you want to donate to that.
02:39:26.000It's an organization I've been on the board of forever that's leading what I call the war against the drug war and is doing such amazing work to help to take away not only the legal penalties but also the stigma associated with drugs.
02:39:41.000And don't forget, even in the presidential race, right, Over 20% of federal judges now have been appointed by Trump.
02:39:49.000And most of those judges, the overwhelming majority of those judges, are exactly the ones that we are sitting here talking about.
02:39:58.000They're the ones we don't want on the bench because they could victimize so many more people.
02:40:02.000Many of them have been judged unanimously unqualified by the American Bar Association.
02:40:07.000And they're appointing, these Republicans are appointing these judges to lifetime tenures.
02:40:14.000In places where they're going to see hundreds or thousands of cases.
02:40:20.000So if you don't think your vote matters in the presidential election, if all you care about, if none of that other stuff interests you, it should interest you.
02:40:28.000And for the sake of yourself, your friends, your loved ones, your children, those judges are going to do a tremendous amount of damage.
02:40:37.000Hey, Joe, I'm going to bring this full circle.
02:41:00.000So, my hope is that in ten years, or five years, or seven years, that we come back and you say, well, another thing was supposed to happen by now, and it's either happened or beginning to happen.
02:41:12.000We were supposed to decriminalize, you know, low-level drug offenses, or we were supposed to change this bullshit about prosecutors and cops having immunity, right?
02:41:27.000I can guarantee you that if prosecutors knew that there were repercussions, right, that there were repercussions to hiding evidence, okay, and not turning it over to the defense.
02:41:37.000It happened in one of Kamala Harris's cases.
02:41:40.000Wasn't it one of her cases where the crime lab – or that wasn't her case – where the crime lab had to send the DNA – I don't know if it was in California – where the crime lab – You're talking about Anthony Apanovich and I'm glad you brought this up.
02:41:56.000You can tell him the story in a second, but the crime lab, not the prosecutors, a crime lab technician says, you know what, this is wrong.
02:42:04.000This DNA doesn't match the defendant and I'm sending it to the defense counsel.
02:42:09.000And what happens is that he gets put back – first he gets out because they realize they have the wrong guy, but he gets put back on death row because he got – he obtained the evidence illegally because it wasn't – so hold on.
02:42:22.000You can tell the story in a second, but my hope is that – We start to beat back against the system so that we can come back on here, wherever you are, whether it's on a podcast, or it'll be your next bit, or maybe you'll have a talk show at that point and say,
02:43:37.000But somebody, I think it was a crime lab technician, whoever it was, some whistleblower or whatever you want to call it, sent that evidence to the defense.
02:43:46.000It's not the first time we've heard that kind of story.
02:44:01.000He's sitting on the lawn with his grandchildren one day and a SWAT team shows up and arrests him again.
02:44:07.000The state appealed his reversal saying that Only he, technically, only he was allowed to request his DNA. It's something in Ohio law, right?
02:44:21.000The person who's appealing their conviction has to request the DNA themselves.
02:44:26.000So they said that since they requested the DNA, he couldn't use it in his appeal, which technically was correct.
02:44:35.000And so they're saying, you should have requested the DNA that we told you doesn't exist.
02:44:43.000And since you didn't, we're taking it to the higher court.
02:44:46.000And the higher court was left with no choice.
02:45:13.000On the Apanovich case, I'll have to get you that information, or maybe Jamie can find it, but it's Anthony Apanovich, A-P-A-N-O-V-I-T-C-H, and I know it's Ohio, but I don't remember the jurisdiction.
02:45:38.000Cuyahoga County Prosecutor Bill Manson.
02:45:42.000Sorry, that looks like the original prosecutor.
02:45:43.000Has confirmed through conclusive scientific evidence a death row inmate Anthony Aponovich brutally raped and murdered Marianne Flynn in 1984. That's a 2006 article.
02:47:04.000It's difficult to be at the end of the line, McClellan wrote.
02:47:07.000He said, Legal precedent and prior court rulings leave this court with no option than to deny the motion for new trial on the basis that the defendant is unable to show a strong possibility that a new trial would end in a different result.
02:47:24.000Prosecutor Michael O'Malley said in a statement through a spokesperson that Aponovich belongs on death row.
02:47:31.000The gamesmanship has gone on for too long, O'Malley said.
02:47:34.000Putting him back on death row ends the agony of years of litigation that has tortured the victim's family.
02:47:42.000Aponovich's appellate attorney, Mark Devon, did not immediately return a request for comment Wednesday.
02:47:55.000And if he can't use the DNA, then he probably can't mount an effective defense.
02:48:00.000Josh could speak to that better than I can.
02:48:02.000Yeah, I mean, look, there's all sorts of roadblocks that courts throw up where, you know, you have to bring the new evidence within a certain time frame.
02:48:10.000And there's just these paralyzing, you know, as hopeless— I was out!
02:48:28.000Listen, because of this conversation we've had, millions and millions and millions of people are going to be aware of this that weren't aware of it before.
02:48:36.000What's the best place for them to start?
02:48:39.000What is the Innocence Project's website?
02:50:41.000I mean here's a situation where the governor of Florida, Ron DeSantis, has the ability to call a clemency hearing and grant James Daly clemency at least to hear his case.
02:50:52.000And they have basically communicated to me, the governor's office, that if he doesn't show contrition, That it's not going to go well for him.
02:51:02.000So think about the Catch-22 they put me in as his lawyer and him in for a crime he didn't commit to which someone else has confessed to time and time again.
02:51:12.0002020 is airing a whole special about the case and my representation of him in October.
02:51:17.000We could use people writing letters to the governor, Ron DeSantis of Florida, to grant James Daly a clemency hearing.
02:51:27.000Think about what I'm asking for right now.
02:51:29.000I'm asking for a governor to exercise his power to just listen.
02:51:36.000It's that difficult to just get a hearing, just to listen.
02:51:51.000And then what he does is he goes into court and changes his mind and says, I no longer want to talk about this because every time he confesses, his family reads about it in the paper.
02:52:17.000All of the evidence, the physical evidence, leads to him.
02:52:20.000He's confessed, yet my client sits on death row for 33 years for a crime he didn't commit.
02:52:27.000The governor has the power to listen to his case.
02:52:33.000Ron DeSantis has the ability and the power to make it less of a joke than it's been, but they don't even hear cases of death row prisoners.
02:52:46.000And the last word on Michelle Murphy, and then we'll wrap up, because I know that you probably have some other parts of your life you want to attend to.
02:52:54.000Yes, it's almost dinner time, exactly.
02:52:56.000On Michelle Murphy's case, and this touches on a number of things we talked about.
02:53:00.000Michelle Murphy, even at her original hearing, the judge called all the lawyers into his chambers and said, There was a kid in the courtroom who was the witness against her.