J.D. Tomlinson is the former head attorney for Lorain County, Ohio. He was the head attorney in charge of the office that prosecuted the case of the Ohio 4, who were wrongfully convicted of a murder they didn't commit.
00:01:35.000Before there's any evidence against them whatsoever.
00:01:39.000In two and a half decades of doing post-conviction work, I had never seen the police put in an affidavit where they're, excuse me, not an affidavit, a police report when they're investigating this murder that these four men are people we should look at based on nothing other than there was A lot of commotion in the community,
00:02:07.000understandably so, that there were people from out of town selling drugs.
00:02:10.000No question, my client and these other three guys were involved in selling drugs.
00:02:16.000And they wanted drugs off the street in Lorraine.
00:02:19.000So they immediately start looking at them.
00:02:25.000This woman is found behind a shopping center, horribly, savagely murdered.
00:02:40.000It was obvious because there were tire marks on her body.
00:02:44.000And several hours later that morning, someone that she lived with, a gentleman by the name of Epps, was found murdered in strikingly similar fashion.
00:02:57.000So the police are investigating this crime and run into a dead end.
00:06:26.000They should have known right then and there, before any of these four men were tried, that this was someone that led them down the wrong path.
00:06:34.000But instead of doing that, they keep him in jail.
00:06:37.000I don't remember if it was for 30 days or 60 days.
00:06:41.000And they let him cool his heels a little bit.
00:06:45.000The judge in the trial calls a mistrial.
00:06:48.000And when there's a mistrial, you can try someone again.
00:06:53.000So about a month goes by, and William Avery Jr.'s story has now evolved.
00:07:00.000He now no longer claims that Al Cleveland confessed to him.
00:07:05.000He claims that he was a witness to it.
00:07:10.000What happens in that intervening month, I think people can draw their own obvious conclusions about what happens, but suffice to say, it's my opinion and my belief that they did a number on this guy.
00:07:21.000So he goes on to testify at all four of their trials individually, during which time the lead prosecutor gets a correspondence from the U.S. Secret Service.
00:07:38.000Saying that we know you use this man, William Avery Jr., as an informant.
00:07:44.000We have been using him as a paid informant in some food stamp sting, and we just caught him in a lie.
00:07:51.000And he's compromising our investigations because he is accepting reward money and making things up, and we're ceasing to use him as an informant, and we are investigating him for crimes.
00:08:07.000And giving us false information and accepting reward money for it.
00:08:11.000So the prosecutor you would think at that point would say, alright, obviously it's over.
00:08:15.000So these guys all get sentenced and convicted to, I believe it was 25 years to life.
00:10:57.000Al Cleveland spent so much time in prison that he timed out and was paroled.
00:11:03.000I think he spent close to 30 years in prison.
00:11:06.000And he approached J.D. and he approached J.D. with his wife and it turned out that J.D. as a young lawyer was sitting at that hearing watching it and knew as a young lawyer that there was something terribly wrong.
00:11:20.000But back to just to get listeners and viewers up to speed on where we're at.
00:12:38.000And I take a look, and I see that he's running against someone, and that person that he's running against is posting about the fact that he was charged with three felonies.
00:12:50.000And I'm like, alright, well this seems like a political witch hunt.
00:12:53.000I don't know much about it, but it seems like a tactic.
00:12:58.000So I came on the show and I said, look, I know this guy's up against it.
00:13:05.000Hopefully he now knows what it's like to be accused of something he didn't do.
00:13:09.000And I said, he's either under so much stress or isn't tech-savvy enough to know that every time I text him and say, please, I just need five minutes of your time.
00:13:22.000I could see he's reading my text because he had his read receipts on and he didn't know it.
00:13:42.000And at about 5.30, I see on my phone J.D. Tomlinson.
00:13:49.000And I said, I was about to teach my law school class, these kids at the Cardozo Law School that take the Freedom Clinic at the Perlmutter Center for Legal Justice.
00:15:07.000Imagine going through this for 30 years.
00:15:12.000I have to say, in all my years of doing this, considering the circumstances that he was in, for him to say, you know, he was wrestling with it on the call.
00:15:25.000And he said, you know, I'll never forget what he said to me.
00:15:30.000He said, you know, if I don't at least agree to meet with you, who am I? And I said, thank you.
00:15:37.000And he said, I just don't know if there's time, but I owe you at least a meeting.
00:15:43.000And given what he was going through and what he was up against, and he knew the case well.
00:15:48.000He had had the Ohio Innocence Project had presented to him years earlier, and he knew the case well, so I think he had a sense that there was something really wrong going on.
00:15:57.000And I had exonerated two people prior to that, so I had some experience in that.
00:16:06.000Ohio and that town is because he had the audacity.
00:16:10.000He had the nerve to say, I see two innocent people in another case and I'm going to exonerate them.
00:16:18.000And that is the beginning of his issues in Ohio.
00:16:25.000So, I mean, if you want to hear from JD's perspective, because what ensued and what has happened in the months since.
00:16:34.000Has been one of the most shocking, disturbing, you know, frankly, disgusting displays of what I think is ego and abuse of the system, in my opinion.
00:16:47.000That two of these four men are still in prison.
00:16:53.000And two of them are only out because they paroled out.
00:16:56.000But they're on parole as convicted murderers for a crime they didn't commit.
00:18:19.000And thankfully, she has accepted my apologies because I put her in a position where she should have never been in as being an employee of mine.
00:18:58.000But so anyways, there was arguments that were caught, you know, on camera with her and I. That were released to the public, and it showed us, you know, me arguing with her and raising my voice, and so it was an extremely embarrassing time in my life.
00:19:11.000But so this was all happening amidst this.
00:19:13.000And so it all really did start happening when I exonerated those Nancy Smith and Joseph Allen in 2022. My life changed because I knew there would be consequences to actions like that because it creates financial problems.
00:19:28.000People are suing people in federal courts.
00:19:31.000So it causes problems even in the sense that I was very close with police.
00:19:39.000And so it was difficult, the strain that it put on some of the police departments, even though it was an old case, you know, I'm still friends with a lot of these detectives.
00:19:46.000And to sort of make decisions like that where you have to kind of disagree, it can be difficult.
00:19:52.000But I really didn't realize the extent of how much it would do it.
00:19:56.000So when I exonerated Nancy Smith and Joseph Allen, which is one of the worst cases I've ever seen, I thought that it was the worst case I'd ever seen.
00:20:06.000And after I was going through all that hardship, basically on October 1st of 2024, I was charged with three felonies, tampering with records, intimidation, and bribery.
00:20:18.000It was shocking to me because I couldn't figure out what the conduct was that they were referring to.
00:20:24.000So what in essence it was is because of that fallout from the videos that were released and she didn't have a partner releasing the videos and so she had called us in the summertime even though we weren't really talking a bunch and she had kind of expressed her sorrow that those videos had gotten out.
00:20:43.000And that she didn't intend for them to.
00:20:45.000And that she kind of wanted some help with the media about how can we kind of help a little bit with the PR. And my partner and my chief of staff, Jim Burge, who's a legend unto himself, he's the best writer I've ever seen.
00:20:59.000And it was supposed to be prepared for her lawyers if they wanted to review it and see if they agreed with it or change it or anything like that.
00:21:06.000And to prove that that's what occurred was I have text messages from her on the day that...
00:21:12.000Jim wrote this statement that says, you know, I trust Jim and his magic pen because she knew how good of a writer he was.
00:21:19.000And then the next day, when I'm supposed to be intimidating him, according to the state, when I'm supposed to be intimidating her, according to the state, you know, I received a text message apologizing to this situation that we're in because we both were just really...
00:21:32.000It was dramatic to have your personal life right in even a small town like that.
00:21:39.000But what they alleged was they alleged that we had created this false narrative, this false document, and then intimidated her into adopting it.
00:21:46.000That was the allegation, which is completely, completely false.
00:21:51.000And we had all the evidence to prove it.
00:21:53.000So I was fairly confident in my case because I'm a lawyer.
00:21:56.000I was a defense attorney for 15 years before I took office.
00:21:59.000So I'm fairly knowledgeable about what Constitutes a good case or not.
00:23:28.000Party and I ran in a primary and I ended up winning and then my my my relationship with the sheriff who actually ended up investigating me for this case that I'm referring to We had pretty good relationship there for the first couple months when I got elected I had asked for a couple of my deputies to be debt or a couple of my investigators be deputized which is a pretty standard procedure he agreed and Then and then he hired the individual that I had defeated in the election and the whole attitude changed everything changed.
00:23:54.000It was now very contentious He had withdrawn his There's a desire to deputize my investigators.
00:24:01.000The relationship turned very sour very fast when he hired my predecessor, which is unusual to have a lawyer working in the sheriff's department anyways because statutorily I'm the lawyer for the sheriff's department.
00:24:12.000So it's an unusual move to even hire a lawyer in a sheriff's department.
00:24:15.000You could probably get two deputies for that kind of money.
00:24:19.000So the relationship just soured and it was kind of like they were coming after me immediately.
00:24:24.000And then in late 23, They actually hired then the guy that's running against me, another lawyer, who was a former employee of mine, who's now the Lorain County Prosecutor.
00:25:16.000So really what happened was on October 1st, they charged me with the felonies.
00:25:20.000I was flabbergasted because I was kind of so confident in their inability to ever get anything like that on me that I was kind of boasting in the sense that, hey, all you had to do is go to O'Leary Municipal Court, grab a complaint, you can do it, never thinking that it would actually happen.
00:25:34.000Yeah, because I was very confident that I did nothing illegal.
00:25:39.000What occurred was on October 4th, it makes the papers on October 1st.
00:25:47.000October 4th, the woman that I had a relationship with, she sees it in the paper.
00:25:53.000She's walking in the store and she sees it in the paper and she sees me and my chief of staff, who she was very close with.
00:25:58.000And her instinct was to go, well, what did they do?
00:26:02.000She had no idea that the conduct that they had interviewed her about was actually the conduct they had used to charge me.
00:26:08.000So she was wondering, what the hell did we do?
00:26:26.000You turned our personal life into charges against JD. This is crazy.
00:26:29.000And she was emphatic that she wanted to speak with me.
00:26:32.000And the problem was, I had an order by the court that I was not to speak to her because her lawyer had represented that she didn't want to speak with us.
00:26:39.000So she was trying to get to me to tell me what had happened, but I couldn't speak with her.
00:26:46.000And so she was growing more frustrated and more frustrated.
00:27:30.000So I then, when I made contact with J.D., He started explaining this to me, and I'm very—I approach this work like a surgeon, or how I picture a surgeon would approach an operation.
00:27:48.000I'm single-handedly focused on making the kidney transplant or whatever, however you want to analogize it.
00:27:58.000So I was hearing him, but I was kind of— Of the mindset that those are your problems.
00:29:24.000And I don't care what your opinion is of that man to have the metal to face what he faced and continue on a path of getting anything accomplished, let alone what he accomplished.
00:29:39.000If you don't stand up and cheer for that, the human cost of these prosecutions, you're hearing it right now.
00:29:52.000It's a very un-American thing to do to unjustly accuse someone of crimes and use your position of power to try to arrest that person and jail that person.
00:30:21.000We are supposed to represent freedom on the world stage.
00:30:25.000We're supposed to be the people that have the most freedom of speech, the most freedom of expression, the best path to success if you're a nobody.
00:30:32.000This is supposed to be a place where everybody gets a shot.
00:30:35.000And if you allow the system to unjustly accuse and prosecute people for crimes that are demonstrably false, that's very...
00:30:57.000If you could pull it off, you ruin our faith in what this thing is supposed to be.
00:31:01.000Well, look, I think that quite obviously...
00:31:06.000There are prosecutions that need to happen when someone commits a violent crime, when there's domestic abuse, when there's robbery, all of that.
00:31:14.000But what should not be lost on people, because you saw it play out on a national stage with the president, you are now hearing about it in a smaller, you know, not a small town, but a smaller jurisdiction.
00:31:33.000And the irony of this, it struck me as I was speaking to JD the first time, is here's a man that's fighting for his life.
00:31:43.000And I just, I mean, I'll confess to you, I used it to say, I continually said to JD, imagine you have to go through this for 30 years behind bars.
00:31:55.000So when I finally got through to him that night, we must have spoke eight times that night.
00:32:03.000He knew that there was a problem with this case, and he was creating, understandably so, we don't have time for me to actually sit and listen to you and go through the evidence again, because he had been through it before in the Ohio 4 case.
00:32:20.000So as Dame Fortune would have it, I don't know where I heard that, but the way it worked out is that three or four days after we spoke, The charges against J.D. were dropped.
00:32:47.000So now his problem went away for the time being.
00:32:52.000So he became a lot more singularly focused.
00:32:58.000So by the time I got to Ohio, And I had a team of lawyers that were representing the other three men, and I felt like I had a more captive audience at that point.
00:33:11.000And, you know, what happens from here and what what leads us to today is, in my mind, just as perverse as the irony of him getting wrongfully accused of a crime, because I presented to J.D.
00:33:28.000and, you know, at one point he welled up.
00:33:34.000To prove a negative is one of the most difficult things.
00:33:38.000Our standard is the presumption of innocence.
00:33:42.000When someone is already convicted and they're wrongfully convicted, in order for you to get someone in JD's position there, he was tough on me, as he should have been.
00:33:52.000I had to prove a negative because I had to prove that Al Cleveland was not in Ohio when this happened, which frankly became easy to prove because we were able to show that he was in New York visiting his probation officer on a different drug case.
00:34:07.000He had Damon John, who of Shark Tank fame, was with him the day that this allegedly happened.
00:35:10.000Interesting, because he didn't make a decision until sometime about a week later, I never asked you what your impression was at that moment after we made the presentation.
00:35:25.000I had experience not only with the assistant prosecutor that was involved in these cases, but with the Nancy Smith matter.
00:35:31.000I can't indicate to you how important that was to my thinking.
00:35:35.000And doing 15 years of being a defense attorney, I know how easy it is for this stuff to happen.
00:36:01.000Do you think, is it possible to have a third-party system?
00:36:08.000Like, you know, you have your prosecutors, you have defense attorneys.
00:36:11.000Is it possible to also have an overview by an independent group before anything gets started where people can present their evidence so you can find out if something's totally bullshit?
00:36:23.000Well, Joe, it's supposed to be the grand jury system.
00:38:15.000The prosecution side should be able to divulge their evidence.
00:38:18.000The defense side should be able to divulge their evidence.
00:38:21.000It should be independently reviewed by a group of completely outside attorneys that have no vested interest in the results of this whatsoever.
00:38:32.000It's not a bad idea because people would be less likely to try to commit fraud because then you would have to have some conspiratorial relationship with the people that are the independent attorneys now.
00:39:08.000I don't even want to bring up whatever political cause.
00:39:11.000Just if we could funnel some of that money into preserving innocence, make sure that people are never tried with a crime that they shouldn't be tried with.
00:39:20.000And it's not that you have a bad defense attorney and they have an awesome prosecutor.
00:40:53.000It's a horrible byproduct of that instinct that we have to win when attached to a legal system that could lead innocent people to be prosecuted.
00:41:04.000I was listening to a podcast today about the founding of Jerusalem.
00:41:12.000And one of the cases was a guy who was in trouble.
00:41:52.000It fucking happens It does happen because people want to win they want to win They're playing a game and they're in a system and the system rewards success And if you fucking fail or if you you something falls apart and it looks bad for your career doesn't progress Well, you know where you can start which is an easier fix and If there's accountability, and I say easier fix because I don't want to throw cold water on your idea, it's a fantastic idea.
00:42:19.000But it just seems like pushing, not a boulder uphill, like a mountain and moving it.
00:42:25.000Do you think that's bigger than Bobby Kennedy running the HHS? Yeah, I do.
00:42:47.000So all of these cases where you hear people have been wrongfully convicted, prosecutors don't turn over evidence that would point to their innocence.
00:42:57.000That's what JD was referring to when he said exculpatory.
00:43:00.000That just means that would tend to prove innocence rather than guilt.
00:43:04.000That's constitutionally required that prosecutors turn that over.
00:43:09.000But these prosecutors don't have any accountability.
00:43:12.000And you're going to see in a few minutes when we're going to get to it, what happened after J.D. made his decision.
00:43:20.000What happened between when we filed it and today is if...
00:43:27.000You don't have warm blood pumping through your veins if this doesn't get you in some way.
00:44:58.000If people were more aware of how politically driven some of these prosecutions are, and then you put your finger on the nerve root of what the problem is from the standpoint of human psychology.
00:45:12.000It's been happening since the beginning of time and will continue to happen until people suffer ego death.
00:45:18.000And suffering an ego death requires you to look yourself in the mirror in an honest way and to be able to say four magic words.
00:45:33.000And what stands in the way in my mind of prosecutors just so often not moving from their position is because they can't say.
00:45:46.000I made a mistake, or the office where I work made a mistake.
00:45:50.000You're going to find that one of the judges that denied relief in this case of the Ohio Four was a prosecutor in this office, is friends with the current prosecutor.
00:46:04.000One of the other judges that denied relief is the same judge that denied Al Cleveland post-conviction relief.
00:46:14.000When the Sixth Circuit Court of Appeals, the federal government says, these guys, Al Cleveland is likely innocent.
00:46:40.000You know, whatever it is that just has people, you know, when you get to that point in an argument, this happens, I always give the same example because she's always right.
00:46:50.000You know, you get to a point in an argument where you're taking a real strong position and the other person, in this case, it's my wife, is always, you know, taking the opposite position and then you realize in the argument that you're wrong.
00:47:05.000And it's, oftentimes it's like, I gave you my keys to put in your purse.
00:47:35.000In my experience, especially in a case like this, it's just like the—and that's not to pat myself on the back.
00:47:41.000There's plenty of times I dig in, and I know I might be wrong, but, you know, it's just the inability to say something bad might have happened here.
00:47:51.000Well, and it's protect the state at all times, at all costs.
00:47:56.000But wouldn't it be valuable for the people to know that the prosecuting attorneys are very ethical?
00:48:01.000Wouldn't that make you trust them more and want to support them more?
00:48:04.000Wouldn't that be good for everybody if they just said a mistake was made when a mistake was made?
00:48:21.000Yeah, it was a 94 case, which is interesting because it was happening simultaneously with the same assistant prosecutor as the one that Josh is referring to.
00:48:28.000They were accused she was a bus driver.
00:48:30.000She's now become family to me, and they're big fans, Joe, by the way.
00:48:39.000They were 94. She was a bus driver for a place called Head Start for young kids.
00:48:42.000She was alleged to have driven these kids, after picking them up from their homes, back to another individual's house, a male, and severely abused them sexually.
00:48:52.000Now, the Broadway, which is the road where he allegedly lived off of, is a main thoroughfare through Lorraine.
00:49:00.000The allegations were so wild that, you know, if you can imagine seeing a school bus pull up on the main street, watch little kids go into a house, they were alleged to have been, like, punished by being tied up outside in trees, which is just impossible.
00:49:13.000So this is the alleged abuse that occurred, because what happened was...
00:49:28.000She had indicated that her daughter had been abused by Nancy, the bus driver.
00:49:34.000Now, when the investigation occurred, there was a detective on it that did a very thorough investigation and after months found out that, listen, I don't even think a crime occurred.
00:49:59.000Well, the public pressure, I'm assuming, was rising because the victim, the woman that had the child, was becoming pretty public.
00:50:08.000She was organizing the other parents, because as you well know, you can't get these parents together and start talking about the case because it just compromises so much.
00:50:16.000Now, to the police credit, they would try to tell these individuals, you can't meet and talk about the case, but they did anyways.
00:50:22.000So then a bunch of erratic stories turned into one pretty substantial story that pretty much stayed all the way through.
00:50:33.000It turns out, for example, Joseph Smith didn't even have a basement.
00:50:41.000I mean, that's one fact out of a million facts that are so disturbing about the case.
00:50:48.000And so, when I started to look at it, the funny part is, during the first three or four months of me evaluating it, I had a couple investigators that were with me.
00:50:57.000We were reading only exculpatory information.
00:51:58.000A lot of cases where I ask, where I represent a client in a civil rights case for wrongful conviction, I sometimes give the law enforcement official During a deposition in a civil case, I said, you know, I did it recently for Clemente Aguirre, who was exonerated from Florida's death row.
00:52:16.000I gave the, you know, the crime scene technician, the fingerprint analyst, all of who played a part in his wrongful conviction.
00:52:51.000Because you apologized or because you exonerated?
00:52:53.000No, it was because I... Yeah, I mean, it was that.
00:52:55.000I mean, the assistant prosecutor Rosenbaum that you're referring to with these cases, he was the assistant prosecutor.
00:53:01.000He was heavily tied in with that office because he had been the chief prosecutor for a very long time under an individual by the name of Greg White, who was the Lorain County prosecutor at the time.
00:53:11.000Now, Greg White doesn't get mentioned.
00:53:13.000You probably never even heard his name.
00:53:43.000And so when I reviewed two cases, Joe, two cases from this assistant prosecutor, I found that six people were wrongly convicted and did about 162 years in prison.
00:54:09.000But I think it was pretty scary, the thought of me going through all those cases, and I think they knew that I was open to that type of stuff.
00:55:01.000I think we both canceled our Thanksgiving plans and got into a lot of...
00:55:06.000I was annoyed because when I left Ohio, it was so obvious to me that these men were innocent and that there was a terrible mistake made and a federal court never goes out of their way to say something like this.
00:55:54.000You know, all these prosecutors that are trying to protect convictions and the man that's the county prosecutor now, in his motion to withdraw JD's decision to grant these men a new trial and then dismiss the case.
00:56:09.000We're going to get to this in a minute.
00:56:28.000And here's one court that says, had the jury also been able to consider Avery's unsolicited 2004 recantation?
00:56:39.000That's when he went into the FBI. The 2006 recanting affidavit, that's the one that Al Cleveland had in his post-conviction filings.
00:56:49.000Evidence that Cleveland was in New York a couple of hours before Blakely's murder and could not have flown from New York to Ohio in time to commit the murder, along with the fact that there was no other evidence tying Cleveland to the crime, quote, Now they're quoting a case in this opinion.
00:57:08.000It surely cannot be said that a juror conscientiously following the judge's instructions requiring proof beyond a reasonable doubt would vote to convict.
00:57:30.000That is such a rare thing for a federal court to say those things.
00:57:36.000That's the federal court telling the lower courts in Lorain County, you have to give Al Cleveland a hearing.
00:57:47.000It's at that hearing where the judge advises Avery Jr., you know, you're basically going to get charged with perjury.
00:57:53.000So I make the presentation to JD, and he spends roughly the next five days.
00:58:00.000You know, at some point, we were joking to each other, and there was a lot of arguing because he wanted to go out to the apartment where the alleged beating took place, and he did, and he was reading lines of transcript from four different trials.
00:58:52.000I'd be curious as to what your thought process was before you finally told us.
00:58:59.000I couldn't believe they were ultimately convicted.
00:59:00.000I couldn't believe that there were four trials where people believed Avery.
00:59:04.000You know, I never told you this story, Josh, but I knew one of the lawyers for one of the defendants, but I won't mention names.
00:59:11.000And I heard from a good source that would hang around with him in the office on Saturday that almost every Saturday, one of the defendants would call him.
00:59:18.000And after the phone call, he would cry because he would say, that man does not deserve to be there, and I screwed it up.
00:59:26.000And so, when I heard that, it made sense to me because, and Josh is right, I was looking for some reason why I was making the wrong decision.
00:59:35.000You know, it's a big decision to decide to maybe try to free four people from prison.
00:59:58.000But it was almost therapeutic for me because I had been so much stress on my own case.
01:00:02.000It was nice to divert attention away from me and try to think about something else.
01:00:06.000So I really immersed myself in it, and I went to crime scene, which I always believed defense attorneys should go.
01:00:12.000To every case I had, I went to the crime scene.
01:00:15.000I learned something that I didn't know.
01:00:17.000But I eventually got there, and it was extraordinary, though.
01:00:20.000Not only was this case just on this individual Avery Jr.'s testimony, he might have been the worst witness I've ever seen in my life.
01:00:27.000I mean, so not only was there no physical evidence that linked these men to it, the only witness that was present was perhaps the worst I'd ever seen.
01:00:35.000And what the federal court is saying is that, yeah, they could damage his credibility at trial, but they didn't know, obviously, because he does it later, that he made the whole thing up.
01:00:47.000And they didn't know that he's admitted he made the whole thing up.
01:00:53.000And importantly, who walks in unsolicited to the FBI and says, here's what I did.
01:01:01.000And I want to clear my conscience and I want to tell you what I did.
01:01:08.000And I knew, I started to feel like, oh, okay.
01:01:13.000We're about to get hometown, small town, something bad is happening here.
01:01:18.000Because this should have been a moment.
01:01:23.000Here we are, myself, my co-counsel, we're about to change the trajectory, not of just these four men's lives, but of their families that have lived under the crushing weight of these wrongful convictions for three decades.
01:01:40.000My client, John Edwards, and Al Cleveland, and the other two as well, Lenworth and Benson, you know, John is in, Al is out, but Al is suffering.
01:01:51.000You know, the most horrific psychological damage you can imagine.
01:01:56.000And John calls me from prison all the time.
01:02:00.000J.D. tells us that he is going to file a joint motion, joint meaning between defense counsel and the prosecutor, to grant these men a new trial.
01:02:22.000And then the 2006 affidavit, and that once the new trial was granted, he would dismiss the case.
01:02:29.000So that all gets filed in front of one judge because it really should have been a matter of procedure.
01:02:38.000In all my years of doing this, 25 years, 24 years, I've never seen a judge do anything other than have the hearing Filed for and asked for, especially when it's joined by the defense.
01:02:54.000So all of a sudden, the judge that this has filed before is silent.
01:02:59.000Now, the clock is ticking because now we have the whole month of December, and after January 6th, he's out of office.
01:03:08.000And right away, within a few days of us filing this joint motion...
01:03:15.000There's a newspaper article that comes out.
01:03:49.000And I thought that that was really interesting because he's someone that worked in that office.
01:03:56.000He's someone that actually played a role in some of the investigation that I believe should have taken place.
01:04:08.000When he was a prosecutor in that office, and he did not have the benefit of the thorough investigation that J.D. had done, and he's a private citizen until he takes office.
01:04:23.000And all of a sudden, a brief gets filed from the Attorney General of Ohio saying, whoa, it's a brief that gets filed to the court where we filed this joint motion for a new trial.
01:04:37.000And the Attorney General gets involved.
01:04:40.000You don't have to look far to see other Attorney Generals getting involved in criminal cases, right?
01:05:06.000When the judge, one of the judges in the case, because I won't bore you with the details, but the cases get sent out to different judges that were assigned to each man's case.
01:05:20.000And what the judge says is the AG's motion, this is a quote, this is from an order from the Honorable Chris Cook.
01:05:33.000The AG, and this is dated December 23rd, the AG's motion is not to advocate for either party to this litigation, which in most situations is the sole purpose of filing an amicus brief, but instead to ask this court to delay ruling on the pending motions until such time as the newly elected Lorain County prosecutor is in office and the victims can be notified.
01:06:00.000Neither of these purported reasons to opine on this litigation are persuasive or necessary to aid the court.
01:06:08.000First, the AG argues that the current prosecutor will be leaving office shortly, referring to JD, within the next two weeks, in fact, and any ruling should be delayed in order to allow the incoming prosecutor to evaluate the matter and weigh in on the issues.
01:06:27.000All elected officials eventually leave office and to suggest that simply because a newly elected prosecutor is taking over, a pending matter should be delayed for the incoming official to review is unwieldy, inconvenient, invites delay, and not how the system operates.
01:06:46.000Moreover, why should rulings or evaluation of this case be singled out and subject to delay in favor of the new administration but not the other 150 pending criminal cases on this court's docket?
01:06:58.000At the end of the day, the concept that a court or any government entity, for that matter, should come to a grinding halt because a newly elected official will be taking over is not how government should or does work.
01:07:42.000Another order filed by the same judge.
01:07:46.000And because we had moved for an emergency hearing, because in our mind, this incoming prosecutor, opines on the case in the paper, had worked at that prosecutor's office and obviously had some feeling about the case.
01:08:05.000And if he had taken such an interest in talking to the press, We were concerned and filed an emergency motion not to let these men suffer any longer.
01:08:16.000So the same judge that you just said shout-out, which was exactly my sentiment, issues another order.
01:08:27.000You could not get a more stark 180-degree turn than this.
01:08:35.000How can it be possibly an emergency that a hearing and potential ruling be accomplished in a matter of weeks for a case in cases that have been pending for almost three decades, not to mention four years on the current prosecutor's not to mention four years on the current prosecutor's watch?
01:08:54.000Moreover, no rational person would conclude that a change in county prosecutor constitutes an emergency, an inconvenience to the movements, arguably, a delay in rulings, no doubt, but an emergency?
01:09:21.000First, the movements go to great pains to paint the incoming prosecutor as incapable of fairly and rationally evaluating the defendant's claims of innocence and requests for new trial.
01:09:33.000To pause there, because this man had sat and listened to and dove through and...
01:09:40.000It tore through this entire trial record.
01:09:44.000So, yeah, we had concerns that we would face further delay.
01:09:52.000The court will call a hearing and grant the relief.
01:09:55.000So the judge goes on to say this effort is unfounded.
01:09:59.000Contra the movement's reliance on a newspaper article, that's the one I was talking about, the same article quotes Prosecutor-Elect Silla as saying he would review the matter anew, just like Prosecutor Tomlinson did.
01:10:14.000And it goes on to say, Second, even more troubling is the movement's assertion that Tomlinson's successor has no authority to review agreements made by Tomlinson.
01:10:27.000I've never seen this in an opinion before.
01:10:35.000The movement's right that Mr. Tomlinson's successor has an obligation to honor the good faith decisions made by the prior administration, J.D. And it then goes on to use the Head Start case, the Nancy Smith case and Joe Allen, where he granted these people, he exonerated these people.
01:10:57.000He then goes on to throw it in their face, in my opinion.
01:11:03.000And he goes through personalizing this and saying that because J.D. Tomlinson exonerated these people, thereby undoing a prior administration's prosecution, that why should the same not apply to you?
01:11:20.000So in other words, three days before he says, why should justice wait?
01:11:25.000Three days later, he says, wait a second.
01:11:56.000But I can tell you that you've taken position A and then you've taken position Z. So what happens is on these judges, one of the judges, the one that denied Al Cleveland post-conviction relief that said to Avery Jr., You know, there are potential consequences here.
01:12:19.000He denies the joint motion for a new trial for Al Cleveland based on nothing.
01:13:14.000And to make these men suffer is truly, at this point, it's really, really difficult to understand.
01:13:23.000The craziest part about these is that this Judge Cook, in that first opinion, he said the AG cites as one of the reasons why this should be delayed is that the victims have to be notified.
01:13:35.000He notified the victims, and the judge calls them on it here.
01:14:25.000So I did have an experience, and I know that the relationship that he shares with Attorney Rosenbaum, who was the assistant prosecutor at that, I know that it was a mentor-protege-type relationship.
01:14:35.000And so the idea that he's going to be objective in undoing such a major case for someone that's arguably his mentor is almost impossible to conceive.
01:14:44.000And so I knew that I had to be quick about it, because if I wasn't quick about it, I don't think it would ever get done, and I still don't think it'll ever get done.
01:14:51.000Well, I refuse to think it won't get done.
01:14:55.000It's interesting to me that I had spoken to Mr. Silla when he took office, and my conversation with him wasn't about all the reasons they're innocent.
01:15:08.000He said, you know, there's this phone call between Al Cleveland and his dad where they're talking about...
01:15:20.000It's about them giving him money in 2006 for his expenses to put him in a hotel room so he could feel safe with a court reporter and to do the affidavit.
01:15:32.000And I felt like saying, you know, so let me get this straight.
01:15:43.000He then tries to extort your office for more money in exchange for testimony.
01:15:48.000He has gone into the FBI before this affidavit was ever a thing.
01:15:52.000He went into the FBI and admitted he made the whole thing up and you want to talk about a conversation between Al Cleveland and his father when they're talking about whether or not they could reimburse him for expenses if they have to fly him to Florida or get him to a place where he feels safe because he felt like if he told the truth again.
01:16:10.000That there would be consequences for him because he was going against his father.
01:16:14.000He'd be labeled a snitch in the community.
01:16:16.000And, you know, I then emailed him and asked him for a meeting.
01:18:02.000But I do find, I find it really difficult to understand why he took such an interest in this case, such that he blocked justice from happening and withdrew the state's position.
01:18:21.000How about hear us out and meet with us before you withdraw?
01:18:29.000How about you hear the evidence before making it the first official act or among the first official acts?
01:18:39.000I'm not optimistic going in, but I can tell you this.
01:18:42.000I have found something as recent as yesterday where alternative suspects were brought to the attention of the Lorain County prosecutor.
01:18:53.000And wouldn't you know, That the person assigned to investigate these alternative suspects and to liaise with the police department was one Tony Sillo?
01:19:05.000I saw that document for the first time yesterday.
01:20:01.000They should have been out in December.
01:20:04.000And to continuously, needlessly delay the process, hard to imagine.
01:20:10.000You know, Joe, I think we're also getting in this dangerous territory where we're not—I mean, the idea that you could ever prove them guilty with this evidence objectively is impossible.
01:20:19.000Now we're getting in this dangerous territory where we're having to prove their innocence.
01:20:22.000And that's significant because that is not the standard.
01:20:27.000And so when the case is that bad that you have to then just continue to try to find out ways to prove these guys innocent, which is—it's difficult.
01:20:52.000What I want to do is do what I did with JD. Is to say, you know, how many times in your life do you have a chance to say, you know, something was really wrong?
01:21:14.000I mean, how many moments are there when you have the ability to impact other human beings in a way to set them literally free and to end the most unfathomable of nightmares?
01:21:31.000I'm trying to appeal to, you know, I don't want there to be some...
01:21:41.000One thing I know for sure is that no one has been able to show me any physical evidence, any eyewitness account, and actually, we have been able to prove their innocence.
01:21:57.000What constellation of fate would come together so that you could show To a factual certainty that Al Cleveland was not in Ohio on the night these killings took place.
01:22:12.000He meets with his probation officer and he's seen by multiple people.
01:23:32.000I think he killed her and told me to tell that story to cover up not only his guilt and killing, but he did know Marsha Blakely.
01:23:38.000There was some reports that they had a contentious relationship.
01:23:42.000So, you know, it's very likely that, you know, the two individuals that implicated these individuals may have been involved with the crime.
01:26:29.000You're so lucky you didn't have to shoot somebody who was stealing money from you because you were both involved in some crime together and he was going to kill you.
01:26:36.000And all of a sudden you're in jail and you're like, what the fuck have I done?
01:26:41.000There's people out there that are committing crimes wishing they didn't have to.
01:26:45.000Wishing they had some sort of pathway to life or some life skills or some education or counseling or mentorship or something that have given them a path to get out of there and be what everybody wants to be.
01:26:56.000A normal, healthy person who's enjoying their life.
01:27:01.000Enjoying their family, enjoying their friends, and hopefully you get to make a living doing something you like doing too.
01:28:16.000But one of the things that people should read, if you want a better understanding of what it's like to grow up a minority in this country, or black in America, again, four black men in a very white community that were from out of town and drug dealers.
01:28:40.000And before you go judging what is going on in terms of your perception that people should pull themselves up by their bootstraps, you try being born into a caste system.
01:28:57.000Oh, C-A-S-T-E. C-A-S-T-E. And we are a country.
01:30:47.000That, you know, if more people had your sentiment, Joe, right, that sometimes it's a little bit deeper than you think as to why someone resorts to committing a crime.
01:30:59.000It's almost always deeper than you think.
01:31:00.000I mean, I'm not a full believer in determinism because I think will is real.
01:31:06.000I think free will, there's just an element of will, and that's one of the reasons why we seek inspiration from others, right?
01:32:20.000I mean, the cast by Isabel Wilkerson, I feel like a paid spokesperson for it, but she talks about how, you know, there's very real consequences from the practical implications of what Jim Crow laws did to fragmenting our society.
01:32:38.000It's not as if this went on a thousand years ago.
01:33:02.000You know, and here I am an adult and there's people alive that experienced that went through it and then their children went through it because they carried that trauma.
01:33:10.000And you know resources are so important when it comes to defending yourself too.
01:33:13.000I mean, I remember when I was a kid I watched the OJ trial and what eight million dollars can do is pretty extraordinary.
01:33:20.000You know, you can have juries that are simultaneously going on, you're testing theories out while the trial is going.
01:33:25.000And, you know, a lot of these guys get charged with crimes.
01:33:28.000They kind of get ushered through the system.
01:33:29.000You know, sometimes they'll get a good appointed attorney, sometimes they won't.
01:33:32.000That one, to me, seemed like that was gonna go that way anyway because of Rodney King.
01:33:37.000I don't think that had anything to do with being a good jury system or whether or not the prosecutors weren't as good as the defense attorneys.
01:34:15.000I remember where I was when that verdict was read.
01:34:18.000I was shucking oysters at Barnacle Bills on North Monroe.
01:34:23.000I remember feeling like something really awful had just happened, but I understood it because of Rodney King, and I understood it not just because of Rodney King, because of what had happened to the community in Los Angeles that for decades had been abused by police.
01:34:50.000Begets another and whether that's rough justice, you know, I don't even feel like I'm in a position to say I don't think that there's ever been a more guilty person put on trial than O.J. Simpson.
01:35:27.000It's so difficult because, you know, one thing that always stuck with me about that case is the, and I won't mention them by name, the moral high ground that some of the lawyers involved have taken, you know, on...
01:35:41.000Various social and criminal justice reform issues.
01:35:44.000And always in the back of my mind, I'd be like, you fucking defended O.J. Simpson.
01:35:50.000And the second part of it is the human cost behind that tragedy also.
01:35:55.000I have these seared images into my brain of that Goldman family, the sister and the father, where they were very outward with their torment.
01:36:09.000And I recently watched the—I'm a sucker for it, I guess I'm admitting it—for the true crime genre, but I watched the latest documentary.
01:36:32.000And, you know, Kim Goldman is still—this ruined her life.
01:36:38.000On the flip side, you have these, you know, when there's a wrongful conviction, that was in my mind a tragedy going the other way, but when there's a wrongful conviction, it's not just the people that are in there doing all the suffering.
01:37:31.000And, you know, the way that he was charged with a crime without a grand jury.
01:37:36.000And I don't think that there's a person among us that if in your worst moments, if someone was recording you and you're saying things you wish you didn't say to a significant other, that's what he did.
01:37:54.000There are things that I've done that if someone was recording it.
01:37:57.000Or things that I've said that I wish I didn't do or say that, you know, but for the grace of God, I fucked it up.
01:38:08.000But, you know, I mean, anyone in their private moments, you know, and then to just use that to weaponize and undermine, you know, to me, is he a perfect man?
01:38:28.000He's a human that errs, just like all of us.
01:38:32.000And I think we need more prosecutors, more judges like this man that have been on both sides of it and are willing to set their egos aside, willing to suffer whatever consequences come from it.
01:38:46.000You know, he told me at one point, when he was nervous about doing this, these people ruined my life because I exonerated.
01:38:54.000He said, they've been after me ever since.
01:38:57.000And the fact that that sort of one-upsmanship and that competitiveness that you referred to earlier, it's just sad to me that we can't get over ourselves enough.
01:39:08.000What bothers me so much is that I gave them that opening.
01:40:40.000All this stuff that you revealed will cause people, and let's be as charitable about this as possible, to just review things and maybe take the correct approach.
01:41:10.000If there's more lurking beneath, it's going to get found out at some point.
01:41:15.000You know, we filed a public records request with the AG's office so that we could see what communications occurred between, if any, between the incoming prosecutor, Sillo, and Yost, who's the AG of Ohio.
01:41:32.000And, you know, at the time this decision came out, the first decision from Judge Cook...
01:41:37.000We filed a public records request with him, and he sent it to us.
01:41:43.000And it turned out that, I don't know if it was before or after this decision, but this guy Rosenbaum was the one, I believe, that made the request or that sent an email to Judge Cook saying, you were at the Lorain County Prosecutor's Office in the past.
01:42:01.000Maybe you shouldn't be sitting in judgment of this.
01:42:04.000So there are communications that must exist, I would think, between the AG and the prosecutor.
01:42:09.000But yeah, all this will come to light, and we're not going anywhere.
01:42:13.000We're going to keep on pushing until—and the easy thing to do is just—all we're asking is look at the objective facts.
01:42:22.000I think what would help in terms of reform is what's the downside of hearing this out publicly?
01:42:32.000Let me make my presentation to you and make it a public hearing.
01:42:38.000What's the downside of the community knowing what evidence exists against these four men or the lack of evidence?
01:42:48.000And I just hope we end up connecting with them on some sort of human level so that they can put whatever it is aside that is causing them to have this pushback.
01:43:01.000And, you know, these—I used to be way harder on myself about making a change happen, and you know this because you've watched my evolution in that regard.
01:43:12.000And I just realized we just got to keep, you know, building the sandcastle one grain at a time.
01:43:17.000And when you—again, I said it before, I'll say it again—when you walk hand-in-hand with another individual and helping restore their freedom, I don't care.
01:43:31.000Yeah, there's no drug, there's no material, but there's just nothing that can match that feeling of playing a role in that and helping them just live out their days breathing free air.
01:43:42.000You know what I find most interesting, and Nancy exonerates this, is the lack of bitterness is pretty amazing in some of these exonerees.
01:43:51.000You're dealing with somebody that did 15 years for a crime, not only that she didn't commit, but that no crime occurred, and she's still not bitter.
01:43:59.000And they still fight her at every moment.
01:44:01.000Right now she's battling, you know, there's a statutory remedy for getting paid when you're an innocent individual when you're in jail.
01:44:06.000But you have a relatively high standard of proving you're innocent to get the money.
01:44:10.000There's nobody in a better position to prove they're innocent than Nancy Smith and Joseph Allen, and they still fight them tooth and nail every day.
01:44:16.000I mean, after the case exonerated them, I tried my hardest to...
01:44:22.000Forgo the interest of the state and I actually stipulated in the motion that they were innocent which is very unusual because obviously that's Acknowledging that the state screwed up pretty big and because my goal was to get her paid I mean, you know, I got criticized, you know, from some people that basically, you know, that shouldn't be my role.
01:44:41.000But my role is, you know, if hurting the state represents justice, then that's what happens.
01:46:41.000And he said, you know, I'm a Republican.
01:46:45.000And growing up in this party, it was all tough on crime.
01:46:51.000And now I sit through the claims bill process.
01:46:54.000A claims bill in Florida is when you have been wrongfully incarcerated and you're asking the legislator to compensate you.
01:47:01.000And he said it changed my entire perspective on you can be for a position or against a position, but you don't understand the subtleties and the vagaries until you're in it.
01:47:18.000And then he took out his card and gave it to me and he said, if there's any way I can help, there's some bills pending.
01:47:23.000And that kind of openness and that kind of, you know, he struck me as a guy that was super comfortable with himself and secure with himself to be able to have that approach.
01:47:35.000And if we could all have that approach, I'm not right about, I've fucked up plenty.
01:47:40.000I'm not right about every position I take.
01:47:43.000I'm just trying to find, you know, some common ground.
01:47:47.000The humanity in all of us should always bend toward the truth, right?
01:47:53.000And that's what we mean when we say we want justice for these men.
01:48:17.000And I saw one of the most unbelievable interactions I've ever seen in a courtroom still to this day was Al Cleveland begging William Avery Jr. to tell the truth.
01:49:32.000Saying it makes a huge difference is a terrible understatement.
01:49:35.000In my wildest dreams, if someone would have said to me, the prosecutor that agreed to set these men free would be sitting next to you on the show, I would have bet the house against it.
01:49:50.000And I think that this is just a remarkable forum to be able to...
01:49:57.000Tell these stories and to get into the level of detail where we can touch people.
01:50:02.000And there's too many people in criminal justice reform that don't extend their hand to prosecutors and people in law enforcement.
01:50:13.000And it's been an eye-opening and incredibly rewarding experience to get to know these folks that feel just as passionate about issues that are on the other side.
01:50:23.000And that's what has led me more to the middle.
01:50:27.000And, you know, I thank you for your humanity, JD. And I hope you do run for something again because we need more people like you in those seats.
01:50:35.000Well, you know, I appreciate you saying that.
01:50:37.000I think that, like you said, humility is important.
01:50:39.000And I've always tried to pride myself on admitting when I'm wrong and knowing when I'm wrong and knowing when I don't know.
01:50:47.000I think one of the problems I see in society now is like everybody wants to know and they don't know.
01:51:03.000And so I try to always put my ego in check.
01:51:05.000And I'm telling you, I can't stress enough that doing defense work is really what allows that.
01:51:10.000Vision for me to kind of understand where it can happen because I've had innocent clients and in my experience, you know, it was most likely domestic violence cases because, you know, passions arise, there's cheating going on, there's infidelity, you know, emotions run high, it's easy to make accusations.
01:51:28.000Now, obviously, I got to make a caveat.
01:51:29.000There's very terrible domestic violence cases that are awful.
01:51:32.000But because of the dynamic between the victim and the perpetrator, that seemed to generate, in my view, any cases that I had that were innocent.
01:51:41.000Typically were cases like that where, for example, the allegations didn't match up.
01:51:45.000So, you know, someone said they struck their head on the curb, but there was no injuries, you know, stuff like that.
01:51:50.000But it's so easy to get probable cause.
01:51:53.000And so, you know, I was so lucky when I got charged.
01:51:56.000I joked around with Jim Burge, my co-defendant and mentor for many years, who taught me a lot, was, thank God I've got the smartest lawyer as a co-defendant ever.
01:52:04.000You know, thank God, you know, because, I mean, you know, I was, and I also learned that I'm probably not the best client as a lawyer.
01:52:12.000I used to bitch about clients like me.
01:52:21.000And shout out to Mike Cameron, who was our lawyer, who really had to deal with me.
01:52:25.000But the truth of the matter is, when it happens to you, the only thing I disagree, Josh, is even if it didn't happen to me, I knew that it could happen.
01:53:33.000And I almost trust police much more than I almost do prosecutors because it seems like there's an inherent desire for them to get it right.
01:53:41.000And it's more of the prosecutors that want to win.
01:53:44.000And I just had such a great experience with law enforcement.
01:53:48.000And they changed my mind because I didn't really like the narrative and I criticized my own party about it.
01:53:53.000The anti-law enforcement rhetoric is just unwarranted.
01:54:17.000And, you know, I would get with the officers, and I had a policy, which is a little unusual, where if I made a decision that a shooting was good, I would make a decision, that's it, it never went to the grand jury.
01:54:27.000It's easy for prosecutors to kind of just dish it off over the grand jury, then that's not their responsibility anymore.
01:54:33.000But I felt like I wasn't going to put something through the grand jury that I didn't believe in.
01:54:36.000So I had officers that, you know, the difficult part about being a police officer is when you have to use that lethal force, then you get people armchair quarterbacking it for the next six months.
01:55:19.000Yeah, he was just talking crazy Maybe he was on drugs and the cops are trying to calm him down for like the longest time It's a long prolonged video.
01:55:28.000He escalates and then he eventually gets physical And I think they tried to tase him, and it didn't work.
01:55:34.000And then they wind up shooting this guy, and the officer broke down in tears when it was over.
01:55:44.000The other officer was comforting him, trying to get him to breathe and calm down.
01:55:47.000But when you see it in real life like that, you see how it actually went down, like how they're trying to make these split-second decisions.
01:55:57.000Big crazed guy who's out of his fucking mind is running at you.
01:56:38.000And then you get sampling bias, because all you see is negative, and so you start thinking.
01:56:43.000I'm sure you saw that Harvard professor who conducted that study.
01:56:46.000He did a study about violence and police encounters and he found it was like it wasn't biased towards black people and people attacked him.
01:57:36.000But those are statistically insignificant almost.
01:57:40.000When it comes to the grand scheme of things, I mean, it doesn't happen very often.
01:57:43.000When it does, we have to punish it harshly.
01:57:45.000But I grew more respectful of police officers the closer I got to them.
01:57:48.000I think the big problem that people have these days is you see something and you see it often and you see it replayed.
01:57:58.000And it's just like you said, it becomes a slideshow in your mind, and it's hard to know how frequent the occurrence is.
01:58:06.000I had an interesting thing happen to me recently where my son Carter made the travel baseball team, and I'm like, he's like the new kid on the team because we moved from New York.
01:58:18.000And we went to our first tournament, and I'm the new dad.
01:59:40.000He's quiet and soft-spoken, and my daughter was going to the county fair, and there's rough nights, some nights where kids try to start fights, and I was talking to him about it, and he goes, you know, I do security detail there, and I'm not there that night, but I'm going to tell the guys, you know.
02:00:26.000And we're in a society where you're so quick to pick a side and to label something.
02:00:32.000And I'm just trying to do a lot less, be quicker to listen and slower to speak when it comes to making some big judgment about a group of people.
02:00:43.000Because, you know, you've got to take each of these situations individually.