October 31, 2023 • 52 mins
Justin Brooks is a professor, attorney, and former Founding Director of the California Innocence Project. Sara and Jim speak with him about his incredible work handling wrongful convictions and freeing innocent people from prison. Justin also discusses his new book, ‘Why You Might Go To Prison Even Though You’re Innocent’, as well as what lead him to take on these very important cases post-conviction. Sara and Jim also ask Justin about his work on the case of the wrongfully convicted football player, Brian Banks, and how Brian ultimately regained his well-deserved freedom. The conversation wraps with stories of Justin’s time teaching criminal justice in Latin America.
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Music – Caleb Fletcher
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Episode Transcript
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(00:22):
Hello everyone, and welcome to thePresumption Podcast. I'm your host, co
host Sarah Zari and Hi Jim Griffin, Hey Sarah, and Matt our producer,
our wonderful producer. And today we'rejoined by a very special guest,
Justin Brooks. Justin, Welcome tothe podcast. Justin is a lot of
(00:46):
things. He's a professor of practiceat the University of San Diego School of
Law, where he teaches criminal procedureand directs an ll M program in compared
to law in Spanish. He alsoadministers a national Mood Court program in Mexico
and coordinates the world of thirty fiveinnocence organizations in Latin America. Will definitely
want to tap into that in thisconversation. He was the founding director of
(01:07):
the California Innocence Project for twenty fouryears until earlier this year, and under
his direction, the project freed fortyinnocent people from prison, including someone we'll
be talking about also as NFL playerBrian Banks. He's been recognized several times
by the Los Angeles Daily Journal asone of the top one hundred lawyers in
California, and in twenty ten andtwenty twelve, California Lawyer magazine honored him
(01:29):
with the Lawyer of the Year award. He was named International Lawyer of the
Year by the California Bar International Sectionin twenty twenty, and in the same
year was named Champion of Justice byone of my favorite organizations I was.
I'm a life member and was onthe board National Association of Criminal Defense Journeys.
He's the author of the only legalcasebook devoted to the topic of wrongful
convictions, and the author of YouMight Go to Prison Even Though You're Innocent,
(01:53):
a book that details the causes ofwrongful convictions, based on his experience
of more than three decades as acriminal defense attorney and innocence organization director.
I mean, how old are you? Three decades? He's portrayed by He's
portrayed by Academy Award nominated actor GregKuneer in the feature film Brian Banks.
(02:13):
So welcome, welcome, justin.The first thing I was going to start
off with is your book You Mightgo to Prison Even Though You're Innocent,
And you know Jim and I knowthat very well. I think came up
recently with his case Alec Murdoch,who I think was wrongfully convicted on murder
(02:34):
charges. It's, you know,a very fascinating book that takes a deep
dive into sort of the flaws andprejudices of the legal justice system, I
mean, the criminal justice system.And you cite to some real life instances
cases that you were involved in wherethe person was innocent and was sent to
prison. Share with us why youmight go to prison even though you're innocent.
(03:00):
Sure, thank you for starting withmy book. Usually when you do
podcasts and stuff, it's the lastthing people talk about starting up with It
available now on Amazon. But soI was asked by publisher to sit down
and think about the last thirty yearsdoing innocent cases and kind of think about
categorizing them. And it was areally interesting task to get into because when
(03:24):
I started in this work, asyou guys know, you know, people
were deeply cynical whether there was anyoneinnocent in prison. And that used to
be the old argument. You know, we talk about Ruben Hurricane Carter in
a few cases, but you know, the pre DNA world, there weren't
these definitive cases. And now afternow decades of DNA and we've documented thirty
(03:50):
three hundred cases of wrongful conviction inthe United States. We now can kind
of reflect on the why why didthese people go to prison? What are
the different categories? And some ofthe things I thought about were more obvious
than other things, like we've beentalking about bad identification procedures for years,
and we've done a lot of reformsin that. We've talked about false confessions.
(04:13):
We now know that seventeen percent ofwrongful convictions involve people actually confessing.
But then there were other topics inthe book that I got into when I
started thinking about my own cases.For example, you know, people who
live with people they're in relationship withincrease their chances of being wrongfully convicted because
often the person comes home and theyfind a dead body, they will always
(04:40):
be a suspect. Because more thanfifty percent of homicides in the US are
domestic, so people don't realize oftenthat their suspects, but if it's their
partner the ends up dead, theywill be a suspect. And I had
two cases like that that we ultimatelyled to exonerations, and they were basically
just convicted because witnesses come forward tosay there's problems in the relationship, which
(05:03):
of course there are in more thanfifty percent of relationships, since that's about
as many endo divorce in southern California, and then the police can put them
on the scene, so they haveopportunity, they have motive, and now
they're on their way to a wanngfulconviction unless there's another suspect involved. And
I think that's something people don't reallythink about. Another topic I get into,
(05:26):
which you know, I moved toCalifornia twenty five years ago, and
it took me a while to figureout that the further you get from the
water, the weirder it gets.But practicing in those desert counties, I
find that, you know, there'sthis sort of opposite of over policing.
So I look at the dynamic ofthere's over policing that happens in urban areas
(05:50):
that often leads to wrongful convictions,like rounding up all the kids on a
street corner because they're all assumed tobe dealing drugs. If a couple of
them are dealing drugs, can allbe charged with possession and distribution. And
you see those wrongful convictions, whichI saw early on in my practice in
Washington, DC. But in therural areas, clients like my client Bill
(06:11):
Richards who came home and found hiswife beaten to death in the middle of
nowhere. They just don't know howto process a homicide scene, so they
contaminate all the evidence. They don'tdo time and death analysis, and by
the time competent people take a lookat it, it's too late. All
the evidence has been destroyed. Andalso in those small towns, they are
much more resistant to lawyers coming inand reopening cases and looking over their work.
(06:39):
So throughout the book I look atthese different causes. Actually, the
first title of the book was topten reasons you might go to prison even
though You're innocent, but my publisherthought that was too click baby. Yeah,
yeah, it's a great book title. I gotta say, I love
it. So it's largely because offalse confession, confessions, shoddy investigations,
(07:00):
right, Yeah, those are differentchapters. So Chapter one, the first
chapter, is the chapter that startedmy work in innocence work, and it
was that thirty years ago I readabout a woman on death row in Chicago
who was sentenced to death on aplea bargain, and I thought, how
in hell did she get the deathpenalty on a plea barg in a twenty
(07:20):
three year old, and I metwith her on death row. She was
scheduled to be executed, and shetold me she was innocent, and then
she didn't understand what her lawyer haddone. She didn't really go to court,
she'd hardly talk to her lawyer,and her lawyer pled her straight up
to double homicide and got the deathpenalty. And I started investigating that case
with my students, and we ultimatelyable to prove her innocence. And the
(07:44):
case was so shocking to me thatI literally quit my faculty position in Michigan
and came out to California to startthis project. And it was just so
The first chapter in the book isyou hired the wrong lawyer. She did
what I've seen a lot of peopledo, is that she had a very
high profile case, so very competentpublic defender, This woman who'd handled hundreds
(08:09):
of felony trials was assigned to her. And she fires this competent lawyer,
and her friends just hire a lawyerin the neighborhood, give him a ten
thousand dollars retainer, and he doesn'teven do this kind of work, and
he just goes and pleads her straightup and gets the death penalty. And
so I start the book with tryingto educate people to understand the way lawyer
(08:31):
appointments work. What public defenders arethe dim street public defenders and private attorneys
the contracts. I mean, California, for example, has it all.
We've got great public defenders offices,we've got great private lawyers, but we've
also got terrible private lawyers. Wealso have panel lawyers and alternate public defenders.
We have a lot of options incase of conflicts. But justin to
(08:52):
your point, you know, Ithink there's this myth that public defenders and
Jim and I have talked about thiswith other guests too, there's this myth
that somehow well, you know,getting a private lawyer, any private lawyer,
is better than a public defender.There's even a joke, you know,
people refer to public defenders as publicpretenders, and it's like no publics.
You know, there's some really greatpublic defenders, and if you don't
(09:16):
have the resources to get a reallygreat private lawyer, then that that is
what you should do. You shouldstick with a public defender. My last
question before I turn it over toJim, is, uh, you know
this is something you also address inyour book. We know that a conviction
is life changing obviously for anyone,irrespective of what the sentence is, but
(09:39):
you specifically talk about this in yourbook, about that impact on somebody who's
wrongfully convicted. What have you learnedin your decades of work with the Innocence
Project about how a conviction impacts somebodywho's wrongfully convicted. Oh, the circle
of devastation is so wide, andpeople really don't see it because you know,
(10:03):
in innocence work, first of all, people only really see our successes,
right. The media is not interestedin the failures, and they're not
even really interested in the case.Is that much until you win them,
you know, getting their attention ona case, no matter how good you
think it is. There's very fewcases that capture the imagination of the media
and the general public, unless you'vegot a great venue like Netflix or you
(10:28):
know, your podcast can do thatwhere people can really hear the whole story,
so they don't see the failures.They don't see how devastating that is
for everybody. And even when youwin these cases, and even when you
walk people out and they see thatfootage of the hand in the air and
everybody's happy. They don't see thedevastation that's happened in those families all those
(10:50):
years those people were incarcerated. Howmuch financial impact it's all had. You
know, most people lose everything bythe time their trial is even over.
Their outer resources and now often theprimary you know, financial person and the
family's gone off to prison. Howit impacts their children, how it impacts
(11:11):
the parents and brothers and sisters andfriends. And with my clients, I
often say to them, you know, right before they're walking out of prison,
I say, you know, forthe next twenty four hours forty eight
hours, everybody's going to care aboutyou, and then they're going to slowly
disappear, and you're going to haveto put your life back together. And
you know, we're going to takethis step by step, but it is
(11:31):
going to be hard. And youonly see that ecstatic moment, but eventually
it stinks into them how much they'velost and how many challenges they have,
and technology is incredibly difficult for them. I had a client, Mike Handline,
who did thirty six years in prison. It was an auto mechanic when
he went to prison, and helooked at his first car when he got
(11:54):
out and was so frustrated because hesaid, this is a computer, this
is and now he works on antiquemotorcycles because he doesn't understand modern technology at
all. So it's a huge struggle. My client, Brian Banks, described
it beautifully. He said, whenyou go to prison, it's like you've
died and your family all mourns youand everybody's sad and it's awful. And
(12:18):
then time goes on and you sortof start fading away in terms of your
role in that family and how peopleare feeling about you. And then you
come home and that space has completelydisappeared in your head. It's going to
be the same as it was,but that space that you had is gone.
And it's very, very sad whathappens to them. And that's why
(12:41):
we have a real responsibility to takecare of people when they come out of
prison. Can I just be inwith a simple a simpleton's question, which
is to say, after a clientis exonerated and they're trying to go back
into society, is the idea nowthat their criminal record has been ex bunge
or do they still have to kindof go through the whole rigamarole with a
(13:03):
new employer to explain their story andhow they're out, Like, how does
all that work? Yeah, soit depends on the case. And you
know, lawyers always have the sameanswer, it depends that does because in
some cases, well, for instance, the worst ones are sex offender cases,
because with sex offender cases, they'renow on all kinds of private lists
(13:24):
and now you've got all these websiteswhere they're listed. So Brian Banks,
for example, he was a convictedsex offender. He literally carried around with
him in plastic the cover of theLa Times showing he was exonerated because when
he was applying for apartments and jobs, they were pulling up that he was
a convicted sex offender. And he'svery difficult to clear all those records.
(13:48):
We do have a process in Californiafor a declaration of innocence that requires an
entire separate court hearing and getting ajudge to agree to it, and often
having to get the district attorneys offis to agree with it. And it's
frustrating because if we believe you're innocentuntil proven guilty, and you've had your
conviction reversed, then you're innocent,right, You're eally innocent and exactly.
(14:11):
I always say to reporters when theysay, well, they haven't been found
innocent, I said, well youhaven't either your convictions murder where were you
on that night? Because there isinnocent as we are. But when you're
declared innocent, and when a prosecutiondismisses, it means that's the only person
who can't be prosecuted for that crime. So now you're way more innocent than
(14:35):
we are. But so it dependson the kind of case of how easy
or difficult that is. But itdoes take lawyers being involved and processes,
and that's why we so desperately needpeople working in this area. Just to
follow up on that thought, justinhow many of the wrongfully convicted who have
been exonerated through the Innocence Project orotherwise, I mean, have a realistic
(14:58):
avenue of financial relief from whether it'sa law enforcement who hid evidence or or
someone who falsely identified them. Imean, I mean, I think people
in the general public think, oh, well, they get out there and
get millions of dollars. But Idon't think that's the situation, is it.
Yeah, no, it's not.And when I started the California Innocence
(15:20):
Project in California, the maximum youcould get in compensation was ten thousand dollars
no matter how long you've been inprisoned. Wow, and you had to
go through a whole legal process toget it. So no one ever even
got it. So we wrote alaw that we've now amended five times,
basically because how much we've had tofight the Attorney General, including our current
(15:41):
vice president on those cases, becausethey litigated every one of them. And
so we get the person out,we'd exonerate them, and then the next
thing we had to do is goto Sacramento and have a whole separate hearing
on whether they're innocent, again againstthe Attorney General's office to get compensated.
Our new law is very good andnow says, look, if the judge
reversus your conviction finds you're innocent,you automatically get one hundred and fifty dollars
(16:04):
a day for every day you're wrongfullyincarcerated. But there's only thirty eight states
that have any form of compensation.Ours is one of the best because we've
had people on the ground fighting forit for two decades. Somebody good.
In some states, all you getis like free community college or things like
that, but not actually financial compensation. And then there's all the complication of
(16:27):
a civil suit which you're referring to, and almost everyone's can't. Very few
cases can get through the immunity.Judges have total immunity, prosecutors of total
immunity, police officers qualified immunity,and it's only in those rare cases where
they can get past that to geta civil suit. And that's why one
(16:48):
of the saddest things is every yearwe have at our Innocence Network conference,
you'll look around the room and hundredsof people have been exonerated or there and
some of them are millionaires that arein you know, thousand dollars suits,
and some of them are in totalpoverty. And it's very hard to explain
to your client, like how comethat guy got money and he spent twenty
years in prison as in a sendI didn't, And you start having to
(17:10):
explain, you know, yeah,community right, it's very you know,
I don't know. I don't knowexactly how this friend of mine who was
actually on this podcast does this.But Jenny Bonjean, who reversed Cosby's conviction,
she has a very interesting practice modelwhere she most of these cases are
(17:32):
out of Chicago. She has arelationship there with all the inmates and stuff,
so she gets these Essentially, shepicks up these wrongful convictions, assesses
them in a way where she workson a contingency fee because these people don't
have any money. And once sheis able to overturn the conviction, she
(17:59):
then goes with the civil laws andshe's been extremely successful, gets like millions
of dollars. So I don't know, she knows a lot about the corruption
and the and you know, withinthe police force there in Chicago and sort
of what goes down. But Iguess it depends on the jurisdiction. But
one question I had for you justinis that for us, DNA is often
(18:21):
the death now, but what we, I think tend to forget is that
it also helps free the wrong guy. What in your experience is the role
of DNA and overturning convictions. Wellchanged everything. I mean, it's the
most significant advancement in criminal procedure ofthe last century. Prior to DNA,
(18:42):
there was deep cynicism about whether they'reinnocent people in prison. Finally, we
had the gold standard of forensics thatcould not only definitively prove someone innocent,
but almost definitively proved the person whodid it. And it's I say almost
because now we're at this tistics ofyou know, it's one in twenty billion
(19:03):
that it's wrong. It's basically statistically, is there do you have an evil
twin out there you don't know aboutcommitting crimes? It's basically statistics come down
to so there's just nothing that comesremotely close to it. And once that
door opened in the nineties and wesaw those first few hundred people exonerated just
going to old rape kits and testingthem and showing definitively this is not the
(19:27):
semen of my client in this rapekit, it changed everything. And what
we're seeing now is what DNA didis it opened a door so that once
judges started seeing DNA exonerations, forexample in identification cases, that started opening
the idea of, wait a minute, these identifications aren't that good because DNA
(19:48):
is showing time and time again thatthey actually got the wrong guy. And
that's led to every reform that we'veaccomplished in the innocence world has stemmed from
that. If we didn't have DNA, we wouldn't be anywhere on this stuff,
because it would still be judges justdenying these habeases. I mean,
(20:08):
the first habeas I filed in Californiain two thousand, we spent like a
year working on it. It wasover one hundred pages and had another hundred
pages of attachments. It was stampdenied within forty five minutes of filing it.
Judges would just still deny, deny, denied. All these habeas petitions
that guys would write from prison,and now we would get in the last
(20:32):
ten years, I would say toCALIFORNIA'SYS project, we would have judges responding
and granting hearings in like seventy fiveto eighty percent of the cases that we
filed because they started seeing that,like, wait a minute, these guys
first of all screen these cases outvery seriously, and we only filed in
cases where we believe we have astrong claim. And it's really changed everything.
(20:56):
I cannot overstate the impact of DNAon the criminal legal system. I'm
very grateful to all the sciences scientistsworking in the healthcare industry, which is
where it's all coming. None ofit was developed for the criminal legal system,
but it's really helped us. Sojustin you you mentioned this twice now,
false identifications, And I mean,is that principally the primary source of
(21:19):
an innocent person being convicted a victimfalsely identifies through a photo lineup or they're
a actual lineup. Is that whatyou see mostly or the other common causes
of false convictions. Yes. Soin the first several hundred of DNA's honerations
that we saw come down, inmore than half of them there had been
(21:42):
a witness who had identified the suspectincorrectly, and that has led to an
entire field of research and tons ofPhDs that have made this their life work
of looking at identifications and ultimately comingto the conclusion that even though jurors put
huge amounts of weight on these things, they are really not very good evidence
(22:03):
unless the witness literally knows the suspectand knew them before the crime. And
there's a number of reasons for this. I've got hours and hours of lectures
on this, which we don't havetime for today, But it just comes
down to the frailty of human memory, the ability of your memories to be
contaminated very easily, and poor policeprocedures being used to extrapolate those memories,
(22:30):
and then that combined with the factthat officers often will say things like,
well, we've picked up a guyand we've got a line up, and
now you're thinking, okay, they'rein there, and now you pick whoever
looks most like the person, andyou might say, you know, it
looks like number three, and thenthe officer says, good job. And
now by the time you go tocourt, you're saying, I'm a hundred
percent sure it's that person. Youwere never one hundred percent short because we're
(22:52):
not documenting any of this stuff,and a trial lawyer doesn't really know half
the time what even happened during thoseprocedures, can't really cross on it is.
Then we have issues like cross racialidentifications, which are almost always wrong,
and lawyers aren't doing a good jobof explaining to jurors that, look,
it's not about racism. It's aboutthe way people's brains work and how
(23:14):
they develop in the first five yearsof their life. And if you're not
exposed to a lot of different racesat a very young age, you actually
don't have the mechanism to do crossracial identifications. Because people are uncomfortable always
talking about race, that jurors aren'teducated to that, and it's crazy how
bad they are, Like, they'reabsolutely terrible. So I wrote it after
(23:37):
my book to that topic, andthat wasn't enough. It's the worst,
and it's one of the thing that'sfrustrating is it's one of the ones that's
easily I don't want to say remedied, But we can make it so much
better by just having good procedures.In the same way with false confessions.
We know seventeen percent of wrongful convictionshave false confessions. If we just made
(23:59):
mand it tory recording of all interrogations, we could decrease that number profoundly.
The jury could actually see the contextof how it was obtained and put appropriate
weight to it instead of them justsaying, oh, the guy confessed,
so must be guilty. Right now, you were talking about false identification and
how unreliable it is, just youknow, the whole Coburger bushy eyebrow debate
(24:26):
about me as too. You know, that's you know, we're probably going
to hear a lot more about falseidentifications in that case. I'm speaking of
Coburger there. You know, thebig, big scientific evidence in the case
is that IgG investigative genetic genealogy.Is that going to be helpful or hurtful?
(24:47):
And innocent sworld you think you knowI've got It's funny. I was
just teaching about this last week inmy criminal procedure class. And I'm basically
a civil libertarian, right, Imean, I'm a defense attorney, progressive.
But I tell you, when youwalk just one person out of prison
and knowing they would have died inprison if it wasn't for DNA data banks,
(25:11):
it really kind of challenges your civillibertarian views on whether we all should
be in a data bank because itcan make that profound a difference in people's
lives. So it's going to makea huge difference because now it's kind of
like DNA, and every step ofit, we've seen it become more powerful.
So in the first phase of DNA, you needed a quarter size sample
(25:34):
of biological material to even do aDNA test. And then we came along
with wait a minute, we canactually replicate this stuff and you can use
a microscopic sample. And then wecame to this thing of mitochondrial DNA where
you can use hair without a root, and all of a sudden that opened
up all new doors of DNA andoh, let's go back to the evidence
(25:56):
and see what hair is unclosed andnow can be tested. And now with
familial DNA stuff, and with everybodygoing out and actually sending their biological material
to companies to test without knowing whethertheir second cousin was it was a murderer,
it is opening up whole new avenuesfor investigation. And like always with
(26:18):
DNA, it leads to convicting morepeople, right, and it leads to
the potential of exonerating some people.I know. I know Barry Sheck has
been We haven't talked to him yet, but I know that he has had
some cases involving IgG because we spoketo CC Moore and she had I think
consulted with him. But I thinkthe problem that Jim and I have with
(26:42):
it, not that it's come upin our own cases, but in Coburger
is that, you know, theprosecution there's no there's no higher authority.
You know, there's no Supreme Courtdecision yet on this, and so these
trial courts are repeatedly just calling it, you know, immaterial, it's not
(27:03):
coming in in discovery. And herewe have the prosecution calling it an informant.
Literally, they're calling the IgG thatled to the arrest of coworker and
informant, and they don't want toproduce the FBI material that really goes to
the protocol, whether it was followedor not, whether they use the right
databases. They're only allowed to usecertain databases. So I'm just wondering what
(27:26):
your thoughts are on. I thinkit's I think it's a problem I think
we're facing besides just your cousin beingin the system. You know, we're
dealing with a very critical piece ofscience that they're not even calling science.
Yeah, well, you touched onsomething that has bothered me forever, and
that's the discovery aspects of this stuff. It's just obnoxious. You know,
(27:48):
forever they have these DNA data banksand they wouldn't allow defense access to them.
It's like, this is again otherprosecutor's tool, and then you've got
to beat the mercy of the courtto hopefully grant it. And you've got
an innocent person and you can't runthis thing in the data bank because you
have no access to it. Andthen the claim is that there's a privacy
interest. I'm saying, wait aminute, if they run the test and
(28:11):
it comes out of match. Howis this not Brady material that has to
be disclosed? And if it comesback as nothing, it's not like a
judge can't review it and then decidewhether it's discoverable. So this is the
same old battles again, right thatyou had before. Yeah, and by
the way they're splitting, they're they'rearguing essentially that the snip piece of it
(28:37):
that goes to the lab, orthat there's a snip extraction that is science.
But then they're divorcing it from theFBI family Tree investigation and they're saying
that's just investigation. But you know, the whole point is that these are
this is one unit. This isyou know. So it's just it drives
me crazy. Anyway, you wantto talk to civil lawyers, like when
you use I thinking with civil lawyers, get with discovery and the idea and
(29:03):
the general public. By the way, because I talk about this a lot,
they really do think that defense attorneyshave advantages and the court because the
burden of proof is on the government. Look, I'm going to sleep in
bed when they're at the crime scene. I am going to point it to
the case when they've interviewed the witnesses. I don't know, you know,
you're late to the date always.Now your mercy of like turn stuff over.
(29:27):
And then the rules don't have thesame discovery rules as civil Well they
got to turn everything over. It'sjust like, well, we'll decide if
this is potentially exculpatory or not,and then we'll turn it over to you
if we think it's helpful to you. And you know, crime labs are
just cops and lab coats, Imean those are part of the government.
Yeah, it's defense atorneys have alwaysbeen an extreme disadvantage. Yeah. Yeah,
(29:53):
So about Brian Banks, because thatwas a huge, icy, huge
victory for you and Brian and becamea movie. I think there was an
oxygen piece on it. And nowBrian is doing some great work. He's
speaking and you know, empowering alot of people. But so basically I'm
(30:15):
just going to lay out the basicfacts, which is in two thousand and
two, he was seventeen years old, he was in high school. He
was a football star. I wasthink looking to be drafted to USC with
a very promising future, and thenhis life took this drastic turn because he
was falsely accused of kidnapping and rapinga female classmate, who later admitted that
(30:36):
she had falsified the accusation. Whatsort of tell us the story about his
exoneration and what led to that muchdeserved freedom. Yeah, so Brian is
the only client we ever took itto California Innocence Project who is out of
custody. I mean, sometimes wewon't even take a case if someone's got
(30:57):
fewer than three years left, becausewe know how long the processes, how
difficult it is, and we haveso many life for cases, death cases
that just seemed we couldn't. I'msorry, I thought he did five years.
He did, but he was outand on parole. Oh what happened
to him was this fifteen year oldclassmate. He was sixteen at the time,
(31:21):
and he was on his way superstarfootball player. I mean he went
to Long Beach Polly, which youmay not know is the biggest sports high
school in the United States. MoreMLB players, more NBA players, more
NFL players than any high school inthe United States. Cameron Diaz and Snoop
Dogg also went there, so veryfamous high school, and Brian was the
superstar at that school. He hadPete Carroll come into his practices, guaranteed
(31:45):
him a free ride at USC.Everybody says he's going to the NFL.
He's getting a lot of attention,and for whatever reason, jealousy or we
don't exactly know this, fifteen yearold classmate accuses him of rape. Nobody
investigates the case. Brian sits injuvie for a year waiting for trial,
and the day of trial, hislawyer says, look, you're a big
(32:06):
black teenager. You to go inthat courtroom. They're gonna believe her or
not you. It's all white jury. You're looking at forty years to life
or take a deal, and Ithink I might be able to get you
probation. I get you probation,I'll get you back to high school,
get you back in your life.Brian's crying. He says, can I
talk to my parents? She says, nope, you got to make a
decision right now. So, ofcourse he makes the decision to take the
(32:30):
deal. Of course, the judgedoesn't give him probation, gives him six
years in prison, and Brian goesoff to prison, his whole life destroyed.
He gets out of prison, can'tget a job. He's convicted sex
offender. He's got to wear anankle monitor. Football's done for him.
And one day, out of theblue, this girl Facebook friend requests him
and says, can we let bygonesbe buygnes sorry about this stuff I made
(32:52):
up about you raping me in highschool. Wow. So Brian actually then
had a video of her admitting thatwhere she with him, and he recorded
it, and then he came tous and I just thought, this case
is so heartbreaking. This guy isso clearly innocent, and you know,
and I know you will relate tothis. It's like with so many of
your clients. You know, theydidn't have great lives before they got into
(33:15):
trouble, and they didn't necessarily havethe potential that they were going on to
these amazing things. And Brian hadeverything taken away from him, a whole
life in front of him, andhe was still a kid. I took
his case. You know, he'sstill in his twenties, So we took
the case. A lawyer who washis lawyer I don't really want to name
his lawyers is now a judge.What we played him in the movie.
(33:40):
Who's the actor who played him inthe movie? Oh, who played Brian
Or played the lawyer, the lawyerman. Oh okay, here was a woman.
She had a very small part,so I don't even remember the actress
who playing. But I mean,but listen, Justin, let me just
say this. We're not bad mouthinganyone. We stated facts. We're saying
she told advised him to take aplea and he did. I mean,
(34:02):
we're not saying yeah exactly, andI was just who is It's important to
be in the movie that she wasn'tseen as the bad person is because a
lot of what she was saying wastrue. He wasn't a white Jerry.
You understand I practice in Los Angeles. Yeah, well, you can definitely
google it. But justin, wesee, uh, you know, victims
(34:27):
recan't you know, their their storiesfrequently and that doesn't normally lead to an
exoneration here in South Carolina. Meanthat was that? Was that all it
took there? Or did you havemore? Yeah? So, And you're
right, Jim. You know,I'm very cynical about recantations because often there's
motives behind them, you know,especially we look at so many sex offender
(34:52):
interfamilial molest cases and get the kidwho comes forward twenty years later and says,
you know, my dad didn't blessedme, And judges just look at
that and go, no, that'snot going to do it. We don't
know what kind of pressure. Sometimesgang cases, there's pressure put on witnesses
to a canter testimony. I thinkthe thing about Brian's case that was unique,
(35:13):
and there were many things that wereunique about it. But and this
is if you watch the movie youcan you'll see it portrayed. Is that
because Brian was out of custody,I was in the middle of a hearing
on another case and I noticed thehead of the habeas unit was showing up
and sitting in the back of theroom watching this case. So I went
up to him and I said,look, I got this client, Brian
Banks, and I really believe he'sinnocent. Would you just sit down with
(35:36):
him? And he said okay,And I called Brian up, and Brian
rushes down to the courthouse and wesit down and talk for an hour,
and he believed Brian. And thenwhen the investigator tracked down the complaining witness,
nobody believed her because she couldn't keepher story straight at all, with
a lot of lies, you know, it's hard to remember what you lied
(35:57):
about. So when I inter viewedher, you know when you went when
when you went to when I wentto the high school. First of all,
she claimed he dragged her down thishallway into the stairwell and raped her.
And California high schools are so open, and this one was no exception
where there was all these classrooms andthen the teachers told us that they kept
their doors open and there was justno way he was dragging her through the
(36:21):
school the kidnapp her. And thenwhen I questioned her, she literally just
said, yeah, Brian and Iwent down to the stairwell and I thought
we were just going to make out. And I said, you know,
so you just went down to thestairwell with him. Yeah, And so
I turned to the DA I waslike, well, there goes the kidnapping
charge. Like they just totally forgottenwhat she liked about. And the sad
(36:43):
thing is, you know, Idon't consider myself some brilliant lawyer who broke
her down like Perry Mason. Itwas just like no one asked her basic
questions because the case never went tocourt and it got pled out. And
that's that's the important message. Inthat movie and in Brian's story, is
that now pleading out ninety percent ofcases those cases, of course, most
(37:07):
of the people are guilty. Imean, I'm not naive about it.
And I always say, you know, there's two naive positions. One is
everyone's guilty, and one is everyone'scitizen. You know, most people are
guilty. But what percentage of thosewere the person was the person just making
a business decision and cutting their losses? We don't know. But Brian was
one of those people. Well,I can't find this judge's name, but
(37:29):
you need to text me later.I mean, you know, I need
to know one before anyway. Youknow, it's really hard in these cases,
though, to talk to the victimsbecause they don't have to talk to
you, and you send an investigatorout and and if he gets too aggressive,
then you get a call from theDA saying, hey, you're you're
(37:49):
witness tampering. You're trying to obstructjustice. You know your your clients,
We're going to revoke your client's bond. I mean, it is, it's
it's it's tough. People don't understandhow hard it is, and it is.
Well, if you watch if youwatched the Brian Banks movie with Greg
Kinnear playing me, you will seeGreg portraying how sometimes I utilize the media
to flush people out and get themto respond, and so by getting the
(38:15):
story out into the media actually gother to want to defend against that,
even though she'd already recanted on video. And the reason what happened was she
first recanted, but then she recantedher recantation because on top of Brian going
to prison, she got a millionand a half dollar settlement from the county
for allgally being raped at school.And so then she talked to her mom
(38:38):
and her mom was like, whatdid you do? They're going to ask
for that money back. And thenshe recanted her recantation, and then she
had sixteen different stories about it.So finally when she came forward, the
you know, the investigator didn't believeher, the DA didn't believe her,
and they conceded. So ultimately whathappened was the DA conceded. It was
(39:00):
the case in justin which courthouse ifit's a long beach case, okay,
yeah, not a great courthouse either, not a very it was a very
conservative courthouse. Yeah, and especiallywith that kind of case. Yeah,
yeah, Jim, I think wewere were we going to talk about Yeah,
(39:22):
I was going to ask Justin,you know what, what inspired you
to get involved with the Innocence Project? Starting the Innocence Project in California.
Sounds like you were living a prettygood life in Michigan teaching. Yeah,
I was. I mean I startedout as a criminal defense attorney in d
C during the Crack Wars, whenDC was the murder capital of the world.
(39:45):
And you know, after a fewyears, I got seduced by academia.
You know, I could move toa little town in Michigan, My
kids could walk to school safely andattend a public school, and could buy
a little Victorian house for eighty ninethousand dollars. So I got lured into
that life. But I was onlytwenty nine years old, and within six
months of doing it, I readabout this case Marilyn Malaro are sitting on
(40:09):
death row and all to a pleabargain, and that just sucked me right
back in. And then I decidedI was just too young to be hanging
up my practice, which I dolove practicing law. I've practicing my entire
career and now, and I've beenlucky the last twenty five years, I've
been able to combine my practice withteaching, and yeah, I went to
(40:30):
California to do it for a numberof reasons. I mean, one of
the reasons is I've got a lotof family and San Diego is an awesome
place to live. But there werefive or six of us that started innocence
organizations around the country. Larry Marshallstarted one in Chicago, Barry Seck started
one in New York, Jackie McMurtry. They were like five or six people
(40:52):
doing this work. Larry Hammond inArizona, and so California was the biggest
prison system in the United States withdeath row and three strikes and you know,
everything you need. So California wasyou know. I talked to Barrysheck
about it and I said this,I want to do this out in California.
And it's incredible to see the growthof our movement. Though our first
(41:13):
meeting was seven of us sharing apizza in Chicago, and at our last
meeting in Phoenix last year, wehad eleven hundred people who are associated with
innocence organizations and ax honeries and it'sreally been a movement. The last we're
big fans, and we do.It's one of our you know, Innocence
Project and ACLU are the ones thatJim and I give to most. We
(41:35):
when Jim was done with the Murdochtrial, because there was so much hate
there still is in Low Country,South Carolina over this case, he made
these mugs that It's really funny.It was like his picture in this,
you know, one of those cardboardthings you stick your face in as he
was leaving the area, you know, when you finished the trial, and
(41:57):
in the back of it it saysmy even my hater got haters and we're
like, okay, we got wegot because people were asking for the mugs.
But I said to Jim, Iwas like, you mean, god,
the mugs are like fifteen bucks,twenty bucks of shippings and other ten
bucks. Like you can't justly giveaway these mugs. At the same time,
we're lawyers. We don't want tosell mugs. So what do we
do? So we actually had themdonate to the Innocence Project and send us
(42:22):
the receipt so that they could geta mug anyway. So the last thing
I want to sort of close withJustin is that you know, look,
I mean no system is perfect.I still think despite the flaws in our
system, we have somewhat of adecent system depending on where in the country,
(42:44):
of course. You know, Ilived in Brazil when I graduated law
school. I practiced there for aboutfour and a half years, and I
know that you're doing some work downthere, which is why I want to
talk to about this. But Imean, there's a lot of very serious
crimes that go so on they're noteven crimes, or are they go unprosecuted.
(43:04):
There's also a lot of corruption.I mean literally it's about you know,
what judge you know and what favoryou can do, and there's a
lot of that going on too.So tell us about what's taking you to
Latin America, which countries and whatare you doing there to sort of continue
this work. Sure, well,my first job in Latin America was in
(43:25):
nineteen seventy nine when my parents movedour family to Puerto Rico and I worked
at the first McDonald's there. Eversince then, I've been working to Latin
America. So when I went throughhigh school in Puerto Rico and then and
learned us speak Spanish, and whenI moved to California, we're right here
on the border in San Diego.It seemed a natural thing to start doing
(43:47):
stuff in Tijuana. So I starteddoing going down, doing presentations, work
with lawyers, and then I gotinvited to train the first twelve public defenders
in Chile after the fall of Pinochet, and so I trained started training lawyers
throughout Latin America. You know,just like everything in life, if you
(44:08):
do something decently well, you keepgetting invited back, and dance card gets
punched very quickly. So for thepast, you know, twenty five years,
I've been doing training and the lastand then that led to with my
innocence work naturally to start starting innocenceprojects, and now I've been part of
(44:30):
founding thirty eight projects from Chile,Argentina all the way through South America and
Brazil, Central America and Mexico.In fact, right before this podcast,
I was on the phone for thelast two hours working with a lawyer in
Mexico on a murder case. Andtonight, after I'm done teaching, I'll
(44:51):
be driving to Mexicollie because tomorrow I'vegot a mood court competition that I'm putting
on between law schools there. SoI mean This might be a stupid question,
but how do you train people inthese countries? If I mean,
don't you need familiarity with their systemand their law. Yeah, you need
familiarity, But mostly what I trainon as trial skills, I've got it
(45:14):
in Mexico, like Chile had neverhad trials before, and Mexico has met
trials for four hundred years, andin the reforms over the last ten years
that Mexico had a constitutional amendment thatcreated the right to trial and so in
oral trials. And the problem isthough that Chile, I mean, it's
(45:37):
a complex thing. Chile was notas challenging as Mexico, not even remotely.
First of all, the size ofit is nothing compared to Mexico.
And we started working with lawyers inthe southern tip of Chile and worked the
way towards Santiago, rebuilding courthouses,training lawyers. But the big difference is
that the Chileans really wanted a newguy and a new system because they went
(46:01):
through an extreme totalitarian government where peoplewere there were death camps, people were
being pulled out of their homes atnight and executed, and whereas all the
problems we have in Mexico. Itwas nowhere near as bad as what Chile
was dealing with in the eighties andnineties, So Mexico is much tougher.
Also, I didn't realize until Igot a federal grant that I applied for
(46:24):
to train Mexican law students how todo trials. Because it's so challenging to
train the fifty year old lawyers.I'm so resistant to change. So I
said, they've got to get tothe kids. Nobody realized how many law
schools there were in Mexico. Andtake a guess how many law schools are
in Mexico. You go first,Sarah, how many you think they would
(46:45):
be in Mexico? Thirty? Jim, what do you think you know?
Now that you say that, Iwould say one hundred and fifty. Matt,
I'll take the over on gyms,I'll say more than two hundred.
Well, you would win, butyou're still pretty far off. There's two
hundred law schools in the United States. There's one two thousand law schools in
(47:06):
Mexico. Wow, And so youhave this massive system where there's no accreditation
standing right. I was going tosay, there's also because my mom used
to do this accreditation accreditation work aspart of she was a professor at UCLA.
But it's that I believe in Mexicothey go to law school straight from
(47:30):
high school. That's right. Yeah, there's no degree, yeah, undergraduate
degree, no accreditation, stand,there's no bar exam. Yeah. So
you graduate from law school in Mexico. It's as if if you were a
psychology major here undergrad and as soonas you graduated you were a clinical psychologist
or a psychiatrist, you can allof a sudden be prescribing medication. And
(47:52):
so the problem is that they arenot getting trained in law school to do
this. So this new grant thatI got that Universe sam work in the
University of San Diego School of Law, and which is I'm going down tonight
to continue our work on is we'retrying to train the law schools how to
teach trial practice, and then wecreate competitions between the schools to get the
(48:13):
kids excited about learning trial skills andpracticing them in competitions. What did Mexico
have before they had trials? Imean, how would they admunicate a charge?
So there's a great documentary on thistopic, the most watched documentary in
the industry of Mexico. It's calledPresume Guilty, and you can actually just
(48:36):
watch it by googling it for freebecause the documentarian wanted everybody to see it,
and it shows you how the systemworks. And the way the system
worked was you would just literally filepaperwork on your case. Typically the prosecutor
would meet with the judge after theyfound your guy guilty, they would decide
the sentence and then issue it.Everything was on paper. You could not
(49:00):
challenge a police officer's report. Nowimagine that for a second. You have
like the second most corrupt police forcein the world, second only to Egypt,
and whatever they put in that policereport, you cannot challenge it.
That's fact. And so everybody getsconvicted and there's no way to challenge it.
And when you see in this movie, the officer doesn't even remember what
(49:22):
they wrote on the report, inthe same way that Brian's you know,
Find's alleged victim doesn't remember what shelied about. And so that's what we
spend a lot of time doing istraining the lawyers how to cross examine evidence,
how to cross exam and witnesses,because it's not part of their training
and it's a Roman based system asmost of the world is. So what
(49:45):
they do in law school is theyjust memorize laws if they're not learning skills,
so they don't see they're just learningstatutes and case la and mostly just
statutes, not case case. Isa weird thing for them to comp as
to why we care so much aboutcase law? Always like, well,
who cares what these cases say?This is what the statute is. I'm
(50:06):
like, well, in the UnitedStates, it's all about how judges interpreted
those statutes. And you know,we have this we're so jurisdictional in such
micro levels that most of the worlddoesn't understand how we have fifty seven penal
codes and everything's at the county levelin terms of the power. So it's
very, very different in Latin America. Are you taking any volunteers for Brazil?
(50:30):
That project may very well be interested. If you want me to connect
you up with them, I'm happyto do it. Yeah, for sure.
Do you speak Portuguese still or Portuguese? Oh excellent? I do not.
Yeah, although it's interesting when Igo there how more people seem to
speak English than speak Spanish. Well, they get really pissed off, they
(50:51):
get really pissed off when people startspeaking Spanish in Brazil because they're like the
only Latin American country that or SouthAmerican country that are not Spanish speakers,
and people just assume that everybody therespeaks Spanish, so they rather speak English.
But yeah, no, I meanI spoke Spanish before Portuguese, so
when I went down there, itwas although it's not really to me,
(51:12):
it's not that similar to Spanish.It's more French and Italian, and I
speak French, so I don't knowit just it came to me very easily.
But yeah, not because of that, but because I'm just I.
You know, I have an affinitytowards the country. I go there a
lot, and I would love to. Yeah, let me connect you off
with They're great people to Brazilians.Project in South Polo okay really what the
(51:35):
director there actually came and worked inmy office for like six months to learn
how to do the work. Okay, down there, So it's one of
our most successful projects, and ofcourse we're going to communicate it, but
I still want to know who representedBrian Banks. I'm not letting that go.
Jim, did you have any otherquestions for Justin as well, no,
Justin, thank you so much forcoming on. The Presumption podcast has
(51:59):
been very enlightening. I really doappreciate you coming on, and I'm a
big fan of your book and yourwork. Thanks for doing Thanks for doing
it. Thank you so much,Justin, and I'll talk to you soon.
Pleasure, take care, everybody.You all right? At this point,
Sarah, I think we should.Oh, we're gonna rest, Jemmy,
we're resting. Yes,
Hello everyone, and welcome to thePresumption Podcast. I'm your host, co
host Sarah Zari and Hi Jim Griffin, Hey Sarah, and Matt our producer,
our wonderful producer. And today we'rejoined by a very special guest,
Justin Brooks. Justin, Welcome tothe podcast. Justin is a lot of
(00:46):
things. He's a professor of practiceat the University of San Diego School of
Law, where he teaches criminal procedureand directs an ll M program in compared
to law in Spanish. He alsoadministers a national Mood Court program in Mexico
and coordinates the world of thirty fiveinnocence organizations in Latin America. Will definitely
want to tap into that in thisconversation. He was the founding director of
(01:07):
the California Innocence Project for twenty fouryears until earlier this year, and under
his direction, the project freed fortyinnocent people from prison, including someone we'll
be talking about also as NFL playerBrian Banks. He's been recognized several times
by the Los Angeles Daily Journal asone of the top one hundred lawyers in
California, and in twenty ten andtwenty twelve, California Lawyer magazine honored him
(01:29):
with the Lawyer of the Year award. He was named International Lawyer of the
Year by the California Bar International Sectionin twenty twenty, and in the same
year was named Champion of Justice byone of my favorite organizations I was.
I'm a life member and was onthe board National Association of Criminal Defense Journeys.
He's the author of the only legalcasebook devoted to the topic of wrongful
convictions, and the author of YouMight Go to Prison Even Though You're Innocent,
(01:53):
a book that details the causes ofwrongful convictions, based on his experience
of more than three decades as acriminal defense attorney and innocence organization director.
I mean, how old are you? Three decades? He's portrayed by He's
portrayed by Academy Award nominated actor GregKuneer in the feature film Brian Banks.
(02:13):
So welcome, welcome, justin.The first thing I was going to start
off with is your book You Mightgo to Prison Even Though You're Innocent,
And you know Jim and I knowthat very well. I think came up
recently with his case Alec Murdoch,who I think was wrongfully convicted on murder
(02:34):
charges. It's, you know,a very fascinating book that takes a deep
dive into sort of the flaws andprejudices of the legal justice system, I
mean, the criminal justice system.And you cite to some real life instances
cases that you were involved in wherethe person was innocent and was sent to
prison. Share with us why youmight go to prison even though you're innocent.
(03:00):
Sure, thank you for starting withmy book. Usually when you do
podcasts and stuff, it's the lastthing people talk about starting up with It
available now on Amazon. But soI was asked by publisher to sit down
and think about the last thirty yearsdoing innocent cases and kind of think about
categorizing them. And it was areally interesting task to get into because when
(03:24):
I started in this work, asyou guys know, you know, people
were deeply cynical whether there was anyoneinnocent in prison. And that used to
be the old argument. You know, we talk about Ruben Hurricane Carter in
a few cases, but you know, the pre DNA world, there weren't
these definitive cases. And now afternow decades of DNA and we've documented thirty
(03:50):
three hundred cases of wrongful conviction inthe United States. We now can kind
of reflect on the why why didthese people go to prison? What are
the different categories? And some ofthe things I thought about were more obvious
than other things, like we've beentalking about bad identification procedures for years,
and we've done a lot of reformsin that. We've talked about false confessions.
(04:13):
We now know that seventeen percent ofwrongful convictions involve people actually confessing.
But then there were other topics inthe book that I got into when I
started thinking about my own cases.For example, you know, people who
live with people they're in relationship withincrease their chances of being wrongfully convicted because
often the person comes home and theyfind a dead body, they will always
(04:40):
be a suspect. Because more thanfifty percent of homicides in the US are
domestic, so people don't realize oftenthat their suspects, but if it's their
partner the ends up dead, theywill be a suspect. And I had
two cases like that that we ultimatelyled to exonerations, and they were basically
just convicted because witnesses come forward tosay there's problems in the relationship, which
(05:03):
of course there are in more thanfifty percent of relationships, since that's about
as many endo divorce in southern California, and then the police can put them
on the scene, so they haveopportunity, they have motive, and now
they're on their way to a wanngfulconviction unless there's another suspect involved. And
I think that's something people don't reallythink about. Another topic I get into,
(05:26):
which you know, I moved toCalifornia twenty five years ago, and
it took me a while to figureout that the further you get from the
water, the weirder it gets.But practicing in those desert counties, I
find that, you know, there'sthis sort of opposite of over policing.
So I look at the dynamic ofthere's over policing that happens in urban areas
(05:50):
that often leads to wrongful convictions,like rounding up all the kids on a
street corner because they're all assumed tobe dealing drugs. If a couple of
them are dealing drugs, can allbe charged with possession and distribution. And
you see those wrongful convictions, whichI saw early on in my practice in
Washington, DC. But in therural areas, clients like my client Bill
(06:11):
Richards who came home and found hiswife beaten to death in the middle of
nowhere. They just don't know howto process a homicide scene, so they
contaminate all the evidence. They don'tdo time and death analysis, and by
the time competent people take a lookat it, it's too late. All
the evidence has been destroyed. Andalso in those small towns, they are
much more resistant to lawyers coming inand reopening cases and looking over their work.
(06:39):
So throughout the book I look atthese different causes. Actually, the
first title of the book was topten reasons you might go to prison even
though You're innocent, but my publisherthought that was too click baby. Yeah,
yeah, it's a great book title. I gotta say, I love
it. So it's largely because offalse confession, confessions, shoddy investigations,
(07:00):
right, Yeah, those are differentchapters. So Chapter one, the first
chapter, is the chapter that startedmy work in innocence work, and it
was that thirty years ago I readabout a woman on death row in Chicago
who was sentenced to death on aplea bargain, and I thought, how
in hell did she get the deathpenalty on a plea barg in a twenty
(07:20):
three year old, and I metwith her on death row. She was
scheduled to be executed, and shetold me she was innocent, and then
she didn't understand what her lawyer haddone. She didn't really go to court,
she'd hardly talk to her lawyer,and her lawyer pled her straight up
to double homicide and got the deathpenalty. And I started investigating that case
with my students, and we ultimatelyable to prove her innocence. And the
(07:44):
case was so shocking to me thatI literally quit my faculty position in Michigan
and came out to California to startthis project. And it was just so
The first chapter in the book isyou hired the wrong lawyer. She did
what I've seen a lot of peopledo, is that she had a very
high profile case, so very competentpublic defender, This woman who'd handled hundreds
(08:09):
of felony trials was assigned to her. And she fires this competent lawyer,
and her friends just hire a lawyerin the neighborhood, give him a ten
thousand dollars retainer, and he doesn'teven do this kind of work, and
he just goes and pleads her straightup and gets the death penalty. And
so I start the book with tryingto educate people to understand the way lawyer
(08:31):
appointments work. What public defenders arethe dim street public defenders and private attorneys
the contracts. I mean, California, for example, has it all.
We've got great public defenders offices,we've got great private lawyers, but we've
also got terrible private lawyers. Wealso have panel lawyers and alternate public defenders.
We have a lot of options incase of conflicts. But justin to
(08:52):
your point, you know, Ithink there's this myth that public defenders and
Jim and I have talked about thiswith other guests too, there's this myth
that somehow well, you know,getting a private lawyer, any private lawyer,
is better than a public defender.There's even a joke, you know,
people refer to public defenders as publicpretenders, and it's like no publics.
You know, there's some really greatpublic defenders, and if you don't
(09:16):
have the resources to get a reallygreat private lawyer, then that that is
what you should do. You shouldstick with a public defender. My last
question before I turn it over toJim, is, uh, you know
this is something you also address inyour book. We know that a conviction
is life changing obviously for anyone,irrespective of what the sentence is, but
(09:39):
you specifically talk about this in yourbook, about that impact on somebody who's
wrongfully convicted. What have you learnedin your decades of work with the Innocence
Project about how a conviction impacts somebodywho's wrongfully convicted. Oh, the circle
of devastation is so wide, andpeople really don't see it because you know,
(10:03):
in innocence work, first of all, people only really see our successes,
right. The media is not interestedin the failures, and they're not
even really interested in the case.Is that much until you win them,
you know, getting their attention ona case, no matter how good you
think it is. There's very fewcases that capture the imagination of the media
and the general public, unless you'vegot a great venue like Netflix or you
(10:28):
know, your podcast can do thatwhere people can really hear the whole story,
so they don't see the failures.They don't see how devastating that is
for everybody. And even when youwin these cases, and even when you
walk people out and they see thatfootage of the hand in the air and
everybody's happy. They don't see thedevastation that's happened in those families all those
(10:50):
years those people were incarcerated. Howmuch financial impact it's all had. You
know, most people lose everything bythe time their trial is even over.
Their outer resources and now often theprimary you know, financial person and the
family's gone off to prison. Howit impacts their children, how it impacts
(11:11):
the parents and brothers and sisters andfriends. And with my clients, I
often say to them, you know, right before they're walking out of prison,
I say, you know, forthe next twenty four hours forty eight
hours, everybody's going to care aboutyou, and then they're going to slowly
disappear, and you're going to haveto put your life back together. And
you know, we're going to takethis step by step, but it is
(11:31):
going to be hard. And youonly see that ecstatic moment, but eventually
it stinks into them how much they'velost and how many challenges they have,
and technology is incredibly difficult for them. I had a client, Mike Handline,
who did thirty six years in prison. It was an auto mechanic when
he went to prison, and helooked at his first car when he got
(11:54):
out and was so frustrated because hesaid, this is a computer, this
is and now he works on antiquemotorcycles because he doesn't understand modern technology at
all. So it's a huge struggle. My client, Brian Banks, described
it beautifully. He said, whenyou go to prison, it's like you've
died and your family all mourns youand everybody's sad and it's awful. And
(12:18):
then time goes on and you sortof start fading away in terms of your
role in that family and how peopleare feeling about you. And then you
come home and that space has completelydisappeared in your head. It's going to
be the same as it was,but that space that you had is gone.
And it's very, very sad whathappens to them. And that's why
(12:41):
we have a real responsibility to takecare of people when they come out of
prison. Can I just be inwith a simple a simpleton's question, which
is to say, after a clientis exonerated and they're trying to go back
into society, is the idea nowthat their criminal record has been ex bunge
or do they still have to kindof go through the whole rigamarole with a
(13:03):
new employer to explain their story andhow they're out, Like, how does
all that work? Yeah, soit depends on the case. And you
know, lawyers always have the sameanswer, it depends that does because in
some cases, well, for instance, the worst ones are sex offender cases,
because with sex offender cases, they'renow on all kinds of private lists
(13:24):
and now you've got all these websiteswhere they're listed. So Brian Banks,
for example, he was a convictedsex offender. He literally carried around with
him in plastic the cover of theLa Times showing he was exonerated because when
he was applying for apartments and jobs, they were pulling up that he was
a convicted sex offender. And he'svery difficult to clear all those records.
(13:48):
We do have a process in Californiafor a declaration of innocence that requires an
entire separate court hearing and getting ajudge to agree to it, and often
having to get the district attorneys offis to agree with it. And it's
frustrating because if we believe you're innocentuntil proven guilty, and you've had your
conviction reversed, then you're innocent,right, You're eally innocent and exactly.
(14:11):
I always say to reporters when theysay, well, they haven't been found
innocent, I said, well youhaven't either your convictions murder where were you
on that night? Because there isinnocent as we are. But when you're
declared innocent, and when a prosecutiondismisses, it means that's the only person
who can't be prosecuted for that crime. So now you're way more innocent than
(14:35):
we are. But so it dependson the kind of case of how easy
or difficult that is. But itdoes take lawyers being involved and processes,
and that's why we so desperately needpeople working in this area. Just to
follow up on that thought, justinhow many of the wrongfully convicted who have
been exonerated through the Innocence Project orotherwise, I mean, have a realistic
(14:58):
avenue of financial relief from whether it'sa law enforcement who hid evidence or or
someone who falsely identified them. Imean, I mean, I think people
in the general public think, oh, well, they get out there and
get millions of dollars. But Idon't think that's the situation, is it.
Yeah, no, it's not.And when I started the California Innocence
(15:20):
Project in California, the maximum youcould get in compensation was ten thousand dollars
no matter how long you've been inprisoned. Wow, and you had to
go through a whole legal process toget it. So no one ever even
got it. So we wrote alaw that we've now amended five times,
basically because how much we've had tofight the Attorney General, including our current
(15:41):
vice president on those cases, becausethey litigated every one of them. And
so we get the person out,we'd exonerate them, and then the next
thing we had to do is goto Sacramento and have a whole separate hearing
on whether they're innocent, again againstthe Attorney General's office to get compensated.
Our new law is very good andnow says, look, if the judge
reversus your conviction finds you're innocent,you automatically get one hundred and fifty dollars
(16:04):
a day for every day you're wrongfullyincarcerated. But there's only thirty eight states
that have any form of compensation.Ours is one of the best because we've
had people on the ground fighting forit for two decades. Somebody good.
In some states, all you getis like free community college or things like
that, but not actually financial compensation. And then there's all the complication of
(16:27):
a civil suit which you're referring to, and almost everyone's can't. Very few
cases can get through the immunity.Judges have total immunity, prosecutors of total
immunity, police officers qualified immunity,and it's only in those rare cases where
they can get past that to geta civil suit. And that's why one
(16:48):
of the saddest things is every yearwe have at our Innocence Network conference,
you'll look around the room and hundredsof people have been exonerated or there and
some of them are millionaires that arein you know, thousand dollars suits,
and some of them are in totalpoverty. And it's very hard to explain
to your client, like how comethat guy got money and he spent twenty
years in prison as in a sendI didn't, And you start having to
(17:10):
explain, you know, yeah,community right, it's very you know,
I don't know. I don't knowexactly how this friend of mine who was
actually on this podcast does this.But Jenny Bonjean, who reversed Cosby's conviction,
she has a very interesting practice modelwhere she most of these cases are
(17:32):
out of Chicago. She has arelationship there with all the inmates and stuff,
so she gets these Essentially, shepicks up these wrongful convictions, assesses
them in a way where she workson a contingency fee because these people don't
have any money. And once sheis able to overturn the conviction, she
(17:59):
then goes with the civil laws andshe's been extremely successful, gets like millions
of dollars. So I don't know, she knows a lot about the corruption
and the and you know, withinthe police force there in Chicago and sort
of what goes down. But Iguess it depends on the jurisdiction. But
one question I had for you justinis that for us, DNA is often
(18:21):
the death now, but what we, I think tend to forget is that
it also helps free the wrong guy. What in your experience is the role
of DNA and overturning convictions. Wellchanged everything. I mean, it's the
most significant advancement in criminal procedure ofthe last century. Prior to DNA,
(18:42):
there was deep cynicism about whether they'reinnocent people in prison. Finally, we
had the gold standard of forensics thatcould not only definitively prove someone innocent,
but almost definitively proved the person whodid it. And it's I say almost
because now we're at this tistics ofyou know, it's one in twenty billion
(19:03):
that it's wrong. It's basically statistically, is there do you have an evil
twin out there you don't know aboutcommitting crimes? It's basically statistics come down
to so there's just nothing that comesremotely close to it. And once that
door opened in the nineties and wesaw those first few hundred people exonerated just
going to old rape kits and testingthem and showing definitively this is not the
(19:27):
semen of my client in this rapekit, it changed everything. And what
we're seeing now is what DNA didis it opened a door so that once
judges started seeing DNA exonerations, forexample in identification cases, that started opening
the idea of, wait a minute, these identifications aren't that good because DNA
(19:48):
is showing time and time again thatthey actually got the wrong guy. And
that's led to every reform that we'veaccomplished in the innocence world has stemmed from
that. If we didn't have DNA, we wouldn't be anywhere on this stuff,
because it would still be judges justdenying these habeases. I mean,
(20:08):
the first habeas I filed in Californiain two thousand, we spent like a
year working on it. It wasover one hundred pages and had another hundred
pages of attachments. It was stampdenied within forty five minutes of filing it.
Judges would just still deny, deny, denied. All these habeas petitions
that guys would write from prison,and now we would get in the last
(20:32):
ten years, I would say toCALIFORNIA'SYS project, we would have judges responding
and granting hearings in like seventy fiveto eighty percent of the cases that we
filed because they started seeing that,like, wait a minute, these guys
first of all screen these cases outvery seriously, and we only filed in
cases where we believe we have astrong claim. And it's really changed everything.
(20:56):
I cannot overstate the impact of DNAon the criminal legal system. I'm
very grateful to all the sciences scientistsworking in the healthcare industry, which is
where it's all coming. None ofit was developed for the criminal legal system,
but it's really helped us. Sojustin you you mentioned this twice now,
false identifications, And I mean,is that principally the primary source of
(21:19):
an innocent person being convicted a victimfalsely identifies through a photo lineup or they're
a actual lineup. Is that whatyou see mostly or the other common causes
of false convictions. Yes. Soin the first several hundred of DNA's honerations
that we saw come down, inmore than half of them there had been
(21:42):
a witness who had identified the suspectincorrectly, and that has led to an
entire field of research and tons ofPhDs that have made this their life work
of looking at identifications and ultimately comingto the conclusion that even though jurors put
huge amounts of weight on these things, they are really not very good evidence
(22:03):
unless the witness literally knows the suspectand knew them before the crime. And
there's a number of reasons for this. I've got hours and hours of lectures
on this, which we don't havetime for today, But it just comes
down to the frailty of human memory, the ability of your memories to be
contaminated very easily, and poor policeprocedures being used to extrapolate those memories,
(22:30):
and then that combined with the factthat officers often will say things like,
well, we've picked up a guyand we've got a line up, and
now you're thinking, okay, they'rein there, and now you pick whoever
looks most like the person, andyou might say, you know, it
looks like number three, and thenthe officer says, good job. And
now by the time you go tocourt, you're saying, I'm a hundred
percent sure it's that person. Youwere never one hundred percent short because we're
(22:52):
not documenting any of this stuff,and a trial lawyer doesn't really know half
the time what even happened during thoseprocedures, can't really cross on it is.
Then we have issues like cross racialidentifications, which are almost always wrong,
and lawyers aren't doing a good jobof explaining to jurors that, look,
it's not about racism. It's aboutthe way people's brains work and how
(23:14):
they develop in the first five yearsof their life. And if you're not
exposed to a lot of different racesat a very young age, you actually
don't have the mechanism to do crossracial identifications. Because people are uncomfortable always
talking about race, that jurors aren'teducated to that, and it's crazy how
bad they are, Like, they'reabsolutely terrible. So I wrote it after
(23:37):
my book to that topic, andthat wasn't enough. It's the worst,
and it's one of the thing that'sfrustrating is it's one of the ones that's
easily I don't want to say remedied, But we can make it so much
better by just having good procedures.In the same way with false confessions.
We know seventeen percent of wrongful convictionshave false confessions. If we just made
(23:59):
mand it tory recording of all interrogations, we could decrease that number profoundly.
The jury could actually see the contextof how it was obtained and put appropriate
weight to it instead of them justsaying, oh, the guy confessed,
so must be guilty. Right now, you were talking about false identification and
how unreliable it is, just youknow, the whole Coburger bushy eyebrow debate
(24:26):
about me as too. You know, that's you know, we're probably going
to hear a lot more about falseidentifications in that case. I'm speaking of
Coburger there. You know, thebig, big scientific evidence in the case
is that IgG investigative genetic genealogy.Is that going to be helpful or hurtful?
(24:47):
And innocent sworld you think you knowI've got It's funny. I was
just teaching about this last week inmy criminal procedure class. And I'm basically
a civil libertarian, right, Imean, I'm a defense attorney, progressive.
But I tell you, when youwalk just one person out of prison
and knowing they would have died inprison if it wasn't for DNA data banks,
(25:11):
it really kind of challenges your civillibertarian views on whether we all should
be in a data bank because itcan make that profound a difference in people's
lives. So it's going to makea huge difference because now it's kind of
like DNA, and every step ofit, we've seen it become more powerful.
So in the first phase of DNA, you needed a quarter size sample
(25:34):
of biological material to even do aDNA test. And then we came along
with wait a minute, we canactually replicate this stuff and you can use
a microscopic sample. And then wecame to this thing of mitochondrial DNA where
you can use hair without a root, and all of a sudden that opened
up all new doors of DNA andoh, let's go back to the evidence
(25:56):
and see what hair is unclosed andnow can be tested. And now with
familial DNA stuff, and with everybodygoing out and actually sending their biological material
to companies to test without knowing whethertheir second cousin was it was a murderer,
it is opening up whole new avenuesfor investigation. And like always with
(26:18):
DNA, it leads to convicting morepeople, right, and it leads to
the potential of exonerating some people.I know. I know Barry Sheck has
been We haven't talked to him yet, but I know that he has had
some cases involving IgG because we spoketo CC Moore and she had I think
consulted with him. But I thinkthe problem that Jim and I have with
(26:42):
it, not that it's come upin our own cases, but in Coburger
is that, you know, theprosecution there's no there's no higher authority.
You know, there's no Supreme Courtdecision yet on this, and so these
trial courts are repeatedly just calling it, you know, immaterial, it's not
(27:03):
coming in in discovery. And herewe have the prosecution calling it an informant.
Literally, they're calling the IgG thatled to the arrest of coworker and
informant, and they don't want toproduce the FBI material that really goes to
the protocol, whether it was followedor not, whether they use the right
databases. They're only allowed to usecertain databases. So I'm just wondering what
(27:26):
your thoughts are on. I thinkit's I think it's a problem I think
we're facing besides just your cousin beingin the system. You know, we're
dealing with a very critical piece ofscience that they're not even calling science.
Yeah, well, you touched onsomething that has bothered me forever, and
that's the discovery aspects of this stuff. It's just obnoxious. You know,
(27:48):
forever they have these DNA data banksand they wouldn't allow defense access to them.
It's like, this is again otherprosecutor's tool, and then you've got
to beat the mercy of the courtto hopefully grant it. And you've got
an innocent person and you can't runthis thing in the data bank because you
have no access to it. Andthen the claim is that there's a privacy
interest. I'm saying, wait aminute, if they run the test and
(28:11):
it comes out of match. Howis this not Brady material that has to
be disclosed? And if it comesback as nothing, it's not like a
judge can't review it and then decidewhether it's discoverable. So this is the
same old battles again, right thatyou had before. Yeah, and by
the way they're splitting, they're they'rearguing essentially that the snip piece of it
(28:37):
that goes to the lab, orthat there's a snip extraction that is science.
But then they're divorcing it from theFBI family Tree investigation and they're saying
that's just investigation. But you know, the whole point is that these are
this is one unit. This isyou know. So it's just it drives
me crazy. Anyway, you wantto talk to civil lawyers, like when
you use I thinking with civil lawyers, get with discovery and the idea and
(29:03):
the general public. By the way, because I talk about this a lot,
they really do think that defense attorneyshave advantages and the court because the
burden of proof is on the government. Look, I'm going to sleep in
bed when they're at the crime scene. I am going to point it to
the case when they've interviewed the witnesses. I don't know, you know,
you're late to the date always.Now your mercy of like turn stuff over.
(29:27):
And then the rules don't have thesame discovery rules as civil Well they
got to turn everything over. It'sjust like, well, we'll decide if
this is potentially exculpatory or not,and then we'll turn it over to you
if we think it's helpful to you. And you know, crime labs are
just cops and lab coats, Imean those are part of the government.
Yeah, it's defense atorneys have alwaysbeen an extreme disadvantage. Yeah. Yeah,
(29:53):
So about Brian Banks, because thatwas a huge, icy, huge
victory for you and Brian and becamea movie. I think there was an
oxygen piece on it. And nowBrian is doing some great work. He's
speaking and you know, empowering alot of people. But so basically I'm
(30:15):
just going to lay out the basicfacts, which is in two thousand and
two, he was seventeen years old, he was in high school. He
was a football star. I wasthink looking to be drafted to USC with
a very promising future, and thenhis life took this drastic turn because he
was falsely accused of kidnapping and rapinga female classmate, who later admitted that
(30:36):
she had falsified the accusation. Whatsort of tell us the story about his
exoneration and what led to that muchdeserved freedom. Yeah, so Brian is
the only client we ever took itto California Innocence Project who is out of
custody. I mean, sometimes wewon't even take a case if someone's got
(30:57):
fewer than three years left, becausewe know how long the processes, how
difficult it is, and we haveso many life for cases, death cases
that just seemed we couldn't. I'msorry, I thought he did five years.
He did, but he was outand on parole. Oh what happened
to him was this fifteen year oldclassmate. He was sixteen at the time,
(31:21):
and he was on his way superstarfootball player. I mean he went
to Long Beach Polly, which youmay not know is the biggest sports high
school in the United States. MoreMLB players, more NBA players, more
NFL players than any high school inthe United States. Cameron Diaz and Snoop
Dogg also went there, so veryfamous high school, and Brian was the
superstar at that school. He hadPete Carroll come into his practices, guaranteed
(31:45):
him a free ride at USC.Everybody says he's going to the NFL.
He's getting a lot of attention,and for whatever reason, jealousy or we
don't exactly know this, fifteen yearold classmate accuses him of rape. Nobody
investigates the case. Brian sits injuvie for a year waiting for trial,
and the day of trial, hislawyer says, look, you're a big
(32:06):
black teenager. You to go inthat courtroom. They're gonna believe her or
not you. It's all white jury. You're looking at forty years to life
or take a deal, and Ithink I might be able to get you
probation. I get you probation,I'll get you back to high school,
get you back in your life.Brian's crying. He says, can I
talk to my parents? She says, nope, you got to make a
decision right now. So, ofcourse he makes the decision to take the
(32:30):
deal. Of course, the judgedoesn't give him probation, gives him six
years in prison, and Brian goesoff to prison, his whole life destroyed.
He gets out of prison, can'tget a job. He's convicted sex
offender. He's got to wear anankle monitor. Football's done for him.
And one day, out of theblue, this girl Facebook friend requests him
and says, can we let bygonesbe buygnes sorry about this stuff I made
(32:52):
up about you raping me in highschool. Wow. So Brian actually then
had a video of her admitting thatwhere she with him, and he recorded
it, and then he came tous and I just thought, this case
is so heartbreaking. This guy isso clearly innocent, and you know,
and I know you will relate tothis. It's like with so many of
your clients. You know, theydidn't have great lives before they got into
(33:15):
trouble, and they didn't necessarily havethe potential that they were going on to
these amazing things. And Brian hadeverything taken away from him, a whole
life in front of him, andhe was still a kid. I took
his case. You know, he'sstill in his twenties, So we took
the case. A lawyer who washis lawyer I don't really want to name
his lawyers is now a judge.What we played him in the movie.
(33:40):
Who's the actor who played him inthe movie? Oh, who played Brian
Or played the lawyer, the lawyerman. Oh okay, here was a woman.
She had a very small part,so I don't even remember the actress
who playing. But I mean,but listen, Justin, let me just
say this. We're not bad mouthinganyone. We stated facts. We're saying
she told advised him to take aplea and he did. I mean,
(34:02):
we're not saying yeah exactly, andI was just who is It's important to
be in the movie that she wasn'tseen as the bad person is because a
lot of what she was saying wastrue. He wasn't a white Jerry.
You understand I practice in Los Angeles. Yeah, well, you can definitely
google it. But justin, wesee, uh, you know, victims
(34:27):
recan't you know, their their storiesfrequently and that doesn't normally lead to an
exoneration here in South Carolina. Meanthat was that? Was that all it
took there? Or did you havemore? Yeah? So, And you're
right, Jim. You know,I'm very cynical about recantations because often there's
motives behind them, you know,especially we look at so many sex offender
(34:52):
interfamilial molest cases and get the kidwho comes forward twenty years later and says,
you know, my dad didn't blessedme, And judges just look at
that and go, no, that'snot going to do it. We don't
know what kind of pressure. Sometimesgang cases, there's pressure put on witnesses
to a canter testimony. I thinkthe thing about Brian's case that was unique,
(35:13):
and there were many things that wereunique about it. But and this
is if you watch the movie youcan you'll see it portrayed. Is that
because Brian was out of custody,I was in the middle of a hearing
on another case and I noticed thehead of the habeas unit was showing up
and sitting in the back of theroom watching this case. So I went
up to him and I said,look, I got this client, Brian
Banks, and I really believe he'sinnocent. Would you just sit down with
(35:36):
him? And he said okay,And I called Brian up, and Brian
rushes down to the courthouse and wesit down and talk for an hour,
and he believed Brian. And thenwhen the investigator tracked down the complaining witness,
nobody believed her because she couldn't keepher story straight at all, with
a lot of lies, you know, it's hard to remember what you lied
(35:57):
about. So when I inter viewedher, you know when you went when
when you went to when I wentto the high school. First of all,
she claimed he dragged her down thishallway into the stairwell and raped her.
And California high schools are so open, and this one was no exception
where there was all these classrooms andthen the teachers told us that they kept
their doors open and there was justno way he was dragging her through the
(36:21):
school the kidnapp her. And thenwhen I questioned her, she literally just
said, yeah, Brian and Iwent down to the stairwell and I thought
we were just going to make out. And I said, you know,
so you just went down to thestairwell with him. Yeah, And so
I turned to the DA I waslike, well, there goes the kidnapping
charge. Like they just totally forgottenwhat she liked about. And the sad
(36:43):
thing is, you know, Idon't consider myself some brilliant lawyer who broke
her down like Perry Mason. Itwas just like no one asked her basic
questions because the case never went tocourt and it got pled out. And
that's that's the important message. Inthat movie and in Brian's story, is
that now pleading out ninety percent ofcases those cases, of course, most
(37:07):
of the people are guilty. Imean, I'm not naive about it.
And I always say, you know, there's two naive positions. One is
everyone's guilty, and one is everyone'scitizen. You know, most people are
guilty. But what percentage of thosewere the person was the person just making
a business decision and cutting their losses? We don't know. But Brian was
one of those people. Well,I can't find this judge's name, but
(37:29):
you need to text me later.I mean, you know, I need
to know one before anyway. Youknow, it's really hard in these cases,
though, to talk to the victimsbecause they don't have to talk to
you, and you send an investigatorout and and if he gets too aggressive,
then you get a call from theDA saying, hey, you're you're
(37:49):
witness tampering. You're trying to obstructjustice. You know your your clients,
We're going to revoke your client's bond. I mean, it is, it's
it's it's tough. People don't understandhow hard it is, and it is.
Well, if you watch if youwatched the Brian Banks movie with Greg
Kinnear playing me, you will seeGreg portraying how sometimes I utilize the media
to flush people out and get themto respond, and so by getting the
(38:15):
story out into the media actually gother to want to defend against that,
even though she'd already recanted on video. And the reason what happened was she
first recanted, but then she recantedher recantation because on top of Brian going
to prison, she got a millionand a half dollar settlement from the county
for allgally being raped at school.And so then she talked to her mom
(38:38):
and her mom was like, whatdid you do? They're going to ask
for that money back. And thenshe recanted her recantation, and then she
had sixteen different stories about it.So finally when she came forward, the
you know, the investigator didn't believeher, the DA didn't believe her,
and they conceded. So ultimately whathappened was the DA conceded. It was
(39:00):
the case in justin which courthouse ifit's a long beach case, okay,
yeah, not a great courthouse either, not a very it was a very
conservative courthouse. Yeah, and especiallywith that kind of case. Yeah,
yeah, Jim, I think wewere were we going to talk about Yeah,
(39:22):
I was going to ask Justin,you know what, what inspired you
to get involved with the Innocence Project? Starting the Innocence Project in California.
Sounds like you were living a prettygood life in Michigan teaching. Yeah,
I was. I mean I startedout as a criminal defense attorney in d
C during the Crack Wars, whenDC was the murder capital of the world.
(39:45):
And you know, after a fewyears, I got seduced by academia.
You know, I could move toa little town in Michigan, My
kids could walk to school safely andattend a public school, and could buy
a little Victorian house for eighty ninethousand dollars. So I got lured into
that life. But I was onlytwenty nine years old, and within six
months of doing it, I readabout this case Marilyn Malaro are sitting on
(40:09):
death row and all to a pleabargain, and that just sucked me right
back in. And then I decidedI was just too young to be hanging
up my practice, which I dolove practicing law. I've practicing my entire
career and now, and I've beenlucky the last twenty five years, I've
been able to combine my practice withteaching, and yeah, I went to
(40:30):
California to do it for a numberof reasons. I mean, one of
the reasons is I've got a lotof family and San Diego is an awesome
place to live. But there werefive or six of us that started innocence
organizations around the country. Larry Marshallstarted one in Chicago, Barry Seck started
one in New York, Jackie McMurtry. They were like five or six people
(40:52):
doing this work. Larry Hammond inArizona, and so California was the biggest
prison system in the United States withdeath row and three strikes and you know,
everything you need. So California wasyou know. I talked to Barrysheck
about it and I said this,I want to do this out in California.
And it's incredible to see the growthof our movement. Though our first
(41:13):
meeting was seven of us sharing apizza in Chicago, and at our last
meeting in Phoenix last year, wehad eleven hundred people who are associated with
innocence organizations and ax honeries and it'sreally been a movement. The last we're
big fans, and we do.It's one of our you know, Innocence
Project and ACLU are the ones thatJim and I give to most. We
(41:35):
when Jim was done with the Murdochtrial, because there was so much hate
there still is in Low Country,South Carolina over this case, he made
these mugs that It's really funny.It was like his picture in this,
you know, one of those cardboardthings you stick your face in as he
was leaving the area, you know, when you finished the trial, and
(41:57):
in the back of it it saysmy even my hater got haters and we're
like, okay, we got wegot because people were asking for the mugs.
But I said to Jim, Iwas like, you mean, god,
the mugs are like fifteen bucks,twenty bucks of shippings and other ten
bucks. Like you can't justly giveaway these mugs. At the same time,
we're lawyers. We don't want tosell mugs. So what do we
do? So we actually had themdonate to the Innocence Project and send us
(42:22):
the receipt so that they could geta mug anyway. So the last thing
I want to sort of close withJustin is that you know, look,
I mean no system is perfect.I still think despite the flaws in our
system, we have somewhat of adecent system depending on where in the country,
(42:44):
of course. You know, Ilived in Brazil when I graduated law
school. I practiced there for aboutfour and a half years, and I
know that you're doing some work downthere, which is why I want to
talk to about this. But Imean, there's a lot of very serious
crimes that go so on they're noteven crimes, or are they go unprosecuted.
(43:04):
There's also a lot of corruption.I mean literally it's about you know,
what judge you know and what favoryou can do, and there's a
lot of that going on too.So tell us about what's taking you to
Latin America, which countries and whatare you doing there to sort of continue
this work. Sure, well,my first job in Latin America was in
(43:25):
nineteen seventy nine when my parents movedour family to Puerto Rico and I worked
at the first McDonald's there. Eversince then, I've been working to Latin
America. So when I went throughhigh school in Puerto Rico and then and
learned us speak Spanish, and whenI moved to California, we're right here
on the border in San Diego.It seemed a natural thing to start doing
(43:47):
stuff in Tijuana. So I starteddoing going down, doing presentations, work
with lawyers, and then I gotinvited to train the first twelve public defenders
in Chile after the fall of Pinochet, and so I trained started training lawyers
throughout Latin America. You know,just like everything in life, if you
(44:08):
do something decently well, you keepgetting invited back, and dance card gets
punched very quickly. So for thepast, you know, twenty five years,
I've been doing training and the lastand then that led to with my
innocence work naturally to start starting innocenceprojects, and now I've been part of
(44:30):
founding thirty eight projects from Chile,Argentina all the way through South America and
Brazil, Central America and Mexico.In fact, right before this podcast,
I was on the phone for thelast two hours working with a lawyer in
Mexico on a murder case. Andtonight, after I'm done teaching, I'll
(44:51):
be driving to Mexicollie because tomorrow I'vegot a mood court competition that I'm putting
on between law schools there. SoI mean This might be a stupid question,
but how do you train people inthese countries? If I mean,
don't you need familiarity with their systemand their law. Yeah, you need
familiarity, But mostly what I trainon as trial skills, I've got it
(45:14):
in Mexico, like Chile had neverhad trials before, and Mexico has met
trials for four hundred years, andin the reforms over the last ten years
that Mexico had a constitutional amendment thatcreated the right to trial and so in
oral trials. And the problem isthough that Chile, I mean, it's
(45:37):
a complex thing. Chile was notas challenging as Mexico, not even remotely.
First of all, the size ofit is nothing compared to Mexico.
And we started working with lawyers inthe southern tip of Chile and worked the
way towards Santiago, rebuilding courthouses,training lawyers. But the big difference is
that the Chileans really wanted a newguy and a new system because they went
(46:01):
through an extreme totalitarian government where peoplewere there were death camps, people were
being pulled out of their homes atnight and executed, and whereas all the
problems we have in Mexico. Itwas nowhere near as bad as what Chile
was dealing with in the eighties andnineties, So Mexico is much tougher.
Also, I didn't realize until Igot a federal grant that I applied for
(46:24):
to train Mexican law students how todo trials. Because it's so challenging to
train the fifty year old lawyers.I'm so resistant to change. So I
said, they've got to get tothe kids. Nobody realized how many law
schools there were in Mexico. Andtake a guess how many law schools are
in Mexico. You go first,Sarah, how many you think they would
(46:45):
be in Mexico? Thirty? Jim, what do you think you know?
Now that you say that, Iwould say one hundred and fifty. Matt,
I'll take the over on gyms,I'll say more than two hundred.
Well, you would win, butyou're still pretty far off. There's two
hundred law schools in the United States. There's one two thousand law schools in
(47:06):
Mexico. Wow, And so youhave this massive system where there's no accreditation
standing right. I was going tosay, there's also because my mom used
to do this accreditation accreditation work aspart of she was a professor at UCLA.
But it's that I believe in Mexicothey go to law school straight from
(47:30):
high school. That's right. Yeah, there's no degree, yeah, undergraduate
degree, no accreditation, stand,there's no bar exam. Yeah. So
you graduate from law school in Mexico. It's as if if you were a
psychology major here undergrad and as soonas you graduated you were a clinical psychologist
or a psychiatrist, you can allof a sudden be prescribing medication. And
(47:52):
so the problem is that they arenot getting trained in law school to do
this. So this new grant thatI got that Universe sam work in the
University of San Diego School of Law, and which is I'm going down tonight
to continue our work on is we'retrying to train the law schools how to
teach trial practice, and then wecreate competitions between the schools to get the
(48:13):
kids excited about learning trial skills andpracticing them in competitions. What did Mexico
have before they had trials? Imean, how would they admunicate a charge?
So there's a great documentary on thistopic, the most watched documentary in
the industry of Mexico. It's calledPresume Guilty, and you can actually just
(48:36):
watch it by googling it for freebecause the documentarian wanted everybody to see it,
and it shows you how the systemworks. And the way the system
worked was you would just literally filepaperwork on your case. Typically the prosecutor
would meet with the judge after theyfound your guy guilty, they would decide
the sentence and then issue it.Everything was on paper. You could not
(49:00):
challenge a police officer's report. Nowimagine that for a second. You have
like the second most corrupt police forcein the world, second only to Egypt,
and whatever they put in that policereport, you cannot challenge it.
That's fact. And so everybody getsconvicted and there's no way to challenge it.
And when you see in this movie, the officer doesn't even remember what
(49:22):
they wrote on the report, inthe same way that Brian's you know,
Find's alleged victim doesn't remember what shelied about. And so that's what we
spend a lot of time doing istraining the lawyers how to cross examine evidence,
how to cross exam and witnesses,because it's not part of their training
and it's a Roman based system asmost of the world is. So what
(49:45):
they do in law school is theyjust memorize laws if they're not learning skills,
so they don't see they're just learningstatutes and case la and mostly just
statutes, not case case. Isa weird thing for them to comp as
to why we care so much aboutcase law? Always like, well,
who cares what these cases say?This is what the statute is. I'm
(50:06):
like, well, in the UnitedStates, it's all about how judges interpreted
those statutes. And you know,we have this we're so jurisdictional in such
micro levels that most of the worlddoesn't understand how we have fifty seven penal
codes and everything's at the county levelin terms of the power. So it's
very, very different in Latin America. Are you taking any volunteers for Brazil?
(50:30):
That project may very well be interested. If you want me to connect
you up with them, I'm happyto do it. Yeah, for sure.
Do you speak Portuguese still or Portuguese? Oh excellent? I do not.
Yeah, although it's interesting when Igo there how more people seem to
speak English than speak Spanish. Well, they get really pissed off, they
(50:51):
get really pissed off when people startspeaking Spanish in Brazil because they're like the
only Latin American country that or SouthAmerican country that are not Spanish speakers,
and people just assume that everybody therespeaks Spanish, so they rather speak English.
But yeah, no, I meanI spoke Spanish before Portuguese, so
when I went down there, itwas although it's not really to me,
(51:12):
it's not that similar to Spanish.It's more French and Italian, and I
speak French, so I don't knowit just it came to me very easily.
But yeah, not because of that, but because I'm just I.
You know, I have an affinitytowards the country. I go there a
lot, and I would love to. Yeah, let me connect you off
with They're great people to Brazilians.Project in South Polo okay really what the
(51:35):
director there actually came and worked inmy office for like six months to learn
how to do the work. Okay, down there, So it's one of
our most successful projects, and ofcourse we're going to communicate it, but
I still want to know who representedBrian Banks. I'm not letting that go.
Jim, did you have any otherquestions for Justin as well, no,
Justin, thank you so much forcoming on. The Presumption podcast has
(51:59):
been very enlightening. I really doappreciate you coming on, and I'm a
big fan of your book and yourwork. Thanks for doing Thanks for doing
it. Thank you so much,Justin, and I'll talk to you soon.
Pleasure, take care, everybody.You all right? At this point,
Sarah, I think we should.Oh, we're gonna rest, Jemmy,
we're resting. Yes,
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