July 1, 2024 • 37 mins
Jake Halpern speaks with James Forman Jr., story consultant on Deep Cover’s fourth season, The Nameless Man. James Forman Jr. is the J. Skelly Wright Professor of Law at Yale Law School, and the author of Locking Up Our Own. We recommend listening to this episode after you’ve heard the whole series.
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Speaker 1 (00:15):
Pushkin. I think the fear of journalists is always that
we parachute into these realms that we actually don't know
very much about, and that we're going to get something wrong.
And so I remember I reached out to you with
my fingers crossed that you would basically agree to be
(00:35):
a consultant on this, and I'm super grateful that you
agreed to it. Yeah.
Speaker 2 (00:39):
No, I was really glad to do it and really
excited about how the story turned out.
Speaker 1 (00:45):
But James, you and I this is not our first collaboration, No,
it's not. We actually had a far more stressful collaboration,
which was little league flag football where we went to
the Super Bowl.
Speaker 2 (01:00):
We did we almost made it. We were like two
minutes away from being the New Haven area and under champs.
Speaker 1 (01:13):
I'm talking here with James Foreman Junior. He's a former
public defender who now teaches at the Yale Law School,
and also he's my friend. We even coached our kids
flag football team together. I really trust James, and so
I brought him on to be our legal consultant for
The Nameless Man. He listened to each episode in draft
(01:34):
form and gave us great notes that I think made
this series much stronger. We had some really good conversations,
and I wanted to keep that going. So one day
we sat down at the Yale Porvus Center for Teaching
and Learning to discuss his reactions to the series. The
first thing that I wanted to talk to James about
was the one guy I really wanted to talk to
(01:57):
and couldn't, Craig Peterson. I want to talk about Craig
because these agents pursue this. Right, they drive up to Vermont,
they say, you know, we believe you were involved with this.
(02:18):
He he denies this. He says, I don't know what
you're talking about. He then, about a year and a
half later, calls them. They have a subpoena ready for him, saying,
we're gonna we want you to testify. You you are
going to be required to testify by this subpoena in
this grand jury looking into the into this murder that
we believed happened. And at that point there's this pivotal
(02:44):
moment and this whole thing where he asks for immunity
and confesses. How do you wrap your head around that
sequence of events?
Speaker 2 (02:51):
I mean, there's so many things about that part of
the story that are you know, unusual. I mean, it's
unusual for somebody to confess under so little pressure. Uh,
you know, what you've outlined was, you know, relatively mild.
But then the immunity part is the part that just
(03:13):
I mean, the first time you told me about it,
I had like seventeen different questions because I've never seen
anything like it. Normally, you would want to have more
corroboration of what Craig is saying before you're going to
grant him immunity, because maybe Craig is more involved than
(03:36):
he's letting on. And so I was surprised by how
early it came. The whole process of immunity is normally
just much more formalized, and you know, things are different
in different jurisdictions and practices are different everywhere, but particularly
as this was a federal prosecutor, it was that I
(03:56):
think was particularly surprising how informal the process was.
Speaker 1 (04:00):
We're getting ahead of ourselves a little bit. But it's
on the topic of Craig, and this is a question
I asked Scott Duffy to the FBI agent, how does
it sit with you that Craig never faces prosecution.
Speaker 2 (04:13):
I'm not a huge fan of him. Not being prosecuted,
although I don't think that most people who are prosecuted
need to go to prison, and those that do to
go to prison, I don't typically think need to go
for very long. I like to separate my views of
prison from my views of prosecution, and I know it's
(04:37):
hard to do because in our society they're so closely
linked because we don't have other forms of accountability.
Speaker 1 (04:45):
Yeah, Like, I'm trying to wrap my head around that, Like,
are you suggesting he'd be prosecuted and then just have
like a very short criminal sentence and then have that
on his record.
Speaker 2 (04:54):
Yes, or some version thereof what I'm really drawn to,
which is in some ways is beyond the scope of
the podcast in one sense and the system that we in.
But I'm very drawn to models of restorative justice. So
I'm very drawn to the idea that what we really
(05:16):
want to be thinking about is identifying harm and trying
to remedy and respect and recognize that harm. Right now,
what we do is, we, you know, identify people that
(05:38):
we label as criminals, and we prosecute and typically we
incarcerate them. People who are victims of crime often are
desperate to know why did you do this, Why my child,
(06:06):
my brother, my grandson, And how do you feel about
what you've done, the harm that you've caused? Like, we
could have very different models where people are called to account,
(06:28):
where people who have committed harm have an opportunity to
really dwell in the pain that they've caused and look
directly in the eyes of people who they've hurt or
family members of people who they've hurt if it's a homicide,
and acknowledge that pain and apologize. And I would like
(06:51):
to see what that might look like in a case
like this, And I would want to see what the
how the Wood family would feel about that.
Speaker 1 (06:58):
That's there's a bunch to unpack there. But the first
thought that occurs to me is, in this situation, you've
got an You've got a kind of unusual or interesting
situation because you have theory. We have two perpetrators of
the crime, the guy that pulled the trigger and the
guy that.
Speaker 2 (07:12):
Drove the car.
Speaker 1 (07:14):
The guy that drove the car is admitting to doing it,
and according to Carmen Leinberger is expressing to her deep
remorse during the grand jury, and she said, remorse to
his soul.
Speaker 2 (07:27):
What if he were sitting in their living room, telling
them that how would they how would they feel? And
they might also want to be involved in it with
him in a conversation about well, what could he do
to make amends? I mean saying you're sorry, looking somebody
(07:47):
in the eye, looking that family in the eye. That's
a courageous thing. That's a good start, right looking at them,
saying here's what I did, Here's why I did it,
Here's what put me in that driver's seat that night,
Here's how I feel about having testified. And I know
(08:07):
that all those things are they're so small compared to
the harm that I cause. So I'm not asking to
be a hero, far from it. But I do want
you to understand that I have taken some steps. Now
can we be in dialogue about what else I could do?
(08:29):
When you do restorative justice conferences, the kinds of ideas
that come from the families of victims are much broader
than what the criminal justice system says, right, which is
basically either like incarceration or probation or conviction on your
(08:50):
record for life. As you said, a lot of times,
people even they don't want that, that doesn't make them
feel whole. But I bet there are other things that
could come which would at least begin to start to
fill the whole that will never be filled.
Speaker 1 (09:09):
Yeah, it occurs to me that in talking to you,
the Wood family, who is the one that was most
profoundly impacted by this, they never had that. And when
I think about that, that seems kind of crazy.
Speaker 2 (09:22):
That's our system. It's it's completely crazy. And just to
be clear, like that could yet be rectified. Right, all
these people that we're talking about are still alive. I mean,
I've seen situations where, you know, victims would go with
Craig and they would go and they would speak about
(09:46):
the perils of white supremacy and the perils of getting
drawn into that kind of lifestyle. Right, they would speak
to people who maybe were in some ways at risk
of going down that path. I teach a class that
has law students and incarcerated students studying the criminal legal
system together. When we talk about sentencing, one of the
(10:09):
things that my incarcerated students talk about all the time
is how the law prohibits them from having any contact
with the victim. In many cases, they talk about how
they've been locked up for years and they have wanted
(10:31):
to say some version of I'm sorry, but in like
in a deep, complex, nuanced way that tells their story
and really conveys that they've wanted to write letters to
people so that they can know how sorry they are,
they can know how every day that they're locked up
(10:53):
they think about the pain that they caused. They can't
do that in our system, they're prohibited from doing it.
And so there's just so and again you can understand
why a system might say, well, you know, you can't
have contact because they're worried that the contact won't be
of the form that I just described. But this is,
(11:17):
in a lot of ways, you know, a tragic example
of our system making choices that sometimes that there's a
rational that you can understand why we got here, but
it then leads to all of these horrific outcomes.
Speaker 1 (11:31):
Well, I mean, we live in a system where it
seems like the only metric for justice is days, months,
years of punishment, like that's whether justice was served or not.
Speaker 2 (11:43):
Yep, And in fact I'm guilty of it.
Speaker 1 (11:45):
When when I asked Scott about the Scott DeFi how
do you feel? Or even the question I posed to you,
Craig walked free. I think the presumption is the only
reckoning that can occur here is incarceration. And this leads
to this other thing, which is that in this case
you had a lot of good people advocating and motivated
(12:10):
by a desire to help first find the Wood family,
to identify the victim, and then to do.
Speaker 2 (12:16):
Right by them.
Speaker 1 (12:17):
This is what Scott and Terry are motivated by.
Speaker 2 (12:19):
They want to.
Speaker 1 (12:20):
Put Tom Geibison away, and so everything is focused on
that Tom does spend time in jail, and then when
he gets out, no one calls the family to tell
them that he's been released.
Speaker 2 (12:34):
That was one of the most difficult parts of this
podcast to listen to for me, because to me, it's
just a reminder of how, you know, prison and punishment
centered our system is, but not victims centered. We justify
(12:54):
the prison and the punishment in the name of caring
about victims, but we don't do these basic, just decent
things that you would want to do for our family,
particularly where for so long this case was uninvestigated and
(13:16):
unprosecuted and unpunished. I just I just thought, to me,
it just exemplified so many of the things that are
wrong with our system.
Speaker 1 (13:27):
It's interesting because when we had this conversation initially, and
I said, Tom, Tom got seven years. Your reaction was,
if I recall, was something about seven years is a
good chunk of time, Like you didn't think that was
the injustice?
Speaker 2 (13:43):
No, no, But I think my views on that are,
you know, they're informed by how horrible I know that
prison is. They're informed by this earlier conversation that we
were just having, which is that I don't want to
(14:05):
live in a system which met measures the value of
a victim, the worth of the victim only by the
number of years that the person gets for harming them.
And so I guess for me, as somebody who thinks
we should have dramatically shorter sentences across the board, I
(14:29):
you know, I work hard to try to put that
into practice. Now I don't. I'm not gonna lie like
there's you know, I have cases too where you know,
my first reaction is, you know, lock them up for life.
But then what I try to do is temper that.
(14:51):
And so in this case, it seemed based on the
evidence that he was guilty, and I wanted him to
be convicted. But wanting somebody to be convicted right identified
as the person who did this is different from wanting
them to spend the rest of their life in a dungeon.
(15:11):
And that difference I tried to hold on to.
Speaker 1 (15:15):
You say you were hoping for a conviction, but where
did you think this was going? Based on what you
heard from our recreation of the trial.
Speaker 2 (15:24):
I thought that the defense lawyer did a good job.
What I liked about the defense attorney was how passionate
he was. One of the many problems we have in
our system is that sometimes defense lawyers don't have either
the expertise, or the resources or the commitment. So he
seemed to have all of those things, and so it
(15:46):
felt to me like a robust defense, which I want
to happen in every case. But to me, as the
evidence came in, and of course it was you know, Craig,
but also yes, that to me was crucial. Those I
(16:11):
remember when you first introduced those witnesses into the story,
I thought, oh, those, that is a damning fact. The
reason why those two witnesses were so important, I thought,
is that they didn't have a motive to fabricate. And
that's always the key thing. There's basically right, two kinds
(16:32):
of defenses that you can put forward. One is they're mistaken.
And the second is they're lying. The defense that they're
lying is typically always a more powerful defense. But to
make the claim that they're lying, you have to have
(16:53):
a motive to fabricate why are they lying. And I
never thought that the defense in this case had an
adequate explanation for why they would be lying.
Speaker 1 (17:06):
Yeah, his line of argument was they were scorned lovers.
In other words, you know, he cheated on them or
broke up with them, or but that would be quite
a grudge, right.
Speaker 2 (17:15):
Yeah, that's a grudge. And then two separately that was
too independently decide to take out their grudge in the
same way by going to court and testifying from somebody
from all these years ago who had a history of violence.
Testifying in a trial is not an easy matter. Testifying
(17:39):
in a homicide trial is especially not an easy matter.
Testifying in a homicide trial against somebody who had a
history of violence in the way that Tom did. This
is not something you do lightly. So it was not
enough for me of a motive to fabricate. And is
why I remember thinking, Okay, well, maybe Craig has some motive.
(18:02):
Maybe the jury would think that Craig had some motive
but when you're there. The good news is you're there
so you can testify everything that happened. The bad news is,
by your own account, you're an accomplice to murder. And
so if you're willing to kill somebody for no reason,
(18:23):
you might be willing to lie in court right And
so him by himself to me was never going to
be enough. But the two independent girlfriends with no motive
that I found plausible was what made me think that
Tom was guilty. The evidence was, I think, strong, but limited,
(18:48):
and so the jury wanted to ask a lot of
hard questions about whether it matched up exactly, and you know,
they landed where they landed.
Speaker 1 (19:02):
We'll be right back with more from my conversation with
James Forman Jr. I want to talk a little bit
about you, because you've had an interesting career. Before you
were a professor here at Yale, you were a public
defender and I guess was it an interview that you
(19:25):
had where you were kind of up for considering a
position as a prosecutor. You want to tell us about that.
Speaker 2 (19:34):
I remember this conversation really well to this day. So
I was working as a law clerk at the time,
so I was working for Justice O'Connor, and I was
trying to decide on my first real job after law school,
and I had applied to the Public Defender's Office in Washington,
d C. And I'd also applied to work for the
(19:56):
criminal section of the Civil Rights Division of the Department
of Justice. What they do is they prosecute police brutality cases,
so you know, police officers who use excessive force, and
then they also prosecute, you know, cross burnings or other
forms of hate crimes. And that was the position that
(20:17):
I was interviewing for, and that job had a lot
of appeal to me because I was looking at this
through a civil rights and a racial justice lens. And
I remember interviewing with and I won't mention her name,
but she was had been a public defender herself, and
she it came up in conversation that I was thinking
(20:38):
about taking a job as a public defender. And as
soon as I said that, I could see her sort
of connect in a particular way, and she said, all right, James,
I want you to really imagine, you know, the following situation.
You're the prosecutor in a case and it's up for sentencing,
(21:01):
and our office has told you, here's the sentence you
need to ask for, and it's a certain period of incarceration.
And the defense lawyer stands up, and the defense lawyer
starts to make the case to the judge about his
client's background, and he says to the judge, you know,
your honor, my client was abused and abandoned as a child.
(21:26):
My client had disabilities and special needs that were never
recognized by the school system. So he fell further and
further and further behind. His parents were addicted to drugs.
Now as a teenager, he's lost and he feels like
he has nowhere to turn. And there's a group of
(21:48):
people that take him in and they say, we'll be
your family. You can be one of us. But there's
a catch, right, The catch to be one of us
is you have to go commit this crime. You have
to spray swastika on a church, or you have to
(22:09):
throw a mothtop cocktail through the window. And he agrees
to do it, and he does it because he wants
to be accepted, he wants to be respected, he wants
to find some validation somewhere. And the lawyer is turning
to the judge and saying, so don't do what the
Department of Justice is asking. Don't do what mister Foreman
(22:31):
is asking. Don't put this young man in prison. Give
him an opportunity, give him a second chance, understand all
of the constraints and the limitations and the unfairness that
put him in this place where he would do something wrong.
And she looks at me and she says, Okay, now
(22:54):
you've got to respond. Are you going to be prepared
to listen to a story like that and still ask
for this long sentence? And I looked at her, and
I knew that the answer at that moment was no.
(23:17):
I don't think that I could do that. And I
even knew what she was doing. She was saying to me, Look,
the people we prosecute. You might think of them as
a person who's committed a hate crime, and they are.
They are. But most of those people there's a story
for how they became the defenders. They weren't born full
(23:39):
of hate. They were taught that, and in many cases
they overcame their natural reluctance to do something like that,
to cause that kind of harm to somebody else, because
of the context, because of the situation they were in,
because of the life's circumstances. They have been dealt because
the family that they didn't have that they needed, because
(24:00):
of the way the system had abandoned them. That's their
story too, And if you're going to be a prosecutor
in this section, you have to understand that those stories
are real, and you still, even in the face of that,
have to be prepared to ask for this person to
be locked up. It was probably the most important interview
(24:24):
that I've ever had in my life. I will be
forever grateful to her for being so honest with me
because I knew in that moment I couldn't do it,
and I left the office. I turned down the job offer,
and that's I attribute the fact of my becoming a
public defender to that conversation.
Speaker 1 (24:47):
Well, I have to say, I remember, I had heard
you tell this story once before, and I've thought about
it so many times over the course of working on
this podcast. When I heard the cold hard facts of
the case, two white teenagers get in a car drive
to Philadelphia, and if the press execution is going to
(25:10):
be believed, murder this innocent man in point blank range.
The first sight is like, what kind of depravity, what
kind of monsters? Would do something like this, and I think,
and honestly, it wasn't until I heard you talk about
this story that I even began to think that there
was this other narrative, not that it's any means justified
(25:30):
or to apologize for it, but that there's this other
narrative that one could actually look at and see some
humanity in.
Speaker 2 (25:37):
Yeah. Absolutely, I mean from the very first time you
told me about the case and you gave me just
those facts of two white teenagers drive Philadelphia kill somebody,
my mind immediately went to what happened in their life
(26:00):
to have them be in that car, driving to a
city they don't know, to shoot somebody who they don't know,
because aren't born ready to do that.
Speaker 1 (26:11):
I keep thinking back to your point about what if
it would have been the split verdict, but also there
was a chance for Craig to express his remorse, and
whether that might not have made it feel like half
justice to the family at the time. I want to talk,
I want to about the Wood family, but I have
(26:32):
one more thing that I want to ask about. This
is something that I've been thinking of. When they were
connecting the crime to the victim, they took that list
of the particulars, the five particulars, the race, the nature
of the wound, single shot to head, the thirty eight caliber,
and they looked over the unsolved murders in Philadelphia at
(26:52):
the time. A thought that's always nagged me at the
back of my brain is should they have looked at
the quote unquote solved murders? And I don't know, but
you maybe can brite some context because if my sense
is that there have been some wrongful convictions that have
(27:13):
come out of Philadelphia, right.
Speaker 2 (27:15):
For sure, I mean everywhere, but you know, Philadelphia is
one of the jurisdictions that has people actually who got
sentenced to death who have been exonerated. Right, So, yes,
absolutely there have been exonerations in Philadelphia. You know, at
such a good point. I'm kind of embarrassed that you
thought of it and I didn't, because I think that's right.
(27:36):
Of course, there's no incentive for them to do that
because that kind of case would be, you know, virtually
impossible for them to bring because now they are right
they have somebody who got convicted of it. If they
found a case that matched this in all these ways
that we just described, then that would mean either Craig's
(28:03):
lying or mistaken and the girlfriends are wrong, and that
this prosecution shouldn't hold or that the previous one was wrong.
And but they absolutely if they found that, they would
not have gone through with a prosecution of Tom. So
that would have been the end of that.
Speaker 1 (28:21):
But I see what your point is that I hadn't
thought of, which is that there's no incentive to do that,
because that if you're from if you're looking from the
law enforce and perspective that's solved, you don't want to
take anything out of the solved case if you don't
have to write no.
Speaker 2 (28:32):
I mean when I was back when I was a
public defender. You know, it's now been eclipsed by you know,
the Wire. But David Simon's first grade television show was
The Homicide.
Speaker 1 (28:43):
I know you're a fan of the show.
Speaker 2 (28:44):
I love this show so much. I probably brought I
guess I've brought it up before. But in homicide they
write the names of the victims, you know, in chalk
and if you're a homicide investigator and there's you have
a bunch of names on that list on that chalkboard.
I mean, when you walk in every morning, it's like
(29:07):
a badge of shame, right, because there's all these unsolved
names and then they take them off when they solve it, right,
they erase them, and you don't want to have any names.
So once they're erased, as these cases would have been, right,
this would be a solved case. Nobody, no investigator, nobody's
looking at it. We'll be right back.
Speaker 1 (29:33):
Talk to me about what your reactions were, thoughts were.
Once you've had a chance to spend some time with
the Wood family around's two brothers and his niece.
Speaker 2 (29:46):
In some ways, that was my favorite part of the story.
What I found so distinctive about the story the way
you told it was the role that the Wood family
played in the narrative and their fullness and their humanity,
(30:07):
and the way that just came f forward, like the
richness of who they were as a family. They're both
individual stories and then they're collective, you know, hearing them
together and the laughter. I would dream of living in
a world where I could tell you, well, you need
(30:28):
to cut that, because we've just like heard this story
over and over and over again. But black families are
often not portrayed in the light in which you portrayed
the Wood family, and in particular, Black families that have
been victimized, like victimized by crime or victimized by the
(30:49):
criminal justice system often can be kind of rendered in
a very kind of flat way, a very sort of
a set of stereotypes. It's like, oh, we know, we
know what this story is going to be. They fit
into a stock set of characters. And what I really
loved about the family is the way they just didn't
(31:11):
the way they were they were human. And again you
might be like, well, why is that such a big deal,
But my answer is it is such a big deal.
And I think that, you know, I think that Black
listeners especially will pick that up. You know, we'll we'll,
we'll hear that family, the way they interact, the way
(31:33):
they love each other, the way they love Aroan and
are going to be are going to be lifted up
by it on top of everything else that you know,
the podcast is all about.
Speaker 1 (31:47):
Well, I appreciate that. And I have to be honest,
I didn't do much. Sometimes as an interview you have
to work really hard to draw out I didn't have
to do that. They just had this warmth, like we
set up in this room and the laughter was really
(32:09):
it was right off the bat, we were joking about football.
They were just lovely, warm people, and you know there's
some hard stuff in there, like Tyrone the younger brother,
talking about just matter of factly that after his brother's
death he fell into alcoholism and talking, you know, but
(32:30):
talking about it in a way that was very like honest,
and then how we kind of pulled himself out of that.
You know, Michael the middle brother, when we were talking
about the restorative justice, I was thinking about him because
you know, as you probably recall, he had this moment
where he had a relative come to him at the
funeral and say, you must forgive the man that did
(32:50):
this to your brother. And Michael and I were talking
about this, like how do you do that? Initially at
least when you have no idea, Like how do you
forgive you know, a blank face? And then I just
have to say it was like deeply moving to me
when he got to the trial and he looked at
(33:13):
Tom Guybison and he said he felt certain that this
was the man that killed his brother, and he said
I had forgiven him. Yeah, James, this has been great.
I really I really appreciate you sharing this experience with
me and giving me your insights, and yeah, it means a.
Speaker 2 (33:31):
Lot due you didn't ask me your your your money
question all.
Speaker 1 (33:36):
I got to the hail Mary.
Speaker 2 (33:37):
I'm waiting for the hail Mary. I had something I
wanted to say. I was going to bring it up.
Speaker 1 (33:41):
Hey, it's it's fourth down. The Bills are on their
own five yard line. What is a question that I
didn't ask that I should have asked.
Speaker 2 (33:49):
I wanted to just mention something that I mentioned. I
think it was the first thing that I said in
our first conversation, or it was very very early on
about why I thought this story was so important and
why I was drawn to it from the beginning. Yeah,
and it's that there is such a long history of
(34:13):
kind of under enforcement and under protection in black communities.
And so when we think about discrimination in the criminal
justice system today, as we sit here now in twenty
twenty four, right, our minds are very drawn to the
idea of over policing and over punishment and over prosecution, right,
and stopping frisk, and excessive sentences and unfair imposition of
(34:39):
the death penalty. Right. But there's a whole nother part
of the story of discrimination in the system, which is
crimes against black victims not being investigated and not being prosecuted,
not being taken seriously by society. So the first time
you told me about this case and you said you
know that it was going to be there was a
(34:59):
black man that was shot in Philadelphia and perpetrators are
not brought to justice, I thought, oh, good, this is
it is very important to have to lift up stories
like this as well. And that's the last thing that
I want to say, is that And this is in
some ways connected back to what I was telling you
when I couldn't decide if I was going to be
(35:21):
the prosecutor for hate crimes or if I was going
to be a public defender. In my mind, they are
two sides of the same coin, right, And so in
my mind, it really is the fact that what they
have in common is that we are not taking black
life seriously enough. And so what that means is we
(35:42):
don't take it seriously enough to protect it in the
first instance, and then if somebody is put on trial
or if somebody is facing sentencing, we don't see that
life as capable of redemption. And so in both cases
it leads to again on the one hand, either under
protection or on the other hand over punishment, and I
(36:04):
think that this story that you're telling is a really
important reminder for listeners that that part of the unfairness
and the discrimination in the system remains.
Speaker 1 (36:32):
James Foreman Jr. Is the Skelly Right Professor of Law
at the l Law School. I recommend you check out
his book, Locking Up Our Own and his next book
will be out on July ninth. It's called Dismantling Mass Incarceration,
a Handbook for Change. Thank you to the yl Poor
Vous Center for Teaching and Learning, where we recorded this conversation.
(36:55):
This episode was produced by Amy Gains McQuaid. Our editor
is Karen Chakerji. Our executive producer is Jacob Smith. Our
show art was designed by Sean Carney. Original scoring in
our theme was composed by the This episode was mastered
by Sarah Bruguer. Special thanks to Sarah Nix and Greta Cone.
(37:17):
I'm Jake Calpern
Pushkin. I think the fear of journalists is always that
we parachute into these realms that we actually don't know
very much about, and that we're going to get something wrong.
And so I remember I reached out to you with
my fingers crossed that you would basically agree to be
(00:35):
a consultant on this, and I'm super grateful that you
agreed to it. Yeah.
Speaker 2 (00:39):
No, I was really glad to do it and really
excited about how the story turned out.
Speaker 1 (00:45):
But James, you and I this is not our first collaboration, No,
it's not. We actually had a far more stressful collaboration,
which was little league flag football where we went to
the Super Bowl.
Speaker 2 (01:00):
We did we almost made it. We were like two
minutes away from being the New Haven area and under champs.
Speaker 1 (01:13):
I'm talking here with James Foreman Junior. He's a former
public defender who now teaches at the Yale Law School,
and also he's my friend. We even coached our kids
flag football team together. I really trust James, and so
I brought him on to be our legal consultant for
The Nameless Man. He listened to each episode in draft
(01:34):
form and gave us great notes that I think made
this series much stronger. We had some really good conversations,
and I wanted to keep that going. So one day
we sat down at the Yale Porvus Center for Teaching
and Learning to discuss his reactions to the series. The
first thing that I wanted to talk to James about
was the one guy I really wanted to talk to
(01:57):
and couldn't, Craig Peterson. I want to talk about Craig
because these agents pursue this. Right, they drive up to Vermont,
they say, you know, we believe you were involved with this.
(02:18):
He he denies this. He says, I don't know what
you're talking about. He then, about a year and a
half later, calls them. They have a subpoena ready for him, saying,
we're gonna we want you to testify. You you are
going to be required to testify by this subpoena in
this grand jury looking into the into this murder that
we believed happened. And at that point there's this pivotal
(02:44):
moment and this whole thing where he asks for immunity
and confesses. How do you wrap your head around that
sequence of events?
Speaker 2 (02:51):
I mean, there's so many things about that part of
the story that are you know, unusual. I mean, it's
unusual for somebody to confess under so little pressure. Uh,
you know, what you've outlined was, you know, relatively mild.
But then the immunity part is the part that just
(03:13):
I mean, the first time you told me about it,
I had like seventeen different questions because I've never seen
anything like it. Normally, you would want to have more
corroboration of what Craig is saying before you're going to
grant him immunity, because maybe Craig is more involved than
(03:36):
he's letting on. And so I was surprised by how
early it came. The whole process of immunity is normally
just much more formalized, and you know, things are different
in different jurisdictions and practices are different everywhere, but particularly
as this was a federal prosecutor, it was that I
(03:56):
think was particularly surprising how informal the process was.
Speaker 1 (04:00):
We're getting ahead of ourselves a little bit. But it's
on the topic of Craig, and this is a question
I asked Scott Duffy to the FBI agent, how does
it sit with you that Craig never faces prosecution.
Speaker 2 (04:13):
I'm not a huge fan of him. Not being prosecuted,
although I don't think that most people who are prosecuted
need to go to prison, and those that do to
go to prison, I don't typically think need to go
for very long. I like to separate my views of
prison from my views of prosecution, and I know it's
(04:37):
hard to do because in our society they're so closely
linked because we don't have other forms of accountability.
Speaker 1 (04:45):
Yeah, Like, I'm trying to wrap my head around that, Like,
are you suggesting he'd be prosecuted and then just have
like a very short criminal sentence and then have that
on his record.
Speaker 2 (04:54):
Yes, or some version thereof what I'm really drawn to,
which is in some ways is beyond the scope of
the podcast in one sense and the system that we in.
But I'm very drawn to models of restorative justice. So
I'm very drawn to the idea that what we really
(05:16):
want to be thinking about is identifying harm and trying
to remedy and respect and recognize that harm. Right now,
what we do is, we, you know, identify people that
(05:38):
we label as criminals, and we prosecute and typically we
incarcerate them. People who are victims of crime often are
desperate to know why did you do this, Why my child,
(06:06):
my brother, my grandson, And how do you feel about
what you've done, the harm that you've caused? Like, we
could have very different models where people are called to account,
(06:28):
where people who have committed harm have an opportunity to
really dwell in the pain that they've caused and look
directly in the eyes of people who they've hurt or
family members of people who they've hurt if it's a homicide,
and acknowledge that pain and apologize. And I would like
(06:51):
to see what that might look like in a case
like this, And I would want to see what the
how the Wood family would feel about that.
Speaker 1 (06:58):
That's there's a bunch to unpack there. But the first
thought that occurs to me is, in this situation, you've
got an You've got a kind of unusual or interesting
situation because you have theory. We have two perpetrators of
the crime, the guy that pulled the trigger and the
guy that.
Speaker 2 (07:12):
Drove the car.
Speaker 1 (07:14):
The guy that drove the car is admitting to doing it,
and according to Carmen Leinberger is expressing to her deep
remorse during the grand jury, and she said, remorse to
his soul.
Speaker 2 (07:27):
What if he were sitting in their living room, telling
them that how would they how would they feel? And
they might also want to be involved in it with
him in a conversation about well, what could he do
to make amends? I mean saying you're sorry, looking somebody
(07:47):
in the eye, looking that family in the eye. That's
a courageous thing. That's a good start, right looking at them,
saying here's what I did, Here's why I did it,
Here's what put me in that driver's seat that night,
Here's how I feel about having testified. And I know
(08:07):
that all those things are they're so small compared to
the harm that I cause. So I'm not asking to
be a hero, far from it. But I do want
you to understand that I have taken some steps. Now
can we be in dialogue about what else I could do?
(08:29):
When you do restorative justice conferences, the kinds of ideas
that come from the families of victims are much broader
than what the criminal justice system says, right, which is
basically either like incarceration or probation or conviction on your
(08:50):
record for life. As you said, a lot of times,
people even they don't want that, that doesn't make them
feel whole. But I bet there are other things that
could come which would at least begin to start to
fill the whole that will never be filled.
Speaker 1 (09:09):
Yeah, it occurs to me that in talking to you,
the Wood family, who is the one that was most
profoundly impacted by this, they never had that. And when
I think about that, that seems kind of crazy.
Speaker 2 (09:22):
That's our system. It's it's completely crazy. And just to
be clear, like that could yet be rectified. Right, all
these people that we're talking about are still alive. I mean,
I've seen situations where, you know, victims would go with
Craig and they would go and they would speak about
(09:46):
the perils of white supremacy and the perils of getting
drawn into that kind of lifestyle. Right, they would speak
to people who maybe were in some ways at risk
of going down that path. I teach a class that
has law students and incarcerated students studying the criminal legal
system together. When we talk about sentencing, one of the
(10:09):
things that my incarcerated students talk about all the time
is how the law prohibits them from having any contact
with the victim. In many cases, they talk about how
they've been locked up for years and they have wanted
(10:31):
to say some version of I'm sorry, but in like
in a deep, complex, nuanced way that tells their story
and really conveys that they've wanted to write letters to
people so that they can know how sorry they are,
they can know how every day that they're locked up
(10:53):
they think about the pain that they caused. They can't
do that in our system, they're prohibited from doing it.
And so there's just so and again you can understand
why a system might say, well, you know, you can't
have contact because they're worried that the contact won't be
of the form that I just described. But this is,
(11:17):
in a lot of ways, you know, a tragic example
of our system making choices that sometimes that there's a
rational that you can understand why we got here, but
it then leads to all of these horrific outcomes.
Speaker 1 (11:31):
Well, I mean, we live in a system where it
seems like the only metric for justice is days, months,
years of punishment, like that's whether justice was served or not.
Speaker 2 (11:43):
Yep, And in fact I'm guilty of it.
Speaker 1 (11:45):
When when I asked Scott about the Scott DeFi how
do you feel? Or even the question I posed to you,
Craig walked free. I think the presumption is the only
reckoning that can occur here is incarceration. And this leads
to this other thing, which is that in this case
you had a lot of good people advocating and motivated
(12:10):
by a desire to help first find the Wood family,
to identify the victim, and then to do.
Speaker 2 (12:16):
Right by them.
Speaker 1 (12:17):
This is what Scott and Terry are motivated by.
Speaker 2 (12:19):
They want to.
Speaker 1 (12:20):
Put Tom Geibison away, and so everything is focused on
that Tom does spend time in jail, and then when
he gets out, no one calls the family to tell
them that he's been released.
Speaker 2 (12:34):
That was one of the most difficult parts of this
podcast to listen to for me, because to me, it's
just a reminder of how, you know, prison and punishment
centered our system is, but not victims centered. We justify
(12:54):
the prison and the punishment in the name of caring
about victims, but we don't do these basic, just decent
things that you would want to do for our family,
particularly where for so long this case was uninvestigated and
(13:16):
unprosecuted and unpunished. I just I just thought, to me,
it just exemplified so many of the things that are
wrong with our system.
Speaker 1 (13:27):
It's interesting because when we had this conversation initially, and
I said, Tom, Tom got seven years. Your reaction was,
if I recall, was something about seven years is a
good chunk of time, Like you didn't think that was
the injustice?
Speaker 2 (13:43):
No, no, But I think my views on that are,
you know, they're informed by how horrible I know that
prison is. They're informed by this earlier conversation that we
were just having, which is that I don't want to
(14:05):
live in a system which met measures the value of
a victim, the worth of the victim only by the
number of years that the person gets for harming them.
And so I guess for me, as somebody who thinks
we should have dramatically shorter sentences across the board, I
(14:29):
you know, I work hard to try to put that
into practice. Now I don't. I'm not gonna lie like
there's you know, I have cases too where you know,
my first reaction is, you know, lock them up for life.
But then what I try to do is temper that.
(14:51):
And so in this case, it seemed based on the
evidence that he was guilty, and I wanted him to
be convicted. But wanting somebody to be convicted right identified
as the person who did this is different from wanting
them to spend the rest of their life in a dungeon.
(15:11):
And that difference I tried to hold on to.
Speaker 1 (15:15):
You say you were hoping for a conviction, but where
did you think this was going? Based on what you
heard from our recreation of the trial.
Speaker 2 (15:24):
I thought that the defense lawyer did a good job.
What I liked about the defense attorney was how passionate
he was. One of the many problems we have in
our system is that sometimes defense lawyers don't have either
the expertise, or the resources or the commitment. So he
seemed to have all of those things, and so it
(15:46):
felt to me like a robust defense, which I want
to happen in every case. But to me, as the
evidence came in, and of course it was you know, Craig,
but also yes, that to me was crucial. Those I
(16:11):
remember when you first introduced those witnesses into the story,
I thought, oh, those, that is a damning fact. The
reason why those two witnesses were so important, I thought,
is that they didn't have a motive to fabricate. And
that's always the key thing. There's basically right, two kinds
(16:32):
of defenses that you can put forward. One is they're mistaken.
And the second is they're lying. The defense that they're
lying is typically always a more powerful defense. But to
make the claim that they're lying, you have to have
(16:53):
a motive to fabricate why are they lying. And I
never thought that the defense in this case had an
adequate explanation for why they would be lying.
Speaker 1 (17:06):
Yeah, his line of argument was they were scorned lovers.
In other words, you know, he cheated on them or
broke up with them, or but that would be quite
a grudge, right.
Speaker 2 (17:15):
Yeah, that's a grudge. And then two separately that was
too independently decide to take out their grudge in the
same way by going to court and testifying from somebody
from all these years ago who had a history of violence.
Testifying in a trial is not an easy matter. Testifying
(17:39):
in a homicide trial is especially not an easy matter.
Testifying in a homicide trial against somebody who had a
history of violence in the way that Tom did. This
is not something you do lightly. So it was not
enough for me of a motive to fabricate. And is
why I remember thinking, Okay, well, maybe Craig has some motive.
(18:02):
Maybe the jury would think that Craig had some motive
but when you're there. The good news is you're there
so you can testify everything that happened. The bad news is,
by your own account, you're an accomplice to murder. And
so if you're willing to kill somebody for no reason,
(18:23):
you might be willing to lie in court right And
so him by himself to me was never going to
be enough. But the two independent girlfriends with no motive
that I found plausible was what made me think that
Tom was guilty. The evidence was, I think, strong, but limited,
(18:48):
and so the jury wanted to ask a lot of
hard questions about whether it matched up exactly, and you know,
they landed where they landed.
Speaker 1 (19:02):
We'll be right back with more from my conversation with
James Forman Jr. I want to talk a little bit
about you, because you've had an interesting career. Before you
were a professor here at Yale, you were a public
defender and I guess was it an interview that you
(19:25):
had where you were kind of up for considering a
position as a prosecutor. You want to tell us about that.
Speaker 2 (19:34):
I remember this conversation really well to this day. So
I was working as a law clerk at the time,
so I was working for Justice O'Connor, and I was
trying to decide on my first real job after law school,
and I had applied to the Public Defender's Office in Washington,
d C. And I'd also applied to work for the
(19:56):
criminal section of the Civil Rights Division of the Department
of Justice. What they do is they prosecute police brutality cases,
so you know, police officers who use excessive force, and
then they also prosecute, you know, cross burnings or other
forms of hate crimes. And that was the position that
(20:17):
I was interviewing for, and that job had a lot
of appeal to me because I was looking at this
through a civil rights and a racial justice lens. And
I remember interviewing with and I won't mention her name,
but she was had been a public defender herself, and
she it came up in conversation that I was thinking
(20:38):
about taking a job as a public defender. And as
soon as I said that, I could see her sort
of connect in a particular way, and she said, all right, James,
I want you to really imagine, you know, the following situation.
You're the prosecutor in a case and it's up for sentencing,
(21:01):
and our office has told you, here's the sentence you
need to ask for, and it's a certain period of incarceration.
And the defense lawyer stands up, and the defense lawyer
starts to make the case to the judge about his
client's background, and he says to the judge, you know,
your honor, my client was abused and abandoned as a child.
(21:26):
My client had disabilities and special needs that were never
recognized by the school system. So he fell further and
further and further behind. His parents were addicted to drugs.
Now as a teenager, he's lost and he feels like
he has nowhere to turn. And there's a group of
(21:48):
people that take him in and they say, we'll be
your family. You can be one of us. But there's
a catch, right, The catch to be one of us
is you have to go commit this crime. You have
to spray swastika on a church, or you have to
(22:09):
throw a mothtop cocktail through the window. And he agrees
to do it, and he does it because he wants
to be accepted, he wants to be respected, he wants
to find some validation somewhere. And the lawyer is turning
to the judge and saying, so don't do what the
Department of Justice is asking. Don't do what mister Foreman
(22:31):
is asking. Don't put this young man in prison. Give
him an opportunity, give him a second chance, understand all
of the constraints and the limitations and the unfairness that
put him in this place where he would do something wrong.
And she looks at me and she says, Okay, now
(22:54):
you've got to respond. Are you going to be prepared
to listen to a story like that and still ask
for this long sentence? And I looked at her, and
I knew that the answer at that moment was no.
(23:17):
I don't think that I could do that. And I
even knew what she was doing. She was saying to me, Look,
the people we prosecute. You might think of them as
a person who's committed a hate crime, and they are.
They are. But most of those people there's a story
for how they became the defenders. They weren't born full
(23:39):
of hate. They were taught that, and in many cases
they overcame their natural reluctance to do something like that,
to cause that kind of harm to somebody else, because
of the context, because of the situation they were in,
because of the life's circumstances. They have been dealt because
the family that they didn't have that they needed, because
(24:00):
of the way the system had abandoned them. That's their
story too, And if you're going to be a prosecutor
in this section, you have to understand that those stories
are real, and you still, even in the face of that,
have to be prepared to ask for this person to
be locked up. It was probably the most important interview
(24:24):
that I've ever had in my life. I will be
forever grateful to her for being so honest with me
because I knew in that moment I couldn't do it,
and I left the office. I turned down the job offer,
and that's I attribute the fact of my becoming a
public defender to that conversation.
Speaker 1 (24:47):
Well, I have to say, I remember, I had heard
you tell this story once before, and I've thought about
it so many times over the course of working on
this podcast. When I heard the cold hard facts of
the case, two white teenagers get in a car drive
to Philadelphia, and if the press execution is going to
(25:10):
be believed, murder this innocent man in point blank range.
The first sight is like, what kind of depravity, what
kind of monsters? Would do something like this, and I think,
and honestly, it wasn't until I heard you talk about
this story that I even began to think that there
was this other narrative, not that it's any means justified
(25:30):
or to apologize for it, but that there's this other
narrative that one could actually look at and see some
humanity in.
Speaker 2 (25:37):
Yeah. Absolutely, I mean from the very first time you
told me about the case and you gave me just
those facts of two white teenagers drive Philadelphia kill somebody,
my mind immediately went to what happened in their life
(26:00):
to have them be in that car, driving to a
city they don't know, to shoot somebody who they don't know,
because aren't born ready to do that.
Speaker 1 (26:11):
I keep thinking back to your point about what if
it would have been the split verdict, but also there
was a chance for Craig to express his remorse, and
whether that might not have made it feel like half
justice to the family at the time. I want to talk,
I want to about the Wood family, but I have
(26:32):
one more thing that I want to ask about. This
is something that I've been thinking of. When they were
connecting the crime to the victim, they took that list
of the particulars, the five particulars, the race, the nature
of the wound, single shot to head, the thirty eight caliber,
and they looked over the unsolved murders in Philadelphia at
(26:52):
the time. A thought that's always nagged me at the
back of my brain is should they have looked at
the quote unquote solved murders? And I don't know, but
you maybe can brite some context because if my sense
is that there have been some wrongful convictions that have
(27:13):
come out of Philadelphia, right.
Speaker 2 (27:15):
For sure, I mean everywhere, but you know, Philadelphia is
one of the jurisdictions that has people actually who got
sentenced to death who have been exonerated. Right, So, yes,
absolutely there have been exonerations in Philadelphia. You know, at
such a good point. I'm kind of embarrassed that you
thought of it and I didn't, because I think that's right.
(27:36):
Of course, there's no incentive for them to do that
because that kind of case would be, you know, virtually
impossible for them to bring because now they are right
they have somebody who got convicted of it. If they
found a case that matched this in all these ways
that we just described, then that would mean either Craig's
(28:03):
lying or mistaken and the girlfriends are wrong, and that
this prosecution shouldn't hold or that the previous one was wrong.
And but they absolutely if they found that, they would
not have gone through with a prosecution of Tom. So
that would have been the end of that.
Speaker 1 (28:21):
But I see what your point is that I hadn't
thought of, which is that there's no incentive to do that,
because that if you're from if you're looking from the
law enforce and perspective that's solved, you don't want to
take anything out of the solved case if you don't
have to write no.
Speaker 2 (28:32):
I mean when I was back when I was a
public defender. You know, it's now been eclipsed by you know,
the Wire. But David Simon's first grade television show was
The Homicide.
Speaker 1 (28:43):
I know you're a fan of the show.
Speaker 2 (28:44):
I love this show so much. I probably brought I
guess I've brought it up before. But in homicide they
write the names of the victims, you know, in chalk
and if you're a homicide investigator and there's you have
a bunch of names on that list on that chalkboard.
I mean, when you walk in every morning, it's like
(29:07):
a badge of shame, right, because there's all these unsolved
names and then they take them off when they solve it, right,
they erase them, and you don't want to have any names.
So once they're erased, as these cases would have been, right,
this would be a solved case. Nobody, no investigator, nobody's
looking at it. We'll be right back.
Speaker 1 (29:33):
Talk to me about what your reactions were, thoughts were.
Once you've had a chance to spend some time with
the Wood family around's two brothers and his niece.
Speaker 2 (29:46):
In some ways, that was my favorite part of the story.
What I found so distinctive about the story the way
you told it was the role that the Wood family
played in the narrative and their fullness and their humanity,
(30:07):
and the way that just came f forward, like the
richness of who they were as a family. They're both
individual stories and then they're collective, you know, hearing them
together and the laughter. I would dream of living in
a world where I could tell you, well, you need
(30:28):
to cut that, because we've just like heard this story
over and over and over again. But black families are
often not portrayed in the light in which you portrayed
the Wood family, and in particular, Black families that have
been victimized, like victimized by crime or victimized by the
(30:49):
criminal justice system often can be kind of rendered in
a very kind of flat way, a very sort of
a set of stereotypes. It's like, oh, we know, we
know what this story is going to be. They fit
into a stock set of characters. And what I really
loved about the family is the way they just didn't
(31:11):
the way they were they were human. And again you
might be like, well, why is that such a big deal,
But my answer is it is such a big deal.
And I think that, you know, I think that Black
listeners especially will pick that up. You know, we'll we'll,
we'll hear that family, the way they interact, the way
(31:33):
they love each other, the way they love Aroan and
are going to be are going to be lifted up
by it on top of everything else that you know,
the podcast is all about.
Speaker 1 (31:47):
Well, I appreciate that. And I have to be honest,
I didn't do much. Sometimes as an interview you have
to work really hard to draw out I didn't have
to do that. They just had this warmth, like we
set up in this room and the laughter was really
(32:09):
it was right off the bat, we were joking about football.
They were just lovely, warm people, and you know there's
some hard stuff in there, like Tyrone the younger brother,
talking about just matter of factly that after his brother's
death he fell into alcoholism and talking, you know, but
(32:30):
talking about it in a way that was very like honest,
and then how we kind of pulled himself out of that.
You know, Michael the middle brother, when we were talking
about the restorative justice, I was thinking about him because
you know, as you probably recall, he had this moment
where he had a relative come to him at the
funeral and say, you must forgive the man that did
(32:50):
this to your brother. And Michael and I were talking
about this, like how do you do that? Initially at
least when you have no idea, Like how do you
forgive you know, a blank face? And then I just
have to say it was like deeply moving to me
when he got to the trial and he looked at
(33:13):
Tom Guybison and he said he felt certain that this
was the man that killed his brother, and he said
I had forgiven him. Yeah, James, this has been great.
I really I really appreciate you sharing this experience with
me and giving me your insights, and yeah, it means a.
Speaker 2 (33:31):
Lot due you didn't ask me your your your money
question all.
Speaker 1 (33:36):
I got to the hail Mary.
Speaker 2 (33:37):
I'm waiting for the hail Mary. I had something I
wanted to say. I was going to bring it up.
Speaker 1 (33:41):
Hey, it's it's fourth down. The Bills are on their
own five yard line. What is a question that I
didn't ask that I should have asked.
Speaker 2 (33:49):
I wanted to just mention something that I mentioned. I
think it was the first thing that I said in
our first conversation, or it was very very early on
about why I thought this story was so important and
why I was drawn to it from the beginning. Yeah,
and it's that there is such a long history of
(34:13):
kind of under enforcement and under protection in black communities.
And so when we think about discrimination in the criminal
justice system today, as we sit here now in twenty
twenty four, right, our minds are very drawn to the
idea of over policing and over punishment and over prosecution, right,
and stopping frisk, and excessive sentences and unfair imposition of
(34:39):
the death penalty. Right. But there's a whole nother part
of the story of discrimination in the system, which is
crimes against black victims not being investigated and not being prosecuted,
not being taken seriously by society. So the first time
you told me about this case and you said you
know that it was going to be there was a
(34:59):
black man that was shot in Philadelphia and perpetrators are
not brought to justice, I thought, oh, good, this is
it is very important to have to lift up stories
like this as well. And that's the last thing that
I want to say, is that And this is in
some ways connected back to what I was telling you
when I couldn't decide if I was going to be
(35:21):
the prosecutor for hate crimes or if I was going
to be a public defender. In my mind, they are
two sides of the same coin, right, And so in
my mind, it really is the fact that what they
have in common is that we are not taking black
life seriously enough. And so what that means is we
(35:42):
don't take it seriously enough to protect it in the
first instance, and then if somebody is put on trial
or if somebody is facing sentencing, we don't see that
life as capable of redemption. And so in both cases
it leads to again on the one hand, either under
protection or on the other hand over punishment, and I
(36:04):
think that this story that you're telling is a really
important reminder for listeners that that part of the unfairness
and the discrimination in the system remains.
Speaker 1 (36:32):
James Foreman Jr. Is the Skelly Right Professor of Law
at the l Law School. I recommend you check out
his book, Locking Up Our Own and his next book
will be out on July ninth. It's called Dismantling Mass Incarceration,
a Handbook for Change. Thank you to the yl Poor
Vous Center for Teaching and Learning, where we recorded this conversation.
(36:55):
This episode was produced by Amy Gains McQuaid. Our editor
is Karen Chakerji. Our executive producer is Jacob Smith. Our
show art was designed by Sean Carney. Original scoring in
our theme was composed by the This episode was mastered
by Sarah Bruguer. Special thanks to Sarah Nix and Greta Cone.
(37:17):
I'm Jake Calpern
Host
Jake Halpern
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