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The latest victory for the California Innocence Project and the release of a National Registry of Exonerations.

May 28, 2012 1:16 p.m.


Sam Gross, Professor, editor of the National Registry of Exonerations and University of Michigan Law School Professor

Justin Brooks, Professor, California Western School of Law, Project Director: California Innocence Project

Brian Banks, recently cleared of a rape charge, with help from the California Innocence Project

Related Story: National Database Compiled To Prevent Wrongful Convictions


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

MAUREEN CAVANAUGH: On this Memorial Day we honor military service and celebrate the release of the wrongfully convicted. This is KPBS Midday Edition. The California Innocence Project is celebrating a victory in the case of Brian Banks, a former high school football star now exonerated of rape. Banks will eventually be part of the national Registry of exonerations. We will hear about this new listing of the wrongfully convicted who've been released from prisons across the country. Then a former Navy seal now author Marcus Luttrell tells us what service means to him and we will get a preview of the highlights of San Diego's Film Out 2012. I'm Maureen Cavanaugh. KPBS Midday Edition is next. First the news. On this Memorial Day a former Navy seal talks but the ties that bind those who served their country and the California innocence Project adds one more name to the new national Registry of exonerations. This is KPBS midday addition. I'm Maureen Cavanaugh. It's Memorial Day, Monday, May 28. Here are some of the San Diego stories we are following in the KPBS newsroom. San Diego's annual Memorial Day ceremony took this this morning at San Diego's Fort Rosecrans Memorial Cemetery presidential nominee Mitt Romney spoke at another observance today. He was accompanied by Arizona Sen. John McCain. More than three dozen SDG&E customers in La Mesa and Lemon Grove are without power today. SDG&E said a problem with overhead wires is expected to be resolved by 4 PM. Listen for the latest news through the day right here at KPBS. Our top story on Midday Edition is the latest victory for the California innocence Project and the release of the national Registry of exonerations. We've been hearing about cases of wrongful convictions for more than two decades now, many a result of DNA testing of old evidence but the news comes one case at a time and until now it's been difficult to get an overall sense of exonerations in the US. Now in the largest database of its kind, a list of nearly 900 exonerations have been compiled and released by the University of Michigan law school and Northwestern University. From the University of Michigan school of law I'd like to welcome my first guest, Prof. Samuel Gross. Prof. Gross, welcome to the show.

PROF. SAM GROSS: It's a pleasure to be here.

MAUREEN CAVANAUGH: How did the idea come about to gather all this information in one place in one database?

PROF. SAM GROSS: I've been working on exonerations in one way or another for decades and I did a study of the ones that I could gather information on as of that time in 2004 and in the process realized that what I had was an incomplete list. Because, as I wrote in the paper, there was no national registry of exonerations using lowercase letters, there. And there wasn't about to be one. I couldn't get anybody else to do it. So, the Center on wrongful convictions under the leadership of Rob Warden who is the executive director and I decided that we would do it ourselves and it's been a lot of work but I hope it's worth it.

MAUREEN CAVANAUGH: Now, in what year does the database start?

PROF. SAM GROSS: It starts in 1989 which is the year of the first DNA exonerations in the US, but I'm asked about this from time to time and I can tell you I would very much like to be able to extend it backward to 1960 or 1950, perhaps even earlier and see trends over time. So far we haven't had the resources, but perhaps in the next couple of years.

MAUREEN CAVANAUGH: Now in listing exonerations were they able to determine the reasons why these people had been wrongly convicted?

PROF. SAM GROSS: Yes they were able to determine what factors contributed to or at least some of the factors that contributed to the false convictions and they vary quite a bit from one type of case to another, yes.

MAUREEN CAVANAUGH: And what were some of those reasons?

PROF. SAM GROSS: Well, for murder cases, which are very close to half of the total that we have, the most common reason was perjury or false accusations. For adult sexual assault, in the cases that are most likely to be exonerated by DNA evidence, the most common reason was mistaken eyewitness identification. For child sex abuse cases, which we have quite a few of, it's about over 100, the most common reason for the false convictions was that the crime never occurred and the victims typically under pressure from adults made up crimes that never happened. And so forth. For robberies, they're very much like adult rapes. Most of the eyewitness mistakes. But, much harder to get exonerations because DNA is not available. The most interesting findings as a researcher, I think, is that false conviction, the underlying problem that we are studying is not one problem but a set of different problems depending on the context and the type of crime involved.

MAUREEN CAVANAUGH: I'm speaking with Prof. Samuel Gross from the University of Michigan school of Law. He was one of the people who compiled the national Registry of exonerations. How long, professor grows were some of these people incarcerated before being exonerated?

PROF. SAM GROSS: The average time to exoneration is 11 years. The longest time that comes to mind is 35 years. For, well, there were some who were longer than that over exaggerated exonerated posthumously, but now much more in the range of 30. A man in Michigan by the name of Edward Kennedy was exonerated a year and a half ago after serving 35 years in prison for a rape he didn't commit. And at the low end there were people who were exonerated before they'd ever been sentenced, but for the most part people who are wrongly convicted who get life sentences never show up on the list of exonerations because it takes a lot of time and a lot of work to clear somebody's name, to do the investigation and get the attention and your results in court and people almost never have the resources to bother unless it's a very serious crime and there's very long sentence.

MAUREEN CAVANAUGH: With the number of people that the US has incarcerated in fact the US spends a 20 year time frame, 900 exonerations may not seem like a lot in that particular context. Does this equate the number of exonerations in any way to the number of people we believe might be wrongfully convicted and still being in prison?

PROF. SAM GROSS: No, not at all. We actually talk about the 900 almost that are in the database online plus another 1200 in group exonerations based on police misconduct, in the case where police officers framed innocent defendants in mostly drug and gun cases. But even 2000 exonerations is a very small number in a country like ours. We have over 2 million people in prisons and jails right now, and many more come and go in that period. So if that were the problem I would say it's no big deal, don't worry about it. In fact, this is just a tiny tip of an iceberg. These are the cases that we have learned about where exonerations did take place and it's clear that there are many exonerations we don't know about. And beyond that, it's clear that the vast majority of people who are wrongly convicted never get any relief. Mostly, they just serve their time and go home and try to put it behind them or die in prison. And once in a while especially in some, fraction of the most serious cases, we learn about the mistake after the fact. And he was little we can to correct it 10 or 20 years later.

MAUREEN CAVANAUGH: I've been speaking with Prof. Samuel Gross of the University of Michigan school of Law. Thank you very much for your time today.

PROF. SAM GROSS: You're very welcome.

MAUREEN CAVANAUGH: The California innocence Project based at California Western school of Law here in San Diego is celebrating adding another name to the list of exonerated. Just last week former Long Beach high school football star Brian Banks had his name cleared of a rape charge for which he served almost 6 years in prison. I would like to welcome Justin Brooks. He's director of the California innocence Project. Welcome back to the show, Justin.

JUSTIN BROOKS: Thank you so much.

MAUREEN CAVANAUGH: And Brian Banks joins us on the line and welcome, Brian.

BRIAN BANKS: Thank you so much.

MAUREEN CAVANAUGH: So first, Justin, what do you think having a national registry of exonerations might do for your efforts to help those wrongfully convicted?

JUSTIN BROOKS: I think it allows us to tell a complete story and get people to understand this is not just something that happens every once in a while. It's not a freak of nature and that we can look at the causes of wrongful conviction in a comprehensive way. So I'm hoping that reform will come from this.

MAUREEN CAVANAUGH: This phenomena is actually being studied now?

JUSTIN BROOKS: Sure and as Prof. Gross said this is the tip of the iceberg. You know we've learned that misidentification is one of the leading causes of wrongful conviction. Now the question is what do we do about that? We know that there are better ways to do identifications and we know that a lot of people got misidentified who weren't exonerated and I think one of the things Prof. Gross didn't explain was the reason they are not exonerated. The exonerated ones are the lucky ones where there's evidence around that can later on prove their innocence. Brian's case is an example of that. Without having a recantation by this alleged victim, this case would've never seen the light of day.

MAUREEN CAVANAUGH: One more question about this new national registry. What stands out for you in this list?

JUSTIN BROOKS: The false testimony. I think as defense attorneys we've always known that snitch testimony is unreliable and I think sometimes attorneys make a mistake because they look at it and think about the jury is not going to buy this. You're going to think, they are going to know this is a jailhouse snitch and he will say anything but this shows that is actually the leading causes false testimony in court said a lot of that it's due to jailhouse testimony.

MAUREEN CAVANAUGH: for me looking at another the conversations that you and I have had about this subject through the years, Riverside County has one of the lowest number of exonerations for its size of any county in the country. And I know that from our conversations that that's not necessarily because you believe there's nobody wrongfully convicted in Riverside County.

JUSTIN BROOKS: Exactly. I mean, politics plays a bigger role in this than anything. You know here in San Diego we've got a great relationship with the District Attorney's Office and they are willing to review cases. Well, that willingness to review cases can reveal mistakes. In Los Angeles and in the Brian Banks case the LA Dist. Atty. Was willing to review it. But in other counties in California, San Bernardino certainly comes to mind, Kern County, a lot of the desert counties, they fight us tooth and nail. We can't even get access to the evidence room. So it's very hard to actually make a case.

MAUREEN CAVANAUGH: Now just to get the case of Brian Banks that your innocence project is celebrating. Your students have been working on this case and Brian Banks was, had his name cleared of a rape charge, but before we hear from him in person, why don't you tell us, just give us a capsule version of his story if you would.

JUSTIN BROOKS: Sure, well Brian was a superstar football player in Long Beach, high school kid who had this incredible career ahead of him. He was going off to USC on a full scholarship. A lot of people talked about him ending up in the NFL and all that came to an end one day when one of his classmates falsely accused him of rape. Brian was arrested. He sat in jail for months and his attorney came to him on a hearing date and said we've got a deal. You can plead no contest and we will probably get you out of here in 18 months. Or we can go in there and go to trial. You are facing 41 years. It's going to be your word against hers. If you want to go in there and roll the dice we can do that, otherwise we take the deal and I will get you out in a short amount of time. Brian is a kid, he's 17 years old, the attorney told him she didn't have time for him to talk to his parents about it, and he makes this impossible choice and this case is important because that's what's become a large part of our criminal justice system. 95% of cases are resolved by plea-bargain. It's become almost the entire criminal justice system and with our harsh sentencing in California, people sometimes make the choice to plead even when they are innocent. Now, this would've been the end of the story for us and we wouldn't be here today had it not happened that when Brian got out of prison this woman actually Facebook requests him and says he wants to meet with him. She wants to let bygones be bygones. And she sits down for an interview and says that she made the whole thing up. And another crazy aspect of the story is while Brian was in prison for something he didn't do, he learns that her parents sued the school district and won a $1.5 million settlement. So he's in prison for something he didn't do, and this lie leads to his incarceration and leads to her family getting all this money.

MAUREEN CAVANAUGH: Brian Banks, first of all congratulations and thanks for joining us.

BRIAN BANKS: Thank you so much for having me.

MAUREEN CAVANAUGH: How have you been celebrating having your name cleared of this?

BRIAN BANKS: I've actually been doing a lot of celebrating with Justin spending some time out in San Diego getting some sun and enjoying this freedom. I've been to Sea World and just enjoying some time with friends and just on cloud 10. It's been really great.

MAUREEN CAVANAUGH: Passing cloud nine up to cloud 10. Now, Justin explained to us, gave us a really pretty good idea of the kind of choice that you made when you are first incarcerated and they came to you with this plea deal. But you must have heard that it's hard for some people to understand how you would plead no contest for a crime you didn't commit. How do you explain that to people?

BRIAN BANKS: Yeah, and that wasn't a decision that I willingly made. It was more the decision that I was forced into making. You know at the time I was 17 years old and really putting all my trust and faith in the attorney that my mother worked so hard and paid so much money for to handle this situation for me. And even those two options of either taking this plea you're going to trial based on a lie, you know as a child you see the now, you really don't see the later and what I saw was an opportunity at making this nightmare end as soon as possible and without the proper representation I just really thought at that time that it was best that I take this plea and try to get home as soon as I could get back to my mom.

MAUREEN CAVANAUGH: Now Justin, this woman who falsely accused Brian did not just hurt him but hurt other people also in the process, other attorneys. Will she be prosecuted?

JUSTIN BROOKS: No, I think the district attorney is going to move on from this one. It's very (inaudible) but there are very rarely prosecutions for perjury. I don't think they have much interest in doing it. I don't see much happening with her legally at all.

MAUREEN CAVANAUGH: Brian, what was it like to meet the students who worked so hard to help you clear your name?

BRIAN BANKS: Nothing short of amazing. I went through so many interviews as soon as I was exonerated, I mean countless interviews and what really touched me the most was being able to walk back into the California innocence Project and facing of the people who helped me get to this point, and it you know you really touched me. It was, there was so much that I wanted to say and I just knew that words really can't describe how thankful and appreciative I was for their help. But it was just great to see their faces and to know that they did this for me, is, I'm speechless.

MAUREEN CAVANAUGH: Right. You know I think a lot of people listening to this, Brian, have a hard time even trying to imagine spending five years in prison for a crime you didn't commit and then you know, released with the ankle bracelet, and then having to deal with your name on a sex offender registry, losing jobs, trying to get back on your feet in some way with that hanging on you. How do you deal with all this?

BRIAN BANKS: A lot of patience. A lot of patience and a lot of faith. Just remembering that the objective is to try and live the best life that I can with the circumstances that I have. And, just knowing that I was never going to stop fighting for my freedom. And, in the event that I did receive my freedom back I wanted to be a better person when it happened so that I can move on and move strong. So I just wanted to just have patience and stay positive and just do what I was, you know what my mother taught me and raised me to do and just have faith in God.

MAUREEN CAVANAUGH: What are you going to be doing now, Brian?

BRIAN BANKS: I'm going to be enjoying this freedom, this newfound freedom of mine. As well as continue to work out and help with the trial with the NFL I've been working extremely hard and I'm feeling very confident and very hopeful in pursuing this opportunity. I want to get back where I left off. Football has always been a dream of mine but also more importantly I want to reinvent myself, my name as well as bring peace and happiness to my family. We can all rest now that this disaster, this nightmare is over. I just, you know, one day at a time and I'm really just enjoying this new breath of fresh air.

MAUREEN CAVANAUGH: I just have to ask you, Justin, you worked so hard and your students work so hard on these projects. How are you handling this celebratory atmosphere with Brian being released?

JUSTIN BROOKS: You know I live for this, and my students do too. When Brian came to us and thanked us all it was just amazing. You know we are a law school clinic. We raise money for these cases. We are not a government program. I don't have law enforcement agents. I don't have investigators. I've got these very dedicated law students who go out and investigate these cases. And so every one of these cases is incredibly difficult and it's, to see a result like this, it motivates us to pick up next week and start work on the next Brian Banks and you know I urge people to go to our website, and look at the cases we are working on and consider supporting us.

MAUREEN CAVANAUGH: I want to congratulate you both and thank you both for speaking with me, Justin Brooks and Brian Banks, thanks and good luck.


BRIAN BANKS: Thank you so much. Thank you.