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San Diego Innocence Project Calls For Clemency For "California 12"

December 23, 2013 1:28 p.m.


Justin Brooks, co-founder of the California Innocence Project at California Western School of Law

Related Story: San Diego Innocence Project Calls For Clemency For "California 12"


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: Members of the Innocence Project await Governor Brown's clemency list. This is KPBS Midday Edition. Members of the Innocence Project at the California Western school of Law in San Diego held another rally in Sacramento last week. They are hoping the governor will grant clemency to group called the California 12 who supporters say can show evidence of their innocence. Moving from one crisis to another is not the best way to handle a long-term health problem. We'll hear about a movement called slow medicine that tries to take the panic out of health care decisions. And we welcome the author of a new memoir about growing up in Mexico called The Distance Between Us. I am Maureen Cavanaugh. KPBS Midday Edition is next. First the news. As Gov. Jerry Brown prepares his clemency list, the Innocence Project wants him to remember the California 12. And we will learn about the concept called slow medicine in geriatric treatment. This is KPBS Midday Edition. I am Maureen Cavanaugh. It's Monday, December 23rd. Here are some of the stories we're following in the KPBS newsroom. The California Highway Patrol reports that state Route 78 is closed in both directions near Masters Trailer Park Rd., East of Julian, due to a solo car crash. There are no immediate reports of injuries. It's a Christmastime homecoming for more than 100 sailors today. The Letourneau combat ship USS freedom is scheduled to return to San Diego this afternoon after a deployment in Southeast Asia. The Letourneau combat ship is a new style vessel designed to fight in coastal waters. And the Salvation Army Kroc Center in San Diego is wrapping up a two-day event designed to help an estimated 1500 children celebrate the holiday season. Salvation Army sites in Chula Vista, El Cajon, downtown, Claremont, Escondido and Oceanside are also distributing toys to the needy. Listen for the latest news through the day right here on KPBS. Our top story on Midday Edition, it's an old-fashioned tradition, one that dates back to the time of kings. But it's a tradition that our legal system hopes to because it is often the last chance for justice. I'm talking about the clemency lists that presidents and governors receive at this time of year. Lawyers for San Diego's Innocence Project have been petitioning to get 12 people on the list this year. The group is called the California 12, all of whom the Innocence Project claims have been in prison for crimes they did not commit. I'd like to welcome my guest, Justin Brooks is cofounder and director of the California Innocence Project at California Western School of Law. And Justin, welcome to the program.

JUSTIN BROOKS: Thank you so much.

MAUREEN CAVANAUGH: As I said, the history of heads of state offering clemency to criminal seems a little bit out of date. Why does it continue?

JUSTIN BROOKS: Yeah that's an excellent question and sometimes it's depressing who gets on the list. The Mississippi governor a few years ago granted clemency to everybody who worked in his garden and there didn't seem to be any kind of evaluation of whether they were the most deserving. Other times you have people who are politically connected who get on the list. When we came upon this idea of the California 12 we knew we would have to make a lot of noise to get the governor to pay attention to these 12 Californians who are innocent in prison and as we look to release people from prison due to overcrowding my message is why not start with these 12.

MAUREEN CAVANAUGH: When the governor or president grants clemency, what can he or she actually do? Can they commute a sentence, do they reduce a sentence, what are the boundaries?

JUSTIN BROOKS: They can do all that and more. They can grant pardons. So there's this tremendous power that's vested in the executive to ultimately control the criminal justice system. Even though sometimes it doesn't make sense, in this case it really does because in these cases the courts have failed to remedy the problem. You've got 12 innocent people, some of them we've been litigating for 15 years. In some of these cases judges have already declared them innocent and yet on technicalities they are still sitting in prison. So the governor has a failsafe device where he can come in and say okay the system failed to remedy this. I'm going to do it.

MAUREEN CAVANAUGH: Give us a sense of you can briefly just about who these people are, some of the members of the California 12.

JUSTIN BROOKS: Sure. The crazy thing about it is when we sat down to look at what cases in our office make the most sense who to seek clemency on the criteria we look for was you know, there is strong factual innocence claims and we've been litigating them and have failed to get remedied. But when you look at who we came up with almost looks like we tried to select a cross-section of America. It is seven men and five women. Which is very unusual. Since prisons are mostly dominated by men. They are black, they are white, they are Hispanic. They are young and old. We've got grandparents and there, we've got a young woman, someone who just turned 30 a young mom who was convicted when she was a teenager. So it's a broad range of people and an incredibly broad range of cases. If the listeners go to or California Innocence and read the 12 stories it's really compelling how different these stories are.

MAUREEN CAVANAUGH: You mentioned the innocence walk. That is a 700 mile walk to Sacramento last summer. Did anything result from the very long walk?

JUSTIN BROOKS: It did. And yes I walked 712 miles along with my accident check and Alyssa better talked to young lawyers in my office and along the way we had exonerates,, people who've got out of prison, the family members of the California 12 and it was hard. It was 712 miles up the California coast. And we learned that there is no way to actually easily or legally walk across California, but we accomplished it. We were 10, really 10 days into the March before we got a meeting with the governor's staff. And again, I knew that because my clients don't have money they are not politically connected that we needed to do something big, make a lot of noise to get the governor's attention. So we had a meeting with a legal staff and we found about found out about the meeting 10 days in and still had to walk another 40 days to think about what to say. And since then we've been trading documents back and forth they've been reviewing the cases. So I'm very optimistic that now that the staff has taken a look at these cases. And I know that if the governor looks at these cases he'll become convinced that these are innocent people.

MAUREEN CAVANAUGH: You know, I think a lot of people most people perhaps are familiar with exonerations because of DNA technology. But with the California 12, many of these cases rely on different kinds of science to challenge the convictions. For instance, tell us about the case involving shaken baby syndrome.

JUSTIN BROOKS: Sure. We've learned a lot in the last 20 years about shaken baby syndrome. It's really a war going on among pediatricians about whether any of it really exists. We've now learned that children, I percentage of children actually leave the hospital due to birth trauma with some of the symptoms that if those children show up back at the hospital there would usually be diagnosed with the shaken baby case it be turned into a murder conviction. Two of the 12 involving cases of children that died. We've gone back and looked at the cases and found out there was a lot of misdiagnosis, there was bad evidence and it's an area of science that's really changed a lot.

MAUREEN CAVANAUGH: As well as that arson science accounts for at least some of the people on this list.

JUSTIN BROOKS: Yeah, [Joan Parks] was convicted in arson case. It's a horrible case where her children died, absolutely tragic. And we know a lot of things about arson that we didn't know before. The problem with arson experts and I put quotes around experts is that sometimes they are truly not experts. They're just people who have seen a lot of fires. So her case for examples. Diagnosing a arson based on the analysis that there were two points of origin and we now know that fires jump and often it can look like two separate points of origin but it really started in one spot and jumped over to another spot and started again. The same thing with friends a group ontology. We've seen is bite mark cases and some of these bite mark experts quite frankly are dentists who love CSI. And have a lot of time on their hands. That's not necessarily what they do. So yeah, DNA really has led the way in terms of being such a definitive form of science to prove innocence. But there's all these other areas of science we need to look at here.

MAUREEN CAVANAUGH: So if someone was on trial originally an opposing expert came in and said let's say there could be two points of origin in a fire that would be something that the jury could consider and possibly acquit the defendant because there would be. Why therefore is it so hard when someone has been convicted, has the bar been raised?

JUSTIN BROOKS: Great question. That's exactly what has happened. You're right, I always had this fantasy I get into a time machine in the back to my client's trials and hand their attorney a piece of evidence and I'm confident they would be acquitted. But that's not how the system works. Once you've been convicted of a crime in America it's very difficult to get that reversed. So even though people today wouldn't be convicted on these evidence we have the burden of proof to come in and definitively show innocence. Starboard not the prosecutions burden anymore.

MAUREEN CAVANAUGH: What is the atmosphere like now when you bring evidence that might exonerate a prisoner to the attention of prosecutors or to the court? Are they any more in interested in listening considering the history now of exonerations as being more?

JUSTIN BROOKS: It depends where you are in America and it depends where you are in California. Bonnie Dumanis, our district attorney is very open to review the cases and she has by consent assisted us in exonerations. We've exonerated two people together. That is how the system should work. We should bring something to the attention of a district attorney office and they should look into it. We have a model here in San Diego of doing that that's much interrupt the state of California.

MAUREEN CAVANAUGH: This year we saw Sarah Cruzen of Riverside, once convicted of life without parole, I mean she was in for the rest of her life for murdering the man she claims forced into child prostitution, she's now been resentenced and paroled after 19 years in prison. We've spoken about that case before. Did you think it would be resolved this way?

JUSTIN BROOKS: You know, I can't predict anything in these cases with the criminal justice, one thing I've definitely learned in 25 years is not to predict. There's some cases I go into and I'm so sure it's a slamdunk, we are going to win and other times I'm surprised when we get a hearing or because that judge that does the right thing.

MAUREEN CAVANAUGH: So the doesn't seem to be a trend, because I

MAUREEN CAVANAUGH: delineating a case where a man was let out of prison on parole or a shorter sentence, and he re-offended in a terrible way, and basically that was made to concern and/or frighten the public into a certain line against you know, supporting law and order.

JUSTIN BROOKS: And politicians learn from that don't take that risk because somebody gets let out of prison and might come back to on to as a governor. That's why I feel good that Jerry Brown is going to be bold enough, and he's already been granting clemencies to do the right thing. He's been an attorney general. He knows that innocent people are sometimes convicted. And so he'll have the political courage to do that. I think we've also seen a change across the country with juries after hundreds of innocent people have walked out of prison. You know, when you walk more than 300 people on death row after findings of innocence that has to change the system.

MAUREEN CAVANAUGH: What's it like for you, Justin, to go and visit your clients in prison before the Christmas holidays?

JUSTIN BROOKS: You know, it's sad. There's no doubt about that there's nowhere sadder than a prison at Christmas. Brings it home to me this past week when we had the march in Sacramento and the families of my clients were there and you see what they're going through with their loved ones locked up over Christmas. It's also reaffirming for me. Reminds me why I do the work that I do, that these are human beings, that every day that goes by is a day they've lost of their life and it becomes more poignant at Christmas time.

MAUREEN CAVANAUGH: What about the prosecutors who basically say you know, I know this person was guilty. I conducted this case. I did the research. I know that this person did it and no new science idea is going to come along and tell me differently because I'm absolutely convinced and of course the families of the victims as well who think they have the perpetrator and the perpetrator is being punished. That must be an awful hurdle for you guys.

JUSTIN BROOKS: Yeah, it's hard to unring the bell. You know, and for the families I feel for them. They've gone through a whole trial, they believed for years that they got the right person, they try to move on. That's really tragic with the cases get reopened for them. That's why we are very circumspect before we do it. We'll get 2000 cases a year and there's a handful that really open to look at because we really believe in them. We don't just go out and reopen thousands of cases and all those ones. For the lawyers you know, lawyers are like anybody else but the only people coming to their job and telling them they didn't do it correctly. Maybe lawyers even have slightly bigger egos than the average person. So you know I always try to, prosecutors in a way of, hey, we're just looking into this were trying to find what really happened. We want to work together and try to bring to the adversarial system. Usually the downside of the adversarial system we praise it as being the best in the world but the doubts site is sometimes it becomes a game of us versus them and not let's find the truth and work together.

MAUREEN CAVANAUGH: As you believe the people that are in prison right now are innocent of the crime they've been convicted for, what kind of attitudes greet you when you make these trips? I'd think probably being incarcerated for a crime you did not commit four years is probably a nightmare for people. How are they handling it?

JUSTIN BROOKS: You know sometimes it's really sad for me how my clients really don't want to show me any of their anger or frustration because they are so grateful that we are working on their cases. You know, we are a pro bono Law school clinic at Cal Western School of Law. We are not a private firm. They are not paying us to work on their cases. So it kind of saddens me that when I sit and look at them they are kind of so desperate to make sure that I'm not going to drop their cases that they want express their frustration to me. Sometimes I wish they would scream a little bit more and get a little bit more frustrated. But yeah, it's just it's hard for anyone to imagine even after 25 years of doing this work I still can't imagine what it's like to spend the day in jail for something I didn't do.

MAUREEN CAVANAUGH: What's next? Would you hear from the governor if he's considering this? Would you get any advance word?

JUSTIN BROOKS: You know I'm on new uncharted territory here. I definitely have my cell phone with me and I'm checking my e-mails constantly. And I'm really hoping to hear from the governor's office and hoping maybe some listeners could e-mail the governor's office directly. You can find his e-mail online and ask them to free the California 12. You know, check out the website at Follow me on twitter at Justin L Brooks. And I'm hoping it's going to happen within the next 48 hours but if it doesn't we are going to keep going. We are going to keep going

MAUREEN CAVANAUGH: Is that the deadline, does the governor have a deadline to the clemency list or...?

JUSTIN BROOKS: There is no deadline. It's his prerogative, it's an extrajudicial proceeding which is what is great about it. And it's also what is frustrating about it because you don't know what's going to happen.

MAUREEN CAVANAUGH: It's a long shot that they will all be on the list, isn't it?

JUSTIN BROOKS: I don't to say that. It's too heartbreaking. I know all their parents. I know them. Even when you just say that it's hard.

MAUREEN CAVANAUGH: I want to let everyone know I've been speaking with Justin Brooks of the California innocence Project thank you so much for taking the time and speaking with us today.


MAUREEN CAVANAUGH: Coming up, an introduction to the practice of slow medicine. It's 12:22. And you are listening to KPBS Midday Edition. The end of life for an elderly relative can be a crisis for medicine. It doesn't have to be. So medicine is built around the idea of providing the right kind of care at the right time to people with chronic illness. Earlier this year I spoke with Dr. Dennis McCullough, the author of the book my mother, your mother and an advocate of slow medicine. He's been a family physician and a geriatrician for 30 years. And Helen McNeal is executive director of the California State University Institute for palliative care. At Cal State San Marcos. Here's that interview.

[Archived interview with Dennis McCullough originally aired 10/22]

[Archived interview with Reyna Grande originally aired 10/23]