Tuesday, September 29, 2009
We look at how the California Innocence Project has been working to overturn convictions of the wrongly accused for 10 years.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. Many prison inmates say they are not guilty of the crime for which they were convicted. Most of the time nobody, not the legal system or the prison guards, even other inmates, listens to them because most of the time their claims of innocence are not true, but what happens when they are? The idea of serving a long sentence or a life sentence or being on death row for a crime you did not commit is one of the primal injustices. The California Innocence Project was created to address those injustices. The organization is observing its tenth anniversary this year. Now, although DNA evidence features heavily in many of the most well known cases of the exonerated, The Innocence Project is also using other methods to challenge convictions where they believe a serious miscarriage of justice is taking place. I’d like to welcome my guests. Justin Brooks is Director of The California Innocence Project at California Western School of Law. Justin, welcome to These Days.
JUSTIN BROOKS (Director, The California Innocence Project, California Western School of Law): Good morning, Maureen.
CAVANAUGH: And Eric Marcus is a second year law student at Cal Western who is working on a case through The Innocence Project. Good morning, Eric.
ERIC MARCUS (Law Student, California Western School of Law): Good morning, thanks for having me.
CAVANAUGH: And we invite our listeners to join the conversation. What do you think about the work of The California Innocence Project? Does it strengthen or weaken our justice system? Give us a call with your questions and comments. The number is 1-888-895-5727, that’s 1-888-895-KPBS. Well, Justin, well first of all, congratulations on ten years.
BROOKS: Thank you.
CAVANAUGH: And how many cases have you taken on? How many wrongfully convicted people have you helped free?
BROOKS: Well, we’ve looked at thousands of cases. I naively thought when we started the project, I can remember having a conversation wondering how are we going to get our cases? And as soon as we had our first news article about the project, the letters started flooding in. And, as you know, California has one of the largest prison systems in the world so the first couple of years, we were just overwhelmed with requests for assistance and we had to develop a very sophisticated process to screen through all those cases. We’ve been fortunate to get eight convictions reversed during that period of time from guys who served more than 100 years in prison combined.
CAVANAUGH: Now what is the vetting process? How do you – When you receive a letter from a prison, what is the initial thing that you actually do to check out whether or not this is a case that The Innocence Project is going to take on?
BROOKS: Well, it does start with a letter and it’s typically a letter from an inmate, sometimes from a lawyer or an inmate’s family, and every single letter is followed up on. So it starts with we look at the letter and say are they claiming innocence? And sometimes they’re not. Sometimes, it’s a three strikes issue, a sentencing issue or something else. If it is a claim of innocence, we start looking into it. And we have a protocol so that we can efficiently review cases. We get a copy of the brief filed in the case, we talk to the trial lawyer, we’ll talk to the appellate lawyer, and we’ll get a take on whether we think it’s a good case. And it kind of just moves through the process like that. If it gets further on and it becomes a clinic case, then a student starts getting into a serious investigation. And then if we feel we’ve got enough evidence at some point, we file in court. But we screen these cases dramatically, which is why we really do a service for the government because we don’t just run in court and file on every case. We only file when we believe the person’s innocent and we believe we have the evidence to prove it.
CAVANAUGH: Justin, why are people wrongfully convicted?
BROOKS: Well, the number one reason is bad identifications and I think that’s something that the public doesn’t know much about. People make tremendous mistakes with identifications, particularly with cross-racial identifications. And, you know, when somebody stands in front of a jury and points a finger and says that guy over there is the one who committed the crime, that’s very powerful evidence and it is enough to get you convicted in the United States. And when you talk about cross-racial identification, people will accept it for everyone but themselves. Say, sure, other people are racist and can’t identify other people and think they all look the same, but not me. And the truth is, it’s not an issue of being racist. If you’re not exposed day-in, day-out to people of the race that you’re identifying, you’re just not good at it and that’s why you actually find African-Americans can be better at identifying white Americans because they’re exposed to white Americans constantly, on television, in magazines, and newspapers and their day-to-day lives. But there’s white Americans that are very isolated in their day-to-day life and have a lot of trouble identifying African-Americans.
CAVANAUGH: What are some of the other reasons? Are – I mean, do you find that there are false confessions or evidence lost or destroyed, something like that?
BROOKS: Sure. False confession’s another thing that people just have trouble accepting. When I go out and talk to students, I ask them how many people here think that they would confess to a murder they hadn’t committed? And almost nobody says that they would do it. But they haven’t been sitting in a small room for 12 hours, they haven’t been told that this confession is the way out and if you don’t confess, it’s going to be a lot worse for you. They don’t have family members at home that are alone. They have an education and understand the system a little bit. So it is hard for people to accept that people sometimes do falsely confess but we know, through DNA, that there are a lot of people out there who confessed to crimes who ultimately, it was proven 100%, they didn’t commit.
CAVANAUGH: I’m speaking with Justin Brooks. He’s director of The California Innocence Project at California Western School of Law. We’re going to be speaking in just a moment or two to Eric Marcus, a second year law student who – at Cal Western, who’s working with The Innocence Project. We are taking your calls at 1-888-895-5727. First let’s take a call. Elizabeth is calling from Mission Hills. Good morning, Elizabeth. Welcome to These Days.
ELIZABETH (Caller, Mission Hills): Thanks. Good morning.
CAVANAUGH: Yes, how can we help you?
ELIZABETH: Well, I’m calling because, you know, I’ve been aware of the work that The Innocence Project has been doing for years, and I just think that they’ve taken on a responsibility, sort of a moral responsibility, that we might’ve dropped the ball on. And my question is not specific to the work of The Innocence Project, I think it really throws into light the whole issue of whether we should just abolish the death penalty based on the fact that there are so many fallible and unscientific convictions.
CAVANAUGH: Well, thank you for that comment very much, Elizabeth. I’d like to get your take on that, Justin.
BROOKS: Well, I couldn’t agree more. I mean, how can – We talk about do people deserve to die with the death penalty and I always like to change that discussion; it’s not about whether they deserve to die—maybe they do—it’s whether we deserve to kill. You know, are we comfortable enough with our system that has made mistake after mistake and has put innocent people on death row, are we comfortable with that system putting people to death? And that could affect any one of us, and that’s, again, something – the average person doesn’t think they’ll ever be involved in the criminal justice system. They’ll never be that innocent person sitting on death row. But we’ve, you know, seen cases where just middle class, average people end up in that situation, and I certainly don’t trust the system enough to have a death penalty.
CAVANAUGH: Let me get Eric in on the conversation…
CAVANAUGH: As I say, you’re a law student, you’re working with The Innocence Project, and tell us about the case that you were working on this summer that resulted in getting a sentence overturned for a man named Reggie Cole.
MARCUS: Sure. I began work on the Reggie Cole case this pre – this past May. And I basically started at the project, as Justin alluded to, on the team of students who screen cases. And within about a week, I was put on Reggie’s case because we were understaffed and overworked. And basically, what happened was, in 1994, Reggie was convicted of killing a Mexican-American in Los Angeles, and in 2000, because of an incident that occurred in prison, the case was reopened and a lot of the – a lot of undisclosed evidence that wasn’t know about for his – in – during his initial trial was uncovered, eventually leading to the conclusion that Reggie was, in fact, not present at the scene of the crime, had nothing to do with it, and that he’s an innocent man.
CAVANAUGH: And that incident that you talk about in prison was Reggie actually committing manslaughter in prison, is that correct?
MARCUS: Well, it’s actually more complicated than that. What happened was Reggie was threatened and in self-defense was basically forced to defend himself and ended up, unfortunately, killing a fellow inmate. The thing was, is that when prosecuting Reggie for that claim – that case, the District Attorney in Imperial County sought the death penalty as a special – using his prior murder conviction as a special circumstances. And so it was basically a blessing in disguise in that that gave us the form to reevaluate his initial conviction and, through the work of The Innocence Project, we have proven that Reggie did not commit the murder.
CAVANAUGH: Now is he still in prison?
MARCUS: Reggie currently is in prison. He’s slated to be out in May.
CAVANAUGH: I see. Okay.
BROOKS: Yeah, Chris Plourd is one of the really amazing local criminal defense attorneys we have in this community and he was appointed to represent Reggie on the second case in prison. And Chris, being the lawyer he is, went back and said, hold on a minute, was this guy guilty of the crime he went to prison for? And actually got the whole case reopened. And so what’s fascinating about that case is had he not had that second case, he would’ve never got back to court. They would’ve never looked at his original case, so it went from a guy looking at the death penalty to now a, wait a minute, he should never even have even been in prison to start with…
BROOKS: …and getting the whole case thrown out.
CAVANAUGH: You know, I think that the case of Reggie Cole opens up an avenue of discussion that I’ve heard from a lot of people, prosecutors and so forth, that the people that get exonerated, lots of people who have their sentences overturned may not have committed that crime but they are not innocent. In other words, we’re talking about career criminals, people who’ve committed a number of offenses. So a lot of, I think, in law enforcement don’t cry many tears if people like this are behind bars, if they’re not technically guilty of the technical crime that they’re in prison for.
CAVANAUGH: So explain why it’s important for people like that to see the light of day even if they are not, you know, the standard, law abiding citizen.
BROOKS: Well, first of all, it never surprises me when someone has a prior because that’s often the first person they look to. Our first case we got reversed, a guy named Jason Kendall was a perfect example of that. Here was a guy, he works at Office Depot and it was robbed, and when the police did the investigation, they look and say, well, who has a criminal record here? And Jason had a possession of marijuana charge so then they start focusing on him and build the whole case against him because they figured it must’ve been an inside job because the guy who did the robbery knew who the managers were. And, of course, the managers wore blue vests and the rest of the employees wore red vests but the geniuses…
BROOKS: …yeah, investigating it thought that. You know, do we really – my answer to the general question is do we really want to live in that kind of society where we say, okay, they didn’t do this but they probably did something else. Then we clearly are no longer a country of laws. That’s it. I mean, we might as well just give up every other part of our democracy because if we don’t have any more of the fundamental principle that people are entitled to be tried and convicted only of crimes that they’ve committed, then, you know, that’s just not the kind of country I want to live in.
CAVANAUGH: I’m speaking with Justin Brooks and Eric Marcus and we’re talking about The California Innocence Project observing its tenth year of working on cases and sometimes overturning sentences of people who have been wrongly convicted of crimes. We’re taking your calls at 1-888-895-5727. Let’s hear from Sarah in Encinitas. Good morning, Sarah, and welcome to These Days.
SARAH (Caller, Encinitas): Hi. Good morning.
SARAH: I think that what they are doing is so wonderful. I have – I actually used to live in the Bay Area and I had a very close friend, not on a murder charge or anything like that, but he was put in jail for a long period of time just based on people – he had been involved in gangs, based on people saying he had committed something as like retaliation and they – I don’t know that they were involved but I know that I cannot imagine what it would be like to be in jail living your life like that when you know that you’re innocent and no one else believes you. So I think that what these people are doing is just so wonderful and I’m so happy that people are actually doing this because not all people deserve to be in jail and I think that the fact that these people have decided to come forth and do something about it is so wonderful and it’s going to open up doors for so many people who would – their lives would just be wasted.
CAVANAUGH: Thank you, Sarah. Thank you so much for your comments. And that gets me to you, Eric. Why did you decide that you wanted to work on The Innocence Project?
MARCUS: Well, with the overwhelming amount of convictions that we’ve been seeing recently and the incredibly stringent drug laws, you know, there really is a need for a group like us to advocate on behalf of individuals who shouldn’t be in jail. Now, I’m – I alluded to the drug laws but more than that, you know, California subscribes to the death penalty and if we’ve had one innocent person put to death then that’s unacceptable, that’s state sanctioned murder, period. And, you know, you know, being involved in law school and having an interest in criminal defense, I was really drawn to The Innocence Project because nowhere else do you have a opportunity, as a second year law student, to dive head first into homicides, into rapes, into serious crimes that most lawyers don’t get a chance to investigate until they’re ten years into their career. You know, there’s nobody – we’re the last line of defense. There’s nobody to represent these people and even though I’m a student and some would say that I’m not qualified to work on these cases, I’m compelled to do my best work because I know no one else is there to do so. And there’s a team of us and we work as a group under the direction of Justin Brooks and Jan Stiglitz, our other director, and they really oversee us and provide – and basically mentor us, guiding us in the direction of what we need to be doing. And as I said, you know, I’m involved in every aspect of the case, from squeek – from screening questionnaires to talking to trial attorneys, talking to appellate attorneys, doing investigations. You know, I’ve – I get to go to the scene of the crime, you know, picture it in my head and sort of piece together my account of what I think happened, look through the evidence and sort out exactly what did happen. So, you know, this is an opportunity that is once in a lifetime. Never again will I be able to involve myself at such a young age in…
MARCUS: …in such serious issues.
CAVANAUGH: Exactly. And, Justin, aside from the free labor, why…
MARCUS: Oh, it’s not free.
CAVANAUGH: …why do you like to get law students involved in this process?
BROOKS: I mean, that’s the legacy, that’s – We have two legacies, the people we walk out of prison and the students that we train. And our students go off to be public defenders, they go off to be prosecutors, some go into private practice. And this has an impact on them for the rest of their lives. They see innocent people, they work on these cases, it changes them, it changes the people around them. And that’s why it’s so wonderful. After ten years, this weekend a lot of my former students came back to the school and, you know, we had six or seven district attorneys there and that’s how you change the system. These students will be changing the system.
CAVANAUGH: Let’s take another call. Victoria is calling from downtown. Good morning, Victoria. Welcome to These Days.
VICTORIA (Caller, Downtown San Diego): Good morning. Thank you. I just wanted to say I am one of those previous students that Professor Brooks was just talking about. And my life has been changed forever by being made part of The California Innocence Project, and I wanted to say, first of all, that I’m so proud of the Project for everything that it has done so far. And I wanted to ask Professor Brooks perhaps to tell people what, you know, how is it that the defendants – how they come to the Project because the fact that by the time they get to us, they’ve had every door turned on their faces and they lost their trials, they lost their appeals, they lost maybe other petitions for a writ of habeas, they have pled out there and, you know, the Project is exactly the last glimpse of hope in the lives of these people who are in jail and, you know, are innocent.
CAVANAUGH: Right, Victoria, thank you so much. Thank you for that. And…
BROOKS: First of all, I didn’t plant that call. It’s nice to hear from Victoria.
CAVANAUGH: But that also brings me to the question because we’ve made the point, this is the last stop for…
CAVANAUGH: …a lot of people. If you don’t take these cases, a lot of people are going to spend the rest of their lives in jail.
CAVANAUGH: And that must put an awful weight on your shoulders as you review these pleas from inmates who send you letters.
BROOKS: Right. And I don’t sugar coat it for the students either. From day one, I tell them you’re going to go through these cases and we’re going to guide you and support you but if you’re not in there digging and looking and finding stuff and we close this case, this person will likely die in prison. We are the end of the line. They’ve lost their trial, they’ve lost their appeals, they’re probably put together some habeas petition from the prison and there’s nobody after us. And that’s what’s a little troubling, too, you know, because our funding – we’re funded by bake sales. Our students do hikes. We have a dodge ball tournament every year. We – This is not funded by the government. This is not the government’s work. And to give a pitch for that, you know, we do have free labor but then just the cost of gas money and photocopies and getting crime scene photos, we have these very basic costs that we have to raise money to cover. So if anyone is interested in helping us, please go to californiainnocenceproject.org and you’ll get more bang for your buck than any other legal organization because, as you said, our help is free. The thing that’s expensive, usually, is lawyers’ time and we really use it for basic expenses so we can pursue these cases.
CAVANAUGH: Let me ask you, considering all that’s hanging on your choice of case, do you have some cases that still haunt you?
BROOKS: Oh, absolutely. You know, when you win these cases, you have a great weekend and it’s a real buzz. And, you know, walking an innocent client out of prison is the most amazing experience. Driving Tim Atkins home to his family – when he went to prison, he was 17 and went home he was 40, when I drove him home – is amazing. But the losses will haunt me for life. Delores Macias in Los Angeles, she was convicted of drowning her niece and these young kids, four, five, six years old testified against her. And we gathered all the witnesses together, we put on a hearing and at the end of it, the judge just said, you know, I just don’t believe it. I think these – they’re making it up. And we know she’s innocent and she is likely going to die in prison. And it is a horrible, horrible feeling. We had another guy, Patrick McNeal out in San Bernardino. We know he’s innocent. We put on his whole hearing. And the problem is, at trial, the prosecutor has the burden of proof, in our habeas petitions, we have the burden of proof and it’s got to be overwhelming. So that’s why when we’re screening these cases, we know how long and hard the battle’s going to be and it’s only if it’s really compelling. So these are definitely – if you see on the news a person walking out of prison, you can be guaranteed they are innocent because it is so hard to win these cases.
CAVANAUGH: Let’s take another call. Anna is calling from Del Mar. Good morning, Anna, and welcome to These Days.
ANNA (Caller, Del Mar): Hi. Thank you for taking my call. My – I had two questions. First off, do you only work in California? And my second question is do you take on clients who are mentally ill, have maybe been imprisoned, wrongfully imprisoned but then committed a felony in prison?
CAVANAUGH: Okay, thank you for that. Those two questions?
BROOKS: First of all, we take cases in California and Hawaii. We work with the University of Hawaii doing cases out there. We’ve also just launched a new program called Innocente where we are working on South American cases. And I’ve been going back and forth, South America, training lawyers. We have another Project at a law school run by a guy named Jamie Cooper called Proyecto Accesso where we’re working in South America to promote Innocence Projects. There are now Innocence Projects all over the United States and around the world. If you go on innocenceproject.org you can find a list of them or my project, californiainnocenceproject.org. In terms of whether we take cases of people who are mentally ill, I mean, of course we do. It actually amazes me the mental capacity, how good it is, of some of our clients after what they’ve been through. In terms of whether we take cases when other felonies have been convicted, again, we don’t really want to engage in an exercise that’s not going to lead to somebody getting out of prison and so, you know, I don’t want to give a blanket answer to that because sometimes someone would’ve already served the time on some lesser offense and they didn’t do the greater offense…
BROOKS: …and we certainly look at those cases. But our resources are so limited that we typically only take cases where people have long sentences and we believe we can do something to get them out of prison.
CAVANAUGH: You know, in closing, we only have a couple of minutes left, but I read information as you’re celebrating ten years of The Innocence Project here in San Diego, you, Justin, have some very kind words for San Diego County District Attorney Bonnie Dumanis, especially as opposed to the way some other prosecutors and district attorneys greet you when you want to reopen a case and look at evidence again. Tell us about that.
BROOKS: Well, yeah. They don’t greet me.
BROOKS: When we come into towns in California and we’re going to reopen cases, we are obstructed almost every step of the way. They don’t want to give us access to evidence, they don’t want to go ahead and agree to motions for testing, they fight us from the beginning to the end. That’s why a case like William Richards in San Bernardino, we’ve been working on it nine years and we just got a reversal on that case and now they’re going to appeal it. And they say if they – you know, if they appeal it and win, they’re going to retry him, you know. That’s the kind of obstruction we get. And, really, what should happen is we should show up, we should say we’ve got some evidence this person might be innocent, let’s sit down at a table and look at it. If you can look at it, you should go back and do something about this. It’s the prosecutor’s job to review the work and seek justice. It’s not the defense attorney should have to fight those. And I would say Bonnie Dumanis is the only district attorney that we’ve dealt with in the state who has had those meetings, and she’s not going to roll over. She’s an aggressive advocate and she represents the city properly and the county, but she sees that as her responsibility. If a mistake was made, she should go back and look at it. So she won’t always agree with us. That’s absolutely true. But we can get that meeting, and that’s all we want is that meeting.
CAVANAUGH: We’re going to have to leave it there. I thank you both so much for coming in and speaking with us. I’ve been speaking with Justin Brooks, Director of The California Innocence Project at Cal Western School of Law, and Eric Marcus, second year law student at Cal Western, working on cases through The Innocence Project. And I want to let everyone know that if you called and we couldn’t get you on the air, you can always post your comments online. KPBS.org/TheseDays. And next week, KPBS will bring you a week-long series on California’s troubled prison system. That begins Monday here on These Days. And coming up, how good is bottled water for both you and the planet? We’ll find out. Stay with us as These Days continues in a moment here on KPBS.