01/11/16 – Trevor Timm – The Scott Horton Show

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All right, you guys, welcome back.
I'm Scott Horton.
It's my show, The Scott Horton Show.
That's an interesting article.
I didn't really do the best job conducting that interview.
But I do hope you'll go and read that guy's great piece.
It's at AntiWar.com today.
How We Learned to Stop Worrying About People and Love the Bombing.
Good stuff.
Okay, next up is our friend Trevor Tim, the great Trevor Tim.
He's a writer for The Guardian and, of course, from the Freedom of the Press Foundation, where he sits on the board of directors with Greenwald and Snowden and Ellsberg and other greats like that.
Welcome back to the show.
How you doing, Trevor?
Good.
Thanks for having me back.
Good, good.
Very happy to have you back and happy to read what you write, as always, I think, without exception.
And I really like this one because I really like this show.
I'm glad you had some good comment on it here.
Making a Murderer, this 10-part miniseries put out by Netflix.
It was made over 10 years about the seeming double railroading of this guy, Stephen Avery, first for rape and secondly for a murder.
And there has been some controversy over just how much of the prosecution side of the story was told in the documentary.
We could talk about that, but this article is mostly beside the point there, because whether this guy did it or not, I think anybody could agree he was actually railroaded anyway.
You know, either way.
And then your real point is, you know, much larger about the way the American justice system really operates.
And I think everyone kind of feels this way.
I didn't really put my finger on it until I heard someone else say it exactly out loud or whatever.
But it's the difference between watching a TV show about cops and courts and watching cops and courts on TV.
And you realize immediately, like, or if you're willing to stop and really think about it for a minute, there's such a vast gulf.
And whenever it's the court TV style thing, it all seems so impersonal, right?
It all seems like whoever's actually on the line there isn't even really being considered.
He's not being given his due.
He, she, whoever.
You know what I mean?
That's the reality of the thing that I think people are feeling.
That's why this documentary really strikes everybody's court so much.
You can't help but think as you're watching this, that these cops, these prosecutors and not just these, but all of them, they do this to people all the time.
This is the real reality of the American court system as opposed to law and order, etc.
So what a crappy way to ask a question, Trevor.
But anyway, I'm just trying to set you up to talk about.
So what is the real reality of the daily life of people accused of felonies in state courts in America?
Yeah, I mean, I couldn't agree more with what you just said.
And I would encourage everyone, if they have a Netflix account, to go out and watch this documentary, Making a Murderer.
Because as you said, it really paints an amazingly stark picture about how the Justice Department actually, in many cases, does not work for justice at all, but actually just works for trying to prosecute people and put them in jail regardless of the truth.
I mean, it follows the story of Steve Avery, who was already wrongly accused of rape and spent 18 years in jail.
And then ends up, once he gets out and makes headlines, he is then charged with murder in a separate crime.
And as it develops, I don't want to give away any spoilers, but as it develops over the course of 10 episodes, you see that there are a lot of shady things going on, including potentially the planting of evidence by police and the forced confession of a young, slow 16-year-old boy who may have had nothing to do with anything involving this crime, but was kind of bullied into confessing.
And as you watch this show, everybody who has watched it has talked about how shocked and horrified they are and how they're basically screaming at the TV saying, oh my God, how could this be going on?
But really the only difference between this show besides a couple of even more outrageous things that happen is the fact that there are cameras the whole time that we get to see it.
Forced confessions, for example, pressuring young, mentally disabled people without a lawyer into admitting to crimes they do not commit is an epidemic in this country.
And in my Guardian article, I explain that there's been a bunch of studies that have been written about this phenomenon.
And when you finally see it on tape in Making a Murderer, it's kind of shocking and just makes you squirm.
But when you realize it's been going on for a long time and much more common than you think, it really disturbs you to the core.
One thing that I really can't credit my community college education with, not that I have so much as an associate's degree or anything, is in psych class where they talked about false confessions and how easily they're obtained.
And that includes people walking right on down to the station house and saying, I did it when they had nothing to do with it at all.
They're just some kook.
But this happens all the time.
And the most common cause of it, of course, is to dumb this down, maybe lowercase t torture works.
And in this case, just a couple of big, fat, bad breath, having cops under a hot light in a small closet and they're saying, come on, you did it.
We know you did it.
We know you did it is enough to shorten one's time preference to, I will say whatever you want me to say to let me out of this room now.
And whatever consequences happen after that aren't even considered at that point.
They just give up and they're they're just basically torture works.
I'll say what you want me to say.
Saddam taught me how to make chemical weapons will confess any dumbass in the custody of a couple of cops.
And the only way that they wouldn't would be if they really understand that the trial comes later.
The penitentiary comes later.
This is just jail.
I can get through this and I can maintain silence until I get a chance to deal with my lawyer or whatever.
But unless you're really educated enough to understand the way that process works, you have a couple of bully cops trying to make you say something.
You'll say it and that just happens all day, every day.
Yeah, absolutely.
You know, I think a lot of times when we hear the word torture, we think of somebody, you know, taking a hammer to somebody's hand or waterboarding them or, you know, physical confrontation.
But often these these forced confessions are gotten just by talking with somebody for hours and hours on end.
You know, to be honest, when you watch it and making a murderer in at least a couple of the interrogations, the police aren't even really being mean to this person.
They are just trying to direct them in the way that they want him to speak.
And when you do it over and over and over again for hours and hours, and when you're talking to a boy who has the IQ of 70, who doesn't have a lawyer present, who who indicates that he just wants to get back to class.
And when you tell this this type of person that as long as you tell us what we want to hear, then everything will be OK and you can leave.
It turns out that people like this will often admit to things that they had nothing to do with.
And it ends up leaving them behind bars for the rest of their life for a crime they didn't commit.
And now so and talk to about the the plea pressure, because I think a big part of this is the stacking of charges.
And I wonder, was it not always this way in 1840 something you get accused of something?
The prosecutor brings you in there and charges you with 75 things.
So you better plead guilty to 20 of them or else you're going to do life.
Oh, you know, the idea of pleading guilty or plea bargains before trial is a huge problem in this country.
You know, a lot of defendants who are completely innocent of crimes or who think they're completely innocent of crimes are advised by their lawyers to come up with a plea deal, because if they go to trial, they do spend the rest of their lives in jail.
And, you know, I don't know if it was a problem back in the 1800s, but we do know that our federal and state laws have continually expanded over the past 100 years, and especially in the last 30 years, where there are just so many crimes in the books that if prosecutors say, we're going to charge you with 15 crimes, you better admit to something or we're going to go to trial, then you're kind of backed into a corner.
And we see that happen in this case.
This is the craziest stat that I saw when I was doing this piece, was that there was 125 exonerations last year where people were let out of jail for crimes they didn't commit.
47 of them involved defendants who pleaded guilty.
So they basically told the court that they did it, even though they didn't.
That was 37% of the cases, which is just outrageous.
And we know that this happens all the time because the system has set up this way to kind of force them into making a plea deal, even if they want to claim they're innocent.
Hold it right there.
We'll be right back with more Trevor Tim after this.
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All right, y'all, welcome back.
I'm Scott Horton.
It's the Scott Horton Show.
Talking with Trevor Timm.
I'm going to ask you about your brand new one here, the Silicon Valley thing in a minute, Trevor, but a little bit more about this miniseries, whatever it is, documentary series there on Netflix, Making a Murderer, and, well, the revelations.
A big part of it, I think, and this has been a problem in a lot of high-profile cases that I'm aware of, is the system of compromise that the jurors come up with for deciding what they'll do.
So if you have a split decision, there's always a couple of cop worshippers on every jury who, hey, if the government says so, it's true, simple as that to them, and everybody else says, well, okay, I'll tell you what, we'll convict them on this and this, but not on that if you'll go ahead and agree to stop pushing for that one, whatever.
And that's apparently what happened in this case as well.
That's the story of the Branch Davidians, who were all acquitted of murder, but then convicted of using a firearm in the commission of a felony, even though they'd just been acquitted of the felony.
So the judge says, nah, I'm going to go ahead and sentence you guys as though you'd been convicted of the felony because that's what the jury meant anyway, even though really they didn't.
It was 10 to 2 for acquittal, but that was the compromise they'd come to.
Anyway, there are a million like that, and is there anything that can be done to prevent that?
How does a juror decide I'll compromise someone I want to acquit?
I'll go ahead and give him some years in prison just to get this guy across the table off my back.
You know, unfortunately, once the jury is in the deliberation room, it's really a black box as far as having the conviction set aside or getting a new trial based on what they talk about in that room.
You know, there are strict rules as far as outside influence on juries, but as far as jurors influencing other jurors, unfortunately, at least rulings in past cases have shown that this is not a way that defendants can get a new trial, even if, you know, on his face it seems inherently unfair that, for example, in this case that there was a friend of one of the sheriff's office deputies on the jury itself and that, you know, people are easily influenced by one or two strong personalities within a room and they can essentially bully people who want to rule or say that they believe the client is not guilty into saying they're guilty by doing these sort of horse trading maneuvers or implicit threats or just the fact that they are stuck together in the room for weeks at a time and they really want to go home.
You know, they kind of can think about their own lives and the fact that they've been disrupted by the trial, but oftentimes it gets lost at the fact that the defendant sitting on the other side of the table, you know, potentially has his life at stake when juries make decisions like this.
All right.
Now, on Matlock, when he busts the guy who really did it on the stand under cross-examination, the prosecutor says, oh, hell, all right, your honor, I move to dismiss the charges, and that's the end of that.
And they don't really mind because, hey, it's not like they meant any harm.
They're just trying to do their best and made a mistake and accidentally were prosecuting the wrong guy.
Same as Perry Mason.
We all seen it a million times.
And the judge says, sure thing.
And that's the end of that.
But I guess in the real world, there's a system, must be a real powerful system of disincentives for prosecutors to ever admit that maybe they got it wrong and to back off and let somebody go.
Well, the prosecutors think it's their job, despite the fact that the Supreme Court has actually said unequivocally that it is not their job to have people prosecuted.
Their job is to find truth and justice.
Yet prosecutors think that if they were ever to admit that something went wrong in a trial that they conducted and that somebody is actually innocent who they had proved guilty, they fight tooth and nail to make sure, in a lot of cases, that that person does not get out of jail.
When you watch Making a Murderer, and we're talking about the first case here where the main character, Stephen Avery, was convicted of rape, we see that the prosecutor doesn't, or at least it's indicated that he doesn't even care when it's found out that Stephen Avery was in fact innocent and that he is just looking to cover his own back when the information is finally revealed.
And he had spent the 10 years prior making sure that every challenge to the case in the appeals court or any request for a new trial or new evidence was suppressed just so that he could keep that conviction.
In this documentary, this is a really bad case because I think it's pretty apparent that they planted the key and they hated this guy's guts, and this is a real frame-up job.
But I want to go to a more general sort of, the more traditional frame-up job is the cops believe what they believe, they target who they feel like targeting, they prove that, and they just don't allow much room for doubt in the way they investigate.
All their logic is inductive rather than deductive.
And so they're not really looking for the truth.
They decide what the truth is.
They're basically cops are truthers, right?
I mean, they're all a bunch of meatheads anyway.
It's not like we're talking about a bunch of PhD students here or whatever.
They figure out who they think did it, and then they make that case.
And the jury and the court presume the accused guilty every time because why would the cops be jerking our chain and bringing in some innocent guy?
Obviously they know what they're doing, or this guy wouldn't be in the dock in the first place.
And then the burden's on you to prove that they did it wrong.
That's the way it seems like it works on the regular in-and-out, day-to-day sort of basis here, even when it's not an attentional type frame-up.
Yeah, absolutely.
I mean, cops have their own biases just like everybody does.
And when they get on one track, oftentimes that leads to them putting on blinders and missing other key pieces of evidence that may lead to the real perpetrator.
But when we talk about cops actually planting evidence, which we don't really have numbers on how often that happens, partially because this is hard to study, and partially because it's, frankly, easy for them to get away with it if they do because they are the ones in charge of handling the evidence.
But we do know when cops are found to have planted evidence that it could have drastic effects across the criminal justice system, even when it's only a small number of police officers who are actually corrupt.
So, for example, there was research done in 2012 that only looked at 13 police corruption scandals where there was evidence of planting drugs or guns on innocent defendants.
And in those 13 scandals, there was over 1,100 cases where convictions had to be overturned, meaning that if there is a cop that is doing this, it's likely that they are doing it all the time and could affect a vast number of people.
So that even if there are only a few bad apples, there are an amazing amount of people who get caught up in it.
Well, I love telling this story, and sorry because I've told it a million times, maybe to you already, Trevor, but I used to be a cab driver, and I one time was driving around an assistant district attorney from Harris County, that's Houston, who was in Austin for some big meeting of government people or whatever, and she told me that the slogan around the office, not her, of course, but everybody else, their cliche is that if they really didn't do it, they'll get out on appeal, meaning whoever the cops bring them, they nail to the wall, and they'll do nothing, never stop, rest, or whatever, in order to guarantee to convict anyone the cops bring them.
Otherwise, jeez, that's like a vote of no confidence in the cops, and they don't want to do that or anything.
And then if they really didn't do it, then when the burden of proof is on them from a prison cell where God knows what is happening to them, they'll be able to prove it somehow and get out, and no harm, no foul.
And that's just the way that they look at it.
And then here's the real kicker, right, is there's no reason for them to not look at it that way because 0% of them ever go to prison for putting innocent people in prison.
Never, ever, ever.
And I bet if it happened two or three times, the rest of these cowards would fall right in line and start acting appropriate on these things, or at least much more appropriately.
But there's no accountability for this kind of thing ever, right?
Yeah, you know what, I think that is the crux of the problem when we talk about the systematic issues and the reason that it can continually happen over and over again.
There's always going to be people that make mistakes.
The justice department or the justice system is never going to be perfect.
The reason that it happens over and over again is because the system protects itself, so that both prosecutors and police are given immunity in all sorts of situations, even when it's clear that there has been withholding of evidence, that there has been clear wrongdoing.
You know, in the Steven Avery case in making a murderer, you see this in action where the state is basically investigating themselves and exonerating themselves.
There's no independent investigators or people who can make decisions that are free of bias.
And because no one ever gets punished, and because the system is set up to perpetuate itself rather than police itself, we have these situations happen over and over again, and slowly but surely it gets ingrained in the system, so that it becomes harder and harder as time goes along.
Yeah, yeah, exactly.
That's the thing of it.
All the precedents set where you might think if this was Matlock or Perry Mason, where he'd say, hey, objection, Your Honor, because this isn't fair for that reason, but in the real world, overruled.
You know, that argument was already settled in the case of this versus that.
The prosecutor gets to get away with it, proceed.
And just because it's been that long, right, like we'd have to just somehow erase decades' worth of precedents favoring the cops.
I read, and this is more or less the same thing.
I'm sorry I'm keeping you over just one minute here, but I'll get your comment here and let you go.
But there's a lawyer, I'm sure you know him or follow him on Twitter, at least Scott Greenfield, I believe it is, who keeps this great blog.
And he wrote a thing called The Basically Reasonable Murder of Tamir Rice, where he explains that the only thing preventing a cop from just killing whoever is the reasonable clause of the Fourth Amendment.
They may not seize your life right out of you unless it's reasonable.
That's the very best you got.
And then from there, there are whatever 10 or 15 precedents he cites that completely twist everything in favor of a cop.
So any time a cop commits a crime, the court may only examine that crime from the point of view of the cop who committed it.
And all these just completely ridiculous things that would never apply to regular people.
And it seems like there's just no one doing that, other than going back in time and making Ron Paul the president in 2008 or something.
What politicians would ever say, here's the kind of wholesale reform we need.
Let's undo the worst 500 things about our criminal justice system.
Right?
I mean, this is a century-long project to undo the disaster going on here.
And nobody, there's hardly any political will at all other than, you know, progressive writers like yourself for the most part, urging reforms as best you can.
But up against what?
Up against a mountain of the national government and its laws and rules and regulations.
Yeah, absolutely.
You know, one of the big problems is actually the Supreme Court.
Over the past four years, in decision after decision, they have kind of closed off avenues for bringing civil lawsuits against police officers and against prosecutors who engage in this type of abuse.
By giving them essential immunity for all of the most egregious and outrageous crimes.
And because they are kind of cut off from this type of accountability, it then kind of perpetuates itself and we see it more and more often where there is a police shooting of an unarmed person or that there is hiding of evidence and that despite the fact that people die or people go to jail for years, they're innocent, there is no accountability whatsoever and the prosecutors and police who are responsible get to keep going on doing their job and in some cases are promoted instead of being fired and prosecuted for what are clear abuses of their office.
All right, that's the great Trevor Tim.
Thanks very much for your time.
I really appreciate it.
Hey, always a pleasure.
All right, y'all.
You'll find him at The Guardian and find him at the Freedom of the Press Foundation as well.
And I'm sorry we didn't get to talk to him about this latest one, but I'll tell you, it's called Asking Silicon Valley to Disrupt Terrorists is Tech Talk for Surveillance.
It's a very important piece.
We'll be running it on Antiwar.com tomorrow.
Before that, Making a Murderer depicts miscarriages of justice that are not at all rare.
And that's it.
Thanks for listening.
Y'all see you tomorrow.
Hey, y'all.
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