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All right, y'all.
Welcome back to the show.
I'm Scott Horton.
Our next guest is Rob Warden and he is executive director of the Center on Wrongful Convictions at Northwestern University School of Law.
Welcome to the show.
How are you doing?
Just fine, thank you.
Well, good.
Very happy to have you here.
And thanks for doing this work.
You know, I realized when I, I saw something on, I don't know, 2020 when I was like 11 about some public interest group out there suing the government over something that they did wrong to somebody else.
And I remember thinking, wow, you know, if those people didn't show up at work that day, it just wouldn't have gotten done.
And that guy would still be rotting in a cage.
And so it takes people actually doing the work to, for example, get the innocence sprung or, you know, get the horrible regulation repealed or whatever it is.
And you're doing the work.
And so thank you for that.
On behalf of the powerless out there, I happen to be one of the powerless.
So not that I'm in jail.
Thank goodness.
If I was, I wouldn't be able to do anything about it.
I would need something like this.
So good work.
Thanks for even existing.
So I saw this headline at allgov.com.
Report catalogs exonerated Americans who serve more than 10,000 years in prison.
That's what your work says.
Yes, that's right.
That is just absolutely incredible.
I mean, 10,000 years.
That's, let's see.
Well, more than three times recorded history.
I guess there's some tablets that they found a scrap of something going back further than that.
But that's pretty much three times written human history there.
Okay, good.
That's a long time.
How many different individuals are we talking about?
And they're doing an average of how long in prison?
Well, we're talking about about a thousand and an average of more than 10 years each.
And these are just cases that we've documented since 1989.
And, you know, and of course, these are only the cases in which innocence has been established and basically acknowledged by the government itself.
There are many, many more wrongful convictions.
And so, you know, 10,000 years is literally just the tip of a proverbial iceberg.
That's much worse than that.
Well, you know, I hate to say it, but it's almost like the big lie kind of a theory where it's the big error.
That's just too big to admit, right?
Because everybody knows that the democracy is self-correcting, that the court system as it's set up, the criminal justice system is built in this adversarial way where somebody really didn't do it.
Then they don't have to go to jail.
The cops probably wouldn't even try to pin it on them.
And and the system works.
And we all know that.
At least we have that.
And what you're saying is, oh, no, the system has been working all wrong and nothing like episode of Matlock or Law and Order or whatever for I don't know how many decades in a row.
And it needs fixing so bad it would take all of our attention for 10 years to get it right.
Finally.
Oh, well, yeah, I mean, we've known about wrongful convictions from, you know, going back many, many years.
You know, the very first one that is really documented in this country happened in 1819 in Manchester, Vermont.
A couple of guys were two guys named Bourne were convicted and sentenced to death for the murder of their brother in law before they were executed.
Fortunately for them, their brother in law showed up alive and well and living in New Jersey.
And so these cases go back many, many years.
And, you know, until very recently, in fact, the last decade of the 20th century, you know, prosecutors and judges would get away with telling the public, oh, you know, when somebody's case was overturned and they were ultimately released.
This is just one of those cases where the system can't meet its heavy burden of proof beyond a reasonable doubt.
But now, you know, thanks to DNA and advances and other kinds of evidence, we know that there are many, many wrongful convictions, people who are convicted and sometimes sentenced to death for murders that they did not, in fact, commit.
So it's an amazing situation, actually.
Yeah.
You know, in fact, that caught my eye and it rang real true to me that part of this report is that it seems like there's more deliberate misconduct in murder cases.
And I wonder why that is.
Is it just because the cops really convinced themselves about the wrong guy or?
Why is it?
It's because there's more pressure on these kinds of cases.
Um, you know, I don't think but it seems like some of the pressure, some of the incentive would be to not let the real murderer go free.
No.
Well, that, you know, not that that ought to be the incentive, but it's in there somewhere.
Any of these cases is like the police don't really have any suspects.
And then they develop a theory as to who might have done it.
And then they pursue that theory at the expense of all other theories.
And just discard, disregard evidence that might point to someone else.
And of course, one of the sad things about this is that every time you can make the wrong person, that means that the right person is still on the street to, you know, to continue to commit similar crimes.
Hmm.
You know, I read this thing at Cracked, actually, all these sad facts about America's legal system.
And I don't remember all the numbers, but they were referring to some studies about jurors and just how little they understand.
They don't even know what reasonable doubt means.
And it's interesting to me because I remember not understanding what reasonable doubt meant when I was a kid and having it explained to me and still not quite having my head wrapped around it.
And so now I'm thinking that's that's the mindset of the jurors.
They don't quite get it.
I mean, there is no there's no real definition.
Reasonable doubt is what any person might think it is.
In some states, such as Illinois.
Well, this thing was saying that they didn't even understand that the defense, that the burden of proof is not on the defendant to prove that he did not do it.
And so when they don't see the defense attorney put on a case proving that he didn't do it, then they default with the officials who all wouldn't be saying he did it if he didn't do it.
Well, I think that that's I think that that's true.
And, you know, we have seen now in all of these documented cases, I mean, this thousand and fifty that we've documented on the National Registry of Exonerations, that, you know, in about 10 percent of these cases, people actually falsely confess.
They were somehow coerced into confessing to crimes that they did not commit.
And then there's, you know, really positive information after the fact that, no, hey, they didn't really do it.
And we've known for years, I mean, that there's a real problem with eyewitness identification testimony, you know, with the use of so-called jailhouse snitches, by prosecutors.
That's somebody who's in jail who comes forward in exchange for leniency in the case against them and says, oh, hey, this guy told me he did it.
You know, this kind of evidence is totally unreliable.
And it's resulted in, you know, hundreds, thousands of wrongful convictions over the years.
Now, the thing is, if we go back to just, you know, basically what, you know, what one could glean from reading the Constitution about it or learning in school about the Constitution.
And I mean, not in college or law school, but I just mean in, you know, regular high school or junior high about the way the system works and whatever.
It seems like somebody really did bend over backwards to at least make it seem fair, where, you know, the prosecutor doesn't work for the judge.
And you get a jury, especially in Texas, you can get a jury over anything if you want one.
And you have the right to a defense attorney who has, you know, all of these powers to demand every bit of evidence that the prosecution has.
And you have all these protections against ex post facto and secret evidence and bills of attainder and all of these things.
It seems like someone is really trying to at least make it fair.
But it's just, and you mentioned informants and a couple other things, but I wonder if there's like a key thing that you think is just going wrong.
Do we need all elected judges instead of appointed or the other way around or hire professional juries?
I think we ought to have, you know, appointed judges.
We would have merit selection, not elected judges.
If we have elected judges, you know, we can expect that they will behave like what they are, which is politicians.
But, you know, the real problem is that we have, I mean, really, people don't appreciate jurors and I think judges and sometimes lawyers don't appreciate what reasonable doubt really ought to mean.
And in virtually every one of these thousand plus cases, if you went back and looked at the evidence that was presented in the trial, there is, you know, there was evidence that, to my mind at least, would have created reasonable doubt then.
But it didn't create reasonable doubt in the mind of the jurors who convicted this person.
And yet the person, you know, sometimes went to prison for, oh, you know, we've documented cases in which people have spent up to 40 years in prison for crimes that they didn't commit as a result of juries, I think, really not appreciating the whole idea of what reasonable doubt really should mean.
What about, is it different state by state or what about a case where the judge can't believe that the jury convicted this guy and he's surprised it even got by the grand jury but he had to hold the trial but they're in no way I'm letting you send this guy to prison.
Do they have the right to just cancel a guilty verdict and say, no, forget that?
Well, yes, I mean, you know, in every case a judge could say, could issue a judgment, what's called a judgment NOV, notwithstanding the verdict.
But those are extremely rare.
They, you know, in fact, I mean, they just virtually never occur.
Is it within the power of the judge?
Yes.
But, you know, what judge is going to do this after a jury has found the person guilty beyond a reasonable doubt?
It's just virtually never happens.
Yeah, but isn't that amazing?
I mean, what does that mean?
They just have ice water for blood and they got it in many cases.
No, a lot better than the jury that this is really pretty trumped up.
And for whatever reason, they had to go ahead and hold the trial.
But, you know, know that it's wrong.
And yet they got people's lives on the line, their families, their their lives.
Well, yeah, I mean, that's you know, it's one of the great trash that gets involved.
Yes, that's right.
But, you know, in many of the cases and I'm not, you know, in which people have been shown after the fact who have been wrongfully convicted, you know, the evidence that was at least presented in the courtroom might at the time have certainly indicated that the person was guilty.
You know, often we've had people testify.
I mean, police officer says, you know, the guy confessed.
And here is, you know, here's the confession, which he signed.
Well, now, can't we believe that?
Well, of course we can't.
A judge believed it.
And then, you know, years later, we find out we get DNA evidence or or a confession from the actual culprit or something like that.
You know, the fact is that the system just really doesn't work quite as well as we have been told over the years that it should.
Well, now, I guess back before I was an anarchist, I used to argue that if we got rid of all the superfluous and unconstitutional government functions and we really pared it down to just criminal justice and a minimal national defense kind of a thing, then maybe we could use our democracy to really focus on things like who gets imprisoned and for how long and for what and whether it's a fair process for deciding or for that matter, judgments held against them or whatever it is, that if we if we really just had these few tasks for government, that maybe we could focus on reforming them or just forming them in the first place into something much more fair.
But I'm not even sure of that.
I mean, it just seems like the whole thing is way too far gone, especially when you talk about how the judge virtually would never cancel a guilty verdict for whatever other incentives he has to go along with what's obviously, you know, in any other circumstances, it's just kidnapping somebody and unlawfully confining them, you know?
Well, yeah.
And but, you know, of course, in many of these cases, you know, the evidence was presented.
The jury arrived at a verdict.
The verdict was wrong.
But who was the judge to set that aside?
You know, even if the judge were to, you know, disagree, you know, you can't really necessarily say that it was wrong at the time.
And we've just never really gone back as a society to examine, you know, what we're doing.
I think there are many things that we could do to improve the system.
We're never going to make it perfect.
Any system that is designed by human beings will have imperfections, obviously.
But we can do a lot to make it fairer and more accurate than it currently is.
Hey, what if we just ended the drug war and legalized and I don't just mean possession, but legalized the drug business and just made it open market activity, just like Anheuser-Busch and alcohol?
I mean, we have seen we learned in the 1930s that prohibition simply does not work.
And, you know, enforcing these kinds of laws, they just don't work.
You know, of course, we should, you know, legalize drugs.
We shouldn't be sending people to prison for these.
And we could, you know, cut down our prison population by 50% just overnight if we stopped, if we abandoned the drug laws.
Yeah, it seems like probably the courtrooms would be entirely different if they only had real work to do.
Instead of just being completely crammed full of nonsense.
And really, you think about all the things that are sacrificed in the name of the drug war, too, like the no knock and look how far we've come with a SWAT raid for every warrant instead of a hostage situation at a bank.
All this stuff is in the name of the drug war.
Yep.
We can do a lot better than we're doing.
And the policies that we have pursued for most of the last century have been shown to have had great fallacy.
And I think that, you know, that we can, I mean, there's a lot that could be done.
And it would be really simple to make it a lot better.
You know, it costs $25,000 to $50,000 a year, depending on the degree of custody to keep somebody in prison.
More than it costs, more than the tuition at an Ivy League school to keep somebody in prison.
You know, we have, there was a recent Columbia University study that identified what they called million dollar blocks.
You know, these are blocks in major cities in which the government is spending more than a million dollars a year to incarcerate former residents of this city block.
That's far more, 10 times as much as we're spending on social services.
And many of these people are not, you know, even, you know, thought to be dangerous.
And we really need to rethink the entire criminal justice system and our approach to public safety.
That's funny.
You know, you remind me of this article I read in the Washington Post about America's efforts to work with the government of Mali over the last few years.
And there's a state department flunky in there says, you know, to be honest, we just don't have a good way to measure that.
You know, what it is that they're doing and whether it's working and all the money they spend and whether they're giving it to the right people and what might happen as a result, you know, like a coup and a war and these kinds of things.
And I was just thinking the only way that this kind of stuff is measured, at least, by the institutions themselves is in their success rates.
Right.
I mean, that's the way everything is, is more, more, more.
There's really the only incentive to, hey, knock it off, would have to come from the outside.
Right.
In fact, I'm even thinking, like I've met lawyers before who people, you know, professors, really believe in the law.
And that's why they're a lawyer, because they believe they love the law.
The law is the beautiful way that free men can cooperate in a society.
They believe this.
And yet they kind of they can't see how badly it's all being betrayed, how the Constitution, the Bill of Rights is being thrown out the window and how people are just being railroaded and run roughshod over.
They they're too far into it.
Right.
It would have to be at least you're a professor.
That's not quite the same thing as, you know, a lawyer working in the court system kind of thing.
But you know what I mean?
It's going to all of their incentives seem to be to make everything worse.
Yeah.
To be blind.
You know, I think we just need to rethink this whole approach.
And, you know, in much of the world, you know, it has been reexamined and we can and we don't have to do what we're doing.
It's costly.
It's cruel.
And, you know, we can just do much better.
All right, everybody, that is Rob Warden.
And he is executive director of the Center on Wrongful Convictions at Northwestern University School of Law.
And you can find them at law.northwestern.edu.
And then check out at allgov.com.
This great article, Report Catalogs, Exonerated Americans Who Served More Than 10,000 Years in Prison.
Thanks so much for your time, Rob.
I really appreciate it.
My pleasure.
Any time.
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