RISA GOLUBOFF: Hello, and welcome to Common Law, a podcast of the University of Virginia School of Law. I'm Risa Goluboff.
LESLIE KENDRICK: And I'm Leslie Kendrick. We're so excited to be sharing this debut episode of our new show with you. But first, a few words about what we're doing here. What are we doing here?
RISA GOLUBOFF: What are we doing here? Well, I'm the dean of the Law School, and Leslie is the vice dean. And in those positions, we get a kind of bird's eye view of the work that's being done by all of our faculty and the ways that their work fits in with and informs national trends and issues.
And it's really a fascinating time to be thinking about the law and the place of the law in society. And so in the spirit of a new podcast and a new era in the 21st century, we figured it would be interesting to dedicate the first season of our show to, well, the future, or at least the future of the law and the future of where law will inform what our society looks like going forward.
LESLIE KENDRICK: That's right. If you subscribe to our podcast, which we hope you will, you'll find that at the top of the feed, there's a kind of preview episode where we're talking to each other about who we are and what we want to accomplish in the podcast and why we hope you'll listen. And we hope that you'll listen to that and hear more about our ideas for the future of the law in this season.
But for now, just know that what we're talking about is how new technologies affect the world and how they affect the law. We'll be talking about blockchain technology, self-driving cars, the future of technology and national security, big data — lots of different topics, and how they're going to affect the world and the law.
RISA GOLUBOFF: Very futuristic stuff, right?
LESLIE KENDRICK: Yes.
RISA GOLUBOFF: Very futuristic. So today's topic might sound less futuristic. We're talking today about criminal justice and the future of criminal justice. But I actually think it is fairly futuristic because we're talking about where the criminal law is going, partly because of technology, science, new forensic technologies and techniques, but partly because I think we've just recently entered a new era.
And in thinking about that new era, I'm kind of excited. I know I'm the optimistic one. If you listen to that Episode 0, you'll hear.
LESLIE KENDRICK: You're the optimist.
RISA GOLUBOFF: I'm the optimist. But, you know, I just wrote this book fairly recently.
LESLIE KENDRICK: Right. So you're also a historian, so you've got the long view on this.
RISA GOLUBOFF: I do. I do. I hope I have a long view. But that long view — so 10 years ago, I started writing this book on criminal justice and policing. And people would ask me about the end of my book. And it sounded pretty depressing because the end of my book was mass incarceration and a really bad, punitive moment in our criminal justice history.
And here we are a few years later, and there's bipartisan support for criminal justice reform. And there are social movements moving toward criminal justice reform. And I just feel like we're in a totally different era.
And when we talk to our guests today — and we'll introduce them in a second — I think we'll hear despite all of the problems that exist in our criminal justice system and the wrongful convictions that result from them, they're also going to tell us about what's changing and what can change and how we can make change.
LESLIE KENDRICK: So today, we're talking about criminal justice and, in particular, the problem of wrongful convictions. And to talk about that, we have a dream team of two guests who are both involved with this question.
One is Deirdre Enright of UVA Law's Innocence Project. She's the director of our Innocence Project Clinic. And her voice may be familiar to you from the podcast “Serial.” Deirdre was featured on the podcast “Serial.” We're so glad to have her.
DEIRDRE ENRIGHT: Thanks for having me.
LESLIE KENDRICK: We also have with us best-selling author John Grisham. His voice is probably not familiar to you, but his name is. He's the best-selling author of many, many books, including “The Firm.” He's involved with the original Innocence Project in New York. And his book, “The Innocent Man,” was recently turned into a Netflix documentary series. Welcome, John.
JOHN GRISHAM: Happy to be here.
RISA GOLUBOFF: We are so excited to have you both on the show, and we thank you for coming.
JOHN GRISHAM: Our pleasure.
LESLIE KENDRICK: And you all go back a ways, don't you?
DEIRDRE ENRIGHT: John and I?
LESLIE KENDRICK: Yes.
DEIRDRE ENRIGHT: He would deny that, but yes.
Do you want to deny it now?
JOHN GRISHAM: How long ago was it? We started the Innocence Project —
DEIRDRE ENRIGHT: So I don't know if you're going to even remember this story, but one of my first days opening the Innocence Project, it was late on a Friday night. And I was only there because I was the only one that existed in the Innocence Project then.
And the phone rang. And I picked it up. And someone said, “Hi, this is John Grisham.” I'm trying to reach Deirdre Enright. And I, of course, thought it was someone making fun of me. So I immediately said, yeah, right, and went on to say I was Queen Elizabeth.
JOHN GRISHAM: Her first instinct is to always be a smart-ass. It's always some kind of smart-ass remark from Deirdre. You get used to it after a while.
DEIRDRE ENRIGHT: And he ignores it and walks right on beyond it. And eventually, I realized it really was John Grisham, because I'd heard his voice before. And he wanted to talk about the Norfolk Four, which he was doing a ton of work on at the time.
JOHN GRISHAM: That was probably 10 years ago.
LESLIE KENDRICK: So tell us about the Norfolk Four.
JOHN GRISHAM: There was a murder in July of 1997 in Norfolk that involved a young 20-year-old bride of a sailor, a young couple from Pittsburgh. And he was at sea. He came home and found his wife raped and murdered in their little, small apartment, but in an area that was used by thousands of sailors, where they lived with their young families.
And a cop at the crime scene decided that one of the neighbors was probably a suspect, another sailor. And so they dragged him in for a marathon interrogation. And he broke down and confessed. He was the first of four.
At one point, the cops had nine sailors in jail, not just four. They had nine. And two of them wouldn't confess. They did everything but physically beat them. They threatened them with death and all this kind of stuff.
Anyway, they dismiss the charges against the others. So you had the four who confessed and were convicted and sent to prison. And none of the four confessions were even remotely comparable to what happened at the crime scene. But it was such a fascinating story of wrongful convictions against four young boys serving their country who spent — most of them spent at least 10 years in jail. Now, they're all out.
DEIRDRE ENRIGHT: And the spin-off from that is that there was a bad cop in that case who's now in prison. And our clinic has been applied to by over 15 people who had that police officer in their case.
JOHN GRISHAM: Yeah. It was a rogue cop in Norfolk who did a lot of bad things. He's still in the federal pen. But he was sort of an expert in getting false confessions. A lot of police departments kind of have a go-to guy who can squeeze a false confession.
DEIRDRE ENRIGHT: There's a lot of us, too — and I'm sure John is one of them — who think it stems a lot from the Reid interrogation method that police are mostly trained on in this country. And it allows a lot of the things that happen legally to lead people into false confessions.
RISA GOLUBOFF: So what does that method look like?
DEIRDRE ENRIGHT: So, it's suggesting answers. It's offering only two answers. It's offering people what appears to be an easier way out, like the lesser of two admissions. And with younger people or people that are more — I don't know — malleable, they just outright suggest to them theories and say, this is what happened to you, but you blacked out, or this is what happened to you, but you were too high to understand.
JOHN GRISHAM: Or you were dreaming. The dream sequence is a favorite one. The dirtiest trick that I think I've seen — and there's so many dirty tricks. The police are actually allowed by our Supreme Court to suggest a polygraph. Innocent people are too eager to take a polygraph to prove they're innocent, to cooperate, to get out.
But guilty people know better than to take a polygraph. They don't take polygraphs, OK? But innocent people, after six or eight hours of abusive of interrogation, will say, OK, sure. The cop says, how about a polygraph to clear your name? Sure, I'll do it. OK.
So they string them up, wrap them up, do the polygraph. And most of the time, they pass it OK. But the cop is allowed to lie. So you take the polygraph. You go back to the dark room. You're sitting there.
The cop walks in with the graph paper. And he throws it at you. And he says, you flunked it, damn it. We now have proof you're lying. We know you're lying, and we can prove it. We'll use this in court.
And these people have no way of — there's no defense. It's another breakdown, and they just keep breaking them down, breaking them down. And after only about 12 or 15 hours nonstop, you and I would confess to anything. I've talked to criminals. One of the Norfolk four guys said this, and you hear it all the time. He said, I would have confessed to killing my mother to get out of that room.
DEIRDRE ENRIGHT: Getting out of the room is the thing. They just want to get out of the room.
JOHN GRISHAM: I'm on the board of the Innocence Project in New York. We're up to like 370 DNA exonerations. Ironclad, biological proof. We've got the DNA. And fully 25 percent of those involve false confessions.
LESLIE KENDRICK: What is the Innocence Project? Can you tell our listeners, what's the Innocence Project?
JOHN GRISHAM: Well, it's kind of vague. There are about 50 of them around the country, one here at UVA, one at Ole Miss we started down there. Most of them are connected to law schools, but not all of them. None of them have enough funding. There's no money, really. Not much. Not nearly enough.
There's one big Innocence Project in New York. And it's the one that was started by Barry Scheck and Peter Neufeld 25 years ago. We just had our 25th anniversary. And they kind of roam the country coast to coast, and they coordinate things with other Innocence Projects. They bring in other lawyers, like Deirdre, or your people locally, who need help in local cases. And they sort of do their best to quarterback innocence work all over the country.
There's so much of it, we'll never have enough lawyers. And there's a network, a real great network, of innocence groups around the country. The Innocence Project, there's a bunch of them. But the big one is the one in New York.
DEIRDRE ENRIGHT: And we're all apart. So if you take that name, the Innocence Project, you have to buy the trademark. You have to pay and be part of the network. And you have to abide by a lot of really good regulations that help everybody.
And I think really, ours — the only difference between us and them — and it's a huge one, really — is that we made the decision — I made the decision — that we would not just do DNA cases. Because error rates — there's no reason to suspect error rates are any different in any other cases. And those guys don't have DNA.
So we do all of those kinds of cases and do many fewer DNA cases and take much more labor intensive because it's not just a biological forensic test. But the students get to learn so much more because they have to investigate all of these different junk sciences and witnesses and —
RISA GOLUBOFF: Say more about what are the other kinds of issues that come up, if it's not DNA. Because I think a lot of people and in a lot of peoples’ minds, innocence equals DNA evidence, right? So what are the other kinds of things?
DEIRDRE ENRIGHT: The New York Innocence Project sort of lists the seven deadly sins, right? And it's eyewitnesses, junk science, bad prosecutors, bad cops —
JOHN GRISHAM: Jailhouse snitches. Junk science. There's about seven or eight reasons.
DEIRDRE ENRIGHT: False confessions.
JOHN GRISHAM: False confessions. There are seven or eight that show up in almost every case, or a combination of them. You take any innocence case, and you could find those factors. And it's very difficult with a non-DNA case, the ones that Deirdre takes.
You have to go back to the scene of the crime. You have to go back 15 years ago many times and go back to the scene of the crime, and who was there, and who were the witnesses, and what did the cops do, and what was the evidence, and start trying to put together the case that is very difficult to solve.
And those cases take years. It takes years and thousands of hours to succeed, if you succeed. And we see a lot of cases where we don't succeed and we probably cannot succeed. And it's very labor-intensive work.
DEIRDRE ENRIGHT: And there's the added problem, too, that in most states, after you have your trial and your court appointed lawyer and your direct appeal, that is the end of the state's obligation to you in terms of buying you legal representation. And so everything that we're doing now is not being done by the state.
So when we solve things, people say, oh, look, the system worked. We're not part of the system, right? We're outside the system. And we're just sort of a lucky gift to them, right?
So we have our 12 cases in the beginning of the year, and we have a backlog of over 1,000. And odds are there's a ton of innocent people in that pile. And the state owes them nothing, though they convicted them.
JOHN GRISHAM: Yeah. And a death row inmate is going to have a lawyer. They're going to have a — it depends on the state. Some states provide lawyers. Most don't. Most of your big law firms up North, as we say — up North — are going to step in at some point and do work that is hard.
It's incredible, the hours that some of these firms spend. I've had a lot of fun and made a lot of money poking fun at big law firms over the years, but I have great respect for it in many ways because they take these cases that are just brutal and commit the manpower to often losing causes.
But the people who get screwed here are the non-capital cases wrongfully convicted. You don't have a lawyer, and you're sitting there. And you're writing letters to the Innocence Project. She gets them. We get them in New York by the thousands. And you look at the mail and think, how can we possibly even screen all this stuff?
DEIRDRE ENRIGHT: Yeah. The first case that I ever worked on that was what sent me to law school was working as a paralegal for Skadden Arps. And I had stayed there for like four years trying different departments, thinking one of them would be the reason I would go to law school. And I couldn't stand any of it.
And then, the partner that I loved took a death penalty case. And we worked in El Paso for — I went out there for two years, I think. And it turned out to be the wrong guy. And it took over a million dollars. And I was in law school by the time we got him freed. And he lived with me and my husband for the first year of our marriage, which is why it's been so wonderful.
JOHN GRISHAM: Probably the happiest year of your marriage.
DEIRDRE ENRIGHT: It was the most jolly.
RISA GOLUBOFF: That's what her husband says.
JOHN GRISHAM: Your husband misses that guy.
DEIRDRE ENRIGHT: I wish I could share with you the look on my husband's face when I said, “Guess what I offered to Fred today?” But I remember thinking — people used to say to me, oh, well, that's too bad that you got the best, most exciting case that you'll ever get in your life in the first at a law firm because you'll never have that case again. And I have that case all the time.
RISA GOLUBOFF: You made a career in that case.
DEIRDRE ENRIGHT: I mean, it just makes you really realize that this isn't something that happens infrequently. This isn't needles in a haystack. This is often.
RISA GOLUBOFF: So how frequently do we think it happens?
JOHN GRISHAM: There's no way to ever know because we have 2 1/2 million people in jail and prison. There's no way to go look at every case.
DEIRDRE ENRIGHT: Death penalty cases can review their error rates because they pay attention to them and because they have lawyers on them, and so they know and they can do as much as they can do. But for us, people always talk about, oh, well, we get it right most of the time. We have no idea if that's true. And 98 percent of the cases are pled. So there's our adversarial system.
JOHN GRISHAM: And oftentimes, they're pled to a person facing non-serious charges or felonies, but nothing violent or whatever. They'll plead to something they didn't do to get out of jail. So that's a wrongful conviction. So you've got that wrongful conviction. That was just a procedural reason to get out of jail. That happens.
That's probably the biggest cause of wrongful convictions, is the plea bargain system. We're talking about cases involving serious crimes and people who are serving either on death row and facing the death penalty or life without parole or long sentences who are innocent. There's no way of — I mean, it could be 10 percent.
DEIRDRE ENRIGHT: Oh, I think —
JOHN GRISHAM: You think so? At least 10 percent?
DEIRDRE ENRIGHT: I just think given what we put into these cases, which is almost nothing — and when they enter their pleas, they know nothing. So all they have is a lawyer telling them what the prosecutor can do to them. And they don't know what the prosecutor has. Then, they could all be lying. And it's not cost-effective for that lawyer to take that case and run with it.
So we stepped into a case here in Charlottesville with a law firm and Jim Neale over at McGuireWoods. And we read the — I don't know — 17-year-old's confession. And he just sat in the room saying, “No, I didn't rape this girl out of high school.” And “no, I didn't do it. No, I didn't do it.”
And then, the police officer said, “I mean, that's the only way you go home.” And he said, “Oh, I go home?” I mean, just right then and there, he was like, OK, I did it. And had we not intervened, he would be in prison. It was just a little thing that happened at a high school that got out of control. And his court-appointed lawyer wasn't going to do what we did. That's for sure.
LESLIE KENDRICK: At what stage do you get most of the cases that you have? Are these mostly postconviction? Tell us a little bit about what that looks like. So everything we do is postconviction. They've had their trial. They've had their direct appeal. Now, procedurally, our problem in litigating is that usually, they've been filing things pro se themselves for years.
So those things — because the procedural rules are so difficult, we are often limited to very few legal avenues because they've done their habeases, or we have to find something that the state hid to get back into habeas. So we're at post-. We hope we can have a habeas because we like the habeas standards better than we like the writ of actual innocence. And then, we have the writ of actual innocence. And then, we have the governor.
RISA GOLUBOFF: So just to be clear, once you've had your trial and your appeal and your appeal's final, you're convicted, right? And so the only way to get out of prison at that point or to undo that conviction is to say, my conviction was based on something unconstitutional that was done.
DEIRDRE ENRIGHT: Right.
RISA GOLUBOFF: Right. And that's where habeas comes in.
DEIRDRE ENRIGHT: Right. So the Sixth Amendment. I had a right to an effective lawyer. That's violated because I had this guy.
RISA GOLUBOFF: This guy who slept or who —
DEIRDRE ENRIGHT: This guy who was drunk. This guy who did nothing. This guy — and a lot of times, too, when you see those violations, you look at what that lawyer was going to get paid to do that case. And it's really hard to argue with these lawyers that they should have done more when you see what they were going to get paid to do those things.
So one time, I think it was me and two other lawyers agreed to take a case that was a big, notorious case. He was being charged with three felonies. The three of us donated $1.6 million to represent him for three years because that's how long they — and we would have each by statute gotten $1,350.
So there it was. That was what was going to — he was going to get convicted or plead otherwise. So you have ineffective assistance of counsel, and then, you have your due process rights. So if the prosecutor had exculpatory information to give you, he had to give you that by law.
RISA GOLUBOFF: So information that would have helped your case.
DEIRDRE ENRIGHT: Right.
RISA GOLUBOFF: He has to give that to you.
DEIRDRE ENRIGHT: We find those violations in almost every case.
LESLIE KENDRICK: You all mentioned junk science, and I wondered if you could tell us a little bit about some examples of different types of evidence and different types of techniques that you might worry about fostering wrongful convictions.
DEIRDRE ENRIGHT: We just finished working on a case that we didn't prevail on, which breaks my heart. And it was a shaken baby syndrome case. And that is this whole layer of cases where if three things are found — subdural hematoma, edema, swelling of the brain and retinal hemorrhaging — if you see those three things in a infant or child, you're allowed to presume that the baby is shaken, unless it can be proven otherwise.
So there's a whole subsection of lawyers that only litigate shaken baby cases. And New York has a person, Kate Judson, who was our leader, our fearless leader, for all this time. But our case was one of those cases. There were experts at trial who were prepared to come and testify for free that what they saw in this infant could not have been caused by shaking.
But the lawyer didn't realize he could ask for a continuance because the lawyers were her immigration lawyer and a medical malpractice lawyer, nobody with criminal experience. And she was convicted. And so there's a whole group of scientists and doctors and lawyers who are fighting against that presumption because it's called a medical diagnosis of murder, that in a hospital, somebody gets to say, somebody did something traumatic to this baby before we know a single thing about what happened.
RISA GOLUBOFF: How does that presumption gets set in the first place? I mean, how much data was there before they said, these three things together?
DEIRDRE ENRIGHT: I guess there would be fights about that. But the guy who was the original doctor, Dr. Norman Guthkelch, was the first guy to come up with this idea. And he has already retracted it and said, that was me playing around. I wrote a paper. I saw some kids that were hurt. I wondered if parents would get frustrated and shake their babies.
Which I don't know. Everybody loves seems to love this image of you're so frustrated with your child that you just have to shake them and that it happens all the time. And so there's an industry around shaken baby syndrome. And so doctors now, if they see those things, they have to report that to Child Protective Services. So it becomes the wave that takes over.
JOHN GRISHAM: And the science has never been solid. There's kind of a trend. It became a trend 20 years ago, shaken baby cases. And now, we've got people on death row throughout the country who were waiting to die because of the shaken baby syndrome. And again, the science has never been clear.
Junk science is responsible for so many wrongful convictions because there's so much bad science. We've just about eliminated bite mark analysis, although it still exists. Hair analysis. When the FBI says that its prime hair analysts are wrong 95 percent of the time, can you imagine what's happening at the state level?
Arson analysis. We have people on death row in this country now who are sitting there because the house burned down with the kids in it. And they've charged them with arson. And the science is not there. The proof is not there. There was no crime. It was a house fire, OK? And some kids got burned up.
The junk science is — the Innocence Project works on the national level to pass legislation that would clean up forensics and have some type of standard. Let's make our experts — if you take the stand as an expert, you've got to have some training and credibility, whatever your field is.
Some of these people just adopt a field. They go off to a weekend seminar. They get a certificate. The show up in podunk wherever you are — podunk Virginia. And the jury is not sophisticated.
And you've got a coat and tie on. And you know some big words. And suddenly, you're an expert. And people believe you. And that's how we get so many bad verdicts and wrongful convictions from junk science.
LESLIE KENDRICK: What can you tell us about eyewitness testimony and what wrongful conviction work has taught us and what science has taught us about that?
DEIRDRE ENRIGHT: So eyewitness misidentification, I think, is 75 percent of all wrongful convictions that eyewitness identifications are involved. It only gets worse. The more we learn about memory, the more we should mistrust ourselves on that, especially when you're in danger or fear, which is what usually is the case in these cases.
We just got Messiah Johnson released. And his case was two masked men came into a beauty salon to rob. They had all the people lay down on the floor. By their testimony, everyone had on hoodies and glasses. And they did everything in their power to not be seen or noticed or remembered.
Two weeks later, Messiah Johnson was walking into a bar wearing his prescription eyeglasses, not sunglasses. And somebody in a passenger seat who had been in the salon from across the highway identified him.
And the police that night did a show-up, which is when you bring a person to the victims, which you should never do if you can avoid it, and they could have. And then, his assistant, who was with him at the time, made an identification. And then, later, another person in the salon made an identification in court.
And we later found the man who did the crime, and he admitted that he did it. And he told us who he did it with, and he told us about the dark sunglasses he wore. And there was just no — we interviewed those people. And once you think you've done something like, it's impossible a lot of times to convince them that they're wrong.
So eyewitnesses are terrible. There's studies everywhere about how bad they are. It's very difficult in Virginia to get a hearing and to get a court to appoint experts so that you can educate the jury about how. But many lawyers that I know would say, you can put all that on. And if the woman leans across the table and points at that guy, that's the only time the jurors will have ever seen that happen. And they'll just think, she knows.
JOHN GRISHAM: I mean, there's so many ways to manipulate lineups, and there's so many ways to make them fair. And we have, again, a legislative proposal that we file in all 50 states every year to make lineups fair, identification fair. We have the same thing for false confessions. It's very simple. Record all interrogations.
They have the video machines there. They have a tape recorder there. They don't turn them on until 15 hours have gone by and the guy's confessed. Then, you flick it on, and he's beat down, and he confesses.
But the video cameras are there. Turn them on. Show the whole session, and it would cut out the abuse. So we have all of these proposals that we'd file again. And we're slowly making progress.
RISA GOLUBOFF: Are there particular kinds of laws that you have more success with, or a particular state's?
JOHN GRISHAM: Compensation. Almost every state now has some kind of compensation scheme for people. Once you are officially exonerated, then you can apply for money. And the schemes vary greatly from state to state. But at least it's something. I think in Mississippi, it's $50,000 a year, which is not much for what you've been through, but it's also a nice chunk. It beats nothing.
What's bad is when you have someone who — this happened in Oklahoma six months ago. A guy served 30 years for a rape. It's Perry Lott. It's an Innocence Project case we're working on. He served 30 years. Black on white rape. He got convicted. Always said he was innocent.
Finally checked DNA. Guess what? Somebody else, another rapist who's been in prison. So the prosecutor says, well, I don't believe the DNA. That's not unusual. It's not unusual in rural areas. I'm going to retry him.
And so they bring him back to the county jail, make him sit there for a few months for another trial. And then, the prosecutor offers him a plea. If you'll plead guilty to the rape for time served, you can walk out. Well, what are you going to do?
So they take the plea. They plead guilty just to get out. He's going to get zero. He's getting nothing, OK, because he pled. And that happens so many times in these cases. So not everybody gets compensation.
LESLIE KENDRICK: In terms of the causes for wrongful convictions — so you've talked about the specific bases that often lead to it. But would you say it's the resources, it's the money that people don't have for their own defense? Would you say it's structural, institutional causes in the way policing or prosecution or forensics are done at the state levels? Would you say it's bad apples? Would you say it's incentives? I mean, it's pretty rampant, right? So why is that?
DEIRDRE ENRIGHT: Can't we just say it's everything that you just said?
LESLIE KENDRICK: You could say everything. I'm just curious if you think it's anything more than —
JOHN GRISHAM: That plus racism. It's just a fact that in many cases, black defendants are handled differently than white defendants. Almost all cops are white. And when there's a crime, they're just going to treat the black guy differently. That's just the way it is. And I'm not sure how we change that.
Once a serious crime — once the investigation goes off track — and often, it happens at the crime scene, where you've got a couple of detectives who are real smart. And they look at the crime scene. They say, well, you know — the book I wrote about, “The Innocent Man,” was a horrible murder. And the cops were at the crime scene. The girl, she'd been dead for a while. It was a mess.
And the cop said, it's so violent and so bloody, it had to be two people. And from that moment on, that was their theory. It had to be two people. And, by God, they convicted two people. Turns out only one guy did it. He's serving life without parole in Oklahoma right now. But they almost killed Ron Williamson in the process, and Dennis Fritz got a life sentence.
And once they get the tunnel vision, once they make this decision and they get tunnel vision, they exclude all evidence that is to the contrary. They can't wait to include evidence that's kind of shaky, whatever might buttress their case. And if it's a black defendant and you've got white cops, it's even worse. They've got their man, and they're going to exclude anything else that might prove otherwise.
DEIRDRE ENRIGHT: It wasn't one of our cases, but in Virginia, Marvin Anderson — the victim went to the police and said, it was a guy who said he — the guy who raped her.
JOHN GRISHAM: It was black-on-white rape.
DEIRDRE ENRIGHT: And he said, it was a person who said he had a white girlfriend.
JOHN GRISHAM: During the rape, the rapist supposedly said to the white victim, “I really love having sex with white women. I have a white girlfriend.”
DEIRDRE ENRIGHT: Boom.
JOHN GRISHAM: Boom. And at the time in this small town outside of Richmond, Marvin was the only black guy that the cops knew who had a white girlfriend.
DEIRDRE ENRIGHT: And that was it.
JOHN GRISHAM: That cost him 20 years.
DEIRDRE ENRIGHT: That was it.
JOHN GRISHAM: That cost him 20 years.
DEIRDRE ENRIGHT: The other part, too, that I keep thinking about — and I know this is me being angry — but the lack of consequences for bad behavior. The prosecutors never get in trouble for any of this. Police officers rarely get in trouble for any of this.
And meanwhile, lawyers get disbarred. And the quality of the lawyers that we give to people at that level, it's not good mostly, unless there's an office. So I feel like consequences have to be put in place, that you can't just — and recently, somebody said, well, that prosecutor in Texas went to prison for 10 days.
JOHN GRISHAM: 10 days, yeah.
DEIRDRE ENRIGHT: That does nothing for me.
JOHN GRISHAM: He's the only one we know of. He went there for 10 days.
DEIRDRE ENRIGHT: That does nothing for me. That doesn't solve anything.
JOHN GRISHAM: The consequences are rather severe — can be — for the local taxpayers. And the innocent man in the small town of Ada, Oklahoma — the guys I wrote about, when they got out and exonerated by DNA, they sued everybody in the state of Oklahoma. They had good lawyers, too. And they lined them up and shot them.
And at the last minute, there were huge settlements. And the people in Ada had to raise property taxes twice to pay off the judgments. That's not unusual in some of these cases. So there are consequences. Now, the cops are never going to be fired. The prosecutor's going to get re-elected or appointed to be a judge. That's just the way it happens.
RISA GOLUBOFF: So do the taxpayers know that that's why their property taxes are raised?
DEIRDRE ENRIGHT: I would imagine in a small place, you would know. So our case in Lancaster, there was an issue of documents that we'd been looking for 10 years. The case was 32 years old when we got relief for him.
And what we kept going to — there were three prosecutors elected while we looked into this case. And each time, I would go and say, I know there's missing documents. I know because when I look at the file — and I would show them. And they would say, we just can't find them. We just can't find them.
Right after we filed our habeas, the new sheriff, who had no dog in this fight, called me and said, “Deirdre, we just found a box of documents in the destruction room. And we don't know how it got there. We don't know who put it there. But I think it's the box you're looking for. And why don't you come tomorrow and look at these things?”
And by the time I got there, the sheriff said, “We have to lock you into a room because there's some people that know that you're being allowed to see these documents, and they're very angry.” So we had armed guards, me and two students, who I would have never brought had I known that it was going to escalate to that.
And the sheriff said, well — I said, what is everyone so angry about? This is 32 years ago. And he said, “Well, they say that once you get your hands on these documents, you'll be able to sue this county bankrupt.” Which I don't know if that's the case or not, but that was stated. That was the stated reason.
JOHN GRISHAM: And you found the documents?
DEIRDRE ENRIGHT: I don't know if we got everything, but we got enough to go back in and put our petition and say, look what was withheld from us. And it was another one of these ridiculous hair — a hair case. It was a silly case.
JOHN GRISHAM: Listen, I could write a book about the lost rape kits, the lost police files, the lost boxes of evidence that they find in the courthouse basement or attic or the sheriff's old garage. And if you're lucky, they find it.
Think about the people who aren't lucky, and the stuff is never found. And they're still serving time. But those cases are — there are hundreds of them. Fun to talk about. Sad to read about. But they're there.
DEIRDRE ENRIGHT: One of ours, our most recent release, was Darnell Phillips. And we had looked for years for the physical evidence in his case and asked in writing. And we did it repeatedly because we know that people say things are destroyed, but they're not. And they had told us that everything had been destroyed. The prosecutor had written a letter to the court saying everything has been destroyed.
They had tested a hair, found out it wasn't his hair. It wasn't a “negroid” hair. And then, the judge said, OK, now, we have a ball game. Test everything. They came back and said, whoops. Everything got destroyed after your order. Don't know how it happened. Whoops.
We kept asking. And eventually, a police officer answered our FOIA and said, well, actually, we do have a lot of physical evidence. What is it you're looking for? And we said, we just want the list of what you have so we can take it to the court. The next thing we know, we were redirected to the cop who took the confession that was never written down, never videotaped.
Our client said he didn't. He said he did. It was his word against — there was no writing. There was no videotape. He was going to be in charge of whether or not we got to see the evidence. And he said, and I'm going to claim an exemption, and you're not going to get the answer to that question.
And then, one day, years later, Jenny [Givens, a director of the Innocence Project Clinic] was at the court looking for something. And one of the clerks said, I just wonder why you guys never tested the physical evidence in the Darnell Phillips case. And Jenny said, “What physical evidence?” And she said, “We have it here. It's over here in the courthouse,” and went and got the box. And there it was.
So there's no rules. There's nothing you can count on. And you just have to be as big a loser as me and have nothing better to do than keep bothering people about these things that no one cares about.
RISA GOLUBOFF: “Loser,” I think is the wrong word. So last question — where do we go from here? What's going to happen next?
JOHN GRISHAM: As far as wrongful convictions, I'm somewhat optimistic. There seems to be more of a consensus for serious criminal justice reform. One bill was passed last month. Both sides seem to be concerned about it for different reasons. We are optimistic guardedly in that each year, we will continue to pass legislation around the country, model legislation that we think will prevent a lot of wrongful convictions.
The work is determined to be frustrating. It's fairly easy to send an innocent person to prison. It's pretty easy. If you can get the right witnesses and a couple of snitches and a couple of crazy scientists and bogus experts and a sympathetic jury, it's fairly easy to convict somebody. And it's virtually impossible to get them out once they're there.
So that's the kind of work we do. We're committed to getting them out and also changing the laws to prevent stuff in the future. It's a long, uphill fight, but we're climbing.
DEIRDRE ENRIGHT: Yeah. I agree. I agree. I want to put a more negative spin on it, just because that's who I am. I think transparency could change a lot of things. So much of what happens to people in the criminal justice system is hidden. And it's really not even a criminal justice system. It's thousands of systems.
And I feel that if people knew that the adversarial system is not really what we're doing here — that's not what it is. And if people would just be honest that when you go to court and somebody's sitting in the chair between the lawyers that there's no presumption anymore — that guy has got to talk his way out of it.
So I just think if we were more honest about what was happening and about what we have working — and I see no reason for people to not have to tell us what's going on in the criminal justice system. I don't see any reason why files have to be secret and people have to fight and litigate about them because I think that would expose what exactly is happening.
And when people started to think that this might happen to them — because that's what happens. It's when it happens to someone you know that you start to see what actually goes on.
RISA GOLUBOFF: But it strikes me — at the risk of promoting both of you, it strikes me that you are both doing incredible work to make the transparency greater and to bring into many more people's lives awareness of how wrongful convictions happen and what needs to be done to fix them. So your books, the Netflix show now, “The Innocent Man,” the work that you do, Deirdre. And I think there are more and more people out there who are doing this work and publicizing this work. And I think that's how change happens.
DEIRDRE ENRIGHT: Right. If you have a bunch of people who love doing the work, and then, you have John training the light on this, things will change. That's for sure.
JOHN GRISHAM: We hope. I mean, I don't start writing a book hoping to make change. Some books have in history, but I don't think about that. But if a book does entertain and captivate a reader and inspire the reader to read the book and start thinking about something, then it's successful.
RISA GOLUBOFF: Thank you both so much for coming.
JOHN GRISHAM: Our pleasure. Enjoyed it.
DEIRDRE ENRIGHT: Thank you for having us.
LESLIE KENDRICK: So one thing that strikes me is that this is a story about science and technology, but it's also a story about people and their passions. And it's a story about — it's a story about information and communication and how that can change things.
So when John talks about the work that he does as an author and Deirdre says how important that work is to training a spotlight on the work that lawyers like her are doing, I think that's a really interesting commentary on how people can have different passions that all combine in a way to change society. And also, a kind of interesting thing about that — John has been out there for a long time writing about these issues.
But in recent years, we've seen podcasts like “Serial” or [the Netflix show] “Making a Murderer,” with our UVA alum Dean Strang featured. Some types of media that I think didn't exist before, technological change enabled them. And the technology makes them kind of cheaper to do than maybe a “Serial” television series would have been.
And I think that's allowed this issue to get lots more attention than it would have in a world before those technologies were available and before people were communicating about this in the way that they have. So it seems like it's a really interesting combination of science and technology changing, but also communication technology changing and people's ability to share information about this actually changing the world.
RISA GOLUBOFF: Absolutely. And I was thinking as you were talking, it's also about how the law is a part of this larger ecosystem. So you have lawyers like Deirdre doing the work and then, the kind of popular culture and media that you're talking about distributing it into the world. And then, there's a feedback effect.
So we've seen many more students coming to UVA Law School because of the Innocence Project and because they want to be a part of that work. So you see the culture and the technology then feeding back into a desire for people to become lawyers, a desire for them to do this work, and creating more capacity, more human capacity, to actually do the hard work in the trenches of identifying people who have been wrongly convicted and figuring out what the tools are to challenge those convictions.
LESLIE KENDRICK: That's right. And I think that that also goes to this becoming more of a bipartisan and less of a controversial issue. So I think there are many things that play into that, but I think one of them is the more attention there is on it, the more communication there is, the more different people there are involved in the conversation, that attracts more different people.
So I think we've seen students who want to be prosecutors, who want to sign up for the Innocence Project because in their mind, my job as a prosecutor will be to get this right. And a way to make sure that that happens is to study the cases where it's gone wrong.
And I think you see this being something where lots and lots of different people think what we should be focusing on is trying to get this right, and what criminal justice should be about is trying to get this right. And I think all of these trends that we're talking about have helped to make that the case.
RISA GOLUBOFF: And hopefully, more so in the future.
LESLIE KENDRICK: Yeah.
RISA GOLUBOFF: Well, that's going to do it for this very first episode of Common Law. If you're not already subscribed to the podcast, you can go ahead and get yourself subscribed on Apple Podcasts, Stitcher, or wherever you get your podcasts. And if you do, you'll also get access to another special episode.
We're thinking of it as Episode 0. That's waiting for you in our feed, where Leslie and I introduce ourselves. We reflect on some of our similarities and our differences. And we talk a little bit about what we're hoping to accomplish in this first season of our show.
LESLIE KENDRICK: You'll find links to more information about today's guests in the show notes for this episode. And I recommend you check that out because they are very interesting people. We'll be back in a few weeks with another super-interesting episode that explores blockchain technology and some of its implications for corporate law. Here's a little taste of that.
MAYME DONOHUE: Our economy lives and breathes and depends on our ability to trust one another in transactions. And I think creating trust in a blockchain-based system is where the lawyers come in.
RISA GOLUBOFF: Today's episode was produced by Tyler Ambrose, Tony Field and Mary Wood. I'm Risa Goluboff, the dean of the University of Virginia School of Law.
LESLIE KENDRICK: And I'm Leslie Kendrick, the vice dean. Thanks for listening.