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Via America’s Lawyer: Mike Papantonio and former prosecutor Mark Godsey talk about how innocent people have been convicted more and more in the last five years.


Mike Papantonio: Those of us who have dedicated a life’s work to the legal profession understand all too well that there are truly two different justice systems at work in the United States. There’s the corporation justice system for the wealthy, the CEOs have access to a system that really favors them in every way. Ridiculously small fines for their decisions they make that leave consumers and employees crippled or dead. Then the other justice system that low income Americans live with where even the smallest legal infraction can land them in prison for years.

One of the talking points that you hear coming from right wing news is that the reason these two separate justice systems exist is because the low income people simply commit more crimes and they point to incarceration statistics to back up that claim. But sometimes in the very rare cases, statistics can lie and that’s exactly what’s happening with our criminal justice system. In recent years the number of convicted criminals that were later exonerated for their alleged crimes has skyrocketed. For example, nearly 10 years ago, just a few dozen people were exonerated after serving time in prison but in the last three to four year, more than a 100 people each year were exonerated after being convicted crimes that it turns out they never committed.

One thing that most of these wrongfully convicted people all seem to have in common is that they’re typically low income Americans who lack the means to fund a drawn out legal battle to fight the trumped up charges against them. Prosecutors will use this knowledge to offer plea deals to these defendants resulting in false confessions and convictions. But as science has evolved groups like the Innocence Project have been working to use available evidence and DNA samples to help exonerate these wrongfully convicted individuals, some of whom have already spent decades in prison for crimes that somebody else committed.

Joining me now to discuss this is Mark Godsey, executive director of the Ohio Innocence Project and author of the new book, Blind Injustice. Mark, can you start out by telling us how bad is the problem of wrongful convictions in the country today? Does it seem to be getting worse?

Mark Godsey: Yeah, since 1989 there have been now more than 2,000 people who were wrongfully convicted and proven innocent and released. As you noted a moment ago, the number keeps going up every year. The last few years there’s been more than a 150 people exonerated each year. The system is very, very slow to change despite the fact that you turn on the news any given week and you see on average three people who are exonerated and walking out, sometimes after 40 years in prison for a crime they didn’t commit. We get a lot of resistance and pushback from the system. So it doesn’t seem to be getting much better.

Mike Papantonio: Yeah, Mark, your new book, Blind Injustice, you talk about the role that prosecutors play in these wrongful convictions. How does that occur? Why would a prosecutor take it on themselves to say, “I’m know I’m going to convict somebody that I don’t have really good evidence against.” How does that happen? What’s the culture that allows that to happen?

Mark Godsey: Well I talk about that in the book because I used to be a prosecutor and so I’m one of the few people who are now an innocence lawyer who served for many years as a prosecutor. That’s why I wrote the book, I wanted to give that background to it. It becomes a very competitive environment where you’re in a prosecutor’s office and everybody’s judged on their win loss record and everybody wants to move up, everybody’s ambitious, everybody wants to do good just like in any job. So it becomes like a game about winning especially if it’s a case where people think you aren’t going to win because maybe the evidence of innocence is strong. If you can win that one, then you’ve pulled a rabbit out of a hat. So it’s even more credentials for you that you’re able to win this long shot case as a prosecutor.

The tougher the case is from the prosecutor’s perspective, the more it is, the better it is for them to win it. It just becomes this very competitive win at all costs game. The longer you in it, it becomes very self serving, ambition plays into it, everybody wanted to get promoted. I lived that very much in my years as a prosecutor.

Mike Papantonio: Mark, I was a prosecutor too. It varies culture to culture but I prosecuted in a culture in an environment where there was zero tolerance for prosecutors who over reached. As a matter of fact, one of the years I was prosecuting a prosecutor was actually prosecuted themselves by building a case with evidence which should have never been there. By not doing their job and actually making something look far more criminal than it actually was. Don’t you think we have to do that? Don’t you think we have to police ourselves and we have to say that, “I don’t care whether you want to run for governor or attorney general some day.” Or, “I don’t care if you’re prosecuting and you’re looking for that special job where big firm’s going to hire me because I did such a good job as a prosecutor.” Don’t you think we have to affirmatively be involved in going after those people who choose to be a prosecutor where real justice can be done? We need to go after those people who choose to do just the opposite. What’s your take on that Mark?

Mark Godsey: I agree. First of all I agree with you that’s it’s a matter of culture. Offices have cultures. There’s prosecutor’s offices in Ohio where I run the Ohio Innocence Project that have a great culture where they work with us. You can tell they want to do the right thing. I can mention the Cleveland one and the one in Columbus as examples. The culture really is established by the leader, the head prosecutor. A leader and somebody coming in and intentionally trying to set a culture of justice rather than just wins and losses can make a big difference. And you’re right, one of the problems of these rogue prosecutors or rogue police officer when they go out and they do something they shouldn’t do is that there’s hardly ever consequences.

We’ve got individuals in for example, in Illinois some police officers who were caught basically torturing people during interrogations to get false confessions and nothing happens to them. I’ve got my own cases in Ohio where we got exonerations and the court found police misconduct and nothing happened to the police officers, they kept their jobs. It’s very rare that anything happens. Part of the problem is the US Supreme Court has extended qualified immunity to the point where it’s very hard to sue anybody so there’s not financial ramifications for misconduct. It needs to be cultural and attitudinal change from the leaders on down setting an example that we’re in this for the right reasons, it’s not about just wins and losses it’s about justice. And then we to do a better job of making sure that people who overstep the bounds when they have power are actually punished for it. I agree with you.

Mike Papantonio: When you consider the fact that we live in a high tech world with some pretty amazing scientific advances made in just in the last few decades, how is it possible that so many people are being convicted based on, I guess you’d call it junk science, very often. When I was prosecuting, the idea of a hair sample, virtually there was nothing that was pathognomonic of anything where it comes to biologicals. Science has changed though. We do know enough. If law enforcement does their job and a prosecutor makes law enforcement do their job, when they say, “You’ve brought me a case that I think is really weak so you need to do A, B and C and maybe I’ll go forward with it.” That’s the role a prosecutor should play. What’s your take on this technology?

Mark Godsey: One of the things that we’ve learned through the innocence movement and all these people have been exonerated is that a lot of these so called forensic sciences that we’ve been using for decades to convict people are not as scientific as we thought and are in many cases never been validated and they’re somewhat unreliable. The ironic thing is that we got these shows like CSI where they tell the public that these forensic sciences are these miracles that are akin to putting man on the moon and we realize now that there is not a scientific basis, they’re often extremely unreliable, the conclusions that the CSI experts are testifying to in court are exaggerated and overstated. It’s not just me saying this.

In 2009 the National Academy of Sciences, which is a prestigious independent agency established by President Lincoln’s administration, that’s how long it’s been around, they came out with a scathing report, it was like 500 pages long, called Strengthening Forensic Sciences, A Path Forward talking about all the changes we need to make because even fingerprinting, a lot of times there’s problems with it that the public doesn’t realize. But a lot of these things like bite mark, there’s teeth marks on the dead body that’s found and they match it up to the defendant, they get a forensic odontologist to look at it and say, “Oh this bite mark was made by this defendant.” All these different kinds of pattern matching and evidence and things like that, it’s actually quite subjective and tends to be unreliable.

We need to go back and have new standards for it and make sure that the experts are operating under those standards and again one of the problems is the system is just very slow to make changes. Even though this report came out in 2009, the Obama administration echoed it and said we need to make changes. Very little change has ever happened.

Mike Papantonio: Unfortunately a good attorney, a good trial lawyer can make some of these almost nonsensical biologicals look like it’s beyond a reasonable doubt kind of evidence. And that’s unfortunate because sometimes they do that. But isn’t the other part of it is that you have an industry, what I call the biological forensic industry that perpetuates themselves. They say, “Yeah we’ve got it down to a science, we can tell you everything you want to know about hair sample. Everything you want to know about a tooth sample.” Whatever it may be.

Mark Godsey: Absolutely. I talk about that in chapter two.

Mike Papantonio: They all have their niche. They all have their specialty.

Mark Godsey: I talk about that in chapter two of Blind Injustice.

Mike Papantonio: You see that developing more and more don’t you?

Mark Godsey: Yeah. I talk about that in chapter two of Blind Injustice. It’s like a junk science industrial complex. You get these people who have gone around testifying about these, what we now know are unreliable or junk sciences and they’ve made a fortune off of them and then all of a sudden somebody comes along and says, “Hey, this is unreliable, maybe we shouldn’t be convicting people based on this.” They fight back with ferocity and really go against, the establishment really fights back and I give numerous examples of that. Like in the bite mark area and the shaken baby syndrome and things like that, that’s what a lot of chapter two is about. There’s a documentary called The Syndrome about how the medical establishment, all the doctors who have gotten rich testifying on the shaken baby syndrome theory have fought back against discoveries in the medical sciences that the theory they were relying on really wasn’t very reliable. It resulted in wrongful convictions. It’s pretty alarming. People should check out that documentary, it’s called The Syndrome.

Mike Papantonio: You saw the same thing happening where they did regression psychology where psychologists would have women believing that their fathers assaulted them when there was absolutely nothing other than the regression testimony and then all of a sudden those cases started emerging until we found out that most of that was completely fraudulent. We’re all the mercy of all this and I think that’s why it’s so important that you’ve written such a great book here, Blind Injustice. Mark, thank you for being out there doing that. Hopefully you’ll be out on the speaking circuit convincing more people that we need to rethink the way that we go about criminal convictions in this country. Thanks for joining me, okay?

Mike Papantonio is an American attorney and television and radio talk show host. He is past president of The National Trial Lawyers, the most prestigious trial lawyer association in America; and is one of the few living attorneys inducted into the Trial Lawyer Hall of Fame. He hosts the international television show "America's Lawyer"; and co-hosts Ring of Fire Radio, a nationally syndicated weekly radio program, with Robert F. Kennedy, Jr. and Sam Seder.