Joshua B. Hoe interviews Justin Brooks about his book “You Might Go To Prison Even Though You Are Innocent”
Full Episode
My Guest – Justin Brooks
Justin Brooks is a criminal defense lawyer, law professor, and the Founding Director of the California Innocence Project, where he has spent decades freeing innocent people from prison, and he was portrayed by Greg Kinnear in the movie Brian Banks. Today, we are here to discuss his new book, You Might Go To Prison, Even Though You’re Innocent.
Watch the Interview with Justin Brooks on our YouTube Channel
You can watch Episode 141 Justin Brooks – Actual Innocence on our YouTube channel.
Notes from Episode 141 Actual Innocence
The books that Mr. Brooks recommended included:
Picking Cotton: A Memoir of Justice and Redemption by Jennifer Thompson-Cannino
Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions by Mark Godsey
Full Transcript
Josh Hoe
Hello and welcome to Episode 141 of the Decarceration Nation podcast, a podcast about radically reimagining America’s criminal justice system.
I’m Josh Hoe, and among other things, I’m formerly incarcerated; a freelance writer; a criminal justice reform advocate; a policy analyst; and the author of the book Writing Your Own Best Story: Addiction and Living Hope.
Today’s episode is my interview with Justin Brooks about his book, You Might Go To Prison, Even Though You’re Innocent. Justin Brooks is a criminal defense lawyer, law professor, and the Founding Director of the California Innocence Project, where he has spent decades freeing innocent people from prison, and he was portrayed by Greg Kinnear in the movie Brian Banks. Today, we are here to discuss his new book, You Might Go To Prison, Even Though You’re Innocent. Welcome to the DecarcerationNation podcast, Justin Brooks.
Justin Brooks
My pleasure to be here. Thank you.
Josh Hoe
Yeah, it’s a real pleasure to have you here. I always ask the same first question. And I read your book [and it] actually covers some of this. How did you get from wherever you started in life, to becoming a law professor and doing the best job in history freeing innocent people from prison?
Justin Brooks
Well, my story begins, really, my childhood was a fairly poor childhood. I’ve two immigrant parents. And, you know, we didn’t have a lot of money growing up. My dad ran a few businesses into the ground, and it always seemed like the lawyers did okay. Yeah, those bankruptcies. So I went to law school. Yeah, the lawyers always come out like No, everyone else is bad, lawyers are good. And so I went to law school, actually, to be a corporate lawyer. I did a business degree in undergrad and then went to law school to be a corporate lawyer. And my first-year criminal law professor took my class out to a prison in DC. And it really struck me, seeing so many young, mostly black men locked up, and I started teaching in a prison while I was in law school. And then after law school, I got a fellowship to Georgetown Law School to run a prison program, started doing a family literacy program, started teaching more classes, overseeing a whole educational program in the prison, while I was also practicing as a criminal defense attorney. And then about a few years into that I got seduced by academia completely. And the idea of moving to a small town in Michigan, moving to East Lansing, Michigan, where I could get a nice . . .
Josh Hoe
I’m literally sitting in Lansing, Michigan right now.
Justin Brooks
Ah, okay. So you know that it has some real benefits in terms of cost of living. I was living right there on the Michigan State campus, my kids could walk to Glencairn Elementary School. And it was just a nice little place to live. And I thought, Okay, I’ll go be a law professor and live in a nice little Midwestern place. And I lasted about six months before I read about this young woman on death row in Illinois, who was sentenced to death on a plea bargain. And that kind of sucked me in; I met with her on death row. And then she told me she was factually innocent. And I said, you pled out? And you’re innocent? Yes. And you’re scheduled to be executed? Yes. So I went back to the law school, and I said, Who wants to help me out on this case? This woman says she’s innocent. And these hands went up in the air, four kids. And that night, in our, my, in my kitchen, in East Lansing, Michigan, we sat around the table. This is back in 1995. We started going through the case file. And then we drove to Chicago, that weekend; we went to the crime scene. And we found out that, you know, the whole case was fabricated, all the witness statements, everything about it was phony. And that just sparked my imagination that this is what I wanted to do for the rest of my life is, is work on behalf of innocent people in prison. I wanted to do it with law students, because I also realized that working on a case hand in hand with these students was the only way to make them into good lawyers. Because it’s like, you know, being a plumber, you can’t teach someone to be a plumber in a classroom, you got to turn a wrench, you got to know exactly how much pressure to apply on a drain. It’s not something you just can do when you’ve read a book about it. And law is the same way. You know, you need to know how to do a crime scene investigation. You need to know how to litigate motions. You need to know how to put a case together and how to deal with clients. And so after we got her death sentence reversed I moved to California and started the California Innocence Project. And I did that in 1999. And I’m about to hopefully walk my 40th innocent person out of prison.
Josh Hoe
That is impressive and congratulations. I’m very happy that that person is coming home. Before we get too deep in the weeds on the rest of the kind of nitty gritty on this, I have been trying to get to know my guests a little bit more and asking totally off topic, if they have any hobbies aside, in your case, aside from long, long walks to the state capitol, do you have any hobbies?
Justin Brooks
Yeah, long walking is one of my hobbies that started when I walked from San Diego to Sacramento with some clemency petitions, but I actually fell in love with long-distance walking. And now I have three times walked the Camino Santiago de Compostella across Spain, which is a 500-mile walk. I also play guitar, I play basketball, I live down at the beach, I used to surf every day until my work took over my life a little too much. I keep thinking I’m gonna paddle out. And I’m actually looking at the waves right now. And they look pretty good today. But I haven’t been surfing in a very long time. I’ve got a grandchild, he takes up a lot of my time, a brand new baby boy grandchild, and I do the first shift in the morning from 7-8:30 with him every day, which is the best part of my day.
Josh Hoe
I definitely share basketball with you. That’s a huge, huge, huge part of my life too.
So the premise of the book is that because of the way our system operates, any one of us – and I guess I shouldn’t include me since I actually did go to prison and was guilty -any one of us could go to prison, regardless of guilt or innocence. We’ll discuss a lot of those specifics in a few minutes. But I think this is an important entry point: So many people seem to feel that if you’re incarcerated, there’s a reason. And anything that happens to you is just desserts. Can you talk about how you decided on this becoming the animating concept of the book?
Justin Brooks
Yeah, so I guess it’s 30 years ago, when I started doing this work, I would have a lot of conversations about are there innocent people in prison, you know, and people, a lot of people didn’t believe there were any. You know, we had cases like Rubin Hurricane Carter, some big cases in history. But, you know, the notion that this was something that happened every day, was just not accepted at all. And now that we’ve documented more than 3300 cases of wrongful conviction, the conversation has changed. It’s more along the lines of Yeah, innocent people go to prison, but it’s never happened to me, it would never happen to my family members. And then sometimes when I talk to prosecutors, they’ll say, yeah, no, no, I know that that happens, but not in my office, and not my cases. So there’s this sort of denial that goes on about innocence and, and people being incarcerated. And there’s also, you know, people have a sense of lack of responsibility for it. And as I say, in the book, you know, this is our collective criminal legal system that we fund, that we elect the people who create it. This is ours, we’re responsible for how it functions. Yet most citizens feel no responsibility to even serve as a juror or know what’s going on with it. And then what happens are systems at the mercy of politicians that use three word slogans to get reelected, like “lock them up” and “build a wall” and all these things that they’re saying are going to fix it, are really just things that fund the system and get people elected. So that’s really what the heart of the book is about. I want the average person to be able to read this and fully understand how easily it could happen to them, to then hopefully get them to care about it, even though even if you don’t think it’s going to happen to you we should care about it, because we have an absolute responsibility. And it’s become a huge chunk of our budget. So even if you don’t have any,
Josh Hoe
Just in my own state, it’s like a billion dollars every year. It’s a huge, huge, huge amount.
Justin Brooks
Even if you’re not motivated by kindness, you can be motivated by your pocketbook.
Josh Hoe
Or any number of things. You know, I know that I’m jumping ahead here because this is something you talked about in the concluding chapter. But I felt like given the question I just asked, I should probably ask this here. Does a focus on innocence, or that the problem with the system is that it can prosecute and convict innocent people distract from the notion that we need reform of the entire system? And sometimes that we need, you know, to do work for guilty folks? I feel like most of what I do is, you know, to provide or try to help make the system less cruel and more productive or helpful for people who find themselves incarcerated. I know that’s a tough question. This isn’t meant as a gotcha question. I just think it’s an interesting discussion to have.
Justin Brooks
No, I like the question, especially considering that’s how I, at the beginning of my career, I was, you know, working in prisons, with a lot of guys who did the crimes they were convicted of, but were given excessive sentencing. And were not given enough treatment. And were not given enough programming, and were not supported when they got out. And so that’s firsthand, you know, what I saw in my career. My son is now a public defender here in San Diego. So you know, his clients are mostly guilty people that he’s trying to do the best he can for. I think, you know, I can’t really pinpoint exactly why, in a sense, it resonated with me when I started this project. But seeing a 21-year-old kid sentenced to death who is innocent, just was more shocking to me than dealing with people who are guilty and sent to prison. Even though I have a tremendous amount of empathy for anyone who ends up in that situation. In terms of reflecting on the movement and what it’s done, I do think we’ve opened a conversation of looking at the system and improving the system that benefits everyone. Because I mean, prisons are literally designed to hide away what they’re doing and hide away the societal problems. You know, they’re built out in the middle of nowhere with big walls around them. And the only people who know what’s going on in there are the people who are incarcerated, the people who work there, and the family members who visit. That’s it. So I do believe that the work I’ve done for the last, you know, 20-some years, representing exclusively innocent people, has been, part of a lot of my work has been raising awareness for the entire system. But I do think it is a legitimate criticism. I do think it’s a legitimate criticism. That’s why I address it in my book, because I do think there are some people out there who only care about innocent people. But I don’t think I’ve made that any worse. I think there’s a way to bridge the two.
Josh Hoe
I mean, is there a way? I mean, you’re saying that it opens that window or door? But is there? Are there natural ways that the people who work on my side, the people who work on your side, can kind of work together and create a narrative that helps everybody or works to help everybody [become] aware that these things are not entirely unrelated?
Justin Brooks
Absolutely. I mean, one of the things I talk about when I give speeches on this topic is solitary confinement. And yes, so many of my innocent clients have gone through solitary confinement and come out damaged, but anybody who goes through it – and I talk about how the United States leads the world in solitary confinement – and it’s something that most people don’t think that for a minute, I always see the audience shocked by that. And think of that as something that happens in other countries, and we’re the leader in it. And that kind of damage that we do to people, whether they’re innocent or guilty, most of them are coming back into our society. So we have to think about from a utilitarian perspective, what are we doing with the people who are incarcerated, innocent or guilty? And I think, again, I get into these conversations, because people are interested in hearing about my work. But I talk more broadly, on those topics. Because there’s just, it’s not necessarily just relevant, it’s not just relevant to innocent people, it’s relevant to everyone who’s incarcerated. All the mistakes that we’re making, that have led us to have the largest prison system in the world, to incarcerate the highest population in the world of any country, and to have one of the worst recidivism rates in the world. Like where it’s a failing system in its totality. And I think we just have to recognize that and innocence is one component of that.
Josh Hoe
You know, I thought about it for a while. And if you step back, I think another way to look at your book is that it’s kind of a chronicle of all the ways that the system is tilted towards guilt, and or at least towards sentencing, and not innocence. You kind of identify problems at every level of the process. And so I’m going to ask you about some of the problems, too, because I would hope everyone would read the book to read the stories of all the people involved in all the things you’ve gone through, but you’re just going to try to highlight some of the kinds of issues that are that are being faced, one of which is that we have, from the very beginning, from the entry point of the system for people who get arrested. We have myriad issues with interrogations and false confessions. I think the average person off the streets thinks that confession is kind of the end of the story. I know maybe some people have seen some movies, you know, where they maybe start to question that. But why is that kind of common understanding wrong?
Justin Brooks
Yeah. Almost every time I speak in front of an audience, I ask ” Who here thinks no matter what, you wouldn’t confess to a crime you hadn’t committed? and a bunch of hands go up, and it’s deeply problematic. The average person doesn’t believe that innocent people confess. And we now know that 17% of people later exonerated, fully exonerated, mostly by DNA evidence, confessed to the crimes they didn’t commit. And I think what makes it difficult to understand for people is I think they understand clearly that when there’s violence involved, and when you look back to the 1960s, and 70s and before, guys were regularly just beaten until they confessed. Now, that happens sometimes, but it doesn’t happen anywhere near like it used to, that people don’t understand how psychological coercion works. And from all these really stupid TV shows of the past few decades .
Josh Hoe
Of which there are unbelievably large numbers.
Justin Brooks
It’s crazy how much stuff there is, they think police officers are focused on getting the truth. And they think that they’re trained to get the truth. And what they don’t understand is that the Reid Method that officers are using around the world is not focused on the truth, it’s focused on getting the suspect to agree with the narrative the police have already created, which is a completely different concept. They have a story in their head, and now they’re going to use that time in that room to get you to agree to it. And after 13,14,15 hours of interrogation, most people ultimately will agree. Sometimes they’re broken down. But a lot of times I see in my cases, they’re just angry, and they’re just like, okay, all right, it’s gonna get me out of here, I did it. And they just signed the paper thinking, I’ll never be convicted on this, because I didn’t do it. And now maybe they drum up a snitch to confirm it. Now, maybe they do a bad ID process. And now the person ends up in prison for the rest of their life. But there’s very little understanding that innocent people confess, and there’s deep cynicism about it out there, which is why you see people convicted on nothing more than a confession, even after that confession was obtained after hours and hours and hours of coercive questioning.
Josh Hoe
And it’s not just coercive questioning, it can also be flat out false. You know, they can say pretty much whatever they want. I know when the police were interrogating me, I was lucky, I was a little bit educated. I kept just saying lawyer until they stopped. But police can even legally lie to get people to confess, is that correct?
Justin Brooks
We just got a law passed in California just this year, that now the police can no longer lie to juveniles. And we could not get it passed that they couldn’t lie to adults. And I don’t think any jurisdiction has accomplished it. I think there’s now three jurisdictions that have banned it for juveniles. So exactly. And people think like, oh, well, just because the police tell me a lie, doesn’t I’m not going to confess. And then you start looking at the lies. So for instance, Marty Tankleff case in New York City, a 17 year old kid wakes up, both his parents have been slaughtered in his house. And they lie to him, and fake a phone call from his dad, when his dad is already dying, saying Marty did it Marty’s the one who stabbed me. And so I mean, it’s just insane. And so he’s thinking, Well, my dad wouldn’t lie, and he’s just woken up into this surrealistic nightmare. And is so deeply confused.
Josh Hoe
That’s actually a premise of a David Lynch movie. I mean, that’s literally the premise of David Lynch movie.
Justin Brooks
Really? I did not know that. What’s the movie?
Josh Hoe
Lost Highway.
Justin Brooks
Oh, okay. Well, maybe they owe Marty some money. But Amanda Knox, same, similar. She’s in Italy. She’s come in, she’s found her roommate stabbed to death. She’s just traumatized by it. They question her in Italian for hours on end, start trying to convince her of a story. And then she starts going along with it. You look at there’s been a number of cases where people had blackouts. They were blacked out drunk. And now you start telling them what happened last night. And eventually they start believing it. It’s outrageous that in the United States of America, police are allowed to just lie as much as they want, make up the craziest stories, and then introduce the evidence they obtained as a result of those lies into court. But that is absolutely the law throughout the United States, with adults. And in very few jurisdictions, they’re only limited from doing it with children.
Josh Hoe
And they’re also allowed to and frequently do leverage family members and friends and threaten them as a part of, you know, getting pleas or getting convictions. There’s all kinds of levers they use that would make people more likely to get people to say that they committed a crime. Am I wrong?
Justin Brooks
Our whole system is geared towards first getting a crime closed, getting the evidence, and second getting a conviction. And that’s why we’re now at this point where we have more than 95% plea bargains because everyone’s just pushing a case towards a plea bargain and resolution. And the end. The problem is the system has become so large that it’s now a giant factory. It’s not handmade anymore, and you’re not, if people think there’s trials going on every day, that’s not the reality, very few people ever see the inside of a courtroom in a trial. Most cases are just plead out, poorly investigated. And a lot of innocent people get caught up in that.
Josh Hoe
And they’re even lots of ways the laws are written to ensure convictions, everything from strict liability laws. You talk about constructive possession, there’s ghost drugs, there’s felony murder, even if we’re not talking just about innocence, we build a lot of things into the system to get rid of the complexities of actually proving guilt or innocence, or at least putting more leverage, giving police and prosecutors more leverage to get quick plea bargains.
Justin Brooks
Yeah, that’s a very good point. And there is this sort of creative legislation that I mean, when you look at how, and most Americans don’t think about this, that first of all, the United States is a very unique country, that has 50-some penal codes, that’s not true, the rest of the world, in most of the rest of the world, a crime is a crime is a crime, wherever it happens in the country, the sentence will be the same, it’ll be treated pretty much the same. In the United States, everything is run at the state level, and then it’s enforced at the county level. And so you have vast differences throughout the country of what types of crimes will be prosecuted or not. And in fact, where you’re sitting right now, when I used to teach my private law students about it, I talked about Lansing versus East Lansing, because I used to pick up cases in both. And I represented these kids who were prosecuted, it was called the Gunson Street riot back in the 90s. And it was after a football game. And it was on Gunson Street in East Lansing. And they ticketed all the kids in the neighborhood for hosting a nuisance party because there was this big party in the streets with their kegs and, and women taking their tops off. And it was this crazy post-football game. So they go around, give everyone in the neighborhood a ticket. My clients weren’t even home when this thing happened. And they still got a ticket. So I said I’m taking this to trial, and the prosecution ended up prosecuting it. And we went through a whole jury trial over this ticketable offense instead of them just dismissing it. At the same time in Lansing, I was representing a guy on attempted Grand Theft Auto and cocaine charges. And I ended up getting them both the exact same deal of five days. So it was just such a perfect example of the United States, that here are these two places right next to each other. But there’s so many factors to do with how busy the courts are, what their priorities are, how much crime is in their area, how busy the lawyers are, and ultimately that all factors into how the sausage is made, and what the end result is going to be. And that varies just across this country so dramatically. And most of the laws are made by state legislatures. Most of them are not lawyers, and they respond to politics. So I remember being in Lansing when the carjacking statute was enacted. And across the country, there was this one horrible situation in Maryland, where a guy carjacked a woman who had a baby in the backseat. And so the next day across the country, all these legislators get up and say we need a carjacking statute, even though they already have armed robbery, they already have things that cover that.
Josh Hoe
Make it “super illegal” is one of my favorite pet peeves.
Justin Brooks
Yeah, make it super illegal. And I can’t remember the exact numbers but I remember teaching my students in Michigan that when you look at this law, if I put a gun in someone’s mouth, and and I take $100,000 off them, that I get a lesser punishment than if I walk up to someone and say, I’ll beat you up if you don’t give me your $200 car. Because carjacking was more serious than armed robbery. And so we make all these laws up. And they’re made by politicians who are responding to voters, they are trying to get votes. And a lot of times they’re absurd. I was in Michigan when they talked about raising the age of consent to 21. So I was on the radio and people were calling in and this woman says Well, I think people should wait until they’re 21 to have sex. And I said, Ma’am, what you think people should do, and what we should be putting people in prison for – because you’re basically saying that any college student in the state of Michigan who has sex with their partner, that’s not forcible, that’s them agreeing to it, they’ve now committed a serious felony, and we’re gonna send them to prison for that. So it’s just so you end up having laws made based on people’s values. And you know, it’s just not the way that it should happen. It’s a big problem in our country, how politicized criminal law is, like nobody runs for office on I’m going to change the law . . . but they all run for office on I’m going to make tougher policies. I’m going to build more prisons, I’m going to increase sentences and it ends up being a big mess because it’s not thoughtfully done, it’s done through the political process.
Josh Hoe
So regardless of how you encounter the system, most everyone has to start at some point, or at least get to some point where they have an attorney and attorneys are quite expensive. I found this out myself. And there’s a presumption that paying for an attorney can be worse than accepting a public defender. You say a lot about this in the book, so I’m just gonna let you take it from here.
Justin Brooks
Sure. So the 10 chapters of my book, or when I really sat down, I remember I wrote this on a napkin, like, what are the top 10 reasons why some people go to prison? And then my publisher rejected that title. They said, It’s too click-baity, you can do You Might Go To Prison Even Though You’re Innocent, but not . . .
Josh Hoe
I thought they liked clickbait.
Justin Brooks
Yeah, not UC press. So my Chapter One is You Hired the Wrong Lawyer. And I really wanted to dispel a lot of just notions that are inaccurate about hiring lawyers and how it works in the United States. Because, in general, people think private lawyers good, public defenders bad. And that’s just not true. The majority of the people, almost all of them that I’ve walked out of prison, are represented by private lawyers. And the difference between private lawyers and Public Defenders is that public,
Josh Hoe
I think you meant public defenders, right, not private . . .?
Justin Brooks
No private lawyers convicted most of my clients.
Josh Hoe
Oh convicted! I’m sorry.
Justin Brooks
For example, again, going back to Michigan, your hometown, I used to pick up cases in Lansing, East Lansing, and Ann Arbor. And I remember in Ann Arbor, I was paid by the hour. And in Lansing, I was paid by the case. So now what does it do to lawyers, even if they’re really well-intentioned, when you tell them, you’re gonna get $1,000 a case, whether you play this out or go to trial, whether you take out weeks to put a trial together and then go through a trial process, you get 1000 bucks. Or if you negotiate a plea deal and get $1,000 and in Ann Arbor, I remember I was getting paid by the hour for whatever hours I put in. That’s going to impact the kind of representation you’re getting. And that’s within one state in the way they’re appointing lawyers. And then it’s vastly different, again, from public defenders to private counsel. So what I say in my book, my advice is, you know, you want to get the best lawyer you can in this situation. You want to scrutinize who they are and what they’re doing and how well they’re doing. But you just can’t go by private lawyer good, public defender bad. That’s a horrible strategy that I’ve seen go wrong many times.
Josh Hoe
And of course, the corresponding problem is that at least some attorneys, be it because of caseload or being bad at their jobs or having other things on their mind, don’t do a very good job defending their clients. However, it’s almost impossible to reverse a decision because of attorney incompetence. So one of the big problems we have is this notion that attorneys should be competent. And I think it’s actually kind of a recurring theme throughout the book.
Justin Brooks
Yeah, at trial they were represented by private lawyers. And I’m not saying there’s not great private lawyers out there. I’ve been a private lawyer. And there are some amazing private lawyers out there. But just like anything else, when you’re hiring a plumber, when you’re hiring a builder, when you’re hiring anything in your life, there’s people who know how to get to the best people and can afford to pay them. And then there’s everybody else. And so most people, they’re hiring the private lawyers from the back of the phonebook, so whoever’s got a billboard on the highway, those guys wouldn’t be putting those things up if it wasn’t making them business. And that’s not necessarily who to go to get your best representation. And so it’s kind of like, I play guitar. And people ask me who I think is the best guitarist in the world. And I always say, it’s probably some kid working at a Guitar Center in Oklahoma that you’ve never heard of, and I’ve never heard of. And that’s the same way with lawyers. If you ask a lawyer who the best lawyers are, they usually have a different answer than the guy on TV who has the best ads. So public defenders, what they have is they’ve got training, they’ve got experience, they’ve got supervision. And most importantly, in my world, they have investigators, whereas private lawyers, oftentimes people are paying them a sum of money. That’s all the money they have. And now that’s all the money that’s going to be expended on that case, and all the resources. So in the first chapter of my book, I talked about my death row client, Marilyn Mulero, and how her family and friends decided she shouldn’t have a public defender. And she fired a woman who’d done hundreds of felony trials, who had a lot of death penalty experience. And they hired a guy with an office in the neighborhood, gave him a $10,000 retainer. And for that, he didn’t even meet with the district attorney and just entered a plea in of guilty, and she got the death penalty. Now that’s an extreme example. But there’s a lot to learn from that and unpack, that payment matters t are your thoughts on that?
Justin Brooks
Well, I just hate the Supreme Court case law on that, Strickland versus Washington, that you have to establish that number one, you did not get reasonable representation based on the standards in your community. And number two, had you gotten reasonable representation, it would have made a difference? Well, if you think about those for a second, first of all, what is reasonable? That’ll be up to a judge to decide and they can interpret it any way they want? And then second of all, how do we know what would have made a difference? Like we’re not in the jury room? We don’t know that if maybe that lawyer had done one more thing, the whole jury would have gone another direction. So we’re just purely speculating on that. So I’ve, I’ve won cases, I’m surprised I’ve won. I’ve lost cases, I can’t believe I’ve lost in front of judges arguing ineffective assistance of counsel. And in the Marilyn Valero case, I litigated that case for 27 years, arguing in every state and federal court all the way up to the US Supreme Court saying my client did not receive effective assistance of counsel here, the lawyer never went to the crime scene, didn’t interview any witnesses didn’t go through police reports and no training and doing death penalty cases that never handled one before. Every court denied me saying, well, it was her decision to plead. And I kept saying, there’s supposed to be assistance of counsel in making that decision. And if that lawyer isn’t out there gathering information they need or getting the training that they need to handle the case, that’s the same thing as going into a doctor’s office, and a doctor saying you’ll be dead in five minutes unless I do open heart surgery, and you will, okay. And the doctor was completely wrong. Like you should have an action there against that doctor. But we rely on a doctor to give us advice. And it should be the same thing with lawyers. But it is such a loose standard, that I spend most of my time just convincing the judge my clients are innocent. And I think most of the time, if I can convince them they’re innocent, they’ll go with me on the rest of it like, okay, well, they probably didn’t get good representation here, if you can come up with things they should have done. But that’s a good point. Going back to your earlier point about people who are guilty. When you’re guilty, and you’re trying to raise ineffective assistance of counsel, it goes nowhere, because it’s just again, like, oh, okay, you got a really bad lawyer, but you’re guilty?
Josh Hoe
Well, part of the problem is that people can be guilty of part of the charges, and not all of the charges.
Justin Brooks
Exactly. Or get a different sentence. Yeah, get a different sentence, because the lawyer does a better job of putting a sentencing package together. As you know, going through the system, everything is up for grabs. It’s, there’s no definite anything.
Josh Hoe
And you have people with the exact same charges, you get wildly different sentences, all kinds of stuff based on the different judge, different prosecutor, different attorney. It’s just their quality lawyer.
Justin Brooks
And yes, yeah, you put together a good, you know, package of this person’s ties to the community, their family, I mean, it’s a lot of legwork, and good lawyering and getting to know your client, getting to know their backgrounds, getting to understand their thing, and, and just good solid litigation. To pretend that people who do the same crimes all end up in the same place is absurd in our system.
Josh Hoe
There’s a lot of prosecutor problems, I’ve definitely had whole episodes on it. So I’m not going to try to jump to parts of it. You know, I can, I mean, the trial penalty, plea bargains, we’ve talked about a little bit. But one thing I haven’t talked about that comes up at least twice in your book, is this thing where a prosecutor tries the same defendant multiple times until they get their desired result. I think most people think intuitively this is impossible. And you don’t really talk about it as a problem. But it jumps out every time I look at it. I’ve seen it in a couple places, not just your book. I think the Bill Richards cases, the first one you talked about in the book, but can you talk about that, because it just seems wildly inappropriate, especially when you’re getting to the fourth or fifth time? I think there’s a Supreme Court case where someone was tried eight times until they finally got the desired result.
Justin Brooks
Well, this comes back to understanding constitutional law, which is something I talk about a lot. There’s no such thing as an absolute constitutional right. That’s just our court’s position, has been for 200- some years. That’s why even though there’s the Second Amendment, you can’t have a nuclear weapon. That’s why even though there’s a First Amendment, you can’t say whatever you want, whenever you want. That’s why because there’s a Fourth Amendment, we can still search your house if we have a warrant or basically any reason. So every single one of our constitutional rights.
Josh Hoe
That was a very good explanation of the modern Fourth Amendment, by the way.
Justin Brooks
I mean, it’s like if there’s a reason we’re going in, and the same thing is true with double jeopardy and the Fifth Amendment. It says you shall not twice be put in jeopardy. That’s what the words say. But the Court has interpreted as “unless you are acquitted at trial, there’s a compelling government interest to retry you”, even though you go literally to the words of the Fifth Amendment, it says You shall not twice be tried. We will try you again. So a hung jury is automatically going to be a retrial. And unless you’ve actually been put on trial, you haven’t been tried. And so you do have other cases where people get arrested, put in jail, cases dismissed, arrested again, spending some time in jail, case dismissed, arrested again, and they keep trying to build the case; that can happen over and over again. And I’ll tell you even a more absurd thing that’s very frustrating to me that I talked about in the book. And you look at Bill Richards’ case, for example, he’s tried four times till they finally get a conviction. And that final conviction was based on bad bite mark evidence that we proved to be bad and even got the original prosecution expert to admit he was wrong in that testimony. We go through the entire appellate process, we go all the way to the California Supreme Court on it, and we lose four to three because the California Supreme Court will not recognize that an expert can recant their trial testimony. We then go to the legislature and get a law passed called the Bill Richards Law that says no, no, no, an expert can recant their trial testimony, we go back to the Supreme Court, they now rule 7-1 in our favor, the case now goes back to trial, and the prosecution says we’re prosecuting again. And that is, as Led Zeppelin taught us in the 1970s, there’s two paths you can go by. And what’s now happening across the country, and I’ve been talking to lawyers all around about this, is prosecutors have figured out two ways to deal with innocence organizations like mine, because, quite frankly, we’ve been embarrassing them for a long time. And we’ve been winning all these cases. And you know, it’s become a daily thing on the news, and they don’t like it. So the smart prosecutors, and let’s say the ethical prosecutors, they work with us. And I’ve had a lot of success working with good prosecutors in California and getting people out of prison. The prosecutors on the other side, they say, We will fight every single step of the way. And even if you win, we’ll re-prosecute. Because another thing about double jeopardy is if you get your conviction reversed, they can still go back at you. Because basically, you waive your double jeopardy rights when you appeal your conviction.
Justin Brooks
So basically, you’re asking for a new trial. So you can’t say I want a new trial and then go double jeopardy. I don’t want a new trial. So that’s what the appeal is saying. I didn’t have a fair trial. I should get a new trial. Now, all the time I’ve been doing this work, it was just we all walked out of the courtroom after a habeas petition. And a judge reverses that conviction because we have to definitively show innocence. And if you’ve definitively shown innocence, why is the prosecutor gonna prosecute again? Well, then the Guy Miles case that we litigated for 15 years, we got his conviction reversed. And then the prosecutor in Orange County said we’re re-prosecuting, even though we had overwhelming evidence of his innocence, then they asked the judge for $2 million to set bail at, which was, by the way, the same bail amount when it was originally brought in. And they thought he was guilty. This is after he’s exonerated, the judge still sets 2 million in bail. And so I had to go down to the jail cell and tell him, Look, I believe we’re going to win this retrial. I really do. They’ve got no case. But at the very least, you’re gonna be sitting in here for six months awaiting trial. And then can I guarantee we’re going to win? Because a jury convicted you the first time when you’re innocent, and who knows what they’re going to come up with, maybe drum up some new snitches, God knows what they’re going to come up with. Or they’ve offered you a deal. You can plead and walk out of here today. And he’s, you know, crying. And I started crying too, because I’m like, he’s like, I don’t want to disappoint you. You know, you’ve worked for years on my case, I don’t want to disappoint you. And I said, this isn’t about me, man, this is about your life. And I would take this deal because you’ll get it you’ll go home today and your family. And that’s just heartbreaking. Here’s a guy who’s gotten 15 years of litigation, he’s been exonerated. And they just went after him again, because they could.
Josh Hoe
And then essentially use the elongated trial penalty in the sense, they basically said, We’re gonna keep putting you through this if you don’t take the plea. And as near as I could tell, the only reason they’re doing that is to save face right? They’re torturing this person, essentially, to get some form of a conviction.
Justin Brooks
I think the psychology is very complex on it. I think it’s hard for human beings to accept mistakes in general. I say in the book if you’re at a barbecue, people don’t like you telling them how to flip burgers. And what I do is I often roll into small towns in California and I say, you know, that big case you built your whole career on I think you got it wrong. And so I’ve gotten better at the psychology of it, of working with prosecutors and getting [them] to understand I’m not blaming them for this, you know this, this happened and then we’ve got to fix it. But I do think some of them have such blinders on and bias. I mean, I don’t believe that, of course, there’s evil people in the world. You know, it’s the bell curve. You know, there’s, there’s the few people who are amazing at what they do. There’s most of us that are good, too, okay. And then there’s the awful and the terrible. And I think when you look at police, you get that most of them are trying to do a job, but just you know, when they make mistakes, it’s poor training and incompetence. And then you get the evil section that are like really out there doing bad. And I think most prosecutors, most people in the criminal legal system every day, put their pants on and try to do the best they can. But we all suffer from bias. And once someone is convicted by your office, even if you weren’t the prosecutor on it, you have a bias towards that was a righteous conviction. And now it’s going to take a lot to change their mind about that.
Josh Hoe
Do you think this also informed some of the insistence by the Supreme Court on what they call the doctrine of finality, this notion that even if you’re proven innocent, there’s some you know, at least that seems to play out a lot of times, like, what they’re saying is that the finality of the jury decision should be preserved or the finality of the court outcome should be preserved as a sort of a similar or parallel.
Justin Brooks
Yeah, that’s absolutely sickening. It’s sickening that in this country, we can even say that out loud. And if the Supreme Court has written that into decisions. If you polled the average American and said, which person should get out of prison, a person who there was cocaine found in their house, but the house was illegally searched, or a person is later on found to be innocent? I think most people would say the person who’s innocent, but the person who’s had the illegal search will have the Fourth Amendment that might get them out of it. But the Supreme Court has specifically said innocence is not in the Constitution. There’s no constitutional right to be freed from prison, just because you’re innocent if you got a fair trial. So that is exactly it. Finality is the important thing. You got a fair trial, that’s it, if later on, we find out you’re innocent, you still got a fair trial.
Josh Hoe
I mean, there’s a million things that upset me about the Supreme Court and decisions. The two that stand out to me – well, courts in general and decisions and precedent that always just make my brain boil my blood boil or whatever, are the doctrine of finality and the civil commitment law. Those two have just like, this is actually what you’re saying?
Justin Brooks
Yeah, they are saying that. And that was, you know, Scalia, Rehnquist, I mean, all with their, you know, we’re interpreting the Constitution, as it says and doesn’t say anywhere in there, you have a right not to be imprisoned because you’re innocent. Now, fortunately, the states do have procedures, we almost never go to federal court anymore because of that. Well, that and that Bill Clinton, restricted habeas review in federal court, you got to get there within a year of finishing up your state court remedies, and they’re supposed to give basically near total deference to state court decisions. And fortunately, in California, we have no hard and fast timeline for filing habeas petitions, we’ve got people out after 23 years, we got Mike Hanline out after 36 years. So there’s no real filing deadline. And it’s a lot better standard but the federal courts are useless in terms of trying to win these claims.
Josh Hoe
And in a way, they’re supposed to be kind of the final bulwark and protecting a lot of these things. But clearly, in this instance, at least they’re not.
Justin Brooks
You and I are old enough to remember that, because yeah, when I was in my 20s, I remember hearing in law school if the training was more bide your time in state court until you get a real remedy in federal court. And now it’s the total opposite. It’s like you better win in state court because you’re not going anywhere in federal court.
Josh Hoe
I mean, the makeup of the court has changed so much over the years that it’s you know, it’s really changed the nature of all that. So, I guess, I know, we left a million, there’s a million things in the book, everyone should definitely read it. You have a chapter at the end that talks about dealing with these problems. What’s your take on how we fix this kind of system where anyone could essentially be arrested for any reason and end up being convicted even though they didn’t do a damn thing?
Justin Brooks
Yeah, and where do we start? Where do we start to unring this bell that we’ve been ringing for 30 years? You know, for me, a lot of it was triggered with George Bush, the first campaign and Willie Horton. And you know, every politician since then learning they’ve gotta be tough on crime. Gotta be tough on crime. And, you know, I go through the history of Nixon and the war on drugs. And you know, we now have to undo 50 years of history that has built, like I said, the largest prison system in the world, the highest incarceration rate in the world, which is such a crazy thing, when you think that the wealthiest country in the world has the highest incarceration rate, when there’s a direct correlation between poverty and crime, that should be a number that poor countries have, not that wealthy countries have a distinction.
Josh Hoe
Well, I think when we say the wealthiest country on Earth, though, we’re also one of the countries with the largest wealth disparities on Earth.
Justin Brooks
Although Latin America has such dramatic ones. But setting that aside, so it’s like, well, how did we get here? Well, we got here by politicizing crime to the point of, you know, increasing sentences dramatically. The sentences are nothing like what they were when I got out of law school. I remember looking at deals where if I go to trial, my guy might get, you know, 10 years, if I take this deal, it might be five years. And now guys like Brian Bank, so I talked about in the book, his lawyer, tells him well, I might be able to get you probation if you take a deal. You go to trial, it’s 44 years to life if you lose. So that’s how we forced everyone into plea bargains, we’ve increased the sentences so much that it’s too risky to go to trial. And then we’ve criminalized so much stuff with such high sentences that we just filled these prisons and keep building and building them. Fortunately, voters are becoming smarter to that, I wouldn’t say smart yet. But in California, when they had to cut a billion dollars from the budget, and it came out of universities, people started paying attention and like, wow, we’ve built 30 prisons. And that’s where the money’s going. And we’ve allowed the correctional officers union to become like the second most powerful union in the state, that are now actually lobbying for legislation to increase sentences. So we’ve gotten to this kind of crazy point with the politics and money that we need to turn that back. And I think the only way to start fixing the system is to free up resources in the system, so that we can do a better job similar to what they do in Northern Europe, where they have much more training going on in prisons, much more rehabilitation going on, much more creative sentencing going on. But we have to free up resources to make that possible. And turning that back is a huge political challenge. In fact, if you look right now, where we see, we’ve seen a decrease in prison populations in some states like California, because we legalized marijuana, we did, we’ve been doing alternative sentencing, we’ve decreased our prison population by like 40-50,000 people. Now, what’s the growth industry? Immigration detention facilities. So that’s where the corrections companies have started moving into, and one of the politicians talking about, oh, there’s caravans coming to the border, and we’re being overrun by immigrants. And even though I live here in San Diego, and I can literally look out my window, I can see Mexico from where I’m sitting. And I’m sitting in the second safest big city in America, and one of the most beautiful cities in America, they’re still able to sell this hype that we’re being overrun. And so I don’t know, it’s just people gotta get smarter. That’s ultimately what it is. We got to look at politicians’ platforms, do they make sense? Or is this just nonsense to get votes?
Josh Hoe
Well, I feel like you know, we’ve seen some – although it doesn’t get reported very much – I can tell you definitively that in almost all of the elections that were – you think about what just happened in Chicago, you think about Philadelphia, you think about your two elections in Philadelphia, actually, the second one, where Krasner was getting recalled. You had certain elements, you know, you could certainly talk about it with the Hokul election, although she’s obviously gone the other way since getting rid of since getting reelected. But in all these cases, what we found, you know, if you look at heat maps, or whatever you want to look at, whatever data you want, is that in the places where people are most impacted, they’ve stopped listening to the really oversimplified answers to fixing crime. And really, what’s happened in many cases is that people are paying more attention to the voters in the suburbs than they are in the places that are most impacted. Because in those places, they want more nuanced answers. They may want crime to go down. But they’re not just accepting that if you arrest everyone and put them in prison, that it’s going to be better. And I’m not sure I have an answer to how we get from where people in the impacted areas understand this to where everyone else understands this. But I hope there’s an answer. I mean, do you have any thoughts?
Justin Brooks
I have a million thoughts but it starts with the fact that we have to recognize that this just isn’t working. Like our system isn’t working and we have to understand how little creativity there is in it. For example, if my child goes and steals a cookie in the kitchen, I say go to your room for an hour, if my child kills my other child, we say go to your room for a million hours. Like, that’s how creative our system is, we’ve literally taken this one form of punishment that’s been around for 1000 years. And we just keep grinding through it as if it’s going to solve our problem. So I think, you know, there has been, I don’t want to be all negative about it, because I think there has been some creativity around the country in terms of alternative sentencing, in terms of thinking about utilitarian responses. I’ve got a friend who’s a judge, brand new judge, and he told me that now during his judge’s training, they have the judges role-playing, giving out fines, and then playing the part of the person who’s getting the fine, so that they can start to understand that when you give certain fines, people can’t pay their rent, and then maybe they end up homeless, and then maybe they end up in the system, to start getting judges to be more empathetic to what’s the impact of what they’re doing. So it’s such a, there’s so many answers to the question. But we have to absolutely first start with the fact of saying, How does the United States of America have more people in prison than China? When China has a billion more people? Like, how is that possible, and start doing something about it. But, you know, I see the election cycle heating up again, I see all the same rhetoric going on again. And you know, we either want long-term solutions or short-term things that show up on statistics. Like yesterday, I was reading these statistics about crime increasing, and I’m looking at the numbers. And basically what they’re doing is citing the crime stats from COVID with now, which anyone with any common sense, knows that when everybody was sitting in their house watching The Office and Bridgerton, that crime rates went down significantly when there’s a lockdown. And so of course, they’ve gone up since the lockdown.
Josh Hoe
They’re also making, they’re conflating some things too, because a lot of the violent crime went up during the COVID stuff. There’s a lot of theories for that. Many people have suggested that it’s probably because of insecurity caused by social dislocation, lots of things. And that violence, the highly violent crime and the domestic violence, and the domestic violence was because people were stuck together in their homes. But, that all started to decline, and some of the other crimes are increasing now. And they tend to conflate all those things as well, which is problematic. You know, I don’t think there’s much, you know when I talk about this, I don’t talk about it, like there is no crime, or we shouldn’t worry about crime or crimes really going down. I try more to talk about why anyone believes any of this nonsense is the answer to solving crime.
Justin Brooks
Yeah, me too. I mean, I’m not naive about any of it. In fact, sometimes people think I’m really soft on crime and soft on people in prison. And, you know, I’ve spent most of my career working in Latin America, I’ve started 35 innocence organizations down there. And I’ve been to prisons and talked to them about reforms in the prisons. And I remember being in a prison in Argentina, and I was just like, why is everyone just sitting around in street clothes, smoking cigarettes, like, you need to do something productive while people are in prison, there needs to be training, there needs to be education; it’s not about being soft on crime, it’s about being productive about it and doing something about it. Otherwise, we just keep going into the same exact cycle.
Josh Hoe
I’ll say this too, though. To me, it’s not even a question of soft or tough, it’s a question of results. If, if being soft on crime, reduces crime, then be soft like, do what works. You know, when people ask, there’s so many people now asking for stronger sentences on everything from fentanyl to everything else. And I’m like, I’m like, Look, if you’re going to try to reduce crime, do things that reduce crime, show me anything, you know, I will talk. I will go stat for stat, study for study with you all day, on longer sentences not reducing crime. If your problem is there’s an increase in crime, do things that actually reduce crime. Best case scenario, sentencing is like the 100th best thing you could do to reduce crime, and it’s not very effective at all. It’s not very efficient. And the longer you make a sentence, the less efficient it is. And the more it costs because as people age, they cost more as a prisoner. It’s like the dumbest answer you could possibly have. Sorry to rant and rave there.
Justin Brooks
And the recidivism rate goes to zero at a certain point because you just get tired, and you’re not going to go out and commit crimes that when you’re over 50 that you would do in your 20s.
Josh Hoe
There’s research by Starr and Prescott to suggest that anyone who’s over 50, who’s done over five years has a recidivism rate of less than 1%.
Justin Brooks
Yeah, I’ve seen that. Yeah, there was a thing called the Pops Program when I was in DC. I don’t know if it still exists, and it was at George Washington, and the students would just put together petitions for elderly incarcerated people to get them out and it was all based on there’s no recidivism rate anymore with this population. So what the hell are we doing? Yeah, it is. You’re right. It’s about being sensible about it. But you know what? If this country didn’t learn from prohibition, even after all the movies and TV shows, and you know, watching Boardwalk Empire, which I’ve watched through twice, like, if we can’t look at that, and go, like, that was a bad idea. We made alcohol illegal, we somehow thought we were going to force it when we had 1000s of miles of border around us where it was absolutely accessible, where people could even still make alcohol in their homes and their bathtubs. And we have to amend the Constitution twice to deal with it. Like how our country did not learn a lesson, a single lesson from prohibition, and just make the exact same mistakes in the war on drugs.
Josh Hoe
I mean, you can make an argument and I think a fairly strong argument that prohibition, I think it’s actually called the Iron Law of prohibition, that prohibition is the cause of most of the violence that happens around the drug war.
Justin Brooks
You know, and the same thing in prohibition if the 1920s, crime families grew out of like wait, this alcohol thing is illegal now? We can make a lot of money on that. Let’s get into this business. And that’s, I love the series, one of my favorite shows of all time is Boardwalk Empire, and you watch it and you’re like, Oh, okay. How did we not learn from this? This makes total sense.
Josh Hoe
That and I guess it’s Season Three of The Wire, are the ones that I think of when I think of this kind of stuff, though, Season Three was the one with Hamsterdam. I don’t know if you remember that. Yes. So we’re to the point where I always ask if there are any criminal justice-related books that you like and might recommend to our listeners; do you have any favorite books?
Justin Brooks
Yeah, I do. I mean, I think Picking Cotton is one of the best books on this topic of wrongful convictions and what victims go through in the process. And then what people who are being prosecuted go through in the process, it’s so beautifully done, of seeing how Jennifer Thompson as a rape victim, from her voice, and then Ronald Cotton on the other side, and it kind of goes through their history simultaneously of going through what happened to them. So I always assign that for my students to read. My colleague, Mark Godsey, wrote a book called Blind Injustice that I love that really gets into the psychology of prosecutors, and how they think and how he thought as a prosecutor, and he’s now somebody who exonerates people and runs the Ohio Innocence Project. There’s so much great stuff out there. But those are a couple of my favorites,
Josh Hoe
Is there anything else you want to say about your book? Or where can people find it?
Justin Brooks
Well, you can find You Might Go To Prison Even Though You’re Innocent everywhere books are sold, which isn’t a lot of places anymore. But if it’s not in your bookstore, you can get them to order it. It’s also available on amazon.com, Barnesandnoble.com, all the .com booksellers.
Josh Hoe
I always ask the same last question, what did I mess up? What questions should I have asked but did not? And that’s really just a question if there’s other things you want to talk about that I didn’t get to – kind of a humility question.
Justin Brooks
No, I’m kind of glad we got into the topic of what people should do. And I’d say, again, kind of my wish from this book is that everyone who reads it becomes a better voter, and a better juror if they’re called upon for that because we have to take responsibility for this system that is designed to protect us. If we’re getting anything out of it. We’ve got to get more involved in it.
Josh Hoe
Thanks so much for doing this. It was really great talking to you.
Justin Brooks
You too, a pleasure.
Josh Hoe
And now my take. I’m not going to talk very long about this. But I was extremely disappointed to find out that US Attorney Rachael Rollins resigned after some reports came out, suggesting that she engaged in what sure seemed like corrupt behaviors. I have met Miss Rollins, had her on the podcast before, and I liked her. But this is just awful news. And unfortunately, if true, unacceptable behavior. We have very few reform prosecutors, in the United States despite what you hear all the time, like they’re all over the place. They’re not, they’re not all over the place. And they are all under heavy attack. Just like I, as a formerly incarcerated public-facing person, I have to be very conscious and thoughtful about everything I do, unfortunately. So today, people working to change the system need to hold themselves to a very high standard of behavior. What we do does not only affect us, it affects everyone else in the movement and gives ammunition to the enemy’s reform. After the Rollins incident, the person talking the most noise was Tom Cotton. The last thing in the world we need to be doing is giving Tom Cotton more ammunition for his pro-carceral policies. Anyway, this movement has been under intense fire for the past two years. And I’m certainly not, you know, suggesting that the answer is for everyone to be, you know, to never make mistakes. We just need to be really aware of the risks we take when we engage in even questionable behaviors. We owe it to all of the people we are fighting for to keep ourselves as above reproach as possible. Don’t get me wrong, I understand the world can fall on you when you’ve done nothing wrong. But we need to be sure that we aren’t handing them tools to dismantle support for the movements.
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