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Speaker 5: You are now listening to True Murder, The most shocking
Speaker 5: killers in true crime history and the authors that have
Speaker 5: written about them Gasey, Bundy, Dahmer, The Nightstalker DTK. Every
Speaker 5: week another fascinating author talking about the most shocking and
Speaker 5: infamous killers in true crime history. True Murder with your host,
Speaker 5: journalist and author Dan Zupanski.
Speaker 6: In the past thirty years alone, more than twenty eight
Speaker 6: hundred innocent American prisoners, their combined sentences surpassing twenty five
Speaker 6: thousand years, have been exonerated and freed after being condemned
Speaker 6: for crimes they did not commit. Terrifyingly, this number represents
Speaker 6: only a fraction of the actual number of persons wrongfully
Speaker 6: accused and convicted over the same period. Renowned criminal defense
Speaker 6: and civil rights attorney David Rudolph has spent decades defending
Speaker 6: the wrongfully accused in American injustice. He draws from his
Speaker 6: years of experience in the American criminal legal system to
Speaker 6: shed light on the misconduct that exists at all levels
Speaker 6: of law enforcement and the tragic consequences that follow in
Speaker 6: its wake. Tracing these themes through the lens of some
Speaker 6: of his most important cases, including new details from the
Speaker 6: Michael Peterson trial made famous in the Staircase. Rudolph takes
Speaker 6: the reader inside crime scenes to examine forensic evidence left
Speaker 6: by perpetrators, revisits unsolved murders to detail how and why
Speaker 6: the true culprits were never prosecuted, reveals how confirmation biased
Speaker 6: leads police and prosecutors to employ tactics that make wrongful
Speaker 6: arrests and prosecutions more likely, and exposes how poverty and
Speaker 6: racism fundamentally distort the system. In American Injustice, Rudolph gives
Speaker 6: a voice to those who have been the victim of
Speaker 6: wrongful accusations, and shows in the starkest terms the human
Speaker 6: impact of legal wrongdoing. Effortlessly blending, gripping true crime reporting,
Speaker 6: and searing observations on civil rights in America, American Injustice
Speaker 6: takes readers behind the scenes of a justice system in
Speaker 6: desperate need of reform. The book that we're featuring this
Speaker 6: evening is American Injustice, Inside Stories from the underbelly of
Speaker 6: the criminal justice system. With my special guests, civil rights
Speaker 6: attorney and author David S. Rudolph. Welcome to the program,
Speaker 6: and thank you so much for this interview. David Rudolph.
Speaker 3: Thank you, Dan, I really appreciate being on.
Speaker 6: Thank you so much. Congratulations on this book, American Injustice.
Speaker 3: By the way, I appreciate that.
Speaker 6: Let's talk about a little bit about what this book
Speaker 6: is really about, what you are exploring in this book.
Speaker 6: But first let's talk about some of the changes that
Speaker 6: you chronicle in the sixties and seventies. And you call
Speaker 6: the war in court that made some of these rights
Speaker 6: that we take for granted now their origins. Tell us
Speaker 6: a little bit about that.
Speaker 3: Yeah, you know, it's interesting, Dan, because I think all
Speaker 3: of us, me included, over the course of my career,
Speaker 3: sort of became in order to the fact that we
Speaker 3: have these rights. So, you know, the right to counsel,
Speaker 3: for one, you know, I always just assume that that
Speaker 3: was something that was fundamental in our system. Simerainly, things
Speaker 3: like you know, the right to be warned that you
Speaker 3: don't have to make a statement, Fourth Amendment, protections against
Speaker 3: unreasonable searches and seizures. All of these rights that I
Speaker 3: think we all sort of take for granted now didn't
Speaker 3: not exist really prior to the nineteen forties or nineteen fifties,
Speaker 3: and it was really the Warren Court. You know, Earl
Speaker 3: Warren was a Republican. He was appointed by President Eisenhower,
Speaker 3: and it was his court that included some giants that
Speaker 3: set the course for civil rights and criminal againstess rates
Speaker 3: in the United States. And all of those rights really
Speaker 3: began to be formed in the nineteen sixties. And they're
Speaker 3: really new rights in a sense. You know, they're only
Speaker 3: fifty or sixty years old, and therefore they're you know,
Speaker 3: perhaps fragile, vulnerable, and as we see with Roe versus Wade,
Speaker 3: for example, the fact that we have those rights now
Speaker 3: does not mean that they're there forever.
Speaker 6: Tell us a little bit about your own decision when
Speaker 6: you left law school. Tell us where you got that degree,
Speaker 6: but tell us what your decision was and why after
Speaker 6: law school.
Speaker 3: Well, you know, I grew up in the sixties and seventies,
Speaker 3: and so you know, when I was in college, Kent
Speaker 3: State happened. You know, you had all the uproar about
Speaker 3: the Vietnam War and then Kent State and students being
Speaker 3: shot to death on their college campus protesting, and that
Speaker 3: had a dramatic impact on me. And then, you know,
Speaker 3: in the seventies I was in law school and Watergate happened,
Speaker 3: and the Attorney General of the United States was prosecuted,
Speaker 3: convicted of obstruction of justice. And so I think all
Speaker 3: of those helped to form my skepticism, if you will,
Speaker 3: of government. And so when it came time to graduate
Speaker 3: from law school, I was interested in trying to help people.
Speaker 3: I really wasn't interested in money. Particularly Money's never really
Speaker 3: been a large motivator for me. And it was just
Speaker 3: a natural evolution for me to want to go and
Speaker 3: represent people and protect them against what I saw as
Speaker 3: the sometime arbitrary exercise of power by the government. And
Speaker 3: so that's what I did. I went to work for
Speaker 3: the Legal Age Society in the South Bronx in the
Speaker 3: Criminal Defense Division. I was on one hundred and sixty
Speaker 3: first Street and the third Avenue in the Bronx, the
Speaker 3: heart of Ford Apache and it was a great experience
Speaker 3: for me. You know, Barry Sheck was my roommate, along
Speaker 3: with about five other people. We were in a big office,
Speaker 3: one phone that we passed around among us, and it
Speaker 3: was a time of pushing back against, you know, the
Speaker 3: forces that were sometimes abusing people in that community, and
Speaker 3: that was very formative for me.
Speaker 6: You write about the misconduct and abuses of power by
Speaker 6: police and prosecutors, and that's what some of these stories
Speaker 6: definitely demonstrate and illustrate. You talk about a person name
Speaker 6: Ray Finch, and you first met him in twenty and thirteen.
Speaker 3: Tell us a little bit about this.
Speaker 6: Meeting and why, and about a little more about the
Speaker 6: Ray Finch debacle.
Speaker 3: Well, you know, it's interesting because in some ways, and
Speaker 3: this is sort of set forth in the book, Ray's
Speaker 3: journey through life and my journey sort of paralleled in
Speaker 3: it paralleled each other in some ways. You know, in
Speaker 3: the sixties and seventies, Ray was growing up in a small,
Speaker 3: rural county in North Carolina, while I was growing up
Speaker 3: in a suburban community on Long Island in New York,
Speaker 3: and so our paths were very different. And what I
Speaker 3: try to do during the book is sort of contrast
Speaker 3: and compare where he was at certain points in his
Speaker 3: life with where I was at the same time in
Speaker 3: my life. But then our path sort of came together
Speaker 3: in twenty thirteen when Ray was being represented by the
Speaker 3: Duke Innocence Project and they asked me to help them
Speaker 3: conduct a hearing to show that he had been wrongfully convicted,
Speaker 3: and I did that, and unfortunately we lost that hearing,
Speaker 3: but the Duke Innocence Project persevered. They appealed that and
Speaker 3: eventually in twenty eighteen they prevailed and the Fourth Circuit
Speaker 3: Court of Appeals overturned raised conviction freed him. The prosecutor
Speaker 3: declined to pursue the case anymore, and then most recently,
Speaker 3: the governor of North Carolina pardoned Ray. He gave him
Speaker 3: a pardon of innocence. Ray ended up spending forty two
Speaker 3: years of his life from the age of forty to
Speaker 3: the age of eighty two, in prison for a murder
Speaker 3: that he did not commit and for which I have
Speaker 3: to say he was framed, and he was framed to
Speaker 3: protect the law enforcement in Wilson County, North Carolina. He
Speaker 3: fought for his innocence for the entire time. He got out,
Speaker 3: you know, after forty two years, and then yesterday he
Speaker 3: passed away and never really got to enjoy any portion
Speaker 3: of his life after the age of forty. And it's
Speaker 3: a sad, sad story, but it's also a very important
Speaker 3: story for people to understand how these things happen.
Speaker 6: You talk about prosecutors and judges showing remarkable hostility to
Speaker 6: overturn turning new scientific evidence or proof of misconduct by
Speaker 6: police or prosecutors.
Speaker 3: Just tell us.
Speaker 6: I mean, we could spend a whole hour on this,
Speaker 6: But how on earth did he spend forty two years
Speaker 6: in prison?
Speaker 3: Well, first of all, when he first started challenging his conviction,
Speaker 3: the judge who was ruling on his motions was the
Speaker 3: prosecutor who had prosecuted him. Incredible, So you know here
Speaker 3: he is, he's he's filing these motions for appropriate relief,
Speaker 3: challenging his conviction, and they're being denied by the same
Speaker 3: person who prosecuted him five or six years earlier. Then,
Speaker 3: when the sheriff in that county was convicted for operating
Speaker 3: his Sheriff's department as a racketeer, influenced and corrupt organization
Speaker 3: by the federal government, he again asked for the State
Speaker 3: bure of Investigation to come in and investigate and explain
Speaker 3: that his conviction was the result of those people trying
Speaker 3: to protect themselves because the real perpetrator knew about their corruption.
Speaker 3: The state Bueer of Investigation, I think, in my view,
Speaker 3: conducted a cover up, and so he remained in prison
Speaker 3: after that, and then you know, of course it's very
Speaker 3: difficult for anybody in prison to get a lawyer to
Speaker 3: actually represent them, and when you're representing yourself, you're at
Speaker 3: great disadvantage. Obviously. Finally, in two thousand and one, the
Speaker 3: Duke Innocence Project took him on as one of their
Speaker 3: first cases. But even then the State your investigation claimed
Speaker 3: that they couldn't find evidence that was critical to his
Speaker 3: being exonerated, and it took him another thirteen years to
Speaker 3: Duke Innoson's Project, thirteen years to finally get the evidence
Speaker 3: that was relied upon to overturn his conviction. During the
Speaker 3: hearing that I helped him with, the judge after hearing
Speaker 3: some really dramatic evidence, decided to recuse himself because he
Speaker 3: had represented people during the course of that corruption inquiry.
Speaker 3: That put everything on hold. A new judge was appointed,
Speaker 3: he denied the petition, and it took us another eight
Speaker 3: years essentially to get him out. So it's the nature
Speaker 3: of the system, and in a large part it's because
Speaker 3: finality in our system of justice and the importance of
Speaker 3: finality Trump's justice and truth, and I think that's a
Speaker 3: real problem in our in our review of these cases.
Speaker 6: You say that something that's well known, but only defense
Speaker 6: attorneys discuss concerning the death of trial. So you say
Speaker 6: it more eloquently, tell us what your idea about this?
Speaker 3: Well, and it's not. It's not my idea, you know,
Speaker 3: this is this is not this is not anything that
Speaker 3: I've I've invented or labeled. And it's really it's known
Speaker 3: among us defense lawyers as the trial penalty. And you know,
Speaker 3: back in the day when I first started, there wasn't
Speaker 3: much of a penalty for someone exercise or right to
Speaker 3: trial as opposed to pleading guilty. I can remember when
Speaker 3: I was starting out, uh, and I would tell people, listen,
Speaker 3: you know, you can go to trial, but if you lose,
Speaker 3: the judge is going to understand that you that you
Speaker 3: you know, cause the exercise of resource is if you
Speaker 3: are guilty and you plead guilty, the judge is likely
Speaker 3: to take that into account when he senses you. But
Speaker 3: that's the best you could say. And prosecutors back then,
Speaker 3: at least in the federal system, took no position on sentencing.
Speaker 3: Their view was sentencing is up to the court. They're
Speaker 3: there to present the facts. Then the court decides on
Speaker 3: sentenced over the last really thirty years, since nineteen eighty seven,
Speaker 3: when Senator Kennedy introduced legislation to create the United States
Speaker 3: Sentencing Commission with the hope that that would equalize sentencing
Speaker 3: across the United States. What it in fact did was
Speaker 3: made the system draconian. And so now, first of all,
Speaker 3: prosecutors are in complete control of the charging decisions, but
Speaker 3: they're also in complete control of the sensing options. So
Speaker 3: you know, if you are indicted for a certain crime
Speaker 3: and you have to plead guilty to that or you're
Speaker 3: convicted of that, the sentencing guidelines create enormous penalties. Whereas
Speaker 3: if a prosecutor agrees, as a result of plea bargaining
Speaker 3: or your cooperation with the government, to indict you for
Speaker 3: a lesser charge, then that controls the penalty and it's
Speaker 3: a much less onerous penalty. So what does that set up.
Speaker 3: It sets up a circumstance where the prosecutors, who are
Speaker 3: your adversaries in this system, are in total control of
Speaker 3: the mechanism of both charging and sentencing. The judges are
Speaker 3: limited to a certain extent by the sentencing guidelines that
Speaker 3: are in place. And so what the charge is what
Speaker 3: you're indicted for. What you're convicted for, that has a
Speaker 3: direct impact on your sentencing. And so what does that mean.
Speaker 3: It means that when I talk to a client now,
Speaker 3: I say to them, listen, they're offering you a plea
Speaker 3: to a conspiracy, and the maximum on that conspiracy is
Speaker 3: five years. That's the most you can do. But if
Speaker 3: we go to trial and they're charging you with money
Speaker 3: laundering and bank fraud and all kinds of other things,
Speaker 3: now the penalties are up in the twenty thirty forty
Speaker 3: fifty year range, right, So what is the average person
Speaker 3: going to do, regardless of whether he's guilty or not.
Speaker 3: He's not going to risk fifty years in federal prison
Speaker 3: when he can walk out after three or four or five.
Speaker 3: So it creates an enormous penalty. You can't go to
Speaker 3: trial anymore without taking an enormous risk. And that means
Speaker 3: that plea bargains become the currency of the system much
Speaker 3: more than they ever were before. And so it's an
Speaker 3: enormous problem for those of us who are trying to
Speaker 3: be the advocates as opposed to greasing the wheels of
Speaker 3: the federal criminal justice system.
Speaker 6: People talk about and you discussed this about false confessions again,
Speaker 6: how possibly anyone could agree and confess the crimes that
Speaker 6: they didn't commit. You have some shocking examples of how
Speaker 6: that can happen. Tell us about this phenomena.
Speaker 3: Well, you know all of us, I think think in
Speaker 3: our in our early days. Well, no, I would never
Speaker 3: I would never confess to something I didn't do, or
Speaker 3: I would never plead guilty to something I didn't do. Sure,
Speaker 3: and I understand that that's an understandable feeling. But what
Speaker 3: you have to do is put yourself in the place
Speaker 3: of a particular person. And let me give you an example.
Speaker 3: In the book, we discussed an example of a young
Speaker 3: man from Detroit who moved to a rural county in
Speaker 3: North Carolina and was wrongfully accused of murder. And the
Speaker 3: police put enormous pressure on his co defendants in the
Speaker 3: way that I just described, to cooperate against him and
Speaker 3: each other, sort of like the Central Park five case.
Speaker 3: All of these people started making statements against each other.
Speaker 3: This young man absolutely insisted on his innocence and he
Speaker 3: refused to make any statements incriminating himself or anyone else,
Speaker 3: despite the pressure. But now he's sitting at his other
Speaker 3: All of his co defendants have pled They've all agreed
Speaker 3: to testify against him. He's sitting in a jail in
Speaker 3: a rural county, a black man in a white county
Speaker 3: who is facing an all white jury. All of his
Speaker 3: co defenders are going to testify against him. He's twenty
Speaker 3: one years old. He has a two year old daughter
Speaker 3: in Detroit. And they offer him a plea to manslaughter
Speaker 3: with a maximum sentence of ten years. And he's told
Speaker 3: that if he doesn't take that, they're going to tryumph
Speaker 3: for first degree murder. He'll be facing the death penalty,
Speaker 3: and he'll be facing it in a county with an
Speaker 3: all white jury. And he is a young black guy
Speaker 3: from Detroit in a rural North Carolina county. So you
Speaker 3: know what does he does? He doesn't, you know, flip
Speaker 3: on these other people. He says, I'm gonna plead guilty
Speaker 3: because he cannot risk the possibility of being sentenced to death. Right,
Speaker 3: So is it surprising that he would enter a plea
Speaker 3: of guilty even though he completely insisted on his innocence. No.
Speaker 3: We flash forward ten years and in North Carolina there's
Speaker 3: something called the North Carolina Innocence Inquiry Commission that reviews
Speaker 3: cases like his on request, and they unanimously find three
Speaker 3: judges of the North Carolina Superior Court unanimously fined despite
Speaker 3: his plea of guilty, that he's absolutely innocent, and he
Speaker 3: is exonerated. So there's no doubt that he pled guilty
Speaker 3: to something he didn't do because of the pressures that
Speaker 3: were exerted on him. I'll give you a less dramatic example.
Speaker 3: Somebody is arrested for a misdemeanor and his bond is
Speaker 3: set at one thousand dollars, which he can't make, and
Speaker 3: he sits in jail for a week, a month, two months,
Speaker 3: three months. He loses his job, his apartment is at risk,
Speaker 3: his custody of his children is at risk. He has
Speaker 3: no control of when his case is going to be
Speaker 3: called for trial. And his lawyer comes to and says, listen,
Speaker 3: the prosecutor is offering you a deal. If you plead guilty,
Speaker 3: he'll agree to time served. In other words, plead guilty
Speaker 3: and it's a get out of jail free card. On
Speaker 3: the other hand, if you want to insist on your trial,
Speaker 3: we don't know when we're going to get to that.
Speaker 3: And you're going to sit in prison on one thousand
Speaker 3: dollars bond or jail. So what does the person do
Speaker 3: in that circumstance. You know, the choice is really not
Speaker 3: a choice. And so those are the kinds of pressures
Speaker 3: that are brought to bear on people every single day
Speaker 3: in our system.
Speaker 6: You talk about a confirmation bias, and we've heard about that,
Speaker 6: but tell us how that works in the case that
Speaker 6: you chronicle in your book with Ed Friedlan and the
Speaker 6: murder of his wife.
Speaker 3: Well, you know, and that's that's a good example, Dan,
Speaker 3: because Ed was a prominent doctor. He wasn't a marginal citizen,
Speaker 3: he wasn't a drug addict, he had no criminal record.
Speaker 3: He was he was a good Jewish boy from New
Speaker 3: York and moved to the South with his wife and
Speaker 3: established a very successful medical practice. And he had an
Speaker 3: absolute alibi on the day his wife was murdered. He
Speaker 3: was at the hospital in Charlotte, North Carolina all day
Speaker 3: that day, right, you know, every moment of his time
Speaker 3: was accounted for, and his wife was brutally, brutally murdered.
Speaker 3: And the police began their investigation by focusing on a
Speaker 3: handyman who had worked at his house, who had a
Speaker 3: criminal record, and who his wife's friend said, you know,
Speaker 3: we think this is the guy who did it. He
Speaker 3: was just acting suspiciously around the house, and the police
Speaker 3: had all kinds of evidence that this guy was in
Speaker 3: and around the neighborhood that night acting suspiciously. So it
Speaker 3: was really a pretty strong, circumstantial case against this fella.
Speaker 3: And then the police found out that Ed Freeland had
Speaker 3: had an affair with a nurse, right and everything changed.
Speaker 3: At that point. It was, aha, he's the guy. He
Speaker 3: did this because of the affair. And then of course
Speaker 3: the police decided, you know, he really wasn't acting right
Speaker 3: when we came upon the scene. You know, he hadn't
Speaker 3: rushed over to the body the way we would expect
Speaker 3: a husband to rush over to the body, and he
Speaker 3: wasn't hysterically crying the way we would expect a husband
Speaker 3: to be crying. You know, they didn't bother to consider
Speaker 3: whether he might be in shock. Sure, and that the
Speaker 3: fact that people react differently the situations is sort of
Speaker 3: well known. So all of a sudden, this narrative began
Speaker 3: to form, and the investigation went on for four years,
Speaker 3: and the district attorney kept saying no, we don't have
Speaker 3: enough to indict him. You know, he has this alibi.
Speaker 3: How are we going to indict him? And so the
Speaker 3: police decided, well, we need to establish that his wife
Speaker 3: died before he left for the hospital. So they got
Speaker 3: a hold of a well known pathologist who agreed out
Speaker 3: of state, you know, first time ever that they went
Speaker 3: outside of North Carolina to a New York pathologist medical examiner,
Speaker 3: and got this fellow to say that in his opinion,
Speaker 3: that time of death was prior to eight am in
Speaker 3: the morning, and based on that they got an indictment.
Speaker 3: I represented ed and I was fortunate enough to be
Speaker 3: able to find the expert who undermined this doctor's opinion,
Speaker 3: this medical examiner's opinion. But more importantly, the police had
Speaker 3: taped an interview with this expert and in that tape
Speaker 3: they clearly sort of fed him facts and he said,
Speaker 3: I don't really think I can give you what you need.
Speaker 3: This was before he agreed to help them, And they
Speaker 3: had turned that tape over in a dui case because
Speaker 3: they were giving the public defender the dui call ins.
Speaker 3: And what they didn't realize what they hadn't erased the
Speaker 3: prior discussion and so I got a hold of that tape.
Speaker 3: The public defender realized what it was, called me, gave
Speaker 3: me the tape, and so now I could totally undermine
Speaker 3: that medical examiner's testimony. And then we were able to get,
Speaker 3: because the judge ordered it, all of the evidence that
Speaker 3: the police had hidden from the prosecutor about this handyman
Speaker 3: that the prosecutor had never heard of. And at that point,
Speaker 3: after four years of being under suspicion and a year
Speaker 3: of being under indictment, the charges were dismissed. So that's
Speaker 3: the really good example of how tunnel vision, how confirmation bias,
Speaker 3: can take the police away from where they should have
Speaker 3: been focusing and onto a totally innocent person. And the
Speaker 3: result of that, by the way, way, is that that
Speaker 3: handyman was never charged with her murder, and three or
Speaker 3: four years later he ended up killing another woman.
Speaker 6: You talk about this exculpatory evidence, and you also talk
Speaker 6: about why that's dangerous for that to be held back,
Speaker 6: and so this is another example of that as well.
Speaker 6: So tell us a little bit about the concealing of
Speaker 6: evidence of a defended innocence and how it came to
Speaker 6: be that prosecutors gained immunity. For that, you say police
Speaker 6: don't have immunity, But how did it come that they
Speaker 6: obtain immunity.
Speaker 3: Well, police have partial immunity. Police have what's called good
Speaker 3: faith immunity. So when the police engage in some unconstitutional conduct,
Speaker 3: you have to show that they did it at animum
Speaker 3: with reckless disregard for the rights of the person that
Speaker 3: they were investigating. If you can't show that, if all
Speaker 3: you can show is mere negligence, for example, they have immunity,
Speaker 3: and that's called good faith immunity. Prosecutors, on the other hand,
Speaker 3: have absolute immunity for their prosecutorial dicisions. So, for example,
Speaker 3: if a prosecutor hates me and decides he's going to
Speaker 3: indict me because he hates me and makes up all
Speaker 3: the evidence and brings it to a grand jury, and
Speaker 3: they indict me, and I can prove that and the
Speaker 3: charges are dismissed, I have no cause of action against
Speaker 3: that prosecutor. He has absolute immunity. What's the theory, and
Speaker 3: that's created by the Supreme Court that it's purely a
Speaker 3: judicial creation. Why what's the rationale for that? Well, prosecutors
Speaker 3: have to exercise their discretion without fear of being sued,
Speaker 3: and so we have to give them absolute immunity so
Speaker 3: that they can make decisions without any fear. And in
Speaker 3: theory that's probably a reasonable position, but in practice it
Speaker 3: has led to a complete abdication of their role in
Speaker 3: screening cases and in weeding the weeding out the weak
Speaker 3: cases from the strong cases because they have nothing to fear,
Speaker 3: and that's a real problem.
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Speaker 6: Friends without dr Best Fiends. Now, we talked about how
Speaker 6: some of these things could happen. Employing certain things and
Speaker 6: you get to fabricating or planting evidence for implicating a
Speaker 6: suspect in a crime. Again, we just talked about the immunity,
Speaker 6: that absolute immunity that prosecutors have. Tell us how fabricating
Speaker 6: evidence came into play in the Michael Peterson case.
Speaker 3: Well, for those of you who watched the staircase, you
Speaker 3: may remember an expert witness by the name of Dwayne
Speaker 3: Deaver who was a blood spatter expert uh. And you
Speaker 3: know in that case, mister Dever uh testified about what
Speaker 3: he claimed he could tell from the blood evidence at
Speaker 3: the scene. In fact, he was committing perjury, as the
Speaker 3: judge subsequently found eight years later. But you know what
Speaker 3: happened in that case was that the police really didn't
Speaker 3: have any evidence against Michael. You know, they had, you know,
Speaker 3: some character assassination evidence that he was bisexual. They had
Speaker 3: some circumstantial evidence that the wife of a friend couple
Speaker 3: of his and his former wife's had been found dead
Speaker 3: of at that point a cerebral hemorrhage at the foot
Speaker 3: of a set of stairs, which is where his wife,
Speaker 3: Kathleen had been found, and that was it. They had
Speaker 3: no motive, uh one. Everybody said the couple got along terrifically.
Speaker 3: There was nothing, and so they needed evidence because they
Speaker 3: were convinced that Michael had committed this crime. And so
Speaker 3: here comes Dwayne Deaver. He's works for the state Buar
Speaker 3: of Investigation. He's called in to help the detective prove
Speaker 3: his case. And you know, it's in precisely this situation
Speaker 3: where there is a paucity of evidence against the suspect
Speaker 3: that the possibility of fabrication or planting of evidence is
Speaker 3: most problematical. Because the police are convinced they're right, they
Speaker 3: don't want to see this person escape his just punishment,
Speaker 3: so we need to sort of create some evidence that
Speaker 3: will make sure that justice has served. And so it's
Speaker 3: become known as noble cause corruption. You know, it's really
Speaker 3: a fancy way of saying the ends justify the means,
Speaker 3: the ends being let's convict this person because he's guilty,
Speaker 3: and the means are, let's fabricate some evidence to make
Speaker 3: sure that happens. And that's what happened in my judgment
Speaker 3: in the Peterson case, and it happens all the time
Speaker 3: in cases, particularly where the evidence is weak, as it
Speaker 3: normally is, when guess what the person's actually innocent.
Speaker 6: You're right about resorting to highly unreliable forensic disciplines, and
Speaker 6: to many people's surprised. That would include many things that
Speaker 6: we think and the courts have regarded as ironclad tell us.
Speaker 3: About some of these things.
Speaker 6: And the dramatic example of how you can't trust fingerprint analysis.
Speaker 3: Well, you know, a fingerprint was always sort of the
Speaker 3: gold standard before a DNA, and when I was a
Speaker 3: young lawyer, I was told that, you know, if you
Speaker 3: had seven or eight or nine points of comparison that matched,
Speaker 3: that was it.
Speaker 4: No.
Speaker 3: Two fingerprints were ever, you know, the same, and that
Speaker 3: was the end of the case. Well, some years ago
Speaker 3: there was a train bombing in Madrid, Spain, and you know,
Speaker 3: fingerprints are ubiquitous on the web, and so they lifted
Speaker 3: some fingerprints from a timer and lo and behold, it
Speaker 3: came back to match a lawyer in Portland, Oregon who
Speaker 3: was an American but who had become a Muslim, had
Speaker 3: married a Muslim woman, and you know, the fingerprints were
Speaker 3: identified as being his, and so all of a sudden,
Speaker 3: you know, he's being declared at first the material witness,
Speaker 3: and then he's clearly a suspect and he's about to
Speaker 3: be railroaded on this until the Spanish authorities figure out
Speaker 3: that the fingerprints actually match someone who was on their
Speaker 3: watch list as a terrorist or a potential terrorist, and
Speaker 3: they go back to the FBI and say to the FBI, know,
Speaker 3: we think you're wrong, and you know, the FBI is
Speaker 3: quite sure themselves, and of course confirmation bias is kicking
Speaker 3: in here because this lawyer, although he's an American in Portland, Oregon,
Speaker 3: has never been to Spain, you know, is a Muslim.
Speaker 3: You know, he's a practicing Islam and his wife is,
Speaker 3: and so you know, obviously that's another piece of the puzzle.
Speaker 3: So you know, and the end of the story is
Speaker 3: that the FBI finally agreed that no, the fingerprints didn't
Speaker 3: match this guy. And probably what it happened was that
Speaker 3: the fingerprints were sort of close enough, you know, for
Speaker 3: government work. Then the fact that this fella had these
Speaker 3: other suspicious so called associations pushed it over the edge.
Speaker 3: And again it's one of those situations where confirmation bias
Speaker 3: and tunnel vision ultimately causes wrongful accusations and convictions. It's
Speaker 3: not that the FBI was trying to you know, set
Speaker 3: up or falsify evidence against this lawyer. It was that
Speaker 3: it was close and then confirmation bias kicked in.
Speaker 6: You also talk about you call it pattern based testimony.
Speaker 6: So we're still talking about some of these forensic disciplines
Speaker 6: that are utilized in court and have been utilized in
Speaker 6: court that you say that have led to some dramatic
Speaker 6: wrongful convictions. Tell us a little bit about some of
Speaker 6: the other disciplines that are in question and why.
Speaker 3: Yeah, and it's not just me, I mean, in two
Speaker 3: thousand and nine, the National Institute of Science did a
Speaker 3: report on forensic sciences, and they pointed out that a
Speaker 3: lot of these so called forensic sciences are really not
Speaker 3: sciences at all. So let me give you some examples.
Speaker 3: Let's take tire tracks, tool marks, handwriting, anything that involves
Speaker 3: a pattern where there is no objective way of validating
Speaker 3: the opinion, right, where there is no way of recreating
Speaker 3: the opinion, where there's no validity testing of the expertise
Speaker 3: of the alleged person who's reaching the opinions. In contrast,
Speaker 3: for example, to blood typing or to DNA analysis, right
Speaker 3: where you know, you you have standards, other people can
Speaker 3: review the results, the results are uniform, uh, and can
Speaker 3: be verified and duplicated. You don't have that with these
Speaker 3: pattern pieces of evidence, you know. Uh. A blood spatter
Speaker 3: is another example. All of these of these sort of
Speaker 3: pseudosciences have somehow become accepted by the courts because people
Speaker 3: get up and say, this is my experience and this
Speaker 3: is why I think they match. Here here's another example. Right,
Speaker 3: So there's there's no way of validating what the findings are.
Speaker 3: The way they're validated is if the jury convicted the person. Well,
Speaker 3: that shows that the valid that that the science was right.
Speaker 3: And that's that's exactly the wrong way of validating.
Speaker 6: You also talk about incentivized witnesses, and that seems obvious
Speaker 6: why that would present a problem, But you chronicle cases
Speaker 6: in your book, dramatic cases where they took, they resorted
Speaker 6: and referred to these incredible jail house snitches for their
Speaker 6: source of information.
Speaker 3: Well, and imagine Dan, imagine a defense lawyer who went
Speaker 3: to a witness and said, you know what, if you'll
Speaker 3: testify that my client was actually with you at a party,
Speaker 3: I'll pay you ten thousand dollars. You know, if that
Speaker 3: ever happened, that lawyer would be indicted before you could
Speaker 3: snap your fingers for obstructing justice. Yet prosecutors every day
Speaker 3: in this country go to witnesses and offer them years
Speaker 3: off their sentences in return for their testimony implicating cellmates
Speaker 3: or people they know. And for the life of me,
Speaker 3: I don't see any between those two things. Yet it's
Speaker 3: accepted and sort of celebrated that that's how you get convictions.
Speaker 3: So you know, what you have is you have witnesses
Speaker 3: who are trying to work off their own problems, or
Speaker 3: they're trying to earn money as a result of rewards
Speaker 3: and prosecutors routinely use these people, and they are responsible
Speaker 3: for a large number of wrongful convictions. As you would expect,
Speaker 3: what you shouldn't expect is that the system would authorize
Speaker 3: that kind of behavior.
Speaker 6: You have exonerations based on DNA evidence, But how prevalent
Speaker 6: is DNA and how relevant is in most cases?
Speaker 3: As you're right, well, you know, the problem is that
Speaker 3: DNA evidence is not present in the great majority of cases.
Speaker 3: You know, it's present in sex cases. Often it may
Speaker 3: be present in murder cases, but it may not be.
Speaker 3: And when it's present, and when it's used properly, it's
Speaker 3: a very precise and important and reliable tool, and it
Speaker 3: has convicted people, and as you point out, it has
Speaker 3: exonerated people. But where you don't have DNA, which is
Speaker 3: the vast majority of cases, you have to rely on
Speaker 3: investigation and turning up defects in what the prosecutor or
Speaker 3: the police did, because the mere fact that you can
Speaker 3: prove your client is innocent is not a ground for
Speaker 3: overturning their conviction. I can introduce tons of evidence that
Speaker 3: my client is innocent, but unless I can point to
Speaker 3: some fact, some procedural defect in the prosecution you know,
Speaker 3: the failure to turn over exculpatory evidence, the creation of
Speaker 3: a fabricated confession, unless you know, the use of an
Speaker 3: unlawful search, unless I can point to some other defect
Speaker 3: in the prosecution, the mere fact that I'm coming in
Speaker 3: after the fact that I'm saying, listen, they've got it wrong.
Speaker 3: Here's all the evidence, here's the DNA evidence. Here it
Speaker 3: is he's excluded. That's not enough. Because finality in our
Speaker 3: system trump's truth and justice, and that is a shocking
Speaker 3: fact that most people just don't realize.
Speaker 6: Let's use this as an opportunity, David, to stop for
Speaker 6: these messages.
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Speaker 6: Now you talk about the all of the times, all
Speaker 6: of the times that people are innocently convicted are wrongfully convicted.
Speaker 6: Pardon me, What are some of the reforms that you
Speaker 6: would like to see that would amend this, that would
Speaker 6: correct this injustice.
Speaker 3: Well, you know, let me just start by saying, I
Speaker 3: don't think you can eliminate it, because the system is,
Speaker 3: you know, run by human beings, and human beings make mistakes.
Speaker 3: So the goal needs to be to minimize the occasions
Speaker 3: where that happens. So let's talk, for example, about airplane crashes,
Speaker 3: or about medical mistakes or errors that cause you know,
Speaker 3: catastrophic injuries or deaths. In those situations, what you have,
Speaker 3: generally speaking, is something called a sentinel event review. And
Speaker 3: what that is is, you know, the experts get together,
Speaker 3: the doctors, the other experts, or the mechanics, the you know,
Speaker 3: the plane engineers, and they get together and the purpose
Speaker 3: is not to assign blame. The purpose is to understand
Speaker 3: what happened, why it happened, and how to prevent it
Speaker 3: from happening again. That's it. And every time there's a
Speaker 3: plane crash, the National Transportation Safety Board comes in. It
Speaker 3: doesn't matter how many people are killed or injured. It
Speaker 3: could be a solo plane crash where the person walks away,
Speaker 3: but NATS comes in and does a sentinel event review.
Speaker 3: Same thing with medical net Pigeon's cases. But yet when
Speaker 3: somebody spends forty two years in prison like Ray Finch
Speaker 3: did and is then exonerated and pardoned by the governor
Speaker 3: of North Carolina, there is nothing that happens to review
Speaker 3: what happened, why it happened, and how we can prevent
Speaker 3: that from happening again. So that's the first thing that
Speaker 3: I think needs to be addressed, is making sure that
Speaker 3: we don't just rely on you know, money damages to
Speaker 3: deter this in the future, that we actually spend the
Speaker 3: time and the resources necessary to really understand this and
Speaker 3: then to try to prevent it. How do you prevent it?
Speaker 3: I think that to the extent you can, it's a
Speaker 3: matter of training and selection of officers. So, you know,
Speaker 3: for one thing, you know, we need to make sure
Speaker 3: that that police officers are being screened to make sure
Speaker 3: that their personalities and abilities are appropriate for the tasks
Speaker 3: they're being asked to perform. And then we need to
Speaker 3: train them, just like we train doctors in confirmation bias
Speaker 3: by requiring them to make what's called a differential diagnosis,
Speaker 3: where they have to work their way through various possibilities
Speaker 3: and rule those out before they come to a final diagnosis.
Speaker 3: The whole purpose of that, obviously, or one of the
Speaker 3: major purposes, is to address confirmation bias, and so we
Speaker 3: need to do the same thing with detectives. They need
Speaker 3: to understand that when they're investigating a case, what they
Speaker 3: should be doing is not just trying to prove that
Speaker 3: somebody did it, but trying to prove that other people
Speaker 3: didn't do it. You know that the other possibilities are
Speaker 3: not accurate, and so that would go a long way.
Speaker 3: And then you know, I think that detectives in particular
Speaker 3: and prosecutors and judges need to be trained in confirmation
Speaker 3: bias and what that is and the fact that exists
Speaker 3: for all of us, because until and unless you're aware
Speaker 3: of the issue, then you're going to be subject to it.
Speaker 3: Once you're aware of the issue, it doesn't mean you're
Speaker 3: not going to be subject to it, but what it
Speaker 3: does mean is that you're aware of it and you
Speaker 3: can try to control it because you're aware of it.
Speaker 6: How much is poverty a factor that can't be undone
Speaker 6: by some of these reforms.
Speaker 3: Well, you know, poverty and racism and all the other
Speaker 3: ills that afflict our society and many others our reality.
Speaker 3: And the best you can do in those circumstances, I think,
Speaker 3: is to try to level the playing field as much
Speaker 3: as possible. For example, we need to do more to
Speaker 3: fund public defenders. You know, in many places in this country,
Speaker 3: public defenders have caseloads of seventy five, one hundred, one
Speaker 3: hundred and fifty cases at a time. Wow, they don't
Speaker 3: have the resources to prepare those cases. They don't have
Speaker 3: the resources to hire experts, whereas the states generally have
Speaker 3: unlimited resources. And so doing more to fund public defenders
Speaker 3: and to make sure that they have adequate time to
Speaker 3: do their jobs is one major step towards trying to
Speaker 3: correct the problems of poverty and racism. In the criminal
Speaker 3: justice system.
Speaker 6: You talk about exonerations and you but you also we
Speaker 6: said in the introduction, in the past thirty years alone,
Speaker 6: more than twenty eight hundred innocent American prisoners have been
Speaker 6: exonerated and freed after being condemned for crimes they didn't commit.
Speaker 6: How prevalent is wrongful? Conviction even today.
Speaker 3: Well, first of all, let me just point out that
Speaker 3: for every wrongful conviction, there's probably many wrongful prosecutions that
Speaker 3: never end up in convictions. You know, somebody gets indicted,
Speaker 3: the evidence should have never justified the indictment. They go
Speaker 3: to trial, jury finds them not guilty, or a prosecutor
Speaker 3: at some point realizes that they ought to just dismiss
Speaker 3: the case, and so it never ends up in a
Speaker 3: prosecution or a conviction, but it still has upended that
Speaker 3: person's life. So I can't even begin to calculate how
Speaker 3: many of those there are that don't end up in convictions.
Speaker 3: But beyond that, I think it's fair to say that
Speaker 3: for every wrongful conviction, there are scores of people who
Speaker 3: are sitting in prison who have been wrongfully convicted but
Speaker 3: who have not been exonerated. Why is that, Well, first
Speaker 3: of all, in order to be exonerated, generally, you need
Speaker 3: to have a lawyer who's going to be able to
Speaker 3: devote the time and energy and resources necessary to gather
Speaker 3: the evidence to exonerate you. And once you're sitting in prison,
Speaker 3: it's pretty hard to find a lawyer, particularly on a
Speaker 3: pro bono basis, who's going to do that. And so
Speaker 3: the people who have been exonerated were fortunate enough to
Speaker 3: find a lawyer, you know, generally some sort of an
Speaker 3: innocence project at a law school who were willing to
Speaker 3: take on their case, so that again sort of sets
Speaker 3: them apart as unusual. Then that lawyer needs to be
Speaker 3: able to have the fortune, good fortune, or perseverance to
Speaker 3: find evidence that supports the motion for a new trial
Speaker 3: or for exoneration. Again, at that stage, many people drop
Speaker 3: away because the lawyers just can't find the evidence. You know,
Speaker 3: a case is thirty years old, all the DNA is gone,
Speaker 3: the witnesses are dead. So people who are exonerated passed
Speaker 3: through that hurdle. And then, of course, once you have that,
Speaker 3: then you have to get passed the judge who is
Speaker 3: so focused on finality that the fact that there may
Speaker 3: be an injustice here is somehow less important than just
Speaker 3: putting this to rest. Enough is enough. We can't have
Speaker 3: these interminable appeals, so let's just deny this and let's
Speaker 3: all move on with our lives. So, you know, the
Speaker 3: people who have been exonerated have passed through each of
Speaker 3: those significant hurdles before being exonerated. So what does that
Speaker 3: tell us? It tells us that for every one of
Speaker 3: those people who are able to pass through those hurdles,
Speaker 3: there are a number of people. I can't tell you
Speaker 3: have many, but it's scores who are in the same
Speaker 3: position but just weren't able to pass all those hurdles.
Speaker 6: I know this is not really the most important part
Speaker 6: of the book or the story of many of these
Speaker 6: people's cases, but you were able to obtain significant lawsuit
Speaker 6: settlements for some of these people that were wrongfully convicted
Speaker 6: and imprisoned for more than twenty five years.
Speaker 3: You have I think thirty seven years.
Speaker 6: So can you just tell us the end with an
Speaker 6: example of Again, it's not a happy ending, but it's
Speaker 6: an ending where at least they were given some compensation
Speaker 6: for the years in prison.
Speaker 3: Well, yeah, I'm happy to do that, but with this caveat,
Speaker 3: I mean, this book is not about, you know, me
Speaker 3: as a lawyer. It's not one of these you know
Speaker 3: I'm a great lawyer books. It's a book about the
Speaker 3: problems in a system and the impact that those problems
Speaker 3: have on everyday people. So I just want to make
Speaker 3: that clear, right. I will also make clear that money
Speaker 3: is it doesn't begin to compensate these people. So, you know,
Speaker 3: for somebody like Tim Bridges, who spent twenty five years
Speaker 3: in prison for a rape and murder that he didn't commit.
Speaker 3: From the age of about twenty two to the age
Speaker 3: of forty seven, he was in prison, he was sexually
Speaker 3: assaulted in prison, he would put himself into solitary confinement
Speaker 3: just to protect himself. And finally he was exonerated by
Speaker 3: the Innocence Commission, found to be actually innocent, and we
Speaker 3: were able to negotiate a very large settlement from the
Speaker 3: City of Charlotte because their police officers had engaged in misconduct.
Speaker 3: But that all that did was to enable him to
Speaker 3: begin to put together his life. But he's beginning to
Speaker 3: put it together at age fifty, and you know, we
Speaker 3: can't make up for those twenty six years in the
Speaker 3: prime of his life that he lost. He can't have
Speaker 3: kids anymore, he doesn't have grandchildren. You know, family members
Speaker 3: died while he was in prison. He couldn't go to
Speaker 3: their funerals. He couldn't say goodbye to his mom, who
Speaker 3: he loved dearly. You know, you can't compensate people for that.
Speaker 3: The best you can do is money, and it's a poor,
Speaker 3: poor substitute, and frankly, it's not going to deter this
Speaker 3: kind of conduct going forward because the people who actually
Speaker 3: engage in that conduct, they don't have the money to
Speaker 3: pay and they're not responsible for the damages that are awarded. So,
Speaker 3: you know, from my perspective, I think it's important to
Speaker 3: pursue that because otherwise these people can't get jobs, they
Speaker 3: can't get housing, they can't they can't do anything in
Speaker 3: their lives. They have a you know, a twenty six
Speaker 3: year old in their resume. Yeah, you know, what are
Speaker 3: they going to do? So it's important work. Don't get
Speaker 3: me wrong, But I don't take any any gratitude from that.
Speaker 3: It's it's just the best we can do. Yeah, it's
Speaker 3: also dramatic.
Speaker 6: When I reviewed the Netflix series The Staircase that you
Speaker 6: also say that you just said, look at Michael Peterson,
Speaker 6: how much he's aged, well beyond that physical years in prison,
Speaker 6: how much he has dramatically aged.
Speaker 3: It was, you know, I was shocked, Dan. I hadn't
Speaker 3: seen Michael in a number of years, you know, probably
Speaker 3: four or five. We you know, we corresponded, we spoke
Speaker 3: on the phone, but I hadn't had a chance since
Speaker 3: I had moved away a couple of one hundred miles
Speaker 3: from where he was in prison to visit him, and
Speaker 3: so when we got ready to do the hearing, they
Speaker 3: brought him to Durham and it was shocking how much
Speaker 3: he had aged in those eight years. And if you
Speaker 3: watch the Staircase, you can see it yourself. Between between
Speaker 3: episode eight when he's convicted and episode nine when he's
Speaker 3: brought back for his post conviction hearing. Yeah, it is.
Speaker 3: It is shocking to see. And then after after that,
Speaker 3: I won't spoil the series for anybody, you can see
Speaker 3: him sort of begin to get back to his old
Speaker 3: self again. Yeah. Absolutely.
Speaker 6: I want to thank you so much David Rudolph for
Speaker 6: coming on and talking about your new book, American Injustice
Speaker 6: Inside Stories from the Underbelly of the Criminal Justice System.
Speaker 6: I know this is an audiobook and it's an ebook
Speaker 6: and paperback as of today for the release, so this
Speaker 6: interview will be posted tomorrow. So the book has just
Speaker 6: been released today. Thank you so much for this interview.
Speaker 6: American Injustice Inside Stories from the Underbelly of the Criminal
Speaker 6: Justice System. David Rudolph, thank you so much.
Speaker 3: Thanks very much, Dan, I appreciate it, Thank you very much,
Speaker 3: thank you, good night.