Blind Injustice

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0:00:07.7 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus. Joining me today is Mark Godsey, the Daniel P and Judith L. Carmichael Professor of Law at the University of Cincinnati College Law, and Director of the Lois and Richard Rosenthal Institute for Justice/​Ohio Innocence Project. Before co-​founding the Ohio Innocence Project, he was a federal prosecutor for about six years. He is the author of 2017 Blind Injustice: A Former Prosecutor Exposes Psychology and Politics of Wrongful Convictions. Welcome to Free Thoughts, Mark.

0:00:37.7 Mark Godsey: Hey, thanks for having me on.

0:00:39.3 Trevor Burrus: So before we get into some of the substance of the nature of wrongful convictions, I think it would be interesting to… If there’s a story you might wanna tell about what you’re pursuing and what you were pursuing in Blind Injustice about, especially the behavior of prosecutors and other members of the law enforcement side of this equation, that made you want to write this book.

0:01:03.6 Mark Godsey: Well, I was a prosecutor and then got into innocence work sort of by accident, where I was at a different university first that had an Innocence Project, and the dean came to me on my first day of being a professor and said, I want you to run this Innocence Project, because the guy who runs it is on sabbatical this year, and I’m new and I’m untenured. I can’t really say no, but my attitude was, “Oh my God, there is no innocent people in prison. What a joke?” And I went to the first meeting and the students were crying about some guy they visited in prison that they were convinced he was innocent, what a tragedy. And I grilled them about the case and was sort of doing internal eye roles, “Oh my God, this guy is totally guilty.” And then DNA testing proved them innocent, and so it was like a huge shock, and then I met him as a person and I was really ashamed of myself ’cause I had sort of scoffed internally at his pain, thinking he deserved it. And it’s a longer story than that, but through the year, I sort of realized that there’s a lot of problems with the criminal justice system that people in the system like me and I had come into the professor’s job with a very prosecutorial mindset are sort of in denial about.

0:02:13.4 Mark Godsey: So the next year, I got a job at the University of Cincinnati, and Ohio was the largest state without an innocence Project, and I founded the one there, and started doing innocence cases. And I’m just seeing this sort of bizarre reaction from prosecutors and police, just sort of deep denial, we would have cases where the evidence just overwhelmingly proved innocence and DNA evidence and everything else. I’d go to court and they’d be standing up saying, “Oh God, this guy’s totally guilty.” And at the one hand, I recognized it ’cause that was me, on the other hand, I was having a hard time, there’s something weird going on. I’m I on Mars, am I on Candid Camera? What the heck’s going on? I just realized, because of my position, I was able to sort of understand the culture of prosecutors office and police offices and why we’re getting this resistance to reform, and so I just… I wanted to tell the story and I wanted to try to explain it, so I spent years studying the psychology behind it, what causes people and systems and bureaucracies to dig in and buy into myths and be in denial about reality. And I found their whole field of… I’m not a psychologist but I found there are whole fields of psychology, people had already studied this and I’m like, “I thought I was inventing this right here.”

0:03:28.0 Mark Godsey: This is well-​known how people do this, and then so I just… It took a number of years, but I put it all together and decided, “Look, I’ve gotta… I need to explain this as much for me as anybody else.”

0:03:39.8 Trevor Burrus: What is the cost to the prosecutor’s offices if they capitulate, not even capitulate, at least not make absurd arguments like what, aside that it might cost them money if they’re responding to your emotions from the Innocence Project, but just personally, what’s the cost that would make them be so recalcitrant and maintaining the guilt of these people.

0:04:03.9 Mark Godsey: You know, the weird thing is, is that in reality, there’s not a cost, but in their heads, they can’t see that. And I’ve tried to convince them like, “Look, do the right thing here, and I’m gonna make you a flipping hero and the media is gonna make you a hero. And I can guarantee you that the media is gonna make you a hero because I talk to these reporters and they want you to do the right thing.” And very few of them can actually see that, they’re so caught into this mentality. And I think it stems back to Dukakis versus Bush, when the Dukakis was governor of Massachusetts and when he was governor, he let this guy named Willie Horton out on early release then he raped a woman, and so Bush made it the the central part of his campaign running for president, Dukakis is soft on crime, and this woman was raped because of him and so it made Democrats… After that, Bill Clinton said, “We’re gonna out tough on crime the Republicans.” And so it made Democrats have this Napoleon complex, or they just reflex, or just… I have to be a hard-​ass, I have to act tough all the time. That’s what pays off. I just need to get my sound bite out there being a hard-​ass.

0:05:12.1 Mark Godsey: And it’s been sort of ingrained in them, and prosecutors in general, they’re all trying to avoid the 30-​second sound bite where they can be painted at soft on crime in the next re-​election. And so I think that’s starting to change. You’re starting to have these… It’s funny because through the 90s, early 2000s up until recently, in my opinion, Democrats were worse than Republicans because of this Bill Clinton and Kamala Harris was notoriously bad as a prosecutor, I can go on and on about that, but Democrats were awful. And then I would be in the legislature trying to get bills passed and I can have a reasonable conversation with Republicans, Democrats would chew my ass out, want me out of their office, on and on, same with judges, and it’s starting to change where now it’s becoming cool again, for the Democrats to be the progressive, “We’re gonna fight mass incarceration.” Which is good but it’s happening very slowly, so we’re not seeing that much yet in Ohio, for example, it’s some select cities where we’re starting to get some reform-​oriented Democrats in.

0:06:23.5 Trevor Burrus: Do you think there’s something about people who decide to pursue… You would know, I guess, because you were a prosecutor, but you think about my time in law school and you got your defense attorney friends, and you get your prosecutor friends, the ones who are interning at the prosecutor’s office, and the ones who are interning and eventually will probably go into those fields, you can see some differences between them, I would say in my time in law school about political possibly, why do you think people become prosecutors? I’m sure it’s for many different reasons, but is it because they really hate crime?

0:06:57.3 Mark Godsey: Yeah, I think that’s true. I think it sort of becomes a self-​filling prophecy, the people who are going into that largely grew up in maybe authoritarian, more type thinking or very law enforcement executive power, possibly, but it’s also the culture of prosecutor’s offices, and so even if you… ‘Cause I didn’t really go in that way, I was very much like… I started out looking for public… Federal Public Defender jobs, couldn’t get one, and I wanted to try cases, I ultimately wanted to be a professor, but I didn’t wanna be one of those professors that have never tried cases, so my plan was I’m gonna do five to 10 years of hardcore trial work, really know what I’m talking about before I go to the classroom, and I ended up as a prosecutor more because that gave me that opportunity, and I was sort of middle of the road on this issue, but once you’re there, it’s very competitive in the sense that you… Everybody wants to look like a rock star. You get in a new job, you wanna be the one that wins the cases, you wanna be the one that gets the promotions, and you wanna be the notch assistant, first assistant prosecutor. You wanna be the chief of this division.

0:08:10.8 Mark Godsey: And so you don’t become that if you’re cutting cases and losing cases and not flexing your muscles, so everybody starts flexing. And you know what the funny thing is, when I was a prosecutor, if you went around and and talked about, “Oh my God, this trial I’ve got coming up, there’s a lot of evidence that maybe he didn’t do it, it’s gonna be a big stretch, boy, I’m gonna… I might lose… ” There was a name for somebody who had previously worked in the office, and I won’t say the name, but I’ll just make it up like Harris. And they would go, “You are Harris-​ing your case.” And it’s sort of like the kid in high school, that’d be like, “Oh, I failed that test.” And then they get an A because… And what that shows is that if you win the tough cases that you’re not supposed to win, that’s a feather in your cap, that shows that you pulled this rabbit out of a hat, you’re this miracle Wizard of a prosecutor, and so ironically, the ones that maybe we’re on the margin where there’s not a lot of evidence of guilt, those are the ones you wanna win the most because it shows how great you are, so once you get in there, there’s a sort of perverse incentives of promotion and looking good and everything else, that just further solidifies it wasn’t a sort of mentality that way coming in and makes that… Crystallizes it.

0:09:29.3 Trevor Burrus: Well, you have to have some level of evidence, the decision to indict the decision to proceed forward with criminal charges, whether it’s plea or all the way to a jury trial, you do have to have some evidence for the prosecutor to decide that this is likely that they did it or worth going forward with, and so the ones that they dismissed, those are the ones that they’re kind of helping out, but after they make that decision, it seems like that they would continue to defend that decision all the way.

0:09:58.3 Mark Godsey: That’s exactly right, that’s exactly right. And make no mistake about it, when I was a prosecutor, if you cut a case early, you don’t allow it to go forward, there’s a political price for that, so there’s pressures not to do that, even if the case is on the margins. There was a couple of instances I could tell long stories about it, but one of them was with an agent who I had become friends with, ’cause I’d done several cases for him, and I listened to the tapes, man, and I just did not think it was enough. I thought the agent possibly entrapped the guy who was being a little too aggressive when he was undercover, and I was scared to have that meeting, it made me nervous to tell him we’re not going forward, and they do storm down out of the room and would never talk to me again, and then I had a bad reputation with that agency. And I have other stories like that too, so it’s not like it’s this neutral, “Oh, I’m gonna look at the evidence and I’m going to decide thumbs up or thumbs down.” You pay a political price when you cut cases that an agency or a police department’s worked a long time on but then if you make the decision to go forward, there’s really not a thought after that point to changing your position, it’s not part of the vocabulary, at that point, the adversarial system is sunk in and you’re kicked in and you’re doing everything you can to win.

0:11:13.3 Trevor Burrus: So I think that you were talking as a federal prosecutor in the Southern District of New York, which is a very major jurisdiction, that relationship between you and the law enforcement officers in particular, your offices, it seems like on a federal level of this idea that we’re the feds and were super professional but… How is that on, say, a small county in Georgia or something, with the law enforcement, the prosecutors, is it a similar type of intermixed relationship there?

0:11:43.6 Mark Godsey: I would assume so, but I can’t talk about Georgia. But when I went from being a Federal Prosecutor in New York and working with the FBI and these federal agencies, a lot of these agents had master’s degrees and very educated and thoughtful people, I don’t wanna cast [0:11:58.3] ____ When I came back and started doing innocence work in the State of Ohio and some rural counties, and it was like going into a movie set and dealing with these characters out of Central Casting, very, very different than what I had dealt with in New York. And so, Georgia might be the same where it’s just lockstep, everybody’s at the same mentality, there’s no nuance, there’s no… Everything’s black and white. They have all the power. This ultimately comes down to prosecutors and law enforcement have unfettered power, there’s just no check on it whatsoever, we’ve got cases where we exonerate, this happens all over the country, we exonerate someone and we demonstrate gross police misconduct, cheating, lying. Nothing happens to these cops, unless it’s something caught on video tape in like a George Floyd situation, there’s all kinds of misconduct that goes on, it’s egregious, that somebody wouldn’t get away with, or other situations.

0:13:01.0 Mark Godsey: And nothing happens to them, they continue working, they retire with a pension because there’s no one watching the hen house, right. They’re the ones that would arrest him and they’re not gonna arrest themselves. And so when you have… And I saw this as a prosecutor, I did political corruption cases, and I did counties that were all Republican, and counties that were all Democrat, and counties that were split down the middle, you had a lot less corruption because people were keeping an eye on each other and it’s when you have one political party in a county that’s been entrenched for decades, that’s where I would see just the gross corruption, we’re handers to the party, and it’s the same when you have prosecutor’s office, police departments basically unfettered power for decades on end. That doesn’t comport with human nature, things are not gonna go well, but that’s how we have it set up.

0:13:56.2 Trevor Burrus: It’s always seemed to me that the incentives are pretty out of whack for the mentalities that we’ve been discussing. Let’s talk about these… And you say this over and over the book, these are mostly good people, there are definitely real bad apple cops and prosecutors. They’re mostly people who think that they’re doing something that’s good and decent, and part of that is capturing the bad guys and making sure they don’t hurt people again, so it always seemed to me that if a cop is in the field and he like knows that that’s the bad guy, and maybe he’s right, maybe his cop instincts are finally tuned as they always talk about on the stand and so… Sure, he violates the Fourth Amendment a bit but at the end of the day, the bad guys in jail, maybe, especially if he’s a really bad guy, and so that’s how they can go home, and one of the ways they can go home and keep their head held high, that even if they kind of, on the little edges, they kind of fudged a little bit, it still put someone who was very dangerous in jail.

0:14:56.4 Mark Godsey: Right, so in the book, I didn’t coin this phrase, but I’m talking about that in terms of noble cause corruption. So you’re doing it for a good cause. Anybody can put themselves in a position, let’s take this violent crime where this beautiful person was murdered and the family is completely devastated, and you’re the officer in charge of it, it’s human nature, you can understand why if your instincts tell you somebody did it, you would cut corners, and you would think. And it’s not a crazy statement to say, “Yeah, it’s a just thing to cut corners. That’s understandable.” The problem is, is that we are not as good at solving crimes, I’m talking we, meaning human beings, as we give ourselves credit for, and in reality, our instincts are often wrong, and police aren’t properly trained on how to combat tunnel vision and confirmation bias and all these psychological things that lead investigations astray, and this is what leads to wrongful convictions. A lot of these times, it’s not a cop or a prosecutor who’s evil saying, “Wow, this guy is innocent.” Or, “I don’t know if he is or not but I don’t care, I’m gonna ramp this through.” They are going on their instincts and they do believe the person’s guilty, they’re just wrong.

0:16:19.5 Mark Godsey: And I think noble cause corruption is part of human nature, it’s gonna happen to some degree, but I think if you step back and you look at it and you see the number of wrongful convictions, we can do better, we can do better. And it’s not to say that somebody who’s trying to solve a horrific crime and help the victim’s family is a bad person, but we have to know our limitations, and these cops get to the point and it becomes a group think, where they feed on each other. Basically, they can just figure things out in the snap and they can’t… And they’re wrong a lot, and we need to have more humility and we’ll be able to do the right thing but we’d be able to do it more carefully and recognize it if we don’t do it more carefully, there’s great human tragedy on the other side, which is destroying somebody’s life and another family’s life by sending somebody to prison for life or death row for a crime they didn’t commit, it’s happening far too often, so it’s balance.

0:17:16.8 Trevor Burrus: What about the judges in this situation, they’re are the actors in the system that’s supposed to make things fair, so are they living up to that task?

0:17:28.9 Mark Godsey: No. So again, I was a federal prosecutor, so I was in the federal system, the judges are appointed for life, there’s no, they don’t have to run for re-​election. And judges were known as having views, it’s not like everybody was neutral, like this is a pro-​prosecution judge, or this is a pro-​defense judge, or this judge has this quirk, but you never got the sense that they were acting from outside pressures. They were just basically acting true to themselves and you might not have liked who they were but when I came back and started doing innocence cases in Ohio, it was culture shock for me that there was basically no separation of powers, and the judge was the same as the prosecutor and they were politically aligned many times, clear they were talking ex parte, which they’re not supposed to be doing with me not there and lining up the case to get it how they wanted, and an experienced attorney in this field, maybe it was Barry Shake, I can’t remember who when I first started and said, “Look, no matter how strong your evidence is, you’re likely to lose in the trial court, that’s the prosecutor’s home jurisdiction, they practice in front of that judge all the time.”

0:18:32.0 Mark Godsey: And you get a better shake, a better chance the further you get away from that, the Courts of Appeals and ultimately federal court in habeas, and I found that to be sadly very true. I can remember one of my first cases, the prosecutors were engaging in all kinds of just petty petty stuff and moving to strike my motions because the certificate of service said US Mail, and I emailed and faxed it to them. And just nonsense like that. And they continued asking, I had an innocence guy in prison, I ended up winning that case ’cause the evidence was overwhelming. Filed a brief with an inch thick of documents supporting that this was a wrongful conviction, and they got… The 30 days to respond came, on the 30th day they asked for another 30 days. When that 30 days came another 30 days, and it went on and I started objecting, “This is ridiculous. This guy’s in prison. He deserves the hearing.” I remember the judge said in a conference, “Are you suggesting that my prosecutors would unfairly delay a case?” And then throughout the entire case he would say my… Draw it out, “My prosecutors.”

0:19:37.3 Mark Godsey: And I put that in the book because it’s just… It showed like he saw himself on the same team and he made it clear and he denied our motion despite the overwhelming evidence, and we had DNA evidence and the letters DNA never appeared together in his opinion, and we eventually had to win in the Court of Appeals, once we got it away from the politics and the situation.

0:19:57.0 Trevor Burrus: Do you think it matters that a significant or a disproportionate number of judges or prosecutors in their background, as opposed to coming from a defense attorney side?

0:20:07.3 Mark Godsey: Yeah, absolutely, absolutely. They’re just coming in. I don’t know what the percentage is, it’s very high, probably 80% in Ohio. And they’re often hand-​picked, so for decades, in some counties, in Ohio, if you’re a judge and you did something that upset the prosecutor, the prosecutor, the elected prosecutor who’s by the way, is the most powerful person in most counties, every judge wants their endorsement at re-​election time, everybody wants their endorsement so you can’t upset them. So if you have a ruling where you follow the law and you throw out a case or you exonerate someone that makes the prosecutor upset, the prosecutor may hand pick one of their own prosecutors to run against you. And I’ve seen this happen time and time again. Put the power of the party behind it and drive that judge out of office. These judges know that. So this idea that the public has a fair balance, justice is blind, what we talk about in the classroom. Look, I teach criminal law, criminal procedure, evidence, I was hired just to be a regular professor, I still do that gig. I got about eight years into the teaching criminal law where I stand in front of the class and go through the elements of homicide, the elements of rape, and all the things they need to know for the bar.

0:21:30.6 Mark Godsey: And it got to the point where it was just totally intellectually dishonest, because it doesn’t work like that in the real world. In criminal procedure, we’re talking about the Fourth Amendment, the Fifth Amendment, and police have to get a search warrant and there has to be probable cause. And you can sit in a classroom and go, “Should the judge grant the search warrant?” And you can have an honest objective debate, yes or no. In reality, the cops are getting that search warrant, and so I got to the point where I had to say like, “Look, yeah, we can talk about this, but sadly, this is how it’s actually gonna work.” Once I made that switch, it was funny because my evaluations, I got about 10% or 20% of the class that started writing things like, get off your damn soap box, the cynical crusty old professor that’s just jaded, that’s not how it really works. So a lot of kids won’t accept it but it is reality.

0:22:21.4 Trevor Burrus: So taking a step back in working in the innocence project, how do you get your cases or how do they usually come to you? And then when you start evaluating them, what other kind of red flags you’re usually looking for as you move forward and say, “This is a good one, we can pursue?”

0:22:40.8 Mark Godsey: I get to ask that question a lot. And it’s very tough. The inmates write to us and we send them a questionnaire and they have to fill it out, it’s very tough to explain, and I guess the best way to explain it, and I don’t know if this is helpful or not, as you imagine a busy newspaper that you see in the movies with a million little desks and the phone’s ringing all day and all these reporters… And all these tips are coming in but only a certain number of these tips end up being an article in the newspaper. And so the reporters are getting these tips and they’re quickly making a few calls, they’re trying to see, does this story have legs, and that’s sort of the way it is, these are coming in, and they’re put on a conveyor belt and they start moving toward the finish line, which is being filed in court and various things will come and swing by and cause that file to be knocked off, and eventually some of them make it to the end, which means everything we’re doing, it keeps verifying the claim of innocence, there’s nothing that caused it to be knocked off.

0:23:38.4 Mark Godsey: So on top of that though, there are clear things that will make a case stand out, so one of the big problems is we’ve got a lot of people in prison on junk science where they were convicted on this, what we now know as bogus arson science or hair comparison or bite mark and all these things. So the students are trained at the beginning, you get a letter in from somebody that the primary evidence against them was one of these junk science categories, we’re immediately gonna put that to the top of the carton. It doesn’t mean we’re gonna file on it but we’re gonna give that one a very close look. You tend to find in the cases that have stayed on the conveyor belt for a while and it just continues looking fishy, as you continue digging in everything the inmate told us in his application is checking out, and you start seeing these red flags where you start getting the four year request and you’re getting the police records back and the witnesses have changed their story left and right and the fish starts to smell worse and worse. Often in those type of cases, you end up finding what are called Brady violations, based on the US Supreme Court case, Brady versus Maryland, the police have to turn over its culpatory evidence, evidence they find during the investigation helps the defendant.

0:24:52.3 Mark Godsey: And the percentage of time when we get a case that starts to smell really bad, when it starts to smell really bad, that’s when they really sometimes have to cut corners to get a conviction, and we start digging in and really demanding or suing for the public records that they’re not turning over. We end up finding that there was a much better suspect that there was all this evidence pointing to somebody else, but you know what, they’d already gone out and arrested our guy, and they had already got on TV and patted themselves on the back that they had solved the crime, and then all this other evidence comes in that makes somebody else more likely the person who did it, and that’s all just shoved under the rug. So another part of it is when these cases continue to smell, really trying to dig down to get to the bottom of why it smells and what happened and how that sausage was made.

0:25:42.7 Trevor Burrus: You mentioned this phrase before, but you kinda just described it, the tunnel vision aspect of this, but that can end up infecting multiple layers of the prosecution’s decisions and people involved in the system, correct?

0:25:57.9 Mark Godsey: Yeah, tunnel vision is human nature, so our brain can’t process everything, and we now understand this a lot better than we did even 10, 15 years ago, but we use filters to help filter out sort of… That’s why people perceive the same incident differently, and we don’t remember everything either, we’re selectively remembering what we deem as important and our pre-​existing beliefs have a lot to do with how we perceive evidence and how we remember evidence. And I’ve created a short video on a series of different psychological factors from the book, which has a much better job of explaining it, but if you have a pre-​existing belief, for instance, this person’s guilty, and the witnesses come to you and they give you information that contradicts your belief, you’re much likely, much more likely to label that person, “That guy is lying.” Right? And somebody is giving you information that confirms what you believe, and you got all excited when you finally got a suspect, right? “I think I might have nailed this.” From that point on, the detective is gonna believe the evidence that confirms that, and he’s gonna discount the evidence that contradicts it, and this is human nature, you can fight it, you can be trained about it, you can have a system set up to minimize that, which we largely do in the private sector.

0:27:21.4 Mark Godsey: Somebody comes in in a company and says, “Hey, I got this great idea, I’m real excited about it, I’m gonna open up 10 chains in Arizona.” A company is not gonna invest that kind of money without doing a lot of focus groups and devil’s advocacy and everything else, when a cop gets excited about a lead and says, “I’m going… Oh boy, I’m going down this rabbit hole.” In reality, what happens is everybody joins in. “Good for you. Yeah, go baby.” And the aspects of tunnel vision and all these flaws in the way we investigate cases once that happens are not put in check, they’re not thought about. I saw this in the prosecutor’s office, when we talk to each other about our cases, and we brought up weaknesses in the cases. It was not to have an objective discussion like you would have in a law school class about, should we drop the charges? It was help me scheme how I can respond to that at trial, they’re gonna call a witness that says this, let’s brainstorm and come up with what my response to that is gonna be. That was the only mentality.

0:28:30.0 Trevor Burrus: Well, it also gets down, as you pointed out, and you mentioned this previously, and I think it’s just massively important, the junk science aspect or forensics, but the tunnel vision can even filter down to these supposed scientists sometimes that’s a stretch in terms of how they’re being told to investigate a case.

0:28:49.8 Mark Godsey: Yeah, you know what, this is one of the things, another thing that the public often doesn’t understand, ’cause we’ve got these shows like CSI that hold up these forensics as this modern day miracle, like putting man on the moon, and I watched a one minute of a CSI episode, and it’s where the scientist was looking through a telescope at a man’s neck tie and sees some spot of blood or something, and then she leans back in her chair, and then in her head, she can picture exactly what happened, and I just… I had to turn off the TV. I can just give you one study to illustrate this, I talk about this quite a bit in the book, but confirmation bias and these filters I was talking about literally affects what we see, and if you have a pre-​existing belief, it will limit what you see, and there’s all sorts of things, and I have some experiments in the book you can do yourself to show this, but Atrial Drawer is a psychologist in London studies confirmation bias in these filters, and he decided to do an experiment, fingerprint experts who had held themselves up as a rock solid science with zero error rate, and he went to fingerprint experts around the world leading experts and said, “Will you participate in this study?”

0:30:00.5 Mark Godsey: “I’m gonna give you two fingerprints, one is the one taking at the Police Station by the defendant, the other one was from the bloody knife and years ago, a fingerprint expert testified in court that this was a match, and that’s what caused this defendant to be convicted, but we now know that he’s actually innocent because DNA has proved someone else did it. And we know the fingerprint expert made a mistake. Will you look at these two fingerprints and show us where the fingerprint expert went wrong? Show us the discrepancies between these two fingerprints.” What these fingerprint experts that were participating in the study did not realize, however, is that they were being lied to, and in reality, Atrial Drawer had gone into their jurisdiction and pulled out exhibits of when they had testified in court that two fingerprints were a match so this was not a wrongful conviction case, and they were looking at their own work and they did not realize they were looking at their own work, of course, fingerprint experts look at fingerprints all day long, they’re not gonna remember a fingerprint they looked at the week before, not to mention 20 years earlier.

0:30:58.7 Mark Godsey: And so now they’re looking at two sets, two fingerprints that they personally had called a match in court, and they’re being told this is from a wrongful conviction case, show us the discrepancies, and 80% of the fingerprint experts came back and said, “Yeah, this is not a match, this fingerprint expert made a mistake,” and then it’s like, “Surprise, this is your work.” And it’s hard to sort of explain this to the audience unless they’ve sort of done these tests which are in the book and you start to understand when you are told something in advance your brain will create filters to make your job easier. So if you’re given a pre-​existing answer, which is what the police do, this is what I did as a prosecutor, dude, I would call up experts, “Hey, trial is starting Monday, we know the bullet came from this guy’s gun. I can’t say that. Where is the report? Finish the work, get me the report that says that and come to testify on Tuesday.” Right, so the experts are told before they even start, expect these two fingerprints to match, expect that the bullet is gonna come from this gun, blah, blah, blah, blah, and we now know that even though the fingerprint experts are trying to do a neutral job, they’re trying to do the best job, they’re not trying to slant things, the way the human brain works that will in some instances, slant the result and create a garbage in, garbage out, outcome.

0:32:10.4 Mark Godsey: This is very easy to fix, you just set it up blinded, they don’t know the answer beforehand, and there are some jurisdictions like Scotland, places in Canada were starting to do that. But the frustrating thing is the criminal justice system is operating based on an understanding of the human mind, based on psychology from the 1950s at best, and because it’s not the free market system or they have this unfettered power, there’s no incentive to always try to catch up and adjust technologies and adjust procedures, once we understand that it doesn’t really account for how the human mind works, and so the change is very, very slow.

0:32:51.9 Trevor Burrus: It’s always struck me as if you think about it, I feel like for longer than about 60 seconds, say bite mark analysis, I don’t think… So if you took me and I bit into a peanut butter sandwich, perfectly or a piece of fried chicken. I didn’t tear, it didn’t move. I just perfectly put my indentation into… I’m not sure that you could still get someone to scientifically verify who’s teeth it was in something that clear. But then when people are victims and they’re struggling and all this stuff and stuff, and aside from the fact that criminals seem to bite a lot more than I would expect them to, which is a point that Radley Balko is… It’s some of his work, it just seems obviously ascientific so why is it still being used so much?

0:33:41.1 Mark Godsey: Yeah, you’re preaching to the choir, and that’s a good example of how resistant the system is to change, you can’t defend it, and the Dental Association, whatever it’s called, the Trade Union for all these forensic dental experts, tried to do a project several years ago to show that their work is actually valid, where they sent some samples to have their different members render opinions, is it this person’s teeth or is it this person’s teeth, and they all came back disagree with each other, showing how random and arbitrary it is, and then they tried to not publish the results. Radley Balko talked about this in his article, they tried to not publish the results, and they said their own study was flawed and everything else, it’s like in the cases after case where… A famous one is the so-​called Snagle Tooth Killer out of Arizona where they said that this guy has got really unique teeth, they are really messed up, and no one in the world could have made these bite marks but him. And DNA comes back later and proves not only that he’s innocent, but somebody else committed the crime who didn’t have teeth and look anything like that, or the other cases where someone’s convicted on alleged bite mark evidence where his teeth allegedly match, and it turns out that it was something completely different. They had some sort of clothing thing that was snapping, or that sort of thing that caused a bruise or just the stories like that are just legion.

0:35:19.0 Mark Godsey: I’ve got a case now where the DNA has demonstrated from the bite-​mark that it’s not him, the prosecutors said at closing arguments at the original trial, they relied on bite mark evidence, and they said, “It’s too bad that the DNA technology is not advanced enough to do a DNA test in that bite, because the perpetrator would have slobbered all over that. That would be the best evidence. So years later, when we have the case and technology advances, we do DNA testing at the bite mark and there is a man’s DNA there and it’s not our client, and now this was a bite through a lab coat, it was a doctor that was killed, so they came back and they said, “That doesn’t mean anything. Doctors wear their lab coats for a week or two at a time, you’ve got clients sneezing on them. I’m sure that that lab coat had a million peoples DNA on it.” So we then go and DNA test something like 20 random spots on the lab coat and there’s no DNA anywhere else on the lab coat except the bite mark. This person’s still in prison because the judge said, “Well, you got the bite mark match though the expert years ago said that it was his teeth, and we’ve got experts now saying it’s complete junk and blah blah blah and DNA evidence and they’re still… ” The prosecutors are still saying that original bite-​mark testimony should keep them in prison and the judge went along with him. It’s just hard to wrap your mind around.

0:36:37.6 Trevor Burrus: What about the juries? You’ve tried cases, you feel juries, these are normal people, maybe they’re a little infected with CSI-​itis or something like that in terms of forensic evidence, but they could listen to someone say kind of like what I just said, you really believe that a bite mark can be matched if you couldn’t even do it with a peanut butter sandwich, are they helpful in these situations?

0:37:07.0 Mark Godsey: Jure, I would take a jury over an elected state court judge almost every day. As I already said, when I came back and started doing these innocence cases, the judges are pretty much prosecutors… I think at the trial stage, when someone’s originally arrested… Jurors often have a bias in favor of the prosecution. Why would we be here? Why would the police have arrested this guy… The presumption of innocence is, I think there is a bias, but I don’t think it’s as bad, in my opinion, as most judges… And I think that most people in the public are surprised to hear that what I would like to see when we… Years later, an Innocence Project takes a case after a guy has been in prison for 20 years and has evidence of innocence and has to go back to court to get the conviction thrown out, boy, we’d triple the amount of wins we had, if we could get in front of a jury. Any of these cases that we have to go and fight for years and the guy has to stay in prison or we sometimes lose, and we have really strong evidence of innocence, anybody you talk to, the reporters will tell me off the record, “Guy is totally innocent.”

0:38:18.3 Mark Godsey: Anybody objective can see what’s going on. And you put any of these cases to a jury and we win them… So I would at least in the post-​conviction stage, I would kill to have juries decide the fate of our clients.

0:38:32.5 Trevor Burrus: Now, what are the interesting things in your experience, we have the forensic stuff, it seems like the other really common source of wrongful convictions in a shockingly large amount where eye witness testimony is the only essential evidence against someone, but in that situation as the jury is supposed to watch the person testify look him in the eye. Decide whether or not they’re telling the truth. That’s the best system we’ve yet come up with, we know lie detectors are bad in themselves. Is that good enough for a conviction in those situations, or is it too often mistaken?

0:39:13.7 Mark Godsey: Well, I don’t… Complicated answer, you can’t stop prosecuting crime just because all you have is a couple eyewitnesses, but we can do better, so there are procedures that will minimize the risk of a wrongful identification, there are ways the jury can be informed to better evaluate the witnesses testimony and if there’s a murder that happens in broad daylight and three neutral witnesses saw the person and identify them, I’m not one that would say, “Well, you can’t prosecute that case, ’cause all we’ve got is our witnesses.”

0:39:56.4 Mark Godsey: So two things have to happen… Or even one eyewitness. Even one, you can’t say, well, I don’t think there should be a rule you can’t convict someone on one eye witness, but we gotta do the best job we can do, and so you’ve gotta have procedures that are readily published and easy to understand, verified scientifically over and over again, that make that identification as good as it can possibly be, and then the jury has to be given the correct information to properly evaluate that testimony. In most situations… We’re not doing either one. So that’s the first complaint. The second problem is, is that if evidence comes back 10, 15, 20 years later suggesting that person’s innocent, we have to have the humility and the open-​mindedness to be like, “Look, we’re all doing the best we can here, and we went forward doing the best we could with one eyewitness, and we now recognize that maybe we were wrong and let’s objectively evaluate the situation.”

0:40:55.5 Mark Godsey: We’re not doing that either. So innocence projects are coming back to court in cases that had incredibly weak evidence, where you look at that one eyewitness and everything wrong was done, the answer was suggested to the eyewitness, I got case after case like this. And you look at that and you go, “That identification almost means nothing, there’s not really much to believe this person committed the crime by modern standards, they didn’t know that in 1984 when this guy was convicted, but now we can understand why this can easily be a misidentification and now we’ve got all this other evidence of innocence, so let’s be adults about it, let’s sit down and evaluate it objectively and decide what justice requires.” Instead, you go back to court and the prosecutors go, “This was the best eyewitness identification in the history of the world, and this guy is totally guilty, blah, blah, blah, blah, blah, blah, blah,” there’s just no justice, there’s no objectivity the adversarial system, sort of this knee jerk reaction, “Well I’m just gonna dig in and defend the conviction no matter what,” is the norm.

0:41:57.4 Trevor Burrus: If we’re being honest though, probably most people in jail are guilty.

0:42:03.2 Mark Godsey: Yeah, yeah, I’ll agree with that. I would say if the people that write to the Innocence Project, most people are guilty.

0:42:09.6 Trevor Burrus: Yeah, they have to have something to do in jail, I guess.

0:42:12.0 Mark Godsey: Right. Yeah. So the biggest pie chart by far… If we had a pie chart, the biggest slice of it, of cases I’ve evaluated are people that seem pretty clear they’re guilty. I mean, I don’t know, that might be 80%. I don’t know what it is. Anecdotally, it’s very high. The other 20% are cases that they could be guilty or they could be innocent, and they start going down that conveyor belt further, and… So the next biggest slice of the pie chart is the evidence has been destroyed, the witnesses are dead, we see a lot of red flags in this case, but we can’t finish the investigation because they destroyed the DNA, the witnesses are dead. Etcetera, etcetera. And some of those people are gonna be innocent, some percentage of those people are gonna be innocent, but they’re just unfortunate that they can’t get DNA testing or other things like that, and then there’s the smallest sliver in the pie chart is the ones that… It seems pretty clear they’re innocent, it’s not an insignificant number, I haven’t done the math, but it’s, in my opinion, two, three, 4% of the people that write to us, not insignificant, I’ll sit down with a team of…

0:43:34.3 Mark Godsey: So maybe a little bit higher than that, but I’ll sit down with a team of two students, they’ve got 30 cases, would not be uncommon to have two or three of those 30 that very… This person either looks very strongly innocent or there’s a very good chance.

0:43:48.6 Trevor Burrus: So what do we do? In reading your book, it just sort of re-​confirmed a lot of beliefs that I had, seek, this goes to confirmation bias about how kind of entrenched some of the rot in the system is, and the actors just are lacking incentives to be better. So when you’re trying to come up with a way to fix this rot…

0:44:09.6 Mark Godsey: Yeah, fair way of saying it.

0:44:12.1 Trevor Burrus: It becomes a little daunting. Do you have any winning ideas that we can get us… Move us along?

0:44:19.6 Mark Godsey: I don’t have an idea that excites anyone, but it’s the only idea, and I think it will work, which is, I’ve been doing this, I’m one of the old people now in this movement… I’ve been doing it for 20 years, and so I see new people come in and start an innocence project in this state or that state, and they get burned out after two or three years, it’s like, “Wow, nobody’s changing and da, da, da, da, da… ” First of all, it is changing, it’s changing very slowly. Frustratingly slowly. But it is changing. When I first went to the legislature in 2003 and started talking about bills to reform these things, they looked at me like I had three heads. And now everybody knows what I’m talking about. We’re getting bills passed. It’s changing very slowly. And I think the way to look at it is this is a decades-​long Civil Rights Movement, and I look at how issues like LGBTQ, the culture has changed since I was in high school in the 1980s, where a kid in my speech class stood up and gave a speech. A hate-​filled speech. And nothing happened. And you can’t do that now.

0:45:33.8 Mark Godsey: Thank God. And we still have issues, but things have dramatically changed, and it’s not like there was this one eureka moment where everybody said, “Oh, we’ve been looking at this wrong,” it changed gradually over three, four decades from people yelling and screaming and educating and silly as it sounds, things like Ellen and Will and Grace and… So I’m spending my time trying to get shows made and things like that, because I’m seeing this as a cultural issue, and it’s slowly changing, and so what we’ve done is we now have what we call OIPU, U for undergrad, so like ESPNU is the college sports station, and when we’ve got chapters at 12 colleges around Ohio of undergrad students who are meeting and putting on exhibits and demonstrations and awareness campaigns on their college campuses, most people go into law school now anywhere in the country, are learning about this stuff in law school.

0:46:29.5 Mark Godsey: I mean, I teach this stuff in law school and five years ago, it was the first time these kids are hearing any of this stuff, now most of them are hearing about it in undergrad, so I’m seeing the change. And if you think about it, prosecutors, police, chiefs of police, these are people that cut their teeth in the 1990s, the people who are in power now, the Bill Clinton, Kamala Harris mentality where they had to be complete hard asses, those people are still in power, but the cultural change is happening, you can’t be… Somebody who’s in their teens or 20s now, and are in law school or recently out of law school is wiser, and they’ve been educated differently, and I do think that if we continue this push, the cultural change will continue to happen and when these people get into power decades from now or one or two decades from now, it’s gonna be different and it’s gonna be this slow cultural slide, like we’ve seen with LGBTQ issues or even marijuana. I mean, when I was in the 1980s and I was in high school, if you did marijuana, it was a gateway drug and you’re gonna be hooked on heroin and everything within a couple of weeks.

0:47:38.5 Mark Godsey: Now everybody realizes how silly that was, and it’s legalized in most places. It’s a slow, gradual change of attitude, that’s how we’ve got to approach it, and you’ve gotta be ready to have this fight for the long haul.

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0:48:07.5 Trevor Burrus: Thanks for listening. If you enjoy Free Thoughts, make sure to rate and review us in Apple podcasts or in your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism visit us us on the web at Lib​er​tar​i​an​ism​.org.