Toby Dorr
Episode 1

Episode 1

Toby Dorr: Hello and welcome to Fierce Conversations with Toby, the show where we talk about the hard things. I’m Toby Dorr. We’ll offer listeners a surprise at the end, so be sure and listen all the way through for the details. In today’s episode, we’ll learn that you may go to prison even if you’re innocent. Our guest today is Justin Brooks, the director and co-founder of the California Innocence Project, and a tenured law professor of law at California Western School of Law in San Diego.

Toby Dorr: Over the course of his career, he has served as counsel on many high-profile criminal cases and has exonerated dozens of innocent people, including former NFL Player Brian Banks. Professor Brooks has been recognized several times. By the Los Angeles Daily Journal as one of the top 100 lawyers in California. And in 2010 and 2012, California Lawyer Magazine honored him with the Lawyer of the Year award. Professor Brooks has found an innocence organization throughout Latin America, speaks around the world about innocence work, and is the author of the only legal case book devoted to the topic of Wrongful Convictions. He is portrayed by Academy Award-nominated our actor Greg Kinnear in the feature film, Brian Banks. So welcome to the podcast, Justin. I’m delighted to have you here.

Justin Brooks: Thank you so much. I’m happy to be here.

Toby Dorr: I like to ask all my guests a question at the beginning that kind of gives us a peek into who you are, what’s your favorite color, and what does that say about you.

Justin Brooks: I’m pretty sure by the clothes that I wear, it’s blue, cause I wear a lot of blue. I wear usually a blue exonerate shirt, which is the, the license plate on my car. And kind of has become the symbol for the California Innocence Project. So probably I noticed that what that says about me is I never put down my work. I’m always wearing it.

Toby Dorr: I love that. I can relate to that actually. Can you tell us about a crossroads in your life that pushed you in a different direction?

Justin Brooks: Sure, and I think like most people, there’s been several, but the one that sticks out in my mind and the one that kicks off my new book, You Might Go To Prison Even Though You’re Innocent, is that 27 years ago I was a law professor in Michigan, just having a nice little life teaching law and living in East Lansing, Michigan. And I’d given up my practice as a criminal defense attorney in Washington, DC. to have this quiet academic life. And I read about a woman on death row in Chicago, who had been sentenced to death on a plea bargain, that sentence makes no sense, right? To death on a plea bargain! And so, I set up a meeting with her on death row. She was scheduled to be executed. and she told me that she was innocent. I said, you’re innocent, you pled guilty and you’re gonna be executed. Yes. So, I went back to the law school where I was teaching, and I told exactly that to my students. I said, there’s this woman on death row, she’s 21 years old, and she’s sentenced to be executed. She says she’s innocent. Who wants to help me out? And four kids raised their hands. And that night we sat around my kitchen table and we started going through the police reports. That case changed the entire trajectory of my life. I ended up getting her death sentence reversed. I quit my job as a tenured faculty member out in Michigan, and I moved to California and I started the California Innocence Project. And since then, that’s what I’ve been doing. I’ve been investigating claims of innocence of people in prison. Working on those cases with law students to use the cases to train them to be good lawyers. And I’ve been lucky enough to walk 37 innocent people out a prison in the time I’ve been doing that.

Toby Dorr: I think that’s just beautiful. There is one thing I learned through my own journey through the justice system and that is that it’s not just. There’s all kinds of idiosyncrasies and unfairnesses. I think it’s awesome that there’s a group out there who tries to write those wrongs. So… you might go to prison even though you’re innocent. What a title. How did that title come to you?

Justin Brooks: That’s a great question that no one’s asked me before. I guess it, it’s, you know, I’ve been talking about this topic for so long. I’ve been teaching about it for so long. I’ve given hundreds of lectures on it. I’ve done all these cases, and, you know, really that’s the summation of, of all of it. And. You know, it’s funny, I literally have in my own head what would be my plan if I went to prison because I’ve seen so many innocent people in prison that I know that could happen to me, you know. My plan, by the way, which is not one that everybody could use, but is that you know, on the first day in prison, I would gather all the shop callers, all the gang leaders on the yard. And I’d say, I’m gonna be your lawyer. And your lawyer. And your lawyer and your lawyer…

Toby Dorr: That’s an excellent plan. I love it. Keep all these other dudes away from me. Yes, that’s right. Talk about having an easy life in there. That’d be the way to.

Justin Brooks: Yeah, if I can pull that off.

Toby Dorr: Yeah, well hopefully you never have to.

Justin Brooks: Hopefully I won’t. But again, certainly not a fun place to be. You never know.

Toby Dorr: Honestly. You never know.

Justin Brooks: And that’s, that’s what the book is all about. So, the book is divided into 10 sections of kind of the 10 themes I’ve seen in my career, of what leads innocent people to prison. And many of ’em are just unavoidable. You know, some are avoidable, like, you know, I’ve got a chapter on all the baby death cases that I’ve dealt with, and yeah, if you never have children or you don’t allow children in your home, or you don’t operate, you know, as a daycare provider, you know, if you spend the rest of your life staying away from children, I guess you could avoid that wrongful conviction. But I’ve seen daycare providers, parents, and all kinds of people wrongfully convicted in baby death cases that were misdiagnosed. I talk about, if you live in rural areas, often the police don’t have the capacity to process homicide scenes, so they make all kinds of mistakes, if you live in the inner city, lots of those neighborhoods are overpoliced.

Justin Brooks: And so that leads to wrongful convictions.

Toby Dorr: And they’re just looking for somebody to put something on.

Justin Brooks: And then the leading cause of wrongful conviction is unavoidable for all of us because the number one cause of wrongful conviction in the United States is misidentification. And my chapter on that is called, you sort of look like other people in the world. Because you can be wrongfully identified. Yeah. People’s memories are terrible. I often talk about, when I talk about it with jurors or with groups of people, and let me ask you this, Toby, has this ever happened to you that you’re in a restaurant and you order some food and you’re looking right at the waiter or waitress and it’s bright lights and you know, you’re not afraid and no one has a gun in your face. and you order, let’s say the tomato soup, and the waiter waitress walks away and you think, you know what I think I’d rather have the potato leak, and then you look up and think, who was my waiter again?

Toby Dorr: Who was my waiter? Right. I can so relate.

Justin Brooks: That is the best possible identification scenario. You’re doing the ID moments after you’ve seen the person. You’re not afraid, so your memory doesn’t get distorted. You’re not having weapons focused on you cuz they’re not carrying a weapon. You know, you may, hopefully, you’re not intoxicated, but a lot of times all those things impact how identifications are done. And sometimes those IDs are done hours later, days later, months later. I’ve seen identifications done years later that then stand up in court. And it’s, so ultimately the conclusion was it is unavoidable that you might go to prison even though you’re innocent now, statistically.

Toby Dorr: It’s always possible. That’s right. It’s always possible. I can so relate to that, and I found that the prison system is really hidden from the general public. Outta sight – outta mind when people go into prison. Society, in general, never gives them a second thought. So even if there is some doubt about their conviction, nobody follows through with it except, you know, for people like you. And I know that you know the stats, but our listeners may not. The United States has the highest percentage of incarcerated people in the entire world. What does that say about us as a society?

Justin Brooks: It’s a shocking statistic and I’m happy that you focused on the most important statistic because first of all, we have the largest prison system in the world, but people will say, well, we’ve got a large population. I always counter with that by saying China has fewer people in prison and they have a billion more people than us, but we have the highest percentage. So, if you think about the fact that much of crime is connected to economics, and we are the wealthiest country in the world. Why is the wealthiest country in the world locking up the highest percentage of its population? That makes no sense.

Toby Dorr: It makes no sense. It’s just baffling. And to me, it says that our solution to every problem is to throw ’em in prison. I think you asked some of these hard questions in your book, what behaviors should be criminalized to truly serve society? Do we really make a better country if we throw someone in jail cuz they didn’t pay child support? Are they really criminal? How are they gonna pay their child support when they’re in jail because they didn’t pay child support, you know? So, what are your thoughts about that? The behaviors we should criminalize?

Justin Brooks: I’m not somebody who can be dismissed by people saying, well, you’re some liberal who thinks, you know, no one should be locked up. I do believe that there’s a percentage of our population who are violent, who we need to be protected from, and they need to be isolated from the community. Now, I would love it if we would be doing something positive with those people because I think that even people who have violent tendencies can be rehabilitated. There’s a very small percentage of the population that can’t be rehabilitated, and it’s a tiny percentage. I spent three years working in a prison when I was a young lawyer, and people say, are you scared going in there? I’d say no, I teach a class in the prison. Most of the guys that are in there, in there on drug charges, or they’re in there on nonviolent offenses, even the guys who are in there for nonviolent offenses, you know, it’s mostly under control.

Justin Brooks: And so, you know, there’s so many things. You’re absolutely right that we use criminal law to solve our societal problems in a way that doesn’t solve them. It just hides them away. And they’re always short-term because people in our democracy need to get reelected. You know, in Congress it’s every two years, in a lot of other offices every four years.

Justin Brooks: So, politicians look for short-term solutions that will just make the statistics look good. So, if they lock up a lot of people and they can make a dent in the crime statistics in the short term, that helps them. And then of course the corrections industry benefits from this. So, they fund the politicians that pass the tough-on-crime laws. It’s a win-win for the politicians. They can take money from the corrections industry, and create policies that help them get reelected. It’s a lose-lose for the rest of us because we’re paying billions of dollars to lock up citizens that could be productive. And then in a lot of cases, we’re paying for social services for their families because we’ve taken out a person from their family that could provide for the family. And it’s this evil cycle that keeps going. So, one example is when I started practicing law in DC I would see my clients who were sex workers getting locked up and it was so pointless. First of all, we were spending some, you know, a hundred thousand dollars a year on each one of ’em in processing costs and incarceration costs. And then how does putting somebody in jail? Turn them away from the life as a sex worker. All it does is make ’em less employable, and have more psychological issues.

Toby Dorr: Yeah. The reality is it throws them back. They’re even stronger because, you know, I had a college degree when I went to prison. and I never didn’t get a job I interviewed for, but I could not find a job when I got outta prison. I had a college degree and I couldn’t even get hired at PetSmart. So, what happens to the people like you talk about the women on the street who maybe didn’t even graduate from high school? What chance do they have of turning their lives around?

Justin Brooks: And it becomes this sort of it is where the law is just always a response to societal issues. When I lived in Michigan, I had a debate with a woman on the radio, which is a perfect example of what we’re talking about, where she said she thought they should raise the age of consent for sex in Michigan to 21. And she said because I think it’s a good idea that people wait till they’re 21 to have sex. And I said, ma’am, what’s a good idea and what we should be incarcerating people for are vastly different. You’re saying a couple of undergraduates at the University of Michigan who are 20 years old and have sex, you want them incarcerated for 10 years for that. And that’s, I think people don’t really get that.

Justin Brooks: And the legislature sometimes doesn’t even care. It’s whatever the public supports. But when they, when we criminalize everything we think is a good idea, all we do is fill our prisons and create a population of people that become less employable and less likely to succeed in, in our society.

Toby Dorr: And there is a financial incentive to incarcerate people because there are companies out there who make so much money off of prison phone calls. Prison commissary, you know, and not to mention all the labor that the inmates are required to do, that they get paid pennies for, you know, to that put money in some corporation’s pocket. It’s just so hard to overcome that because, you know, in America, money is what drives everything. And if there’s a profit to be made, then that makes it even harder to fight against.

Justin Brooks: Yeah. The industry is massive for what you just talked about and, the phone thing is the most frustrating because it’s the last collect call. You know, most of us can barely remember collect calls from 30 years ago. If you’re not over 40, you probably don’t even remember collect phone calls. I have a huge phone bill because my clients often call me collect from prison, and these families, you know when a child wants to talk to their parent that’s incarcerated, the family is gonna be stuck with a big bill for doing that. And what did that child do? If we really step back and think of these families that did nothing.

Toby Dorr: . I had a really close friend, thank goodness, when I was in prison, and I called him every day and I never knew what it cost. He told me after I got outta prison, that his phone bill every month was more than his car. Because I called him every day. And most families can’t afford to absorb that extra cost. It is, it’s just ridiculous.

Justin Brooks: And then also, and I was gonna say, they also have to absorb costs that I talk about in my book that people don’t think about is, for example, in California, we build the prisons out in the desert where land is cheap. It’s often hundreds of miles away from the cities where most of the families live. A lot of them. That’s right. They don’t have cars that can make it for those visits. A lot of times they gotta pay to stay in a motel the night before so they can get online at five in the morning and get a chance of a visit. And it’s all that stuff that we don’t consider because as you open this conversation, prisons are literally designed to hide all this stuff away.

Toby Dorr: The general society has no idea of what goes on. I don’t know about generally in prison, but the prisons I were in during my 27 months, never once was there any kind of a program to rehabilitate anybody that I ever saw. And statistically, the majority of inmates are released at some point. And so how are we creating and serving society when we’re turning people out that we’ve damaged during their incarceration? How are those people supposed to come back and be productive members of society? So that’s something else that needs to be considered, I think. And so how do you coach your people that you help get outta prison? Some of these people I know have been in for decades-long time. What do you find as the hardest thing for them when they come out of prison?

Justin Brooks: So it’s a long list, but it starts with, well, for example, my client, Mike Handline, he spent 36 years in prison. Completely set up in this murder case that ultimately they also paid him a lot of money as a result and admitted wrongdoing. But 36 years in prison. And in fact, there’s a video on YouTube that your listeners can watch called Man Eats Hamburger After 36 Years. And it’s me just taking him out for his first meal and he’s even struggling to figure out how to order. You know, in the restaurant, but the thing that they struggle most with is choices, because they haven’t been given choices for so long. And then like, just going to a supermarket, I had one client call me from the toothpaste aisle because he was having a panic attack because he couldn’t choose. Between anything because we take that away from you in prison and just tell you everything to do. But technology is the biggest struggle. Mike was an auto mechanic when he went to prison. And then 36 years later, he gets out and he starts looking at car engines and he doesn’t recognize any of ’em because he says they’re all computers now. I got, yeah, I got him an iPad so he could do therapy because he wanted to live in a remote area because he had trouble dealing with people and crowds. And no matter how simple I tried to make it, he just could not operate it. The concept of the internet made no sense to him. And it’s exactly what you’re talking about in California, my clients don’t have access to computers in prison. So, when they come out, if they went to prison in the eighties, they don’t know how to use so many things. And in the course of, the day, right? They don’t know how to use a smartphone. They don’t know you just had a computer. And that’s part of making them unemployable. And so we spend a lot of time with them on therapy and getting them training. In assisting them, but it’s getting more difficult every year for my organization, the California Innocence Project, because we’re lawyers who are freeing innocent people from prison. But often we get put into the role of social workers, right? And as free, more and more clients with more and more people to take care of – I don’t think the general public truly understands what prison can do to you in terms of your psychological abilities to move forward. And then just in terms of dealing with day-to-day life and the things that we all take for granted.

Toby Dorr: That’s true. You know, I served 27 months, which was a short sentence relatively compared to most people, but it just so happened that during that 27 months I was in prison the smartphones came out and Facebook came out. Those things didn’t exist when I went to prison, and I’m a pretty technological person, but it’s still an adjustment when you come out and you don’t know how to use these new technologies.

Toby Dorr: And I remember the first weekend I was home, my brother wanted to make it special for me, and so he took me out to lunch and took me to a movie. I had a panic attack in the movie theater because it was so dark and there were people behind me, and I could hear them rustling and doing something, and I couldn’t see what they were doing, and I had to spend my whole movie in the lobby because I just couldn’t adjust. That’s after 27 months. I can imagine after 36 years, you know how you would adjust. It’s just a horrific thing. One of my closest friends was executed by the federal government two years ago, and I have to say it was one of the most horrific experiences I’ve ever been through. You know, for those of us who loved her, and everyone in prison generally has people who loved them. So, how do you keep your heart from being broken when you don’t have success in some of these cases?  

Justin Brooks: I don’t know if I do. To be honest, I mean, when, you know, everybody sees our wins, those become big news stories and you see people walking out with their hands in the air. But we lose a lot of cases and the loss means that we’ve gathered all the evidence that they’re innocent and a judge just refuses to grant a hearing. Or we get a hearing and a judge denies it. And in my office, we all kind of sit out in the little lounge area, and my lawyers all cry, and everyone kind of goes back to their office and then you kind of hear everybody going home one by one. And the next day, we just start over again. But those losses stay with you forever.

Toby Dorr: You know, I think it’s a good thing that your heart gets broken because if it didn’t, then you probably shouldn’t be working in the field you’re in. So, I love that answer. I think that’s so true, and I’m sure you have a lot more requests than you can handle. So, what makes a case push itself to the top of your pile?

Justin Brooks: Yeah, so we receive thousands of requests a year, and I’m very lucky that I’ve got eight full-time staff attorneys. I’ve got a hundred volunteer attorneys. I’ve got at given time anywhere from 12 to 30 law students and a bunch of other volunteers. I’ve got college students, I’ve got retirees, and they all read through all the letters. And we send out questionnaires to the incarcerated people that they give us all the information about their case. Then a law student will read their transcripts, their pleadings, their appeals, and they’ll write an intake memo. And then every case that then moves into the system, ultimately a lawyer will review it and if the case has any possibility, uh, because there’s some cases that just, they’re not winnable. For example – drug cases. I’ve only ever won one in my career and I won that one in Nicaragua. I’ve never won one in the US because in the United States there are only two elements to a drug case, and that’s, you know, you had drugs and you knew you had drugs. Now I see a lot of drug cases where a person very well might be innocent. You know, it’s four kids in a car, they get pulled over in one kid’s backpack there’s drugs. But under California law, they can all be charged with possession. And if they went to court and the jury didn’t believe them, that they didn’t know that the other person had drugs, there’s nothing I can do about that case. So, a lot of cases get stopped right there. If they do have the possibility, we’ll have a presentation with the lawyers and the law students. I have the awful Caesar-like power of thumbs up or thumbs down. Oh. and then cases kind of move through the process of investigation until we develop the evidence we need to win or it gets closed. And it’s heartbreaking because I see a lot of people that have terrible representation. I see a lot of terrible decisions. I see a lot of injustice that I can’t do anything about because I have the burden of proving innocence with my cases that the prosecution and the burden of trial. But now I need compelling evidence of innocence to reopen that. And oftentimes you have innocent people, you just can’t develop that evidence and, it’s very, very hard. It’s the hardest part of the job is screening the cases, picking up on the ones we feel we can win, and then going out and winning them.

Toby Dorr: I can imagine, and I’m sure it’s a pretty time-consuming process as well. You can’t go through all that evidence in the blink of an eye. I bet you have months and months and not years into every case that you consider.

Justin Brooks: Yes, that’s a big job. And thank God for the miracle of law students and volunteers. Because it would be impossible to pay for what we do. Fortunately, I got the project off the ground through a donation from Joe Walsh and the Rock Band, the Eagles. It’s a kinda cool story to start with, to start with the Eagles.

Toby Dorr: Yes, that is pretty interesting. So I’ve heard it said that a society is only as good as the way they treat their inmates. How can we the public help your mission?

Justin Brooks: Yeah. It really is a test of how we care about people. Like, you know, it’s, I often say it’s our criminal justice system, right? It’s out there to protect us and our families and serve us. So, since it’s our criminal justice system, we all have a responsibility to make sure it’s working right? Not to just sit back and go, oh, okay, well I guess they made a mistake. Well, the ‘they’ is us. That’s true. Yeah. It’s us. We pay for it. Jury trials and it’s what protects us every day. So we’re either part of the solution or part of the problem. What can people do? Well, obviously supporting organizations like California Innocence Project, I’d love. People can go to California Innocence to see about doing that. Innocence projects all over the country to support. But you know, being informed jurors, being informed voters, the things we talked about earlier, not being easily manipulated by politicians into voting for tough-on-crime policies based on emotion. Recognizing things like the corrections industry. We’ve now allowed the correctional officers unions to be, among the most powerful unions in the, in America, United States. And that’s crazy.

Toby Dorr: It is crazy. I was in a for-profit prison for 15 months, a for-profit prison. Now that’s an oxymoron. I fell and broke my leg and it took them 10 days to x-ray it – 10 days – because it was a cost that they didn’t wanna incur. I mean, I think for-profit prisons are just, shouldn’t even be allowed. I think it’s the worst thing we’ve ever done.

Justin Brooks: Agree. Another point on the for-profit prisons, though, I think sometimes gets lost, is people think the prisons that aren’t for profit aren’t for profit. They are.

Toby Dorr: That’s right. For-profit. They really are. You’re exactly right. Everything comes down to a budget in the bottom line. You’re right.

Justin Brooks: That’s true. Yeah. They may not be privately built or privately managed. But there’s an industry behind them. That’s money. That’s true. That’s. They’re not the government.

Toby Dorr: That’s true. That’s right. There are so many industries out there that -I think if the public knew that all the labor came from in prison inmates – they would be stunned. The prison I volunteered in – all the college athlete clothing that was embroidered, was embroidered in that prison for the entire country. And, you know, and those inmates make hardly anything compared to what the embroidery operators outside the prison make. One thing I think that we could do pretty easily as a society to make the justice system a better thing is to serve on juries. So many people get jury summons and they say, you know, how can I get out of this? What can I do to get outta this? I just don’t wanna be bothered. I think we should be bothered because someday it might be someone we love. That is the defendant in a jury trial, and I would like to think you have a variety of people and you know, intelligent people and compassionate people, and people who weigh either side of an issue, serving on those juries and not just people who have nothing else better to do.

Justin Brooks: Right. Well, I’ve got jury duty next week and I will be going in as usual, and I will, I

Toby Dorr: Wonder if they’ll pick you.

Justin Brooks: No. I’ll probably get kicked off as usual, but I’m gonna keep going. And you’re absolutely. You’re absolutely right.

Toby Dorr: So, what’s one question you wish I’d asked you and how would you have answered it?

Justin Brooks: Where’s my book available? You Might Go To Prison Even Though You’re Innocent.

Toby Dorr: Excellent. I’m glad you have a picture of that to put up there because I don’t have a hard copy of it yet. We are going to include a link to your book as well, so perfect. We’ll get that covered for you. All right, well thank you so much, Justin. It’s been a pleasure having you on and I’ll be right back with you in just a moment. Perfect. Remember, none of us is our worst mistake. We all have so much more to offer the world, and those so-called mistakes are often blessed opportunities to learn. Next week, we’ll continue to bring you inspiring stories by people who’ve identified a need for change and are working to make a difference in the world.

Toby Dorr: Subscribe to our Patreon channel, fierce Conversations. For Special Access and behind-the-scenes info, go to conversations, or click on the link in the show notes. 10% of the Patreon proceeds are dedicated to providing workbooks to women in. The show notes will also provide a link to Justin’s new book, You Might Go To Prison Even Though You’re Innocent, and I’m also gonna include a link to the YouTube video about Man Eats Hamburger. After 36 years. There’ll be a link to purchase my memoir, Living With Conviction. As I talk about in-depth in my memoir, I had a conversation while in prison where my friend Lisa told me in here we can talk about all the hard things. In fact, I think we must. And so we shall. This is Fierce Conversations with Toby, where we talk about the hard things. Until next time.

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