1. Why did you write Blind Injustice?
I wrote it because there’s a huge disconnect between what the public thinks about our criminal justice system and the reality of it. Our system is far more unreliable than most realize. At alarming rates, innocent people get locked up while the perps still walk the streets and commit more rapes and murders. This is because our criminal justice system is based on psychology—on an understanding of the human mind—from the 1800s in some areas, and, at best, the 1950s in other areas. Yet we’re so smug and arrogant that we think we always get it right. The public would be shocked if they knew the truth, so I’m hoping to spread awareness about this serious national problem.
2. If you had to pick one innocence case to talk to people about, what case would it be and why?
That’s hard to do, because all of these cases are so fascinating and crazy in their own ways. I think my case that seems the most like a Hollywood movie is that of Clarence Elkins, a case I discuss in depth in the book. In 1998 in Barberton, Ohio, a grandmother named Judy Johnson was raped and murdered after an intruder entered her house in the middle of the night. Her 6-year-old granddaughter happened to be spending the night, and the little girl was also attacked—she was raped, assaulted and left for dead. But she fortunately survived. When she regained consciousness the next morning, she told police that the attacker “looked like” her uncle Clarence. With police prodding, this soon changed to “It WAS my uncle Clarence.” Based on nothing more than the statement of this 6-year-old girl, who saw the attacker for only a few seconds in the dark before she was knocked unconscious, the police arrested Clarence and charged him with murder. They did this even though Clarence had a solid alibi. Clarence’s then-wife Melinda, who happened to be Judy Johnson’s daughter and the little girl’s’ aunt, said that Clarence was in bed all night in their home 45 minutes away from the crime scene. There’s no way he could have done this, she said. Plus, he had no motive. And, she said, why would I try to protect him if I thought he murdered my own mom and raped my own niece?
But it didn’t matter. The police and prosecutors didn’t believe her. The State of Ohio convicted Clarence and sent him away for life. But Clarence always protested his innocence.
What makes Clarence’s case so wild is that he is the only exoneree who helped solve his own case from prison. Melinda, working with private investigator Martin Yant, developed a theory that the real perpetrator was a guy named Earl Mann. He lived two doors down from Judy Johnson at the time of the murder and rapes. And he had a violent history. Turns out, Earl Mann was in prison with Clarence. Out of more than 30 prisons in the state of Ohio, they were in the same one. And out of all the different cell blocks in that prison, they happened to be in the same cell block. So Clarence kept a clean tissue in his pockets at all times waiting on the perfect opportunity to collect Mann’s DNA. He tried a variety of ways, like swiping his toothbrush or stealing a piece of his laundry, but could never pull it off. Finally, one day, Mann left a cigarette butt in a clean ashtray while Clarence was watching. Even though it could have caused violent retaliation from Mann if word got back to him, Clarence gambled and snatched up the cigarette butt and hightailed it back to his cell. He pressed it flat in his Bible so he could sneak it out through the mail, and then sent it to a DNA lab we were working with. We did advanced DNA testing on the cigarette butt and the crime scene evidence, and proved that Earl Mann was the real killer/rapist. Clarence was eventually freed and fully exonerated, and Earl Mann is now serving life in prison for those crimes. So Clarence Elkins the detective not only frees himself, but catches the bad guy all in one fell swoop.
3. Before you helped found the Ohio Innocence Project, you were a prosecutor. How did this experience help you?
When you are an innocence lawyer and you fight to free innocent people from prison, you get to see some pretty bizarre and unjust behavior from those in the system—prosecutors, police, judges, defense attorneys, etc. Stuff that the public doesn’t know about. For example, if you say to a prosecutor, “That person you convicted of murder and sent to prison for life 20 years ago, remember him? Well, he’s actually innocent, and we can prove it,” it can be psychologically difficult, if not impossible, for of them to accept. So they tend to rationalize and come up with bizarre arguments to avoid admitting they made a mistake. In court, they end up using dishonest arguments to keep an innocent person in prison. It’s shocking really. It causes unmeasurable human suffering.
I understand this unfortunate law enforcement mentality because I had been a prosecutor before turning to innocence work. And as a prosecutor, I had been equally arrogant and unwilling to admit that there are flaws in the system. I came upon innocence work by accident really. In my first law professor’s job, I was at a law school that had an innocence clinic, and the professor in charge was on sabbatical that year, so I was “made” to supervise the law students working in the clinic as the new professor on the block. I did so grudgingly. I didn’t think the system made mistakes, and I thought all the clients were guilty. But DNA testing proved one of them innocent, and so I had to eat crow. That started an enlightenment process for me where I eventually took the blinders off and could see the criminal justice system for what it is—a very unreliable system, infused with human failings and human error. We are so arrogant about our system, but that confidence is misplaced.
Because of that perspective—because I could understand the law enforcement mentality so well, I thought I needed to write a book about it to expose just how unreliable our system really is from an “insider’s” perspective. In many ways, the book is a confessional and memoir, because I talk about a lot of things I did—and others did—in my prosecutor’s office that I now see as very problematic.
4. People tend to have a Perry Mason view of our justice system: When evidence of innocence is found, we believe the defendant is immediately freed. You write that the reality is that the justice system tends to instead fight back even in the face of conclusive evidence of innocence. Can you share an example where this happened?
That is the rule rather than the exception, sadly. I’ll talk about a case like that we have going on right now. Our client Kevin Thornton was convicted of armed robbery of a check cashing place based on a very shaky eyewitness identification. The perpetrator was wearing a hat and sunglasses, so the sole eyewitness—the victim—could see only the bottom of his face. When the police had her look at a six-person photo lineup, she covered up the top part of each face with her hand and picked Kevin’s picture basically from his mouth and chin. Any eyewitness ID expert will tell you an identification like that is a joke. That was it. No other evidence. In the first trial the jury couldn’t reach a decision, and so it ended as a hung jury. The prosecution knew they needed more evidence, so they did what prosecutors often do in that situation—they went out to dig up a jailhouse snitch. That’s someone who is working off his own sentence for a crime, and knows that if he can provide testimony against a person the cops are hot to nail, he can exchange that for immunity or a much lighter sentence. This kind of testimony is inherently unreliable, but prosecutors use it all the time when they have weak cases. I know that because I did the same thing as a prosecutor. Sure enough, at the second trial, the prosecutors dragged out a criminal to testify that Kevin “confessed” to him in jail, something Kevin adamantly denied, and that was enough to tip the balance and the jury convicted.
We got involved and did DNA testing. The perp had two plastic zip ties, and used them to tie up the female victim’s hands and legs. We found male DNA on both zip ties, and it wasn’t Kevin’s DNA. More importantly, it was the SAME MAN’S DNA on both zip ties, meaning that it was the perp’s DNA. That alone proved Kevin innocent. But we had more. We had an expert perform what’s called “photogrammetry” on the surveillance video. The quality of the video wasn’t good enough to see the perp’s face, but an expert could determine the exact height of the criminal using this technique. The expert goes in the store and measures everything that appears in the video--the height of the counter, the windows, the posters on the walls, etc. Then using basic math, you can determine the exact height of the perp. In this case, the perp was five inches shorter than Kevin. Without a doubt.
So what would you think if you were in prison and this was the evidence proving you innocent? You have rock-solid DNA evidence pointed at someone else as the perp. You have conclusive photogrammetry evidence showing you are five inches taller than the actual robber. If that were you, you’d think you are going home. But every court so far has denied Kevin’s claim. It’s all legal gymnastics—finding loopholes and, for example, saying it’s Kevin’s own fault because his attorney could have done all this investigation and discovery before his trials. But how can Kevin be to blame for his attorney being so bad? None of the courts think he’s guilty, but he’s still in prison with courts turning a blind eye.
5. Why does the justice system fight back so hard?
That’s one of the big questions I try to answer. Part of it’s cognitive dissonance—plain old human denial. As Upton Sinclair once said, “It’s difficult to get a man to understand something when his salary depends on him NOT understanding it.” Elected prosecutors and judges are brainwashed to always act “tough on crime” so they’ll get re-elected. This conditions them to be hard-asses and closed minded about everything. And they become mindless bureaucrats before too long in these jobs, and the job becomes like playing with Monopoly money—they lose their compassion and humanity. They dehumanize the defendants they are trying to send to prison. I did that as well when I was a prosecutor. I dive into the complicated mix of psychological factors and tell some more stories from my own experience in the book.
6. What are some changes you recommend?
There are several procedural changes that could be implemented, all of which are outlined in the book. An example is changing the way police do witness identification lineups. There are easy ways these lineups can be improved, but most police departments just ignore it and do the same old way they have been done for decades.
Another example is regulating snitch testimony (the kind that was used to convict Kevin Thornton). Further, we need to get rid of elections for judges and prosecutors and replace them with a nonpartisan merit selection process so they can be guided by their conscience rather than what will get them re-elected.
As much as anything there’s a need to educate prosecutors and police to get them out of their bureaucratic echo chambers. In many other countries, prosecutors and public defenders are forced to switch jobs every few years. That’s brilliant, because then each side understands the other. And this keeps prosecutors from losing sight that they’re dealing with real human beings that aren’t the cartoonish “bad guys.”
7. What’s a question I’m not asking you that I should be asking? And your response?
A good question is: “What can readers do to help?”
Besides learning more about the subject, you can join the Blind Injustice Facebook group to stay up to date on current developments and progress. You should also follow the Facebook or Twitter accounts of your local project like the Ohio Innocence Project. And, of course, consider donating to a local project. They are all nonprofits and strapped to do their work. Together, however, these groups have exonerated and freed more than 2,000 innocent people in the past 25 years, so this is important stuff.
If you follow your local project on social media, it will post ways to get involved—petitions to sign, GoFundMe campaigns to help people who are newly exonerated and will be walking out of prison with nothing but the shirts on their backs. The innocence movement is a new civil rights movement that is just beginning. We are going to transform the criminal justice system, but it will take a massive shift of public opinion, so getting involved and spreading the word is key.
Mark Godsey is an award-winning teacher at the University of Cincinnati, a top scholar on the issue of police interrogation, and one of the leading attorneys and activists globally in the Innocence Movement. In addition to his teaching responsibilities at UC Law, Professor Godsey co-founded and directs the Ohio Innocence Project, one of the most active and successful innocence organizations in the country. His book, Blind Injustice, A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions, was recently released in October.
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