Defenseless: Daniel Medwed on Incarcerated Innocents (re-broadcast)

Many followers of the highly publicized Adnan Syed case were delighted to see an innocent man set free after over two decades behind bars. But the case also highlighted some troubling aspects of American justice, or in Syed’s case, injustice. This week on Sea Change Radio, we speak to Daniel Medwed, a law professor at Northeastern University and an innocence advocate. His new book, Barred: Why the Innocent Can’t Get Out of Prison, takes an in-depth look at how difficult it is for wrongful convictions to be overturned in this country. We examine the Syed case, learn about the plight of Harry Miller, and expose an ineffective system that tilts the scales against the most vulnerable.

00:02 Narrator – This is Sea Change Radio covering the shift to sustainability. I’m Alex Wise.

00:17 Daniel Medwed (DW) – And I think if we have more empathy for criminal defendants, we realize they could be our brothers or sisters or mothers or fathers or kids. I think it will lead to a much better system.

00:29 Narrator – Many followers of the highly publicized Adnan Syed case were delighted to see an innocent man set free after over two decades behind bars. But the case also highlighted some troubling aspects of American justice, or in Syed’s case, injustice. This week on Sea Change Radio, we speak to Daniel Medwed, a law professor at Northeastern University and an innocence advocate. His new book, “Barred: Why the Innocent Can’t Get Out of Prison,” takes an in-depth look at how difficult it is for wrongful convictions to be overturned in this country. We examine the Syed case, learn about the plight of Harry Miller, and expose an ineffective system that tilts the scales against the most vulnerable.

01:32 Alex Wise (AW) – I’m joined now on Sea Change Radio by my friend Daniel Medwed. Dan is a professor at Northeastern University’s School of Law. Dan, welcome to Sea Change Radio.

01:43 Daniel Medwed (DW)  – Alex, it’s so great to see you and thanks for having me on your fascinating radio program. I appreciate it.

01:49 Alex Wise (AW) – Well, it’s a pleasure to speak to you about the work that you do. You have a new book out called “Barred: Why the Innocent Can’t Get Out of Prison,” and looking through a lot of your work through the last couple decades, it seems like a natural progression from a lot of the work that you have done in terms of prosecutorial misconduct, the issues surrounding prisoners and parole. Why don’t you explain the subtitle of this book, why the innocent can’t get out of prison? That could be the most frustrating part of our legal system.

02:25 DW – I think that’s fair to say, Alex. And so here’s what led to this book in many ways. I ran a small Innocence Project in Brooklyn, NY for about four years, becoming a full time academic. And time and time again, prisoners would write to us and they’d say, I’m innocent, I’m innocent, I’m innocent. And here’s this witness who can help prove it. And we’d go meet the witness. And maybe we’d have them sign an affidavit and we’d find other evidence of innocence. And then we think, OK, we have this evidence. Surely a prosecutor or a judge is going to listen to us. And if they find the evidence compelling enough, surely they’ll do the right thing and reverse the conviction and maybe give us a new trial. But repeatedly we were stymied. And part of the reason was cultural, that prosecutors didn’t want to admit it. Mistake, but part of the reason was really procedural, that the appellate and post conviction system really isn’t set up to course correct. After that presumption of innocence disappears through a conviction, there’s this firm presumption of guilt, and you can raise legal issues. But it’s really hard to raise new factual issues and present newly discovered evidence to courts. So that’s what sort of precipitated this project. We know why innocent people get convicted. Eyewitness miss ID, false confessions, police and prosecutorial misconduct, junk forensic evidence. That’s been well documented. It’s in the newspapers almost every day. What people seem to have less of a grasp on is why these procedural technicalities keep people in. And even though a lot of people seem to think in the popular imagination, the technicalities help free people.

03:59 AW – Yes, how would we define a technicality, like would new DNA evidence that exonerates a convicted felon, would that be considered a technicality? To me, that seems like that’s just new evidence.

04:11 DW – That’s just new evidence. You’re exactly right. And so a technicality would be something. Like there was a misspelling misspelling in your charging papers and therefore you should. Get you know. Released that doesn’t happen in part because there’s this doctrine on appeal that’s called the harmless error doctrine. It’s not enough to just show that something bad happened at your trial, that you were convicted and there were some errors. Down below, you have to show that those errors were not harmless, that they somehow affected the outcome. And in lots of these cases, Alex, what happens is appellate courts will look at the conviction and they’ll say, well, the prosecutor shouldn’t have said that during closing argument or the judge shouldn’t have made that ruling. But look at all of this other evidence of guilt, it’s overwhelming. So the errors down below are just harmless, no harm, no foul, right? And we’ll just out keep the conviction on the books. So it’s very hard to get out on a technicality and what’s surprising to me and this is part of my book and part of my research. You mentioned DNA evidence. You know, I think a lot of people, reasonable people, would think, hey, if there’s a person in prison. And there’s biological evidence remaining from the crime scene. And that evidence could be tested and put to rest any nagging question about guilt or innocence. That should be an easy thing to do, right? Like, it costs a couple $100? Like, let’s just test, you know, the seminal fluid from a rape kit or the blood spatter from a crime scene. But and even though every state has a law that provides for post conviction DNA testing. There are all these ticky tack procedural rules that make it hard to get. That you have to file your request within a certain number of years after your appeal, and sometimes you just don’t have the wherewithal to do that. You also have to show that you have a strong innocence claim, that this biological evidence, if it exculpated you, would actually prove your innocence. Like there are all these procedural prerequisites to even get a right to test biological evidence in your case. It’s amazing, frankly.

06:12 AW – Yes, I think a lot of people who are listening to this have followed the Adnan Syed case which on one hand, it’s, you know, it’s terrific that they were able to correct a wrong, but what really stood out to me was how long it took in light of all the resources that Adnan Syed had at his disposal of a hit podcast and HBO documentary. Like all these, I’m sure there are a lot of pro bono attorneys and nonprofits who are rallying to his cause. So it was a high profile case to say the least. And yet it took years and years for this to happen for him to be released from.

06:52 DW – You’re exactly right. I mean, in many ways, the Sayed case is a unicorn, right? And I think some people look at cases like that and they’ll say, hey, innocent people maybe have to be patient, but they’re always freed in the end. I look at that case. I look at that case, and I say exactly what you said, Alex. This guy had resources and certainly. Advantages that most prisoners don’t have. Most prisoners don’t have Sarah Koenig and the serial podcast in their corner, you know Rabia and all these other fantastic lawyers and HBO and the attention of the nation on their case. And even then, as you point out, it took 23 years for him to be released, and so just this week. Prosecutors announced that they’re not retrying him, which is great. So he’s not going to be retried. He’s not going back to prison, but that doesn’t necessarily mean he’s been declared innocent. He’ll still have to fight for compensation in Maryland. And another piece of this that I think is really interesting, the serial podcast. And correct me if I’m wrong Alex, I think it was 2014 that they did that. It was nine years ago.

07:57 AW – Yeah, that was a while ago it.

07:59 DW – Was a while ago, so like even after that podcast elevated side case and put the spotlight on it, it took another nine years and even then, apparently. The back story here is the reason why the case was overturned is under Maryland law, because Syed was convicted as a juvenile, he had a right to be resentenced because basically you can’t be sentenced to life without the possibility. Parole if you were convicted as a juvenile based on some Supreme Court precedent. So his lawyer just like asked the prosecutors, hey, we’re going to have to re sentence him eventually. Why don’t you look in the file and they looked in the file and they found all this evidence pointing to other suspects, so. It  wasn’t even a direct hit of the serial podcast. Or the attention of HBO. It was sort of an indirect, fortuitous break that the prosecutors looked in the file and found this evidence. This is a long way of saying, Alex, that these cases are not. Emblematic they are rare, and they suggest that they that these cases are just the tip of a much larger iceberg that we can’t identify.

09:06 (Music Break)

09:50 AW – This is Alex Wise on Sea Change Radio, and I’m speaking to a professor of law at Northeastern University, Daniel Medwed. So Dan, I want to turn to some of the other stories in your new book, Barred. But first let’s give us an executive summary of your view of where the systemic problems lie. There’s so many, but give us some of the the top line issues. If you could wave a magic wand and repair this system, where would your efforts be focused?

10:25 DW – Oh, that’s such a good question. So let me just outline three of them. So the first is that we have an unfounded faith in our adversary system. We believe that through this fight between the defense lawyer and the prosecution. Combat at trial, the truth will prevail. The problem with that is it’s predicated on the idea that it’s a fair fight, right? That the defense has the same resources as the prosecution and nothing could be further from the truth. Prosecutors have the advantage of the police as investigators defense lawyers don’t write so they have all this power, and so the first suggestion would be to even the playing field a little bit more. For instance, by requiring prosecutors to disclose more evidence to the defense before trial, second reform relates to the entire institution of the prosecutor. To begin with, we live in a system where trials are really a vanishing species. More than 95% of cases are resolved through plea bargains and we as a society kind of have this outsized perception of the role of the trial because you see a trial of, you know, OJ Simpson going back for years or Derek Chauvin just from last year. And we think trials happen all the time.

11:35 AW – And explain the incentives that prosecutors and defense attorneys have in plea bargaining. There’s a financial incentive to avoid trials, which are expensive, but there’s more to it, I imagine.

11:47 DW – You’re exactly right, Alex. So there are financial and practical incentives, so let’s just think that the system as a whole is strapped for cash. Defenders aren’t well paid. Prosecutors aren’t well paid, which means that your caseload is enormous. So you’re a prosecutor, you have tons of cases. You know that the way to be perceived as effective in your office is to have a high conviction. That’s for better or for worse. I think it’s for worse. That’s sort of the coin of the prosecutorial realm getting convictions. You’re a defense lawyer and you’re just engaged in triage. You’re just trying to keep your head above water. So both sides have an incentive to resolve a case through a plea bargain so that they can move on to the next case on the docket. And the way they can rationalize it is this. The prosecutor can say I’m giving the person a discount. I’m offering the person three years when they’re facing 10 years to save us time. So it’s kind of a win for the defendant and it’s a win for us and the victim doesn’t have to testify. Defense lawyers can look at that same deal, and they’ll say “hey, I’m getting a good bargain for my client.” My client could go to trial and risk going away for 10 years, but I’m getting him three so I’ll count that as a win, even though it’s not an acquittal, it’s a conviction. It’s a win. So and even judges Alex benefit from this because their docket is is completely overburdened as well and judges are often evaluated based on their disposition rate. Their despo rate is is called their rate of disposing of cases quickly. So everyone has an incentive, financial and practical, to sort of wrap up these cases in a bow and sort of put them as I I use this analogy in the book a lot, you know, to put it on the conveyor belt on the assembly line, and only later you kind of check it for major errors and then it’s dispatched to the annals of case law. The second piece of it is really about prosecutorial power. Prosecutors have the power to offer a plea and to decide what what is contained in that offer. That’s tremendous power ’cause if you have a system that results in 95% plea bargains and you have one side sort of having unilateral control over whether to even initiate the process. In other words, prosecutors don’t have to make a plea offer. They can take a case to trial. It’s totally up to them. Judges don’t have any authority to, like, demand that they plead out a case. So they have all that power. And because of the discrepancy in the plea offer itself versus your post trial sentence, that difference between being offered three now and being offered 10 later, it means that prosecutors can easily coerce innocent people into taking the deal.

14:29 AW – Also, the incarceration system varies so greatly state by state. And if I’m here in California and I’m facing a 10 year plea, there’s a decent chance that I would actually only do three years and maybe go to a fire camp after a year or two of processing as opposed to, if I was looking at the same crime and I don’t know Mississippi, I imagine it would be looking at being behind bars a lot longer.

14:57 DW – You’re absolutely right.

14:59 AW – And how does that go into an attorney’s calculus?

15:02 DW – You know, that’s a really important question, Alex. I think it depends on how skillful the attorney is and how aware the attorney is of the system. But I think you’re right. You take California as an example. I think if lawyers in California are aware of the fact that a 10 year sentence isn’t really a 10 year sentence because of the way you are credited for good time served and how you might actually get transferred to a fire camp. Or something that that will be part of the lawyers advice that’s given to the client. So the way the ethical rules work in this regard is, defense lawyers, here’s something known as client centered advocacy. It’s always the client decision, so the role of the lawyer is just to provide the best information to her client so that the client can ultimately decide whether to take the deal. You know, in that situation one would hope that the lawyer is informed enough to basically say “10 years isn’t 10 years,” because that would be a form of client centered advocacy. But my fear is sort of the opposite, which is because of these incentives that even defense lawyers have, to resolve these cases quickly, there’s an old saying in the courts, “meet ‘em and plead ‘em.” There are a lot of cases where you actually meet your client on the day they plead guilty. Like, it’s appalling, right? Because of these incentives, I I often worry that defense lawyers kind of push. Down the throats of their clients.

16:23 AW – And if there’s no connection between the client and the attorney. Until you’re at the court, you can see a lack of empathy from the from the attorneys standpoint, right? Like, this is just another number to me. I don’t have any real human connection to this case.

16:40 DW – You’re absolutely right. And in fact that’s one of my closing sentiments in this book which is I talk about all these legal reforms, sort of micro, micro level reforms to make the appellate and post conviction process more equitable and then I have a few macro level reforms like innocence commissions in every state and progressive prosecutors. But then at the end I say, well, you know, systems are only as good as the people who are involved with them, and maybe the only way to really improve things is to sort of improve the human actors who have power. In the system, and that’s all about empathy, as you point out, Alex. It’s like and part of the goal in this book is to personalize these stories. We talked earlier about Adnan Syed. That’s a real person. I think one of the reasons why that case gained such traction was that serial humanized him and humanized his story so that people kind of identified with him and were rooting for him. And I think if we have more empathy for criminal defendants, we realize they could be our brothers or sisters or mothers or fathers or kids. I think it will lead to a much better system that that’s my goal, too.

18:00 (Music Break)

18:58 AW – This is Alex Wise on Sea Change Radio, and I’m speaking to Daniel Medwed. He’s a law professor at Northeastern University. Could we take a step back even further and look at the systemic issues that have evolved over the last 30-40 years, I’m think? Taking the politicization of “tough on crime” legislation where politicians are put in a position where if they don’t take these draconian stance, is their pilloried for being soft on crime or weak or they are almost advocating for anarchy, the moral majority, has taken control a little bit over the right wing of this country and since we were in high school has really shifted things. And I’m not saying that things weren’t worse in the 50s and 60s for defendants, I’m sure. But I can’t help but think that the bigger system problems. This attitude, the tough on crime stance and also the advent of and popularity of 24 hour cable news being a part of that where there’s. This fear where I I was just reading an example of crime rates and public perceptions of crime rates are that it goes up every year and over this and it’s gone. It’s only gone up like 7 times over the last 30 years, and yet every year people think that it’s worse and worse and worse, and that can only be because so much of the bad news is highlighted on their television screens.

20:24 DW – That’s such an important point. I think you’re right. So the combination of tough on crime which became you know, dates back to really Nixon in that era but really became popular in the 80s and 90s, coupled with the 24 hour media cycle and clickbait, I think you’re right, has created this sort of perfect storm where the case is that people talk about are the outliers, you know, the serial killers or the serial rapists. And you know, especially heinous and violent. And that creates a perception that is divorced from reality. But of course, perception becomes one reality, that crime is everywhere, crime is rampant, and that the good guys, the police and prosecutors are outmanned and overwhelmed. That’s not the reality, right? Violent crime doesn’t go up, as you point out, consistently. It ebbs and flows for a variety of reasons. The political affiliation and values of your local District Attorney that doesn’t necessarily correlate directly with your perception of, you know, rises in criminal activity. I saw some study that talked about how, you know, crime rates have gone up recently in a Republican dominated districts actually you know, so there’s sort of this counter intuitive. Idea that being tough on crime.

21:38 DW – And will reduce your crime rate. So one thing that’s happening that’s positive just to throw like a little bit of lightness into this or or you know optimism.

21:47 AW – And solutions.

21:49 DW – And solutions, right and I know you’re in San Francisco, Alex, so this might be a little bit of a sore spot with with Chesa Boudin, but the growth of the progressive prosecution movement since 2014. It’s really associated with the murder of Michael Brown in Ferguson, MO, the rise of Black Lives Matter in 2014. And the sort of related rise of progressive prosecutors, prosecutors who take the objective of being ministers of justice very seriously and not just prosecuting people and imprisoning them, has resulted in really interesting prosecutors taking the helm in a number of cities with some very positive results. So here in Boston, where I am and where you grew up, Alex, we have had a progressive prosecutor named Rachel Rollins, who’s now our use attorney and she implemented a number of pretty controversial policies about declining to prosecute certain low level crimes and various other things a lot of data suggests. That those policies lead to a reduction of crime under her watch, even though her opponents have said, oh, violent crime is on the rise, and so on. So one positive thing is this progressive prosecution movement, though, and This is why I alluded to what’s happening in San Francisco. There is that blowback, a conservative blowback. To the progressive prosecution movement, which at least with Chesa Boudin resulted in him being recalled, you know, earlier this year.

23:12 AW – So, Speaking of the Black Lives Matter movement, why don’t you give us a snapshot of Harry Miller who was convicted wrongfully in Salt Lake City when he wasn’t even in Salt Lake City.

23:27 DW – Yeah, let me, I’ll go into this. It’s really appalling, Alex. So here’s what happened. In 2000, a white woman was robbed in a 7-11. Someone took $50.00 from her and she described the perpetrator as a black man in his 20s. OK, there were no suspects for a long time until a couple of years later, there she is walking down the street and she sees a black man in Salt Lake City. Yes, uh, a 47 year old black man named Harry Miller, she says “That’s the guy!” And the clerk from the 711 then sees him and says, I remember him. He frequented the store. He was a patron back in 2000. So I think the black population of Salt Lake City is something like 2.6%. I looked this up right? It’s very, very small and that could cut both ways. If it’s a really small population, you think that people might be better able to identify across races because there aren’t so many people of other races. They might stand out more, right?

24:30 AW – But then there’s more implicit bias, probably.

24:33 DW – There’s more implicit bias. Because you’re not familiar with people of other races, you might be more prone to mistakes. It’s known as cross racial misidentification, and it’s a real problem in the criminal justice system. So Harry Miller is accused of this robbery. Now get this, Alex, this is what’s amazing, he says “Well, you know what, I didn’t do it because I was in Louisiana in 2000. By the way, Harry Miller was in Salt Lake City to visit his brother. He didn’t live in Salt Lake City. He was just visiting, OK? He said “back in 2000, I was in Louisiana. And you know what, I remember that I was in Louisiana during the time of that crime because I had just had a stroke and I was housebound. I was in bed. I needed round the clock medical attention. So, I mean, I wasn’t in Salt Lake City. I was in my friggin’ bed in Louisiana.”

25:23 AW – And he had receipts to show this.

25:25 DW – He had a nurse who came forward to say I saw Harry Miller in Louisiana in his bed when I was tending to him the day before the robbery in Salt Lake City. But this is where things get absolutely Orwellian.

25:39 AW – Harry Miller got to get out of bed and fly to Salt Lake City to steal $50.00 from a woman in 7-11, according to the prosecutors. Thank you.

25:46 DW – You know what? You’re laughing. That’s what they argued. Wow, because Harry Miller didn’t have any proof of his whereabouts on the actual day of the crime. The prosecutor’s theory was exactly that he got on a plane Louisiana, went to Salt Lake City, robbed a woman of 50 bucks and then got back on a plane that night ’cause he was seen in Louisiana the next day. OK, that was their theory. So case goes to trial, believe it or not, they take this case to trial. And Harry Miller testifies, I was in Louisiana. Time, but the defense lawyer didn’t call other alibi witnesses from Louisiana. There were all these people from his hometown who could say he was there, but the lawyer didn’t bother to get him out there. So Harry Miller was convicted, and he was sentenced to five years to life in prison in Utah a few years later. A group I was involved with called the Rocky Mountain Innocent Center, which investigates and litigates these cases, sort of worked to overturn the case and after 4 1/2 years in prison he was freed because eventually people realized this was an absurd case, but he still spent 4 1/2 years behind bars in Utah under those facts. And he then sought wrongful conviction compensation. You know you spent 4 1/2 years doing hard time in Utah when you were housebound in Louisiana at the time of the crime. You know one would think you should be entitled to a lot of damage award a huge damage award. He got $124,000 in change. That’s it. Under the Utah law, that was. Basically the maximum that he could get for his suffering. So I think that’s a really harrowing cautionary tale about not just how easy it can be to get convicted. And a lot of it, of course, it’s easy if you happen to be a person of color. Some of the statistics suggest that black people are seven times more likely to be wrongfully convicted than white people. So it’s easy to get convicted on the front end, and contrary to popular opinion, it’s very difficult to get out on the back end. Even when you have lawyers. Fighting for you and are pointing out the absurdity of the case.

27:52 AW – Well, the book is called “Barred.” He’s a professor of law at Northeastern University, Daniel Medwed. Dan, thanks so much for being my guest on Sea Change Radio.

28:01 DW – My pleasure, Alex. Thanks a lot.

28:17 Narrator – You’ve been listening to Sea Change Radio. Our intro music is by Sanford Lewis and our outro music is by Alex Wise. Additional music by the meters, Richie Havens and Bruce Springsteen. Check out our website at to stream or download the show or subscribe to our podcast. Visit our archives there to hear from Bill McKibben, Van Jones, Paul Hawken and many others. And tune into Sea Change Radio next week as we continue making connections for sustainability. For Sea Change Radio, I’m Alex Wise.