E34 -

Clark Neily and Ben Jones join us to discuss the the biographical legal drama, Just Mercy.

Hosts
Landry Ayres
Senior Producer
Guests

Clark Neily is a senior attorney and the Director of the Center for Judicial Engagement at the Institute for Justice. Neily litigates economic liberty, property rights, school choice, First Amendment, and other constitutional cases in both federal and state courts.

Ben Jones is the Assistant Director of the Rock Ethics Institute at Penn State.

Summary:

Bryan Stevenson was a young lawyer from Harvard when he founded the Equal Justice Initiative, a non‐​profit law firm in Alabama, dedicated to defending the poor, the incarcerated, and the wrongly condemned. One of Stevenson’s first clients was Walter McMillian, a Black man who was sentenced to die for the murder of a young white woman that he didn’t commit. With Michael B. Jordan portraying Stevenson and Jamie Foxx as Walter McMillian, our movie in focus today, Just Mercy, tells a heartbreaking story of how the US justice system carries out the death penalty.

How has society changed its’ views on the death penalty? How has the work of the Equal Justice Initiative helped inmates on death row? How does our criminal justice system treat death penalty cases?

Further Reading:

Transcript

0:00:03.2 Natalie Dowzicky: Welcome to Pop & Locke. I’m Natalie Dowzicky.

0:00:05.6 Landry Ayres: And I’m Landry Ayres.

0:00:08.3 Natalie Dowzicky: Bryan Stevenson was a young lawyer from Harvard when he founded the Equal Justice Initiative, a non‐​profit law firm in Alabama, dedicated to defending the poor, the incarcerated, and the wrongly condemned. One of Stevenson’s first clients was Walter McMillian, a Black man who was sentenced to die for the murder of a young white woman that he didn’t commit. With Michael B. Jordan portraying Stevenson and Jamie Foxx as Walter McMillian, our movie in focus today, Just Mercy, tells a heartbreaking story of how the US justice system carries out the death penalty. Here to discuss this biographical legal drama is Cato’s Vice President for Criminal Justice, Clark Neily.

0:00:43.4 Clark Neily: Hi, good to be here.

0:00:44.9 Natalie Dowzicky: And the assistant director at the Rock Ethics Institute at Penn State University, Ben Jones.

0:00:50.1 Ben Jones: Thanks, Natalie. It’s great to be here.

0:00:53.1 Landry Ayres: One of the things this movie emphasises is the aspect of the death penalty as a communal act of sorts with communal effects. There is the pressure of the white community on the district attorney to maintain this conviction. There is the culture of fear that the Black community lives under, which one of the girls that Bryan Stevenson meets when he visits McMillian’s family and friends says makes her feel like they put them all on death row. And there is the prison community that is built by the inmates who bond during their time incarcerated together. How does a death row conviction or even just the threat of it impact others besides the convicted or assumed individual, their community, family, institutions, etcetera?

0:01:48.3 Ben Jones: The death penalty has far‐​reaching effects beyond just those that are sentenced to death, find themselves on death row, the death penalty is… It’s a message, it makes a statement about what lives in society matter, which lives in society don’t matter, which lives are disposable. And that’s something that really comes out through Stevenson’s work, is you look at the death penalty and how it’s been applied in this country. It’s been riddled with racial disparities throughout its history. You go back to the Antebellum Period, there were crimes that, long list of crimes that slaves and Black individuals could be sentenced to death for, and white individuals could not be sentenced to death for. And so it’s that history that forms the background for the story that Stevenson tells in his book, and it’s also recounted in the movie.

0:02:43.4 Ben Jones: And one thing that Stevenson does an excellent job in capturing is that there are these ideas that we have about the death penalty and they get… It’s seen as justice, and these debates are made in the halls of legislatures. But then when you actually confront the reality of it, everyone is being hurt by it. You have obviously the people on death row and the suffering that they’re going through, but you have the family members, you even have the guards, you have… Stevenson, when he describes these executions, no one looks like they’re enjoying this, the people that are actually forced to carry it out. And so it’s this tragic absurdity that we sort of have had in place for a long time, and Stevenson does an excellent job in bringing attention to it.

0:03:39.7 Natalie Dowzicky: I also think, Landry, that you bringing up the other people involved as far as the DA and the white community, especially the way it’s portrayed in this movie, there’s an interesting dynamic at play between the prosecutor and the judge that presides over the… I think it’s over the… The judge from Alabama who’s presiding over the original appeal to get the case reheard. And I think it also takes a toll on those communities, too, but in a different way. And I guess what strikes me as this very odd relationship between the prosecutor and the judge and the prosecutor not wanting to be seen as having been incorrect about McMillian and wanting to uphold his… The prosecutor wanting to uphold his reputation, even when he could see or he could see that there was strong evidence that they had gotten it wrong. And I was wondering if we could speak a little bit about that dynamic, too.

0:04:47.2 Clark Neily: Well, I wanna make two points. The first is that it would be incredibly mistaken to suggest or to suppose that as long as it’s not a death penalty case, and as long as there are no racial dynamics, then everything is fine. What’s really horrifying, I think, about our system is that it’s fundamentally rotten and broken regardless of who you are or the nature of the crime. Everything from just misdemeanours, the way we process misdemeanours in this country is a travesty, the way we process felonies in this country is a travesty, and the way we do death penalty cases is absolutely a travesty and a tragedy. And so what I would say is that we have a baseline of awfulness that then gets even more awful if there are racial dynamics involved. And the reason I make that point is nobody should feel that you can just let yourself off the hook if you say, “Well, listen, in my heart, I know that I’m not a racist, and in the community where I live, I don’t see any example or any obvious manifestation of racial animus in the criminal justice system, so everything must be fine.” Absolutely not. Everything is not fine simply because you personally are not racist or you believe that you’re not, and you don’t see racism in your system.

0:06:04.8 Clark Neily: So, two things are true. First, there are very significant racial dynamics on our system and injustices, and our system feature is a wide variety of, I think, inexplicable and unjustifiable racial disparities, but it is also broken separate and apart from all of that. That just makes everything worse. The point that is… Another point that I wanna make that’s so important is that the way our system is designed is so mind‐​boggling in the sense that, in any setting where you’ve got people who are subject to a variety of temptations to cut corners, take shortcuts, to avoid safety mechanisms and guard rails, you would not let people depart from those guard rails and those safety mechanisms without at least putting some personal skin in the game.

0:06:53.8 Clark Neily: And that’s one of the biggest things, I think, people don’t realise about our criminal justice system, is the people who are making these decisions, who to charge, what cases to take to a grand jury, what constitutes enough evidence to proceed, they have zero personal skin in the game. If they make a mistake, if they convict the wrong person, if they put the wrong person on death row and they execute the wrong person, everybody involved goes home to have dinner with their family that night. That, I think, is one of the most horrifying things about the system, is that we allow people to make extraordinarily high‐​stakes decisions, to cut corners and to take shortcuts, and they get to do all of this without having even an ounce of personal skin in the game.

0:07:30.5 Clark Neily: You would not do that in any other setting, where people were dealing with matters of life and death and taking the lives of other people into their own hands to allow them to make such high‐​stakes decisions without putting even an ounce of personal skin in the game so that they are exposed to some risks, personal risks, if they are wrong is just lunacy in my view.

0:07:49.6 Ben Jones: And that’s evident in the movie, where you have Sheriff Tate who led the shoddy and racist investigation against Walter McMillian, and he kept getting reelected to office and remained in there for decades after that conviction. That’s just one example, and there’s so many others across the criminal justice system.

0:08:08.8 Landry Ayres: It’s also exemplified in Tommy Chapman, the DA, who has these perverse incentives that eventually, luckily, Bryan Stevenson’s character is able to call him out on when he goes to visit him and says the only thing that he has at risk is his reputation. And I wonder, even if that is at stake, or at least how much it is at stake, if anything, it is the one thing that he has skin in the game. But at the end of the day, when the stakes are as high as they are, it is really nothing relative to everyone else’s stake in a case like this. But I think that comes from his perverse idea of what his job is, which he says is to defend the integrity of a jury’s conviction, which Bryan Stevenson combats at the end finally as incorrect. He says his job is to achieve justice. Is that emblematic of what district attorneys feel like across America today even? Is that what they think their job is? And where do you think that idea comes from?

0:09:15.4 Clark Neily: Well, I would say this. We have to be careful not to overgeneralise and to assert that everybody thinks exactly the same way because it’s not true. On the other hand, if you’re asking as a group do prosecutors tend to be extraordinarily resistant to admitting the possibility that they have made a mistake? , the answer is absolutely yes. And we’ve seen, even for example, Kamala Harris and her office, when she was a prosecutor in San Francisco and attorney general fought tooth and nail against people who are trying to exonerate themselves after having been convicted, that is absolutely characteristic of prosecutors’ offices from one end of the country to the other. So, that is absolutely a feature of our system. And on some level, it’s understandable. Accusing somebody of killing another human being, of murdering another human being is an extraordinary accusation with extraordinary consequences. And to suppose that you might have been wrong in accusing somebody of one of the worst things that a human being can do, convicting them of a crime they didn’t commit, and exposing them to the possibility of being put to death by the State when you were wrong all along, it’s understandable on one level that people would be extraordinarily reluctant to admit the possibility of mistake. But in the face of all the evidence we have that mistakes happen, it is nevertheless absolutely culpable.

0:10:41.7 Ben Jones: I think it brings attention to how much power DAs have in our criminal justice and political system, generally. These are typically are not the races that a lot of people put their attention on around election time, but who gets in and who’s elected as DA can just make a world of difference for the wrongfully convicted and others who are facing criminal sentences. And you can look at… One case that has gotten a lot of attention recently is Curtis Flowers, who was a death row inmate in Mississippi, and the DA there, Doug Evans… There were six murder trials that went on, and he kept persistently trying to get the death penalty against Mr. Flowers, despite the lack of evidence and a compelling case that he did it. But then you have other examples across the country, where new district attorneys come in, they set up conviction integrity units, and they go back and they look at old cases, and try their best to uncover injustices that were done and take steps to release people who are innocent. And so these DA races make a huge difference, and so often you see these exonerations happen because a new DA comes in who’s not so stubborn about protecting a shoddy conviction.

[music]

0:12:06.3 Natalie Dowzicky: How often does something like police trying to get other inmates to lie about what they have heard amongst their fellow inmates in order to get convictions? Like this idea that you’re going to an inmate and you’re offering them a lighter sentence, or you’re offering them some type of perk in order to lie about someone else’s case, I couldn’t tell if that was something that’s for dramatic effect, or if that’s something that’s seriously rampant.

0:12:35.8 Clark Neily: Well, the short answer, of course, is that we can’t say with any precision because that is not the kind of thing that anybody would document and would, on the contrary, go to extraordinary lengths to try to cover up. What we do know is that, from time to time, there will be these extraordinary scandals. One has been going on for years in Orange County, where we know that the sheriff’s office there, which is in charge of the jails for Orange County, routinely, routinely pressured jail house snitches to lie to inculpate cell mates and so forth.

0:13:15.9 Clark Neily: So, we certainly know that it happens. We also know that the government will go to extraordinary lengths to try to hide the fact that it happens. I would say this, I doubt that there are a large number of law enforcement personnel, police and prosecutors, who deliberately set out to frame people for crimes that they know they didn’t commit. What I think almost certainly happens a lot is that they reach sometimes rather snap judgements about who’s guilty, and then they will build a case around that presumption, remaining blind oftentimes to increasing amounts of evidence that their initial impression about the case and who was guilty was incorrect. And I think, unfortunately, it is fairly common that one of the tools that they use to help build a case against someone who they have concluded, oftentimes on the basis of a rather snap judgement, is to involve, they’re referred to professionally by criminal defence attorneys as snitches, jail house informants to help build the case.

0:14:20.2 Clark Neily: Now, think about human psychology. You are confident that you’ve got the right person, you are confident they’ve done a terrible thing and ought to be taken off the streets. On some level, you may realise that the case is somewhat shaky, and so you may grasp at straws, you may turn a blind eye to certain kinds of unsavoury investigative techniques, if that’s what it takes to get this bad actor off the streets. As I referred to a moment ago, the thing that’s so scary about it is that all of this is done in an environment where the people making these decisions have zero skin in the game. Nothing will happen to them if they turn out to be wrong, nothing almost… Without exception, nothing will even happen to them if they are discovered to have engaged in demonstrably illegal conduct in terms of pressuring people to inculpate others and feeding them facts so they can sound more credible. It’s astonishing what police and prosecutors get away with in these cases when they engage in blatant misconduct. The short answer is we don’t know how much it happens, but we know it happens more than sporadically.

0:15:14.1 Ben Jones: We all fall victim to confirmation bias, that’s just how humans are constructed. But what’s important is, as I said earlier, setting up certain guardrails to protect against that. And so the Innocence Project, other organisations, they have long list of reforms to help protect against law enforcement misconduct and confirmation bias sending the wrong person to prison, but what’s frustrating is there’s often a pretty strong resistance from law enforcement for putting in place some of those reforms. In terms of your specific question about how common is this type of misconduct, we don’t have a firm answer, but I guess the data that we do have is there’s the National Registry of Exonerations, which keeps track of every exoneration in the US since 1989. And so they’re able to look at all those cases and see, okay, what was the causal factor for why the wrong person ended up in prison. And in over half of those cases, official misconduct or perjury or false accusation was one of the reasons. So, at least among those cases where we see wrongful convictions, these factors are quite common.

0:16:31.8 Clark Neily: Yeah. I wanted to add something that I discovered in the course of my work that I find absolutely horrifying, it’s actually a felony under federal law to provide a witness with a thing of value in exchange for their testimony. So, if you’re a criminal defence attorney and you’ll pay for somebody to stay in a hotel room or you give them some money so they can get a meal while they’re on the road coming to testify, that’s actually a felony. The one class of person to whom that does not apply, or whom the courts have held that that does not apply is prosecutors. Prosecutors are allowed to bribe witnesses. And I’m gonna use the word “bribe.” They’re allowed to give them cars, homes, cash, and they’re allowed to bribe witnesses with the one thing that’s even more valuable than money, which is freedom. They can take years off your sentence, they can agree to drop charges that they would otherwise have pursued against you.

0:17:20.9 Clark Neily: And the thing that’s so insane about that is that all of the reasons that prompted Congress to make it a federal felony to give a witness a thing of value in exchange for their testimony apply equally when prosecutors do it. It’s not as if somehow when a prosecutor bribes a witness, their testimony is less prone to manipulation or that they’re gonna be more truthful, right? In some sense, that’s our system on a plate. We have a system that recognises that when lawyers are allowed to pay witnesses for their testimony, that is in effect a bribe or can be a bride. And then we turn around and allow prosecutors to do it and pretend as if all the concerns that make us understand you shouldn’t allow lawyers to do that, somehow they just go out the window when it’s a prosecutor doing it.

0:18:02.9 Clark Neily: And if you ever wanted a snapshot of the American criminal justice system, I would submit that that’s a really powerful one, that we’ve got a system in which you yourself would be prosecuted for giving a witness a thing of value in exchange for their testimony, but when the government does it, it’s just peachy keen and they do it all the time. They do it. That one we know happens all the time, witnesses are given a thing of value by the government. And I just think that’s absolutely shocking and dismaying. And Alan Dershowitz, the famous criminal defence attorney at Harvard Law School, summarises it beautifully. He says, “The problem with allowing anybody to bribe a witness is that they will not just sing, they will compose.

[music]

0:18:44.0 Natalie Dowzicky: I think another thing that this movie brings up is the larger discussion about the death penalty and maybe how many inmates on death row are actually innocent. And I was wondering what the impact of we can say this film or the book that preceded it, or even the work that EJI does, has impacted the larger discussion about the death penalty. How has our views of the death penalty, as a society, changed in the last, let’s say, three, four decades? How is it continuing to change? And what has been the status of, let’s say, from a federal level, ’cause each state has it a little bit differently, of how Americans view the death penalty?

0:19:27.0 Ben Jones: If you look at the development of the death penalty in US history, the Supreme Court struck it down in 1972. And when the Supreme Court took that action in Furman v. Georgia, it was seen as in line with globally what was going on. And you really see, after World Ward II and the atrocities that happened during World War II, there was… A number of countries started to move away from the death penalty and came to the conclusion, “Maybe this isn’t a power that we should give the state.” And so you have the… The US strikes it down in ’72, and that’s sort of seen as, “Oh, okay, all these Western nations are getting rid of the death penalty.” US got rid of it, and Stevenson wouldn’t have been doing his work, defending people on death row, if that decision had just stayed in place.

0:20:21.0 Ben Jones: But there was a strong reaction to the Furman decision in ’72. And you have a lot of groups that came together that basically did their best to bring back the death penalty. And four years later, it was brought back in Gregg v. Georgia, which basically said, “If you’re a state and you wanna bring back the death penalty, within certain constraints, you can do it.” And you see a number of states bringing it back. And remember, this is a time when there’s rising crime rates in the United States, and politically the death penalty becomes seen as the badge that a politician can wear, saying that “I’m tough on crime.” And so it just becomes, if you’re Republican or Democrat, this is something that you support.

0:21:07.0 Ben Jones: And so, during the 1990s, during the Clinton administration, you’d have bills that would pass Congress which would expand the federal death penalty, with Democrats and Republicans supporting it. And so you just have more states bringing back the death penalty, you have, in the ‘90s, increases in executions, increases in death sentences, support for the death penalty reaches around 80% in the mid‐​90s. And at this time, it just seems like the US is like, “This is just… The death penalty is as American as apple pie.” And so you really start seeing the shift around the late ‘90s and the early 2000s. And it’s due in large part to these cases of innocence that are starting to get attention, like the Walter McMillian case on 60 Minutes, where Stevenson is bringing forth this evidence, compelling evidence, that McMillian is innocent. And this was just one of a number of cases that are starting to get attention. You have DNA technology is starting to be used more, the public is becoming more familiar with that. And there’s this realization that, “Hey, we may be executing innocent people if we keep this in place.”

0:22:18.5 Ben Jones: And so you go from the mid‐​90s, where death penalty is booming in the United States, to a decade later where you start seeing states seriously considering getting rid of the death penalty. And you start seeing dominoes fall with New Jersey, New York, New Mexico and others that start getting rid of it in the 2000s and into the 2010s. And so over the last 15 years, you’ve had… Virginia is on the verge of getting rid of the death penalty, so I won’t count Virginia. You count Virginia, you’re up to 11 states in the past 15 years that have gotten rid of it. Executions have declined dramatically, death sentences have declined dramatically, and where we are today is you basically… There are some states that execute people a lot more than others, but even when you look within those states, it’s a small number of counties that are primarily driving the death penalty, so 2% of counties are responsible for a majority of death sentences and the majority of executions.

0:23:15.1 Ben Jones: And that’s basically what we’re left with. There is this dramatic shift against it, and I think that’s a testament to how powerful the work of Stevenson, his organisation, as well as others, has been in really shifting the tide on the death penalty debate in the United States.

0:23:34.5 Clark Neily: I wanna make an uncomfortable point here, and that is that it’s tempting sometimes in discussions of this nature to act as if this is a really simple issue, and if you simply were sufficiently enlightened and your heart was in the right place, then it would be really easy and we would just abolish the death penalty. I myself am opposed to the death penalty for a number of reasons, but I don’t think that it’s necessarily an easy issue. And one of the things that we often don’t talk about in discussions like this is the absolute savagery and the cruelty of some crimes that are committed. And this touches a very deep and primal part of many people’s psyches, particularly if it’s done, for example, to someone you love.

0:24:16.9 Clark Neily: I think that two things are true. On the one hand, one ought not lightly dismiss the question of what is an appropriate response on the part of society when someone has committed an incredibly savage and cruel crime, because they happen. And what is the appropriate response for society is not an easy question, it’s a hard question. The second point I wanna make is that I suspect that increasing opposition to the death penalty comes from two sources. One source, I think, is that as a matter of conscience people feel that it’s never appropriate to repay one act of cruelty with another. And second, because even if one believed that the death penalty could be an appropriate punishment in response to certain crimes, it may be that the government is simply too incompetent to carry it out reliably. In other words, you simply would not trust the government to get it right enough times, or reliably enough that you would feel comfortable allowing them to impose that sanction.

0:25:30.1 Clark Neily: And I’ll just say one more thing. One of the things that’s so horrifying when you read “Just Mercy” and when you watch the movie, is that you would think that a death penalty prosecution would be extraordinarily meticulous and careful and conducted with tremendous amount of professionalism and oversight. And what you come to realise is that that may happen sometimes, but that’s absolutely not the norm, and it is astonishing how utterly cavalier and sloppy some of these cases are handled. And when you see one up close, as Bryan Stevenson walks us through in this book, at least for myself, it leads you with this sense of horror that anybody’s life could be taken and they could be put to death on the basis of such an astonishingly sloppy and cavalier process. It’s absolutely mind‐​boggling.

0:26:22.0 Ben Jones: And I have just two quick things to add. One is, when you were talking about people not trusting the government to carry this out, a quote from George Will, the columnist, came to mind, and he says, “The death penalty is a government program, so skepticism is in order.” And I think that’s a view you increasingly see among small government types who are skeptical of the death penalty. Another thing, and I think this is a really important point that Stevenson has made, is when you look at the history of the death penalty, the racial disparities in it have been there since it began, and disproportionately being used against Black individuals.

0:27:09.5 Ben Jones: You actually had laws in place that said, “If you’re Black, you can get the death penalty for this. If you’re white, you can’t get it for this.” And, in fact, when you look at in the early 20th century, when lynching started to go down, you actually had a rise in executions in the United States. And so there was this shift away, “We won’t lynch Black individuals, we’ll just execute them instead,” usually in very quick trials with no due process. And when you look at that history and you continue to see the racial disparities that we have today, that makes it especially problematic. If Germany, after the war, still had the death penalty and it was disproportionally executing Jewish individuals in the State, we would be horrified by that. That would be like… That would not be tolerable, yet we have a history of racial terror in the United States where the death penalty and other forms of criminal justice have been disproportionately used against Black individuals. And we continue to see these racial disparities, which makes it especially morally problematic in the context of the US.

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0:28:20.6 Natalie Dowzicky: Now, this might seem like a challenging question, ’cause as we’ve discussed there’s a lot of different factors at play that are making this system, especially the way the US carries out the death penalty, just kind of a mess. But do either of you think there are specific actions that could bring the needle a little bit closer to actually being a just system that’s fair to everyone? Is there something that’s incredibly blatant that could be a fix that we could see in the next 10 years? Especially since it seems that the support for the death penalty has gone way down, is there any solutions that would help alleviate the various pressures that the system is seeing?

0:29:04.9 Ben Jones: Well, I’ll start with the death penalty, ’cause that’s… The death penalty, it could be… I understand why emotionally it can be a difficult issue for folks. But in terms of policy and how do you fix the death penalty, it’s a pretty straightforward policy solution in terms of you can get rid of it. Lots of states have gotten rid of it, the sky is not falling, crime has not exploded. It’s pretty easy to do without negative consequences, and a lot of positive consequences in terms of making sure you’re not executing innocent people and the like.

0:29:39.7 Ben Jones: And in terms of, there is the federal death penalty and then a number of states have the death penalty. At the state level, states can pass their laws, they can get rid of it regardless of what the federal government is doing, and a number of states have done that and they can continue to do that. The federal government also had… There’s a federal death penalty, and so when Trump was in office, they were very active in carrying out executions, especially before the end of his term. And so with a new administration in there, they have a lot of power to put a moratorium on executions, to stop seeking the death penalty, to stop executing folks. So, in terms of the federal death penalty, all the executions we’ve seen in recent years, that can come completely to a halt with the new administration.

0:30:29.7 Ben Jones: It’s not going to end tomorrow, I don’t think there’s going to be a Supreme Court decision in the near future striking down the death penalty, but I think there can still be a lot of progress that is made at the federal and the state level that continues to chip away at it.

0:30:49.5 Clark Neily: Yeah, I think part of the concern may be, and maybe the reason for the hesitation in answering the question, is that I suspect none of us want to sound like we are trying to help the government figure out some way to do the death penalty better, when in fact we think it shouldn’t be doing it at all. But I will say there are three hallmarks, at least, of our criminal justice system generally, and the application of the death penalty specifically, that tell you what a completely un‐​serious process it is and how utterly uncommitted it is to getting it right.

0:31:25.9 Clark Neily: The first is the quality of defense council in capital cases. Sometimes it’s very, very high, but sometimes it’s extraordinarily low. And if you cared about making sure that you are not going to take the life of an innocent person, given how few cases, how relatively few capital cases there are, it would just simply be… It would be a willingness to commit the resources that are necessary to ensure that every defendant in a capital case has high quality representation to hold the government to a very high standard and to make sure that corners are not cut and the kinds of jaw‐​dropping misconduct and errors that are featured in Just Mercy, that the government doesn’t get a free pass and all that stuff simply because you don’t have high quality council on the defense side. That’s one thing we would do differently if we actually cared about getting this right, is to ensure that every capital defendant had truly high quality representation.

0:32:23.8 Clark Neily: The second thing we would do is we would hold police, prosecutors, and other government officials to an extraordinarily high level of accountability, so that, for example, if there were a prosecutorial misconduct in a capital case, that person would go to prison for a long time. We would do that if we cared, we cared about discouraging prosecutorial misconduct of the kind that we saw in Bryan Stevenson’s case that he described in Just Mercy, and that we see all the time in other cases. We would ensure that the people who are in a position to decide whether to cheat, whether to cut corners, whether to try to get away with things in order to obtain the conviction, understand that if they’re caught they’re gonna pay an extraordinarily severe price. We don’t do that at all. In fact, they almost always get away with no consequences whatsoever. That’s a second hallmark that let’s you know that we’re completely un‐​serious about getting this right.

0:33:13.3 Clark Neily: And then the third thing that lets you know how totally un‐​serious the system is about trying to get correct results is that, in any other setting where human beings are engaged in high stakes and potentially error‐​prone activities, and I’m thinking of two that I have personal experience with, medical malpractice, I used to do a fair amount of that, defending doctors as a young lawyer, and commercial aviation, my father was an aerospace engineer, worked for NASA. I know a fair amount about commercial aviation. What you see in medicine and commercial aviation is that when there is what they call a “sentinel incident,” that means the kind of incident that you don’t just wanna minimize, you want to prevent it from ever happening, a plane crash or a really significant act of medical malpractice, they will do something called a “sentinel incident review.” And what that means is they take a minute look at their process, they put everything under the microscope, not primarily to assign blame but to understand what it is about the process that allowed this intolerable outcome to happen so that they can then make changes to try to prevent it from happening again.

0:34:15.9 Clark Neily: Criminal justice is the one area that I’m aware of, in all of human endeavor, where you have high stakes, and I’m not aware of a single prosecutor’s office, including the Department of Justice, that conducts a sentinel incident review when there is an exoneration. I know it’s been looked into, but it’s never been implemented. That, to me, really underscores how utterly un‐​serious the people in the system, judges, prosecutors, police and other officials, that you fail to do this well‐​known process after realising that you have made a mistake so that you can see what it is that contributed to that mistake and stop doing it. They don’t do it because they don’t care, and it’s an absolute travesty.

0:34:54.9 Natalie Dowzicky: Right. And that seems like something that’s done in other areas, like you said, other human endeavors, that’s just a natural assumption, that that type of investigation or that type of deep look is taken into account. And it seems obvious, and kind of troubling, that that doesn’t already happen.

0:35:11.8 Ben Jones: I would just really encourage people to read the book as well as watch the movie. The movie is great and I enjoyed it, I enjoyed it a great deal. The book though just gets into so many additional details that the movie can’t fit in, given the constraints. The book is really tremendous, and I encourage people to take the time to read that, too.

0:35:38.0 Landry Ayres: I’d just like to second that. I read a lot of books about criminal justice, many of which are exposes that are designed to try to convey to you how utterly broken the system is. “Just Mercy” affected me more, I think, than any other book that I’ve read in this space. It is extraordinarily well‐​written, and it is absolutely… It paints an absolutely horrifying picture of the system that everybody really needs to know about in order to participate intelligently in this discussion.

[music]

0:36:12.8 Landry Ayres: And now for the time in the show where we get to share all of the other things that we’ve been enjoying with our time at home. This is Locked In. Ben, Clark, what else have you been enjoying during your time at home over the past almost a year now that we’ve been at home? Any other books, movies, TV, games that you’ve been occupying your time with that you think the audience would enjoy?

0:36:34.7 Ben Jones: One recommendation I would have, and this is a case that I mentioned earlier in our discussion, I mentioned the Curtis Flowers case and his recent exoneration. And there is a tremendous podcast, In The Dark, that goes through in detail just all the malfeasance that led to that exoneration and kept him behind bars far too long. And so I would… It’s been out for about a year, that podcast, but I would definitely, if you’re interested in Just Mercy and the sort of themes that it dives into, definitely check it out. And that podcast also played a significant role in bringing attention to the case and resulting in Curtis Flowers’ exoneration. One thing to keep in mind is that when judges are making these decisions, the ideal is that they’re just isolated and not paying attention to anything else. But when a case gets the sort of attention that that case gets, it can have impacts on the legal system. So, definitely check that out. And it’s really incredible what they were able to achieve with that podcast.

0:37:44.7 Clark Neily: I’d like to note two things. First, I wanna give a shout out to my friend David Markus, who’s a criminal defense attorney down in Miami, and used to work for Williams & Connolly, which is one of the top firms up here in DC, and then went out in the small firm. He’s got a new podcast called For The Defense. For The Defense. And it interviews with criminal defense lawyers about some of the big cases that they’ve worked on. The most recent one is Rob Cary, who is a Williams & Connolly lawyer, who was one of the two leaders of the team that defended Senator Ted Stevens when he was prosecuted for alleged corruption by the Department of Justice. That case resulted in the jury voting to convict, but before sentencing, which is when the conviction becomes official, there was a whistleblower on the investigative team who disclosed that the DOJ prosecution team had cheated its way through the case, systematically failed to make required mandatory disclosures. And the charges ended up being dismissed.

0:38:52.1 Clark Neily: It was the greatest ethical scandal probably in the entire history of the Department of Justice. There was no dispute the extent to which these prosecutors cheated. And the most important takeaway from that case, and I’ve heard Rob Cary, who’s on this podcast, tell the story, the most important takeaway is that nothing happened to any of the prosecutors. Nothing. There was no meaningful discipline of any kind. And so I’m fairly certain that other prosecutors got the message, and I think it’s a real stain on the character of the Department of Justice that prosecutors would engage in such blatant misconduct in a trial involving a sitting US senator and then not a thing happens to any of them. That really is our system on a plate, and that’s the way it works.

0:39:36.0 Natalie Dowzicky: That’s crazy. On my front, for other stuff I’ve been enjoying, I’ve been trying to read a lot more books, mostly fiction, but I started reading “The Water Knife.” It’s like a sci‐​fi book, I’m about 100 pages in, it’s set in the future where water is scarce. Each chapter is narrated by someone else, you’re following someone else, and it’s like journalists and policemen and how the… I’m getting the sense that the United States is no longer the United States. And that each state, especially in the Southwest US, is its own little country, and they’re all fighting for scarce resources. So, I would really recommend that, especially if you like sci‐​fi, dystopia‐​type fiction.

0:40:27.8 Natalie Dowzicky: And then I’ve also watched Firefly Lane, kind of just a more of like a girl drama show, but it also apparently has a book that’s very good. There’s multiple time periods going on throughout the show, and it’s like the interaction of these two women as they were best friends from growing up until their time now. And they’ve dealt with a lot of family problems and divorce, and one has a mother that’s a drug addict, so it goes through how that’s affected her when she was growing up. That one was a really good show, it’s on Netflix. And other than that, I’m just trying to read more.

0:41:01.7 Landry Ayres: When it comes to things that I have been listening to, there’s another podcast that I have generally liked a lot of, though I haven’t listened to a ton about, called You’re Wrong About. It is a counter‐​intuitive look at things that have become part of the cultural zeitgeist or memory, and reframing them from what might seem counter‐​intuitive but simply exposing the ways that our cultural memory has blinded us or made us believe things that aren’t necessarily true. There is a very, very interesting set of episodes about the case of the DC snipers, which was really compelling and interesting, and you sort of… It’s just really… There is so much more to the events than you ever would even realize. And there’s another great one about the Columbine shooting and the ways in which our cultural memory has reframed what actually happened, the reasons for it, and the effects that that had on the way we view violence, school shootings, etcetera, etcetera.

0:42:06.2 Landry Ayres: And then I also have been playing two games a lot, Hades for the Nintendo Switch, where you play Zagreus and you are trying to escape the depths of hell that is imprisoning you with your father, Hades, trying to thwart you at every step. It’s a fun rogue‐​like, beat‐​em‐​up game, and it’s actually very, very beautiful. The art is amazing, and the voice acting is incredible. So, if you want something you can pick up and put down that is actually a very interesting story but is fast‐​paced, I recommend Hades. And if you want something very slow and moody with an interesting story, that I still honestly could not explain to you if you asked me to do it, you might be able to enjoy Kentucky Route Zero, which is just released for the Switch last week, but has been out on Steam and everything else. It is a moody, somber point‐​and‐​click adventure game where you are an antique delivery driver looking to deliver…

0:43:02.7 Natalie Dowzicky: What?

[chuckle]

0:43:03.0 Landry Ayres: An old television set to someone, and you travel along this fictional underground highway called Kentucky Route Zero. That is literally what has happened so far in the game. I have no idea where I’m going, I’m underground. But it’s also so compelling, it feels more like watching a stage play than playing a video game. If that’s something that interests you, I recommend Kentucky Route Zero. But if you’re like, “That sounds boring,” it probably is not for you, and it would be very boring.

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0:43:36.9 Landry Ayres: Thanks for listening. As always, the best way to get more Pop & Locke‐​related content and to connect with us is to follow us on Twitter. You can find us at the handle @PopnLockePod. That’s “Pop,” the letter N, “Locke” with an E, like the philosopher, “Pod.” Make sure to subscribe to us on Apple Podcasts, Spotify, or wherever you get your podcasts. We look forward to unravelling your favorite show or movie next time. Pop & Locke is produced by me, Landry Ayres, as a project of lib​er​tar​i​an​ism​.org. To learn more, visit us on the web at www​.lib​er​tar​i​an​ism​.org.