For Jason Flom, the process of proving an incarcerated person’s innocence is an around the clock task. Before the beginning of this interview, the Lava Records CEO took a call from a prisoner named Jon-Adrian “JJ” Velazquez, who was sentenced to 25 years in Sing-Sing Prison for murder. According to a 2014 NBC report, Velazquez – who has been detained since 1998 –pleaded with the courts to grant him another trial where he’ll present evidence that could solidify his innocence.
His story and a number of others who’re fighting to prove their guiltlessness are highlighted on Flom’s weekly podcast titled Wrongful Conviction. Through phone or in person interviews, Flom shines a light on a handful of prisoners’ stories of how being framed by law enforcement or being in the wrong place at the wrong time altered the course of their lives, and how they plan to make up for stolen time once they’re released.
Most of these cases are also intertwined with the quarter of a century old organization, Innocence Project. Through DNA evidence, the entity seeks to free those who’ve been the subject of false convictions and help them adapt to the demands of society after enduring lengthy sentences. “Exonerating somebody is a herculean task, even though it’s just one person,” Flom said. “But we try to use exonerations to drive changes in policy.”
Below, Flom discusses the detrimental cycle of populating private prisons, and how we can hold the criminal justice system accountable for wrongful convictions.
What factors play into a wrongful conviction?
Jason Flom: There are a lot of different causes of wrongful convictions, some of the most common ones are false confessions, which are shockingly common and overwhelmingly powerful when a jury hears your confession. They don’t care about anything else. There are cases where DNA proves the person didn’t do it. Police and prosecutorial misconduct, and Brady violations are very common where we find that prosecutors withhold exculpatory evidence, which is everybody that watches TV knows you can’t do that, but they do it. Then there’s eyewitness misidentification which is the most common cause of wrongful convictions because there are so many problems with eyewitness identification including the fact that when you witness a crime your judgment gets so screwy because your adrenaline gets so elevated. You end up wanting to help solve the crime, but there’s all these pressures. Then there are things that relate to eyewitness identification like what we call double blind. That means the police officer conducting the interrogation must not know who the suspect is so they can’t lead you in a certain direction whether consciously or subconsciously.
The way mug shots are viewed is important and another cause of wrongful convictions because people should only see one mug shot at a time. When you see multiple ones on a page it messes up your perception or your memory. And then forensics. We’ve shown that there’s been so many examples of so-called experts testifying as to forensic evidence, and either lying or being wrong. There’s the fact that most people who are arrested and brought to trial are represented by public defenders. There are a lot of very good public defenders, but every one of them are overworked, underpaid and understaffed. If anybody hasn’t seen that movie Gideon’s Army, I recommend it. It really gives you an idea of how bad that problem really is. You really don’t have much of a chance once the system gets you. If you’re poor, you have a real problem.
How do you receive these cases?
We have an in-take department and we receive approximately 200 letters a month from people who need our help whether it’s an inmate or a family member, typically of an inmate. We have people who are trained to review those letters and try to determine if the claims of innocence have some veracity. Then we have to find out whether there’s DNA, if we decide to move forward to determine whether there’s DNA in the case, because the Innocence Project works on DNA. It’s a whole process and as you can imagine it’s something that we take extremely seriously.
There are four tent-poles that the Innocence Project aims to tackle: Exonerate, Improve, Reform, Support. Which one takes the most legwork to accomplish?
Exonerating somebody is a herculean task, even though it’s just one person, but we try to use exonerations to drive changes in policy. If we have somebody convicted, for instance, on bite mark evidence, which recently we’ve proven is complete nonsense. There’s no such thing as bite mark evidence. There’s nobody alive that can tell if you bit somebody, they can’t tell whether it was you or anybody else. It’s impossible. It’s this whole field of forensic odontology. It’s a joke as it relates to these cases. The reason that forensic odontology even exists is because in cases of disasters like an earthquake or the collapse of a building where somebody is completely unrecognizable, they take your whole set of teeth and then they compare it to your dental records. But when you bite somebody or something, they only use a couple of teeth and you’re biting on an imperfect surface, and leaving an odd mark. There’s no way to compare that. It doesn’t work. We’ve taken cases with bite marks, and after exonerating somebody who’s served decades in prison, we will then go to lawmakers and try to have the laws changed so that it’s no longer a type of evidence that’s admissible in court. None of these things are easy, I don’t know which one is the hardest. Reforms are probably the hardest because you have to convince a lot of people, whether on the state or federal level.
Do you think this high rate of wrongful convictions has something to do with the monetary aspect of private prisons?
That’s one of the uniquely American tragedies. I don’t know of any other country where they have private prisons. It goes back to, I don’t know if you’ve ever read the book “The New Jim Crow” by Michelle Alexander. She shows in very straightforward terms how it’s a new form of slavery because after slavery was outlawed, it wasn’t for convicts. They began filling the prisons with poor black people that they would pick up on the street for any reason; not having a job, not carrying an ID, and put them in prison. It still goes on to this day to an extent. That’s why Ferguson erupted, not just because of [Mike Brown’s] death, which was terrible, but because they’ve finally had enough. Or even when L.A. erupted, they had enough of being arrested for not mowing their lawn the right way or riding a bicycle on the sidewalk and ending up in jail. There is a profit motive because a lot of the mainstream products that people who are reading this use probably everyday are made by prisoners who are getting paid 19 cents an hour or nothing. In some places they make you work for nothing and if you refuse they take away your privileges; you’re not going to have any visits, you’re not going to have this or that. It’s like the few privileges that you do have when you’re in the system they take away. It’s a terrible situation all the way around. [Fyodor] Dostoevsky says “You can judge a society by the quality of their prisons.” I’m paraphrasing, but here it’s dreadful. They are violent, scary, terrible places that have very little focus on rehabilitation. It’s all about dehumanization and punishment.
You really don’t have much of a chance once the system gets you. If you’re poor, you have a real problem. ~ Jason Flom
The city recently worked to repeal solitary confinement for minors, I think ages 16-21. It’s mind-boggling to think a young person can be placed in a box without food or attention for long periods of time, so I agree with the dehumanization aspect of people, especially in New York.
You think New York state would be ahead of the curve a little bit, but it happens everywhere. There’s that whole raise the age thing going on now. That’s what happened to Kalief Browder, right? How do you not go insane, especially if you’re innocent like he was. Your brain hasn’t even developed yet, and like you said, stuck in that tiny box. It’s unimaginable to me. I often say that if another society, another country treated our citizens the way we do, we would invade them. We would be in there with tanks, planes and bombs and say, ‘You’re not going to treat our people like that.’ But we do it. Why? It doesn’t make any sense. The weird thing is what they realized in Western Europe is that the people eventually get out of prison. When they do, they have to live next door to somebody and if you don’t give them a chance to get it back together, because you’ve either driven them insane or not provided them with any rehabilitation of any kind and there’s so many laws which are designed to discriminate, then what are we doing? The system is set up to send them back to prison. Meanwhile, all of that costs the taxpayers money. It makes money for corporations to cost the taxpayers money.
Especially the mental issues placed upon these people who didn’t have any mental health issues prior to being incarcerated.
Or if they do have mental health issues, they get worse while they’re in.
Once these formerly incarcerated people are released, what steps are taken to help them blend back into society?
They have so many needs when they get out. They have to get an ID, a driver’s license. Ironically when a guilty person serves their sentence and they’re released, they get a parole officer who, at least in theory, is going to help them with certain needs, certain counseling and they can help them with trying to find a job, or a place to live, or temporary housing. But if you’re innocent you get nothing. You may get compensated, you may not. Even if you do it’s going to take a long time to get that money. You’re just out like, ‘Now what do I do?’ Everything from learning how to write a resume to figuring out transportation to getting a phone. For some of these people when they went in, there were no cell phones, there was no ATM card. It’s nuts. The needs are many and we try to help as much as we can.
Have you had a case where the outside world’s demands became too heavy for an exoneree? That they might end up back in jail?
It has happened very infrequently. I only know of one case in which that happened. Given a second chance, they try to make the most out of it. There have been people who’ve been framed twice, like Steven Avery. There was one guy who was on my podcast, Derrick Hamilton, who was framed twice in Brooklyn for murder. He was released, the charges were overturned in the first case after six years. Then the corrupt detective at time, Louis Scarcella, didn’t like the fact that he’d been released on the first one, so he framed him again and got him the second time as well. He served 20 years on the second one before he got himself out by becoming a fantastic jailhouse lawyer.
Which case has been the hardest, whether that’s mentally or emotionally, to turn into a success story?
I’m not a lawyer, so for the lawyers I know it’s even more stressful because they’re in there day to day. I’m out raising money and going to board meetings and doing the podcast and working on post exoneration stuff. One of the most frustrating cases of the people who’ve gotten out would be a guy named Tony Wright who was on my podcast the first season. Tony was a guy who was wrongfully convicted in Philadelphia, Pennsylvania of raping, sodomizing and stabbing to death a 77-year-old woman. He was framed by the cops and after he was in prison for 22-and-a-half years, we were able to prove with DNA that not only he didn’t do it, but we were able to prove who did do it which was an interesting thing too because in about half of the cases in which we prove the innocence of the person who was convicted, we were also able to show the authorities who was the real perpetrator who is often already in prison for something else they did. Tony’s case was particularly unusual because after 22-and-a half-years we proved with DNA that he didn’t do it, we proved who the real killer was and the cops refused to let him out anyway. Normally at that point they’d back off, but in this case they came up with a new theory that was something completely crazy.
They said this crackhead who was the actual killer, whose DNA was found on and in her body, they said, “What must’ve happened was that Tony must’ve raped and murdered her, and then left the door open and then the crackhead just wandered in and also raped her.” Think about that. Were there aliens there? I mean are you daft? Of course not, it’s the dumbest thing you heard. They tried him again. It took two-and-a-half years to get to a new trial. There he was sitting in prison with DNA that proved that he was innocent. The new trial lasted two-and-a-half weeks. The jury deliberated for five minutes. They came out and they cried while they read the verdict not guilty on all charges and the prosecutor still says he’s guilty. That’s just one that sticks in my mind. It’s not the only one of those where we produce DNA evidence and the prosecutor still says they’re guilty, which is of course impossible, but that one I think caused a lot of heartache. We were so happy when he got out. He’s such a lovely guy. If you hear him on the podcast he has such a positive attitude. That’s the craziest thing. The exonerees, every one of them has this amazingly positive, joyful, graceful approach to life that it’s like, “How did you get there?” I tell them I would be in a tower with a rifle trying to figure out who did this to me and take them out. They say, “I’m not going to be bitter and waste my time being bitter. I don’t have time for that stuff.” And you’re like, ‘Wow, what the f**k?’
With stories like Kalief Browder’s reaching millions of viewers across the globe, do you think this will spark serious talks or strategies to combat injustices within the criminal justice system?
That’s a good question and I think the answer has to be yes. I think it’s already happening. We’re seeing people on the left and the right, less on the right, but there are people on the right in positions of power who are now going, “Hey, this has to change, every aspect of mass incarceration, wrongful convictions.” Mass incarceration, if you’re really conservative, that’s gotta look to you like big government. Nobody locks people up the way we do, nobody ever has. We have the highest incarceration rate of any nation in the history of the world, per capita. Absolutely, the momentum is building a lot and unfortunately with this new administration we’re going to see backwards progress on a federal level, but on the state level we’ll continue to see progress. There’s going to be ups and downs. Strangely enough, California passed a referendum in the last election speeding up the death penalty and basically eliminating most avenues of appeal. In Nebraska, they didn’t repeal the death penalty law there. They had, but then they reversed it. But we’re seeing a lot of momentum in a lot of different areas of criminal justice reform, not just innocence.
Who holds the criminal justice system accountable when cases like Kalief Browder’s occurs? Or how can we hold the system accountable for these wrongful convictions?
I’m glad you asked. The most important thing that everybody who’s reading this interview can do is vote. When I say vote, that doesn’t mean once every four years. That means you have to vote in the district attorney races because recently we’ve seen in Chicago, that horrible prosecutor who refused to prosecute the cops in the LaQuan McDonald case, was voted out of office. You know who’s in now? I think her name is Kim Foxx, a black woman. Incredible! And not only is she a black woman, which is great, because I think 95 percent of the prosecutors in this country are white male so diversity is essential, but more importantly she’s a bada**. She’s going to shake s**t up.
Anybody in Chicago who doesn’t think that their vote mattered, watch the difference. It’s going to effect so many people. The same thing happened in Cleveland after the Tamir Rice incident. People finally got off their asses and said, “F**k it, we’re voting this guy out. He’s not going to prosecute the cops.” The most important actors in the whole scene are the prosecutors and what has to happen is they have to be held accountable. If we do that, then you’re going to see real change because they have all the power. Defense attorneys have no power. Judges have very limited power. Prosecutors have all the power. That’s the most important thing you can do. Don’t think your vote doesn’t matter. A lot of district attorney races, if you’re in a small town, that race could be decided by one vote. It’s not even unlikely. There’s so few people voting in those races. Your vote is really important in those races, and you’ve got to vote for progressive DA’s. That’s how you hold these people accountable.
Listen to “Wrongful Conviction” podcast’s previous episodes here, and check out the latest installment below.