What is Justice?

you faithfully discharge the duties of our office. Do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth. From Tenderfoot TV and I Heart Radio, this is Sworn. I'm your host Philip Holloway. I viewed justice as being a collection of people assesses any laws that has to be executed by human beings. Until we

can remove the human being aspect out of it. We're not going to have perfection, But it is my hope, my desire, my dream, if you will that we continue to evolve. Technology evolves, our way of thinking evolves, crime fighting tools evolved. A lot of people in society believe they may not have anything to contribute to our legal system because they're not attorneys, they're not police, they're not district attorneys. But we as citizens all play a role.

So what I would like to tell the general public is that when you sit on a jury, please take it seriously. A lot of the compics will tell you never trust your life. The twelve People wants smart enough to get off of Jerry. They're wrong. Jerry duty serious business. Jerry duty can save an innocent person from being incarcerated. Jerry duty can punish derightfully guilty. Please take Jerry Duty seriously.

Welcome to the season finale of Sworn. We have been extremely fortunate to talk to some amazing people this season, and everything has centered around one central question. What is justice. This may sound like a simple question, but it's not a question that can easily be answered in absolute terms.

In this episode, we're going to look back to the people who have shared their stories and their expertise with us, and from each of their unique person actives, we will do our best to tell you what justice really is. We'll start with the exonorees we spoke to early in the season. They know personally what it feels like to be denied justice. At the beginning of the episode, you heard from Joe Diaz, the man from the Eyewitness Testimony episode.

Joe was wrongfully convicted and served eight years for a sexual assault he did not commit. The next voice is William Dylon. William is from our episode on Polygraphs and sent Dogs, who was wrongfully incarcerated for twenty seven years for a murder he did not commit. Justice means truth, that's all it means. It doesn't mean getting something for something. Justice only means truth to me. This is Bill Richards

from the Bite Marks episode. Bill sir twenty three years in a California prison after he found his wife murdered. Police still have not found the real killer. Justice to me would be punishing the people who did to me, because it would stop him from doing it to other people. It's not that I'm bengeful, It's just that the only way to stoft people is to see justice, and then justice would be if they actually went after I found

who did this to my wife. But justice would be punishing the right person and stopping people doing this like what happened to me. I don't believe any person went to prison who was innocent without some kind of misconduct and that needs to be stopped. And the way to stop that is you need to punish the people doing it so the next guy doesn't do it. Lastly, we

have Calvin Johnson from the episode on racial bias. Calvin, who is an African American was convicted by an all whiet jury and wrongfully served sixteen year of a life sentence. But what was this justice being to me? Probably the same thing everybody else said, just uf If the word justice will actually taken into exact content as the way it should be, it means fair, equal quality for all human beings. The problem is is just the justice system itself.

It's not justice because of the flaws. Therefore, it's not equal equality for all citizens. Its inequality for its citizens based on who they may be. Lower income people that don't have the money to have to be able to fight against the justice system that has all the odds and all the policies and procedures stacked up against you. It's against uh, the minorities. So it's just when you look at it like that, the word justice does not being honored and portrayed or fulfilled to be the truth.

Just as the United States right now really doesn't exist except for rare cases. During our episode on Calvin's case, we spoke with Molly Palmer. Molly is an attorney and board member of the Georgia Innocence Project. In our interview with Molly, we told her how Calvin has answered this question about justice, that justice is just us. She said that kind of insight is common among the Axonorees she works with. You know, one of the things in working

with Axonorees, you know, they're never better. They spend so many years behind bars, and they emerge grateful and happy to have whatever life they have left. And at the same time, you know, I think that there there are certain things that they say that really gets to the

heart of their experience. Calvin is so gracious and such a lovely man, but that kind of statement is so heavy because as what it's saying is, so long as you have a wrongfully imprisoned man, a single one man or woman, so long as there is one person that the system has failed, it's not justice. It just can't be. I believe that justice does not look for the guilty, it looks for the innocent. This is Dr Joel Zibet from our episode on lethal injection. Justice is something that

you need to test on the people you despise. Justice is the thing that works for people that we hate and that we can't stand. And justice is about the fair distribution of the way that people are brought forth to trial, of what their punishment should look like, of how society should look. There is this problem in America with too many people incarcerated. There's two point two million

people in this country are in prisons. We stand out in civil societies to have this many people incarcerated, and so there's a talk about trying to reduce incarceration rate and trying to find alternatives. You know, it's interesting too because it's complicated. I'll give you an example. Jesse Smollett in Chicago. It's unclear what happened there. Something strange happened. He seemed to be involved in it. Now the question

is to how to punish him. And so it turned out that his punishment was to do community service of some sort, which, if I think of it, seems perfectly reasonable to me, Like what does it matter? Why should a person like that go to prison? And yet people are very outraged that he didn't go to prison, that the district attorney, I think dropped the charges because some

other deal was made. And so I think that our desire for what we think is justice, or the need to incarcerate people, I think runs pretty deep in America these days. And until we get over this need to incarceraate everybody, I think that what really we would consider to be a just society is still often the distance. So to me, justice doesn't look like putting everybody in prison. And I think also the justice requires telling the story

of the defense as well as the prosecution. The media and television is fascinated by the stories of the prosecution, and there's very little stories about the defense. I believe that people should be innocent until proven guilty. I believe that they should not be prejudged, and I think that these are necessary parts of a just system. A just system is open and honest and accountable and available. So that's my view of justice. Here's Amelia Maxfield, a forensic

specialist for the Pennsylvania Innocence Project. From my specific stand point, what justice means now is finality. Our system preferences the resolution of cases over getting it right. That is written in our case law, in our precedent. It's more important for a case to be over then for the right person to be in prison or even on death row,

or even executed for that crime. And I think that plays out across the system in the pressure to plead guilty to small misdemeanors in order to not inconvenience the court by having a trial. Our system is just designed to grind people through, from misdemeanor convictions to homicide cases. We just want resolution, We just wanted to be over. I don't believe that should be a principle of any

justice system. That may have made sense when we didn't have DNA testing, when we didn't have evolving science, but science inherently evolved, and if you're going to be using evidence that changes and developed to secure conviction, you have to be open into revisiting that conviction as the science or the evidence changes and evolved. The justice system should

preference getting it right over having it resolved. I think it should be much more important to be sure that the evidence that's being used is reliable and valid and accurate, rather than just securing a conviction and resolving a case just to have it resolved. Here's Justin Brooks, the director and co founder of the California Innocence Project, pointing out

how different economic factors can affect justice. Well, that's where we start seeing the separation of rich from poor in terms of getting the amount of justice you can afford. The defense attorney can obviously ask the judge for those resources, can petition to get those experts, but every county in America has limits on that, and it will depend on what the county budget is and how much they allocate to experts, and whether the judge thinks you need it

or not. But those decisions is won't be left up to you, the defendant if you're indigent, and a lot of times your lawyer won't be able to get the resources they need. What I've seen in California, which is interesting, which I think is counterintuitive for most people, is that almost all our exonerations came from cases where private lawyers were handling the case that we're either appointed by the court or retained, and very few cases where there were

public defenders. And I think it's because in public defender cases, the public defenders have training, experience, supervisors, and probably most importantly in my cases, access to investigators, where sometimes you have private attorneys that are very small offices don't have

a lot of resources. The families come forward with all the money they have, and it's still not enough to put together a good defense, and so they might go a little short on the investigation or retaining experts or doing things like that, whereas public defenders offices often do a better job on that. And I think the general public thinks the opposite is true, that you're always better with a private lawyer than you are a public defender.

And again I'm not saying there's not amazing private lawyers out there with amazing law firms, and when they have the right resources and people can compensate them, that they aren't the best. But I think the problem is in the middle. Where are you better off having a lawyer without that much experience who as a private lawyer who has no supervision and no investigators. Are you better off

getting a public offender to represent you? And I think often when you don't have any resources, you're better off with the public defender. The systems are so different county to county. I worked as a quarter pointed lawyer in Michigan, and I give you an example of a thing that just denies people due process is when I did it in Lansing, Michigan, I would get paid per case and it was a flat fee. When I did it in

in Arbor, Michigan, I got paid by the hour. And so if I took a case to trial in Lansing, I would still get the same amount of money as if I played it out, And if I took a case to trial in ann Arbor, I would get paid for all those trial hours. So what's going to happen when people are running businesses and have to pay their mortgage and pay for their kids schooling and all that. We actually set a system up where it makes it

very difficult for lawyers to provide the same services. And in California we have some of these crazy contracts out in some of the smaller counties where one lawyer will contract for the entire indigent defense work for the year for the county. And now they're running a business that gets a contract, and the more money they spend, the

less money they make on that contract. And this is not good and it's it's crazy that within the same country, with the same sixth Amendment the Federal Constitution, there's such varying quality and resources on the defense side of the work. And that's true not only just state to state, but county by county within the same state. Because if what's all about is getting the truth, and those resources will assist the fact finder and getting to the truth, and

there should be no question about it. It shouldn't be about well, he shouldn't get it. It should be about, well, this best assist us in finding out the truth. It's in all our best interests that innocent people aren't convicted and that guilty people are and if providing additional resources gets us there, it should happen. Here's retired judge and lawyer Ray Gary Jr. Every county has their own, their

own idea of justice. For example, during my middle years as a lawyer, Fulton County and cob Can Honey are separated by a river. Fulton County was run by Democrats, Cobb County was run by Republicans. I had a client charged with a sex crime. Most of my cases were in Cobb County, and I knew from experience he'd be looking at ten years in prison, are going to trial and taking his chance. But this case wasn't in Cobb County,

it was next door in Fulton County. The judge sent a letter out and said we're bringing everybody in and this will be your only chance to do a plea bargain. If you don't do a polea burgain on this court date, you're going to trial. So I got down there and the prosecutor offered me to reduce it to a misdemeanor and give him twelve months probation and not be a sex offender. And I was thinking, this is too good

to be true. You know, from our perspective that if this was in my Republican county and I live in, you know, the best offer would have been twenty to do ten be a lifestun sex offender. Because it happened across the other side of the river, then it was twelve months probation, no sex offender. We naturally jumped on

it and played guilty that very day. One funny thing happened was I had charged my client ten thousand dollars because I thought it was going to be a lot more to it than that, and so he had paid it in cash. The next day, after he played guilt, didn't get out of jail, he called up and he said, he said, listen, I gave you a lot of money didn't you. I said, you sure did. I said that was a lot of money. He said, you really didn't have to do all that much. I said, that's true,

as it didn't. As it worked out, I really didn't have to do a whole lot. He said, well, I don't think I got my money's worth. I said, well, you're in luck, I said, because the prosecutor is having set at thoughts. She's wishing that she had never gave you that deal. So I can go down there and withdraw your plea and put you on the trial calendar for Monday morning, first trial out, and we can we can take this plea bargain off the table and have

your trial. And I said, a matter of fact, let me put your on hole and I'll get my secretary to get started on the motion and I can drive down there, you know, this afternoon and foul it. He's a hold up on that. Let me think about it. And so I never heard back from him. But for everyone, I came out smelling like a rose. There was ten were I ended up being paid way too little. This is defense attorney Michelle Tiegel on the idea of what it means to win your case. I struggled with that.

When I first started doing criminal defense, I was an athlete and I really wanted to win for all of my clients. I had to redefine what winning means, and I learned a lot about that from my former law partner and kind of make me a little teary, because as a criminal defense lawyer and also as a prosecutor, we have to redefine what winning means. There were cases where winning meant I had to be an advocate to my client about taking what really was the best deal

and the best thing for their life. In some cases, winning meant we fought to the very bitter end until we got an acquittal, and we got it. In some cases capital murder cases where the evidence was strong on the state side and difficult to deal with, just preventing a death sentence and getting life without parole was a win, and that was a win that I struggled to wrap my head around. But I had situations where just making sure the state couldn't kill my client was a win.

And I would have never thought, starting as a baby criminal defense lawyer, that a life without parole could go

in the win category. Glory, but winning is relative and criminal practice and criminal law on both sides, and I hope that from the prosecutor's side, and I know there are prosecutors like this, that they will also start redefining winning and that it will truly be based not just on I'm going to get this conviction or I'm going to advocate for this victim that is sometimes their role, but that they're really going to just try to make

the right decision that serves the community and that does justice, because that's what they're there to do. I think when they lose sight of that, it creates a really dangerous system. Here's Georgia prosecutor Jesse Evans. Justice means getting it right, and we're all striving to get it right. It requires that we act honorably. We try to act impartially trying to get to the right fair results. So justice really is about getting it right and about being fair. I

think that's the best way to find it. And as long as we're acting honorably and we have the best intentions within the criminal justice system, my experiences that we usually get there, and they're rare instances where fairness is not reached, where you have an outcome that seems unjust. But I think those are more to the exception and not the norm, and I think that's a product of experience in time. A criminal justice system is not without

its flaws. I think we're always moving towards making it better and open to the idea that we need to be reflective. We need to be introspective from a criminal justice perspective and say, are the ways of doing things better to make sure that we get to that fairness, to get to that right, results driven goal. This is Ashley Wilcot, a lawyer who specializes in child welfare cases. She's also a judge into cab County, Georgia. We last

heard from her in our episode on racial bias. Oh, people are gonna hear this response and think, oh, she lives in our own little world. But again, justice is blind. There's a reason there's a blindfold on, lady. Justice. Justice is blind. We have lost for a reason. We have crimes. What what constitute a crime and how it's defined for a reason in a perfect world, that's applicable to everyone equally.

In a perfect world, if you commit a crime, if you violate a law, you're arrested, but you then face a fair trial. You are presumed innocent. It doesn't matter if there's a video of you doing it. You are presumed innocent until it has proven in a court of law, because I would keep in mind that a video that you look at does not give you a three hundred and sixty degree view. So you have to be convicted by a jury of your peers or by a judge

if you choose to waive that. In a perfect world, that process works the same for every individual, regardless of their age, regardless of their color, regardless their gender or gender identification. That's what justice is for me. This is

Federal judge jed Rakoff from New York. I have a deep believer that just sense requires the judge to get deeply into the facts, effects of the crime, the effects of the criminal, effects of the victims, and to do the very difficult and of an agonizing but careful job of figuring out what sense makes sense when you factor in those various opponents. The mandatory minimums, of course, prevent

you from doing that whatsoever. But even the sentencing guidelines within the federal system are no longer mandatory, but they might view are mistake because they emphasize certain factors, usually

in excess of other factors. So, for example, the sensing guide lie as federal sentencing guidelines for drugs are vastly dependent on the weight of the drugs that are sold, and that means that if you have a large scale narcotics conspiracy, even the lowest level person faces to huge sense because the conspiracy as a whole distributed a lot

of drugs. This does not make sense to base. So I would go back to the system that it persisted in this nation for nearly two hundred years, which was we leave it to the good sense of the judge, and we encourage our judges to do a lot of my work before they impose sense. Here's Kevin Ring, the president of fam formally known as Families Against Mandatory Minimums. So what we want to see is judges be allowed

to sentence again. We think judges need to have to discretion to fashion punishments that fit the unique facts and circumstances of each crime. Not every crime is the same, not every defendant's the same. We don't want to see people treated differently for reasons that aren't relevant, like grace or gender or things like that. But we want people who are more serious offenders to get longer punishments and

less serious offenders to get shorter punishments. And that sounds so obvious and basic, but that's not the way the system works. It's too much of a game now who can plead first, who has more information to give up, And so we have too many cases where low level offenders are getting longer punishments because they don't have any information. They can't give anybody up. We think the only way to fix that is to get rid of mandatory sentences.

Let prosecutors bring what charges they want. They can make their recommendations to the judge for what the sentence should be based on the defendant's characteristics in the nature of

the crime. But we want judges to have control over punishment again, so that it can be tailored to, you know, what really happened, and not just some arbitrary standard that was set by politicians who know nothing about this defendant or this crime, but who wrote the mandatory minimum maybe ten twenty years ago and couldn't have foreseen this particular instance. This is my much better half, my wife, Natalie Holloway. I might be a little biased here, but I like

her answer quite a bit. I think justice loves like fairness, I think that's the best way off the cuff that I can say that, And I think unfortunately that word is not a simple definition, and so I think people get caught up in what's right and what's wrong for certain people. I believe in the bottom of my heart that we also had the best for everybody, and everybody is trying their best every day, and so fairness, fairness is that what I best, what I think justice should be.

Here's defense attorney, actually merchant. I actually think the federal government has a much better system than the state governments. To the federal government, if you're arrested, you know, they've got some evidence against you. It's a completely different system. And in the state system, we arrest and then we try and get the evidence, you know, like the confession and things like that. I think that jurors need to

require more evidence to convict people. I think that they need to actually require guilt beyond approved you know, beyond a reasonable doubt to convict people. I think that's really really important for us to have justice. I think that obviously crime shouldn't happen, and guilty people should go to jail. But I also think that there's oftentimes a reason and like I said, truth always lies somewhere in the middle. You know, maybe the person did something, but they didn't

do everything that they're accused of. I think that there's a lot of power in the hands of prosecutors who are oftentimes right out of law school, absolutely no perspective, don't have kids, don't have a family, has never known anybody accused of a criminal case. I think judges need to have done both sides, I really do. I think that that helps us get justice because if you've not walked in my shoes and the prosecutors shoes, it's really

hard for you to judge us. And a lot of times we see prosecutors on the bench, and defense lawyers don't usually want to go on the bench, so that's the problem. But it's hard because they have not walked in our shats, and they haven't defended a person. They haven't sat next to a person as a sob when they're convicted, you know, and crying and saying I didn't do this, and I'm going to spend the rest of my life in jail hugging the mom who calls you every day and says my son is innocent, and you

know he's in jail and feeling that. So I think that if we can work towards a better system, that's justice. But you know, I've a I don't want guilty people to run around and be able to commit crimes. I mean, I think that's awful, you know, But I also don't want innocent people to be incarcerated. And I've always advocated that we need to be smart on crime. I think that programs work like these. We have accountability courts where you know, drug court and dou I court and all

these different types of courts. I think that those are really important because they're focusing on treatment. But the problem I see with those is that it's just like anything, we are kind of segregating classes of crime. We're saying, if you are mentally ill and you commit a theft type case, you can go to mental health court. But if you smack your mom it's violent, you can't go.

You're mentally ill, you know you need the treatment. But we're kind of segregating the types of classes and the types of crimes, and I don't know that that necessarily makes sense. I have made a career out of the criminal justice system. I have worked my entire our adult life in some capacity or another in the business of justice. And even after all these years, I don't know that I have a great answer to our question. You see, the concept of justice, at its very core is subjective.

It will look differently depending on just where you're standing. To some people, justice means punishing someone who has wronged them. To others, it may mean mercy or forgiveness. On a day to day basis. The justice that I work towards means negotiating in good faith. It means both sides striving for a fair outcome. Fairness is another esoteric word with a meaning that escapes easy definition. But what fairness looks

like also changes from case to case. I have three or four case files sitting right here on my desk right now, and justice means something different in each and every one of those case is It's fair to say that I'm passionate about justice, after all, it is my life's work. But I don't know that I am, or that I should be more passionate about justice than anyone else. It is in all of our interests to have a

system that works smoothly and is administered well. But I think a lot of times we forget about empathy, about humility, and about human decency. It is so easy to get wrapped up in the idea of punishment or I foreign eye justice, And that's why we wanted to tell these stories this season. Until you go through an injustice, until you inexperience an abuse of the system, it is easy to focus on retribution. We idealize it. We see what the media shows us. We hear about horrific crimes, and

we call for maximum retaliation. But our system is not perfect. People are overcharged, people are taken from their families, People are removed from society every day under the guise of public safety. But is there not a greater threat with the system that forgets individual humanity? What is safe, after all, about a system that views people solely by their charges and not by their individual unique circumstances. Our justice system in America is light years ahead of many others around

the world. Most of the time, we get it right. Most of the time the police arrest the right person. But we so often overlooked that there are victims of the system itself. Victims of crimes can be victims of the system. Wrongfully accused persons are victims of the system. Families of these people are also victims of the system, and so is the community in so many instances. Every day, in every case I work, I strive to do better

to find a better justice for my clients. Fortunately, I also see so many people across the country advocating for a better way, for a better criminal justice system, for more fairness and sentencing, for better rehabilitation measures, for quicker closure for victims. I hope that we've inspired you, perhaps just a little bit, to think about the broader criminal

justice system. I hope that when you hear about cases, perhaps like the ones we've talked about this season, that you take a little bit of time and maybe think just a little bit longer, and, as judges tell jurors, take your responsibilities as a citizen seriously and keep an open mind because things may just not be what they appear. Well, that's enough from me for now. Let us know what you thought about this new season of Sworn and our new format. Give us a call with any criminal justice

questions you may have. Leave us a voice at four zero four four one zero zero four for one, and of course, feel free to reach out on social media like Twitter, Instagram, and Facebook. If you reach out I'll do my best to try to answer. We'll talk to you soon here on Sworn. Sworn is a production of Tenderfoot TV and I Heart Radio. Our lead producer is Christina Dana. Executive producers are Payne Lindsay and Donald Albright for Tenderfoot TV, Matt Frederick and Alex Williams for I

Heart Radio, and myself Philip Holloway. Additional production by Trevor Young, Mason Lindsay, Mike Rooney, Jamie Albright, and Halle Beadall original music and sound designed by Makeup and Vanity Set. Our theme song is Blood in the Water by Layup. Show art and design is by Trevor Eisler, editing by Christina Dana,

Mixing and mastering by Mike Rooney and Cooper Skinner. Special thanks to the team at I Heart Radio from U t a or In Rosenbound and Grace Royer, Bryan Nord and Matthew Papa from the Nord Group, BA Media and Marketing and Station sixteen. I'd also like to extend a very personal and special thanks to all of our contributors and guests who have helped to make all of these

episodes possible. You can find sworn on Facebook, Twitter, and Instagram at sworn podcast and follow me your host, Philip Halloway on Twitter at phil Holloway e s Q. Our website is sworn podcast dot com and you can check out other Tenderfoot TV podcasts at www dot tenderfoot dot tv. If you have questions or comments, you can email us at Sworn at tenderfoot dot tv or leave us a voicemail at four zero four for one zero zero four

four one. As always, thanks for listening. From your perspective, How can our listeners be better jurors when they get summoned? Besides finding people guilty, right, I think that the important thing to understand is that we all want to find jurors that are going to be fair, that are going to be impartial to both sides. And those are sort of the touchstone words that we use when we do jury selection is are you gonna be fair? Are you

gonna be impartial? So the only thing that I would encourage people to do is to keep an open mind when you come into jury selection. I understand that we're all different, we all have feelings that we're gonna bring with us because of our own personal background when it comes to the awesome responsibility of being a juror in the case, just understanding that you're gonna have to check some of that background baggage at the door and make a decision based on the facts and evidence that is

presented in the courtroom. And even more important than that, be open to the law that the judge is going to give that juror as well. I think a lot of people won't make the mistake of thinking, well, they're only going to be looking at a given set of facts and that's how the decision is going to be made, and nothing could be further than In truth, one of the most important parts of the jury trial system is that the judge is going to give those jury instructions

as to how each fact patterns to be judged. So you need to keep an open mind not only as to the facts, but as to the law as well.