AMERICAN INJUSTICE-David Rudolf

the wrongfully accused in American injustice. He draws from his years of experience in the American criminal legal system to shed light on the misconduct that exists at all levels of law enforcement and the tragic consequences that follow in its wake. Tracing these themes through the lens of some of his most important cases, including new details from the

Michael Peterson trial made famous in the Staircase. Rudolph takes the reader inside crime scenes to examine forensic evidence left by perpetrators, revisits unsolved murders to detail how and why the true culprits were never prosecuted, reveals how confirmation biased leads police and prosecutors to employ tactics that make wrongful arrests and prosecutions more likely, and exposes how poverty and

racism fundamentally distort the system. In American Injustice, Rudolph gives a voice to those who have been the victim of wrongful accusations, and shows in the starkest terms the human impact of legal wrongdoing. Effortlessly blending, gripping true crime reporting, and searing observations on civil rights in America, American Injustice takes readers behind the scenes of a justice system in

desperate need of reform. The book that we're featuring this evening is American Injustice, Inside Stories from the underbelly of the criminal justice system. With my special guests, civil rights attorney and author David S. Rudolph. Welcome to the program, and thank you so much for this interview. David Rudolph.

unreasonable searches and seizures. All of these rights that I think we all sort of take for granted now didn't not exist really prior to the nineteen forties or nineteen fifties, and it was really the Warren Court. You know, Earl Warren was a Republican. He was appointed by President Eisenhower, and it was his court that included some giants that set the course for civil rights and criminal againstess rates in the United States. And all of those rights really

began to be formed in the nineteen sixties. And they're really new rights in a sense. You know, they're only fifty or sixty years old, and therefore they're you know, perhaps fragile, vulnerable, and as we see with Roe versus Wade, for example, the fact that we have those rights now does not mean that they're there forever.

convicted of obstruction of justice. And so I think all of those helped to form my skepticism, if you will, of government. And so when it came time to graduate from law school, I was interested in trying to help people. I really wasn't interested in money. Particularly Money's never really been a large motivator for me. And it was just a natural evolution for me to want to go and represent people and protect them against what I saw as

the sometime arbitrary exercise of power by the government. And so that's what I did. I went to work for the Legal Age Society in the South Bronx in the Criminal Defense Division. I was on one hundred and sixty first Street and the third Avenue in the Bronx, the heart of Ford Apache and it was a great experience for me. You know, Barry Sheck was my roommate, along

with about five other people. We were in a big office, one phone that we passed around among us, and it was a time of pushing back against, you know, the forces that were sometimes abusing people in that community, and that was very formative for me.

and so our paths were very different. And what I try to do during the book is sort of contrast and compare where he was at certain points in his life with where I was at the same time in my life. But then our path sort of came together in twenty thirteen when Ray was being represented by the Duke Innocence Project and they asked me to help them conduct a hearing to show that he had been wrongfully convicted, and I did that, and unfortunately we lost that hearing,

but the Duke Innocence Project persevered. They appealed that and eventually in twenty eighteen they prevailed and the Fourth Circuit Court of Appeals overturned raised conviction freed him. The prosecutor declined to pursue the case anymore, and then most recently, the governor of North Carolina pardoned Ray. He gave him

a pardon of innocence. Ray ended up spending forty two years of his life from the age of forty to the age of eighty two, in prison for a murder that he did not commit and for which I have to say he was framed, and he was framed to protect the law enforcement in Wilson County, North Carolina. He fought for his innocence for the entire time. He got out, you know, after forty two years, and then yesterday he passed away and never really got to enjoy any portion

of his life after the age of forty. And it's a sad, sad story, but it's also a very important story for people to understand how these things happen.

person who prosecuted him five or six years earlier. Then, when the sheriff in that county was convicted for operating his Sheriff's department as a racketeer, influenced and corrupt organization by the federal government, he again asked for the State bure of Investigation to come in and investigate and explain that his conviction was the result of those people trying to protect themselves because the real perpetrator knew about their corruption.

The state Bueer of Investigation, I think, in my view, conducted a cover up, and so he remained in prison after that, and then you know, of course it's very difficult for anybody in prison to get a lawyer to actually represent them, and when you're representing yourself, you're at great disadvantage. Obviously. Finally, in two thousand and one, the Duke Innocence Project took him on as one of their

first cases. But even then the State your investigation claimed that they couldn't find evidence that was critical to his being exonerated, and it took him another thirteen years to Duke Innoson's Project, thirteen years to finally get the evidence

that was relied upon to overturn his conviction. During the hearing that I helped him with, the judge after hearing some really dramatic evidence, decided to recuse himself because he had represented people during the course of that corruption inquiry. That put everything on hold. A new judge was appointed, he denied the petition, and it took us another eight

years essentially to get him out. So it's the nature of the system, and in a large part it's because finality in our system of justice and the importance of finality Trump's justice and truth, and I think that's a real problem in our in our review of these cases.

trial as opposed to pleading guilty. I can remember when I was starting out, uh, and I would tell people, listen, you know, you can go to trial, but if you lose, the judge is going to understand that you that you you know, cause the exercise of resource is if you are guilty and you plead guilty, the judge is likely to take that into account when he senses you. But that's the best you could say. And prosecutors back then, at least in the federal system, took no position on sentencing.

Their view was sentencing is up to the court. They're there to present the facts. Then the court decides on sentenced over the last really thirty years, since nineteen eighty seven, when Senator Kennedy introduced legislation to create the United States Sentencing Commission with the hope that that would equalize sentencing across the United States. What it in fact did was made the system draconian. And so now, first of all, prosecutors are in complete control of the charging decisions, but

they're also in complete control of the sensing options. So you know, if you are indicted for a certain crime and you have to plead guilty to that or you're convicted of that, the sentencing guidelines create enormous penalties. Whereas if a prosecutor agrees, as a result of plea bargaining or your cooperation with the government, to indict you for a lesser charge, then that controls the penalty and it's a much less onerous penalty. So what does that set up.

It sets up a circumstance where the prosecutors, who are your adversaries in this system, are in total control of the mechanism of both charging and sentencing. The judges are limited to a certain extent by the sentencing guidelines that are in place. And so what the charge is what you're indicted for. What you're convicted for, that has a direct impact on your sentencing. And so what does that mean.

It means that when I talk to a client now, I say to them, listen, they're offering you a plea to a conspiracy, and the maximum on that conspiracy is five years. That's the most you can do. But if we go to trial and they're charging you with money laundering and bank fraud and all kinds of other things, now the penalties are up in the twenty thirty forty fifty year range, right, So what is the average person going to do, regardless of whether he's guilty or not.

He's not going to risk fifty years in federal prison when he can walk out after three or four or five. So it creates an enormous penalty. You can't go to trial anymore without taking an enormous risk. And that means that plea bargains become the currency of the system much more than they ever were before. And so it's an enormous problem for those of us who are trying to be the advocates as opposed to greasing the wheels of the federal criminal justice system.

North Carolina and was wrongfully accused of murder. And the police put enormous pressure on his co defendants in the way that I just described, to cooperate against him and each other, sort of like the Central Park five case. All of these people started making statements against each other. This young man absolutely insisted on his innocence and he refused to make any statements incriminating himself or anyone else,

despite the pressure. But now he's sitting at his other All of his co defendants have pled They've all agreed to testify against him. He's sitting in a jail in a rural county, a black man in a white county who is facing an all white jury. All of his co defenders are going to testify against him. He's twenty one years old. He has a two year old daughter in Detroit. And they offer him a plea to manslaughter

with a maximum sentence of ten years. And he's told that if he doesn't take that, they're going to tryumph for first degree murder. He'll be facing the death penalty, and he'll be facing it in a county with an all white jury. And he is a young black guy from Detroit in a rural North Carolina county. So you know what does he does? He doesn't, you know, flip on these other people. He says, I'm gonna plead guilty

because he cannot risk the possibility of being sentenced to death. Right, So is it surprising that he would enter a plea

of guilty even though he completely insisted on his innocence. No. We flash forward ten years and in North Carolina there's something called the North Carolina Innocence Inquiry Commission that reviews cases like his on request, and they unanimously find three judges of the North Carolina Superior Court unanimously fined despite his plea of guilty, that he's absolutely innocent, and he is exonerated. So there's no doubt that he pled guilty to something he didn't do because of the pressures that

were exerted on him. I'll give you a less dramatic example. Somebody is arrested for a misdemeanor and his bond is set at one thousand dollars, which he can't make, and he sits in jail for a week, a month, two months, three months. He loses his job, his apartment is at risk, his custody of his children is at risk. He has no control of when his case is going to be called for trial. And his lawyer comes to and says, listen, the prosecutor is offering you a deal. If you plead guilty,

he'll agree to time served. In other words, plead guilty and it's a get out of jail free card. On the other hand, if you want to insist on your trial, we don't know when we're going to get to that. And you're going to sit in prison on one thousand dollars bond or jail. So what does the person do in that circumstance. You know, the choice is really not a choice. And so those are the kinds of pressures that are brought to bear on people every single day in our system.

absolute alibi on the day his wife was murdered. He was at the hospital in Charlotte, North Carolina all day that day, right, you know, every moment of his time was accounted for, and his wife was brutally, brutally murdered. And the police began their investigation by focusing on a handyman who had worked at his house, who had a criminal record, and who his wife's friend said, you know,

we think this is the guy who did it. He was just acting suspiciously around the house, and the police had all kinds of evidence that this guy was in and around the neighborhood that night acting suspiciously. So it was really a pretty strong, circumstantial case against this fella. And then the police found out that Ed Freeland had had an affair with a nurse, right and everything changed. At that point. It was, aha, he's the guy. He

did this because of the affair. And then of course the police decided, you know, he really wasn't acting right when we came upon the scene. You know, he hadn't rushed over to the body the way we would expect a husband to rush over to the body, and he wasn't hysterically crying the way we would expect a husband to be crying. You know, they didn't bother to consider whether he might be in shock. Sure, and that the fact that people react differently the situations is sort of

well known. So all of a sudden, this narrative began to form, and the investigation went on for four years, and the district attorney kept saying no, we don't have enough to indict him. You know, he has this alibi. How are we going to indict him? And so the police decided, well, we need to establish that his wife

died before he left for the hospital. So they got a hold of a well known pathologist who agreed out of state, you know, first time ever that they went outside of North Carolina to a New York pathologist medical examiner, and got this fellow to say that in his opinion, that time of death was prior to eight am in the morning, and based on that they got an indictment. I represented ed and I was fortunate enough to be able to find the expert who undermined this doctor's opinion,

this medical examiner's opinion. But more importantly, the police had taped an interview with this expert and in that tape they clearly sort of fed him facts and he said, I don't really think I can give you what you need. This was before he agreed to help them, And they had turned that tape over in a dui case because they were giving the public defender the dui call ins. And what they didn't realize what they hadn't erased the prior discussion and so I got a hold of that tape.

The public defender realized what it was, called me, gave me the tape, and so now I could totally undermine that medical examiner's testimony. And then we were able to get, because the judge ordered it, all of the evidence that the police had hidden from the prosecutor about this handyman that the prosecutor had never heard of. And at that point, after four years of being under suspicion and a year

of being under indictment, the charges were dismissed. So that's the really good example of how tunnel vision, how confirmation bias, can take the police away from where they should have been focusing and onto a totally innocent person. And the result of that, by the way, way, is that that handyman was never charged with her murder, and three or four years later he ended up killing another woman.

have absolute immunity for their prosecutorial dicisions. So, for example, if a prosecutor hates me and decides he's going to indict me because he hates me and makes up all the evidence and brings it to a grand jury, and they indict me, and I can prove that and the charges are dismissed, I have no cause of action against that prosecutor. He has absolute immunity. What's the theory, and that's created by the Supreme Court that it's purely a

judicial creation. Why what's the rationale for that? Well, prosecutors have to exercise their discretion without fear of being sued, and so we have to give them absolute immunity so that they can make decisions without any fear. And in theory that's probably a reasonable position, but in practice it has led to a complete abdication of their role in screening cases and in weeding the weeding out the weak cases from the strong cases because they have nothing to fear, and that's a real problem.

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Friends without dr Best Fiends. Now, we talked about how some of these things could happen. Employing certain things and you get to fabricating or planting evidence for implicating a suspect in a crime. Again, we just talked about the immunity, that absolute immunity that prosecutors have. Tell us how fabricating evidence came into play in the Michael Peterson case.

have any evidence against Michael. You know, they had, you know, some character assassination evidence that he was bisexual. They had some circumstantial evidence that the wife of a friend couple of his and his former wife's had been found dead of at that point a cerebral hemorrhage at the foot of a set of stairs, which is where his wife, Kathleen had been found, and that was it. They had no motive, uh one. Everybody said the couple got along terrifically.

There was nothing, and so they needed evidence because they were convinced that Michael had committed this crime. And so here comes Dwayne Deaver. He's works for the state Buar of Investigation. He's called in to help the detective prove his case. And you know, it's in precisely this situation where there is a paucity of evidence against the suspect that the possibility of fabrication or planting of evidence is

most problematical. Because the police are convinced they're right, they don't want to see this person escape his just punishment, so we need to sort of create some evidence that will make sure that justice has served. And so it's become known as noble cause corruption. You know, it's really a fancy way of saying the ends justify the means, the ends being let's convict this person because he's guilty, and the means are, let's fabricate some evidence to make

sure that happens. And that's what happened in my judgment in the Peterson case, and it happens all the time in cases, particularly where the evidence is weak, as it normally is, when guess what the person's actually innocent.

was the end of the case. Well, some years ago there was a train bombing in Madrid, Spain, and you know, fingerprints are ubiquitous on the web, and so they lifted some fingerprints from a timer and lo and behold, it came back to match a lawyer in Portland, Oregon who was an American but who had become a Muslim, had married a Muslim woman, and you know, the fingerprints were identified as being his, and so all of a sudden, you know, he's being declared at first the material witness,

and then he's clearly a suspect and he's about to be railroaded on this until the Spanish authorities figure out that the fingerprints actually match someone who was on their watch list as a terrorist or a potential terrorist, and they go back to the FBI and say to the FBI, know, we think you're wrong, and you know, the FBI is quite sure themselves, and of course confirmation bias is kicking in here because this lawyer, although he's an American in Portland, Oregon,

has never been to Spain, you know, is a Muslim. You know, he's a practicing Islam and his wife is, and so you know, obviously that's another piece of the puzzle. So you know, and the end of the story is that the FBI finally agreed that no, the fingerprints didn't match this guy. And probably what it happened was that the fingerprints were sort of close enough, you know, for government work. Then the fact that this fella had these other suspicious so called associations pushed it over the edge.

And again it's one of those situations where confirmation bias and tunnel vision ultimately causes wrongful accusations and convictions. It's not that the FBI was trying to you know, set up or falsify evidence against this lawyer. It was that it was close and then confirmation bias kicked in.

Let's take tire tracks, tool marks, handwriting, anything that involves a pattern where there is no objective way of validating the opinion, right, where there is no way of recreating the opinion, where there's no validity testing of the expertise of the alleged person who's reaching the opinions. In contrast, for example, to blood typing or to DNA analysis, right where you know, you you have standards, other people can review the results, the results are uniform, uh, and can

be verified and duplicated. You don't have that with these pattern pieces of evidence, you know. Uh. A blood spatter is another example. All of these of these sort of pseudosciences have somehow become accepted by the courts because people get up and say, this is my experience and this is why I think they match. Here here's another example. Right, So there's there's no way of validating what the findings are.

The way they're validated is if the jury convicted the person. Well, that shows that the valid that that the science was right. And that's that's exactly the wrong way of validating.

or people they know. And for the life of me, I don't see any between those two things. Yet it's accepted and sort of celebrated that that's how you get convictions. So you know, what you have is you have witnesses who are trying to work off their own problems, or they're trying to earn money as a result of rewards and prosecutors routinely use these people, and they are responsible

for a large number of wrongful convictions. As you would expect, what you shouldn't expect is that the system would authorize that kind of behavior.

exonerated people. But where you don't have DNA, which is the vast majority of cases, you have to rely on investigation and turning up defects in what the prosecutor or the police did, because the mere fact that you can prove your client is innocent is not a ground for

overturning their conviction. I can introduce tons of evidence that my client is innocent, but unless I can point to some fact, some procedural defect in the prosecution you know, the failure to turn over exculpatory evidence, the creation of a fabricated confession, unless you know, the use of an unlawful search, unless I can point to some other defect in the prosecution, the mere fact that I'm coming in after the fact that I'm saying, listen, they've got it wrong.

Here's all the evidence, here's the DNA evidence. Here it is he's excluded. That's not enough. Because finality in our system trump's truth and justice, and that is a shocking fact that most people just don't realize.

generally speaking, is something called a sentinel event review. And what that is is, you know, the experts get together, the doctors, the other experts, or the mechanics, the you know, the plane engineers, and they get together and the purpose is not to assign blame. The purpose is to understand what happened, why it happened, and how to prevent it from happening again. That's it. And every time there's a plane crash, the National Transportation Safety Board comes in. It

doesn't matter how many people are killed or injured. It could be a solo plane crash where the person walks away, but NATS comes in and does a sentinel event review. Same thing with medical net Pigeon's cases. But yet when somebody spends forty two years in prison like Ray Finch did and is then exonerated and pardoned by the governor of North Carolina, there is nothing that happens to review what happened, why it happened, and how we can prevent

that from happening again. So that's the first thing that I think needs to be addressed, is making sure that we don't just rely on you know, money damages to deter this in the future, that we actually spend the time and the resources necessary to really understand this and then to try to prevent it. How do you prevent it? I think that to the extent you can, it's a

matter of training and selection of officers. So, you know, for one thing, you know, we need to make sure that that police officers are being screened to make sure that their personalities and abilities are appropriate for the tasks

they're being asked to perform. And then we need to train them, just like we train doctors in confirmation bias by requiring them to make what's called a differential diagnosis, where they have to work their way through various possibilities and rule those out before they come to a final diagnosis. The whole purpose of that, obviously, or one of the major purposes, is to address confirmation bias, and so we

need to do the same thing with detectives. They need to understand that when they're investigating a case, what they should be doing is not just trying to prove that somebody did it, but trying to prove that other people didn't do it. You know that the other possibilities are not accurate, and so that would go a long way.

And then you know, I think that detectives in particular and prosecutors and judges need to be trained in confirmation bias and what that is and the fact that exists for all of us, because until and unless you're aware of the issue, then you're going to be subject to it. Once you're aware of the issue, it doesn't mean you're not going to be subject to it, but what it does mean is that you're aware of it and you can try to control it because you're aware of it.

have the resources to prepare those cases. They don't have the resources to hire experts, whereas the states generally have unlimited resources. And so doing more to fund public defenders and to make sure that they have adequate time to do their jobs is one major step towards trying to correct the problems of poverty and racism. In the criminal justice system.

person's life. So I can't even begin to calculate how many of those there are that don't end up in convictions. But beyond that, I think it's fair to say that for every wrongful conviction, there are scores of people who are sitting in prison who have been wrongfully convicted but who have not been exonerated. Why is that, Well, first of all, in order to be exonerated, generally, you need to have a lawyer who's going to be able to devote the time and energy and resources necessary to gather

the evidence to exonerate you. And once you're sitting in prison, it's pretty hard to find a lawyer, particularly on a pro bono basis, who's going to do that. And so the people who have been exonerated were fortunate enough to find a lawyer, you know, generally some sort of an innocence project at a law school who were willing to take on their case, so that again sort of sets

them apart as unusual. Then that lawyer needs to be able to have the fortune, good fortune, or perseverance to find evidence that supports the motion for a new trial or for exoneration. Again, at that stage, many people drop away because the lawyers just can't find the evidence. You know, a case is thirty years old, all the DNA is gone, the witnesses are dead. So people who are exonerated passed

through that hurdle. And then, of course, once you have that, then you have to get passed the judge who is so focused on finality that the fact that there may be an injustice here is somehow less important than just putting this to rest. Enough is enough. We can't have these interminable appeals, so let's just deny this and let's all move on with our lives. So, you know, the people who have been exonerated have passed through each of

those significant hurdles before being exonerated. So what does that tell us? It tells us that for every one of those people who are able to pass through those hurdles, there are a number of people. I can't tell you have many, but it's scores who are in the same position but just weren't able to pass all those hurdles.

is it doesn't begin to compensate these people. So, you know, for somebody like Tim Bridges, who spent twenty five years in prison for a rape and murder that he didn't commit. From the age of about twenty two to the age of forty seven, he was in prison, he was sexually assaulted in prison, he would put himself into solitary confinement

just to protect himself. And finally he was exonerated by the Innocence Commission, found to be actually innocent, and we were able to negotiate a very large settlement from the City of Charlotte because their police officers had engaged in misconduct. But that all that did was to enable him to begin to put together his life. But he's beginning to put it together at age fifty, and you know, we can't make up for those twenty six years in the prime of his life that he lost. He can't have

kids anymore, he doesn't have grandchildren. You know, family members died while he was in prison. He couldn't go to their funerals. He couldn't say goodbye to his mom, who he loved dearly. You know, you can't compensate people for that. The best you can do is money, and it's a poor, poor substitute, and frankly, it's not going to deter this kind of conduct going forward because the people who actually engage in that conduct, they don't have the money to

pay and they're not responsible for the damages that are awarded. So, you know, from my perspective, I think it's important to pursue that because otherwise these people can't get jobs, they can't get housing, they can't they can't do anything in their lives. They have a you know, a twenty six year old in their resume. Yeah, you know, what are they going to do? So it's important work. Don't get me wrong, But I don't take any any gratitude from that.

It's it's just the best we can do. Yeah, it's also dramatic.

watch the Staircase, you can see it yourself. Between between episode eight when he's convicted and episode nine when he's brought back for his post conviction hearing. Yeah, it is. It is shocking to see. And then after after that, I won't spoil the series for anybody, you can see him sort of begin to get back to his old self again. Yeah. Absolutely.

Justice System. David Rudolph, thank you so much.