75% of Exonerated Women Were Convicted of Crimes That Didn't Even Happen (!)

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:57 Thomas: Hello and welcome to Opening Arguments. This is episode 1163. I'm your host, Thomas Smith, and today we'll be speaking to Indiana University law professor Valena Beety. This is a really, really interesting one. She's done lots of great work on innocence, on wrongful convictions, and she has a new legal research paper called Unfit Gender Ableism and Reproductive Wrongful Convictions. There's some shocking stuff in here about how often women are wrongly convicted around things that happen to their children. Obviously, for me in particular, this is a bit of a tough subject, but we don't dwell on any of the sad details of these. Whether it's miscarriages or stillbirths labeled as criminal, testing positive for legally prescribed medicine, or other kind of tragic things that happen. Oftentimes the mothers are blamed and treated as criminal when they absolutely are not, and when no crime even happened. We're going to learn more about that and all kinds of other interesting stuff. Melina's got a really interesting background and story that I can't wait for you all to hear. So that's what's happening today. Let's see any any announcements. Oh, got a lot of gavel gavel out, just all kinds last month. Make sure to check that out if you'd like. And of course, High Court is out. That's to the $2 patrons and above at patreon .com slash law. Hope folks enjoyed that. Give us some feedback. And that's all I can think of for now. We're trying to do video Q &As. We were trying to schedule that. So keep an eye out for that. Be fun to do the live Q &A again, get your questions and kind of interact with the audience in real time. So lots happening there. As always, you can find information about that and avoid the annoying ads at patreon .com slash law. That's where to go. So after some said annoying ads, we'll get over to the interview with Professor Valena Beety.

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0:02:37 Thomas: And I'm joined by Professor Valena Beety. How are you doing today?

0:02:40 Valena: I'm doing great. Thanks.

0:02:41 Thomas: So we caught wind of your law review paper that we thought was very interesting called Unfit Gender Ableism and Reproductive Wrongful Convictions. And we thought it'd be a great thing to talk about on the show.

0:02:45 Valena: Thanks. Fabulous.

0:02:52 Thomas: But before we do that, you want to start with a little bio?

0:02:54 Valena: Yeah, sure. So I'm a law professor at Indiana University, Maurer School of Law in Bloomington. I'm Hoosier, so I grew up in Indianapolis and I'm happy to be teaching in my home state. I'm also a post -conviction litigator. I am one of the founding board members of the Indiana Innocence Project, so we represent people who are wrongfully convicted in the state of Indiana and support them in overturning their wrongful convictions. And that's work I've been doing for about the past 15 years. I went to law school because I had been a rape victim advocate. I would respond to hospitals around the city of Chicago. I was on call and I just felt like there wasn't enough happening to prevent assaults from happening in the first place. And so I went into law school to become a prosecutor. And I, yeah, I got my dream job. I became a prosecutor of sexual violence and domestic violence and realized it was absolutely not my dream job. It was not a fit for me. There's a lot of issues with the criminal legal system and I moved from being a prosecutor to being a wrongful convictions litigator. And that's what I've done since.

0:03:57 Thomas: Yeah. Oh, Oh, wow. I feel like we could talk about that forever.

0:04:14 Valena: Yeah, well, yeah.

0:04:14 Thomas: But yeah, I was going to say to each their own, but that's an interesting dream job. I get the calling of it, but that would be so intense. I feels like that would really be draining. In what way did it not end up being your dream job?

0:04:26 Valena: You You know, I had a vision of what our system was like, and I didn't really have experience with it. So once I was actually in the courtroom every day, working with police every day and just realizing that our system really does primarily incarcerate people who are poor and people of color and that folks who have other kinds of privilege often aren't even arrested. So just seeing that imbalance and also feeling like, you know, I went to law school. I became a prosecutor because I thought that that would stop cycles of violence. I thoughtthat that wouldstop sexual assaults and domestic violence. And it really didn't.

0:05:05 Valena: I mean, charges were rarely brought. If we got convictions, they were often low -level convictions. So, you know, how much is someone going to change if they plead to a misdemeanor and they're in jail for three months? But on the other hand, it also wasn't really addressing what victims needed and what victims wanted. So I thought I was going to come in and be this white knight and supporting all these victims. And most of the victims I work with did not want charges being brought. That was not going to support them. It wasn't going to sport their families. It wasn't going to support their futures. So just learning all those things, I was unaware of a lot of that when I came into the job straight out of law school.

0:05:46 Thomas: Yeah. And so it's like you still have the same goals, but it's like this is not the place to fulfill those goals. Yeah.

0:05:50 Valena: Yeah. Yeah. Yeah, that's very true. That's very true. Yeah, so now I get to teach students and do research and write, but I also get to represent folks who have been wrongfully convicted and also women who have been wrongly convicted. And this piece we're going to talk about today is kind of about what I call reproductive wrongful convictions, where women in particular, pregnant women in particularly, are facing wrongful convictions and facing a lot of charges with pregnancy behaviors being criminalized now.

0:06:22 Thomas: Well, might as well get get into it. That's a that's a perfect transition. Yeah. So what kinds of things are we talking about? And is this a more recent phenomenon or is this something that's that's long been there, but hidden from view a little bit?

0:06:25 Valena: So in my paper, I talk about how for over a hundred years, we as a society and within our different criminal legal systems have gone after folks who we label as unfit. We use these systems of incarceration to both label people as quote unquote unfit, and then to separate them out from society. And, you know, we see that with our history of eugenics. We see that again for years. But what we're seeing right now since Dobbs is a real ramp up and frankly, political and social support for going after pregnant women and going after permanent women for alleged harm to a fetus, for their behaviors, to police them more, to document and surveil them more. And again, like the ultimate language around this is we're not actually going after pregnant women. We're wanting to protect the fetus and support the fetUS. But when you throw a pregnant woman in jail for months where she gets no prenatal care, she's sleeping on a cot, she is not getting support at all. How is that helping a fetus? And then if you're going after a new mother and then separating that mom from her baby, that's also really damaging for the babies.

0:07:55 Valena: So, and yet politically we see this ramp up.

0:07:54 Thomas: One would think, yeah, it's mind blowing. I don't understand it. Do you think that? Well, because there's probably not this is not your I need to talk to a psychologist. But do you think these people do you Think they think they're helping or they like, you know what I mean? Like, it's like, I know that a lot of the sentiment behind this is like protect the, you know, protect the babies, protect the babies kind of thing. But it's like, like you said, I mean, examine it for two seconds and you're so clearly harming children directly.

0:08:24 Thomas: It's not even like, oh, five steps down. It's like no, like the first step, you know, and so I just wonder, do you think it's, you know, do you think it's all fake or do you think it just really easy to like not think for these folks to think they're doing the right thing and then just forget about it once, once they get past that first step. Yeah. Hmm.

0:08:39 Valena: Well, I think it depends what we're talking about. If we're taking some kind of drug, some kind of controlled substance, and that's the underlying concern, then I think there are a number of folks, and this is also, I mean, we see this in Tennessee, we say this with rural communities, where there's this idea that, well, the best thing is to lock up this mom so that she becomes clean, you know, to dry her out. So it is with this intent that that's the only way she's going to get any treatment is if we bring these criminal charges and get a criminal conviction. And the only place she's gonna get treatment is in jail or in prison. And, you know people with really thinking they're doing something that's good for the mom and for the kiddo or the fetus But that's just not, it's not the reality. It's not the reality that these folks get actual treatment. I mean, again, going back to Tennessee, Wendy Box written about Tennessee as a case example, where they had these charges, and they had all these women who were convicted of these fetal harm charges, and they were largely poor women. And they did not receive treatment. You know, they were treated exactly like anyone else who gets a conviction in our system. Now they were sent to jail, they're sent to prison. So this idea that there will be treatment, I think it's an easy thing to fall back on and say, oh, well, that'll solve it when it doesn't. It doesn't, so that's one side of it. And then another side that I talk about in this paper is disability, and I'm not a disability law scholar, I'm a wrongful convictions scholar, but it just became more and more clear to me that there's this real strong bias against disabled women who are

0:10:28 Valena: Pregnant, who are new new moms. You read some of this work and these women are talking about how they've just given birth and there is a social worker who comes to the hospital to specifically interview them and make sure that the parent or parents are going to be, in the social worker's eyes, sufficient parents and that they're going tobe tracking the parents. So this real surveillance and real criticism. And the sad thing is, is that we do a horrendous job of making prenatal care accessible to folks with disabilities. You know, we don't even have examination tables that'll move up and down in a lot of places. So we're criticizing these moms and saying, oh, well, we're potentially going to remove your children, potentially bringing criminal charges, fetal harm. And our proof is that, well, you didn't get prenatal care. Well, if there's not a way to get pre natal care, and then that's, that's used by the state to say you're intending to harm a child is just ableism upon ableism, I'd say.

0:11:37 Thomas: Yeah. Yeah, wow. It really sounds like the common theme is we're all about kind of the punishment phase. We're all about the like, yeah, you're doing a bad thing and not about like what that would even be for like not about the actual part where we're trying to make any improvements in people's lives. It's like we want to just look around for things that we can punish people for. And it's really sad. But I suppose that's once again, more of more of the pathologizing the society that rather than, you know what you're looking at. So what are some more examples? Oh, good.

0:12:03 Valena: Well I just, I'll just say I do think there's an interest in actually finding solutions and making sure that moms are healthy, babies are healthy. I just think now where it's like, this is not leading to that solution, right? It's kind of like, so the criminal legal system itself was created and is supposed to secure for all of us folks in society, safety. The purpose is safety. Like that's the whole point of why we, right, right. It's safety. And yet if you look at the results, we don't create safety. We just have failed on on that really important metric again and again.

0:12:31 Thomas: Allegedly. Yeah.

0:12:43 Valena: So I think there's definitely people who want safety, who want health. And it's like, okay, well, we got to realize what we're doing right now doesn't create that.

0:12:51 Thomas: Absolutely. Yeah, so what are some more of the examples of the reproductive wrongful convictions that you looked at?

0:12:58 Valena: So Patience Frazier, her story has been covered in the Washington Post. And then a friend of mine, Eve Hannon at UNLV has been looking into her case as well. So Patients Frazier is a woman in rural Nevada, a poor woman really didn't have too many many options. And she became pregnant and she ended up having a miscarriage. And her friends online encouraged her to have a ceremony for the child and to live stream kind of a burial of the miscarrage. So she did that. She live streamed it and she said, I'm sorry. Patience Frazier is ambivalent about whether she wants to have this child. She's in a real tough predicament. But then when she has the miscarriage, she's sad about it. And she says she's sorry in this live streaming. And the next thing she knows, there's a police SWAT team that comes to her home and is asking her about this miscarrage. And initially she's like, what? This is private.

0:13:56 Valena: Why are you here? Why are You asking about this? But after they interrogate her, then she's Like, oh, maybe I did cause this. Maybe I did, you know, intentionally cause an abortion because she took cinnamon. Literally, she's like, oh, you know, I took all of this cinnamon. And so maybe I did. She confessed to the cinnamon intake and maybe I didn't cause it. And she's in prison right now. Yeah, exactly.

0:14:17 Thomas: Oh my god who is that for? That is wow.

0:14:26 Valena: So that's one example. But I think there's a lot of women who are particularly susceptible in interrogations to ultimately taking responsibility for whatever happened, even if they didn't cause the event, feeling like as a mother, they need to take responsibility for it. And somehow it's their fault, even если they didn't take, you know, criminal actions. And then those quote unquote confessions are used against them.

0:14:54 Thomas: Boy that is is depressing. You just would hope like a jury or somebody at some point would be like, hey, this is this kind of sucks. Just why doesn't anyone do that?

0:15:03 Valena: Well, yeah. And it gets even worse because once you get to trial, that's where you get to junk science. So that's where you get to this like unreliable, crappy forensic evidence where like the floating lung test where a woman has a stillbirth, which is tragic. But then she's charged with murdering the child, that she gave birth to a live child and then she murdered the child instead of having a still birth. And so then what does the state produce as evidence for that? Because how are you going to prove that, is something called the floating lung test, which is from, I kid you not, from the Middle Ages.

0:15:43 Thomas: Oh, come on.

0:15:44 Valena: So let's, you know, take a piece of lung and let's see if it floats in water. And if it floating, that means that this baby took its first breath. Yeah, I mean, yeah. And the other sad thing is that it is more known for false positives.

0:15:52 Thomas: It weighs the same as a duck. And yeah. Yeah, yeah.

0:16:02 Valena: So it's more likely that the lung is going to float. And then you got to be like, like, oh, this woman murdered a live baby based on this junk science. I know there's so much there. I do want to say I'm not a doctor, but I have, I play one on TV.

0:16:19 Thomas: But so, yeah, you can't say for sure if the floating lung witch test, you know, works or not. Okay, good.

0:16:25 Valena: Oh, I totally could say that. I can rely on other folks' evidence. But I was going to say in terms of a miscarriage, there really is no medical way to determine whether a miscarriage was induced by abortion medication or whether it was spontaneous.

0:16:41 Thomas: Gotcha.

0:16:41 Valena: So just to make that clear to listeners, there is no medical way to determine whether a miscarriage was induced by abortion medication or was spontaneous. So whatever quote -unquote evidence is brought in to try to charge a woman with having an abortion is incredibly unreliable floating lung test yeah

0:17:01 Thomas: Right. Junk science, as you say, dowsing rods, I don't know what else. Floating lung, I mean, that, I'm going to ask this stupid question. Is there no such thing as a baby taking a breath or two before it might pass away after right after being born? Like, I, I only, the whole premise doesn't make any sense. Nevermind. It's not even worth talking about. It doesn't make any sense.

0:17:20 Valena: I mean the idea is instead that like the baby was born alive and didn't die of its own natural causes but that that baby was fine and that the mom then strangled the baby suffocated the baby like the mom affirmatively with intent killed the

0:17:39 Thomas: Yeah. Yeah, it just seems like you still have a whole lot to go between, you know, points B and C there.

0:17:43 Valena: Baby oh yeah oh yeah

0:17:45 Thomas: Like I get I get the like it will maybe took a breath, but then there's a lot else that I would think you'd need to prove in a court of law.

0:17:53 Valena: Yeah that's where we come back to how does the prosecutor of the state establish this intent that this mom intended to kill this child and that's the state's like oh well she didn't get prenatal care so she intended to do it oh she confessed to taking a bunch of cinnamon so she did it like that's how we get to this intent and that's where we get into the wrongful convictions

0:18:20 Thomas: Well, I feel like lesson number one, never talk to the police. Right. I mean, that's pretty. I've talked to a lot of lawyers on the show. I feel Like that's solid. That bit of advice seems to be true.

0:18:27 Valena: I always say that to my students I'm like it is not in your best interest like you can talk to them with a lawyer present if you want to but um no it's not in their best interest at all

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0:20:22 Valena: I think this is kind of interesting this has been some of my my work in representing folks and also my research If we look at wrongly convicted women, the number of wrongly convicted women who were sent to prison where no crime occurred. So that's what we're talking about here. And if we look at the National Registry of Exonerations, this is crazy. Nearly 75 % of women who have been exonerated, proven innocent, been exonereated, went to prison when no crime occurred.

0:20:55 Thomas: What?

0:20:56 Valena: Yeah, right? Right?

0:20:56 Thomas: What are they being exonerated of? That would seem definitionally to be. Okay. Yeah.

0:21:00 Valena: Right, right, right. Okay, so let me give you an example. So great example is Christine Bunch, who's a board member on the Indiana Innocence Project with me. Amazing person. And she's also Indiana exoneree. So Christine was living with her little son, her three -year -old son, and they had their own home. And she was going back to school. And it was just the two two of them for their little family. And tragically, in the middle of the night, there was a fire in their home and her son died. So Chrissy is able to get out of the house and then she's trying to find a way to get into her son's room because there's big flames that she can't get into it from inside. So outside, she's like trying to break into the window and like her neighbors have to hold her back. And it's just, it's horrific.

0:21:50 Thomas: That's the worst thing I've heard. Yeah, that's terrible.

0:21:52 Valena: It's horrific, right? It's horrific. And yet police didn't see Chrissy as this grieving mother over a tragedy. They're like, oh, you're a murderer. You're an evil, bad mom. You just wanted to get rid of your kid. You didn't want to be a mom. Um, you know, you were a single mom. And you were like, I don't know, I'm not You just want to go and live the high life and not have your son around anymore. Right. Right, thank you. Thank you. So what it ends up ultimately being based on, so they charge charge Chrissy with murder. They charge her with arson and they charge her with murder and they have this forensic expert who says, oh yeah, this fire is from accelerant that's on the floor and there's accelerant in the, so like lighter fluid for example. There's lighter fluid in the little boy's room and there is lighter fluid in the living room and why would there be lighter fluid there, right? So she had to have set this fire. So that's how, we don't have anything to show intent We don't have any witnesses that show that Chrissy didn't want to be a mom or anything, but we have this forensic expert who says, well, we found this lighter fluid. So Chrissy's in prison for years and years,

0:22:02 Thomas: Terrible why what why based on what oh my god wow

0:23:06 Valena: But she finally is able to go back and get the files opened with her attorney and get The Prosecutor's files open. And what does she find? There was no lighter fluid found in the little boy's bedroom. And then the accelerant that was found in The Living Room was from a kerosene heater that was there. Literally, there was a keresene heater, right? So it's the heater. It's the freaking heater.

0:23:32 Thomas: Yeah there's gonna be some reason the fire happened and I imagine yeah

0:23:35 Valena: Yes. Yeah. Yeah. And there are other examples where, again, like, you know, you can think of fires that are started by space heaters, right, or electrical fires. But then prosecutors or police, you Know, turn that into Nope, this person intentionally set a fire, they committed arson, they committed murder. So Chrissy Bunch did not commit arson. She did not not commit murder, but she was convicted of both of those things and sent off to prison.

0:24:01 Thomas: I can't that is just unfathomable and it's like here's what I kills me what happens to the criminals who put her in jail that's a criminal thing that happened they ruin someone's life but does anything ever happen to them never it's all it's not not even, it won't even be like, oh, they don't even get to be a police or a whatever, prosecutor, whatever it is. They don't get it. No, it's not even that. It's not Even like professional consequences. It'll be no consequences. I just drives me insane.

0:24:30 Valena: No, you're right. You're right, I mean, in these kind of police misconduct cases, I always think, like, where a police officer, use of force, excessive use of force, right, where police officer kills a person and they shouldn't have killed the person, right? I always thinking those cases, I'm like, shouldn't you at least lose your job?

0:24:44 Thomas: Yeah. Something.

0:24:45 Valena: Like, at a minimum, minimum, shouldn't you like not be able to be a police officer anymore?

0:24:50 Thomas: So the most horrible thing happens to a person and then they get put in prison. And how long was she there?

0:24:56 Valena: Oh gosh. Over a decade. Actually I think 16 years, 16 years. Yeah. Yeah, I encourage folks to look up her case. She also speaks about her case and she's a really powerful speaker about it.

0:24:58 Thomas: Oh my God. No way. Oh, that is horrible.

0:25:11 Valena: We have Melissa Lucio who was on death row in Texas and the allegation for her was that she shook and killed her little little toddler, when her little toddler fell down this steep set of stairs and landed at the bottom and sadly died from this fall. But instead, police interrogated Melissa Lucio. They're like, you had to have done something. You had to Have been part of this. She finally gives some sort of a confession. And the crazy thing to me about this is that the police go so hard after Melissa Lucio, you abused this child. You abused your toddler. You hurt your child. Um, you killed your child and her husband was abusive, was a domestic abuser of her. And do they even focus on him?

0:25:55 Thomas: My god. Wow.

0:26:01 Valena: Like they're saying, Oh, this child died from abuse, which the child didn't, but let's even run with that. The child died From abuse. Why don't you look at the person who was literally the abuser in the household? Yeah.

0:26:07 Thomas: The most likely in all cases to Yeah. Well, police look at that. They're like, well, no, that's normal. That part. That's fine. We all do that because we're police. So that.

0:26:19 Valena: Oh, yikes. Oh you got some burns today.

0:26:23 Thomas: Well it's infuriating and it's like the most depressing possible thing. It's such a great point. Like we already know this. We already know that like in cases of abuse or anything like this, who do you look at? At least take a look. But like, why do you have any sense of why this is happening? Are there idiosyncratic circumstances that are causing this? Are there, you know, a police seize of something or some random thing that makes them think this? Or do you have any indication of like the cause of this consistent from what you're saying pattern of just blaming the mother? What is it? What's happening?

0:26:32 Valena: Yeah, yeah, yeah. I mean I think it's sexism. I think its power and sexism and frankly I do want to raise up because this has been kind of a downer episode so I want to rise up some positive news from the Supreme Supreme Court, actually, that the Supreme Court came out with an opinion this year where they were like, listen, there's a lot of these cases with gender biased, sex based, stereotyped evidence, and that shouldn't be let in.

0:27:25 Valena: You know, if it's just like this prejudicial stereotype evidence, it shouldn't been let in, that's a due process violation. Right.

0:27:33 Thomas: You would think.

0:27:34 Valena: And so that's Brenda Andrew versus White. That's Brenda and Andrew's case in Oklahoma. But the Supreme Court has even said this year, you know, this is a problem and we're actually going to address it.

0:27:45 Thomas: Yeah. First off, you Know It's a Bummer episode if you're bringing in the Supreme Court as the good news part of it. You know, that's a bad, that'S a bad sign for the episode. But wow. OK, so, you know, what's so funny is I had read that that little part, that little blurb about that case. And my brain just assumed that case went the wrong way. I just I think I just my autocomplete of my brain was like, great. What are these assholes do this time? And I'm so glad to hear that this is good news.

0:28:09 Valena: Yeah, it is.

0:28:12 Thomas: OK, what do you what were the details of this case? Do you want to tell us a little more about it or.

0:28:16 Valena: Sure, sure. So Brenda Andrew is the only woman on death row in Oklahoma and her case is very different from other death row cases. First of all, it's allegedly a kind of murder -for -hire type case where she's having an affair. She's married, she's having an affair, and the person she's having an afair with murders her husband.

0:28:39 Valena: Brenda's argument is that she was not part of this. The courts obviously did not agree with her on that. But regardless, like for being on death row, like she's not even alleged to be the person who pulled the trigger, killed her husband, etc. So she's charged with murder, she goes to trial, and And the prosecution's evidence is all about how Brenda is a bad mom.

0:29:07 Valena: No, she's flirting with men who are not her husband. She's flirting with them in front of her child. I mean, they literally introduce it into evidence. It's like, what does this show of anything? She has this book of like 100 ways to drive a man wild in bed.

0:29:22 Thomas: Oh come on.

0:29:22 Valena: You know, like, who cares? Who cares? Maybe that's a sign of a healthy relationship, right? Oh, and then what was she wearing? So they have testimony about what she would wear.

0:29:32 Thomas: Is she wearing? Was she wearing a murder outfit? What does that have to do with anything?

0:29:36 Valena: Right, right. I know, like all these things. And the real kicker and the local Oklahoma paper that covered this at the time, so this is early 2000s, local Oklahoma newspaper was like, people in the audience gasped, right? They gasped at this evidence. So the real picker was in closing arguments, I know, I know, it's so dramatic. So in closing arguments, the prosecutor whips out this lacy thong underwear, this black lingerie and says, is this what a grieving widow would wear?

0:29:57 Thomas: What year is it? 1870? Like what? It just is so... Okay, sorry. Go ahead. Oh, come on. Oh my God.

0:30:19 Valena: Is this what they would wear and then says, that's the evidence. That's what we have. It's like, what? You have have a thong? Like, oh my gosh.

0:30:26 Thomas: What are you talking about? First off, rules of criminal procedure. Are you even allowed to just whip out new evidence? No, it was probably from earlier or something. But yeah, that's insane. I can't even believe that. Okay. No wonder this Supreme Court had to step in when it's too far for this Supreme Court. I guess things were really bad. I come on.

0:30:50 Valena: Yeah, but you know, the crazy thing is, and this is true with so many of these cases, is that the lower courts, pardon me, have just been cowards. You know ,the lower courts are like, ah, yeah, this is really problematic, but harmless error. We're going to uphold the conviction. Harmless error. That's what they fall back on all the time.

0:31:03 Thomas: Harmless error. Wow. Yeah.

0:31:08 Valena: Yeah, there's an error here. There was a mistake. There's a legitimate mistake, but it was harmless. Person would have been convicted anyways. So we're just going to ignore this. Drives me crazy. So the lower courts all the way up, and there were some powerful dissents, but the lower court's all the up said, eh, she's going to stay on death row. She's going to be executed.

0:31:27 Thomas: Unreal. And let me guess. Clarence Thomas still voted not. He is the most

0:31:27 Valena: So it was on the Supreme Court. How'd you guess? How'd ya guess? Yeah.

0:31:33 Thomas: Like, yeah, oh, because he's the worst on these issues. But it's either going to be what, an 8 -1 or a 7 -2, hopefully.

0:31:41 Valena: Oh, you know what? I'm not remembering what the breakdown was, but you're right. The Clarence Thomas wrote to dissent yeah yeah

0:31:43 Thomas: Okay. Yeah, he's really bad on these ones. He just wants people to just die. He's like, there's too much time that this person's alive and they should die faster. Almost every time. It's the same thing. Oh, these nonsense appeals. They're just running out the clock and whatever. It's like no, that seems like a pretty good appeal.

0:31:59 Valena: Yep yep it's like that's actually due process and guess what when you have like so many people who are on death row who have been proven to be wrongfully convicted uh maybe we should have these appeals maybe we shouldn't have due process

0:32:10 Thomas: I think if you've got like one, then that's like, oh, shit, something's gone very wrong.

0:32:15 Valena: Yeah the crazy thing is though maybe not the more heinous a crime or an alleged crime the more tunnel vision there is for prosecutors and police and they lock in on someone and they're like we have to go hard on this so then you see all these wrongful convictions for people on death row like the most serious of offenses it's like we got the wrong person and then that means a true perpetrator is out there somewhere I mean it's just like seriously

0:32:23 Thomas: Yeah, yeah, that makes sense. Yeah, Yeah, Yeah, they, oh man, yep, yep.

0:32:41 Thomas: That's the, I mean, that's the worst part, even on their terms, like I get the, I'm just not a crime and punishment -y person at all. And I, you know, whatever I get on it, I'm a lefty, whatever. But like, even On Their Terms, the part where it's like well, but you might be getting a wrong person, you You know, even on your terms where you're really scared of all this stranger danger, murdery, whatever, like you should still want to make sure you have the right person.

0:33:02 Thomas: But I just think for most people, it's like so much cognitively easier to just be like, no, it'S the right Person, kill them, done. Like they just don't have to worry anymore or something. And yeah, that part, oh, that's so true. I can't remember what this reminds me of. But that thing that you said about the more serious of a crime it is, what you really should be doing is the opposite, as you say. The more serious it is the more careful you should be, the more, especially the harsher your punishment. She'd be like, whew, we got to make absolutely sure that this is the right person. But it really seems like our stupid society does the opposite. Well, they're like, well, it's such a serious crime that like, we can't take the chance that of not killing this person.

0:33:37 Thomas: You know, it's just like, that's not how it should work. That's the opposite of how it should work, yeah, yeah.

0:33:37 Valena: Yeah and it's also once you're charged you're damned you know this oh you're innocent until proven guilty I mean on the books. But in reality, the minute you have those charges against you, particularly those really serious ones. So I first started doing innocence work in Mississippi. So I worked for the Mississippi Innocence Project. And two of our clients were Kenny Brewer and LaVon Brooks. And Kenny Breuer went to. Yeah. Well, they're they're famous now because they've been exonerated, which is great. Yeah, but they're both from this small area, Macon County in Mississippi.

0:34:06 Thomas: Wait, I know that name. Oh, okay. Well probably why? Why yeah yeah

0:34:22 Valena: And tragically, there's a little girl, two, three years old, who's abducted from her home and sexually assaulted and drowned and murdered. It's horrible. So prosecutors and police believe that it's Kenny Brewer who did this, Kennedy Brewer. He is charged, convicted, and receives the death penalty. Well, a couple of years later, there's another and is a little black girl was the first girl. So a couple years later there was another little black girl who's two to three years old, who's abducted and raped and murdered and drowned in that same town.

0:34:54 Valena: And we're talking about like a rural area in Mississippi. Okay. Not many folks there. And it's like, Oh, didn't you already lock someone up for that? So then they go after Levon Brooks and And LaVon Brooks, by grace, received a life sentence instead of a death sentence. And once they got DNA evidence, a couple years later, they found that the true perpetrator was actually a third person. And he was on the list of suspects both times for the police, but the police just didn't get to him because they're like, oh, nope, it's Kenny Brewer. Oh, nope. It's LaVone Brooks. And so they just didnít do the due diligence of looking into all the suspects. And so this man murdered two little girls. And it absolutely would have been preventable, at least for the second little girl, if police had gotten the right person the first time. I mean, those are the things that haunt you. Those are the things that make it a reality that I mean.

0:35:42 Thomas: That's that's horrible yeah yeah that haunt you and I they don't haunt the police they're fine there's things that just haunt us and the listeners of the show and then we're like wow this is a horror show how's this happening the police no all right I don't care I don't understand it I'll never get it why we quit if you did that quit your job and go die I don't understand how you could manage one of those like how could you ever deal with that knowledge that like not only did you wrongfully convict someone you probably caused that in a way that second child's death and they find a way they find away to that's not their fault or they you know often they'll be like well they were not together or something you know yeah

0:36:27 Valena: Well, like you were saying, it's the cognitive dissonance. Right? So the prosecutor in that case, even after both of them were exonerated by DNA evidence. And the true perpetrator was found, was like, well, no, they must have played some sort of role in it. They must have done something, right? Like they can't get beyond it. Yeah, yeah, exactly. So it's this fixation of like, wow, we couldn't have gotten it that wrong. It's like, Well, you did.

0:36:37 Thomas: Yeah yeah why just because we want it to be true yeah yeah yeah child murderers are famously they they network, you know, they, they they kind of, that's too dark, but like, yeah, they're, they're very, they'RE very social. They're very. Yeah. It's like, come on.

0:36:54 Valena: Right, right. Exactly. There's a whole club on on Facebook, right? No.

0:37:01 Thomas: I want to talk about this 75 % figure that we, we touched on. How do we know that? Cause that's still, I mean, you went through a few examples, but that still seems, I'll be honest. That's still crazy.

0:37:09 Valena: Hi.

0:37:10 Thomas: Yeah, like I'm, I'm like, that'S where does that stat come from? How, what are more examples of the women? And again, to remind people that's you're saying that specifically women, right. That are exonerated there was never a crime so it's like the fire situation where it's like there just was no crime

0:37:14 Valena: Yeah, yes, yes. 75 % of known exonerated women. Yeah yeah or the child falling down the stairs and they're like you murdered and abused this child and it's like no the child fell down these steep stairs and yeah exactly. Shaken baby syndrome is another one of these areas. Yep.

0:37:38 Thomas: Right right boy that's a depressing stat

0:37:42 Valena: It's shocking. But I think it's really helpful because then you start thinking about how to litigate wrongful convictions in a different way. Because if no one committed the crime, if there was no crime, then that means there's not going to be DNA evidence that shows, oh, it wasn't Valena. It was Samantha.

0:37:59 Thomas: Yeah right you're not looking for like the other set of fingerprints or whatever yeah mm -hmm

0:38:04 Valena: Exactly. Exactly, and so it really, I think it's an important reframing for how to represent people post -conviction. And frankly, I also think, just to go back to the harmless error point, I've really been an advocate, and there are states that have this, of cumulative error, of a miscarriage of justice, manifest injustice, where it's like, okay, did our system get this so wrong that we shouldn't uphold this conviction? Where there's so many mistakes that even if our defendant doesn't have DNA evidence to show, oh, 100 % proof positive, someone else did it, because these women are not going to have that. Can we still say, and there's a legal way to do this, can we still say through miscarriage of justice, manifest injustice, cumulative error, that we cannot uphold this conviction? And to give a shameless plug, I have a book about this called Manifesting Justice, Wrongly Convicted Women Reclaim Their Rights, where I talk about this. But it's like, what about the court saying, okay, we now have evidence that the police officer lied on the stand. We now have evident that there was faulty forensic evidence provided that's false. We now know that the eyewitness was mistaken. Some of these, you know, known factors of wrongful convictions. We have all of these in a case. Maybe we shouldn't uphold the conviction. Harmless error, right? Because you don't have DNA evidence to a hundred percent show that someone else did it, then this is harmless error. When instead, if you're thinking about these combined, you're like, ooh, this is a lot of problems. And you can pick them off one by one. Oh, okay, fine, the officer. Oh fine, the eyewitness. Fine, the forensic evidence. But when you combine them, you're like, oh, this is not a conviction we should uphold.

0:38:54 Thomas: Right, oh please yeah wait you have all of those since then there's still if you have any of one of those I would, but yeah. Yeah.

0:39:53 Valena: This person at a minimum should get a new trial.

0:39:56 Thomas: Well, I've always said when it comes to anything, you know, and I don't know what kinds of things you're talking about, but when it comes to anything bordering on police misconduct of any kind, it should just be a get out of jail free card. If for nothing else, the incentive like it's like it might be OK, that might mean a guilty person goes free, but you cannot create the incentive structure where police can lie or commit misconduct or do whatever. And then the worst thing that happens is like nothing.

0:40:23 Thomas: That's terrible. The only thing that will work is creating the disincentive by letting that person go free. They don't want that to happen. It's the only thing That'll work. And it's shocking to me that that's not anywhere close to how it actually works.

0:40:36 Valena: Yeah. If you look at Louisiana, for example, Louisiana is a great example where you have police officers who ultimately were convicted and went to prison because of their repeated misconduct setting people up. Literally, yes, yes. I mean, you know it has to be bad. It has to be really bad.

0:40:49 Thomas: That's so nice. I've never heard about that. Everything I've ever looked into, you know, just covering. Yeah, it must be really bad. Or maybe they did it to another police officer or something, the wrong victim. It's got to be some reason they actually got in trouble.

0:41:03 Valena: So Emily Maugh was director of kind of civil rights division, like a conviction integrity unit for New Orleans Parish prosecutor's office. And so So she started looking into, okay, maybe for these cops that we know who literally have been convicted for setting up people, maybe we should look at the cases that they were lead detectives on. Maybe we should see if these are wrongful convictions, right? Yeah. And there are conviction integrity units like in Detroit where, you know, they're not saying they're about innocence. Instance. Instead, they're like, no, if we know that police had egregious misconduct here, that's enough for this person to get a new trial.

0:41:25 Thomas: You would think. You sure would think, yeah, wow, why doesn't that exist everywhere? And so are these kinds of things just, you know, like laws that need to be passed? I'm sorry for the ignorant question, but like when you talk about, oh, some states have this cumulative, you know, error standard, whatever that is, and you can tell me exactly how that works. It's just like a grounds for appeal. Like, how does that work? Like the structure of that, the actual mechanics of that. And how do states get that?

0:42:02 Valena: Yeah. Yeah, yeah. So that is usually post conviction and you can have it in your statute. You can write it into your statute, there's a number of states that have it and don't use it. So then it's just courts need to have the courage to to say, hey, there's enough problems in this case that it's a miscarriage of justice. I'm going to look at them cumulatively, these errors, and the person gets a new trial. I mean, again, because we're talking about in each of these cases, it's not this person gets their conviction reversed and they're walking out into the street, as much as I want that for wrongly convicted folks. Instead, it's the prosecutors can rebring the charges and they get a new trial. They get a new trial without all of this tainted or false evidence. So it's in statutes. And what it means is, you know, we're talking about harmless error and that the court can say, oh yeah, the police officer lied on the stand, but that's harmless error. The person would have been convicted anyways. I know. Yeah.

0:43:11 Thomas: Definitionally not harmless error. I'm sorry. The police officer lied. Harmless air. No. Right.

0:43:16 Valena: Yeah, or there are problems with the eyewitness identification notification or this person was on the stand and was paid off by the state and that wasn't disclosed.

0:43:26 Thomas: I could see harmless error is like, oh, lost part of the paperwork as we were. I can see there being harmless error that's actually, yeah, you don't want to like throw out an actual bad person's conviction because someone forgot to photocopy. I don't know. Some random actual harmless error that's not police like lying on the stand that's not that it's just crazy yeah

0:43:41 Valena: Yeah, sure. Something that's actually harmless. Yeah that's what we've seen. We've seen courts relying on, you know, we just want to uphold this conviction and so we're going to acknowledge, okay, you're right. You're right, something really messed up happened, but it's harmless. So cumulative error is just like, oh you know what, if we look at these issues together other. We really can't uphold the validity, the reliability of this conviction. We can't uphold it.

0:43:59 Thomas: Frame you once shame on us frame I don't know yeah yeah but I think I'm asking and sorry from more like a law 101 perspective like I don't even know how that crap works like if you if you're in a state where there's not that you can't like if like let's say you're working you're doing you stuff you're Doing Your Job where you help people with post-conviction and relief. You just don't have the option to be like, hey, I think since there's been so many errors, maybe this whole thing is crap. But in a state where you do have that, you're able to like use that as one of your arguments? Or how does that work? Just like the, you know, the basics of that.

0:44:16 Valena: So new trial. Yeah, yeah, yeah. Yeah. Yeah sure. So if it's on the books in the statutes in the state you're in, and I just recently did this, then yes, you can argue it to the court. And in states where it hasn't been used before, I really encourage folks to bring it up, to raise it, to say, look, this is part of our laws. This is reasoning for the court to consider.

0:45:04 Thomas: Worth a try. Yeah, yeah, yeah. Yeah.

0:45:13 Valena: We've seen Massachusetts has really been bold in the past 10 years of developing the case law around this. It was just a little statute, but their courts have said case after case after case, you know what? Miscarriage of justice, cumulative error, we're going to reverse the conviction for a new trial. So argue it if it's in your state. If it's not in your state, I still put it in anyways. And I say, there are other states that look to this doctrine because even if you, well, sorry to say that, but there's a bunch of them, but the judges always love that.

0:45:38 Thomas: That don't suck as much as ours. No, I'm just kidding. That doesn't work. Yeah that's not a good, good tactics.

0:45:49 Thomas: Yeah you're, that's why you're a lawyer I don't I wouldn't yeah yeah

0:45:51 Valena: It's also good that it's in writing because then you're able to tamp yourself down, right? When you're like, this is so horrible. Yeah. And then you'RE like, like, okay, let's, you know, be more reasoned. Yes. Let's be a lawyer, right? So I always suggest raising it. And then you can also advocate for the statute to be changed,

0:45:55 Thomas: Yeah fair you're free you can write a first draft for fun yeah tone it down okay

0:46:13 Valena: For the legislature to change it. Then the other thing I want to say, going back to Emily Ma and New Orleans and the Detroit Conviction Integrity Unit, there are prosecutors' offices that have conviction integrity units that will seek to resolve a wrongful conviction case. Like if an innocence project, if a defense attorney, even if individuals writing on their own who are incarcerated, bring a case with the evidence to these conviction integrity units, the unit can investigate the case on their own. And there really are these units that we'll say, hey, you know what, we agree that this conviction should be reversed. Let's go to the court together. And let's see about getting it reversed. So that's really powerful when you have the prosecutor agreeing.

0:46:16 Thomas: I would think so yeah wow

0:46:59 Valena: Yeah, though I will tell you there is a case just in the past, oh my gosh, few weeks in New York where judge said, even though the prosecutor and the defense agreed that the person had been wrongfully convicted, the judge was like, well, I just, I can't grant you relief. I can reverse your conviction because this could open the floodgates for other people to make the same claim.

0:47:18 Thomas: Because we know how often prosecutors are like hey yeah we agree that this person yeah that happens once and never it weirdly is happening the wrong way a bunch of times with like Mayor Eric Adams and some you know some random weird weird examples.

0:47:23 Valena: Right? Right? Very rarely, very rarely. Yep, yep, yep.

0:47:32 Thomas: But other than that, it doesn't often happen.

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0:48:58 Thomas: Well, we covered a lot of stuff. We talked about a lot of wrongful convictions. I want to make sure that we addressed enough of the new paper, the new law review article. Is there anything else in there that we missed that we didn't get to go over?

0:49:10 Valena: I think just this toxic combination of junk science with gender bias and these reproductive wrongful convictions and these reproductive charges, I mean, again, it's no surprise that women are wrongly convicted where no crime occurred.

0:49:20 Thomas: I I mean, it is kind of a surprise. I'll be honest. It is. It should be at least a shock. Like, yeah. Yeah, sure.

0:49:28 Valena: Well, it is not a surprise to me. Yeah. And to answer your earlier your question. So that information comes from the National Registry of Exonerations, which documents people who have been officially exonerated. Now, I will tell you, almost all of my clients, they've had their convictions reversed. Prosecutors have rebrought the charges. And then my client has taken some sort of a plea.

0:49:54 Thomas: So do they not?

0:49:55 Valena: They're not included. They're not included, much worse, much worse. So National Registry of Exonerations only include people who have not taken any kind of a plea to anything related to the offense. So even if it was a murder charge and it was dropped down to an assault charge, which is much, much, much lower, you know, the fact that my client took a plea that means that my client will never be listed as an exoneree. Yeah.

0:49:55 Thomas: They wouldn't even count in that stat. Oh, wow. So this could be even worse. Or, well, I got it. Yeah. Yeah. Wow. Wow. Officially exonerated, boy, and that sucks because like I guess just morally speaking or just like everyday speak if you were convicted of a very serious crime but then you're like well I've shown that that's not true but then there was another crime it's like that should count as some sort of exoneration but I understand the point that you're making that this stat is not some like lefty overblown whatever this is like only actual official exonerations which it's First off, it's shocking that there should be even one of those, like there should just should not be those. There shouldn't ever get to that point. But the fact that there's so many and that high of a percentage of these are just there's not even a crime. There's not a crime, there's just not a lot of crime. Not even a time is just wow. It's shocking. I get it.

0:50:46 Valena: It's not, it's not. Right. Right? Yeah. Yeah. Yeah. I agree.

0:51:06 Thomas: I get you're not surprised, but it should be shocking at least to all of us.

0:51:10 Valena: It is shocking. And in terms of folks taking a plea, I just want to say, I mean, my clients have taken these called Alford pleas, which means you're not pleading guilty. You're saying there's enough evidence for the state to convict me. And so I'm not contesting it, but you're saying you're guilty. And my clients had done that because guess what? It. They all had a jury convict them and they were innocent. So when that's happened to you once, exactly. And the prosecutor comes and says, oh, here, if you'll plead to this, you'll get time served.

0:51:32 Thomas: Yeah, right, right. They probably don't have a whole lot of faith. Yeah, yeah, yeah. Right. Right. Yeah.

0:51:48 Valena: So your sentence is what you've already served in prison. You're not going to go back to prison. That's really powerful.

0:51:54 Thomas: Yeah, I'd do it. Obviously. Of course. Yeah absolutely. It's always a good point to make for sure.

0:51:59 Valena: Thank you. Thanks for letting me make that.

0:52:01 Thomas: Oh of course. I think a lot of our audience hopefully already knows that but it feels like something that society doesn't. It is like well they pled guilty so they must be guilty of something. It is like no.

0:52:08 Valena: Yeah, not true.

0:52:11 Thomas: And you make an excellent point that like these people specifically are ones who have already seen that the system doesn't work. It isn't even like oh well just they pled guilty, apropos of the kind of their first contact with the whole thing. It is like no these folks are people who already know that they are capable of being found guilty when they're not. So why are they going to like take that chance? Yeah, absolutely.

0:52:29 Valena: Yeah. And I'll ask you a separate question. If you're a prosecutor and you're prosecuting this ostensibly heinous crime, you know, very serious crime, and the person who was convicted has their conviction reversed, you're taking them back to trial on this, why would you offer a plea to time served? Why would you offer an assault plea for a murder? If you truly believe it's a murder and you truly believe that safety will be created by having this person incarcerated, you're offering a plea that does let them have their freedom, right? Right. So how much do you really believe in the case?

0:53:03 Thomas: That's going to let them out. That's going to let them out. Yeah.

0:53:09 Thomas: So weird. It's almost like you're just covering your ass. Yeah, and just trying to get out. . . Yeah, that's another great point. I've never thought of it that way. That's a good way to put it. Oh, boy. This whole topic just makes my blood boil. Yeah!

0:53:23 Valena: I know, it's so much. But in terms of the paper, I really hope folks will take a look at it. And I have a book coming out next year called Pink

0:53:29 Thomas: Please, by all means, please plug your books.

0:53:33 Valena: Crime, Fighting the Criminalization of Pregnancy, Motherhood, and Queer Identity. That's coming out from the New Press next spring.

0:53:42 Thomas: We will absolutely have you back on to talk about that if you'd like, for sure.

0:53:46 Valena: Oh, I love it. Yeah, yeah, yeah. Yeah. I would love to.

0:53:49 Thomas: And you already mentioned a book you already have out, right?

0:53:52 Valena: Yes. Manifesting Justice, Wrongly Convicted Women Reclaim Their Rights. And that's about everything we were saying about miscarriage of justice, manifesting and justice. And it focuses on two of my clients, Lee Stubbs and her co-defendant, Tammy Vance, who were wrongly convicted in Mississippi because they are lesbians and because there was bogus bite mark evidence. I know that toxic combination of forensics, faulty forensics junk science and gender bias. Yeah.

0:54:10 Thomas: Whatever this is already sucks. Yeah. Just like, oh, wow. Is there anything else you'd like to send our listeners to while you're here? I always ask folks if they want to make plugs and we've already got some good stuff here. I'll put in the show notes. Anything else?

0:54:29 Valena: Yeah, just the Indiana Innocence Project, we just started up and any support for the National Innocence Project that's financial does not go to the individual state projects. So if you're interested in supporting the Indiana Innocence Project for representing wrongly convicted Hoosiers, I encourage you to check out our webpage.

0:54:49 Thomas: Awesome. Well, thank you so much for taking the time. It's been an absolute pleasure. And thanks for the great work you're doing it's nice to have I have to confess I'm so happy that you switched from prosecuting to the other side my personal biases but yeah that's uh it's nice absolutely

0:54:55 Valena: Oh, me too. It's a good move. Yeah, thank you. And thanks for having me on and providing the platform.

0:55:27 Thomas: Was Was she wearing a murder outfit

0:55:28 Valena: Is this what a grieving widow would wear?

0:55:32 Thomas: Since there's been so many errors maybe this whole thing is crap

0:55:36 Valena: Let's be a lawyer. Yeah.