The Tipping Point
The Innocence Project works to create fair, compassionate, and equitable justice systems. Chanda sat down with two leaders in this work, Peter Neufeld and Sara Jones, to discuss wrongful convictions, the hurdles to exonerating the innocent, and the new approach prosecutors are taking to shift the culture of the criminal legal system.
Want to support the Great North Innocence Project? Attend their Benefit for Innocence: The Science for Justice.
Chanda Smith Baker 00:00
Hello community. This is Chanda Smith Baker. I am excited to be with you on this week and bringing you yet another conversation with Chanda. We will be talking with two people that I greatly respect and their work that they’re doing and criminal justice reform and specifically as part of the Innocence Project, Sara Jones, she is the executive director of the Great North Innocence Project where she is responsible for the executive leadership She leads the organization’s vision strategy, financial management, and criminal justice policy. Her father, we talk about this actually in the podcast, but her commitment to public service evolved into a career shift to the nonprofit sector including working on Advancement at William Mitchell College of Law now Mitchell Hamline and the University of Minnesota Law School. She is the past president of the Minnesota Women’s lawyers and serves on its advisory board. She is also a board member of We Are All Criminals and serves on the board of the Council of crime and justice. Also in this conversation is Peter Neufeld. Peter is a nationally recognized civil rights attorney having spent over 35 years trying cases on behalf of victims of police misconduct and wrongful convictions. Peter’s commitment to his clients and skills in the courtroom has led to some of the largest civil rights verdicts and settlements nationwide, as well as major systemic criminal justice reform. In addition to the Civil Rights practice, Peter along with partner Barry Scheck, they co-founded and co-direct the Innocence Project, the Innocence Project has been responsible in whole or in part for exonerating most of the over 300 men and women to be cleared through post-conviction DNA testing. I hope that you enjoy this conversation with the two of them.
Souphak Kienitz 02:00
You’re listening to Conversations with Chanda a Minneapolis Foundation podcast that unpacks the community’s grittiest most vexing problems, hosted by Chanda Smith Baker.
Chanda Smith Baker 02:12
I appreciate both you Sara and Peter being on the podcast. Peter, how have you seen sort of the reforms post George Floyd’s murder evolve from your point of view?
Peter Neufeld 02:24
Well, obviously the Innocence Project in the whole innocence movement, we’re concerned with police conduct because misconduct by police has played a very pivotal role in bringing about wrongful convictions all over the country. And so what we find is that the police who may have engaged in misconduct in our cases, whether it’s through generating a false confession, or an unduly suggestive ID, or lassoing, in an informant to help make the case that the same offices generally have had other complaints against them in the past complaints involving excessive force complaints involving fabricating evidence, all kinds of things. And unfortunately, all too often, those prior disciplinary records are a secret, and the public is not aware of them. At least they’re not disciplined, aggressively when there is a finding the entities that do the investigation to see if there’s a finding are wimpy. And so systemically, we’re very much interested in that issue. After George Floyd’s murder, it became a very important issue nationwide. And obviously, the response has been spotty. The George Floyd law never pass Congress, a few states enacted certain provisions to create more accountability on the part of police and greater transparency. But, you know, that’s sort of dissipated very, very quickly. Right now, what you see across the country is the prevailing mood is law and order. And not enough about accountability. Not enough about anti racism,
Chanda Smith Baker 03:57
sir, how about from your point of view you’ve been you’ve been here in our city, one of the attorneys, I think it was Dante Wright. They’ve been attorney for most of the cases that have been reported here, but one of the attorneys said, this is a city that refuses to learn from itself. And that just really struck me. Do you see movement? What we’ve done here?
Sara Jones 04:22
Well, I hope so. I’m kind of an internal optimist. I am hopeful that when we have new leadership in the police department, as with the new Commissioner of Public Safety for Minneapolis, that we will see some changes that go beyond kind of a patchwork in name only types of fixes that we’ve supposedly seen. We partner with police, and when they do their jobs, right, it can make everything more just, but there are difficult problems within police departments all over the country and they’re tough to surmount because there’s such an embedded culture or even when new rules are put in place it seems like oftentimes in application, they’re not really followed. So, I hope that we’ll see greater accountability.
Chanda Smith Baker 05:09
Do you think that we’re building the accountability system? Because from my point of view, where we’re coming up with new programs around public safety, but I’m not sure what we’re doing around accountability?
Sara Jones 05:19
Yeah, I think that remains to be seen. The discipline I think has been spotty and a bit loose. We hear in Minneapolis a lot about coaching, when police do things that are supposedly wrong, and they end up getting coached about the problem, which means what we don’t know, because it doesn’t become part of a public disciplinary record.
Chanda Smith Baker 05:44
Both of you, I believe, got started as public defenders that right.
Sara Jones 05:48
I have never practiced criminal law. I grew up. I grew up with my father was the first state public defender in Minnesota, and he served in that role for about 25 years. So I grew up with it. And I swore I’d never be a lawyer, and then I swore I’d never be a criminal lawyer. And I’ve ended up in the best job I’ve ever had. So I guess I’ve grown up.
Chanda Smith Baker 06:11
Yeah, I love it.
Peter Neufeld 06:12
I started as a, as a public defender in the South Bronx in 1976. I stayed there for about nine years. It was a transformational time in the Bronx, and in New York City. And then I taught for a little while at Fordham Law School teaching trial advocacy. And I started doing some civil rights cases and then doing sort of more political criminal cases for a few years. Before Barry and I founded the Innocence Project in New York.
Chanda Smith Baker 06:42
Did you Peter have an interest in civil rights prior to working as a public defender?
Peter Neufeld 06:49
Yeah, I grew up in one of those families that was very much involved in civil rights. I mean, you know, my mother led us support demonstration at the Woolworths in, in Long Island when I was a little kid and to support the people down in Greensboro and other places, who was sitting in at the counter and we shut down the Woolworths in Long Island. I don’t you know, I wasn’t even a teenager yet. It was a big part of our lives from an early and early age, when when they shut down schools down south drive and integrate we, we collected books and stuff for freedom schools in the south and drove down south with those and I was in pre adolescence, at that point. So yeah, these issues have always been very important in our family.
Chanda Smith Baker 07:37
Yeah. How about you, Sara?
Sara Jones 07:39
Well, as I mentioned, my father was a public defender, and he worked a lot. He also taught law school at night at William Mitchell College of Law. And so his work was kind of the center of our family life, really. He’d be grading papers, and we’d be talking about the issues in the papers. The issues certainly went beyond my understanding as a young child, but I just sort of absorbed at all and heard him talking about injustice, and the importance of the presumption of innocence, and the importance to keep following that all the way through a case to really get at the truth or justice. And I learned early on that there are very difficult roadblocks to finding justice and finding somebody innocent as opposed to guilty. While we have this presumption of innocence, I think a lot of society prejudges, people based on their race, or socio economic status, and so forth. And justice is harder for some than for others. You know, we talked about it all the time when I was growing up, and I guess it became part of my DNA, so to speak.
Chanda Smith Baker 08:48
Yeah, you know, I sort of grew up like I know, you all know, but in terms of there are police that you can trust, and then the system that makes it impossible a bit for people to survive in it in a way. And, you know, the OJ Simpson case really did transform for many in community, the opportunity for us to both watch the trial, you know, to be in discussion about something that was really in large part about the criminal justice system. And then we’ve seen Derek Chauvin trial and other trials. Do you think that the broadcasting of the trials, Peter has helped with understanding the system and around transparency? Do you think that trend is useful or no?
Peter Neufeld 09:30
That’s a very good question. So, when I was a public defender, and people wanted to televise trials, I was opposed to it. I was particularly opposed to it when I was the trial lawyer. And my clients stood in the dark, because the way that the media sensationalized proceedings, that there were plenty of studies that corroborated the notion that trials were not good for criminal defendants, they only encouraged the greater desire for retribution, revenge, it wasn’t good at all. I’m not so sure that even covering trials, you know, because you can’t just pick selected cases, you’d have to go through everything and just say, fine, we’ll just have a camera on all the time in every part, you know, in Hennepin County, and people can watch what they want. I’m not so sure that’s a great idea. With respect to Chauvin. I think the videotape of what Chauvin did to Floyd is much more instructive than the trial. And one reason why the trial is less instructive is quite honestly, Chauvin is the outlier, we just read about a case in this morning’s paper, where an officer was acquitted by an all-white jury in Texas, a shooting an unarmed civilian four times and killing him, despite the fact that the state police had found that his conduct was illegal, he was fired immediately. And he had been indicted. So, and that’s much more, that’s the more typical outcome. So, I don’t necessarily find these televised trials, that informative now.
Chanda Smith Baker
Sara do you feel the same way about that?
Sara Jones 11:08
And do I still have very mixed feelings about it? I think that when certain cases like the Chauvin trial are televised, it’s too easy for people to think that that’s the way it’s gonna go. Like Peter said, you know, that was kind of a, an amazing experience for most people I know, who aren’t lawyers, to witness that and so forth. But I’m not sure that they understand that most of the time people aren’t held accountable.
Peter Neufeld 11:37
You know, in that regard. The prosecution of Chauvin was so qualitatively different than the prosecution’s that I’ve observed all over the country, of police officers who killed unarmed civilians, that it’s in a different universe. The fact that the Attorney General brought in outside lawyers with expertise, the fact that he didn’t rely on his local medical examiner to provide all the expert evidence by the state sought out a, you know, the leading pulmonologists in the field to talk about the cause of death. You just don’t, he had, you know, Supreme Court litigators. Briefing all the evidentiary issues, you don’t see that kind of quality prosecution to hold a police officer accountable anywhere else in America period. I’ve worked with prosecutors trying to urge them to bring in outside lawyers like was done in Minneapolis, and they just don’t want to do it. They just say, well, we can handle everything ourselves. And that’s the way it is. And of course, those officers end up being acquitted, or the grand jury doesn’t return indictment, because they weren’t serious about the presentation. And that’s the norm in this country, not Chauvin.
Sara Jones 13:02
I think the talent that was applied to the Chauvin trial was absolutely exceptional. And we got a different result.
Chanda Smith Baker 13:10
I always wondered how informative it will be across the country. Right, Peter? I have like, I don’t know if I should feel hopeful or like, I mean, it was exceptional. But I was hoping that by viewing it other jurisdictions might choose to act differently. In those cases.
Peter Neufeld 13:26
Yeah, well, so far, they haven’t. Okay. And I actually hold up the example when I have these meetings, asking them to bring in outside lawyers and outside experts. And because they’re very much into being control freaks. They don’t do it. And so they get, they don’t get the result you got in Hennepin County, and you get a different result. You also have to bear in mind, too, that, you know, there’s a pendulum that’s swinging back and forth. I would like to think that the Floyd murder and the aftermath was a moment in time, which was going to, you know, actually be like a tipping point, to move people nationwide, systemically and systematically in a much more thoughtful direction. Unfortunately, to some extent, that’s true, but not enough. And what we’ve seen most recently, is people you know, going back to law and order is the most important thing, and increasing police budgets, and not really thinking about the root causes of that kind of brutality.
Sara Jones 14:31
I think that’s very true here in Minneapolis. I feel like people’s memories are fading quickly. What will come of that horrible incident remains to be seen, but you know, we’ve had the uptick in violent crime and Minneapolis like so many other cities around the country and so people are back to, you know, calling for lock them up and you know, the tough on crime stance and so forth, which, you know, to me a lot of these questions aren’t either or we can both address root causes, like Peter said, and bring other expertise into public safety without compromising public safety as a whole due to the rise in violent crime, I mean, but it’s a new approach. And I’m just a little weary of how much of an effect it’s really going to have as memories fade.
Chanda Smith Baker 15:24
So Peter at the at the foundation, when I came, I wanted to work on issues of criminal justice reform. And my story really revolves around my cousin, Christopher Miller, who was killed in 2011. And he was shot twice in his back that was able to go to trial and the detective on his case, Chris Arneson, I was just really fascinated by her. And we ended up serving on a steering committee together, the DOJ came in, and I was really quite interested in that. And so, when I came over to philanthropy, I really wanted to work on those two issues. And so, you know, criminal justice reform, and I’ve really been thinking a lot around whether or not that’s the right language for it. And I’ve heard, you know, the criminal legal system, criminal justice reform, like language is important, and how we act into it. And it feels like what we’re really trying to do is make the legal aspect of it work better, the policing aspect, and I just, I think I heard you make some comments around criminal justice system, and I thought I would get some insight from you on whether or not we should be evolving that in any sort of way.
Peter Neufeld 16:36
I mean, at the Innocence Project, we do refer to it as the criminal legal system. And we are concerned that that there really hasn’t been enough attention paid to achieving justice over the last, you know, 400 years. And so that may be criminal legal system is the more appropriate term to understanding the needs for reform. But I don’t think the language is as important as, as changing the culture. Okay. And I’m not even frankly, as concerned with accountability. Because I don’t really necessarily believe that when you hold somebody accountable, that it becomes a deterrent for others, who was similarly situated, I think that what really needs to happen here is that the culture has to change. So we have to fundamentally rethink what is policing all about in a democracy? What is policing all about in society that isn’t making decisions based on race or based on the economic status or gender? You know, what would it truly just system be like, and then have people change their minds and think differently, even right now, people are still just, as Sara pointed out, you know, this whole thing about, you know, lock them up, retribution is still a primary, you know, objective. Fear is the primary emotion. Okay, it’s interesting, we fear, fear is a more powerful emotion and love or hate, may be the most powerful emotion. And so, no matter what happens on a principal level, if something personal triggers that fear, that becomes primary, and we have to somehow figure out a way to overcome that, if we’re really going to do something with our legal systems. And we’re going to have to start thinking about what are those, you know, fundamental changes in causes that have to be addressed? Whether it’s education, housing, health, all of them? You know, our criminal legal system is just sort of a tip. Tip, that’s a consequence of all the others. So I’m less concerned with the words we use then then what’s what we’re really thinking and what’s in our heart.
Chanda Smith Baker 18:58
What was the journey that brought you to starting the Innocence Project?
Peter Neufeld 19:06
Oh, luck. A little bit, a lot. A lot of luck. I you know, it’s funny when we, when we first started the project, we were only concerned with exonerating individual people. We didn’t think about systemic issues and legislation that just sort of grew out of the cases. And by deconstructing the cases, we realize that but as a public defender, It’s funny, I’m one of those people who I had difficulty with the abstractness of education. Other people don’t, but I always did, I needed things to be much more concrete, and they had to involve real people. So, I was not, I didn’t love law school, or even, you know, undergraduate school for that matter. But I didn’t have any background in science. And I think primarily, I didn’t have a background in science, because I had terrible, terrible high school biology and chemistry teachers and just can’t be turned off. But when you when I became a public defender, and I had a client who was being prosecuted for murder, and the key evidence was forensic evidence and serology, I said, oh my God, I’ve got to learn this stuff, if I want to, you know, hopefully save this person’s life or liberty. And so, in that situation, it was much easier for me to learn new disciplines, new subject matter. And so, I started learning science and started learning much more about psychology. And I began to litigate issues at the intersection of science and law, when I was still a public defender, which eventually led to understanding that DNA was being used in England, in immigration cases that hadn’t been used in the US yet. And maybe we could do something if we could go back in time, if they had saved evidence, and maybe we could look at DNA and biological evidence and test it, even when people have been convicted years ago, and find a new truth in the case.
Chanda Smith Baker 21:09
And so, then you by doing that work, then you decided then to expand it into the Innocence Project.
Peter Neufeld 21:15
Well, what happened was, is that we did a couple of cases. And Oh, Barry went on television on one of the cases and it was a, it was like, one of those daytime talk shows, which was extra, apparently very, very popular in the, you know, in the public rooms, at the prisons in the day rooms. Oh, and so turned out that people who are incarcerated all over the country watching this TV show, when we say that we were helping people reopen old cases. And very quickly, we became flooded with letters from people who were incarcerated. And, and then we also won a few more cases, which, which received a lot of publicity in the press. And that just, you know, it’s not a problem. It’s just that we got hit with all kinds of letters, and we didn’t have the staff, we’re doing the whole thing out of our hip pocket. So, we hired a couple of people, and then we sort of, you know, formalized the clinic. So wouldn’t be people just who were doing criminal cases would also do wrongful conviction cases, we decided to set up a clinic in a program that would focus exclusively on cases where people were putting forth a hypothesis that they have been wrongly convicted.
Chanda Smith Baker 22:26
There’s a lot of folks that believe that if you’re in prison, you are guilty, right, like there’s not a presumption of innocence. And so, I’m thinking of the letters that you received, what percentage do you think we’re actually innocent?
Peter Neufeld 22:38
Why we don’t have no idea? I mean, because there’s no, it’s funny. Over the years, we’ve been approached by, you know, Google, Microsoft. And people said, Oh, we’re going to come up with a no, this happened to you, Sara with a an algorithm, that will can be used to evaluate the letters that you receive, and then make an assessment on the likelihood that they’re innocent. If this was a case that will bear fruit, as often as they’ve tried, they failed. We haven’t found a substitute for, for having an intake group that really thoroughly vets the cases, but I can tell you is that there are people who we turned down, who eventually were exonerated with the help of others, okay. In the cases that we accept, and we eventually did DNA testing, our exoneration rate was about 50%. And one might, from that, draw the inference that, wow, you’ve been tricked into something that people told you they were innocent, the word innocent. And I don’t think that’s as interesting a number as the fact that 50% of the people who were writing to us and claimed they were innocent, but they’ve been tried and convicted by juries, or been forced into pleading guilty because they were petrified that if they if they asserted their right to a trial, that the sentence they would get would be much, much harsher. I’m amazed that it’s as high an exoneration rate as it’s been over the last 30 years. I don’t know what your results have been Sara, but
Sara Jones 24:09
Well, we look at sort of finding the needle in the haystack. I mean, we are flooded with requests to look at people’s cases. And like you said, I mean, it takes an enormous amount of people effort to review these cases, we work with students in our clinics at four different law schools in our region of Minnesota, North Dakota and South Dakota. So, we each year, each academic year, we have close to 20 people who are doing nothing but screening cases when they come in requesting help, and then kind of sifting through those to find the ones where we think that there’s actually evidence, new evidence that can meet the very high legal standard that one needs in order to prove innocence. Because once you’re convicted, the burden shifts and you have to prove your innocence. So it can take hundreds and hundreds of hours and sometimes years to work on these cases. And we, we have some that our legal team has been working on for over 10 years. Others, you know, the results come more quickly. But it’s enormously time consuming because there is no magic algorithm or way to statistically three in these cases. And like Peter said, I mean, the cases where we truly believe someone is innocent, but the legal system is just not allowing us to, to meet the standards. It’s heartbreaking. It’s really heartbreaking, because these are real human beings whose lives have been completely turned over. And, you know, they remain hopeful, but we can’t always help and it’s just devastating.
Peter Neufeld 25:47
One other little piece of data, which is relevant to what we were talking about before, is that one of the things that we find is that every step in the criminal legal system, there is a really harsh disparity between the way that black people treated, or people of color are treated versus white people. And that harsh disparity even reaches into the work that Sara and I do and our colleagues do, we have found that it takes on average, two to three years longer to exonerate a black person wrongly convicted of a crime than a white person that we meet, on average, much greater resistance on the part of police and prosecutors, a much greater resistance on the part of the judiciary, and it becomes that much more difficult. And we’re like Sara, in the sense that it can take us 1012 years of working on a case, even after we get the evidence, and the evidence, whether it’s DNA or other evidence, which is compelling proof of innocence. It can take years of litigation, to get the courts to accept our arguments, and that needs to change. You know, Sara’s talking about a very high bar that’s needed to reopen a case. And it shouldn’t be that high. No, sometimes particularly in cases where you don’t have biological evidence, and you don’t have DNA, you still have the same causes of wrongful conviction, you still have coerced confessions, you still have missing identifications. You still have incentivized jailhouse snitches, you still have police and prosecutorial misconduct, you just don’t have DNA. But if the prosecutors will look at these cases, and see, well, I think the same kinds of issues exist in these cases, than even without the, you know, the silver bullet of DNA, they should be reflective, and think about maybe vacating that conviction, because we can’t really rely on that type of evidence anymore. We’ve just seen it be faulty, and far too many cases involving DNA.
Sara Jones 27:59
I think I think Peter hit on something really important, which is prosecutors taking a new approach. You know, we in Minnesota, we’re lucky to help develop a conviction review unit that is applicable statewide, but it all depends upon voluntary cooperation of the prosecutors in each county, as well as the attorney general. But what it allows us to do is take cases where, you know, we may have been in court, essentially, you know, beating our heads against a wall because the we can’t meet the standard or the courts make decisions that we haven’t met the standard even when we think we have. So this allows us to then take those cases and present them holistically and get the prosecutor involved if they’re willing to cooperate, and take a second look at the case and look at all of the evidence and perhaps make a decision based on the totality of the evidence that even though the legal standard can’t be met, each box can’t be ticked. The evidence shows that this person is actually innocent, and they have the power to recommend vacating that conviction and presenting the case to the court to get the conviction vacated. You know, again, it’s a mountain to climb. But we’re hopeful as this trend of conviction review units across the country takes hold that there the culture of the system will change a little bit and that prosecutors too will be willing to say, You know what? We think that there was a mistake made and it’s you know, it’s okay to admit that and it’s what’s right for our system. It’s what’s right for the individual who’s being held wrongfully.
Chanda Smith Baker 29:45
How has I was thinking in terms of the growth of forensic science since the Innocence Project was started, or the reasons had the reason shifted. Before there was eyewitness accounts there. I think you showed me the graphic of how things have shifted over time in terms of people getting out? Where before it might have been wrong eyewitness account or like, what are the reasons for people getting off now? Is it? Is it the same as it was 25 years ago?
Peter Neufeld 30:16
Well, I mean, first of all, you have to understand that we don’t really have a, you know, a well-informed database to answer that question. So, when we first started, we were the only project. And we only did DNA cases, since that beginning, an innocence network and in this movement took off all over the country. And the majority of those projects, do non-DNA cases, and have achieved fabulous success in a much more difficult environment than the one in which we first started, because it’s much easier to prove someone’s innocence, that they were wrongly convicted. When the person was convicted of the sexual assault of a 90-year-old widow, and you test the semen recovered and the rape kit and you exclude that person. You know, that’s the end of the argument, everybody’s on the same page. So, by limiting our cases, early on to sexual assault cases, sexual assault, homicide cases and homicide cases, it was very, very easy to get unanimity of agreement on the innocence. But at the same time, it basically meant we were dealing with certain kinds of cases. So, if you’re dealing with sexual assault cases, overwhelmingly, the evidence that convicted them was the eyewitness testimony of the victim. So, if you’re doing non-DNA cases, they’re going to be fewer rape cases now than they were when we started. And so, they won’t necessarily be dominated by eyewitness testimony. Hear what I’m saying? Yeah, so things change for lots of other reasons. If we don’t look at our rape cases, and instead, we look at just our homicide cases. Misidentifications were not the primary contributing factor. false confessions were the primary contributing factor, because in a homicide case, the victim is no longer alive to make an ID. And so, to make those cases, the police spend a lot more time coercing false confessions out of these suspects, or then getting a jailhouse informant to say that the suspect confessed to them than they would in a sexual assault case. So, you know, our data sets are convenience data sets, and not necessarily reflective of a true cross section of all the people who are wrongly convicted at any given time.
Chanda Smith Baker 32:53
Sara Jones 32:54
Well, I think policy becomes a lot more important to we were seeing in our work, you know, like Peter was saying, you get cases that are no longer based on DNA, but things like coerced confessions or eyewitness identifications. And we have learned that there are best practices for how police, for example, conduct lineups, which is usually done with photographs. So, in Minnesota, for example, we worked for years to get a law passed that now requires all police agencies throughout the state to use what are considered to be the current core for best practices in having people make identifications. Is it failsafe, no. But when the principles are applied, it’s less likely to result in a in a mistaken eyewitness identification. And so it’s it’s important that police are using these best practices. We also just passed a bill in Minnesota on the reporting and tracking of the use of jailhouse witnesses. So that, you know, we know there are people in prison who become sort of serial jailhouse witnesses and the way they tell it, you know, people are confessing to them all the time. And so, we can now track in Minnesota when somebody is used over and over again as a as a jailhouse witness, and that undermines their credibility. And if prosecutors and police are doing their jobs, right, they should care about this, because they should want to get the right person convicted, not the wrong person.
Peter Neufeld 34:39
Sara when you tracking them in Minnesota, do you also do they also have to report what kinds of incentives were given to the informants in terms of oh, we dismissed the case against that guy? Oh, we shortened his imprisonment or what we’re paid him.
Sara Jones 34:54
Yes, that’s a very important factor that I forgot to mention. Thank you, Peter. Because some One of the reasons that jailhouse witnesses are so notoriously unreliable is because they’re usually getting some sort of incentive for their testimony, whether it’s a reduced sentence or other special privilege. And so, the idea is that prosecutors do need to report deals that they make with these jailhouse witnesses. Now, you know, that’s not to say that prosecutors and the witnesses can’t have a kind of wink and a nod type of agreement, without making it specific. And then theoretically, they wouldn’t have to report it, oh, we didn’t give the person a deal. And yet everybody involved knew that they were gonna get something for it.
Chanda Smith Baker 35:38
Yeah, you guys bring up a good point around data and the availability of the absence of data? This has been a big conversation locally, where do you see opportunity for better data collection around the criminal justice system? Like where could we be pushing all that better?
Peter Neufeld 35:55
Everywhere. No, I mean, I mean, think about it. I think one of the other things that came out of the, out of the George Floyd murder was deaths in custody, how many people are actually dying? Who are unarmed when police are trying to subdue someone, and the use of restraints? And then you find out huh, there was a federal statute passed called the death and custody Reporting Act, which required every state to submit data to the federal government. So, it could be reported to the, to the public, on all these details about death in custody. And you look a little deeper you find out for most states don’t report the data. The Attorney General of the United States has discretion to then punish those states that don’t submit data on deaths in custody by not giving them burn grants, by not giving grants that help their police departments. And every state in the country gets these federal grants and needs them. But it’s discretionary. And the Attorney General’s of each administration have declined to use that power. And no one’s ever been denied any federal money for failing to report the data on deaths in custody. So, you know, it starts at the top at the federal government, but there’s no meaningful keeping of data by local law enforcement agencies, by our courts, by defenders, by prosecutors. And so, it’s very difficult to use that data to effectuate new policy. If it’s not being kept in any kind of meaningful way. And reported, I mean, then only has to be the keeping of data. There has to be the transparent sharing of data.
Chanda Smith Baker 37:50
Have you seen any state that’s doing that well?
Peter Neufeld 37:53
No, no. I mean, it’s partly who’s the constituency? You know, forensic science is a great example of that. Okay. We have a very extensive regulatory system in this country, for clinical science and clinical medicine. Right. We have the FDA, we have the Clinical Laboratory Improvement amendments, we have the centers on Medicare and Medicaid, setting standards for clinical laboratories. But for forensic science, in forensic laboratories, there’s almost nothing. And that’s because on the one hand, in the first instance, the constituency that wants data collected, and once regulation implemented, is all of us as to constituency, it’s people of all races, it’s people of all economic backgrounds, particularly white people with money. Okay. And everybody cares about the quality of our health care and medicine. But who’s the constituency for crime labs, Sara’s clients? My clients? They don’t have a lot of leverage. And so people historically haven’t given much in the way of standards, regulation, or the collection of data. Hopefully, the innocence work that Sara does, and other projects to around the country will begin to change that. But it’s going to be a slow change.
Chanda Smith Baker 39:22
Sara, for the for the conviction review unit, you will be collecting data in sharing that out correct?. Can you say a little bit more about that to the project?
Sara Jones 39:32
Yeah, you know, we’re still in the early stages. There has not been a case yet where a recommendation has been made to vacate a conviction. What ended up happening is with one lawyer director, the conviction review unit launched once it opened its doors so to speak for business received 900 or more applications for review. And when you’re reviewing these cases, you can’t get through 900 of them very quickly. That said, they’ve been categorizing the in terms of which what kinds of claims people are making, whether or not they’re claiming that their sentence is unjust as opposed to being wrongfully convicted altogether. And that is all being tracked by the Attorney General’s Office. So, we’re looking at what are the causes of wrongful conviction that people are claiming? And what are the outcomes of the cases where the there is a recommendation made or not that a conviction be vacated? You know, the data are forthcoming, but because it’s a long process, but we have plenty of cases on which to report data. So, the federal government is going to be requiring that we report on that as part of the grant making process. And we are waiting as we speak, to hear whether we will get a renewal of that grant for two more years. And we’ve managed through the help of foundations like the Minneapolis Foundation, and the Pohlad Family Foundation to get some funding for additional staffing and investigators and so forth to work on those applications, along with the director, small but mighty team looking at all of these claims. And, you know, we should see we should be able to see trends, and eventually, the CRU hopes to be looking at cases of what we might call manifest injustice, where sentences are excessive and things like that. But right now, the CRU is still focused on actual innocence cases.
Chanda Smith Baker 41:33
Sara you talked about data being collected for jailhouse witnesses? Is there data captured on officers that have participated that have falsified evidence or any is there any sort of tracking? Or is that still sort of caught up in the coaching, discipline process? Look at trends there.
Sara Jones 41:53
I really have no awareness of any data that are being tracked for misconduct. Because, you know, under the Data Practices Act, a lot of disciplinary information is considered private data, if it doesn’t rise above a certain level, which is where the coaching comes in. You know, that doesn’t have to be reported. No details about that have to be reported because it’s not considered formal discipline.
Peter Neufeld 42:18
Chanda one, I mean, you bring up another good point, which is the importance of learning about trends. Okay. Well, which police officers engaged in misconduct? Which ones are recidivist? And if you just think about it, again, that disparity between the civilian way we deal with civilian lives and the way we deal with the criminal legal system, if you ran a bank and a bank teller was caught embezzling funds on a transaction, you wouldn’t think twice about ordering an audit of that bank tellers other transactions, because you would think if the bank teller embezzled funds once there’s a good chance that he or she did it on other occasions, well, if a police detective is caught fabricating a confession, or committing perjury, or recruiting a jailhouse informant, and then feeding that informant details about the case, so the format will sound convincing. You should also think that it’s not necessarily a one off situation, that there is a good chance that that same detective did this in more than one situation. But no one, okay, or very rarely are audits conducted, of the other cases where the detectives may have committed the same misconduct. And that’s why you need that data. We have a situation in Chicago right now, where seven detectives were involved in basically coercing and fabricating false confessions at of for black teenagers. And there’s no question that the confessions were coerced. There’s no question that they were all innocent, and they spent more than 20 years in prison before being exonerated and identifying the real perpetrator of a sexual assault murder. There’s no question that the officer has committed perjury, at least two or three times in the course of those proceedings. And there’s also no question that at least two or three of those detectives were responsible for half dozen other wrongful convictions. At what point do you have to say, My God, if this detective has gotten false confessions out of people proven to be false, in seven or eight different crimes, and shouldn’t we now question? Can we have confidence in his confessions that he secures in 20 other murder cases? You wouldn’t have confidence in the reliability of that. If it was a doctor who was operating. You wouldn’t have confidence in that if it was some business assume you’re relying on to take your money and invest it. So why do we simply, you know, not have audits of these detectives. And one of the reasons is we don’t have the data. Another reason is we have a bias of not really applying the same kind of quality assessment in law enforcement, policing, and criminal justice or criminal legal systems that we have and other aspects of our daily lives.
Chanda Smith Baker 45:27
Peter, you mentioned that there’s sort of disparities throughout the criminal justice sort of continuum as people go through their journey in the system. And I’m wondering if you could just say, where those disparities happen, just for our listeners, because I think that oftentimes we see it at arrests, like over policing, and then what happens in trial end up being sort of where we talk about disparities, but are there other places where you’re seeing disparate treatment throughout that continuum?
Peter Neufeld 45:57
Well, I mean, the first place you see it, obviously is in the investigation. Okay. And the in the black community is just under constant surveillance. And so, people in that community are going to be arrested much more frequently than other communities. I mean, a great example of that, which is, oh, gosh, we had in New York, just kids and young adults being arrested for, for marijuana, right? Every study that’s been conducted on demographics in the United States show convincingly that pot is smoked just as much by white people, as by black people, or people of Latinx origins yet in New York, you know, three quarters of the arrests for pot were black kids. In Seattle, someone just told me that, you know, black people make up 4% of the population. But 40% of all pot arrests are of black people. So that’s not as serious a case as robbery or homicide. But the disparity is there and disparity is everywhere during the investigation, when you want to arrest somebody, the next disparity has to do with well, if they’re arrested, what you want to charge them with. And the data seems to indicate pretty clearly that the charges will be more serious. If you’re a person from a minority group, someone who’s more disenfranchised who are at the margins, than if you’re white. And well to do not only will the charges be more serious, but then there’s a greater likelihood that you’ll be denied bail. Or if bail is said it’ll be much higher if you’re black or a person of color, and the prosecution will be much more rigorous, we have found in our own data sets is that there are more contributing factors for the wrongful conviction present. When the person standing in the dark is a person of color than a white person. So, law enforcement police are willing to bend more rules, whether it’s the informant, the MIS identification, coercing a witness to make an identification, coercing a false confession, prosecutors are more willing to hold back exculpatory evidence, we call it Brady material, if it’s a person of color, so the prosecution is very different. The jury composition is very different. And if they are convicted, the sentence they get from the judge is very different. And the amount of time they will spend in prison before being paroled is very different. And if they are paroled, what it takes to get that parole violated and sent back to prison is again, very different based on race. So that’s why I say, every single vertebrae in this long backbone that we call our criminal legal system, there are huge racial disparities.
Sara Jones 48:59
I have to agree I mean, just every step of the way. And frankly, to me, a lot of it comes down to people’s assumption that some people are more, I hate to say disposable than others. I think that there is a lack of recognition of the universal humanity in every person. And people, you know black people and people of color people of low socioeconomic status in our country are seen as frankly somewhat disposable. One could conclude by looking at the system carefully, or even on the surface, there’s just no shortage of issues that we need to address.
Peter Neufeld 49:41
There’s it doesn’t necessarily have to be explicit racism either. Okay. I mean, I think frankly, it’s more likely to be implicit the next question, it’s more likely that you know that all of us might unconsciously think that the black person is guilty than the white person.
Sara Jones 50:00
I think in Minneapolis, you know, what, we’re what’s long been known. And I’ve lived here all my life long been known, but now is getting some lip services. The fact that racism here in in our city is explicit, and as well as input, implicit, but we have a lot of work to do. And if we don’t get started on it, then we’re never gonna get anywhere.
Chanda Smith Baker 50:25
So, let’s talk about that. Then for a second, which is, particularly following the murder of George Floyd. It woke some people up that have been sort of sleeping and knew that they we had some racial challenges. For others, it was Oh, my God, I can’t believe this is my city. When did we get like this? And for others, it was like I’ve been telling you all right, I’ve been working on this, the evidence is there. I don’t know why you’re just waking up. And so for the folks that have made sort of a new commitment of getting involved in issues related to the criminal justice reform that maybe sit outside of the spaces you are in, you know, I’m in philanthropy, like, what, what advice or where? Where would you recommend? Because I get asked this question all the time, I want to get engaged. I don’t know where to jump in. What would you advise?
Peter Neufeld 51:13
You’re in Minneapolis and St. Paul, and you should probably give Yeah, we’re on the ground more?
Sara Jones 51:20
Well, and I have to say that, you know, North and South Dakota, and many in Minnesota are also home to 23 Native nations. And the statistics are pretty sad when one looks at the discrimination, and disproportionate negative impact on Native Americans as well as black people and Latinx people. Minneapolis, you know, of course, is a focal point right now, because of George Floyd’s murder. So we’re very conscious of that here. But I don’t want people to forget that it goes farther than that as well. I think what we try to tell people is that it’s important to be aware of the issues have people pay attention to not only the Great North Innocence Project, and its work, but other organizations that are trying to address the criminal legal system and the reforms that we need. There are a number of nonprofit organizations that people can get involved in. And one that, that I’m very close to is the organization we are all criminals, which uses art and storytelling to demonstrate to all of us that, you know, there but for the grace of God, go I and we’ve all done things wrong. And if we are seen as what we do on our worst days, as opped to being seen as human beings who come with all of our flaws and mistakes, people are never going to be able to distinguish and treat people like human beings to begin with. To me, that’s the fundamental foundation of all of this is that we need to treat people humanely, regardless of their circumstances.
Peter Neufeld 52:59
You know, It’s funny, I know, I was raised to think that that issue, particularly I mean, the issue of racism was something that, well, that happens in the south but not in the north. Okay. And of course, that’s absurd. And it’s not even a Minneapolis issue. I mean, the police killed Eric Garner in a chokehold. Years before George Floyd was killed by police. I worked on a case back in the 90s, of a man named Abner Louima, who was a Haitian immigrant, who was taken to the precinct in Brooklyn, and he was tortured with a broom, you know, stuck up his rear end, ripping out his organs, by the police in the police bathroom. And that’s, that’s Brooklyn. So, these kinds of things happen everywhere. It just so happens that, you know, some very brave teenager took out a phone, and videotaped what happened to George Floyd otherwise, George Floyd would just be another case where, you know, he died in custody. And that would have been the end of it. You know, fortunately, with technology and other assets, we can, we can illuminate these cases, we can do more to make it a teaching moment. But once it is a teaching moment, your question is what do you do with that? You know, I still think you know, what, Sara, and what we do is more of the back end, you know, when she’s talking about treating people as human beings, we can also do more to prevent our institutions from being predisposed to treat people with disparity and to treat people poorly. So, you know, I used to be primarily concerned with presidential elections and our senators and Congress people. Now I’m very focused on local elections. You know, we can play a role in who our local district attorney is our prosecutors. I assume they were elected in Minnesota. I’m okay. And they are in New York, and they are in most states. And we should make sure that the person who gets elected to have that very, very important function has the sense of humanity that Sara is describing. We should get involved in our local school boards, right? Gosh, we don’t want to schoolboy that’s going to prohibit the teachers, from teaching any anything about our history that’s uncomfortable for our children. If they don’t hear those uncomfortable narratives about our past, you know, they’re doomed to repeat them in the future. So, we should be involved in our school board elections. We should be very concerned with who’s winning on libraries. We don’t want them run by people who are going to remove books, you know, that challenge our kids, presumptions and assumptions. We want them challenged. So, we should be involved in all those local institutions, which we really hadn’t been involved in in the past, that should become much more of a priority for all of us.
Chanda Smith Baker 55:59
Yeah, I love that. And we are in election season with elections on all those races, I believe in November. So lastly, you all have an event coming up. And if you could just share the details of that event, so we can make sure to get that out to the listeners.
Sara Jones 56:15
Sure. The Great North Innocence Project is holding its annual benefit for innocence this year on October 26, from 530 to 930, at Quincy Hall in Northeast Minneapolis. And we are thrilled to be featuring our emcee Chanda Smith Baker, who will take us through the program and our keynote speaker, Peter Neufeld. And our focus this year is going to be on science. We’re calling it the benefit for innocence, the science of justice. And we know that Peter has deep and broad expertise in issues of forensic science, starting with DNA that got the Innocence Project started. But there are all kinds of other aspects of science that have either become more sophisticated and useful to us in demonstrating wrongful convictions and science that has been demonstrated to not be science at all. So science plays a huge role in criminal legal system in the criminal legal system, and we’re going to explore some of that, not too serious of a nature that evening, we’re going to have some fun, but I hope people will be able to join us. And if people aren’t able to join us in person, we are going to be live streaming the program portion of the evening as well. You can learn more at our website. Great North innocence. project.org.
Chanda Smith Baker 57:37
Sounds good. And if they wanted to learn more about the Innocence Project and its evolution over the last 25 years, Peter, where would they go?
Peter Neufeld 57:45
I think probably Sara’s websites a good place to start on that the Great Northern Innocence Project has a lot of information on it. And there are people who are working, they’re very committed to this work. Obviously, we were the first project and we have a larger staff. And so we have a little bit more information and you can just simply go to innocence project.org and search that website, you’ll receive a lot more information. But I think that what’s important is that your listeners really support the Great Northern Innocence Project, because they’re doing the lion’s share of the work in your part of the country.
Chanda Smith Baker 58:23
Thank you, Peter. I love hearing that for the podcast. We have a very national audience. I will um have them go to your website as well. And I think it’s great for them to come here. Thank you for listening again. This is Chanda Smith Baker. We just had a fantastic conversation with Sara Jones and Peter Neufeld. You may have also heard in the conversation that there’s an upcoming benefit on October 26 at Quincy Hall for the 20th annual benefit for innocence. The theme this year is the science of justice where Peter will be the keynote and I will be the emcee. So I hope that if you have interest in attending that that you sign up and see us on October 26 at 530 at Quincy Hall. For more information please visit the Great North Innocence Project and its website.Close Transcript -
Peter Neufeld co-founded and is Special Counsel at the Innocence Project, a national nonprofit organization that fights for fair, compassionate, and equitable systems of justice for everyone, frees the innocent, and prevents wrongful convictions. The work is guided by science and grounded in antiracism. The Project also assists legislatures and executive branches, as well as police, prosecutors, and defense attorneys, to bring about reform in criminal justice. In its thirty years of existence, 375 individuals have been exonerated in the United States through post-conviction DNA testing. The Project has been instrumental in the passage of federal legislation and more than a hundred state statutes to improve the quality of justice.
Peter is a founding partner in the New York civil rights law firm of Neufeld Scheck & Brustin, LLP. Peter’s focus is constitutional law and civil rights. He has lectured and taught students, lawyers, judges, legislators, and scientists on subjects at the intersection of science and criminal justice. Before co-founding the Innocence Project, Peter taught trial advocacy at Fordham University Law School.
From 2014-2017, Peter served as a Commission member of the National Commission on Forensic Science, established by U.S. Department of Justice and the National Institute of Standards and Technology. From 1995 to his resignation in 2016, Peter served on the New York State Commission on Forensic Science which regulates the two dozen crime laboratories in the state. He is a member Emeritus of the boards of the Montefiore Medical Center and the Albert Einstein School of Medicine. A graduate of the University of Wisconsin, Peter received his law degree from New York University School of Law.
Sara Jones received her law degree from the University of Minnesota and her B.S. from Northwestern University. She began her legal career as an Assistant Attorney General under Hubert H. (“Skip”) Humphrey, Jr. Following that, she practiced law with a private firm. Her commitment to public and community service then continued through a new career in the nonprofit sector, including completing a Mini-MBA in Nonprofit Management at St. Thomas University, and working in advancement in a number of Minnesota nonprofit organizations.
As Executive Director of the Great North Innocence Project, she leads the organization in fulfilling its mission to free wrongfully convicted people and improve the criminal legal system to prevent wrongful convictions. The Great North Innocence Project serves the region, including Minnesota, North Dakota, and South Dakota.
The roots of Sara’s commitment to the cause of justice began with her father, who served as Minnesota’s first State Public Defender for nearly 25 years and taught criminal and constitutional law throughout his career. Over the decades, they had ongoing conversations about justice, mercy, opportunity, and seeing the humanity in everyone. Most significantly, Sara internalized the importance of all participants in the criminal legal system (law enforcement officers, prosecutors, defenders, the courts, and legislatures) to be equally committed to upholding the law, seeking justice, using best practices, and serving with integrity.