You Might Go to Prison, Even Though You're Innocent

By Justin Brooks

Surviving prison as an innocent person is a surreal nightmare no one wants to think about. But it can happen to you. 
 
Justin Brooks has spent his career freeing innocent people from prison. With You Might Go to Prison, Even Though You're Innocent, he offers up-close accounts of the cases he has fought, embedding them within a larger landscape of innocence claims and robust research on what we know about the causes of wrongful convictions.
 
Putting readers at the defense table, this book forces us to consider how any of us might be swept up in the system, whether we hired a bad lawyer, bear a slight resemblance to someone else in the world, or are not good with awkward silence. The stories of Brooks's cases and clients paint the picture of a broken justice system, one where innocence is no protection from incarceration or even the death penalty. Simultaneously relatable and disturbing, You Might Go to Prison, Even Though You're Innocent is essential reading for anyone who wants to better understand how injustice is served by our system.

• Language: English
• Publisher: University of California Press
• Release date: Apr 4, 2023
• ISBN: 9780520386846

Justin Brooks

Justin Brooks is a criminal defense lawyer, law professor, and the Founding Director of the California Innocence Project, where he has spent decades freeing innocent people from prison. He is the author of the only legal casebook devoted to the topic of wrongful convictions and was portrayed by Academy Award–nominated actor Greg Kinnear in the feature film Brian Banks.  

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PRAISE FOR You Might Go to Prison, Even Though You’re Innocent

"You Might Go to Prison, Even Though You’re Innocent is a narrative work of social science and policy translation at its best, a compelling, pragmatic, and invaluable journey to better understanding and rectifying the law’s ultimate nightmare—convicting the innocent. This book will be of interest to anyone who is concerned with the fairness of our trial procedures and the reliability of the evidence that is used to secure plea bargains and convictions in criminal cases. It should be required reading for all prosecutors and judges, not to mention police as well as criminal defense attorneys."

RICHARD A. LEO, author of Police Interrogation and American Justice

"Justin Brooks has been on the front lines of the fight to free the innocent from prison for decades. You Might Go to Prison, Even Though You’re Innocent should be required reading for every law enforcement officer and every prosecutor in the United States and around the world."

JEREMY DECONCINI, former Special Agent, US Department of Homeland Security

Brooks’s trek from San Diego to Sacramento is symbolic of his dedication to his clients, his commitment to freeing the wrongly convicted, and his optimism despite overwhelming obstacles in the journey for justice. His book is a litany of examples of how our criminal justice system makes wrongful convictions so easy and setting them aside so difficult. Brooks stands with those warriors who persist in the fight for justice no matter how long the effort or how many defeats along the way. They battle not only for all those wrongfully convicted but for all of us who need protectors of our rights and freedom. Every law student dreams of freeing an innocent person; Justin Brooks lives that dream.

LEE SAROKIN, former US Circuit Judge of the US Court of Appeals for the Third Circuit, freed wrongfully convicted championship boxer Rubin Hurricane Carter

The kind of book that robs you of your peace. It unpacks—tale after heart-breaking tale—how ‘court guilt’ can blow the doors off judicial safeguards and overwhelm innocence with ease. Long before your jaws rehinge, the truth hits: guilt often comes down to gamesmanship, we live a hairs-breadth from the unthinkable, you might go to prison even if you haven’t done a thing.

CATHERINE PUGH, Attorney, formerly with the Department of Justice Civil Rights Division, Special Litigation Section

You Might Go to Prison, Even Though You’re Innocent

Justin Brooks

UC Logo

UNIVERSITY OF CALIFORNIA PRESS

University of California Press

Oakland, California

© 2023 by Justin Brooks

Cataloging-in-Publication Data is on file at the Library of Congress.

ISBN 978-0-520-38683-9 (cloth : alk. paper)

ISBN 978-0-520-38684-6 (ebook)

32   31   30   29   28   27   26   25   24   23

10   9   8   7   6   5   4   3   2   1

For Heidi, of course. The love of my life. The person who picks me up and keeps me going in this work and this world.

Contents

Foreword by Barry Scheck

Introduction

1. You Hired the Wrong Lawyer (Pleas with No Bargain)

2. You Live in the Country or the City

3. You Are in a Relationship and Live with Someone Who Is Murdered

4. You (Kind of) Look like Other People in the World

5. You Get Confused When You Are Tired and Hungry, and People Yell at You

6. You Have or Care for a Sick Child

7. You Got a Jury That Was Blinded by Science

8. You Work with Children or Let Them in Your House

9. Someone Lies about You

10. You Are Poor and/or a Person of Color

Conclusion

Acknowledgments

Notes

Index

Foreword

I first met Justin Brooks in 1998 at an extraordinary event in Chicago. It was a gathering of lawyers, academics, and innocent people from across the United States who had been exonerated after being sentenced to death. It was heartbreaking and inspiring to see each one of them take the stage knowing they came close to being executed. At the time Justin was working to free an innocent woman from death row in Chicago. I’m sure the event gave him hope that freedom was possible, even against all odds.

The next year, in 1999, Justin cofounded the California Innocence Project. He joined a small group of us who started projects around the country. We were mostly criminal defense attorneys and law professors, and our projects were attached to clinical programs at law schools. We worked together and shared resources. Our group soon became known as the Innocence Network.

For the better part of the next two decades, I served on the board of the Innocence Network with Justin as we watched our small group of lawyers doing innocence work grow into an international movement. More than sixty projects emerged in the United States, while projects began in Europe, Asia, the South Pacific, and Africa. Justin led not only the efforts in California, but he also initiated and coordinated the efforts of twenty-five innocence organizations in Latin America.

You Might Go to Prison, Even Though You’re Innocent is the culmination of everything Justin has learned doing innocence work and a powerful indictment of our criminal legal system. Justin skillfully weaves together his personal experiences representing innocent people with research and cases from around the world, leaving no doubt that no one is safe from being wrongfully convicted.

Barry Scheck

Cofounder

The Innocence Project

Introduction

In May of 1872, William Marion and his friend John Cameron traveled to Kansas from Nebraska with plans to work on the railroad for four or five weeks. Several days later, Marion returned to Nebraska alone but with Cameron’s horses and harnesses. Marion claimed he’d purchased them from Cameron. ¹

A decomposed body found in the desert with a bullet in the skull that could have come from Marion’s gun led to murder charges. He was convicted, sentenced to death, and executed by hanging. Four years after the execution, Cameron reappeared alive and well. He told authorities he sold his horses and harnesses to Marion and fled to Mexico to avoid a shotgun wedding. One hundred years later, the Governor of Nebraska pardoned Marion. ²

Wrongful convictions are nothing new. And yet, when I began my criminal defense career thirty-two years ago, I often had conversations with people who were deeply cynical about the idea that innocent people are convicted in our criminal legal system.

In the 1990s, DNA technology changed the discussion. People began to be released from prison based on definitive scientific proof of innocence—nearly as definitive as John Cameron showing up alive after William Marion’s execution.

Since the 1990s, thousands of innocent people have been freed from prison. ³ And yet, those freed people, those exonerees, are simply the tip of the iceberg. They are the lucky ones.

It’s hard to tell someone who is innocent and has spent years in prison they are lucky, but they are. They are lucky the evidence from their trial wasn’t thrown in the trash. They are lucky they didn’t get killed in prison. They are lucky they found a competent lawyer to listen to their pleas of innocence. They are lucky the lawyer spent time and resources on their case. They are lucky their case was assigned to a judge who would grant a hearing. And ultimately, they are lucky they were able to jump over the many barriers in our legal system to gain their freedom. The unlucky ones, regardless of innocence, die in prison.

Despite the thousands of documented cases of innocence, there’s still a cynicism surrounding the notion that innocent people are wrongfully convicted. Although the claim that innocent people never go to prison has softened, many still believe such instances are exceedingly rare or it only happens to people who must have done something wrong. This dismissive attitude results in the conclusion that it happens to some people, but it won’t happen to me.

That’s the reason I wrote this book. The criminal legal system is imperfect. No matter what country, state, city, or town you live in, you can be wrongfully convicted. This imperfect system acts on your behalf. It protects your family, your home, and your life. This imperfect system also can take away everything you have ever loved and cared for.

I’m confident once you read the stories of injustice that fill this book, you will see the possibility that you or a loved one could be the victim of a wrongful conviction. Each chapter will take you through causes of wrongful convictions that are typically beyond the control of those who suffer the fate of landing in prison as an innocent person. Maybe it’s getting the wrong lawyer, living in a neighborhood that is over- or under-policed, finding a dead body, or a host of failings by government entities and pseudosciences. Even though the statistical chances of this happening to you change based on factors such as race, gender, age, socioeconomic standing, education, and who you associate with, anyone, including you, can be wrongfully convicted.

I personally litigated many of the cases discussed in this book, but all the successes I’ve had over the past two decades were the result of teamwork by the lawyers, law students, volunteers, and administrative staff of the California Innocence Project (CIP), an organization I’m honored to direct.

When I cofounded CIP in 1999, I was a thirty-four-year-old lawyer with aggressively thick brown hair and an attitude to match. Both have softened over the years. My hair has greyed, and I’ve learned more persuasive and less in-your-face approaches to freeing innocent people from prison. My cofounder, Jan Stiglitz, was a perfect partner. His hair had already greyed, and his relentless reasonableness rubbed off on me. At the law school, Jan was Professor Kingsfield from the movie Paper Chase. He was well known for making students cry in his Civil Procedure class, but he had a huge heart which was always on display when he was around his wife and two daughters. When I pitched him the idea of CIP, he immediately said he wanted in. After years as an appellate lawyer, he’d only been able to reduce outrageous prison sentences. He wanted to free innocent people.

Kim Hernandez was the third member of our team. We hired her as a part-time administrative assistant, but she soon became so much more. She was a mother of five who had no experience in criminal law, but a lot of experience in business and organizing children. Those skills came in handy as we created an organization with the capacity to screen, investigate, and litigate innocence claims based on the thousands of letters we received while also training and managing a group of inexperienced law students.

After we raised some money from grants and the generosity of guitarist Joe Walsh and the rock band The Eagles, we added two lawyers to the staff. I convinced Jeff Chinn, my best friend from law school, to leave his cushy job in career services at American University in Washington, DC, and join us. He was, and is, incredibly patient. If he could sit at a desk and listen to music while he dug through the piles of innocence claims we received, he was happy.

The second lawyer we hired was Alex Simpson. Alex distinguished himself as the best of our first clinical students, and he is one of the smartest, funniest, most sarcastic people I’ve ever met. Alex shared an office with our first investigator, Craig Woolard. Craig had been a law student but realized his skills, interest, and personality were much more suited to tracking down witnesses, stakeouts, and finding the truth on the streets. Jan, Kim, Jeff, Craig, and a few other great lawyers and staff we’ve had over the years have moved on to other work, but they’ve all been part of the story of CIP and our successes. Alex and I are the two who have remained.

I’m proud of all the work done by the students, lawyers, and administrative staff who have made CIP part of their education and career over the past two decades. I’m particularly proud of the work of our current team of outstanding lawyers who have been with the project for many years. They comprise the greatest group of advocates and friends I could hope for. Alex Simpson, Alissa Bjerkhoel, Raquel Cohen, Mike Semanchik, and Audrey McGinn are people I’d trust with my life, something our clients do every day.

As I’ve said, every success we’ve had in our office has been a team effort involving many people and, if I fail to mention all their names in conjunction with a particular case I’m discussing in this book, let it be known that we all work on every case (see fig. 1).

Figure 1. The California Innocence Project Team. Top row from left: Alex Simpson, Mike Semanchik, Audrey McGinn, Jasmin Harris, Jolena Pamilar, Raquel Cohen, Sydnie Mitchell. Bottom row from left: Alejandro Romero, Claudia Salinas, Justin Brooks, Alissa Bjerkhoel, Ruby Anaya. Photo credit: Heidi Brooks.

Beyond the exonerations we’ve obtained, I’m also proud of the policy changes we’ve been a part of. Jasmin Harris, a former pancake restaurant owner/manager for many years, came into our office after the breakfast rush was over. She volunteered all day reviewing cases and helping out any way she could. She spent so many unpaid hours at CIP and did such great work; I was thrilled when we were able to hire her to lead both our policy efforts and our development team. As a result, CIP has been part of changing criminal legal policy in California, including laws related to new evidence standards to reopen old cases, preservation of evidence after trial, post-conviction DNA testing, police identification procedures, and compensation for innocent people who have lost years of their lives in prison.

Although this book is dedicated to the causes and devastating effects of wrongful convictions, I don’t want to leave you with the impression that wrongful convictions are the only problem with the criminal legal system. There’s a great deal wrong with our system beyond convicting the innocent. Our unending devotion to antiquated notions of punishment in the hands of bureaucratic government agencies, combined with overwhelming political influences, has left us with a system that is often both impractical and cruel. In the United States, decades of tough-on-crime policies have created the largest prison system in the world, disproportionally filled with people of color, that incarcerates a higher percentage of our population than any other country.

We must not only address the issues in this book that lead innocent people to prison, but also holistically examine the criminal legal system and ask hard questions. What behaviors should be criminalized to truly serve society? What processes and resources are needed to serve justice? What sentences and remedies are reasonable responses to criminal behavior? What type of correctional system will return a person back to society who is less likely to commit more crimes? It is only by answering these questions that we can create a system that is just.

1

You Hired the Wrong Lawyer (Pleas with No Bargain)

MARILYN MULERO

In 1994, I was a twenty-nine-year-old law professor living in East Lansing, Michigan, when I read about a young Puerto Rican woman named Marilyn Mulero awaiting execution in Chicago. The article said she was sentenced to death on a plea bargain. You read that right: a bargain. For death.

I thought that couldn’t be accurate. The media often gets legal proceedings wrong. Why would anyone give up the right to trial and appeals and plead to the death penalty? If she’d gone to trial, even if she was guilty, she might have won, or she might have received a lesser sentence. And, even if she lost, she’d have the right to appeal, and she’d be alive during the many years her case slowly worked its way through the appellate system, again with the chance of success.

By pleading guilty, she’d given up all these rights and opportunities with nothing in return. There was no bargain in the plea bargain. It simply guaranteed a quick death sentence.

I did some research and found out the article was, in fact, accurate. I needed to know how this young woman, who was twenty-one years old at the time of her arrest, ended up on death row without a trial in the United States of America. I didn’t want to know. I needed to know.

I read about Marilyn’s case just a year and a half after I’d moved from Washington, DC, to suburban Michigan. In DC, I worked as a court-appointed criminal defense lawyer and ran a prison education program in DC’s notoriously violent Lorton Prison. On a daily basis, I moved between the prison, the courts, and crime scenes in what was then known as the Murder Capital of the World. I was tempted away from my life in DC, immersed in the criminal legal system, by the prospect of a beautiful Victorian house in Michigan that cost only $89,000, a public school a safe walk away where our children could get a decent education, and a cushy job teaching law.

Yet, eighteen months into my new life, I was sucked back into my old life by Marilyn’s story. I don’t exactly know why. Maybe I felt a kinship with her because she was from Puerto Rico, my island home throughout high school. Maybe I was already bored of suburban living and needed some action. I still don’t know exactly why I took on her case, but it changed the entire direction of my life.

I first met Marilyn in the Dwight Correctional Facility, one hundred miles outside of Chicago. Dwight was a women’s prison in the middle of endless farmland that was shut down in 2013 for budget reasons. It was a typical place for a prison in the United States, far from the city where most of the residents came from, built with no concern for poor families without decent cars, or money for gas, to make the long journey to visit their loved ones.

As I approached the prison, the guard towers rose above the cornfields like silos. I pulled into the visitor parking lot, where a group of incarcerated women in white jumpsuits raked the gravel lot.

Can I help you? asked the serious-but-bored-looking officer at the front gate. His expression was exactly what you would expect from someone who stared at grey walls all day.

I’m here to see Marilyn Mulero. I showed him my state bar license, driver’s license, and a memo from their legal department confirming my visit.

He glanced at the documents for a moment. You’re going to meet her in the cafeteria.

The cafeteria? That seemed very odd. If she was a man, our meeting would have been through the bars of a cell or in a highly secure attorney room in a specific unit built for death row. But there was no specific unit for women on death row. There were too few of them.

I was escorted to the cafeteria and waited for Marilyn on an uncomfortable metal folding chair. I looked around at bright artwork and motivational posters on the walls, including the classic cat hanging from a wire with bold orange letters declaring Hang in There! There were sad looking pieces of streamers stuck to tape on the walls from some past holiday celebration.

I could smell some nondescript food being cooked nearby and heard some distant shouting, a constant sound in correctional facilities. I was thinking about what to say to Marilyn and whether I was making a terrible mistake getting involved in her case when I saw her for the first time. Two guards led her into the cafeteria, one on each side. She was half the size of the guards, and yet her wrists and ankles were shackled, causing her to shuffle across the polished linoleum floor.

Marilyn wore layers of clothes under her drab, oversized, blue prison jumpsuit. Her freckled face made her look even younger than she was. Her dark hair was neatly braided, and she wore thick eyeliner. I could tell she’d spent some time on her hair and makeup for the visit. That always saddens me. Everyone’s life should involve better things to get made up for than a prison visit with a lawyer.

Hello, Mr. Brooks. She nervously smiled, trying to shake my hand while one of the guards handcuffed her to the table.

How are you, Marilyn? A seemingly absurd question for someone in her situation, but even in prison there are good days and bad days. How are you being treated?

She shrugged her shoulders. I’m getting by.

We talked for half an hour before I started to ask about her case. I always begin my client visits by talking about their lives, classes they are taking, work they are doing, and prison visits they’ve had with family and friends. I talk to them about anything but their case for as long as I can. I care about them as human beings, and it allows me to try and develop a bit of trust before they have to open up about the worst experience of their life, and often, the worst choices they’ve ever made.

Marilyn indulged me and told me about the certificates she’d earned taking correspondence courses from a junior college. She was upbeat, and it felt like she was excited to be talking to someone from the outside world. We talked about Puerto Rico and places we both knew from my time going to high school there and her time bouncing back and forth between Chicago and a Caribbean mountain village. She talked about her time in prison and the other women who were housed with her—the fights, the relationships, the general drama. We talked about everything except why she was facing execution until the conversation ran out of steam.

What can you tell me about your case? I asked, shifting gears.

I’m innocent. She nervously laughed and stared directly into my eyes.

I was deeply cynical about this statement. It made no sense to me that an innocent person would plead guilty with no better sentence than death on the table.

Then why did you plead guilty? I asked.

She started to look angry. My lawyer told me it was the best way to go. He said no matter what I did, I was leaving prison in a body bag. If I plead guilty, I had a chance of living out my life in prison. If I fought the case, I was going to be executed.

Yet, you pleaded guilty and got the death penalty.

Yep. She lowered her head and started tearing up. She wiped her eyes with a tissue and, with each stroke, her efforts at applying makeup for our visit disappeared.

How did you get this lawyer?

She looked back up at me with smeared eyeliner and watery eyes. "I had a public defender, but my friends told me