On Injustice with Justice Michael P. Donnelly
Injustice in the Justice System with Justice Michael P. Donnelly on Guerrilla Wisdom
Mentioned in this Episode:
My article in The Atlantic (which brought Justice Donnelly and I together) How AI Can Improve the Justice System, can be found here.
The “Blackstone Ratio” comes from William Blackstone’s classic 1769 legal text Commentaries: “the law holds that it is better that 10 guilty persons escape, than that 1 innocent suffer (innocent person be convicted).” It’s meant to counterbalance the desire to punish, and to enshrine the importance of protecting the innocent in the legal system. Those interested in this topic can also read this more recent article about it.
In the same vein, the full quote from Founding Father John Adams is as follows:
“We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.”
For a great survey of the issues of bias and noise in the legal system – one Justice Donnelly and I refer to in the talk – check out the book Noise: A Flaw in Human Judgment.
1
00:00:00,000 –> 00:00:01,876
Would you ever enter
2
00:00:02,168 –> 00:00:03,545
a contract
3
00:00:03,545 –> 00:00:05,255
in which you did not know
4
00:00:05,255 –> 00:00:07,590
whether you were receiving any benefit,
5
00:00:07,590 –> 00:00:10,301
you did not know what you were obligating yourself to,
6
00:00:10,427 –> 00:00:11,761
you would only find that out
7
00:00:11,761 –> 00:00:14,472
after you enter the contract 30 days down the road.
8
00:00:14,681 –> 00:00:16,725
I mean. The price. Right? The price.
9
00:00:16,725 –> 00:00:17,392
You’re getting the car,
10
00:00:17,392 –> 00:00:19,519
but you don’t know what you’re paying for it. Exactly.
11
00:00:20,020 –> 00:00:21,563
Honest lawyers and judges
12
00:00:21,563 –> 00:00:22,272
typically know
13
00:00:22,272 –> 00:00:24,315
the so-called justice system
14
00:00:24,315 –> 00:00:26,985
is really a mixed bag in terms of actual justice.
15
00:00:27,777 –> 00:00:28,570
Now, on one hand,
16
00:00:28,570 –> 00:00:30,030
you’ve got thousands of lawyers
17
00:00:30,030 –> 00:00:32,198
and judges working hard every day
18
00:00:32,198 –> 00:00:34,701
to move legal cases and disputes forward.
19
00:00:35,577 –> 00:00:36,786
On the other hand,
20
00:00:36,786 –> 00:00:38,913
laypeople can forget that legal professionals
21
00:00:38,913 –> 00:00:40,874
are regular human beings, too.
22
00:00:40,874 –> 00:00:43,209
They’ve got the same biases and prejudices.
23
00:00:43,710 –> 00:00:45,920
They get tired and angry.
24
00:00:45,920 –> 00:00:47,505
They’ve got different world views
25
00:00:47,505 –> 00:00:49,507
and theories about the world.
26
00:00:49,507 –> 00:00:51,009
They pursue their self-interest
27
00:00:51,009 –> 00:00:52,886
and the next move in their career.
28
00:00:52,886 –> 00:00:54,679
They have cognitive biases.
29
00:00:54,679 –> 00:00:57,015
They develop friends and enemies along the way.
30
00:00:58,058 –> 00:00:58,558
If you look at all
31
00:00:58,558 –> 00:01:01,019
the injustices that shock us the most
32
00:01:01,519 –> 00:01:03,605
from people who’ve been wrongfully convicted
33
00:01:03,897 –> 00:01:06,107
and we know they exist in droves,
34
00:01:06,107 –> 00:01:07,650
mainly thanks to the development
35
00:01:07,650 –> 00:01:10,028
of DNA evidence technology.
36
00:01:10,028 –> 00:01:12,238
The people who get judge because of irrelevant
37
00:01:12,238 –> 00:01:14,574
factors like their race or gender.
38
00:01:14,741 –> 00:01:15,742
Again,
39
00:01:15,742 –> 00:01:18,787
the use of statistics shows us these kinds of biases
40
00:01:19,120 –> 00:01:21,164
in ways that are more and more clear.
41
00:01:21,164 –> 00:01:24,584
The cases were just bureaucratic mistakes along the chain,
42
00:01:25,001 –> 00:01:25,418
or just
43
00:01:25,418 –> 00:01:27,796
because maybe something is more expensive
44
00:01:28,046 –> 00:01:30,215
and somebody has the ability to pay for.
45
00:01:31,216 –> 00:01:34,594
The one thing these instances all have in common
46
00:01:34,844 –> 00:01:38,348
is that they all went through our so-called justice system.
47
00:01:39,682 –> 00:01:41,810
But that’s not the whole story.
48
00:01:41,810 –> 00:01:43,812
There are also some incredibly lucid,
49
00:01:43,812 –> 00:01:46,272
honest, courageous individuals within it.
50
00:01:46,689 –> 00:01:48,483
People who take risks and fight
51
00:01:48,483 –> 00:01:49,776
to improve things from within.
52
00:01:50,860 –> 00:01:52,654
My guest in this podcast episode,
53
00:01:52,654 –> 00:01:55,448
Supreme Court of Ohio Justice Michael P
54
00:01:55,490 –> 00:01:57,575
Donnelly, is one of those people.
55
00:01:58,493 –> 00:02:00,036
Just as Donnelly reached out to me
56
00:02:00,036 –> 00:02:02,413
after he read my piece in The Atlantic
57
00:02:02,413 –> 00:02:04,833
on how Ira and I can help us improve
58
00:02:04,833 –> 00:02:06,918
fairness in the justice system.
59
00:02:07,752 –> 00:02:09,671
And immediately we started sharing
60
00:02:09,671 –> 00:02:12,048
and he started sharing his experiences about how
61
00:02:12,340 –> 00:02:13,883
this was a multi-year battle
62
00:02:13,883 –> 00:02:17,095
that he’s been waging from deep within the judicial system
63
00:02:18,096 –> 00:02:21,474
and talking about how he’s experienced a lot of pushback
64
00:02:21,641 –> 00:02:22,684
from within
65
00:02:22,684 –> 00:02:23,560
around this call
66
00:02:23,560 –> 00:02:25,103
for basically more transparency
67
00:02:25,103 –> 00:02:27,105
and accountability,
68
00:02:27,105 –> 00:02:29,107
just as Donnelly is at the very top
69
00:02:29,107 –> 00:02:30,650
of the legal profession.
70
00:02:30,650 –> 00:02:32,861
He’s been a judge for many years now,
71
00:02:32,861 –> 00:02:34,696
and the insight and perspective
72
00:02:34,696 –> 00:02:37,198
that he brings on this topic are truly elite
73
00:02:37,574 –> 00:02:39,784
and comes from the very front lines.
74
00:02:40,702 –> 00:02:42,912
I think this conversation will surprise many people
75
00:02:43,329 –> 00:02:45,999
and hopefully contribute to the calls for more justice
76
00:02:46,332 –> 00:02:49,127
and the protection of innocence in the legal system.
77
00:02:49,961 –> 00:02:51,045
I hope you enjoy it.
78
00:02:51,045 –> 00:02:52,505
This is my conversation
79
00:02:52,505 –> 00:02:55,008
with The Honorable Michael B. Donnelly.
80
00:03:13,151 –> 00:03:14,485
So how are you doing today?
81
00:03:14,485 –> 00:03:15,278
I’m doing great.
82
00:03:15,278 –> 00:03:16,487
It’s great to be here. It’s great to meet you in person.
83
00:03:17,906 –> 00:03:20,200
Absolutely. And thanks for, thanks for doing this.
84
00:03:20,200 –> 00:03:24,621
I really appreciate it. My pleasure. Great.
85
00:03:24,954 –> 00:03:27,874
So we initially connected through an article
86
00:03:27,874 –> 00:03:30,877
that I wrote for The Atlantic where I basically argued
87
00:03:30,877 –> 00:03:32,879
that we need to use statistics
88
00:03:32,879 –> 00:03:35,548
and AI to scrutinize judges a little bit,
89
00:03:35,715 –> 00:03:38,343
maybe even rein in their discretion a little bit.
90
00:03:38,343 –> 00:03:39,969
And you know the statistics
91
00:03:39,969 –> 00:03:40,470
very well
92
00:03:40,470 –> 00:03:43,264
that the variability in judicial outcomes
93
00:03:43,264 –> 00:03:45,475
can sometimes be wildly inconsistent.
94
00:03:45,808 –> 00:03:47,227
It makes you wonder
95
00:03:47,227 –> 00:03:49,229
what’s the point of having democratic laws
96
00:03:49,520 –> 00:03:51,314
when the main factor
97
00:03:51,314 –> 00:03:53,316
in determining a judicial outcome becomes
98
00:03:53,316 –> 00:03:55,318
the identity of the individual judge?
99
00:03:55,318 –> 00:03:56,945
So in some cases,
100
00:03:56,945 –> 00:03:59,906
the odds of success can vary from single-digit percentages
101
00:04:00,156 –> 00:04:02,367
all the way up to 80%, depending on who
102
00:04:02,408 –> 00:04:03,451
the individual judge is.
103
00:04:03,451 –> 00:04:03,868
FRED:
104
00:04:04,118 –> 00:04:06,537
And in sentencing, you can get a couple of years
105
00:04:06,829 –> 00:04:08,289
or you can get a couple of decades
106
00:04:08,289 –> 00:04:09,874
or even more
107
00:04:09,874 –> 00:04:12,794
based on the very same facts or very similar facts,
108
00:04:12,794 –> 00:04:13,836
depending on who the judge is.
109
00:04:13,836 –> 00:04:16,297
And I was expecting a little bit of pushback
110
00:04:16,297 –> 00:04:19,759
and a little bit of support for this piece, which I got.
111
00:04:20,009 –> 00:04:20,802
What I was not
112
00:04:20,802 –> 00:04:25,723
expecting, was support or even encouragement from a judge,
113
00:04:26,349 –> 00:04:29,686
let alone a high-ranking judge such as yourself.
114
00:04:30,019 –> 00:04:31,729
I have a tremendous amount of respect
115
00:04:31,729 –> 00:04:33,856
for the work of judges, it’s extremely difficult.
116
00:04:35,149 –> 00:04:37,277
But I was surprised when you reached out to me.
117
00:04:37,568 –> 00:04:39,570
Then I got acquainted with your work, of course,
118
00:04:39,570 –> 00:04:41,739
and I quickly learned how passionate
119
00:04:41,739 –> 00:04:44,409
you are around the issue of judicial fairness,
120
00:04:44,826 –> 00:04:47,161
better transparency in the legal system.
121
00:04:47,161 –> 00:04:49,872
You’ve done a lot of public facing work in this area.
122
00:04:50,290 –> 00:04:52,125
Let’s start maybe with how we connected.
123
00:04:52,125 –> 00:04:52,792
What made you made
124
00:04:52,792 –> 00:04:54,043
you reach out to me
125
00:04:54,043 –> 00:04:56,170
and how strongly do you feel about these issues
126
00:04:56,170 –> 00:04:58,589
from as deep within the judiciary as you are?
127
00:04:58,589 –> 00:04:58,965
Sure.
128
00:04:58,965 –> 00:04:59,632
Well, first of all,
129
00:04:59,632 –> 00:05:02,093
thank you very much for having me as a guest.
130
00:05:02,135 –> 00:05:03,261
It’s an honor to be here.
131
00:05:03,261 –> 00:05:06,723
And I can say when I read your article in The Atlantic,
132
00:05:08,433 –> 00:05:13,563
it was startling because you so eloquently placed
133
00:05:14,856 –> 00:05:15,732
on the paper
134
00:05:15,732 –> 00:05:18,943
what I have been trying to articulate so well here
135
00:05:20,194 –> 00:05:22,113
in the state of Ohio for years.
136
00:05:22,113 –> 00:05:27,076
And it could have, I wish it was something that
137
00:05:27,744 –> 00:05:28,578
that I had written
138
00:05:28,578 –> 00:05:30,997
and I wanted to reach out and meet you
139
00:05:31,080 –> 00:05:33,833
as a like-minded person
140
00:05:34,834 –> 00:05:37,837
and just talk about these issues, because I’ve been talking
141
00:05:38,880 –> 00:05:39,339
to people
142
00:05:39,339 –> 00:05:40,840
throughout the state of Ohio
143
00:05:40,840 –> 00:05:43,801
on how to make the system more transparent
144
00:05:44,677 –> 00:05:46,888
and more data-driven.
145
00:05:46,888 –> 00:05:48,389
And
146
00:05:48,848 –> 00:05:51,267
that’s what made me, that’s what made me reach out.
147
00:05:51,309 –> 00:05:55,688
I’ve been on the Ohio Supreme Court since 2019.
148
00:05:56,022 –> 00:05:59,817
Prior to that, I served in Ohio’s largest trial court
149
00:06:00,735 –> 00:06:01,652
in Cleveland, Ohio,
150
00:06:01,652 –> 00:06:05,656
which has 34 elected, separately elected trial court judges
151
00:06:06,741 –> 00:06:08,451
that handle a criminal felony
152
00:06:08,451 –> 00:06:14,832
sentencing docket and as well as a- civil docket as well.
153
00:06:14,874 –> 00:06:17,251
And prior to that,
154
00:06:17,251 –> 00:06:19,212
I was in civil litigation for a number of years.
155
00:06:19,212 –> 00:06:22,215
I started my legal career way back in 1992
156
00:06:22,215 –> 00:06:25,009
as an assistant county prosecutor.
157
00:06:25,009 –> 00:06:29,013
And it wasn’t ‘till I became a judge
158
00:06:29,680 –> 00:06:34,018
in our adversarial system and began to look at the system
159
00:06:34,018 –> 00:06:35,144
from a different perspective
160
00:06:35,144 –> 00:06:35,978
that I started
161
00:06:35,978 –> 00:06:37,897
thinking about issues
162
00:06:37,897 –> 00:06:39,190
like transparency
163
00:06:39,190 –> 00:06:40,900
and public confidence in the system,
164
00:06:40,900 –> 00:06:44,320
which I’ve come to believe is just the lifeblood of
165
00:06:44,862 –> 00:06:47,323
the justice system. The
166
00:06:48,616 –> 00:06:51,035
thought the public that we serve
167
00:06:51,077 –> 00:06:52,245
has to have confidence
168
00:06:52,245 –> 00:06:54,372
that if they become involved in a dispute,
169
00:06:54,372 –> 00:06:56,165
whether they are the accused,
170
00:06:56,165 –> 00:06:57,708
whether they are a victim,
171
00:06:57,708 –> 00:07:00,002
that that dispute will be resolved fairly
172
00:07:00,878 –> 00:07:03,256
according to the design of the system,
173
00:07:03,256 –> 00:07:05,258
according to the truth.
174
00:07:05,258 –> 00:07:08,594
And when I began to look at the system
175
00:07:08,594 –> 00:07:09,554
from a new perspective
176
00:07:09,554 –> 00:07:15,309
as a new trial court judge back in 2005, I saw that
177
00:07:15,309 –> 00:07:18,521
that wasn’t always the case.
178
00:07:18,521 –> 00:07:22,483
You know, I saw in my court, it’s
179
00:07:22,483 –> 00:07:25,528
typical that 97% of the cases
180
00:07:25,528 –> 00:07:27,530
are not resolved through trial.
181
00:07:27,697 –> 00:07:29,949
They’re resolved through negotiated plea bargains.
182
00:07:30,616 –> 00:07:33,077
And a lot of those plea bargains
183
00:07:33,077 –> 00:07:37,999
are formulated and forged in off-the-record discussions
184
00:07:37,999 –> 00:07:39,125
between the trial court
185
00:07:39,125 –> 00:07:40,960
judge and the attorneys
186
00:07:40,960 –> 00:07:42,753
without the accused being present,
187
00:07:42,753 –> 00:07:44,630
without a victim being present.
188
00:07:44,630 –> 00:07:47,633
And that forced me to change my way
189
00:07:47,633 –> 00:07:49,677
of doing things in Cuyahoga County.
190
00:07:50,386 –> 00:07:50,803
Hmm.
191
00:07:50,803 –> 00:07:52,305
Did you push back a little bit
192
00:07:52,305 –> 00:07:54,265
or did you scrutinize those plea bargain agreements
193
00:07:54,265 –> 00:07:56,767
a little bit more than you think the typical judge would?
194
00:07:57,101 –> 00:08:01,898
You know, I started seeing in other courtrooms
195
00:08:03,024 –> 00:08:06,235
some outcomes that I began to question
196
00:08:08,321 –> 00:08:11,949
the ethics of and particularly in sexual assault cases.
197
00:08:12,575 –> 00:08:15,244
I saw a lot of – in my colleagues’ rooms –
198
00:08:15,578 –> 00:08:17,288
cases coming into the system
199
00:08:17,288 –> 00:08:19,957
with charges of rape and other forms of sexual assault.
200
00:08:19,957 –> 00:08:22,627
But they were being allowed to go out of the system
201
00:08:22,627 –> 00:08:24,545
through a plea bargain,
202
00:08:24,795 –> 00:08:26,255
being pled to crimes
203
00:08:26,255 –> 00:08:28,633
that have nothing to do with sexual assault,
204
00:08:28,633 –> 00:08:33,846
completely, you know, factually baseless pleas.
205
00:08:34,180 –> 00:08:36,307
It’s almost like these agreements of convenience.
206
00:08:36,307 –> 00:08:38,476
It’s like we need to give you something lesser.
207
00:08:38,476 –> 00:08:41,020
So let’s come up with a count
208
00:08:41,020 –> 00:08:42,355
that would fit the kind of like
209
00:08:42,355 –> 00:08:43,940
the horse trading in terms of years
210
00:08:43,940 –> 00:08:45,274
and in terms of the sentencing.
211
00:08:45,274 –> 00:08:47,527
Right. Regardless with what the facts are.
212
00:08:47,652 –> 00:08:49,695
Well, a lot of times that’s exactly
213
00:08:49,695 –> 00:08:51,906
what’s happened in there, trying to circumvent
214
00:08:53,741 –> 00:08:56,285
parts of the law that they deem unfair.
215
00:08:57,912 –> 00:09:01,165
In Ohio, we have if you’re convicted of a sexual offense,
216
00:09:02,416 –> 00:09:04,961
there is registration requirements.
217
00:09:04,961 –> 00:09:06,504
And a lot of times
218
00:09:06,504 –> 00:09:07,964
they are trying to circumvent
219
00:09:07,964 –> 00:09:10,341
those particular laws by allowing
220
00:09:10,466 –> 00:09:13,844
defendants to plead to the crimes that they did not commit
221
00:09:14,595 –> 00:09:16,681
in order to resolve the case.
222
00:09:16,722 –> 00:09:18,808
And I had a problem with that.
223
00:09:18,808 –> 00:09:24,814
And I led an effort back in 2016 to try to change that,
224
00:09:25,273 –> 00:09:26,691
to have our rules
225
00:09:26,691 –> 00:09:27,441
kind of mimic
226
00:09:27,441 –> 00:09:29,402
what exists already in some states
227
00:09:29,402 –> 00:09:32,071
and the federal system, that
228
00:09:32,071 –> 00:09:34,782
every plea had to have a factual basis that
229
00:09:35,825 –> 00:09:38,828
if you’re going to plead something out
230
00:09:38,828 –> 00:09:40,955
that doesn’t even resemble
231
00:09:40,955 –> 00:09:42,248
what the original charges,
232
00:09:42,248 –> 00:09:44,625
the prosecutor needs to state facts on the record, that,
233
00:09:44,625 –> 00:09:46,627
if true, would support what the person
234
00:09:47,837 –> 00:09:49,505
is admitting to.
235
00:09:49,505 –> 00:09:52,300
And unbelievably,
236
00:09:52,300 –> 00:09:54,552
the Supreme Court in Ohio
237
00:09:54,552 –> 00:09:56,095
rejected that rule
238
00:09:56,095 –> 00:09:57,972
and it resulted in a headline
239
00:09:57,972 –> 00:10:01,934
that you can still Google in the Columbus Dispatch that
240
00:10:03,894 –> 00:10:07,356
the “Ohio Supreme Court rejects truth and sentencing rule.”
241
00:10:07,356 –> 00:10:09,525
And that pretty much convinced me
242
00:10:09,525 –> 00:10:12,069
that I was going to run for
243
00:10:12,069 –> 00:10:14,655
the .Ohio Supreme Court at that time.
244
00:10:14,655 –> 00:10:15,948
So we’re going to get back to that.
245
00:10:15,948 –> 00:10:17,325
I really want to get back to the issue
246
00:10:17,325 –> 00:10:17,825
of plea
247
00:10:17,825 –> 00:10:18,576
bargain agreements
248
00:10:18,576 –> 00:10:19,785
and the pushback that you receive
249
00:10:19,785 –> 00:10:21,245
from within the judiciary,
250
00:10:21,245 –> 00:10:23,331
that’s really it’s very interesting to me.
251
00:10:23,331 –> 00:10:24,665
Before we go there,
252
00:10:24,665 –> 00:10:27,668
I want to touch on a fundamental question with you,
253
00:10:27,668 –> 00:10:30,046
because it’s essentially a discussion about justice.
254
00:10:30,338 –> 00:10:32,340
And what you said now, like the type of reform
255
00:10:32,340 –> 00:10:33,674
that you’re advocating for
256
00:10:33,674 –> 00:10:36,761
is essentially trying to bring back a factual basis
257
00:10:36,761 –> 00:10:38,638
to these plea bargaining agreements,
258
00:10:38,638 –> 00:10:39,513
which very quickly
259
00:10:39,513 –> 00:10:42,224
can go off the rails and start creating a parallel reality
260
00:10:42,683 –> 00:10:44,852
with very little connection with the facts.
261
00:10:44,852 –> 00:10:46,270
But fundamentally,
262
00:10:46,270 –> 00:10:49,357
I believe that this is also a discussion
263
00:10:49,357 –> 00:10:53,653
about the relative importance of innocence in our society.
264
00:10:53,861 –> 00:10:55,905
I mean, a lot of people, whenever we talk about justice,
265
00:10:56,197 –> 00:10:58,866
some people roll their eyes like it’s relative.
266
00:10:58,866 –> 00:11:01,118
And your concept of justice and my concept of justice,
267
00:11:01,661 –> 00:11:03,746
I would strongly disagree.
268
00:11:03,746 –> 00:11:05,164
I think that when,
269
00:11:05,164 –> 00:11:07,041
you know, under the same set of rules, you know,
270
00:11:07,041 –> 00:11:09,460
the outcome is two years versus twenty years,
271
00:11:09,794 –> 00:11:12,046
or when there’s a wrongful conviction
272
00:11:12,046 –> 00:11:13,464
or even when there’s a plea bargain
273
00:11:13,464 –> 00:11:15,466
with no factual basis at all.
274
00:11:15,466 –> 00:11:17,093
I think there’s an inherent concept of justice
275
00:11:17,093 –> 00:11:18,177
and fairness that’s violated.
276
00:11:18,177 –> 00:11:20,388
And the idea that I want to zoom in on with you
277
00:11:20,388 –> 00:11:23,015
is the idea of protecting innocence.
278
00:11:23,015 –> 00:11:25,476
And, you know, in the legal community, we’re
279
00:11:25,476 –> 00:11:27,937
very aware of this issue.
280
00:11:27,937 –> 00:11:29,355
And even the general public
281
00:11:29,355 –> 00:11:31,357
knows about the presumption of innocence,
282
00:11:31,357 –> 00:11:35,361
how effectively it plays out in real life situations
283
00:11:35,653 –> 00:11:37,154
when the facts get,
284
00:11:37,154 –> 00:11:37,905
you know,
285
00:11:37,905 –> 00:11:40,991
diced up and organized and sequenced in different ways.
286
00:11:40,991 –> 00:11:42,827
How does the presumption of innocence really play out?
287
00:11:42,827 –> 00:11:44,203
That’s up for debate.
288
00:11:44,203 –> 00:11:44,620
But it is
289
00:11:44,620 –> 00:11:46,497
another even more fundamental idea
290
00:11:46,497 –> 00:11:49,375
of the relative importance of innocence versus,
291
00:11:50,292 –> 00:11:51,502
you know, punishing guilt.
292
00:11:51,502 –> 00:11:54,004
So protecting innocence versus punishing guilt.
293
00:11:54,714 –> 00:11:55,965
And I believe it was first expressed
294
00:11:55,965 –> 00:11:58,259
by William Blackstone in the 1700s.
295
00:11:58,426 –> 00:12:00,261
It’s known as Blackstone’s ratio.
296
00:12:00,261 –> 00:12:00,761
It’s better
297
00:12:00,761 –> 00:12:03,097
that ten guilty persons escape
298
00:12:03,097 –> 00:12:05,891
than that one innocent person suffer.
299
00:12:06,475 –> 00:12:08,686
It’s also expressed by one of the founding fathers,
300
00:12:09,103 –> 00:12:11,021
John Adams, who wrote that it’s more important
301
00:12:11,021 –> 00:12:13,399
that innocence be protected than it is
302
00:12:13,399 –> 00:12:14,900
that guilt be punished,
303
00:12:14,900 –> 00:12:16,569
for guilt and crimes are so frequent
304
00:12:16,569 –> 00:12:18,654
in this world, and I’m quoting
305
00:12:18,654 –> 00:12:19,989
that they can’t all be punished.
306
00:12:19,989 –> 00:12:22,158
But if innocence itself is condemned,
307
00:12:22,825 –> 00:12:25,536
then the citizen will say, whether I do good
308
00:12:25,661 –> 00:12:27,788
or whether I do evil is immaterial,
309
00:12:28,164 –> 00:12:30,708
for innocence itself has no protection
310
00:12:30,708 –> 00:12:32,376
and if such an idea would take hold,
311
00:12:32,376 –> 00:12:35,004
that would be the end of security whatsoever.
312
00:12:35,004 –> 00:12:36,630
You’re at the very forefront
313
00:12:36,630 –> 00:12:38,758
of the battle against wrongful convictions.
314
00:12:38,758 –> 00:12:40,426
Do you believe that the justice system
315
00:12:40,426 –> 00:12:41,469
and I’m asking you a tough question
316
00:12:41,469 –> 00:12:43,929
because I’m asking you for a generalization,
317
00:12:43,929 –> 00:12:45,639
but do you believe that the justice system today
318
00:12:45,639 –> 00:12:48,642
and perhaps the culture more generally takes innocence
319
00:12:48,684 –> 00:12:49,560
seriously enough?
320
00:12:49,560 –> 00:12:52,813
We seem to be very passionate about punishing guilt,
321
00:12:53,355 –> 00:12:54,940
but are we as passionate
322
00:12:54,940 –> 00:12:57,818
as we need to be about protecting innocence?
323
00:12:57,818 –> 00:13:00,112
And what are some of the patterns that you see around
324
00:13:00,112 –> 00:13:01,697
this issue of wrongful convictions?
325
00:13:01,697 –> 00:13:02,031
Sure.
326
00:13:02,031 –> 00:13:04,784
Well, I would answer that with a ‘definitely not.’
327
00:13:04,784 –> 00:13:07,661
We are not passionate enough about protecting the innocent.
328
00:13:08,496 –> 00:13:08,788
You know,
329
00:13:08,788 –> 00:13:10,080
I saw a lot of injustice
330
00:13:10,080 –> 00:13:13,751
that took place over my 14 years as a trial court judge.
331
00:13:14,168 –> 00:13:14,794
And,
332
00:13:15,753 –> 00:13:16,545
you know,
333
00:13:16,545 –> 00:13:18,172
injustice can come in many forms
334
00:13:18,172 –> 00:13:21,717
that can that can come in the in the form of someone
335
00:13:22,259 –> 00:13:26,514
who most likely is guilty and not being held accountable
336
00:13:27,056 –> 00:13:28,015
for various reasons
337
00:13:28,015 –> 00:13:30,684
that the state may have not convinced the jury
338
00:13:30,684 –> 00:13:33,646
that a guilty person is
339
00:13:33,646 –> 00:13:34,980
guilty beyond a reasonable doubt,
340
00:13:34,980 –> 00:13:37,358
which is the standard that protects us all.
341
00:13:37,358 –> 00:13:41,111
Truly, in my opinion,
342
00:13:41,278 –> 00:13:42,613
the worst form of injustice
343
00:13:42,613 –> 00:13:45,741
that can occur in a democratic society is
344
00:13:46,992 –> 00:13:49,662
being convicted for something that you didn’t do.
345
00:13:49,662 –> 00:13:52,206
And having what we value the most, our freedom,
346
00:13:52,706 –> 00:13:54,542
taken away from us.
347
00:13:54,542 –> 00:13:56,544
But what I see
348
00:13:56,919 –> 00:13:58,629
in the culture
349
00:13:58,629 –> 00:14:00,297
that I observed for 14 years
350
00:14:00,297 –> 00:14:02,424
and that I continue to observe, is
351
00:14:04,176 –> 00:14:07,638
placing the importance of finality resolution
352
00:14:07,888 –> 00:14:10,140
of conflict over the truth.
353
00:14:10,558 –> 00:14:14,228
And you see in our adversarial system,
354
00:14:15,521 –> 00:14:17,606
in the post-conviction
355
00:14:17,606 –> 00:14:20,317
area where someone wants to
356
00:14:20,317 –> 00:14:22,611
come before a tribunal and demonstrate
357
00:14:22,611 –> 00:14:24,613
either through the discovery of new evidence,
358
00:14:24,613 –> 00:14:26,448
someone recanting,
359
00:14:26,448 –> 00:14:29,618
the fact that they were convicted by junk science.
360
00:14:29,618 –> 00:14:33,247
They want to demonstrate that to a tribunal,
361
00:14:33,247 –> 00:14:36,792
and they have to fight tooth and nail in this system
362
00:14:37,626 –> 00:14:39,670
to even sometimes get a hearing.
363
00:14:39,670 –> 00:14:41,255
In Ohio,
364
00:14:41,255 –> 00:14:42,965
you may claim to have this evidence,
365
00:14:42,965 –> 00:14:46,051
but you are not entitled to a hearing.
366
00:14:46,051 –> 00:14:49,096
You can put this in the form of a motion for a new trial.
367
00:14:49,346 –> 00:14:52,433
The state can oppose it and say whatever they want.
368
00:14:52,725 –> 00:14:53,976
And trial court judges do
369
00:14:53,976 –> 00:14:57,271
not are not required to have a hearing to air
370
00:14:57,271 –> 00:14:59,440
these claims out in open court.
371
00:14:59,440 –> 00:15:02,860
And sometimes they languish for years on judges docket.
372
00:15:03,110 –> 00:15:04,987
You know, they don’t have the protections that we have
373
00:15:04,987 –> 00:15:06,238
on the front end of the system
374
00:15:06,238 –> 00:15:08,198
like speedy trial rights
375
00:15:08,198 –> 00:15:10,868
and the right to counsel in post-conviction.
376
00:15:11,619 –> 00:15:12,912
So, you know,
377
00:15:12,912 –> 00:15:15,039
the stars really have to align
378
00:15:15,039 –> 00:15:18,500
for someone who claims that they’re innocent in order to
379
00:15:19,501 –> 00:15:21,337
get a second look at their case.
380
00:15:21,337 –> 00:15:23,964
And that is just a sad commentary
381
00:15:24,882 –> 00:15:29,386
when you see the human suffering and the fact that
382
00:15:30,012 –> 00:15:32,556
if you have the wrong person incarcerated
383
00:15:32,640 –> 00:15:36,268
that usually means that the person who perpetrated
384
00:15:36,268 –> 00:15:39,188
the crime is still at large and most likely
385
00:15:40,272 –> 00:15:41,482
victimizing someone else.
386
00:15:41,482 –> 00:15:42,733
So it’s
387
00:15:42,733 –> 00:15:46,737
I can’t understand why we can’t find more common ground
388
00:15:47,112 –> 00:15:51,659
on this issue of improving the system for innocent people.
389
00:15:52,201 –> 00:15:52,785
Sounds like,
390
00:15:52,785 –> 00:15:54,703
unfortunately, sometimes a cultural shift
391
00:15:54,703 –> 00:15:56,789
leads to a shift in the legal system,
392
00:15:56,830 –> 00:15:58,123
in the judicial system.
393
00:15:58,123 –> 00:16:00,459
It sounds like you are very much in agreement
394
00:16:00,459 –> 00:16:02,711
with the principles of the founding fathers
395
00:16:02,711 –> 00:16:03,671
and so forth, the importance
396
00:16:03,671 –> 00:16:06,465
of protecting innocence in a world like it’s
397
00:16:06,465 –> 00:16:09,093
better to let the occasional guilty person out,
398
00:16:09,093 –> 00:16:11,095
but let’s make sure we protect the innocent,
399
00:16:11,095 –> 00:16:13,973
it seems today. So you agree that there’s been a shift?
400
00:16:14,264 –> 00:16:16,016
And today, like, maybe we’re over
401
00:16:16,016 –> 00:16:18,310
overvaluing like the finality of the process
402
00:16:18,560 –> 00:16:24,108
and getting some kind of a guilty sort of outcome
403
00:16:24,942 –> 00:16:26,652
that’s become way more important
404
00:16:26,652 –> 00:16:29,154
than making sure that no innocent people
405
00:16:29,738 –> 00:16:31,824
get the wrath of the legal system.
406
00:16:32,199 –> 00:16:32,741
Right.
407
00:16:32,741 –> 00:16:33,826
But, you know,
408
00:16:33,826 –> 00:16:35,703
you bring up that that Blackstone
409
00:16:35,703 –> 00:16:37,413
quote and it’s interesting.
410
00:16:37,413 –> 00:16:41,250
I do recall a conducting a jury trial
411
00:16:41,250 –> 00:16:43,585
and the defense lawyer brought that quote up
412
00:16:43,585 –> 00:16:45,129
and asked each member of the jury
413
00:16:45,129 –> 00:16:46,296
what they thought of that quote.
414
00:16:46,296 –> 00:16:47,798
And I
415
00:16:47,798 –> 00:16:49,174
been such a firm believer
416
00:16:49,174 –> 00:16:51,343
in the presumption of innocence, thought
417
00:16:51,760 –> 00:16:54,680
that it would elicit a uniform response.
418
00:16:54,680 –> 00:16:57,433
But believe it or not, there were people that said,
419
00:16:58,017 –> 00:16:59,018
I don’t agree with that.
420
00:16:59,018 –> 00:17:01,186
I don’t agree that I think
421
00:17:01,395 –> 00:17:04,064
I don’t agree that any guilty person should go free.
422
00:17:04,064 –> 00:17:07,317
So they didn’t equate with that ratio.
423
00:17:07,317 –> 00:17:10,779
That and it’s interesting that that that perspective
424
00:17:11,572 –> 00:17:12,698
exists out there.
425
00:17:13,824 –> 00:17:14,950
And
426
00:17:16,493 –> 00:17:19,663
so I think that adds to some of the resistance
427
00:17:19,830 –> 00:17:21,457
to some of the reforms
428
00:17:21,457 –> 00:17:24,668
that we’ve been trying to advocate, bringing transparency
429
00:17:25,836 –> 00:17:28,130
to the post-conviction process.
430
00:17:28,130 –> 00:17:29,465
You know,
431
00:17:29,465 –> 00:17:33,927
I see some other injustices in the post-conviction process
432
00:17:34,970 –> 00:17:39,558
that I’ve put in some of my writings where someone
433
00:17:40,476 –> 00:17:42,853
is advocating for a hearing.
434
00:17:42,853 –> 00:17:45,105
The judge has yet to give the person a hearing,
435
00:17:46,273 –> 00:17:48,609
but the prosecution takes a look at the motion.
436
00:17:48,942 –> 00:17:51,403
And for some reason, in my opinion,
437
00:17:51,403 –> 00:17:53,864
it suggests that if they go to a hearing
438
00:17:53,864 –> 00:17:56,075
that the state is going to lose.
439
00:17:56,366 –> 00:18:01,163
And so what they’ll do is offer the prisoner
440
00:18:01,538 –> 00:18:04,208
a – what I think is an conscionable
441
00:18:04,208 –> 00:18:08,337
or unconscionably coercive plea bargain -we’ll let you out.
442
00:18:09,129 –> 00:18:13,342
We’ll let you out of jail if you plead to what we already
443
00:18:13,342 –> 00:18:14,301
convicted you of,
444
00:18:14,301 –> 00:18:17,888
which isn’t a form of plea I’ve tried to label it.
445
00:18:18,388 –> 00:18:19,723
I’ve given it the label,
446
00:18:19,723 –> 00:18:20,557
the dark plea,
447
00:18:20,557 –> 00:18:22,976
because you’re offering this plea
448
00:18:22,976 –> 00:18:25,062
to someone who is not shrouded
449
00:18:25,062 –> 00:18:27,898
under the presumption of innocence. They are convicted.
450
00:18:28,273 –> 00:18:29,066
And it’s
451
00:18:29,066 –> 00:18:30,442
to me, the legal equivalent
452
00:18:30,442 –> 00:18:32,569
of putting a gun to someone’s head
453
00:18:32,569 –> 00:18:33,695
and forcing them
454
00:18:33,695 –> 00:18:35,823
to plead to something that they
455
00:18:35,823 –> 00:18:38,826
perhaps maintained from day one that they did not do.
456
00:18:39,159 –> 00:18:40,369
So these are the kind of things
457
00:18:40,369 –> 00:18:42,496
that go on in a nontransparent system
458
00:18:42,496 –> 00:18:44,706
that the public may not be aware of.
459
00:18:44,706 –> 00:18:46,125
And if they were,
460
00:18:46,125 –> 00:18:47,334
they’d take a second
461
00:18:47,334 –> 00:18:51,380
look at how the innocence claims are being processed.
462
00:18:52,381 –> 00:18:55,968
And you’ve written about this, about how
463
00:18:55,968 –> 00:18:58,428
much more complicated than it is than what we think like
464
00:18:58,428 –> 00:19:00,639
we think a plea bargain agreement is okay,
465
00:19:00,639 –> 00:19:02,766
the convicted person will get a lesser
466
00:19:04,810 –> 00:19:07,896
sentence or crime than what they’ve been charged with.
467
00:19:08,313 –> 00:19:09,815
You write about how this it’s
468
00:19:09,815 –> 00:19:11,775
actually much more complicated
469
00:19:11,775 –> 00:19:13,777
because the accused also loses
470
00:19:13,777 –> 00:19:15,529
a bunch of constitutional rights
471
00:19:15,529 –> 00:19:19,032
and the state also gets to a much more speedy
472
00:19:19,283 –> 00:19:21,326
and much more expedient outcome.
473
00:19:21,326 –> 00:19:23,078
So there’s benefits to the state
474
00:19:23,078 –> 00:19:25,497
and there may be other factors, financial factors,
475
00:19:25,497 –> 00:19:27,291
you know, can the accused even
476
00:19:27,291 –> 00:19:29,126
afford to go prove their innocence?
477
00:19:29,126 –> 00:19:30,460
I’ve seen situations in my career
478
00:19:30,460 –> 00:19:32,504
where people were completely innocent.
479
00:19:33,046 –> 00:19:33,922
Fast forward
480
00:19:33,922 –> 00:19:35,507
seven years later,
481
00:19:35,507 –> 00:19:36,884
hundreds of thousands of dollars,
482
00:19:36,884 –> 00:19:39,178
if not millions of dollars in legal fees.
483
00:19:39,178 –> 00:19:41,513
They get a judgment saying they’re innocent.
484
00:19:41,513 –> 00:19:44,558
But I mean, the machinations of the legal system
485
00:19:45,100 –> 00:19:45,851
created that.
486
00:19:45,851 –> 00:19:47,895
And it’s a form of violation
487
00:19:47,895 –> 00:19:49,897
of this principle, of presumption of innocence.
488
00:19:49,897 –> 00:19:50,439
When you
489
00:19:50,689 –> 00:19:52,816
effectively treat a person as though they’re guilty
490
00:19:52,816 –> 00:19:55,569
throughout the entire process, but specifically in it
491
00:19:55,569 –> 00:19:55,944
with respect
492
00:19:55,944 –> 00:19:57,654
to plea bargain agreements, it’s
493
00:19:57,654 –> 00:20:00,616
this kind of behind closed doors,
494
00:20:00,782 –> 00:20:03,577
negotiations between attorneys, Right.
495
00:20:03,577 –> 00:20:06,413
Where sometimes the accused doesn’t even know the sentence
496
00:20:06,413 –> 00:20:08,540
that they’re ultimately agreeing to. Right.
497
00:20:08,707 –> 00:20:10,042
Talk to us a little bit about this issue
498
00:20:10,042 –> 00:20:10,792
and what do you think
499
00:20:10,792 –> 00:20:13,045
can be done to remedy it in the real world?
500
00:20:13,462 –> 00:20:14,379
Well,
501
00:20:14,504 –> 00:20:17,090
in addition to the lack of data that we have
502
00:20:17,591 –> 00:20:18,300
as state court
503
00:20:18,300 –> 00:20:21,303
judges here in Ohio, that’s one major systemic flaw
504
00:20:21,345 –> 00:20:24,806
that that leads to disparity of outcomes.
505
00:20:24,806 –> 00:20:29,228
But the fact that the judges here in this state
506
00:20:29,978 –> 00:20:31,688
get involved, unlike in
507
00:20:32,981 –> 00:20:34,191
the federal system, where
508
00:20:34,191 –> 00:20:36,568
judges are prohibited from getting involved in the plea
509
00:20:36,568 –> 00:20:39,154
negotiations between the government and the accused.
510
00:20:40,030 –> 00:20:41,365
Here in Ohio,
511
00:20:41,365 –> 00:20:44,243
the judges to various degrees
512
00:20:44,576 –> 00:20:46,745
from courtroom to courtroom, get involved.
513
00:20:46,745 –> 00:20:47,454
And there’s really
514
00:20:47,454 –> 00:20:49,164
no objective criteria
515
00:20:49,164 –> 00:20:52,876
to guide them in deciding whether to accept a plea or not.
516
00:20:52,876 –> 00:20:54,962
So what do you get as a result?
517
00:20:54,962 –> 00:20:55,837
You would get nearly
518
00:20:55,837 –> 00:20:58,048
400 judges statewide
519
00:20:58,048 –> 00:20:59,049
who operate
520
00:20:59,049 –> 00:21:01,426
with these different philosophies
521
00:21:01,635 –> 00:21:04,513
as to their discretionary power.
522
00:21:04,513 –> 00:21:05,681
Some of them, like me,
523
00:21:05,681 –> 00:21:08,642
I always viewed myself as the neutral in the system.
524
00:21:08,642 –> 00:21:11,311
So if the adversaries
525
00:21:11,311 –> 00:21:13,021
negotiated a plea
526
00:21:13,021 –> 00:21:15,691
agreement through arm’s length negotiations and they
527
00:21:16,900 –> 00:21:20,570
presented me with an agreed sentence, I always
528
00:21:21,196 –> 00:21:22,239
accepted those pleas.
529
00:21:22,239 –> 00:21:24,324
But some of my counterparts disagreed with that.
530
00:21:24,324 –> 00:21:27,244
They said, you know, sentencing is my realm.
531
00:21:27,286 –> 00:21:29,037
You can come up with whatever you want
532
00:21:29,037 –> 00:21:30,497
in terms of your plea agreement.
533
00:21:30,497 –> 00:21:32,416
I’ll hear your recommendations,
534
00:21:32,416 –> 00:21:34,960
but I’m not going to be bound by them.
535
00:21:34,960 –> 00:21:36,795
And then there are some judges who don’t
536
00:21:36,795 –> 00:21:39,715
even will not discuss the topic of sentencing at all.
537
00:21:40,090 –> 00:21:42,968
And we look at plea bargains as a form of contract.
538
00:21:42,968 –> 00:21:44,886
And, you know, your listeners,
539
00:21:44,886 –> 00:21:48,598
you could asked the question, would you ever enter
540
00:21:49,808 –> 00:21:51,226
a contract
541
00:21:51,226 –> 00:21:52,978
in which you did not know
542
00:21:52,978 –> 00:21:54,521
whether you were receiving
543
00:21:54,521 –> 00:21:55,272
any benefit,
544
00:21:55,272 –> 00:21:57,983
you did not know what you were obligating yourself to,
545
00:21:58,150 –> 00:21:59,443
You would only find that out
546
00:21:59,443 –> 00:22:02,154
after you entered the contract 30 days down the road.
547
00:22:02,362 –> 00:22:04,448
I mean. The price. Right? The price.
548
00:22:04,448 –> 00:22:05,073
You’re getting the car,
549
00:22:05,073 –> 00:22:06,199
but you don’t know what you’re paying for it.
550
00:22:06,199 –> 00:22:06,742
Exactly.
551
00:22:06,742 –> 00:22:09,578
And that is what’s happening in a lot of plea bargains.
552
00:22:09,578 –> 00:22:11,663
And I call this sentencing by ambush.
553
00:22:11,663 –> 00:22:14,791
You show up and you think that you’ve negotiated
554
00:22:15,125 –> 00:22:16,335
some form of benefit.
555
00:22:16,335 –> 00:22:19,755
And let’s face it, what are the accused looking for?
556
00:22:19,755 –> 00:22:22,883
They’re looking for some sort of certainty in the outcome.
557
00:22:23,091 –> 00:22:26,094
They’re looking for some degree of leniency in the outcome
558
00:22:26,094 –> 00:22:28,513
because the state exercises
559
00:22:28,513 –> 00:22:31,350
all the leverage behind the seats
560
00:22:31,350 –> 00:22:33,310
they have the ability to charge.
561
00:22:33,310 –> 00:22:34,978
There’s no question
562
00:22:34,978 –> 00:22:36,605
that the most powerful player
563
00:22:36,605 –> 00:22:38,231
in the criminal justice system in
564
00:22:38,231 –> 00:22:40,359
the United States is not the judges.
565
00:22:40,359 –> 00:22:42,194
They are very powerful.
566
00:22:42,194 –> 00:22:44,821
But it is the prosecutor. The prosecutor
567
00:22:45,906 –> 00:22:48,075
who charges you has the ability,
568
00:22:48,283 –> 00:22:50,911
the discretionary power to decide which charges.
569
00:22:50,911 –> 00:22:51,536
You know, it
570
00:22:51,536 –> 00:22:53,330
hits different when you say it,
571
00:22:53,330 –> 00:22:55,540
because a lot of us can say these things
572
00:22:55,540 –> 00:22:57,125
and we observe these things.
573
00:22:57,125 –> 00:22:59,503
But I mean, coming from you, I’m
574
00:22:59,503 –> 00:23:01,922
very happy that you’re making it very clear because it’s
575
00:23:02,172 –> 00:23:04,049
exceedingly obvious to a lot of us
576
00:23:04,049 –> 00:23:06,343
that are kind of like doing the play by play
577
00:23:06,343 –> 00:23:09,054
and involved in files and advising people.
578
00:23:09,054 –> 00:23:11,848
But I don’t think the general public quite understands
579
00:23:11,848 –> 00:23:12,974
the extent to which that’s true.
580
00:23:12,974 –> 00:23:13,892
Oh, you know,
581
00:23:13,892 –> 00:23:15,936
I wish the public and I wish
582
00:23:15,936 –> 00:23:18,855
the press would cover this for the benefit of the public.
583
00:23:18,855 –> 00:23:20,273
I used to observe
584
00:23:20,273 –> 00:23:21,400
this culture
585
00:23:21,400 –> 00:23:23,402
in my courthouse when I was a trial court judge
586
00:23:23,527 –> 00:23:27,280
that I labeled the culture of plea and release.
587
00:23:27,280 –> 00:23:31,076
And you’d have defendants who were sometimes we overcharge
588
00:23:31,576 –> 00:23:32,994
based on the facts that,
589
00:23:32,994 –> 00:23:37,124
you know, they arguably the facts could support a charge.
590
00:23:37,124 –> 00:23:40,377
But in reality, if you looked at the facts seriously,
591
00:23:40,961 –> 00:23:45,632
there’s no way that they supported the most serious charge
592
00:23:45,674 –> 00:23:46,633
they started out with
593
00:23:47,676 –> 00:23:50,303
and for instance, let’s say someone
594
00:23:51,638 –> 00:23:53,390
is homeless, goes into a grocery
595
00:23:53,390 –> 00:23:56,601
store, is hungry, decides to
596
00:23:56,601 –> 00:23:59,813
steal a steak and is spotted by
597
00:24:00,689 –> 00:24:02,649
the security staff,
598
00:24:02,649 –> 00:24:05,110
and there’s a tussle and hopefully no one gets hurt.
599
00:24:05,444 –> 00:24:07,779
And you could charge a set of facts
600
00:24:07,779 –> 00:24:08,113
like that
601
00:24:08,113 –> 00:24:10,490
as a robbery in the state of Ohio,
602
00:24:10,490 –> 00:24:12,492
which is a felony of the second degree,
603
00:24:12,492 –> 00:24:13,702
which carries with it, you know,
604
00:24:13,702 –> 00:24:15,370
nearly eight years in prison.
605
00:24:15,370 –> 00:24:17,873
So that person’s going to most likely
606
00:24:17,873 –> 00:24:19,833
get a high bond based on that charge.
607
00:24:19,833 –> 00:24:22,752
And they’re going to sit there in county jail
608
00:24:22,878 –> 00:24:24,504
until the prosecutor
609
00:24:24,504 –> 00:24:26,047
and that person’s lawyer
610
00:24:26,047 –> 00:24:28,133
exchange the information about the case.
611
00:24:28,383 –> 00:24:30,343
And then it might take weeks and weeks.
612
00:24:30,343 –> 00:24:32,804
And during that time, the person,
613
00:24:32,804 –> 00:24:34,931
if they had a job, they’ve lost it.
614
00:24:34,931 –> 00:24:37,142
If they have a place to live,
615
00:24:37,142 –> 00:24:39,436
they’ve fallen behind in their rent.
616
00:24:39,811 –> 00:24:44,649
Reputational, reputational harm is done
617
00:24:44,774 –> 00:24:47,486
and innocence never seems to be as big of a story
618
00:24:47,486 –> 00:24:49,905
as you’ve been charged with something. Right.
619
00:24:50,113 –> 00:24:52,574
And you know, a lot of times
620
00:24:52,574 –> 00:24:54,451
by the time the facts are exchanged
621
00:24:54,451 –> 00:24:56,620
and the prosecutor says, you know,
622
00:24:56,620 –> 00:24:58,330
this is really not worth my time
623
00:24:58,330 –> 00:24:59,998
trying to prosecute this case
624
00:24:59,998 –> 00:25:03,043
as a robbery, I’m going to reduce this
625
00:25:03,335 –> 00:25:09,466
toa misdemeanor or something like that.
626
00:25:09,841 –> 00:25:10,133
You know,
627
00:25:11,551 –> 00:25:12,093
they go
628
00:25:12,093 –> 00:25:13,136
the defense lawyer
629
00:25:13,136 –> 00:25:17,849
goes in and what choice does the defendant have?
630
00:25:18,558 –> 00:25:20,936
He presented with a
631
00:25:21,269 –> 00:25:24,814
plea bargain and the promise of getting out that day
632
00:25:25,482 –> 00:25:29,319
or, you know, waiting a month for a trial date
633
00:25:29,319 –> 00:25:31,321
that may or may not go forward.
634
00:25:31,321 –> 00:25:32,864
And, you know, they’re
635
00:25:32,864 –> 00:25:34,824
obviously going to take the plea,
636
00:25:34,824 –> 00:25:36,076
whether they think they’re guilty or not.
637
00:25:36,076 –> 00:25:37,077
And there might be cases
638
00:25:37,077 –> 00:25:39,204
where they are completely innocent.
639
00:25:39,204 –> 00:25:40,830
You’re charged with felonious assault
640
00:25:40,830 –> 00:25:43,625
when you were actually acting in self-defense.
641
00:25:44,000 –> 00:25:45,669
And if the prosecutor thinks
642
00:25:45,669 –> 00:25:47,462
that they have a good chance of losing that,
643
00:25:47,462 –> 00:25:50,549
they might reduce that to a disorderly conduct.
644
00:25:50,924 –> 00:25:51,633
And the defendant,
645
00:25:51,633 –> 00:25:53,385
you can imagine the
646
00:25:53,385 –> 00:25:56,096
exchange between the lawyer and the accused.
647
00:25:56,096 –> 00:25:57,305
You know, great news.
648
00:25:57,305 –> 00:25:58,765
I got you a plea today.
649
00:25:58,765 –> 00:26:00,600
You’re going to, you know,
650
00:26:00,600 –> 00:26:03,103
get on probation, You’re going to get released today.
651
00:26:03,520 –> 00:26:06,565
And the defendant might say, well, I’m innocent.
652
00:26:06,565 –> 00:26:07,315
I want to go to trial.
653
00:26:07,315 –> 00:26:08,567
Well, okay,
654
00:26:08,567 –> 00:26:09,818
you can have your trial date,
655
00:26:09,818 –> 00:26:11,653
but you’re not getting out today
656
00:26:11,653 –> 00:26:14,114
or you can walk into that courtroom
657
00:26:14,114 –> 00:26:16,950
and you will get out today. That’s how it works.
658
00:26:17,409 –> 00:26:19,119
I don’t think the public realizes
659
00:26:19,119 –> 00:26:20,745
those kind of power
660
00:26:20,745 –> 00:26:21,871
dynamics
661
00:26:21,871 –> 00:26:24,583
are taking place every single day
662
00:26:24,583 –> 00:26:26,710
in the American justice system.
663
00:26:26,710 –> 00:26:28,461
It’s like the practical weight
664
00:26:28,461 –> 00:26:29,754
that the state can impose on
665
00:26:29,754 –> 00:26:31,756
an individual is so overwhelming
666
00:26:31,756 –> 00:26:35,135
and the disparity in resources and in capabilities.
667
00:26:35,135 –> 00:26:35,969
And you have essentially
668
00:26:35,969 –> 00:26:38,972
the bottomless pit of resources on one side
669
00:26:39,139 –> 00:26:40,890
and the whole machinery and power of the state
670
00:26:40,890 –> 00:26:42,767
and just an extra file for them
671
00:26:42,767 –> 00:26:44,269
against an individual.With one life.
672
00:26:44,269 –> 00:26:47,022
It’s like if you’ve been accused of one thing,
673
00:26:47,022 –> 00:26:47,939
you may lose
674
00:26:47,939 –> 00:26:48,857
your best friend,
675
00:26:48,857 –> 00:26:51,276
you may lose the only job you have,
676
00:26:51,276 –> 00:26:53,737
you may lose the only reputation you have.
677
00:26:53,945 –> 00:26:55,989
And it’s funny because I didn’t come into this interview
678
00:26:55,989 –> 00:26:58,533
with that idea in mind, but it’s true
679
00:26:58,533 –> 00:27:00,660
that we have the prosecutorial
680
00:27:01,244 –> 00:27:06,416
zeal and power of the state when a situation emerges.
681
00:27:06,499 –> 00:27:09,461
It doesn’t always happen with everybody, of course.
682
00:27:09,461 –> 00:27:11,630
But when that situation occurs,
683
00:27:11,630 –> 00:27:12,672
you have that
684
00:27:12,672 –> 00:27:16,718
that lays on top of the sort of cultural dynamics around,
685
00:27:16,885 –> 00:27:18,428
you know, finding the guilty,
686
00:27:19,638 –> 00:27:21,473
prosecuting and finding and,
687
00:27:21,473 –> 00:27:23,558
you know, making sure the guilty pay
688
00:27:23,558 –> 00:27:24,726
and then,
689
00:27:24,726 –> 00:27:25,644
by the way,
690
00:27:25,644 –> 00:27:26,686
you know, with cancel culture
691
00:27:26,686 –> 00:27:27,729
and so forth, it’s
692
00:27:27,729 –> 00:27:29,856
like when people do end up being innocent.
693
00:27:29,856 –> 00:27:32,400
It is not a media story.
694
00:27:32,400 –> 00:27:34,778
It’s a media story when you get accused, it’s
695
00:27:34,778 –> 00:27:35,236
not really
696
00:27:35,236 –> 00:27:37,280
a media story when the facts come out
697
00:27:37,280 –> 00:27:38,490
and after scrutiny,
698
00:27:38,490 –> 00:27:39,824
it turns out that you weren’t guilty
699
00:27:39,824 –> 00:27:41,409
after all, that’s a lot
700
00:27:41,409 –> 00:27:43,745
less sexy as a media story than,
701
00:27:43,912 –> 00:27:46,164
Oh my God, look at what such and such did.You know?
702
00:27:46,665 –> 00:27:50,126
And so it’s like you’ve got this political dynamic.
703
00:27:50,126 –> 00:27:51,044
You’ve got the
704
00:27:52,379 –> 00:27:55,715
unbelievable disparity in resources between the state
705
00:27:55,715 –> 00:27:56,800
and the individual.
706
00:27:56,800 –> 00:27:59,469
And you’ve got this cultural dynamic all going on one side,
707
00:27:59,678 –> 00:28:01,513
and then you’ve got the meek,
708
00:28:02,722 –> 00:28:03,807
you know,
709
00:28:03,890 –> 00:28:05,809
reminders of some attorneys,
710
00:28:05,809 –> 00:28:08,269
some people, some civil rights activists, some judges
711
00:28:09,020 –> 00:28:11,648
around the concept of innocence and how important
712
00:28:11,648 –> 00:28:12,774
and how important it is
713
00:28:12,774 –> 00:28:14,067
to protect innocence
714
00:28:14,067 –> 00:28:16,236
in a society where, you know, when a legal claim
715
00:28:16,236 –> 00:28:17,153
is made against an individual,
716
00:28:17,153 –> 00:28:18,196
there’s a lot of uncertainty.
717
00:28:18,196 –> 00:28:19,614
We know there’s wrongful convictions.
718
00:28:19,614 –> 00:28:21,282
We know there’s wrong accusations.
719
00:28:21,282 –> 00:28:22,992
We know these things exist.
720
00:28:22,992 –> 00:28:24,911
And the legal system is there for a reason.
721
00:28:24,911 –> 00:28:25,870
The presumption of innocence
722
00:28:25,870 –> 00:28:26,663
is there for a reason,
723
00:28:26,663 –> 00:28:29,165
because upon further scrutiny,
724
00:28:29,165 –> 00:28:31,000
a lot of times
725
00:28:31,000 –> 00:28:31,793
it’s wrong,
726
00:28:31,793 –> 00:28:33,670
you know, and without getting into percentages
727
00:28:33,670 –> 00:28:34,421
or anything like that.
728
00:28:34,421 –> 00:28:37,215
But one thing I’m very surprised about,
729
00:28:37,215 –> 00:28:39,342
and I guess I underestimated it
730
00:28:39,342 –> 00:28:41,678
before we started interacting, is
731
00:28:43,096 –> 00:28:44,556
the pushback that you receive
732
00:28:44,556 –> 00:28:46,641
from inside the judiciary
733
00:28:46,641 –> 00:28:49,644
against this sort of trying to make it more fair,
734
00:28:49,936 –> 00:28:50,854
trying to argue, for instance,
735
00:28:50,854 –> 00:28:52,856
for more data and more statistics,
736
00:28:53,189 –> 00:28:55,358
a little bit more transparency.
737
00:28:55,358 –> 00:28:56,025
That’s something I was
738
00:28:56,025 –> 00:28:58,486
I was very surprised when you brought it to my attention.
739
00:28:58,903 –> 00:29:00,071
Where does this pushback
740
00:29:00,071 –> 00:29:01,489
come from, in your opinion, for trying to
741
00:29:01,489 –> 00:29:03,825
if we’re trying to steel man it a little bit,
742
00:29:03,825 –> 00:29:05,076
what kind of concerns is it
743
00:29:05,076 –> 00:29:07,120
trying to – Is it just that people,
744
00:29:07,746 –> 00:29:09,622
you know, human nature people enjoy
745
00:29:09,622 –> 00:29:12,125
not having that level of scrutiny?
746
00:29:12,125 –> 00:29:14,377
A combination of bureaucratic inertia
747
00:29:14,377 –> 00:29:17,714
and human nature is my sort of hunch.
748
00:29:17,714 –> 00:29:19,507
But where do you think it comes from?
749
00:29:19,507 –> 00:29:21,509
And can you please talk about that a little bit?
750
00:29:21,509 –> 00:29:21,760
Yeah.
751
00:29:21,760 –> 00:29:25,305
I found in the justice system, change is very difficult.
752
00:29:25,680 –> 00:29:28,850
It’s very difficult to convince the powers that be that
753
00:29:31,019 –> 00:29:32,812
that we need to move in a different direction.
754
00:29:32,812 –> 00:29:36,441
I found that as a young prosecutor, we used it,
755
00:29:36,775 –> 00:29:38,359
you know, in the state of Ohio.
756
00:29:38,359 –> 00:29:41,738
We did not have open discovery in the state.
757
00:29:41,946 –> 00:29:44,616
And therefore I did not have to disclose to the
758
00:29:45,658 –> 00:29:47,452
lawyer for the accused
759
00:29:47,452 –> 00:29:50,288
copies of police reports, witness statements.
760
00:29:50,288 –> 00:29:52,499
So they would actually come to pretrial
761
00:29:52,499 –> 00:29:57,378
and I would read them the information that was in my file.
762
00:29:57,545 –> 00:30:00,131
They would take copious notes and they would have to trust
763
00:30:00,507 –> 00:30:05,178
that I was telling them everything that they needed to
764
00:30:05,804 –> 00:30:07,972
adequately represent their client.
765
00:30:08,723 –> 00:30:10,058
And it was crazy.
766
00:30:10,058 –> 00:30:10,517
You know,
767
00:30:10,517 –> 00:30:15,271
people were at when I became a judge, early in 2005,
768
00:30:15,605 –> 00:30:18,983
it was not uncommon in every trial for someone to claim
769
00:30:19,150 –> 00:30:20,985
I am getting new information
770
00:30:20,985 –> 00:30:23,571
that was not provided to me until last night
771
00:30:23,738 –> 00:30:25,406
or, you know, mid-trial, and we’d
772
00:30:25,406 –> 00:30:27,408
have to send the jury out of the room.
773
00:30:27,408 –> 00:30:29,828
And finally, the defense bar in the States
774
00:30:29,869 –> 00:30:31,329
stood up and said, This is crazy.
775
00:30:31,329 –> 00:30:33,790
And we changed the rules.
776
00:30:33,790 –> 00:30:37,210
And there was a lot of pushback and there was a lot of fear
777
00:30:38,169 –> 00:30:40,004
that victims would be victimized.
778
00:30:40,004 –> 00:30:43,383
And we passed a rule and advanced the system.
779
00:30:43,675 –> 00:30:46,302
And those claims about being ambushed at trial,
780
00:30:46,719 –> 00:30:48,012
you know, virtually disappeared.
781
00:30:48,012 –> 00:30:49,597
And that taught me a big lesson.
782
00:30:49,597 –> 00:30:52,141
And now I see the same fears being
783
00:30:53,268 –> 00:30:55,019
expressed about data.
784
00:30:55,019 –> 00:30:59,941
And, you know, data is simply relevant information
785
00:31:00,275 –> 00:31:03,528
that can better inform your decision making.
786
00:31:03,570 –> 00:31:06,239
I use this analogy that perhaps
787
00:31:06,239 –> 00:31:06,906
your listeners
788
00:31:06,906 –> 00:31:11,035
have seen the movie Moneyball, and it’s a great analogy
789
00:31:11,035 –> 00:31:13,454
because it focuses on baseball
790
00:31:13,454 –> 00:31:16,791
and who the decision makers were in
791
00:31:17,959 –> 00:31:19,043
when it came to terms to hire
792
00:31:19,043 –> 00:31:21,045
in which players they were going to hire.
793
00:31:21,254 –> 00:31:24,966
And they used to rely most heavily on the scouts
794
00:31:25,258 –> 00:31:27,302
who had a lot of institutional knowledge
795
00:31:27,302 –> 00:31:30,597
and they would act on hunches.
796
00:31:30,597 –> 00:31:32,098
And sometimes they were right
797
00:31:32,098 –> 00:31:34,601
and sometimes they were really wrong.
798
00:31:35,018 –> 00:31:37,729
Also egos and reputations.
799
00:31:38,146 –> 00:31:40,481
Yeah, and using your gut, quite frankly.
800
00:31:40,690 –> 00:31:41,858
And,
801
00:31:42,108 –> 00:31:42,901
you know, it’s
802
00:31:42,901 –> 00:31:46,738
when they went to a more data-driven evaluation,
803
00:31:46,988 –> 00:31:49,449
they changed the game of baseball altogether.
804
00:31:49,741 –> 00:31:53,411
And so that’s an example of how powerful data is.
805
00:31:53,411 –> 00:31:54,913
It also is examples
806
00:31:54,913 –> 00:31:57,373
how our society is moving in general
807
00:31:57,373 –> 00:32:00,501
and what I say to judges who are wary of this, look,
808
00:32:01,044 –> 00:32:03,046
the genie’s out of the bottle.
809
00:32:03,046 –> 00:32:05,006
This is coming. Whether you like it or not.
810
00:32:05,006 –> 00:32:08,259
Your decisions on sentencing
811
00:32:08,259 –> 00:32:09,802
are going to be scrutinized at a level
812
00:32:09,802 –> 00:32:12,221
that you never, ever anticipated.
813
00:32:12,513 –> 00:32:13,932
So if you want to be able
814
00:32:13,932 –> 00:32:16,225
to defend yourself against possibly
815
00:32:16,225 –> 00:32:19,062
unfair characterizations, of
816
00:32:20,605 –> 00:32:22,607
data analysis, you best
817
00:32:23,024 –> 00:32:24,484
get on board the data train
818
00:32:24,484 –> 00:32:28,279
and have the data yourself so that you can put
819
00:32:31,616 –> 00:32:35,370
your record and context and judges are coming
820
00:32:35,870 –> 00:32:36,788
around to that fact.
821
00:32:36,788 –> 00:32:37,956
You know the fear
822
00:32:37,956 –> 00:32:41,709
kind of reminds me of remember a couple of years back when
823
00:32:43,336 –> 00:32:44,963
the music industry changed
824
00:32:44,963 –> 00:32:46,506
because
825
00:32:46,506 –> 00:32:48,341
people can all of a sudden record
826
00:32:48,341 –> 00:32:51,177
thousands of you didn’t have to buy CDs anymore.
827
00:32:51,177 –> 00:32:52,470
You could record.
828
00:32:52,470 –> 00:32:54,931
And everybody was like, this is terrible.
829
00:32:54,931 –> 00:32:56,683
They’re stealing our
830
00:32:56,683 –> 00:32:58,267
you know, let’s prosecuted
831
00:32:58,267 –> 00:32:59,394
all these college students
832
00:32:59,394 –> 00:33:02,981
who have all this music on their files
833
00:33:03,731 –> 00:33:06,943
and then they finally came around to, the world is changed.
834
00:33:07,402 –> 00:33:09,237
And the company and the music company
835
00:33:09,237 –> 00:33:11,656
said, we’re going to find a way to monetize
836
00:33:11,656 –> 00:33:13,950
this and we’re going to act accordingly.
837
00:33:14,742 –> 00:33:16,452
Ultimately led to a growth of the music industry
838
00:33:16,452 –> 00:33:18,621
and created revenues for them down the line.
839
00:33:18,621 –> 00:33:18,788
It was
840
00:33:18,788 –> 00:33:20,581
it was a difficult moment to kind of switch
841
00:33:20,581 –> 00:33:21,708
the business model,
842
00:33:21,708 –> 00:33:23,626
but ultimately it ended up being a good thing,
843
00:33:23,626 –> 00:33:24,877
although maybe not for the artist.
844
00:33:24,877 –> 00:33:27,046
But this is very interesting
845
00:33:27,046 –> 00:33:29,799
and so I love it that how much you know, you’re
846
00:33:29,799 –> 00:33:31,551
talking about this with other judges
847
00:33:31,551 –> 00:33:32,593
and I’ve thought about this a lot.
848
00:33:32,593 –> 00:33:35,388
I’m involved in a venture, a legal A.I.
849
00:33:35,471 –> 00:33:37,598
venture where essentially exactly like you say.
850
00:33:37,849 –> 00:33:40,393
So decisions are public up to a certain point, right?
851
00:33:40,393 –> 00:33:41,769
There’s a lot of,
852
00:33:41,769 –> 00:33:43,396
you know, settlement discussions and settlements
853
00:33:43,396 –> 00:33:44,313
that are not public.
854
00:33:44,313 –> 00:33:45,940
But to the extent that we have access
855
00:33:45,940 –> 00:33:47,358
to a lot of high-quality
856
00:33:47,358 –> 00:33:49,152
public information in the legal system,
857
00:33:49,152 –> 00:33:51,237
which is supposed to be,
858
00:33:51,237 –> 00:33:52,905
you know, what the legal system is about.
859
00:33:52,905 –> 00:33:54,615
Transparency, disclosure
860
00:33:54,615 –> 00:33:56,826
of treating like cases of similarly,
861
00:33:57,035 –> 00:33:59,954
that’s sort of the heart of the legal system in a democracy
862
00:33:59,954 –> 00:34:02,123
that respects the rule of law and so forth.
863
00:34:02,123 –> 00:34:04,333
But in thinking of the role of A.I.
864
00:34:04,333 –> 00:34:07,420
in this, I’m kind of coming to a very similar realization
865
00:34:07,545 –> 00:34:09,172
that you are is that I believe
866
00:34:09,172 –> 00:34:11,883
the best version of this is one where we have
867
00:34:12,175 –> 00:34:12,675
the data
868
00:34:12,675 –> 00:34:15,762
and the statistics are informing us about
869
00:34:16,304 –> 00:34:20,016
the potential biases that exist in a particular case
870
00:34:20,516 –> 00:34:22,852
and informs the judge.
871
00:34:22,852 –> 00:34:25,104
And then I believe that the judges –
872
00:34:25,146 –> 00:34:27,482
now people might say, well, if you tell the judges,
873
00:34:27,690 –> 00:34:31,194
then they’ll just hide their bias. Great.
874
00:34:31,194 –> 00:34:33,446
I would rather they hide their bias
875
00:34:33,780 –> 00:34:35,656
right that express their bias
876
00:34:35,656 –> 00:34:37,533
or maybe if you just make them aware,
877
00:34:37,533 –> 00:34:40,995
I believe most judges are extremely hard working.
878
00:34:40,995 –> 00:34:42,413
There for the right reasons.
879
00:34:42,413 –> 00:34:45,208
They don’t want to contribute to any kind of injustice.
880
00:34:45,333 –> 00:34:47,585
Some of them perhaps are extremely ideological.
881
00:34:48,169 –> 00:34:50,421
But in my experience, that’s the minority.
882
00:34:50,421 –> 00:34:51,255
Judges tend to be
883
00:34:52,215 –> 00:34:53,508
quite conservative intellectually.
884
00:34:53,508 –> 00:34:55,843
They want to make the right decision.
885
00:34:56,135 –> 00:34:59,472
They’re exposed to all kinds of bureaucratic forces,
886
00:34:59,764 –> 00:35:03,059
all kinds of constraints in sort of their work modalities.
887
00:35:03,476 –> 00:35:05,686
If you gave them access
888
00:35:05,686 –> 00:35:08,648
to better information, better statistics. Okay.
889
00:35:08,648 –> 00:35:12,193
In this kind of case in your state in the last five years,
890
00:35:12,401 –> 00:35:13,402
these are the trends.
891
00:35:13,402 –> 00:35:14,654
This is the statistics.
892
00:35:14,654 –> 00:35:16,906
Now, you take that into consideration.
893
00:35:16,906 –> 00:35:19,283
You take that into consideration
894
00:35:19,283 –> 00:35:20,368
in making your decision,
895
00:35:20,368 –> 00:35:23,329
but you’re still going to be making your decision.
896
00:35:23,329 –> 00:35:26,332
But ultimately you can sort of self-scrutinize, right?
897
00:35:26,415 –> 00:35:28,209
And eventually, if it goes on appeal,
898
00:35:28,209 –> 00:35:30,711
the appellate judges can also take a look at the statistics
899
00:35:30,878 –> 00:35:31,420
and say, well,
900
00:35:31,420 –> 00:35:33,589
you know, you’re playing into one of the biases.
901
00:35:33,589 –> 00:35:35,758
Now, it doesn’t mean your decision was wrong,
902
00:35:36,092 –> 00:35:38,302
but maybe I’m going to take a little bit of a closer
903
00:35:38,302 –> 00:35:39,095
look here.
904
00:35:39,095 –> 00:35:42,682
Is this not an example of a sort of an unexpressed bias
905
00:35:42,974 –> 00:35:45,059
or one of these trends that we’re seeing?
906
00:35:45,393 –> 00:35:48,354
I just see it as additional information for judges.
907
00:35:48,980 –> 00:35:52,108
That’s I think, the best way that we can use the system
908
00:35:52,108 –> 00:35:54,944
if and when it emerges. I cannot agree more,
909
00:35:56,112 –> 00:35:56,946
you know,
910
00:35:56,946 –> 00:35:59,407
built into the cornerstone of our current
911
00:35:59,407 –> 00:36:01,993
sentencing scheme here in Ohio is
912
00:36:01,993 –> 00:36:04,245
the tenet of justice that we all know about that
913
00:36:04,537 –> 00:36:05,621
you should treat similarly
914
00:36:05,621 –> 00:36:06,622
situated defendants
915
00:36:06,622 –> 00:36:07,748
with similar sentences
916
00:36:07,748 –> 00:36:09,917
regardless of the color of their skin
917
00:36:09,917 –> 00:36:12,587
or their socioeconomic place in society.
918
00:36:12,587 –> 00:36:15,006
And I always had that laminated on my desk.
919
00:36:15,006 –> 00:36:15,756
And I
920
00:36:15,756 –> 00:36:19,093
you know, when I was sentencing people every single day,
921
00:36:19,302 –> 00:36:22,805
you know, I didn’t have any tools or information.
922
00:36:23,097 –> 00:36:25,558
I just had to simply try to do my best.
923
00:36:25,933 –> 00:36:27,935
And there’s a great anecdote
924
00:36:28,311 –> 00:36:29,270
that comes
925
00:36:29,395 –> 00:36:32,023
came from an attorney of the criminal defense attorney
926
00:36:32,023 –> 00:36:33,441
I know from Columbus.
927
00:36:33,441 –> 00:36:34,901
And her name is Diane Bonacci.
928
00:36:34,901 –> 00:36:38,154
And she’s a very good defense attorney.
929
00:36:38,154 –> 00:36:39,989
And she was
930
00:36:39,989 –> 00:36:41,616
representing a defendant
931
00:36:41,616 –> 00:36:44,035
who was charged with involuntary manslaughter.
932
00:36:44,744 –> 00:36:45,786
She was a heroin addict,
933
00:36:45,786 –> 00:36:47,538
and she had supplied another heroin addict
934
00:36:47,538 –> 00:36:51,751
with a unfortunately, tragically, a lethal dose of
935
00:36:53,377 –> 00:36:54,128
heroin.
936
00:36:54,128 –> 00:36:55,755
And so
937
00:36:55,838 –> 00:36:56,797
the prosecutor
938
00:36:56,797 –> 00:36:58,883
and Diane, could not come to
939
00:36:58,925 –> 00:37:00,927
any type of agreement with regards to sentence.
940
00:37:00,927 –> 00:37:02,803
But they were before a judge
941
00:37:02,803 –> 00:37:04,347
that they believed was very fair
942
00:37:04,347 –> 00:37:05,890
and would listen to both sides.
943
00:37:05,890 –> 00:37:10,811
So they pled the case out and in Ohio, judges
944
00:37:11,020 –> 00:37:14,565
can have tremendous ranges available to them
945
00:37:14,857 –> 00:37:16,067
at any given plea.
946
00:37:16,067 –> 00:37:17,568
It could range from probation to,
947
00:37:17,568 –> 00:37:19,987
like you said, at the beginning, decades in prison.
948
00:37:20,238 –> 00:37:22,865
And they just thought they would take their chances.
949
00:37:22,865 –> 00:37:23,783
Diane,
950
00:37:23,783 –> 00:37:26,369
fortunately for her, client heard through word of mouth
951
00:37:26,369 –> 00:37:28,704
that the state was going to ask for 13 years,
952
00:37:28,704 –> 00:37:30,164
and she intuitively knew that
953
00:37:30,164 –> 00:37:32,291
that was way out of range from other cases
954
00:37:32,291 –> 00:37:34,585
she had represented that she was aware of.
955
00:37:34,961 –> 00:37:39,882
She invested about 50 hours of time combing through
956
00:37:39,882 –> 00:37:41,842
the county public records
957
00:37:41,842 –> 00:37:43,719
to get similarly situated cases
958
00:37:43,719 –> 00:37:45,638
to put together a sentencing memorandum.
959
00:37:45,638 –> 00:37:48,182
Took her hours and hours that no defense attorney
960
00:37:48,182 –> 00:37:52,520
usually has as she put together this sentencing memorandum.
961
00:37:52,520 –> 00:37:54,021
And sure enough, at the sentencing hearing,
962
00:37:54,021 –> 00:37:56,232
which you could imagine was very emotional.
963
00:37:56,565 –> 00:37:59,026
The state was demanding 13 years imprisonment.
964
00:37:59,610 –> 00:38:01,696
And Diane very calmly said, Judge,
965
00:38:01,696 –> 00:38:05,908
I like to remind you of your duty under the law
966
00:38:05,950 –> 00:38:07,618
to treat similarly situated
967
00:38:08,661 –> 00:38:10,288
defendants with similar sentences.
968
00:38:10,288 –> 00:38:13,541
Here are the cases, some of which are your cases, Judge
969
00:38:13,541 –> 00:38:15,418
some that you sentenced,
970
00:38:15,418 –> 00:38:19,213
and they’re virtually indistinguishable on paper from
971
00:38:19,714 –> 00:38:20,923
the case at hand.
972
00:38:20,923 –> 00:38:23,301
And the judge, like you just said,
973
00:38:24,593 –> 00:38:26,387
judges want to be fair.
974
00:38:26,387 –> 00:38:29,348
And if you’re going to treat someone differently,
975
00:38:29,598 –> 00:38:32,852
you better be able to articulate a good reason why.
976
00:38:32,852 –> 00:38:35,688
And if you can’t, then that’s the power of data.
977
00:38:35,896 –> 00:38:40,943
And Diane was able to get the sentence way within the range
978
00:38:42,069 –> 00:38:44,238
that other people had been treated.
979
00:38:44,238 –> 00:38:46,240
And that’s just a perfect example.
980
00:38:46,407 –> 00:38:48,034
It points to the solution.
981
00:38:48,034 –> 00:38:51,245
It also points to the problem that we don’t have access,
982
00:38:52,121 –> 00:38:54,248
at least here in Ohio, in the state courts, to that kind of
983
00:38:55,708 –> 00:38:56,542
data.
984
00:38:56,709 –> 00:38:58,210
The federal system is
985
00:38:58,210 –> 00:39:01,255
far above us in terms of the amount of data that they have.
986
00:39:02,048 –> 00:39:03,049
Would that be a good first step?
987
00:39:03,049 –> 00:39:05,259
So I’m hearing like there’s the use of technology,
988
00:39:05,259 –> 00:39:07,011
there is sometimes tweaking the rules.
989
00:39:07,011 –> 00:39:08,971
We’ve talked about a couple of ways
990
00:39:08,971 –> 00:39:11,098
in which the system could improve
991
00:39:11,098 –> 00:39:12,933
the federal system seems to be
992
00:39:12,933 –> 00:39:14,935
really leaps and bounds ahead of state systems.
993
00:39:14,935 –> 00:39:17,521
Would that be like a good sort of step to
994
00:39:17,646 –> 00:39:19,065
kind of start modeling
995
00:39:20,316 –> 00:39:22,401
how the process is designed at the state level
996
00:39:22,693 –> 00:39:22,985
based on
997
00:39:22,985 –> 00:39:23,861
the federal level is
998
00:39:23,861 –> 00:39:25,529
some people will push back against that
999
00:39:25,529 –> 00:39:28,282
for whatever political reasons, ideological reasons.
1000
00:39:28,282 –> 00:39:29,533
I’m not getting into that.
1001
00:39:29,533 –> 00:39:32,536
Are you hopeful from inside
1002
00:39:32,536 –> 00:39:35,164
from how deeply sort of you see this from the inside?
1003
00:39:35,456 –> 00:39:37,291
Are you hopeful that something like that can happen?
1004
00:39:37,291 –> 00:39:39,543
Or is the pushback just simply going to make it,
1005
00:39:39,794 –> 00:39:41,921
you know, very slow,
1006
00:39:42,171 –> 00:39:44,465
if not ultimately inevitable?
1007
00:39:44,465 –> 00:39:47,176
It’s inevitable that the technologies will be developed.
1008
00:39:47,176 –> 00:39:50,221
It’s inevitable that but when it comes to the injustices,
1009
00:39:50,221 –> 00:39:52,306
we know from history how slowly
1010
00:39:52,807 –> 00:39:55,476
the legal and judicial system can change.
1011
00:39:55,476 –> 00:39:56,894
Do you get a sense that there’s
1012
00:39:56,894 –> 00:39:58,938
enough of a push from the inside to make this happen?
1013
00:39:58,938 –> 00:40:00,272
I’m hopeful there is, like
1014
00:40:01,357 –> 00:40:02,274
you said
1015
00:40:02,274 –> 00:40:04,985
so eloquently in your article in The Atlantic,
1016
00:40:04,985 –> 00:40:08,280
I mean, judicial discretion is something to
1017
00:40:09,281 –> 00:40:11,158
be valued.
1018
00:40:11,450 –> 00:40:14,662
It is a good thing as long as it’s exercised
1019
00:40:15,037 –> 00:40:17,498
within reasonable boundaries.
1020
00:40:17,498 –> 00:40:18,666
And that’s
1021
00:40:18,666 –> 00:40:21,585
that we don’t have those reasonable boundaries
1022
00:40:21,585 –> 00:40:24,713
here in the state of Ohio right now.
1023
00:40:25,464 –> 00:40:27,341
And so when you have
1024
00:40:27,341 –> 00:40:29,885
when you give a judge
1025
00:40:29,885 –> 00:40:32,972
the power to sentence someone on that given case
1026
00:40:33,556 –> 00:40:36,851
to a sentence of probation all the way up to 100 years,
1027
00:40:37,226 –> 00:40:37,518
I mean,
1028
00:40:37,518 –> 00:40:41,897
that is the fertile ground for a bias, implicit bias,
1029
00:40:41,939 –> 00:40:44,275
explicit bias.
1030
00:40:44,358 –> 00:40:45,734
And, you know.
1031
00:40:45,734 –> 00:40:46,986
When the range is too large,
1032
00:40:46,986 –> 00:40:48,320
when the discretion is too large,
1033
00:40:48,320 –> 00:40:50,322
and then you’ve got all this pressure and you’ve got,
1034
00:40:50,656 –> 00:40:50,906
you know,
1035
00:40:50,906 –> 00:40:53,284
limited time to make a decision, that’s
1036
00:40:53,284 –> 00:40:57,121
when the sort of there’s the public scrutiny. Yeah, right.
1037
00:40:57,163 –> 00:40:59,206
And it was a high profile case that could
1038
00:40:59,290 –> 00:41:00,833
all these factors can play in
1039
00:41:01,834 –> 00:41:03,377
like you referenced in your article.
1040
00:41:03,377 –> 00:41:05,504
But the noise
1041
00:41:05,504 –> 00:41:06,922
in the decision-making process
1042
00:41:06,922 –> 00:41:07,423
is that
1043
00:41:07,423 –> 00:41:08,507
it could produce a result
1044
00:41:08,507 –> 00:41:10,718
that you would give on one day, that you might give
1045
00:41:11,010 –> 00:41:13,679
the total opposite result on the next day.
1046
00:41:13,679 –> 00:41:18,642
And, you know, public confidence is threatened when it
1047
00:41:18,684 –> 00:41:19,602
when they both
1048
00:41:19,602 –> 00:41:22,396
when you when people believe that
1049
00:41:22,396 –> 00:41:26,025
your outcomes are not based so much on the rule of law,
1050
00:41:26,025 –> 00:41:26,734
which requires
1051
00:41:26,734 –> 00:41:29,320
fairness and proportionality and consistency
1052
00:41:29,737 –> 00:41:31,864
and they’re really on the judge
1053
00:41:32,323 –> 00:41:35,117
or the mood of the judge at the
1054
00:41:35,117 –> 00:41:37,244
particular type of sentencing.
1055
00:41:37,244 –> 00:41:39,455
And I’m fearful
1056
00:41:39,455 –> 00:41:41,499
for what I believe
1057
00:41:41,832 –> 00:41:45,252
will be the next viral story that comes out of Ohio.
1058
00:41:45,252 –> 00:41:46,170
Someone’s going to
1059
00:41:46,879 –> 00:41:49,798
find on a judge’s docket
1060
00:41:49,798 –> 00:41:52,593
and maybe a judge who has a reputation for fairness.
1061
00:41:52,593 –> 00:41:55,387
But they’re going to be able to find two different cases
1062
00:41:55,763 –> 00:41:58,516
that are virtually indistinguishable on paper, maybe,
1063
00:41:58,682 –> 00:42:02,269
but perhaps for the color of the defendant’s skin.
1064
00:42:02,603 –> 00:42:05,606
And you’re going to see two vast different outcomes.
1065
00:42:05,606 –> 00:42:07,525
And the judge is not going to be able
1066
00:42:07,525 –> 00:42:10,319
to articulate why they did this in this case
1067
00:42:10,319 –> 00:42:11,529
and why they did not.
1068
00:42:11,529 –> 00:42:15,491
And therein lies the problem. Yeah. It’s very scary.
1069
00:42:15,491 –> 00:42:17,952
And I think it’s like where the consistency stage, right?
1070
00:42:17,952 –> 00:42:20,037
Because think that there was so much emphasis
1071
00:42:20,037 –> 00:42:22,373
on protecting judicial discretion
1072
00:42:22,665 –> 00:42:23,874
very jealously
1073
00:42:23,874 –> 00:42:27,127
because the initial concern when it came to the rule of law
1074
00:42:27,253 –> 00:42:29,213
was making sure that it’s separated
1075
00:42:29,213 –> 00:42:31,632
from executive meddling. Right.
1076
00:42:31,757 –> 00:42:33,759
We want to make sure that it’s not that
1077
00:42:33,759 –> 00:42:35,302
the judiciary is independent.
1078
00:42:35,302 –> 00:42:37,221
Well, now the judiciary is independent.
1079
00:42:37,221 –> 00:42:41,725
Okay but it’s become part of this big bureaucratic machine.
1080
00:42:42,101 –> 00:42:42,601
And
1081
00:42:43,602 –> 00:42:45,187
a judge is still just a sole human
1082
00:42:45,187 –> 00:42:46,814
being right at the end of the day.
1083
00:42:46,814 –> 00:42:48,482
And they’re being presented with a lot of stuff
1084
00:42:48,482 –> 00:42:49,483
and they’re being subjected
1085
00:42:49,483 –> 00:42:50,568
to a lot of different pressures.
1086
00:42:50,568 –> 00:42:52,778
And they are just a human being.
1087
00:42:52,778 –> 00:42:54,071
I mean, they’ll admit itthemselves.
1088
00:42:54,071 –> 00:42:55,364
But you’re not conscious of what
1089
00:42:55,364 –> 00:42:57,032
you’re not conscious of, right?
1090
00:42:57,032 –> 00:42:57,324
And
1091
00:42:58,367 –> 00:43:01,287
then we combine that with the skill
1092
00:43:01,287 –> 00:43:03,247
set that we have as lawyers,
1093
00:43:03,247 –> 00:43:06,375
which can make us very skilled at justifying
1094
00:43:06,709 –> 00:43:10,296
any hunch or conclusion or intuition that we have.
1095
00:43:10,629 –> 00:43:11,505
We were very,
1096
00:43:11,505 –> 00:43:12,965
very good at connecting the dots
1097
00:43:12,965 –> 00:43:16,302
and creating a nice justificatory narrative around that.
1098
00:43:16,719 –> 00:43:20,639
And then in a complex world of thousands of cases,
1099
00:43:22,057 –> 00:43:23,434
the risk factor
1100
00:43:23,434 –> 00:43:23,934
I love how you
1101
00:43:23,976 –> 00:43:25,060
sort of identify
1102
00:43:25,060 –> 00:43:26,312
the high-risk factor
1103
00:43:26,312 –> 00:43:28,814
of you know, when you combine pressure
1104
00:43:29,064 –> 00:43:31,859
with, you know, the case with a lot of facts, right?
1105
00:43:31,859 –> 00:43:33,152
When you when you start combining
1106
00:43:33,152 –> 00:43:35,821
all of these different factors, these practical factors,
1107
00:43:36,447 –> 00:43:40,659
you enter a high-risk zone of these unconscious biases,
1108
00:43:42,036 –> 00:43:43,871
prejudices and so forth.
1109
00:43:43,871 –> 00:43:46,332
And then we start sort of playing with the law
1110
00:43:46,624 –> 00:43:48,792
in a very unconstrained manner.
1111
00:43:49,209 –> 00:43:51,295
And then it’s like, what’s the point of the law? Right?
1112
00:43:51,295 –> 00:43:53,255
If we could just reorder it and we’ve
1113
00:43:53,255 –> 00:43:54,715
got all these principles in the law
1114
00:43:54,715 –> 00:43:56,925
that we can use to justify really any outcome.
1115
00:43:56,925 –> 00:43:58,719
So we’re very,
1116
00:43:58,719 –> 00:44:02,598
very proud of our democratic system of lawmaking,
1117
00:44:02,598 –> 00:44:08,145
but ultimately it’s only as good as the reasonably narrow
1118
00:44:08,145 –> 00:44:11,106
corridor within which we’re exercising
1119
00:44:11,565 –> 00:44:13,275
this judicial discretion.
1120
00:44:13,275 –> 00:44:13,525
Right?
1121
00:44:13,525 –> 00:44:16,028
That’s the idea I was trying to get through in the article.
1122
00:44:16,028 –> 00:44:17,946
I’m so happy that you got it.
1123
00:44:17,946 –> 00:44:20,324
Oh, yeah, it’s spot on.
1124
00:44:20,324 –> 00:44:24,536
And, you know, the pressure that exists in the system
1125
00:44:26,121 –> 00:44:29,583
really is counter to all those ideals that
1126
00:44:30,042 –> 00:44:31,460
we like to speak of, that
1127
00:44:32,753 –> 00:44:34,421
the defendant is presumed innocent.
1128
00:44:34,421 –> 00:44:35,756
The defendant
1129
00:44:35,756 –> 00:44:38,050
cannot constitutionally be punished
1130
00:44:38,050 –> 00:44:40,219
by exercising their right to go to trial.
1131
00:44:40,219 –> 00:44:40,928
Well,
1132
00:44:41,095 –> 00:44:42,596
anybody that works in the system
1133
00:44:42,596 –> 00:44:43,681
knows that
1134
00:44:43,681 –> 00:44:46,517
that is just not true, that there exists
1135
00:44:46,517 –> 00:44:49,478
the trial penalty or the trial tax, as they call it.
1136
00:44:49,728 –> 00:44:52,731
If you go to trial and you lose,
1137
00:44:53,941 –> 00:44:57,820
your outcome may be exponentially more severe than what
1138
00:44:58,028 –> 00:45:00,155
the government offered you on a plea bargain.
1139
00:45:00,155 –> 00:45:00,823
There’s a
1140
00:45:01,156 –> 00:45:04,243
book out there called Punishment Without Trial by Professor
1141
00:45:04,410 –> 00:45:05,411
Carissa Hessick.
1142
00:45:05,411 –> 00:45:08,080
She interviewed me for the book. It’s a great book.
1143
00:45:08,080 –> 00:45:09,790
If you’re interested in this topic
1144
00:45:09,790 –> 00:45:13,210
about that exact type of pressure
1145
00:45:13,961 –> 00:45:18,674
that really flies in the face of the ideals that we like
1146
00:45:18,674 –> 00:45:19,299
to speak of.
1147
00:45:19,299 –> 00:45:20,384
I always said
1148
00:45:20,384 –> 00:45:22,803
the judge’s role is to
1149
00:45:22,803 –> 00:45:25,180
make sure that the defendant’s entry in a plea bargain,
1150
00:45:25,180 –> 00:45:28,100
if they chose, choose to do so knowingly and voluntarily.
1151
00:45:28,475 –> 00:45:31,937
Well, how voluntarily is someone entering a plea
1152
00:45:32,604 –> 00:45:36,525
if they’re being told that if they go to trial and lose,
1153
00:45:37,359 –> 00:45:39,778
rather than take the five years,
1154
00:45:39,778 –> 00:45:41,530
they’re going to get 100 years in prison?
1155
00:45:41,530 –> 00:45:42,030
I mean, that’s
1156
00:45:42,030 –> 00:45:43,115
the kind of leverage that’s
1157
00:45:43,115 –> 00:45:45,284
being exercised behind closed doors
1158
00:45:45,284 –> 00:45:47,411
that people need to know about.
1159
00:45:47,411 –> 00:45:48,912
Not really a great environment
1160
00:45:48,912 –> 00:45:51,582
to exercise your constitutional rights it would seem.
1161
00:45:52,708 –> 00:45:56,003
Well, Justice Donnelly, I want to thank you, really.
1162
00:45:56,003 –> 00:45:56,545
I mean, it’s
1163
00:45:56,545 –> 00:45:58,922
refreshing to have a conversation like this
1164
00:45:58,922 –> 00:46:01,133
with you with such a high-ranking
1165
00:46:01,175 –> 00:46:02,926
and qualified member of the judiciary.
1166
00:46:02,926 –> 00:46:06,764
It gives one hope that change is possible,
1167
00:46:07,264 –> 00:46:08,474
even though it won’t be easy,
1168
00:46:08,474 –> 00:46:10,476
as I think we’re facing with, you know, there’s
1169
00:46:10,559 –> 00:46:13,145
a political factors, cultural factors, there’s
1170
00:46:13,437 –> 00:46:14,855
institutional inertia,
1171
00:46:14,855 –> 00:46:17,608
and then the people who benefit from all of the above.
1172
00:46:18,400 –> 00:46:20,444
But I would love to continue this conversation one day.
1173
00:46:20,444 –> 00:46:22,696
I’m sure this is going to be an ongoing
1174
00:46:22,988 –> 00:46:24,490
topic that’s going to keep evolving
1175
00:46:24,490 –> 00:46:25,199
as technology
1176
00:46:25,199 –> 00:46:27,576
evolves, as the political climate and as,
1177
00:46:28,035 –> 00:46:28,327
you know,
1178
00:46:28,327 –> 00:46:30,537
hopefully the work and the pressure of people
1179
00:46:30,537 –> 00:46:31,330
like you from inside
1180
00:46:31,330 –> 00:46:33,373
the judiciary also keeps sort of
1181
00:46:34,166 –> 00:46:35,167
trending in the right direction
1182
00:46:35,167 –> 00:46:36,919
and pushing these standards up.
1183
00:46:36,919 –> 00:46:38,712
I think it’s going to be an evolving
1184
00:46:38,712 –> 00:46:40,839
storyline that I would love to talk to you again
1185
00:46:40,839 –> 00:46:41,298
in the future.
1186
00:46:41,298 –> 00:46:42,716
Oh, you can count on it.
1187
00:46:42,716 –> 00:46:43,842
Thank you for inviting me
1188
00:46:43,842 –> 00:46:46,386
and thank you so much for writing the article
1189
00:46:46,804 –> 00:46:47,554
in The Atlantic.
1190
00:46:47,554 –> 00:46:49,056
I’ve been distributing
1191
00:46:49,056 –> 00:46:50,265
it far and wide
1192
00:46:50,265 –> 00:46:52,810
and I think you hit the nail on the head and said it
1193
00:46:53,560 –> 00:46:55,896
much more eloquently than I could ever have done.
1194
00:46:55,896 –> 00:46:58,315
And I thank you for writing it, and I’m
1195
00:46:58,315 –> 00:46:59,566
going to continue to use it
1196
00:46:59,566 –> 00:47:02,945
as I continue to advocate here in the state of Ohio.
1197
00:47:03,779 –> 00:47:05,531
Thank you so much. I really appreciate those words.
1198
00:47:05,531 –> 00:47:06,031
It means a lot.
1199
00:47:07,157 –> 00:47:07,866
Okay.
1200
00:47:08,075 –> 00:47:09,409
So we’ll talk soon. Definitely.
1201
00:47:09,409 –> 00:47:10,118
Have a great day.
1202
00:47:10,118 –> 00:47:10,577
Okay.