Luis Cruz: Welcome to “San Diego News Fix: The Backstory.” Every week we give you a behind-the-scenes look at our industry and what’s happening in our newsroom. This week we’re giving you a preview of a story we’re working on about the California Innocence Project, a law school clinic founded in 1999 at the California Western School of Law, dedicated to freeing the innocent, training law students and changing California laws to improve the justice system.
ing us today to tell us more about the California Innocence Project and the case that inspired this effort is the director and co-founder of the California Innocence Project, professor Justin Brooks. Also with us is Union-Tribune public safety editor Dana Littlefield, managing editor Lora Cicalo, and we begin with editor and publisher Jeff Light.
Jeff Light: Justin, thank you for coming on with us. I think the work that you do at the Innocence Project is remarkable, and this story, in particular, I think is really compelling. Why don’t we start off with this story of the 190th exoneration through this Innocence Project work – a woman who was on death row, and I think I’ll just turn it over to you to explain that story and the basic work of the Innocence Project, and then we can get into some of the journalistic issues around it.
Justin Brooks: This story is a story about Marilyn Mulero. Twenty-seven years ago I read about her case in a newspaper. The article said that she was sentenced to death on a plea bargain, and that sort of shocked me. I thought, how could somebody be sentenced to death on a plea bargain? At the time, I was teaching law school in Michigan, and so I set up a meeting with her on death row. She was scheduled to be executed, and I said, “How did you end up here on a plea bargain without having a trial?” And she told me her lawyer said it was her best option, which was sort of stunning to hear, because I can’t think of a worse option. Then she told the remarkable thing: She said, “And I’m innocent.” So, I went back to the law school where I was teaching and I said exactly that to my class: “There’s a young woman on death row (she was only 21 when she was sentenced) and she said she’s innocent. Who wants to help me out on this case?” And four young law students raise their hands.
That night they came over to my house and we sat around the kitchen table and we started looking through the police reports and researching the case. Basically, that night the Innocence Project was born for me. That was how it started. And that’s how it’s still going – working with law students to exonerate people. That weekend we went to Chicago. I piled them all into my Jeep – a Jeep, by the way, I’m still driving, which gives a little insight into public interest work. We went to the crime scene, and when I stood where the one eyewitness said she saw the shooting, I realized it was impossible to see what she said she saw. She totally fabricated it, because it was more than 400 feet away and this crime had happened in the middle of the night and there was no lighting. It was just impossible to see what she said she saw. And that led me on this 27-year odyssey that only ended last week.
Jeff Light: So, just give us a little insight: 27 years – 27 years – that is grinding very slowly, indeed. What takes so long?
Justin Brooks: In her case, the first thing was to get her death sentence reversed. So I went up to the Illinois Supreme Court with some other lawyers and argued that her lawyer had done such an incompetent job with the sentencing – he had no experience handling a case like this, he didn’t bring in any mitigation, it was basically a 15-minute process in front of the judge, who was a former homicide detective, where everybody sort of got together and decided to put her to death. And one of the things that happened in that hearing was the prosecution actually argued that because her lawyer filed a motion to suppress her confession, that should be used as grounds for execution because it shows she has no remorse. So, we made the argument that you can’t use the assertion of a constitutional right – a motion to suppress a confession for Miranda violations – as a grounds for executing someone. And fortunately, 7-0, the Illinois Supreme Court agreed, and then the case went back to a new jury, but they would not allow me to get her guilty plea withdrawn.
So, now the jury was just faced with either life or death for her. I argued for life – I brought in a lot of mitigation – and, fortunately, the jury went that way. They sentenced her to life, and then started another 23, 24 years of litigation trying to get that plea withdrawn. I went up through all the state courts. I went through federal court. I petitioned the United States Supreme Court. I even put a petition in front of the United Nations to have them declare the Chicago criminal justice system in violation of international human rights for the way they’re handling cases – a ruling, by the way, they still have not made, which everyone says I should not be surprised by. Then I had four separate clemency hearings in front of the Illinois governor. And while this was all going on, I moved to California and started the California Innocence Project in 1999. And the sad thing was, I knew every time I walk someone out of prison – and now I’ve walked 36 people out of prison in California – it wasn’t Marilyn, and she was the one who inspired me to start this work. It was always painful thinking, “She’s still there. She’s still there. And this case is just so wrong on every level.”
Then during COVID I finally got a call from the governor’s office – after all these petitions – that they’re going to release her. This was two years ago. And I can’t even describe to you the feeling. I literally couldn’t talk. I carried the weight of that case and talked about it to every single person who would ever listen to me, and every presentation I did started with that. It was so much a part of who I am that it was almost like I didn’t know who I was if I wasn’t fighting to get her out of prison. So I got her out. And then the last two years have been working to finally clear her record, to finally get her declared innocent. And when I started this case – I’m glad I didn’t know this fact – but no woman in the history of the United States had ever been exonerated from death row. Zero. And when it finally happened last week – where, finally, the district attorney said, “We agree. She’s innocent. We’re fully dismissing charges and exonerating her,” she became the third woman (because two other cases happened in the time I’ve been working on this case) ever exonerated from death row and the 190th American to walk off death row and be exonerated.
Jeff Light: Amazing. It’s an amazing story. Dana Littlefield, you and I have talked about this off and on over the years. It seems to me difficult to really capture the enormity of this story, of what’s going on, the stakes in people’s lives, the stakes to the whole infrastructure of justice. As a journalist and as the leader of our public safety team – and someone with a lot of experience in covering courts – tell me a little bit about your thoughts about all of this. I know you are a great advocate of coverage of the Innocence Project, so just share with me, as a journalist, the kinds of issues that you face in this work.
Dana Littlefield: For one thing, one of the reasons why this information is so interesting to me – I mean, the story on its face is interesting, but it’s interesting now that she’s been exonerated – what about all those 27 years when Justin was toiling in the courts trying to make something happen for Marilyn Mulero? These numbers seem so huge now – 190 – that seems like a big number, but not when you put it in context, when you put it in context of all the people who are on death row. I don’t know how many of those people are or might be innocent, but I guess what I struggle with is conveying to readers how incredibly rare this is. Even though 190 is a big number – or seems to be a big number – how incredibly rare it is to have someone go through this process, and for Justin and people who do the kind of work that Justin does, to have a success like this. So, there’s that part of it.
The other part for me, from a journalist’s perspective, is all the years where – at least in our eyes – seemingly nothing is happening. Nothing that looks on its face like a news story. Forgive me, I don’t in any way intended to be glib here, but how often can we write a story that says she’s still in prison? Or nothing is happening or it looks like nothing is happening or this very esoteric stuff is happening behind the scenes in a courtroom that your average reader – smart and educated and accomplished and experienced though they may be – might not simply be interested in the machinations that happen as a case like this moves through the courts for 27 years. So, what do you do with that? What do you do with that to keep people interested, to keep people locked and engaged in her story in particular, and the greater story of what happens with the work that is done on these Innocence (Project) cases?
I am interested in the work, but I tend to like the kind of boring processes that happen, not so much behind the scenes – because we’re talking about open court – but I’m very much interested in those turns of the screw. Not everyone is. So it’s a matter of figuring out – from a journalistic perspective – when is the right time to pounce on this story? What is the right way, the accurate way, to frame this next step in the process until we get to that point when someone like Justin is walking a person like Marilyn Mulero out of prison?
Jeff Light: Just turning back to you, Justin, the numbers – 190 seems like a significant number for sure and a remarkable achievement when you think of 190 lives – but what’s the incarcerated population of the U.S.?
Justin Brooks: We’re in the millions. But it’s 190 from death row. We have more than 3,000 exonerations of people serving life sentences, people serving long sentences. We hit that number this year. But I think what’s more important than just the raw numbers is this: A study was done a few years ago that came up with that 4 percent of the people sentenced to death in the United States were ultimately released after a finding of innocence. That number itself is a large number. But if you think about it for a second, first of all, those 4 percent are the lucky ones, the ones where some crazy lawyer decided to take their case on pro bono, they were able to find evidence that could exonerate them, they were able to file a petition in front of a judge who took time out of their normal schedule to have a habeas hearing, and then they had a judge that had the political will to exonerate someone, fully knowing that they could lose the of the prosecutor’s office, the police officers’ union, the correctional officers union in their next judicial election. So, there’s such a gauntlet you have to ride to get out, and on top of that, by the way, those are the people in prison who haven’t given up completely and just not even tried to get out because so many have suffered mental health issues, abuse, death, and just giving up hope.
If in the death penalty cases the number’s that high – those are the cases that get the most scrutiny, the most lawyers, the most media attention, everybody’s focused on death cases; you know, when there’s a death case in San Diego, we hear about it – how many mistakes are made in simple possession cases, simple assault cases, just the typical run-of-the-mill cases that nobody’s paying much attention to, and they’re not getting the best lawyers, and they’re not getting all the process? Death penalty cases get automatic review by the state Supreme Court. There’s no other type of case that gets that kind of review. So, if were making mistakes at this level in death cases – and if this is the tip of the iceberg of the number of innocent people – the numbers are far more shocking than any of us want to accept, by the way, including me. I literally have in my head a plan if I’m ever wrongfully incarcerated because I’m so convinced it can happen to anybody.
Jeff Light: Well, you’re going to where my next question was, which is, what is your sense? Obviously, greater than 4 percent. As journalists, by the way, it’s routine for us to get calls – throughout our career – from prison. Letters, calls, “Hey, I’m innocent.” And over the course of time, I think as a journalist, you you develop the attitude that A) they’re probably not innocent, or B) it’s futile. So, a lot of that work is not being done. And these cases like what we’re talking about today, really, really shake my confidence in the system. Like, wait a minute, what do you mean innocent? And then you listen to those facts. What does that imply for the whole system? The very perspective you were just talking about. So, for you, what would be your ballpark of that rate of error? How many of those incarcerated people really are innocent?
Justin Brooks:
I don’t have a number either. I know it’s greater than that number, 4 percent. I wouldn’t be surprised if it’s 10 percent. I wouldn’t be surprised if it was 15 percent. But there’s no way to really know. And I think we all become a little cynical about it. Reporters get those letters; obviously, I get thousands of letters a year. I turn down most people who apply, not because I think they’re guilty, but because I don’t think I can do anything about it. There are whole classes of cases that are impossible to do anything about. For example, drug cases. Drug cases only have two elements: Did you have drugs? And did you know you had drugs? And I presume that, in most cases brought in the United States, they have some drugs to introduce into court or they’re not going to get a conviction. And then it’s up to the jury to decide “Did you know the cocaine was in that backpack in the car you were driving?” And if the jury believes that, there’s nothing I can do about that. I’ve only won one drug case in my career, and it was in Nicaragua, and it was an American kid down there who was in the Peace Corps. And the reason we won it was because he didn’t have any drugs. He was just charged with drugs without drugs. Self-defense cases are pretty much impossible to win because the theory is it was self-defense and if the jury thought it was – or wasn’t – there’s nothing you can do about those cases. So, that’s what makes it so difficult to pin down these exact numbers.
But in of reporters and their role in it, I think that’s a fascinating topic, because we really have worked hand in hand with the media over the last several decades in the innocence movement, because part of our mission is to get the general public to understand these problems and, as Dana said, the big story comes at the release – you get the great pictures, the person’s walking out with their hand in the air, everybody feels the loss. At this point, people’s cynicism drops away, because now a court has declared them innocent. It’s not a random letter you got, but it’s an actual judge that declared this is an innocent person. And those stories have changed the criminal justice system. We see the death penalty declining. We see not only a reduction in the number of states who have it, we see states like California that have suspended it. We see jurors less likely to give it and it’s been those stories that have done that.
In the Marilyn Mulero case, there’s a fascinating media part of that case, in that 10 years ago, when my client Brian Banks was trying out for NFL teams after he was exonerated, a Sports Illustrated reporter was interviewing him, and then she turns to me and says, “Why did you get involved in this work to start with?” And I tell her the story of Marilyn Mulero, and I tell her the story of this detective, Detective Guevara, who kept her up all night and created a fabricated confession. Then several years later, I get an email from her that says, “After you told me that story, I moved to Chicago and I started investigating Detective Guevara; I started working for another news outlet and tomorrow this story is going to be published.” And since she published that story, there have been dozens of exonerations of Detective Guevara’s work. There has been more than $100 million in civil suits settled by the city of Chicago. And all of it stemmed from this one reporter taking an interest beyond my case and looking more at, OK, let’s take a look at this Detective Guevara and what he’s up to. It literally has changed criminal justice in Chicago forever, and that story has been all around the United States so that people look closer at these cases. So, I can’t overstate the importance in the media. Otherwise, we are just working in the dark and we fix one case and move on to the next.
Jeff Light: Lora Cicalo, I guess the last question I’ll leave to you. What’s your perspective on the tenor of criminal justice coverage and how it has changed? My perception is there is movement in how media approaches issues of criminal justice. What do you see from your seat as managing editor?
Lora Cicalo: I do see a lot of change, certainly in the in the span of my career, and even just in the past few years. I think Dana can speak to this as well. I’m really struck by the synergy between the kind of work that Justin’s doing and our journalistic values – the pursuit of the truth kind of underlies both of our work, and I think there has been a tendency over time – certainly early in my career, I can feeling as though there was kind of an assumption that the authorities would be providing facts, and maybe there was not as much skepticism as we would like to have thought from various corners of journalism. I think there has been a real sea change in not only accepting what authorities provide as facts and information, but the rigor with which public safety reporters work and really examining the social justice perspective, as well as the criminal justice perspective. I think, especially in the post-George Floyd era, there has been a real difference in the kind of reporting and the focus of the reporting, and I think that’s healthy for not only news organizations but for democracy.
Jeff Light: Yes, very well said. I think the journalistic community deserves credit, although I would say the body-camera movement deserves more credit in demonstrating that you cannot take at face value the word of any of the people that we write about it in this arena. The stakes couldn’t be higher where lies or misinformation or wrong assumptions or implicit bias or all of those things together work to literally take away people’s lives and freedoms. So, it’s a really important role that Justin’s group has and that journalists have as well. Luis, I’ll throw it back to you. Justin, thank you so much for the work you do and for sharing today.
Justin Brooks: My pleasure.
