A (2:52)

Yeah. So Matt and I have known each other for a little while now, and Matt is a fairly regular contributor to the Bulletin. He's someone we bring on for legal commentary. Listeners might know Matt's voice from an episode of the Bulletin that we did prior to the election last year, where we did three perspectives on the election. I think Matt's one of the more thoughtful people on law and legal issues generally. He also has a real, just thoughtful theological mind as well. He wrote a fantastic book that came out, I believe, early last year called Reforming Criminal Justice A Christian Proposal. That's worth considering.

B (3:27)

Yeah. Another look behind the scenes. I think the day you interviewed him in D.C. was the first day you and I worked together on site to story map this very show.

A (3:36)

That's right.

B (3:37)

So it's a big full circle. Well, this conversation was so great. I mean, I know I could have talked to them for hours and hours. I love this topic. I know that I tend to skew towards the plight of a defendant and their fair representation. Always really good for me to step back and look at the system more holistically, which I think both of them really helped with. But Chris especially, and to start from the beginning of an investigation and looked through the verdict and even beyond, and we get into a lot of that.

A (4:05)

Yeah, we did. It was. It was a great conversation. And I think what you'll hear from both of them is they're both people who are very concerned about the truth.

B (4:12)

Yeah.

A (4:12)

Very concerned about our legal system operating well, functioning well. And as you'll hear in the conversation, we kind of bookend the whole conversation with the West Memphis three story. And that's kind of appropriate to the podcast because I think in many ways, the whole inspiration for this podcast for me came from looking at that story. And, you know, that's a case where I think in this conversation in particular, you'll hear some really important insights as to kind of what went wrong there and why.

B (4:43)

Yeah. So again, we want to thank Matt and Chris for their time. We know it's limited and valuable, and with that, let's get into it.

A (4:50)

So, Chris, we interviewed you for the show, and then because of the nature of how the show kind of evolved and where things went, we didn't get to use some of that stuff. So I'm super glad you were able to come back with us and make a little more time for us here. We're here today to have a conversation about the justice system and how do we think about the justice system, particularly in the light of the story that we just told? Before we get into that, what I'd love to ask each of you is if there's one thing people should know about kind of who you are coming into the conversation, what would you want that to be? Why don't you kick us off here, Chris?

C (5:27)

Been a Prosecutor for over 15 years. What motivates me is as a prosecutor, we're to seek justice. As a public defender, you zealously represent your client, which is good. That's what you should do. But as a prosecutor, ethically, we defend the interest of everybody and the rights of the defendant. We have certain rules require us to disclose unfavorable discovery and really work hard to make sure that we do a good job of not putting an innocent person in jail. So really, I love, quite frankly, wearing that white hat, right? I love the sense of justice that God's blessed me with to be able to do my job and to try to make sure we don't charge people who shouldn't be charged, but also defend those who are victimized and lose status in our society.

A (6:23)

Matt?

D (6:24)

Yeah, I've been a Christian, I say, as long as I can remember. I grew up in a Christian home. There's not a time that I don't remember not believing. I have been a lawyer for 29 years. I've been both a prosecutor and a defense lawyer. I care a lot about both prosecuting crime, meaning protecting our fellow citizens from people who commit crime, but also making sure that we're prosecuting the people who actually committed the crime. I found both sides of the courtroom, so to speak, to be rewarding, hopefully serving the same end, which is making sure we have the right people.

B (7:02)

Something I think about all the time. My interest in the criminal justice system came very honestly through the genre of true crime. And I almost wish I'd thought about law a lot earlier in my career. I feel very, very interested in it and buy it. And I always think about the John Quincy Adams quote when talking about trials, is that essentially, may the best story win. And I feel like this is such an interesting opportunity to have both of you on at the moment, opposing sides of the system, although maybe you disagree that they're adversarial, how can the best story win? Do you agree with that? If both parties are pursuing truth and justice, and from their point of view, that's the motivating factor, that's what's informing the investigation and the defense or the prosecution where does the story then? How can it be a winning battle? And again, feel free to disagree with that whole notion. But that's something I'm just really curious about to hear from both of you.

D (8:11)

So when I train young lawyers, whether at my firm or over the course of my career, I always tell them that if you think you're going to win a case because you showed up with some case site from a case book, you don't understand what we do here. You win a case by convincing the fact finder, whether the judge or the jury, that the story. And I don't mean that pejoratively, the narrative that you have is one that puts your client on the side of right. And then you back into it with. And then I got some cases to back that up. So I absolutely believe the notion that what I'm in the business of doing is telling a story. Again, I don't mean that pejoratively. I mean a narrative. That's how people think about life. And I also describe what we do like this. My opponent will come in and say, here's these three dots. They make a triangle. And I'm like, well, but if I add one dot, maybe it's a square. And if I add two dots, maybe it's a pentagon. And if I add a dozen dots, it might be a circle. And so we're all looking at these data points, these pieces of evidence, and trying to figure out, is it a triangle, is it a square, is it a pentagon, or is it a circle? And I view my job as sort of helping to fill out the factual story in a way that persuades the jury ultimately that this is a circle and not a triangle like my opponent's trying to say. I think people tend to think of lawyers as they come in and particularly defense lawyers, and they just try to lie to the jury. There's no one who's any good at this, who's doing that on either side. What you're doing is trying to provide context that you hope persuades the jury that your view of what happened here is better than. Than the other side's view. It's not coming in and lying. That's not gonna work. And honestly, the rules prohibit that. And as I said, nobody serious is doing that.

B (10:10)

Anyway, thanks, I'd love to hear. Chris, your take.

C (10:14)

So John Quincy Adams, his father was a great attorney who represented the. In 17, I think it was 1772, represented the British sojourns who were involved in what was quote unquote by Paul Revere, a massacre Sam Adams published that in reality, it was probably closer to young soldiers being attacked by a mob firing. And ultimately they were acquitted. They were acquitted against a hostile population, the peers that were the jury in that case. And he did it through storytelling, which I totally agree with what Matt said. It is. We're human, right? And so when you're talking to 12 jurors or six jurors, that's how we learn. I mean, if you look at Christ, how did he say he told stories? The stories last with you, right? You can give me a speech, maybe I remember it, maybe not, probably not, quite frankly, but a story I can grasp onto, I can put it in relation. But here's what I found as a prosecutor I've got to bring it to, right? And so if you look at the West Memphis three, what they did is hysteria. They hooked into that theme of hysteria. We don't. I don't want to do that. I truly don't, because that doesn't serve my purposes generally. It'll backfire on me because I've also got to bring the evidence. And how we present evidence is totally different now, right? We have DNA, we have documentary evidence. We have cell phones now, too, which is just tremendous for a prosecutor, quite frankly, because that tells a story of your life. Because if I get your cell phone, I'm going to know all about your life, Rebecca, Mike's, Matt's. Not mine, though. No, I'm joking. We'll all know it. You'll know my sports teams, you'll know my friends, you'll know everything about me. So you have to take all that, take it to the elements, whatever the crime is, and then tell a story by producing the evidence. I. I always classify it as painting a picture for the jury because I've only got about three days to paint a picture and I gotta fill it in. And Matt's job, if he's on the other side, is just throw paint on it. And that's good, right? So he's disrupting that story, and then he'll have a counterfactual. That's how people learn, though. That's how people grow, and that's how we all are. We're talking to people.

A (12:38)

Hey, Mike Kosper here. If you're looking for a podcast that features inspiring conversations with theologians, ministers and pastors, then I recommend Adding the Signal award winning show, no Small Endeavor to your podcast queue. Each episode, host Lee C. Camp sits down with special guests like the queen of Christian pop, Amy Grant, and pastor and theologian Tish Harrison Warren. To ask what it means to live a life worth living. Follow no small endeavor on Apple Podcasts, Spotify or wherever you get your podcasts.

B (13:10)

This gets to actually exactly what I find so interesting that you're agreeing on this and yet both of you are going to come at a case differently. But since we're talking about the West Memphis Three and you brought it up, Chris, I think we'd all agree that the investigation, law enforcement in this case maybe tried to connect dots that were not ready to be connected or couldn't be connected, but they were forcing it. And I'd really like to know how you both view that. And this was, I was thinking this might come up later, but I'll just ask now. What do you think should happen afterwards? Let's say we can verify once this new DNA is tested in the West Memphis Three case and these men get exonerated, should there be consequences in a case of a wrongful conviction for the state in your opinions?

D (13:56)

What I'd like to see is kind of a look back on what went wrong here, right? In what organization in our society, when a mistake is made, a serious mistake is made, do we not do some type of look back? And what's remarkable to me about exoneration cases is there's essentially never this sort of look back that says what went wrong here with an effort to try to learn it. You know, there's been academics and others who have written books or articles trying to look back and piece this together. And there's some good ones out there. But what I'd like to see more of is whether at a state attorney general level, ideally, maybe at the DA's level where the mistake happened, but maybe some outside group like a state attorney general comes in and says, listen, we're not here to throw stones. We're here to try to fix this going forward. And if we can look back at these situations and say here's where the mistakes were made, here's where even well intentioned people went wrong, you can implement some reform. But there's essentially no mechanism that exists for any type of retrospective in any of these types of cases. And that's troubling to me.

C (15:10)

I believe there is repercussions that can be done. And this case occurred about 30 years ago, roughly now, I think. Is that about right? About 30 years. So probably all the actors are gone, right? The judge is gone, the prosecutor's gone. They may still linger on, but they're real core. The detectives are probably no longer detectives. So Rebecca, you proposed there's, there's a few things you proposed. One is malicious introduction of evidence, which would mean it was fraudulent or done in a way that was intentional to mislead the investigation. That's criminal. I've charged people with that. That's obstruction of justice. That's tampering with evidence, charged officers with that. And that is what should happen if that was proved right. And I want to be clear, this is not saying that that happened or not happened. Because in any case, as Matt will agree, 30 year look back for me is impossible. I wasn't there. I just read articles on it. But again, if a detective or officer does tamper with evidence to get a conclusion and we discover that they should be charged criminally, that's what they should be. They should be charged criminally for obstruction. They should be charged for evidence and perjury. So we do have that ability to look back. Now. What more often than not happens though is that's not the case. There are mistakes made because they generally are good women and men. They want to do the right thing. Generally you have bad actors everywhere, but generally they wouldn't do a good job. And it's mistakes. The key in it won't go too far into this, but we have what's called covenant theology, right? And that's really a lot of where our government comes from, this idea that God created a covenant with us. If you do X, I'll do Y. If you do this A, I'll do B. And so we're as Christians and as a world, though, we develop that I'm a sinner, right? And I'm not omnipotent, I'm very limited in my knowledge. So we create this covenant to keep each other in check, right? So you have power, I have power. We have to cooperate because if I have full power or you have full power, I don't think it's going to be good for me, right. If I have no redress. So that's the situation that a lot of people feel in the criminal justice. There's no redress. Well, there's no perfect redress. How can you, you know, if a person is thrown in jail for 20 years and exonerated, I mean, you can't give 20 years back. There's no way. Of course they can do civil suits that does happen where there'll be a settlement of money to try to replicate that, but you can't get back time. So the key is to try to do your best to make sure that that doesn't happen. And that's why we have Matt as an adversary, would you say? Right. His adversarial system. Matt's trying to get evidence to defeat my evidence. And 12 people that have a high standard beyond a reasonable doubt and then an appeal and then a motion to correct. And it does fail sometimes. Majority, I would argue it doesn't. Vast majority. It doesn't, but it does. And how do you go back? You try to do a better job, you said, in procedures that would limit that ability. And one thing they've done recently in the state of Indiana is we have what's called Brady Giglio. It's always been around. The U.S. supreme Court says if there's something expulsitary for the defense, I am required to give that over. I cannot suppress that. And I think there were allegations in the West Memphis Three that certain things were maybe not given over totally. That's a big deal. And if that happens, it's an ethical violation. But it's also a mistrial. Right. And the trial is thrown out and maybe double jeopardy attaches. So we are required to turn that over, which is good. We should. We should not be able to hold on to anything that could possibly show their innocence. And so that's a procedure in the state of Indiana that's recently been for officers, especially if we find that they've lied in other cases or whatever, then we have to produce a list, right, A list of officers. Now, whether it gets into court, that'll be a hearing, but they're on this list. And that's part of that procedure Rebecca was talking about. We want to make sure that, okay, it could be exculpatory. If they did it once, maybe they'll do it again. So we try. But Matt's right. I mean, you can't, you know, you can't get back 20 years, you can't get back 10 years, you can't get back one year. So we try our best to make sure that that doesn't happen in the first place.

D (19:31)

Yeah, and when I talk about look backs, I'm specifically talking about the situations with mistakes. Right. I mean, yeah, we absolutely should be prosecuting people who do it intentionally, but I'm even willing to accept that a lot of this is mistakes. And it's a look back. What I'm proposing, not to throw stones, but to say, what can we learn from this? What went wrong here? What was the mistake that was made that we can learn from so that in the future this doesn't happen? And I would say it's that type of look back to try to have a Lessons learned when mistakes are made that I think the system doesn't do really in any type of systematic way. And that's a shame because there's opportunities for learning here that doesn't require throwing stones at, as Chris points out, good people who are trying to do right and are fallible.

A (20:20)

We began this podcast talking about the West Memphis Three, like the show as a whole, talking about this story, because to me it sort of perfectly exemplifies what was so scary and problematic about the Satanic panic as a whole. You had this story out in the culture that had people genuinely terrified that there was a Satanist next door waiting to, you know, molest, torture and murder their children. And then one of the most unimaginably horrific things in the world, you find three young boys tortured and murdered in this like essentially like drainage ditch. So what happens? And Chris, this is something you've talked about and I think maybe, maybe I'll throw it to you here in a sec. What happens is they show up at that crime scene and they've got this big cultural panic story in their minds and they begin an investigation going, well, it must be this kind of a thing. And they go and look for suspects that fit the mold of a bunch of preconceived notions. Chris, could you talk a bit about the prosecution side, the detective side? How is that supposed to go? And how did having that story set this thing on the wrong foot from the very beginning?

C (21:38)

So we have the Louisville Homicide School. It's a national school where law enforcement officers come to learn about. It's a week long course where they learn about homicide investigations. I've also attended National District Attorney association has a homicide school for prosecutors. It's a week long school. But the mistake that you will make and they teach you not to make is when you walk into a scene, your assumption is wrong. Don't go in with that assumption. If, let's say someone murdered their wife, wife is dead, who's the primary suspect? The husband. Right. I mean it is. And statistically that would be the right incorrect thing to look at. Because statistically it's a boyfriend, let's say, or someone known that commits that murder generally. Right. That's what you're going to go in. But you have to fight that. And they're taught to fight that because you have to go where the evidence leads. And so what happens in hysteria, and you see it throughout history, Salem wish trials, like I was talking about the Boston Massacre, you had the anarchy scare in the late 18th century, you had the communist scare of the 50, when you get this hysteria, you lose logic and reason. And I think that happened a little bit there, obviously. But that's what a good detective trains themselves not to do that, to go where the evidence leads, even if the evidence doesn't lead where you want it to. And that's the hard part, because we want a conclusion, right? We don't like to have something without a conclusion, but there are many times we don't have that conclusion. And if we don't get to a conclusion, we can't make one up. But that's human nature that you have to fight against. Now, the thing you're trying to work on is you have multiple detectives working the case. And one thing I always tell my detectives is the Israelis adopted this because in the. I think it was the seven day Yom Kippur war. Yom Kippur war. They had just won a huge battle. And so their whole general staff said, we are unbeatable. And so they let their defenses down and everyone group thing took in and they're like, hey, we don't have to worry. Well, Yom Kippur happened and they were almost defeated. And so now in every meeting they have of that importance. One person, one person is always to take the other side. One person is to always fight whatever conclusion they're coming to. And I tell my detectives the same thing. When, where will we do a roundtable before we charge? I designate someone. Their job is to dispute whatever we're doing. Because you can't let group think happen. Because it's easy, right? All of us, it's easier to all agree, but you can't. You have to attack every angle. And so basically we have someone be the defense attorney and to poke holes in the argument or evidence, forcing us to understand. And a lot of times it'll change our view of something.

A (24:26)

So much of the story that we told was about the way sort of groupthink took over on all kinds of stuff. I'll ask you one more question here, Chris, and then I'll get back in here. The other element of all this that I think sometimes gets lost, right, because it's easy to get outraged by what happens in one of these false accusation stories, and obviously rightly so. But one of the things that I think you have described, Chris, in our conversations that I don't know that sort of the average person thinks about that much is the pressure that law enforcement feels and prosecutors feel from the general public. And again, just to stick with the West Memphis Three case, you have three dead Children horrifically murdered. What's it like to be sitting in the prosecutor's office when the public is outraged about something like this?

C (25:16)

The human emotion is pressure, right? It's the public has elected you and that's good, Right? You want that election. The public chooses their servants and that's a counterbalance, obviously, and that's a good accountability. So they hire you basically to solve these crimes and to prosecute these cases. And so there's a driving force, right? There's this driving force to come to some conclusion. We have some big cases that we're involved in, and there is that desire, but that really comes down to the whole system working to prevent you from going off the rails. And it's easy. If one person has all the power, all the say, so, it's a disaster waiting to happen. You have to have accountability all over because you have to have those people that stop you and to say, is this where we're going? Do we have the evidence? Is this Right. And that's what I would say is the most important factor in all that. Because you can have all the pressure in the world. That's fine. Pressure is good. Sometimes it makes us perform better. But ultimately, coming to a conclusion that isn't there is a mistake and wrong. And so that's why you want all those people, the detectives have to have me before I'll charge. They can't charge. They can only investigate. So it has to go through me. I have to have people around me who will say, chris, that's not right. That's not where we are. The evidence doesn't support that. But then we have a public defender or a hired attorney who's going to come on the other side and during that process is going to attack our theory of the case. And then you have the judges who are ultimately make decisions within hearings, and then ultimately you have 12 people in the public who are going to be questioned by both sides to see if they have biases. I know it's a long winded answer.

A (26:58)

No, no, I get it's helpful. Yeah.

C (27:00)

I can't just walk in and say, I want this result. I'm going to charge this person. I have to have all those things around me to counteract that pressure, that whatever I might feel to always make sure that I'm checking myself to make sure that my perception is correct by listening to other people around me, even people I don't agree with.

A (27:19)

Right. Matt, what are we missing in this conversation?

D (27:22)

You know what struck me when I watched that video? The West Memphis 3 West of Memphis documentary was that moment where they've arrested the three boys. And I think they were walking out of the courthouse maybe to the car, and you just see that crowd out there jeering at those boys. It really struck me. It sort of harkens back to so what drove lynchings, Right. Sort of what Chris said. There's pressure from the community that you want this crime solved. And it's understandable that they want it solved. Something terrible has happened and they've elected people to protect them, to be the sword of the state, to use Paul's words on their behalf. And yet that can turn into this fervor that overcomes rationality. It puts pressure that even when well meaning prosecutors are trying to work through the evidence, they're going to feel this pressure in the background that we've got to solve this crime. And you see, I mean, just the vividness in that movie, in that documentary clip of that crowd out there jeering at these men. Sort of you realize the type of pressure that puts on the police and prosecutors to solve the crime, the type of pressure it puts on the judge, the type of pressure it puts on the jurors, particularly in a small community where everybody's gonna know who those jurors are. They're gonna have seen that news clip and seen the community's reaction. And so I think that that's an example of how even the best intentioned people, ethical people, are gonna feel a pressure. This sort of rush to judgment from the community. That's not something new. It's been around probably since the beginning of time and certainly since the beginning of our country. And that's really one of the things that jumped out at me is the degree to which the community pressure and fervor can distort the decision making process. Right. By the time these kids get to trial, the community's already decided. And now it's going to require a heck of a judge and a pretty tough jury to say, yeah, there's not enough here because everybody's been whipped into a frenzy.

B (29:39)

I'd like to talk about perception a little bit more, especially from Matt. I'd like to hear how has perception changed over the decades? Like wrongful convictions now feels like something we say a lot. And most people can get on board that it's a thing that happens, whereas I think that's changed a little bit. But many people still think if someone's in prison, they probably belong there and they should be there. How has that changed? Has it? And how do you sort of combat that mentality in your work. And even just as a labor, like dealing with average people in conversations.

D (30:14)

There's a famous quote by a federal judge in, I think, the 1920s in a written opinion where he refers to essentially the fiction of the wrongly convicted man. It was just inconceivable that that would happen. Because our system has so many protections. People treated it as theoretical, but not real. And really, since the advent of forensic DNA technology in the late 1980s, we now know it's a scientific fact that it happens. And this has actually provided some ability to go back and say, what are the common features of these cases that led us down this road? And so I think the public's acceptance, the legal system's acceptance that mistakes happen has changed dramatically. It went from being believed to be a fiction to recognized to be a reality. You can go on the University of Michigan website where they track the exonerations. Nearly 4,000 since the advent of forensic DNA technology. Not all of them as a result of DNA. But the fact is, DNA opened people's minds to the fact that this occurs. And people's minds having been open to that, now courts are willing to find that wrongful convictions have happened even on something less than DNA evidence. So DNA changed the game. I remember when I was in law school, it was during the O.J. trial, and I would come home every day after law school and turn it on while I was studying. Cause we're three hours behind. I was on the east coast there on the West Coast. I watched a lot of that trial. And that was really kind of the coming out, in some ways, of DNA into the public consciousness. Now. It was diminished in people's minds during that trial for various reasons. But you realize DNA had only come on the scene, I think, in 1989, August of 1989. And so only four or five years before that trial. But that has really revolutionized the way people think about even the possibility of a wrongful conviction.

B (32:21)

I want to follow up on the idea of these look backs, Matt, that you talked about. And I'd like to hear what you both think on this. And Chris, we talked about this a little bit, I think, in your office, but I think that's what the idea, correct me if I'm wrong, is behind a Conviction Integrity Unit. I'd love to hear, Matt, what you think of those and why there's resistance and why some counties and departments don't have them. It just seems like, I mean, I'm sure it's financial, but could that be a really active and viable solution? To the problem.

D (32:54)

Advocates on both sides can go too far, right? So you can get some prosecutor's offices where it's sort of a hang em high mentality and they don't hear reasonable arguments about innocence. It's certainly the case in some places in the country. But you can have the same problem on these conviction integrity units. You can have activists become decision makers and activists as decision makers are bad decision makers on either side. There are times where those offices decisions become a place where activists are making the decision. And so I have already seen some instances in which someone's quote unquote exonerated and you kind of start digging into it and you're like eh, I'm not sure that's actually an exoneration in the same way that some convictions, you're like eh, not sure that was a real conviction. And so I think the danger is allowing activists, activists are good in pushing for conviction integrity units. I don't think activists are good for running conviction integrity units because they will see the world where everybody is wrongly convicted. And so activists play an important role in life in general. But once the decision is made that we need to do what the activists on both sides ultimately came to a conclusion we need to do, it's probably not a great idea to let the activists then staff the entity that's going to be stood up in the process. And I think that at times you have these reform minded DAs who play an important role as activists, but you then need sort of level headed non activists actually staffing those groups. And I think there is understandably concerned that that's not actually how it plays out. That at times you end up with activists making the decisions and they're over exonerating in a way that is itself unjust.

A (34:54)

Another version of that is like the progressive prosecutor movement where you have this law enforcement philosophy that says that we're just not going to enforce the law in certain cases. Would that be fair? I mean, am I being too dramatic about the nature of the progressive prosecution movement? Chris?

C (35:10)

Well, I don't, you know, Matt did a great job there. I just want to commend him. I think he did a great job of talking about an activist as opposed to a public servant. Right? An activist, whether it's a conservative, liberal actress, progressive activist, whatever that might be, has an agenda. That's a problem if you go in with an agenda. If you go in with this popularity contest. There are certain DAs, progressive especially that have been elected recently on that notion. I'm going to go in there, I'm Going to prove my new way of doing things of. Of maybe not prosecuting certain elements of crime is going to work. What happens when you go in with that mentality and don't do what we're talking about? Look back, you have to prove it. And now there have been allegations that certain evidence was suppressed and that people were forced not to talk. I've heard these allegations. I'm not going to say they're true or untrue, I don't know. But again, if you go in with an agenda and you see some of these people who are getting elected make these announcements that if I'm elected, I'm going to prosecute X this person, totally unethical and totally wrong. Because again, you're dealing with popularity there. And I think we saw it. And I'm not saying I support or not support this, but you'll see it in political figures a lot now, right? We're going to get this person. If you elect me, it's a dangerous road. You can't go in with an activist mindset. You have to go in with an ethical principal concept of what we're going to try to achieve. Nor should you go in saying, I'm going to prosecute and convict everybody for everything and anybody. And don't worry, I'll get them all. It's not healthy either. I'll uphold the law. I'm going to seek the truth as best I can. I'm going to hold all parties accountable, including myself. And we're going to then charge appropriately. That's our mantra here. And so you have to do that because. Because once you start getting out those bounds. Matt, hit it. You then become an activist. You're activist. You should resign. Because that's not the role of a prosecutor. It's just not. It shouldn't be. And so the progressive activists, I wouldn't say triggered, but I think it's a slap in the face of our democratic system because I'm not in charge of passing the law. The legislature is. My job is to enforce the law. Now, within that, I have discretion, right? If I don't think someone's guilty, then I shouldn't charge them. If I think there's extenuating circumstances, I have the right to work within that. But you just say, I won't prosecute a certain crime. That's a slap in the face of the electorate. They need to elect the people they want to pass the laws they believe should be passed. And then it's my job to look at those laws and enforce those laws as Best I can because I've been elected to do that.

D (37:55)

I mean, I think that's a really important point. Going back to. We've been talking about John Adams here, right? John Adams, Massachusetts Constitution includes the phrase we are a nation of laws and not of men. What's that mean? It means what rules in the United States is not a king or any other person. And their personal idiosyncrasies, what rules, what governs is the law. But what happens when you enact an inordinate number of laws is that inevitably no prosecutor's office can prosecute them all. And so what starts to rule is men and not laws. What rules is the decision of men and women in the prosecutor's offices who are making decisions about what laws we're going to enforce. And so you can end up with a, well, we profess ourselves to be a nation of laws and not of men. We turn out to be a nation of men instead of laws. And you see that most starkly in the examples you mentioned. On the one hand saying, I'm not gonna prosecute certain crimes if I'm elected into office. You've just made yourself into a nation of men instead of laws, or I'm gonna prosecute Donald Trump if you elect me. Just to put it out there, right? We all know who we're talking about. I mean, people ran political campaigns on you elect me and I'll chase him. And you saw where that ended Yesterday, with a $500 million verdict overturned after millions of dollars of state funds expended. And Donald Trump put through that he's no less deserving of due process, he's no more deserving of being targeted simply because to some people he's an odious figure. But we allowed ourselves as a nation, as a state of New York, to go down the road of allowing politicians to run a campaign of we're going to get that guy.

E (39:45)

This message comes from the Enneagram and Marriage podcast. Have you wanted to improve your relationship, but you're running out of ideas, time or even interest? I'm Krista Hardin, the host of the Enneagram in Marriage podcast. And I've dedicated the last two decades of my life and career on couples research. Integrating healthy faith practices with the best of marriage research and nuanced personality typing. Couples from all over the world are finding more value centered joy and bringing healthy desire, love and fun back into their bond together again, or for the very first time as they work strategically and intentionally on repatterning their love in healthy ways. Join us on Mondays or Wednesdays to listen and learn more about how your life and relationship can truly thrive together.

A (40:33)

For listeners who are not also listeners of the Bulletin, if you want to hear a further set of reflections from Matt Martins on what he thinks about Donald Trump, go back to September 2024 for the episode where Matt was our featured guest in a series where we talked about various ways Christians were voting and Matt was the third party guy. Speaking of political prosecutions, this is a little tangential to what we're talking about with the show. However, we happen to be talking on the day that the FBI raided the home of former Ambassador John Bolton. Now, John Bolton, for those who are not familiar with Bolton, Bolton is one of the most sort of, I would almost want to describe him as like the neocon lorax of Washington, D.C. one of the most aggressively conservative members of multiple administrations. The guy who was really sort of the architect of the first Trump administration's maximum pressure campaign against Iran, but then post January 6, became a critic of the former president or the current president. Trump comes into office, he revokes John Bolton's security detail. And I'm speaking for myself here, literally, the nation of Iran has a price on John Bolton's head, and his security detail was revoked largely as sort of like a political backlash from the president. And then today we hear there's this raid. Now, we don't know the details of this yet. They haven't briefed much about it. Apparently, the nature of the raid is that there's an accusation that there are classified documents in the Bolton residence and that's what they're there to search for. Lots of people are looking at this and speculating that it's politically motivated. Now, you brought up the Trump prosecutions. And again, I'm speaking for myself here. I'm one who thinks that the Mar? A Lago investigation into classified documents was a very, very valid and clear thing. And I'm one who thinks that the Alvin Bragg prosecutions were clearly politically motivated. Some of the others were not. Now we have this situation where this, this Bolton thing is, is happening. There have been calls for investigations into other political enemies and all the rest of it. How much does politics driving prosecution undermine the faith and trust of, you know, the American people in the justice system? Because I think that actually is relevant to this larger conversation when we see examples of prosecutions that were misdirected or motivated for wrong reasons or part of a hysteria or something like that. And then we also see prosecutions that are clearly driven by politics and an attempt to Sort of knock somebody out of the public sphere or punish them for their actions. What does that do to the system? And what can people do, what can prosecutors do, what can lawyers do to try and push back on that sort of thing?

C (43:41)

Well, Andrew Jackson said that when the Supreme Court ruled that he should not forcibly remove the Cherokee Nation to Oklahoma, he looked at the Supreme Court and said, well, yeah, just get your military out and try to stop me. His point in that was just a very blatant power, right? I have the power, you don't. And so what we forget a lot of the times is our judiciary has no police, our judiciary has no army. In fact, in some ways it can become the weakest of the three links. And so it rests only on kind of the faith of the public. Right? If it loses that, that's its real power, right? Its power is its reputation. Its power is, do we trust it to arbitrate our disputes? Because if we don't, then it's much easier to turn toward the force. Right? Force to comply. Force wins. And so what we see, I think, is, you see, when a political administration gets in, we've had this happen. Now, I think with the J6, there was some things, I'm not saying agree with it at all. I'm just saying that when the Democrats were in power, they put in power certain people to hear the evidence and then come to find out there was evidence that wasn't released. What happens, you lose faith in the system. It may have been valid to raid Donald Trump's house, but then people see that they don't raid Joe Biden, or maybe they make a sweetheart deal with Hunter Biden, or maybe they make a Mike Pence. I think he was also just turned everything over. Now, I'm not saying they're right or wrong, that's not my point. But the public sees a disparate, right, a disparate kind of treatment of people, and you see it on both sides, by the way, you'll see the conservatives say X and the liberals say Y. And really it's filtered through your viewpoint. But that's what we're trying to avoid in the court system, because the second you get into that, second you say, well, this prosecution was right, but this prosecution was wrong, this investigation was right. Right there you've lost faith. And once you lose faith, then you have a percentage of the population that's not going to trust what's going on. But you'll find a lot of times they trust it when their people are in power. But when the other People of power, they don't. And that's bad. It's not good. Right. John Bolton may well have nothing, may well have some. I have no idea about the case. But the instinct, the instinct based on kind of what you said, too, is this doesn't sound right. And so that's not good for our system.

D (46:14)

The trust in a democratic system is critical. Right. It's consent of the governed. And at some point, people aren't going to consent to be governed by whim or they're not going to consent to a system that jails people based on viewpoints, based on. Based on the fact that someone holds a disfavored viewpoint. And so the integrity of the prosecutorial system is critical. And unfortunately, what's happened is the discussion around this has become very tribal. The people who are screaming about the search of John Bolton's house couldn't find their voice. When Donald Trump was being pursued in some of these cases in New York, they were cheering that on. Now they're horrified at the search of John Bolton's house. They're both wrong. And if people aren't willing to cross their tribal lines and say they're both wrong, then it just becomes. It's dismissed as. You're just saying that because that's your tribe whose ox is being gored. I guess, to mix my metaphors, that ends up devolving into a system where no one has trust in it. It's viewed as. It's not a nation of laws, it's just a nation of men. It's just a nation of men grabbing the levers of power and pulling them to their advantage. And we're not actually adjudicating right and wrong. Right. That's how it begins to be perceived. And that is the beginning of the end of the rule of law. And this has a long history, Right? You can go back and say, remember, Tom delay was prosecuted ultimately in a case that totally flamed out. Rick Perry was prosecuted in a case that totally flamed out. John Edwards was prosecuted in a case that totally flamed out. You can go on. And I mean, Ted Stevens prosecuted in a case that seemed to result in a conviction and turned out to be totally bogus. I mean, over and over, these things are corrosive to our democracy. And we need people who will call balls and strikes about these abuses, regardless of whether it's your party who's being favored by it. And what we haven't had is enough people willing to say it was wrong to search Bolton's house, it was wrong to prosecute Tom delay. It was wrong to pursue Donald Trump on the hush money charge or this latest case that got overturned. We should not be using the criminal justice system to comb through people's lives to find ticky tack offenses that we can weaponize against our political enemies. That is not the rule of law.

C (48:40)

In the Soviet Union. It was said in the 1930s the NKGV, which was the predecessor KGB, said, Show me person, I'll show you the crime. That's exactly what Smat's saying, right? You can find a crime on anybody if you look hard enough and if you try hard enough and if you manipulate hard enough. No, no. Look for the crime and then figure out the person. And I know it sounds simple, but it's huge because if we start looking at the person, just like Matt said, if I say I'm going to get Kamala Harris or I'm going to get Donald Trump or I'm going to get, then I've picked out a person and I'm going to try to find a crime. And more than likely I can figure out something through manipulation or whatever. And that's, yeah, absolutely bad.

B (49:23)

So I'd like to point this back to the West Memphis three, especially this summer. I think the timing is interesting because there was multiple hearings over the last few years about whether or not they would allow retesting of the DNA in that case. And a judge, just like this month, said, yes, that would happen. Could the DNA completely rule them out to where an exoneration is possible?

D (49:47)

Well, so it's interesting. I mean, the DNA here would show that potentially another figure in the community was in some way had made contact with these three boys. I think when you watch the documentary, one of the questions is, well, sure, like he knows them, so does that mean he was involved in killing them? It wasn't clear to me, looking at this, that the DNA ultimately exonerates. Really the issue here, as I look at it, is kind of what was the evidence in the first place? You're sitting here scratching your head, saying proof beyond a reasonable doubt. Are you kidding me? And this is back to my comment earlier about sort of the fervor you see in the community when they walk out. People tend to see what they want to see, even when they don't think that's what they're doing. Right. And so if you want to see a teenage boy who is involved in Wicca and listens to Metallica and reads Stephen King as somebody who's evil enough who would commit this horrible crime, you're gonna Kind of see that even when there's no forensic evidence, no eyewitnesses know anything to that point.

A (50:56)

The other side of it is the crowd outside the courtroom, in the community. At the end of the documentary when they get the Alford pleas and they're released, it's probably a bunch of the same people. And now they're all happy that they're getting out because they now believe a different story.

D (51:13)

What's also remarkable when you watch that documentary is at the end, everybody's kinda like, they didn't do it while they're pleading guilty. And somehow like you watch the judge and he's making these comments that is acting as if justice has been done. And I wanted to like jump in there and say, what in the do you people hear yourself? You're accepting a guilty plea for someone who you seem to think is innocent. So for your listeners who don't know what an Alford plea is, there was a time in the early 70s where it was not even clear that plea bargaining was constitutional. And the Supreme Court issues this decision that says, well, it can be because the judge is going to take steps to make sure that there's a factual basis for it. And within a few years we had migrated to you can deny that you committed the crime and plead guilty, which is called the Alford plea. And what's interesting when you watch the documentary and the judge accepts the Alford plea in the case of the West Memphis Three, the judge says, I find that there's a factual basis for the plea. And you want to say, what was that factual basis? Cuz what you just heard was three men say, I didn't do it and there really wasn't any evidence to start with. So this fiction that plea bargaining is okay despite the pressure put on people to plead that it's okay because the judge is going to play this role of tapping the brakes and making sure we've got a factual basis proves itself to be a fiction. So many times it's like, you want to make an Alford plea, you're standing here denying it. You're all three denying it. We've got like a Metallica T shirt and some Wicca. Yeah, Voila. I find a factual basis for these guys to plead guilty. And yet everybody's making remarks like we know they didn't do it and hopefully the community gets some healing. And I'm like, does everybody hear themselves Here you're viewing some healing and justice being accomplished by pressuring three men to plead guilty to something they didn't do. So they can get out of jail today. It's madness how even the no. 1's sort of hearing, the system is malfunctioning here and it is. It's not functioning correctly. That exoneration is happening by people, by somebody taking a plea of guilty to something they almost certainly didn't do.

A (53:43)

Yeah. No. I literally found myself, like yelling at the tv. Am I taking crazy pills? Like, what is happening?

B (53:50)

It's really the judge. Yeah.

A (53:52)

Cause the other thing, like, you can even just see in the like, like the body language and the ethos of the judge, he's like, you know, he doesn't think they did.

D (54:01)

Right. As he's accepting a guilty plea to which he's saying the words, I find a factual basis. But you're right, his body language and his words and just the whole ethos of the event is one of, we are freeing three innocent men who we are declaring legally guilty. It's an imprudent way to design a system. Right. It doesn't. Back to my. I am sort of harping on this. The look back, right. It doesn't facilitate a careful look back when the people who are put in place by the system to do the look back are going to feel a resistance to looking back.

A (54:39)

It's a structure that, because of human nature, inherently undermines accountability.

D (54:46)

There's a conflict of interest, Right? It is. It's going to be hard to achieve accountability when the person providing the accountability is the person being held accountable. It's the same person. As they say with the two memes, it's the same person. The other thing that was interesting though, when you watch that judge, is his belief in the reliability of confessions. He was so convinced. I think he said something like, people don't confess to stuff they didn't do. We know as a scientific fact that's not true. And when I say we know as a scientific fact, of the first 250 people exonerated by DNA, 16 of them pled guilty to the crimes. So we know people confessed to things they didn't do. Of the nearly 4,000 exonerations on the University of Michigan website, the exoneration registry, about 24% are cases where people pled guilty and were subsequently exonerated. We know as a scientific fact people plead or admit to things they didn't do. And so this notion that, well, he confessed, confessions happen for lots of reasons, not all of them, and a substantial portion of them having nothing to do with whether the person actually ever did it.

B (56:08)

Yeah, I got just like, very well said. And so Helpful. I, I don't want to keep you too much longer, but could you speak to outside of the West Memphis three, how you deal with your own clients who've been wrongly accused, imprisoned and now exonerated. How do you help and guide them in that post relief effort? Like the way it's designed. I believe that a conviction should not be easy to undo. I, I understand that. But once it has been, why is it so diffic them to receive any compensation and support through the community? And I know that's changing, but what does that look like for you and what are your thoughts on it?

D (56:51)

Yeah, I mean this is a whole discussion about what's called prosecutorial immunity. I mean, people have probably heard of qualified immunity if they're at all familiar with this issue of wrongful convictions and police misconduct. That Supreme Court invented out of thin air a doctrine called qualified immunity that read the Civil Rights act, what's known as section 1983, read it as conferring on police what's called qualified immunity, which means they almost can never be sued civilly for the damage that they cause. But you think that's bad. The prosecutors have what's called absolute immunity, meaning without exception, a prosecutor cannot be sued in a federal civil rights case for even intentional misconduct in the prosecution of the case case. And so again, invented out of thin air by the Supreme Court. And I mean thin air, there's not a word in the statute that supports that. In fact, there's words that demonstrate it wasn't intended. But the court has invented protection for the very people meant to be held accountable. And it has been remedied in some states where some states have enacted state laws that provide some amount of compensation for people who've been wrongly convicted. But in many states, no. And in almost every state, even the ones that have it, it's nowhere near enough to compensate somebody for the wrong, the usually the grueling experience that they've gone through. You know, it's hard. I'm representing somebody right now in a post conviction situation where I don't have any doubt that they're innocent. I can show you as a matter of logic and just lining up a timeline, this didn't happen. What you said happened, didn't happen. But there's such a presumption in the system that once the jury has spoken, the jury has spoken. I think people think, well, you'll get that remedied on appeal. Courts of appeals don't re review the accuracy of the verdict. As a general rule. There's a small exception Something called insufficiency of the evidence, which says if there's literally no evidence from which somebody could, no reasonable person could reach this conclusion, the court can overturn it. In a lot of courts, that's treated as a very perfunctory review, but it's not a re weighing of, well, we think the jury got it wrong. We would have come out the other way. That's not what appeals do. Appeals are mostly just looking for legal errors. Evidence was admitted that shouldn't have been, or the jury was wrongly inserted, constructed, or evidence should have been suppressed that wasn't. And so there's just such a presumption that once the jury has spoken, the jury has spoken and that's determinative and that there's good reasons for that. I understand it. But that can turn into an unwillingness to acknowledge sometimes we make mistakes and you combine and you say, well, but there's other protections built in the system. The governor can grant clemency or you're like, yeah, sure, the governor, who's going to get Willie Horton if they do that, right? I mean, who's going to be that person who's going to risk their political career for some poor faceless person who they don't even know and have real reason to care about? So it's hard once it's near impossible once the jury has spoken to change the outcome. And I think that even the fact that there's been 4,000 exonerations since 1989, maybe that speaks to there aren't a lot of errors because 4000 since 1989 on one hand isn't a lot. On the other hand you're like, maybe it suggests to us there's a lot more there errors we're making that you can't just definitively prove. What I have argued for is let's not put all the burden of fixing the errors on the back end. Let's prevent the errors on the front end. And we know this is back to my opening comments about look backs. We know to a high degree of certainty what causes wrongful convictions. And this West Memphis Three case is like a stew of the things that we know caused them. We know that false confessions occur and we have a pretty good idea of what causes false confessions. We know that bogus scientific evidence causes wrongful convictions. There is much of what is pawned off on unsuspecting jurors as forensic science is voodoo. And that's not my view. That's a view of an expert panel commissioned by Congress and a study done through The National Academy Academy of Sciences. The knife mark evidence in this case turned out to probably just be snapping turtles that were nibbling at the bodies when the boys were in the water. And then jailhouse snitches. I heard him say it when he was in jail. We know how unreliable those are because there's massive incentive for these people to wrongly say somebody confessed to something they didn't, so they themselves can free themselves. You've got this whole stew of the things we know cause wrongful cond convictions coming together in this case. And all of it made more difficult by the fact that we don't adequately fund defense counsel in the United States. That's a massive problem. Been numerous studies on that. While we promise people the right to counsel, we don't actually deliver on that as a nation. Providing a meaningful and vigorous defense. And that's not a knock on the people who do that work. That's the reality of they can't handle the number of cases they're given to handle. And so they can't provide the vigorous defense that's necessary. And so you put all that stew together. We know what causes wrongful convictions. We just don't have the political will to do something about it.

A (62:50)

Thank you to Matt. Thank you to Chris. I feel like this was very insightful and also very discouraging because part of the reason I wanted to do this show is I wanted people to hear Chris and hear where he's coming from and make sure that we're not telling a story in this podcast that's sort of villainizing the people that are trying to keep us safe. But I wanted them to hear from Matt as well. And Matt, you've seen kind of both sides of all of this, and so I think there's. It just gives us a lot to think about, that's for sure. So thank you, Matt.

D (63:22)

Thanks for having me.

A (63:25)

Devil in the Deep Blue Sea is a production of Christianity Today. It's hosted and written by Mike Kosper, produced by Mike Kosper and Rebecca Sebastian, with production assistance from Dawn Adams. Sound design and mix engineering by TJ Hester. Sound design, animation and video by Steve Scheidler. Graphic design Nim Ben Rubin, Eric Petrick and Mike Kosper are executive producers of CT Media Podcasts. Matt Stevens is our senior producer. If you enjoyed this episode, please leave us a rating and review wherever you listen. It'll help more people find the show. Thanks for listening.

C (64:25)

It.