← Duologue with Leslie Heaney
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- [00:05]
Leslie
Today, it's estimated that approximately 3% of incarcerated people in the US are innocent. Thankfully, there are Innocence Projects across the country who are dedicated to investigating and litigating these claims of innocence. Without organizations like these Innocence Projects, these innocent people would have no path toward exoneration. In this episode, I sit down with Jason Gishner. He's the executive director of the Tennessee Innocence Project. I had the pleasure of hearing from Jason and about his organization at a fundraiser here in Nashville for the Innocence Project. It is just an incredible, incredible organization. Since its founding in 2019, the Tennessee Innocence Project has won nine exonerations, which represent more than 230 years collectively of time served for crimes that these people did not commit. To put it kind of in perspective, the Tennessee Innocence Project's nine exonerations that I just mentioned represent 25% of all known exonerations in the history of Tennessee. And they've been able to achieve this all in the past five years. In our conversation, Jason and I talk about the factors that lead to innocent people being convicted. We discuss specific cases of their clients. Like, one of their clients that we talk about is a man by the name of Ricky Lee Webb who served a 47 year sentence for a murder that he did not commit. It's the fourth longest sentence served by an innocent person in the history of the US So Jason and I talk about Ricky Lee Webb and other clients of theirs, and we talk about how the Innocence Project in Tennessee does its work. What new laws and policies could be put into effect in both Tennessee and nationwide to help prevent innocent people from. From being put in jail. You know, the Tennessee Innocence Project is such an important organization as all of the Innocence Projects nationwide are. As Jason and I talked about in our conversation, this is an apolitical issue. You know, no one wants innocent people behind bars. I find the stories of their clients so inspiring and moving. I find the work that they do so important, and I'm so grateful to this organization for doing this work in Tennessee. And as I mentioned, there are these organizations in most every state in the country doing this same work. It's really important work, and it's work that I hope you all will be interested in learning more about and perhaps supporting this incredible work, either in Tennessee or an Innocence Project near you. With that, here's Jason Gishner.
- [02:47]
Jason
Jason, it's so nice to see you. Thank you so much for taking the time to come in to talk to me today. I know you know this, obviously, but for listeners, I was fortunate enough to be invited by a friend to go to an Innocence Project event and was just so moved by the incredible work that you're doing. And I just wanted to share, you know, with my listeners and more broadly about the Innocence Project and how important it is. And so, anyway, I'm very happy to have you.
- [03:16]
Jason Gishner
Well, thank you. I'm thrilled to be here with you.
- [03:18]
Jason
So would you be able to sort of level set for listeners to kind of explain generally how many Americans are. And I don't know how they measure these stats, but would you say are wrongfully convicted nationwide?
- [03:34]
Jason Gishner
Yeah, for a lot of reasons. It's actually a really hard number to figure out. There are plenty of people that are wrongfully convicted that we don't ever hear their stories. You know, they don't get exonerated. They serve their sentence, and we just never hear from them again. So it's a really hard statistic to figure out. What we've been doing is since 1989, there's an organization called the National Registry of Exonerations, and they've been tracking exonerations nationally. And when I say exonerations, I'm talking about actual innocence cases. You know, people who were convicted of something they didn't do. And the number changes all the time. You know, right now, the number is north of 3,600 people that have been exonerated nationwide, and that represents more than 30,000 years served in prison for crimes that those folks didn't commit.
- [04:29]
Jason
It's incredible when you put it in terms of that and think about it and actually an actual time and how much time people's lives have been lost. But you brought up the point that, you know, it's really hard to track because you're only getting. You're only hearing from. Or the innocence projects around the country are only hearing from people that are being proactive about their particular case.
- [04:51]
Jason Gishner
Yeah, well, and I mean, there's a couple reasons why I think it is really hard to know exactly how many innocent people are locked up. I mean, one, exonerations take a really long time. You know, on average, exonerations take 10 to 13 years to pull off. So the cases you end up hearing about are the murders, the aggravated robberies, the cases where people are serving life sentences or they're on death row, the people who are convicted of lower level offenses, there's plenty of innocent people there, too. We just don't hear about them. So there's lots of innocent people that are convicted of drug crimes or, you know, breaking into a shed, and they get a one or a two year sentence, and they serve that sentence and they get out. And there aren't a lot of people that, after they've done the time and their sentence is over, are going to spend their time, their resources, their energy going back to try and deal with a wrongful conviction on a lower level offense to clear their name. So there's a lot of those. You know, the other thing that happens is that there are a lot of economic pressures that exist within the criminal justice system where innocent people plead guilty to stuff they didn't do. You know, the majority of folks who are prosecuted in this country are prosecuted on drug crimes. And in Tennessee, for instance, if you're caught with over half a gram of cocaine, which is a small amount of drugs, it's presumed to be for resale. That's a B felony. It carries eight to 30 years in prison. So if you're caught with a small amount of drugs in your car, but you're charged with a B felony, you, even if it's not your drugs, if you can't post your bond and you're sitting in custody and you get an offer to plead to misdemeanor probation and you walk out of the door, a lot of people make the decision to do that. And that's something that happens, really all the time. And because there are all of these people that are being leveraged, by the way our system works to plead guilty to stuff that they didn't do, it's impossible to know how many people are wrongfully convicted.
- [06:47]
Jason
That's incredible to me. I never thought about that decision of accepting a plea deal being based upon kind of the economic decision of not being able to post. When you say bond, kind of as bail.
- [06:57]
Jason Gishner
Right.
- [06:58]
Jason
For people that aren't familiar with that term, Tennessee's had an innocence Project for how long?
- [07:05]
Jason Gishner
So the Tennessee Innocence project started in 2019. We are our own standalone nonprofit law firm. There are innocence organizations all over the country. And in most states, not all of them, but most of them have some sort of an innocence organization. Sometimes it's a standalone nonprofit firm like us. Sometimes they operate out of a law school. Sometimes they're part of a statewide public defender system. But Tennessee did not have a statewide organization until 2019. There was a clinic that operated out of the University of Tennessee in Knoxville for a period of time, but that had stopped. And there just weren't any boots on the ground in Tennessee doing the work until 2019 when the Tennessee Innocence Project formed.
- [07:48]
Jason
So what happened at that time? And how do. How did people that were incarcerated learn about you would their lawyer say, you know, listen, I can't keep working on this case, but because of economic reasons or whatever else, but there's a new Innocence Project and you should appeal to them or.
- [08:04]
Jason Gishner
Yeah, so most of the time, the people who get to us aren't represented by anybody. You know, our typical bread and butter client has been in 10, 15, 20, 30 years. And it's been a very long time since they were constitutionally entitled to have appointed counsel. So unless they can afford an attorney, and frankly, most of these folks, if they could afford an attorney, they spent that money a long time ago. So they're on their own trying to navigate this really complicated, difficult appellate system in Tennessee. So they're just kind of out there. So the way people typically get to us is they reach out to themselves by. Reach out to us themselves by sending us a letter or their family contacts us. Sometimes the original lawyer who handled the case reaches out to us and says, hey, this case has never sat well with me. You know, it's kind of kept me up at night because I think this person is innocent. And we learn about cases that way. It was definitely a gradual build at first. Right. I mean, I didn't come along to the project until 2021, and we sort of grown like wildfire in the last few years. But, you know, it took some time for the word to get out that, you know, we had boots on the ground doing the work. And what has happened now, because we've had exonerations all over the state and we represent clients in various prisons all over the state, is that most people know. So, you know, now we get between 150 and 200 applications every year from people asking for help.
- [09:34]
Jason
And out of that 150 to 200 applications, how many are you able to take on based on, you know, the staff and resources that you have?
- [09:42]
Jason Gishner
Yeah. So we have five full time attorneys litigating cases across Tennessee. We have an office in Nashville, we have an office in Memphis, but we're everywhere, Right. I mean, we have attorneys in Chattanooga in court this morning. So the thing you need to keep in mind about these cases is that they're usually huge. Right. Think about cold case investigations. People understand those. So we're doing these from the defense side of things. So that means we're dealing with evidence that has been lost or misplaced or mishandled. Witnesses who don't remember things or have passed away.
- [10:14]
Jason
Right.
- [10:16]
Jason Gishner
Documents that could fill up this room in terms of everything that has happened on a case over the last 20 years. A lot of times these cases have a scientific component to them. So you have forensic science in 1998 that might have said one thing that says something totally different now. So these cases are big and long and complicated and can take years to. To litigate. So, you know, on average, we work about 15 cases at a time. We have other cases that aren't in active litigation that we're investigating or that we're working up. We have various stages of where cases are in the queue for when we can get to them.
- [10:58]
Jason
So what does it look like? So you have a family member or their former counsel or the incarcerated person themselves reach out to you, and they just kind of give you. These are the basic facts of the case. But then you mentioned the investigation piece. What kind of investigation do you need to do to determine whether it's a case that makes sense for the Innocence Project to take it on?
- [11:20]
Jason Gishner
Yeah. So there's steps to the process. So initially, when we hear from somebody, we'll send them the first part of our application. And there's really just threshold things we're looking for at this point. Is this even the kind of case that would qualify for us to help this person? Okay, is it a Tennessee case? Are they saying that they're actually innocent? Right. Sometimes people will reach out to us with what I would refer to as just a manifest injustice case. Right. I was over sentenced. I was illegally pulled over. Important issues, just not the kind of issues that we do. So that's not the kind of case we would handle. Once you get past this threshold inquiry of the person saying, I didn't do it, then that's when we start to look into things. So initially, what we'll do is we'll review the record. So we'll go back and we'll read the trial transcripts. We'll go back and we'll read all of the appellate opinions. If we still think that there's merit to the case, we'll start getting other documents through public records requests. We'll look at police files, we'll look at DA files. We'll look at school records. We'll look at jail records. We'll do all of that even before we go and meet the person who has submitted an application to us. And that's really intentional why we do that. We are very aware of the fact that when we go to visit people at prison and let them know that we're looking into their case, that raises a level of hope that can be pretty dangerous. The last thing we ever want to do is have Someone think that we're coming along and we're gonna be able to help them, and they're gonna get out of prison, and we don't know that we're gonna be able to do that. I mean, we don't ever know that we're gonna be able to do that. Every one of these cases is climbing a mountain, but particularly at the early stage, when we're still at the beginning of the investigation, we certainly don't know if we're gonna be able to help somebody or not. And you know what happens every time? It doesn't matter if we go and talk to somebody, even if we say to them, you know, look, we're just looking into your case. We don't know if we're gonna be able to represent you. We don't know if you have an avenue to get back into court. Without fail, when we leave, they're going to call their mom, they're going to say, hey, the Tennessee Innocence Project just came and talked to me, and I'm going to get out. So we try to be really careful about that, because hope is a pretty dangerous thing, particularly for somebody who is serving a life sentence or has been in for 30 years. So we don't actually go and visit with the person until we have done a pretty thorough review of the record. And at a minimum, we feel confident that, all right, we need to open up a full investigation. And now we need to start having conversations about what that looks like. And at that point, we start interviewing witnesses, we start talking to experts. You know, sometimes we do forensic testing. It might be DNA testing, it might be fingerprint testing, it might be ballistics testing. And we're building and building and building. It takes anywhere from six to nine months, usually, for us to fully evaluate a case before we agree to take somebody on as a client. But when we agree to take somebody on as a client, we've done a lot of the legwork already. If we've signed you up, it means that, one, we believe that you're innocent, right? And two, we think there's a path that we can get back into court and do something about it. Now, it's still going to be a fight. It's still going to be a battle to. To be successful. But we've answered those two questions. We believe that this person is innocent, and we believe that there's a legal means to try to help them.
- [14:33]
Jason
You and I had this conversation. We spoke briefly before, and I did not realize this, that you mentioned. You go and you do all this investigation and you look at all the records and you're able to get the DA's file. I didn't realize that in criminal cases the DA is not compelled to produce all of the evidence that they have unless they're presenting that evidence at trial. Would you explain that?
- [14:59]
Jason Gishner
Yeah. So it's a really weird concept, but people who have been convicted of crimes that are totally finished actually have access to more information than people who are presumed innocent who are charged with the crime. So the discovery rules and the rules of criminal procedure in Tennessee limit what sides are obligated to turn over to each other. And the prosecution is not required to turn over their entire file. There's certain things they have to turn over, like Brady material, which is exculpatory evidence, you know, evidence that, that the person might be innocent. And there's other things, statements by your client. You know, there's a variety of things they're required to turn over, but they're not required to turn over police reports, other things from the investigation. And the problem with that is that the decision is being made whether to turn over the material by the prosecuting agency. Right?
- [15:48]
Jason
Yeah. I just want to ask you that because when you said that the exculpatory evidence, aren't they. They're determining what they think is exculpatory. Meaning the prosecutor.
- [15:55]
Jason Gishner
Right, that's right.
- [15:56]
Jason
So it's subjective. So they could just say, I'm not going to. I don't really think that that other witness that was at the scene, we don't need to share that interview. Right. Because they're deciding whether or not they think it's relevant. But the defense attorney might think it's relevant.
- [16:08]
Jason Gishner
Well, not only they might think it's relevant. What happens in a lot of our cases is that we go back all of these years later and at this point we can get all of these records, we get police reports, we can get DA files, and we find things that should have been turned over. I mean, I'll give you an example. We had a case in Nashville where a woman was convicted of a rape and murder of a four year old girl that she didn't commit along with somebody else. And one of the arguments that was made by the prosecution in the case is that she destroyed critical evidence that this, this little girl was raped on a bed and our client had destroyed or had washed the bed sheet, destroying all of the forensic evidence of the rape. And that was argued to the jury at trial. And, and you know, her position was, that's not true, I didn't do that. But it was just her word against what the state was saying. So she's convicted 30 years ago. We, we go and do a public records request in 2021. We get the file and there's a police report in the file about the bed sheet. When they came to the house to collect the evidence and it wasn't washed, it was there with everything else. And not only did they not collect the evidence, but then the prosecutor came into court and lied about what the evidence said. And nobody knew about it. Nobody knew about it until 30 years later when we did a public records request.
- [17:30]
Jason
It's incredible.
- [17:30]
Jason Gishner
And that was one of the major pieces of evidence that resulted in her conviction.
- [17:34]
Jason
That's incredible. So that wasn't a case where the prosecutor missed it or it was something that was clearly there. Either is or it isn't.
- [17:44]
Jason Gishner
I don't know if he missed it or if this was an intentional misstatement. I don't know the answer to that. What I know for a fact is what he told the jury was untrue. And when we got the police file, we found the report that proved it was untrue.
- [17:57]
Jason
Okay, so you are, you've decided to take someone on, right? You've done all the investigation. Then what are the, what's the process? What are the procedures? Who do you go to first? You're not, you're not making, are you making an appeal of sorts, are you, are you making, are you trying to reopen the case? What is the sort of legal procedure behind it?
- [18:17]
Jason Gishner
So there's essentially two ways that we can get back into court for somebody who's making an innocence claim all of these years later. So the person has already gone through the process. They've either entered a guilty plea or they've had a trial and they were found guilty. They've been convicted, they've gone through all the appeals. They've typically gone through something called post conviction after that, which is where they can raise constitutional issues like ineffective assistance of counsel or brady violations, those kinds of things. By the time people get to us, the ship has sailed on almost all of these issues. Right. I mean, we can't raise a Fourth Amendment issue 20 years later that somebody was illegally pulled over when their car was searched. All of that stuff is out. The only thing that we can raise to get back into court are claims of innocence. And there's two different statutes that cover claims based on new scientific evidence or new non scientific evidence. And both of them have all sorts of quirks to them in terms of how you get back into court. I mean, it is. It is very much threading the needle, getting these cases back into the courthouse. The process is not easy, it is not efficient, and frankly, the system is not equipped for this situation. Right. I mean, we don't have good laws on the books to deal with innocent folks 20 years later who've been sitting around for something they didn't do to get back into court and litigate their case. So what we've ended up with in Tennessee is sort of a patchwork of case law and a couple different statutes that we operate under. And it's like navigating a minefield in terms of statute of limitations issues, procedural issues. And we have to spend a lot of time fighting about procedural stuff before we ever even get to the substance of the case, which can be very frustrating. Right. I mean, from a legal perspective, you might have all of this great evidence that somebody is innocent and that somebody else committed the crime, and the court doesn't even give you a hearing because on some procedural ground, they say you're not entitled to come back to court. So that happens sometimes. And that's really hard when that happens. You know, we have a case out of Memphis on appeal right now where there's just overwhelming evidence that our client is innocent and somebody else committed a murder and our client wasn't even given a hearing, which is just mind blowing. That's unfortunately, the nature of what we deal with every day. I tell people all the time, it is way easier to convict an innocent person than it is to unconvict an innocent person.
- [20:45]
Jason
So you mentioned, it's sort of. You said new fact and the new scientific evidence. So with the example that you use with the bedsheet. Right. You see that in the. In the police. The police file.
- [20:54]
Jason Gishner
Yeah.
- [20:55]
Jason
That you would use as sort of the new fact. And then the new scientific evidence, would that be, as you mentioned, like, you'll order new DNA testing or new ballistics testing that would sort of follow under that bucket.
- [21:06]
Jason Gishner
It's usually never one thing what you find in these cases. It's almost always a perfect storm of things that went wrong. You don't ever find a wrongful conviction where there's just one piece of withheld evidence.
- [21:17]
Jason
Right.
- [21:17]
Jason Gishner
So in that particular case, yeah, there's the withheld evidence, there's the inappropriate argument by the prosecutor. But the crux of that case was actually a medical case. The two people in that case were convicted on a medical examiner's opinion on the timing of when the person was killed. That was just objectively wrong. So we brought that case back into court as a scientific case and we brought in really good doctors to testify about what the injuries were, when they happened and how these two people couldn't have done it. So that was a case like most cases are that involve both scientific issues and non scientific issues. But the other thing that's crazy about the law in Tennessee right now, and I think this is the best way I know how to explain when I say we sort of have this inefficient patchwork that's not made for innocence cases, is that you can come back to court with new scientific evidence of innocence whether you were convicted of trial or whether you entered a guilty plea. You can't come back into court with new non scientific evidence of innocence if you entered a guilty plea. And let me give you an example of what I mean by that. That. So somebody is charged with robbing a convenience store and the evidence against them is nothing other than the person behind the counter who picked this person out of a lineup and said, right, yeah, this is the guy who did it. Well, the guy who was charged with the crime was at home asleep when this went down. Doesn't have a good alibi other than I was at home by myself asleep. You know, that's just my word of that person probably can't testify because maybe they have something prior on their record that the jury is going to hear about. That's a problem. So they're charged with an aggravated robbery based on this one person's accusation, which is coming off of an ID made in a lineup. And they're facing 15 years in prison. And the prosecutor makes them an offer and says, well, if you'll take a five year sentence, we'll reduce this to a robbery from an aggravated robbery and you can take that deal. This person's been around the block before. They understand the risks and they feel like, look, if I go to trial, I'm probably going to get convicted. So they make the decision to take the five year plea even though they didn't do it. And they go off and they're serving their five, five year sentence. So four years into that sentence, they're through with their appeals, they're through with their post conviction. Someone comes forward and says, you know, I was actually at the convenience store when that robbery went down and I have the whole thing on video on my iPhone and, and they have a video of somebody else committing the crime. This guy who is still sitting in prison for something he didn't do has no way to get back into court. There is no procedural mechanism under Tennessee law at this point for this person to get back in court and show the video of somebody else committing the crime, which is baffling. Yeah, right. It makes no sense. And I don't think anybody set out to create law in Tennessee that would prevent a person from coming in, in that situation. But that's where we've come to.
- [24:18]
Jason
Right?
- [24:19]
Jason Gishner
Because the statutes that we have on the books, the case law that we have on the books, it's not meant for this situation. Right. It's meant for reviewing cases on appeal to make sure that people got a fair shake, that they got fair process. You know, it is not meant for innocent folks that are sitting in prison for stuff that they didn't do.
- [24:41]
Jason
Yeah, it's really interesting. I know that one of the things that the Innocence Project does is work to kind of lobby around policy. Right. In Tennessee. And I want to talk to you more about that later because that just seems to me like a no brainer. I mean, who wouldn't want there to be a path forward if there is a circumstance like that to allow someone that pled guilty? Because as you pointed out earlier, people often do that because of economic reasons or because they're, you know, they're. The plea deal just, they're just weighing kind of right. The, the risks. Right. Involved and decide, you know what? I'd rather just plead a three years and plead guilty than have the possibility of having to serve 15.
- [25:21]
Jason Gishner
Right. And you're exactly right. Who wouldn't want to fix that?
- [25:24]
Jason
Right.
- [25:25]
Jason Gishner
I mean, we're like one of the three things, I think that are still left in this country where we can say we're really apolitical, we're right. You know, nobody wants innocent people in prison. You know, this, this isn't a left or right issue to me. Innocence is different. Right. I mean, it's different than a lot of other things that we deal with in the criminal legal system. Because I think we can all agree that nobody wants an innocent person to be in prison.
- [25:46]
Jason
If the system's broken, then everyone loses faith or should be losing faith in the system. And that's an example of an easy thing, you know, to fix that. As you said, everybody can kind of, everyone can get behind or I can't imagine anyone not wanting to get behind it. You mentioned that they take about six to nine months to investigate. Once you start the process, once you get that hearing, how long does it usually take on average from, from that first step until someone is able to walk out the jail?
- [26:16]
Jason Gishner
You Know, it can really vary because the investigations sometimes can go on for a while. Science cases usually can move faster than non scientific cases. So what I mean by that is if you've got somebody that was sent to prison on a bad medical opinion and you come in with the correct medical opinion and good doctors, you know, you can turn around that information quickly. Like that medical case I was telling you about before. We turn that case around in about a year and a half, which is fast for an innocence case. Other cases that might involve a lot of witnesses, say it's a false confession case or a bad identification case where you don't have DNA evidence proving that the person didn't do it. What you have is 10 different witnesses that when you hear all of their stories, it becomes clear that this person is innocent. Those kind of fact intensive investigations can take longer because you've got to track down people that are all over the place, that might not be around anymore, that might not remember everything. The other thing that can be particularly tricky, even cases where there's forensic evidence that we can get objective answers from, is that we can't always find the evidence. It's almost county to county in Tennessee how evidence is stored after somebody is convicted. And some places do it well and others don't. Some places lose evidence, some places don't properly store evidence. So, you know, we might come across a gun. You know, we have a case where there was a gun that was the murder weapon. We know it was the murder weapon from the ballistics testing. And nobody had ever done DNA testing on the gun. So we did DNA testing on the gun. The problem is that the gun was sitting in a box with other pieces of evidence for years that lots of people kept handling. So what ends up happening is when you do the DNA testing, you get multiple profiles that are jumbled and mixed into each other and you can still get good information from it. You know, we were still able to exclude our client from the profiles that were generated from, from the gun. But it's a much more difficult process than if it had just been stored correctly where you're hoping you can just get a clean profile of the person who committed the murder.
- [28:29]
Jason
I was just thinking that because of DNA, right? If you had a convict, say rape conviction from 30 years ago or now, the testing is so different that there would be able to go back, one would think easily determine whether it was that person or not from the new DNA technology. But if it's not stored correctly, then that can all go right out the window.
- [28:50]
Jason Gishner
And we've seen that happen, right? I mean, we had somebody come in asking us for help who pled guilty on a rape case many years ago that was essentially a he said, she said situation. And there had never been DNA testing done on the rape kit. And he came in and said, look, I didn't do it. I pled guilty because she was gonna say I did it and I was gonna say I didn't. And I thought I was gonna lose, so I took a deal. He said, but I didn't do it. Well, you go back and do DNA testing and that'll answer the question. And look, when he struck me as a genuine person. But I don't know at that point if he's innocent or not. The only way I'm going to know that is if I can go back and we can do forensic testing and see what the DNA tells us. So I told him, well, yeah, let's see if it's still around. Let's go do the testing and we'll see where that gets us. And we went to go do it and found out that the rape kit had been destroyed years ago. So, I mean, there's just nothing he can do at that point.
- [29:42]
Jason
So in terms of your budget, you know, I just was thinking of this as you mentioned it. You know, you're doing ballistics testing, you're doing DNA testing. What does that cost? It's gotta be pretty costly to be doing all this investigation and various testing.
- [29:56]
Jason Gishner
It can be. It can vary depending on the type of testing you're doing and the type of case. It also depends on the agency that's gonna do the testing. So, for instance, if the TBI is going to do the DNA testing, then the Tennessee Bureau of Investigations, then they might do the testing without us having to pay for it. The problem is that the TBI is limited into the types of testing they can do. And, you know, as you were saying before, we know a lot more about DNA than we knew 20 years ago, and we're learning more about DNA all the time. So there's all sorts of DNA testing that we can do now that we used to not be able to do that can answer questions for us. And the tbi, like a lot of other state labs, are limited in terms of the type of testing they can do. So if we have a case that requires a certain type of DNA testing that's outside of the capacity of what they're able to do, we've got to go to a private lab to have them do the testing. And, yeah, that can be really Expensive. That can be thousands and thousands of dollars anytime you want to do any testing.
- [30:59]
Jason
I didn't realize that there was a there that the Tennessee Bureau of Investigations would actually help you with that testing. I was thinking you would have to only go to private labs, but.
- [31:07]
Jason Gishner
So it's not a matter of us just asking them to do it.
- [31:09]
Jason
Yeah.
- [31:09]
Jason Gishner
Although I will say that the Tennessee Bureau of Investigations, the people who do their DNA testing, the scientists there, are very good work with, but we have to get court orders to do these things.
- [31:18]
Jason
I see.
- [31:19]
Jason Gishner
So we go back into court, we file a motion for forensic testing. Tennessee does have a good DNA law and a good fingerprint law that does allow us to go back and investigate and conduct forensic testing. Depending on what lab you're going to use. Kind of depends on what the situation is with the evidence a lot of times, because I was what I was saying before, evidence isn't stored properly. We're going into it knowing that it's been handled by a lot of people. So we're probably going to get a mixed sample.
- [31:47]
Jason
Right.
- [31:48]
Jason Gishner
It's probably going to be beyond some of the testing that the TBI has the capability to do right now. We're going to need to go to a lab that, for instance, could block out all of the male contributors and will only see the results from the female contributors, things like that.
- [32:03]
Jason
So, you know, when I went and I was. I mentioned I was fortunate enough to go to that event, there were several of your clients in the audience whose stories were shared with the people that were attending. And I was overwhelmed with sadness about the experience that these people had, you know, having gone through a criminal justice system, but also so grateful to your organization for helping these people and having them, you know, have an opportunity to live their lives outside of prison. But there were people there, you know, who had been in prison. One of your clients had been in.
- [32:38]
Jason Gishner
Prison for 50, almost 47 years.
- [32:41]
Jason
Yeah.
- [32:42]
Jason Gishner
Can you tell us about fourth longest sentence in United States history? Yeah.
- [32:45]
Jason
Tell us about his story and how you were able to get him exonerated and kind of what life is like for him now.
- [32:53]
Jason Gishner
Yeah, that's Ricky Lee Webb. And Ricky's case was out of Gibson County, Tennessee, and one of the younger lawyers in our office, Connor Weber, just took to Ricky's case right away and was passionate about fighting for Ricky. And Ricky was convicted in 1978. It was a terrible case. You know, it was a murder case where somebody had broken into a woman's house and she was sexually assaulted and murdered. And her. Her her baby was left in the house. And pretty quickly the police had a suspect who they thought was involved because it was somebody who had been involved in another sexual assault in the area just a week before. So they went and tracked this guy down and he pretty much confessed to everything and took them to see the murder weapon and they had their guy right away. And several days into this process, when this guy realizes what he's facing, he starts telling a different story than he's ever told before. And he starts telling the police that, well, I didn't do this by myself, I did it with somebody else. And that's when he implicates our client, Ricky Lee Webb. And Ricky denies having anything to do with this. And it is.
- [34:03]
Jason
Did Ricky even know him?
- [34:04]
Jason Gishner
Yeah, he did. This is a small town. These guys were actually related, but they're all super young. I mean it. They're all like kids in their late teens at this point. And you know, this happened in a tiny, tiny community where everybody knows everybody else. And he points the finger at Ricky and says Ricky's the one who did it. And Ricky's adamant that he didn't do it. And the case ends up going to trial with no physical evidence tying Ricky to the crime. There is none. And essentially just this guy's word saying, I did it and I did it with Ricky. And this guy gets a deal, he gets a lower level sentence. Ricky ends up getting a life sentence. And that guy serves a sentence, gets out, eventually passes away of, you know, of cancer, but served a sentence and lived his life on the outside. And Ricky's been in, you know, 40, almost 47 years. So when we start digging into this case, we find out three pretty big things from going back and getting all of the files from the original investigation, files that would not have been turned over back when this original investigation happened. And we eventually learned that they weren't even turned over to the district attorney. Some of these files, these were files primarily from the TBI who were the lead on the investigation in this case. And we learned several things. So one thing that we learned is, is that this guy who pointed the finger at Ricky told multiple stories that didn't add up, some that had Ricky's not in any of these stories and he's just telling stories over and over and over again. And none of those stories were turned over. So he was never cross examined about any of these stories because the defense never saw them. The next thing we learn is that so the only other piece of evidence they have against Ricky is this woman who testified at trial who knew both of them. And she said, earlier that afternoon, I saw the two of them walking together, heading in this direction. So the state argued that, look, they were together going towards this house when it happened. So she comes back to court and testifies at Ricky's hearing earlier this year, and she says, I never saw that. I told the police I never saw that. They. They told me if I didn't say that that's what happened. They were going to take my kids away. She said, but none of it's true. She said, I never saw those two guys together.
- [36:32]
Jason
So you get these files, and then you're. You just because that's part of your investigation process. You. You contacted her and said, I want to speak with you, want to hear about your testimony. And she says this to your young lawyer in your office. She says, you know, that's investigating this.
- [36:45]
Jason Gishner
We had several people. Yeah, we had a couple people go out and talk to her and met with her in person.
- [36:49]
Jason
Incredible that must have been, hearing that, you know, I can't imagine what that, you know, felt like hearing that firsthand from her being someone who's involved in this case.
- [36:59]
Jason Gishner
Yeah. So that was. So that was a big deal when that happened. And then the other thing that happened is that when we got the TBI file, what we found in there was all of this terrible racial stuff. I mean, all the investigating officers calling people the N word, being fixated on the fact that our client maybe at one point had dated a white girl. Just really, really egregious racial stuff. And when we went back to court on this case, the original prosecutor on the case, who actually testified at the hearing and said, I didn't see any of these things. These are obviously exculpatory, I would have turned it over. He had the absolute right to have all of this information. And the judge heard all of this and has known that Ricky has consistently said, I didn't do this, and said, this is unjust. This can't stand. And Ricky's conviction was overturned. He walked out. And the day he got out of prison, we were talking before we started filming about. I'm always fascinated by what people want for the first thing to eat when they get out.
- [38:07]
Jason
What was Ricky's.
- [38:08]
Jason Gishner
Ricky wanted a bucket of Kentucky Fried Chicken.
- [38:09]
Jason
Ricky was the Kentucky fried.
- [38:11]
Jason Gishner
So we have all these photos of our team. Team outside of the jail when Ricky gets out after being in for 46 years holding a bucket of Kentucky Fried.
- [38:19]
Jason
Chicken, you know, and we were also talking about, before we started, about how you've been in prison for so long, and how much has changed in that 46 years besides, like, everyone in your family looking different, your neighborhood looking different, just technology in the world changing so dramatically. Like the. The re entry for people coming out, you know, having been in for that long particularly, it's just gotta be a really, really almost insurmountable learning curve.
- [38:47]
Jason Gishner
Yeah, it's a lot. I mean, it is a lot for anybody walking out of prison, whether they're guilty or innocent, to reintegrate back into society when the world has changed so much. The other thing that happens too, unfortunately, that we see a lot, is that our clients come out of prison oftentimes with pretty bad health problems. I think that is a combination of, you don't get great health care in prison, but also you've been sitting there all of this time. Not only are you in prison, which is a horrible place to be, but you're there knowing you shouldn't be there for something you didn't do. And the toll that that takes on people is pretty incredible. You know, we had a client who was exonerated after serving 30 years, and he was. He was all business. Every time we ever met with him on the inside, he only wanted to talk about his case. He spent 30 years knowing every detail, and it was a complicated case. It was an arson case with all this fire science. And he knew every detail about everything. And, you know, he was wound so tight just working on his case, and he got out and he had to learn how to let all of that go. And it was almost like he was a different person. But, you know, tragically, that all took a toll on him. And, you know, he died in his sleep from a heart attack, you know, just four and a half months after he got out. And, you know, I can't prove that, but I very much believe that's because he had just spent three decades, you know, so tightly wound, trying to get back to his daughter, trying, you know, trying to clear his name, trying to prove that he didn't kill this person in a fire, which he didn't. And I, you know, and that's not. His story is. Is. Is the worst because he passed away. But it's not unusual that people get out and they have all sorts of health problems and, well, between, as you.
- [40:47]
Jason
Mentioned, just the emotional and psychological toll that being in prison has, even if you're not innocent. Right. Let alone those people that are innocent, and then the diet and lifestyle and everything else. But so for people who, like Ricky, who do get out, you know, One of the things that I also found shocking and learning more about the law in Tennessee is that I, you know, my first question was in hearing their stories when I was at that event was what kind of compensation does the state giving these people for, you know, losing. Losing that much of their. Of their lives? But also we talked about just how. How difficult it is to reintegrate. I mean, how would you even be able to enter the workforce? Right. If you're someone like Ricky, who's been sort of out of it for so long, and the damages are capped. Right. Isn't there a statute in Tennessee? They're capped at a million dollars. But I think you were telling me that no one has actually been successful in getting any money yet at all. There's a whole process to that. Will you explain how that works and, and the kind of. The barriers to that?
- [41:49]
Jason Gishner
And so there are people in Tennessee that have gotten money from the compensation statute, but it is very few people. It is. None of our clients have successfully navigated that yet. It's an incredibly difficult process, and it almost requires you to go through the whole process again of getting yourself exonerated. Because the way that it works in Tennessee is that in order to file a claim with the state to get up to a million dollars for a wrongful conviction, you've got to get a certificate of exoneration from the governor, which is, think of it that like a pardon. So it's a very political process in the sense that it's not like you can go back to court and prove your case, and then you win or lose. What you have to do is you've got to file a claim with the governor's office, and then you have to have a hearing before the full board of parole. Then the board of parole issues an opinion on whether they recommend or don't recommend to the governor whether he should issue a certificate of exoneration. And then it is up to the governor whether he chooses to do that or not. He's not bound by their recommendation either way. So we have a client, and she's been going through this process for more than two years now. She was exonerated in court.
- [43:03]
Jason
Right. Explain that to me, because you were. I know you've got two cases that are. That are just this week where you've had clients that have been exonerated. And it's not just having the judge issue an order that overturning your conviction. You actually go back for a separate hearing for like a proper exoneration process. Is there no court order or Something that comes out of that, that. That wouldn't be enough justification that you've been exonerated, then you have to go through going to the governor's office on top of it.
- [43:30]
Jason Gishner
That doesn't qualify under Tennessee law to file a claim for compensation for a wrongful conviction. So the process in order, what we refer to as an exoneration, a judicial exoneration, is you've gone back to court with your evidence, you have had a hearing, you have proven that you are wrongfully convicted, a judge has overturned your conviction, and then at that point, the state has a choice. They can either say, yeah, we dismissed the charges against this person, or we want to pursue the charges in the case. I was just referring to. And what happens in a lot of cases is that after the judge makes this finding and overturns the conviction, the state dismisses the charges. And from our perspective, the person is exonerated at that point. Right. A judge has said that they were wrongfully convicted, the charges against them have been dismissed. And that's sort of how the innocence community thinks about an exoneration. But that's not good enough under Tennessee law, to file for compensation. You then need the governor to issue you an official certificate of exoneration. And it's not good enough to say, look, I went back into court and proved my case. I would like this certificate. You have to go have another hearing before the Board of Parole, which is like a mini trial. I. I'm going to one of these tomorrow to testify for a client, and they then make their recommendation, and then the governor can choose or not choose to issue a certificate of exoneration. It's totally discretionary. There's no way to appeal whether he does anything or doesn't do anything. So we've had a client, and she's been fighting for years trying to get the governor to do it, and he just has. And she had a hearing before the Board of Parole, and they unanimously recommended that he issue the certificate of exoneration because she's innocent and nothing's happened on it.
- [45:10]
Jason
So that sounds like something. We're applying some public pressure, you know, through the press or something. I mean, is it just because the governor's kind of got a big inbox or like a lot of to dos? I mean, I just don't see why that would not be just the easiest thing.
- [45:25]
Jason Gishner
I don't have an answer to that, and I don't want to. You know, I know the governor has lots of important things on his plate, so I'm not in A position to say why are, why that hasn't happened. What I can say is that this person is very innocent. She is almost 78 years old and she went to prison for 27 years for something she didn't do. We owe her better than we're doing.
- [45:48]
Jason
Yeah, I think we've been hit on a couple of these, you know, very clearly during the course of this conversation. But we talked about sort of the part of the Innocence Project, which is working on policy changes and kind of lobbying around, around some of these issues. I think we've got. One of them might be not having this additional step. Right. For people that are legally exonerated in court. The other might be people that have pled guilty, being able to have a path back into court should other evidence come forward. But what are some of the. If you could wave a magic wand to kind of fix some of these roadblocks that you see in our criminal justice system to make it, make it more fair and to help prevent more innocent people going to jail, what would it be?
- [46:36]
Jason Gishner
There are a lot of little things that we could do that would result in less wrongful convictions. We're never going to totally fix it. Right. I mean, this is a system that's run by human beings. We're going to make mistakes, we're going to get things wrong. That's going to happen. But there actually are steps we could take that would lower the numbers of wrongful convictions. So, for example, it's still legal for the police to lie to kids during interrogations. So you have a 16 year old kid who's charged with a crime and the police say, we've got your fingerprints at the crime scene, you need to confess. They don't have his fingerprints at the crime scene.
- [47:13]
Jason
It's like Central park five. It's a similar. Yeah, right.
- [47:16]
Jason Gishner
So the kid confesses. And there's. There is all sorts of data in social science that shows that kids, people with limited cognitive abilities, they are more likely in these type of situations where it's unfamiliar, where they're under pressure, where they're scared to say what people want them to say, not because it's true, but because they want the questions to stop. And we know that when kids are being interrogated without their parents, without a lawyer, and the police lie to them, they are more likely to falsely confess to something they didn't do. So this doesn't seem like a bigger controversial thing to me. The police shouldn't lie to kids when they're interrogating them without a lawyer. Like that seems like A small fix.
- [48:02]
Jason
I didn't even think that the police were allowed to interrogate. Well, I guess the child would have to ask, right. For a parent there or legal counsel, which they wouldn't necessarily know that they needed to do because they're kids.
- [48:14]
Jason Gishner
Right. Well. And sometimes parents say, sure, you can talk to my kids. That's no problem. Like, so that's something you could do. Another thing that you could do is you could have a standard statewide for how we preserve evidence. Right. We could say, right, if somebody is still serving a life sentence, we're not going to go destroy the evidence in that case, Particularly if it's the type of scientific evidence, DNA evidence that we know that as we get better at DNA, maybe we'll have the ability to go test in the future.
- [48:46]
Jason
So are those standards determined county by county? Is it okay?
- [48:49]
Jason Gishner
Yeah, because there's no statewide rule about that.
- [48:52]
Jason
I see.
- [48:53]
Jason Gishner
I mean, we could also just be more transparent across the board. Right. I mean, I have never understood why the district attorney's file and the evidence that's being used to prosecute somebody shouldn't just be an open file for the defense to look at. I get. For strategic reasons why. Why attorneys might want to hold information back because they don't want to turn over things that might make their case weaker. But look, a prosecutor's job isn't to put people in jail. A prosecutor's job is to do what's right. And it's not right to put innocent people in jail. And when we're not transparent with what's in the file, when the people who are conducting the prosecution are the same people who are making the determination whether evidence is exculpatory, then we're gonna run into situations like we see in these cases, right? We're gonna find 30 years later the report showing that the evidence wasn't destroyed, even though that was argued to the jury, that wouldn't have happened if the file was open in the first place.
- [49:56]
Jason
Are there any states that you know of that have that law now that require that the all files be turned over and that it's not just left to the prosecution to determine what's exculpatory?
- [50:07]
Jason Gishner
I mean, this works differently in different places. And it works differently in Tennessee, too. I mean, frankly, there are. There are offices in Tennessee that have more open and transparent policies about their files. I don't know if there are states that have a blanket rule.
- [50:21]
Jason
Right.
- [50:21]
Jason Gishner
That you can turn over everything. I do know that there. There are prosecutors I have worked with before who have taken the position that you're entitled to the entire file.
- [50:30]
Jason
Right.
- [50:31]
Jason Gishner
And frankly, if your client is innocent, we all want to know that.
- [50:34]
Jason
Right.
- [50:35]
Jason Gishner
You know, the last thing we want to do is prosecute somebody who's innocent, which is exactly what good prosecutors should be saying. Because the other side of this coin that people sometimes forget is that when you send an innocent person to prison for something that they didn't do, the person who actually did it doesn't go to prison.
- [50:52]
Jason
Right, Exactly. Let's help us catch the bad guys.
- [50:55]
Jason Gishner
So this is what I say to prosecutors, and frankly, I think it's why we have good relationships with victims organizations, is because we are not trying to get the person out who committed the crime. We're trying to get the innocent person out. And if the innocent person is out, more often than not, the guilty person is not.
- [51:11]
Jason
Right. So if you had to, we talked about some of the costs that you have kind of associated with bringing these cases on. But if you could, again, like, wave a magic wand, what does the Innocence Project need to be able to do more? I mean, obviously, maybe more. More lawyers that are volunteering their time or how can people, you know, who are interested in this, who are listening and want to help or want to make a difference. What. What would be some steps or things that they could do?
- [51:39]
Jason Gishner
There's no question that there's a direct correlation between boots on the ground and exoneration.
- [51:44]
Jason
Right.
- [51:44]
Jason Gishner
You know, I don't. I don't think innocence organizations should be judged by. Judged by the amount of exonerations they have, because there's a lot that goes into that, and you might be doing very good work on a case that doesn't result in exoneration. That said, that correlation exists. So what I can tell you is that there have been 36 exonerations in the state of Tennessee in the last 35 years. Nine of them are Tennessee Innocence Project clients that have happened in the last five years. And of those 36, I think it's. It's a little. It's about 400 years that people lost due to those wrongful convictions. Our nine clients constitutes over 250 years of those 400 years. So that says two things to me. One, it says that our folks are working hard and doing a good job. But more importantly, I think what it says is when you actually have people doing the work, you are going to find these cases and you are going to uncover these wrongful convictions, and you can actually do something about it and get folks out of prison. So we've got five Lawyers that are full time doing this work across the state, and I'm one of them and our legal director is one of them. And we do a bunch of other things too.
- [52:54]
Jason
Right.
- [52:54]
Jason Gishner
So that's the first step is more boots on the ground doing the work.
- [52:58]
Jason
Aren't you also doing some work in trying to train young lawyers? And I don't know if that's through, you know, legal clinics. When I went to Fordham Law School in New York and we had a legal clinic that worked on a bunch of different, you know, free legal clinic that worked with other organizations on a bunch of different issues.
- [53:14]
Jason Gishner
So we do, we train young lawyers, we work with pro bono council at law firms that we are super grateful.
- [53:20]
Jason
For our partnerships with.
- [53:21]
Jason Gishner
I mean, that's a huge part of what we do. But the simple truth is, is that if we have more people doing the work, then we're going to see more exoneration. I mean, Tennessee is lagging behind a lot of our neighbors in terms of exonerations in the last 35 years. And that's not because we're better at criminal justice than they are. It's because we didn't have people out there working these cases. And just to give you an example of how big of a problem it is in the state of Tennessee is, you know, I told you when we started this conversation that it's incredibly difficult to know how many people are wrongfully convicted. But we've also discussed that, you know, this is a system that is run by human beings. So there's going to be an error rate.
- [54:01]
Jason
Right?
- [54:01]
Jason Gishner
And I don't know what that error rate is. Some, there have been studies on this. Some people say it's 3%, some people say it's 6%. I don't know what the percentage is, but let's say it's 3%, right? Let's say 3% of the time we get it wrong. Which means 97% of the time people are being convicted of the crime that they committed. Put aside whether you think we should be prosecuted, all those people. But if the system's getting it right, 97% of the times, you would say that system is working. The problem is that if we're getting it wrong 3% of the time, and we know that at any given time there's about 30,000 people locked up in the state of Tennessee, right? We're talking, what, 900 people that are locked up for stuff that they didn't do. That's a pretty big problem. And we didn't have an organization doing it until 2019, and there's only five of us.
- [54:49]
Jason
Well, thank God for having the five of you on that ground. I mean, on the ground doing the work that you're doing. Because as I said, I was just so grateful to be able to hear about the work that you're doing, to learn the stories from some of your clients. And it's just such incredibly important work you're doing. So thank you so much for doing it. And any lawyers out there who are listening and want to help and live in Tennessee, I know you do. You would certainly take their volunteer, you know, rolling up their sleeves and getting involved. But also, you know, anyone who wants to get involved and make a contribution or whatever they can do, it's an incredibly meaningful and worthy cause.
- [55:28]
Jason Gishner
Yeah, we are. We are so grateful to everybody that volunteers that contributes financially. We represent every client free of charge.
- [55:36]
Jason
Yeah.
- [55:37]
Jason Gishner
So, you know, 100% of our work is based on us being able to raise the money to keep the lights on, to pay our people to do the work. So, you know, we're very grateful for financial support. We're very grateful for people who donate their time to us. Please check us out online. Go to our website. You can just look up the Tennessee innocence project. It's tninnocence.org, but there's many opportunities for ways to people to contribute, to volunteer to help us. You don't need to be a lawyer. In fact, there are lots of really talented people who aren't lawyers that are able to help us do the work that we do and get the message out about this stuff.
- [56:15]
Jason
Well, Jason, thank you so much. I really appreciate you taking the time and I, again, really appreciate the work that you're doing.
- [56:22]
Jason Gishner
Well, thank you for having me and thank you for caring about this.
- [56:28]
Leslie
That brings us to the end of this episode of the interview. A huge thank you to Jason Gishner for joining, and as always, thank you so much for listening. If you enjoyed this episode, please rate or review us on Apple Podcasts or Spotify, wherever you get your podcasts. We release a new episode each Wednesday, so until next Wednesday, this is Leslie. And thank you for joining the interview.