#2287 - Josh Dubin & J.D. Tomlinson

Summary

Podcast Summary: The Joe Rogan Experience #2287 - Josh Dubin & J.D. Tomlinson

Release Date: March 11, 2025

Introduction

In episode #2287 of The Joe Rogan Experience, host Joe Rogan welcomes Josh Dubin and J.D. Tomlinson, the former prosecuting attorney for Lorain County, Ohio. The episode delves into a harrowing case of wrongful convictions, legal and ethical battles within the criminal justice system, and the personal toll these issues take on individuals involved.

Background: The Ohio Four Case

Josh Dubin provides a comprehensive overview of the Ohio Four case, where four men—Al Cleveland, John Edwards, Lenworth Edwards, and Benson Davis—were wrongfully convicted of murders they did not commit. Dubin explains how William Avery Jr., a paid informant with dubious credibility, falsely implicated the men without any substantial evidence.

“The Ohio Four are four gentlemen that were wrongfully convicted of a murder they didn't commit... So they immediately start looking at them.” (00:58)

Dubin highlights the absence of credible evidence and the flawed investigative practices that led to their convictions, emphasizing the systemic issues that allow such miscarriages of justice to occur.

J.D. Tomlinson's Role and Exonerations

J.D. Tomlinson recounts his experience as a prosecuting attorney and his role in exonerating two others wrongfully convicted—Nancy Smith and Joseph Allen. He discusses the challenges faced when dissenting against entrenched prosecutorial practices and the personal repercussions of defending innocent individuals.

“I exonerated two people prior to that... because I know how easy it is to, for this stuff to happen.” (08:25)

Tomlinson reflects on the ethical dilemmas and professional risks involved in prosecuting cases where the innocence of the accused is in question.

J.D. Tomlinson's Indictment

The conversation takes a personal turn as Tomlinson reveals that he himself was wrongfully indicted with three felonies: tampering with records, intimidation, and bribery. He attributes these charges to his efforts to exonerate the innocent men, suggesting a retaliatory move by his political and professional adversaries.

“I was charged with three felonies... I couldn't figure out what the conduct was that they were referring to.” (14:40)

Tomlinson details the procedural irregularities and possible political motivations behind his indictment, highlighting a system that punishes those who seek to rectify its errors.

Collaboration Between Dubin and Tomlinson

Following their induction into the podcast, Dubin and Tomlinson discuss their mutual commitment to justice and the collaboration that ensued to challenge wrongful convictions. Dubin shares how he reached out to Tomlinson, leading to joint efforts to present new evidence and seek fair trials for the Ohio Four.

“I have found something as recent as yesterday where alternative suspects were brought to the attention of the Lorain county prosecutor.” (84:04)

Their partnership underscores the importance of persistence and collaboration in combating systemic injustices within the legal framework.

The Legal Battle and Challenges

The duo critiques the grand jury system, arguing that it lacks the necessary checks and balances to prevent wrongful indictments. They propose reforms, such as introducing third-party independent reviews, to ensure impartiality and fairness in the prosecution process.

“The defense is not allowed to present anything. The defense lawyer is not allowed to be there.” (41:19)

They emphasize the need for a more transparent and accountable system to safeguard against prosecutorial overreach and ensure that justice prevails based on objective evidence.

Prosecutor Ethics and Potential Reforms

Discussions turn to the ethical responsibilities of prosecutors, highlighting instances where evidence was withheld or misrepresented to secure convictions. Tomlinson advocates for greater accountability and suggests that prosecutors with defense experience can better understand and prevent wrongful convictions.

“You never are the same because you understand how these things happen.” (44:25)

They explore the possibility of implementing reforms that include mandatory defense experience for prosecutors and stricter consequences for unethical prosecutorial behavior.

Broader Reflections on Criminal Justice and Race

The conversation expands to address the racial disparities embedded within the criminal justice system. Dubin references Isabel Wilkerson's Caste to illustrate how systemic biases disproportionately affect minority communities, leading to higher instances of wrongful convictions among people of color.

“Wrongful convictions happen disproportionately to people of color for a reason.” (93:15)

Both guests acknowledge the deep-seated issues that perpetuate injustice and advocate for systemic changes to address these inequities.

Personal Stories and Emotional Impact

Tomlinson shares poignant moments from his career, including witnessing the emotional pleas of wrongfully convicted individuals like Al Cleveland. These experiences have profoundly affected him, reinforcing his dedication to seeking justice and rectifying the wrongs perpetrated by the system.

“Al is suffering, you know, the most horrific psychological damage you can imagine.” (65:32)

Dubin echoes these sentiments, emphasizing the human cost of wrongful convictions—not just for the individuals incarcerated but also for their families and communities.

Conclusion

The episode culminates in a shared resolve to continue fighting against wrongful convictions and advocating for a just legal system. Dubin and Tomlinson express hope that their efforts will inspire broader awareness and systemic reform, ensuring that justice is served based on truth and integrity.

“Everybody wants to win. ... And it's important for your career if you win.” (47:21)

Joe Rogan commends their commitment, highlighting the importance of exposing and addressing these critical issues within the criminal justice system.

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This episode offers a deep dive into the complexities of wrongful convictions, the ethical challenges faced by prosecutors, and the imperative need for systemic reforms to uphold justice and human dignity.

Transcript

[Joe Rogan]

Joe Rogan podcast.

[J.D. Tomlinson]

Check it out.

[Josh Dubin]

The Joe Rogan Experience. Train by day, Joe Rogan Podcast by night, all day.

[Joe Rogan]

Josh Dubin, my man. Introduce your friend.

[Josh Dubin]

This is gonna be wild. This is J.D. tomlinson, the former prosecuting attorney for Lorain County, Ohio. And for. For the listeners, prosecuting attorney is similar to a DA in most jurisdictions. They just called the prosecuting attorney. He was the. The head attorney in Lorain County, Ohio.

[J.D. Tomlinson]

That's correct.

[Josh Dubin]

Up until January.

[Joe Rogan]

So the reason why that's significant is last time we were here, we were talking about the case, the case of the Ohio Four. So let's. Why don't you recap that for everybody's. Sort of. For people that didn't listen to the previous podcast where we talked about this.

[Josh Dubin]

So the Ohio Four are four gentlemen that were wrongfully convicted of a murder they didn't commit. And the last time I came on, we talked extensively about the case. You could read about [e-mail] we have on that site my submission that I made to JD when he was the prosecuting attorney and all the exhibits supporting it. But what happened is this woman is murdered in the 90s and these four men become suspects, actually, before there's any evidence against them whatsoever. In two and a half decades of doing post conviction work, I had never seen the police put in an affidavit where they're. Excuse me, not an affidavit, a police report when they're investigating this murder that these four men are people we should look at based on nothing other than there was a lot of commotion in the community, understandably so, that there were people from out of town selling drugs. No question. My client and these other three guys were involved in selling drugs and they wanted drugs off the street in Lorraine. So they immediately start looking at them. This woman is found behind a shopping center, horribly, savagely murdered. She's stabbed multiple times, her throat is cut. Her name is Marsha Blakely. She had been run over by a car. It was obvious because there were tire marks on her body. And several hours later that morning, someone that she lived with, gentleman by the name of Epps, was found murdered in strikingly similar fashion. So the police are investigating this crime and run into a dead end. They have no leads, they don't have any evidence, and they're searching for the perpetrators. So the Lorain County Prosecutor's office goes public with the offer of an award. They offer $2,500 to anybody that has information about this crime. The next day or a couple of days later, in walks a man named William Avery Sr. Who is no stranger to the Lorain County Police Department. He had been a paid informant for them for a long time. And he comes in and he speaks to detectives, and they say, everything you're telling, in essence, they say, everything you're telling us has been public. You know, you need to give us more information. He then that week, brings his son in, William Avery Jr. And his son claims to have information about the case. And they tell him, you know, you're not telling us enough. He comes back about a week later and he says, well, I know the guys that did this. And he blames the murder on Al Cleveland, John Edwards, Lenworth Edwards, and Benson Davis. And he claims that Al Cleveland confessed it to him. So they start investigating this man. William Avery Jr's account of what happened and what he is telling them happen does not match the physical state of this apartment where he claims this beating happened. So this is like one of the telltale ways to tell if someone is falsely confessing to you or falsely implicating others. He tells them that there's this horrific beating of this victim that occurs in an apartment. And they go to the apartment. I mean, chairs turned over, tables turned over, a bloody knockdown, drag out, fight for her life. And they go to the apartment and take pictures. And it's in the most pristine condition you can imagine. Not a chair turned over, not a table. And they immediately had reason to know that this guy was bullshitting, because he then comes and says to them, you know, I have other details. And the more details he gives them, the less it's matching up with the evidence that they have. So they're trying these four men separately. When the first trial happens, William Avery Jr. Has an idea. And his idea is, I'm gonna extort these people for money. He shows up at the trial and he tells the prosecutors, I want $10,000. And the prosecutor said him, what are you talking about? You have to testify. You got the reward money. And he says, I'm not testifying. They put him in jail for contempt. And he says, I made the whole thing up anyways. I did it for the reward money. I made it up. They should have known right then and there before any of these four men were tried that this was someone that led them down the wrong path. But instead of doing that, they keep him in jail. I don't remember if it was for 30 days or 60 days. And they let him cool his heels a little bit. The judge in the trial calls a mistrial. And when There's a mistrial. You can try someone again. So about a month goes by, and William Avery Jr. S story has now evolved. He now no longer claims that Al Cleveland confessed to him. He claims that he was a witness to it. And what happens in that intervening month. I think people can draw their own obvious conclusions about what happens. But suffice to say, it's my opinion and my belief that they did a number on this guy. So he goes on to testify at all four of their trials individually, during which time the lead prosecutor gets a correspondence from the U.S. secret Service saying that, we know you use this man, William Avery Jr. As an informant. We have been using him as a paid informant and some food stamp sting, and we just caught him in a lie, and he's compromising our investigations because he is accepting reward money and making things up. And we're ceasing to use him as an informant, and we are investigating him for crimes and giving us false information and accepting reward money for it. So the prosecutor, you would think at that point would say, all right, it's over. Obviously, it's over. So these guys all get sentenced and convicted to. I believe it was 25 years to life.

[J.D. Tomlinson]

That's right.

[Josh Dubin]

And I became involved in the case about two years ago, year and a half ago, and dissected the record, and I. I was blown away by what I had seen, and I've seen it all. I found out that William Avery Jr. Walked into the FBI in 2004. And the FBI documents it, and he says, look, I was a drug addict. My father had threatened me. He was a drug addict. And he made me go in there and tell a lie about these men and falsely implicate them in a murder that they didn't commit. I'm now off drugs, and I want to clear my conscience. So the FBI documents it and sends the report to the Lorain county prosecutors. In 2006, Al Cleveland has an investigator searching for this man, William Avery Jr. For years, they couldn't find him. They finally find him, and they get an affidavit explaining William Avery Jr explains how he made the whole thing up. He recounts what he told the FBI, and post conviction proceedings get scheduled. And post conviction proceedings is, we're going to have a hearing as to whether Al Cleveland is innocent. So the hearing is before a judge named Judge Roth Gary in Lorain County. And what happens, in essence, is that William Avery Jr. Shows up to testify. And the judge tells him, before you testify, you should know your rights in words or substance. And he tells him that if you testify here that these men actually didn't do it, there are potential consequences for making it up. And if you're lying now and saying they didn't do it just to help them out, there's consequences for that. So he's quickly told that he's going to be facing potential perjury charges. So he decides not to testify at that post conviction hearing. He walks out of the courthouse and reporters for the local paper ask him, look, why didn't you testify what happened? And he says, look, I made the whole thing up, these guys didn't do it, but I'm not going to jail for 25 years. So that's the that is the this.

[Joe Rogan]

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[J.D. Tomlinson]

So at that hearing.

[Josh Dubin]

So this is crazy. I found out from Al Cleveland. Al Cleveland spent so much time in prison that he timed out and was paroled. I think he spent close to 30 years in prison. And he approached J.D. and he approached J.D. with his wife. And it turned out that J.D. as a young lawyer, was sitting at that hearing, watching it, and knew as a young lawyer that there was something terribly wrong. But back to. Just to get listeners and viewers up to speed on where we're at. So I came on the show in November, about a week before Thanksgiving, and I laid the case out in finer detail than I just did. And like I said, if you want more details, you could go to freetheohio4.com and. And my submission to JD and all the exhibits are there, but that's basically the story as I told it.

[J.D. Tomlinson]

Yeah.

[Josh Dubin]

So I had been trying to get in touch with JD because he was running for reelection. He had listed his cell phone number on the Internet. So I had a cell phone number, and I was sending him text messages and emails and calling him, and I was getting ghosted.

[J.D. Tomlinson]

We had communicated for a little bit beforehand. Is that true?

[Josh Dubin]

No, sir. No, there. No, sir. So I couldn't get in touch with him. And then as I'm trying to get in touch with him prior to my coming on the show and speaking to you about it in November, JD Gets indicted. Oh, excuse me.

[J.D. Tomlinson]

Charged by.

[Josh Dubin]

No, he gets charged by complaint. No grand jury. They charged him with three felonies. And I take a look and I see that he's running against someone, and that person that he's running against is posting about the fact that he was charged with three felonies. And I'm like, all right, well, this seems like a political witch hunt. I don't know much about it, but it seems like a tactic. So I came on the show and I said, look, I know this guy's up against it. Hopefully he now knows what it's like to be accused of something he didn't do. And I said, he's either under so much stress or isn't tech savvy enough both to. To know that every time I text him and say, please, I just need five minutes of your time, I could see he's reading my text because he had his read receipts on and he didn't know it.

[Joe Rogan]

Whoopsies.

[J.D. Tomlinson]

So I learned, Joe. I learned.

[Josh Dubin]

So I leave Austin, fly back to New York. I'm in New York. The episode aired, I think at 12pm or 1pm Eastern time. And at about 5:30, I see on my phone, J.D. tomlinson. And I said I was about to teach my. My law school class. These kids that. At the Cardozo Law School that, that take the Freedom Clinic at the Perlmutter center for Legal justice, they all know about the case. They know what just happened. I was like, holy, this guy is trying to get in touch with me now. And I picked up the phone, I said, hello? And he said, Josh, this is J.D. tomlinson. He's like, hey, man. He said, I've been under a lot of stress. You got. There's people calling and emailing and flooding our office. You got to make this stop. And I said, that's the Joe Rogan fact. There's no stopping what can't be stopped. So it had its intended effect. And JD and I got into a discussion right away, and I had to quickly figure out a way to connect with him and tell him, I feel your pain. I hear what you're going through. And he told me, listen, I'm fighting for my life over here. These people have upended my life. They're threatening my freedom. I've been charged with crimes I didn't commit. And I just quickly pivoted and I said, if you just give me a date, I want to come down and I want to just show you, you now know what this is like. Imagine going through this for 30 years. So I have to say, in all my years of doing this, considering the circumstances that he was in, for him to say, you know, he was wrestling with it on the call, and he said, you know, I'll never forget what he said to me. He said, you know, if I don't at least agree to meet with you, who am I? And I said, thank you. And he said, I just don't know if there's time, but I owe you at least a meeting. And given what he was going through and what he was up against, and he knew the case well, he had had the Ohio Innocence Project had presented to him years earlier, and he knew the case well. So he. I think he had a sense that there was something really wrong going on.

[J.D. Tomlinson]

And I'd exonerated two people prior to that. So I had some experience in that.

[Josh Dubin]

Well, you're going to get to that. The way that JD made enemies in Ohio, in that town, is because he had the audacity, he had the nerve to say, I see two innocent people in another case and I'm going to exonerate them. And that is the beginning of his issues in Ohio. So, I mean, if you want to hear from JD's perspective, because what ensued and what has happened in the months since has been one of the most shocking, disturbing, you know, frankly, disgusting displays of what I think is ego and abuse of the system. In my opinion, that two of these four men are still in prison and two of them are only out because they paroled out, but they're on parole as convicted murderers for a crime they didn't commit. So, I mean, I don't know, it'd be interesting to hear JD's perspective on that call and that I then met with him right before Thanksgiving and we had a big rally in Ohio. Derek Hamilton, who's the deputy director of the Perlmutter center, was there. We organized a bunch of folks in the community, a lot of coverage on local news. And then the next day I met with JD and his team and presented essentially about a two hour, three hour closing argument where I showed him all the evidence in the case.

[Joe Rogan]

Jd, what was the whole experience like for you? Like, starting from the first contact with Josh and, you know, how your situation unfolded, where you were getting wrongfully.

[J.D. Tomlinson]

Yeah.

[Joe Rogan]

Accused.

[J.D. Tomlinson]

It all really started is because I had developed a relationship with a woman in my office who I had known for many years. And that was a mistake on my part. And it was contentious. It was really beautiful for a long time, like many relationships are. And then it started to entangle, disentangle and shock her. Yeah, right. I mean, and it was all my fault, Joe. I mean, I'm really contrite about the situation because I'm very aware of my mistakes and I've made amends with her and thankfully she has accepted my apologies because I put her in a position where she should have never been in as being an employee of mine. But I'd known her for 19 years. I'd never really been the head of such a big office. I mean, it's about 100 people. So for me it was a really big thing. And there's a romance that goes with kind of winning an election and coming in, trying to make a difference. I think it Swept us up, and we really genuinely cared about each other. But then it started to kind of fail, and it was my fault. And I brought a lot of toxicity to the relationship that I. And I don't like the word toxic. I don't know why. I don't, but.

[Joe Rogan]

Well, it's compromised today.

[J.D. Tomlinson]

Yeah, it is, it is, it is. But that's exactly probably what it was. And so I'm lucky that. But. So, anyways, there was arguments that were caught, you know, on camera with her and I that were released to the public, and it showed us, you know, me arguing with her and raising my voice. And so it was an extremely embarrassing time in my life. But so this was all happening amidst this, and so it really. It all really did start happening. When I exonerated those Nancy Smith and Joseph Allen In 2022, my life changed because I knew there would be consequences to actions like that, because it creates financial problems. People are suing people in federal court. So it causes problems. Even in the sense that I was very close with police. I was a county prosecutor. I'm a very pro police man. And so it was difficult, the strain that it put on some of the police departments. Even though it was an old case, I'm still friends with a lot of these detectives. And to sort of make decisions like that, where you have to kind of disagree, it can be difficult. It can strain relationships. But I really didn't realize the extent of how much it would do it. So when I exonerated Nancy Smith and Joseph Allen, which one of the worst cases I've ever seen, I thought that it was the worst case I'd ever seen. And then I got Josh's case. And after I was going through all that hardship, basically on October 1st of 2024, I was charged with three felonies. Tampering with records, intimidation, and bribery. It was shocking to me because I couldn't figure out what the conduct was that they were referring to. So what, in essence it was is because of that fallout from the videos that were released, and she didn't have a partner releasing the videos. And so she had called us in the summer time, even though we weren't really talking a bunch. And she had kind of expressed her sorrow that those videos had gotten out and that she didn't intend for them to, and that she kind of wanted some help with. With the media about how can we kind of help a little bit with the PR and my partner and my chief of staff, Jim Burge, who's a legend unto itself, unto himself, he's the best writer I've ever seen. So he wrote a statement, and it was supposed to be prepared for her lawyers if they wanted to review it and see if they agreed with it or change it or anything like that. So, and, and to prove that that's what occurred was I have text messages from her on the day that Jim wrote the statement that says, you know, I trust Jim and his, and his, and his magic pen because she knew how good of a writer he was. And then the next day, when I'm supposed to be intimidating him, according, according to the state, when I'm supposed to intimidate her, according to the state, you know, you know, she, I received a text message apologizing to this situation that we're in, because I, I, we both were just really, it was dramatic to have your personal life right in even a small town like that. It was dramatic. So, so that's really what happened. What. But what they alleged was, they alleged that we had created this, this false narrative, this false document, and then intimidated her into adopting it. That was the allegation, which is completely, completely false. And, and we had all the evidence to prove it. So I was fairly confident in my case because I'm a lawyer, I've defended, I was a defense attorney before I took office, so I'm fairly knowledgeable what constitutes a good case or not? And I had a great case, but the stress that it put on my family and my mother and my father, just awful. You know, I have nieces and nephews. I'm a bachelor, but I've got nieces and nephews with my last name. And that really bothered me. And so while I'm battling with this interesting. I'm charged on October 1st, on October 4th. And they had, once we broke up in 23, they had kind of been courting her because they knew that she was my weakness, that the contentious relationship. And I think they were hoping that they would turn her on me. And so they did as much as to exploit and try to try to utilize our relationship against me. In fact, the lead detective that was investigating her, us was attempting to sleep with her at the same time attempting to sleep with her. I have text messages asking for nude photographs, asking, just go over her house. This is while he's investigating me, me, Joe, he's trying to sleep with my girlfriend, saying stuff like, you should get back at him. You should get back at him.

[Joe Rogan]

How dumb is this guy to make this in text messages?

[J.D. Tomlinson]

I couldn't believe it when I, when, when she, when she just wanted you.

[Joe Rogan]

Want to think the people that are evil, that are manipulating people and falsely trying people, they're like evil geniuses.

[J.D. Tomlinson]

Joe. It was an extraordinary. That's why at first I didn't believe it. I was like, why would he write it? Why would he do that? And then. And then she shared those. Those messages with me. She showed me them. I didn't get to actually physically. And then later I acknowledged it. But. But so what it all occurred was a. Was in 2020, I won an election. I went against my own party, and I ran in a primary, and I ended up winning. And then my. My. My relationship with the sheriff, who actually ended up investigating me for this case that I'm referring to, we had pretty good relationship there for the first couple months. When I got elected, I had asked for a couple of my deputies to be dep. Or a couple of my investigators be deputized, which is a pretty standard procedure. He agreed. And then. And then he hired the individual that I had defeated in the election. And the whole attitude changed. Everything changed. It was now very contentious. He had withdrawn his desire to deputize my investigators. The relationship turned very sour very fast when he hired my. My predecessor, which is unusual to have a lawyer working in the sheriff's department anyways, because statutorily, I'm the lawyer for the sheriff's department. So it's an unusual move to even hire a lawyer in a sheriff's department. You probably get two deputies for that kind of money. So it was unusual, in a sense. And then. So the relationship just soured. And it was kind of like they were coming after me immediately. And then in late 23, they actually hired, then the guy that's running against me, another lawyer who was a former employee of mine who's now the Lorain county prosecutor. They had hired him. So the agency that was investigating me had hired my predecessor, and then the individual who was now running against me for the office. Two lawyers. First of all, in a smaller town, I mean, we have about 3,300,000 10th maybe out of the 88 counties in Lorain county. It's fairly high, but it's a small town. To hire two lawyers on a sheriff's department is unusual. And they were both my political enemies. And then the. Then the. The detectives that's investigating me is attempting to sleep with my. My girlfriend. So if you can think of a less objective investigation, Joe, I'm all ears.

[Joe Rogan]

You know, what a fun workplace environment.

[J.D. Tomlinson]

I'm telling you.

[Joe Rogan]

Going to. Going to that office every day.

[J.D. Tomlinson]

It was. It was. It Was wild. So. So really what happened was on October 1st, they charged me with the. With the felonies. I was flabbergasted because I was kind of so confident in. In their inability to ever get anything like that on me that I was kind of boasting in the sense that, hey, all you had to do is go to O'Leary Municipal Court, grab a complaint. You can do it. Never thinking that it would actually happen. Yeah, because I. I was very confident that I did anything wrong. Nothing illegal. So what occurred was on October 4, it makes the papers. On October 1, October 4, the woman that I had a relationship with, she. She sees it in the paper. She's walking in the store, and she sees it in the paper, and she sees me and my chief of staff, who she was very close with, and she. Her instinct was to go, well, what did they do? Like, she had no idea that the conduct that they had interviewed her about was actually the conduct they had used to. To charge me. So she was wondering, like, what the hell did we do? Well, you know, she had no idea. So that very same day, she sent text messages to the detective in charge, and she said, what are you guys doing? These guys. J.D. never bribed me. These are false charges. All this is on text message. He never bribed. What are you doing? You turned our personal life into charges against J.D. this is crazy. And she was emphatic that she wanted to speak with me. And the problem was I had an order by the court that I was not to speak to her because her lawyer had represented that she didn't want to speak with us. So I had. And she was trying to get to me to tell me what had happened, but I couldn't speak with her. And so she was growing more frustrated and more frustrated. Eventually, she spoke to our lawyers, but what happened was I was charged 30 days before the election. And that's devastating. I mean. And so what happened was on October 4, when she sent the text message in, I was entitled to those text messages. Those are exculpatory. I was entitled those immediately. And they waited a month, and they waited till two days after the election on November 7, and then they gave me the text messages that showed everything I had said was true. It was.

[Joe Rogan]

Nobody wants to believe that. That politics and that law enforcement could be that dirty.

[Josh Dubin]

So this is what's going on.

[J.D. Tomlinson]

Wow.

[Josh Dubin]

While I'm trying to get his attention, and I have no fucking idea.

[Joe Rogan]

What a perfect storm.

[J.D. Tomlinson]

Oh, my God.

[Josh Dubin]

So I. Then when I made contact with jd, he started explaining this to Me, and I'm very, I, I approach this work like a surgeon, or how I picture a surgeon would approach an operation. I'm single handedly focused on making the kidney transplant or whatever and however you want to analogize it. So I was hearing him, but I was kind of of the mindset that those are your problems. I understand this sounds wild, but I said, you should now know what it feels like because I was pissed that he wasn't paying attention because these guys were so remarkably, in my mind, so demonstrably innocent.

[Joe Rogan]

Jd, why didn't you contact him?

[J.D. Tomlinson]

I was going through hell. I was, I had been kind of attacked. They'd been trying to get special prosecutors on what's happening.

[Joe Rogan]

Like in the cloud of it all, you, you had to focus on.

[J.D. Tomlinson]

I had to completely self preserve and, and because, you know, I thought that I was gonna be a politician for a long time, Joe. I was really passionate about it. And so it was really important to me and I had never dreamed that I would ever be charged with felons. It's insane. So it really, we had been, Jim and I had been fighting though, for a year. I mean, we were battle torn. I mean, you know, we always joked around about how we're gunfighters. You face that way, I'll face this way. And we just got to fight our way out. And it had been like that way for a year. So I was kind of just, I was stressed. It was very difficult to think about focusing my mind on anything else other than trying to exonerate myself first.

[Joe Rogan]

Which is good for your opponents because it makes you bad at your job.

[J.D. Tomlinson]

Awful. It gums everything up. Of course, I started to understand how on a national level, what affects that has.

[Joe Rogan]

Imagine what Trump went through.

[J.D. Tomlinson]

It's the same. It's a similar thing.

[Josh Dubin]

I, I've said it before, I'll say it again. I don't care what your opinion is of that man. To have the mettle to face what he faced and continue on a path of getting anything accomplished, let alone what he accomplished. If you don't stand up and cheer for that, the human cost of these prosecutions, you're hearing it right now. I mean, he.

[J.D. Tomlinson]

I still haven't gotten over it.

[Joe Rogan]

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[Josh Dubin]

Well, you know, that's how we should.

[Joe Rogan]

All look at it. Sort of looking at it in terms of like parties and this is, you know, these are my people. These are, this is against me. This is for me. It's bad for the country. It is real bad for the country. We are supposed to represent freedom on the world stage. We're supposed to be the people that have the most freedom of Speech, the most freedom of expression, the. The best path to success. If you're a nobody, this is supposed to be a place where everybody gets a shot. And if you allow the system to unjustly accuse and prosecute people for crimes that are demonstrably false, that's very, very un American. And that's how we should look at it. I mean, instead of this fucking fuck my enemies, us versus them, you're kind of committing treason. You're kind of ruining everyone's. If you could pull it off, you ruin our faith in what this thing is supposed to be.

[Josh Dubin]

Well, look, I think that. But quite obviously there are prosecutions that need to happen. When someone commits a violent crime, when there's domestic abuse, when there's robbery, all of that for sure. What should not be lost on people, because you saw it play out on a national stage with the President, you are now hearing about it in a smaller. Not a small town, but a smaller jurisdiction. And the irony of this, it struck me as I was speaking to JD the first time, is here's a man that's fighting for his life. And I just. I mean, I'll confess to you, I used it to say, I continually said to JD, Imagine you have to go through this for 30 years. It's not even common behind bars. So when I finally got through to him that night, we must have spoke eight times that night. He was. He knew that there was a problem with this case and he. He was creating in his. Understandably. So we don't have time for me to actually sit and listen to you and go through the evidence again because he had been through it before. And though in the Ohio four case. So as. As Dame Fortune would have it, I don't know where I heard that, but as the way it, the way it worked out is that three or four days after we spoke, the charges against JD Were dropped. The election happened. Yeah, he gets defeated in the election. It had its intended effect, I guess, in my opinion that's why else but they dropped the case. So now his problem went away for the time being. So he became a lot more free, singularly focused. So by the time I got to Ohio and I had a, you know, team of lawyers that were representing the other three men, and I felt like I had a more captive audience at that point. And you know, what happens from here and what, what leads us to today is in my mind just as perverse as the irony of him getting wrongfully accused of a crime. Because I presented to JD and you know, at one point he Welled up. You know, to prove a negative is one of the most difficult things. Our standard is the presumption of innocence when someone is already convicted and they're wrongfully convicted. In order for you to get someone in JD's position there. He was tough on me, as he should have been. But I had to prove a negative because I had to prove that Al Cleveland was not in Ohio when this happened, which frankly became easy to prove because we were able to show that he was in New York visiting his probation officer on a different drug case. He had Damon John, who of Shark Tank fame was with him the day that this allegedly happened. People saw him all over New York. There were John Edwards, who's my client, had alibi witnesses all over the place. And if Al Cleveland is in New York, this never happened because William Avery Jr. S story was that Al Cleveland was there leading the charge and they're beating this woman to death. So when I was there and I, by the time I was done presenting to JD and his chief of staff, they asked if they could have some time and get back to us. And we said, well, if you guys are going to go chat, we're here in Ohio. You know, I'd come in from New York and the other attorneys had come from other parts of Ohio and we stayed for several hours.

[J.D. Tomlinson]

And I think he was prepared to stay there the whole night.

[Josh Dubin]

I was, I had already extended my trip and you know, it interesting because it didn't, he didn't make a decision until sometime about a week later. But I never asked you what your impression was at that moment. After we made decisions, I had experience.

[J.D. Tomlinson]

Not only with the assistant prosecutor that was involved in these cases, but with the Nancy Smith matter. I can't indicate to you how important that was to my thinking and doing. Fifteen years of being a defense attorney. I know how easy it is to, for this stuff to happen. It happens. And so I was much, I was open to it, I was open to it. And so I think that, but I was free from the stress, at least for that part. And I was going to dedicate the rest of those two months to this issue.

[Josh Dubin]

And he, and he, I think realized, he told me this morning when we were talking, he's, he said, I, I knew you weren't going away.

[J.D. Tomlinson]

Tenacious.

[Joe Rogan]

Do you think, is it possible to have a third party system like, you know, you have your prosecutors, you have defense attorneys. Is it possible to also have an overview by an independent group before anything gets started where people can present their evidence so you can Find out if something's totally bullshit.

[Josh Dubin]

Well, Joe, it's supposed to be the grand jury system. And you know what? Most people don't know this. There's a judge in New York that has a very famous quote which is you can indict a ham sandwich. You can get a grand jury to believe anything because the standard is much lower than it is to convict. It's that they have to be convinced. What is.

[J.D. Tomlinson]

It has to be a probable chance of success at trial. So two issues, probable cause and a success. A relatively, you know, good chance of success at trial.

[Joe Rogan]

And who consists of the grand jury? Who are the members?

[J.D. Tomlinson]

Nine citizens.

[Josh Dubin]

Well, it's nine citizens in Ohio. There are other jurisdictions, both federal and state, where there's more. But what happens is, and something that the people don't know is that the defense is not allowed to present anything. The defense lawyer is not allowed to be there. So it is quite literally. This is not hyperbole. It is quite literally a one sided affair. The number of cases that go before, before grand juries and don't get indicted is so infinite, so infinitesimal that it's probably less than 0001.

[J.D. Tomlinson]

Probably not even statistically significant.

[Joe Rogan]

What I was asking about is an independent group of attorneys instead of having a grand jury system, have a completely independent and then regulate it. Make sure they're independent. No financial ties, no ties to anybody that's a part of any of it. And then make sure that those people that their position is to review things and make sure there's no bias and there's no bullshit.

[J.D. Tomlinson]

Yeah.

[Joe Rogan]

Wouldn't that before you could actually say, yeah, let's try it out in court.

[J.D. Tomlinson]

Are you kind of saying after the arrest, Joe?

[Joe Rogan]

Yes. It should be equal sides like the prosecution side should be able to divulge their evidence. The defense side should be able to divulge their evidence. It should be independently reviewed by a group of completely outside attorneys that have no vested interest in the results of this whatsoever.

[J.D. Tomlinson]

It's an interesting idea.

[Joe Rogan]

It's not a bad idea because that would you would people would be less likely to try to commit fraud because then you would have to have some conspiratorial relationship with the people that are the independent attorneys. Now there'd be another paper trail, It'd be a little sketchier. You wouldn't know if you could pull that off. That would be dangerous. Especially if they're completely independent. You don't know them.

[J.D. Tomlinson]

Right.

[Joe Rogan]

So you, you the way you could do it, would you be. You could, you could Find independent. First of all, think about the amount of money we spend in this country on shit that everybody agrees is terrible. If we could funnel some. I don't even want to bring up whatever political cause. Just if we could funnel some of that money into preserving innocence, make sure that people are never tried with a crime that they shouldn't be tried with. And it's not that you have a bad defense attorney and they have an awesome prosecutor. Nuh. It's all, is this a legitimate case?

[J.D. Tomlinson]

Right.

[Joe Rogan]

And if you started doing that, there would be consequences for bringing up illegitimate cases. You would be investigated. You could potentially face charges.

[Josh Dubin]

You've just stumbled into a. What is a wormhole because you've brought up so many issues that are so mired in politics and statutes that, in my mind, make no sense. You would be. You would be upending, you know, such a institution that it would cause a revolution. And it's, in fact, not that revolutionary of an idea.

[Joe Rogan]

It's not.

[Josh Dubin]

And, you know, if it were ever fairness, if it were ever possible, I would venture to say that these times make me feel like about anything is possible.

[Joe Rogan]

Yeah, this would be the time that something like that could get pulled off. I think there's a problem, and I think the problem is people are very competitive and they want to win. Everybody wants to win. And it's important for your career if you win. And when people play games, they cheat. They. I see people cheat at pool. I see. I've seen professionals cheat at pool. I. You know, I've seen people cheated cards. I've seen people cheated everything. People cheat. They want to win. It's a horrible byproduct of that instinct that we have to win when attached to a legal system that could lead innocent people to be prosecuted. I was listening to a podcast today about the founding of Jerusalem, and it was. In one of the cases was a guy who was in trouble for something that he didn't commit. They knew he didn't commit it, and then they kept him in jail and trumped up charges and charged him with something else. So it's just like this is 1948 or 47 or whatever across. So this shit's been going on. Yeah, probably thousands of years. People have been prosecuting people for things that they didn't do, knowing they didn't do it so they can win. I think cops do it sometimes. I've seen cops plant drugs. I've seen it on video. There's a ton of them online. You could see cops plant guns. You could see there's A one where a cop shot a guy and then pulls out a gun and throws it on the ground. You could see the video of it. He didn't know he was being filmed. It fucking happens. It does happen, because people want to win. They want to win. They're playing a game and they're in a system. And the system rewards success. And if you fucking fail, or if something falls apart and it looks bad for your career, doesn't progress, well, you.

[Josh Dubin]

Know where you can start, which is an easier fix if there's accountability. And I say easier fix because I don't want to throw cold water on your idea. It's a fantastic idea, but it just seems like pushing not a boulder uphill, like a mountain and moving it.

[Joe Rogan]

Do you think that's bigger than Bobby Kennedy running hhs?

[Josh Dubin]

Yeah, I do. I'll tell you why. Because you would be. There are so many constitutional issues with the grand jury system and so forth, but here's something that is not that difficult. Prosecutors have immunity. There are no consequences. So all of these cases where you hear people have been wrongfully convicted, prosecutors don't turn over evidence that would point to their innocence. That's what JD Was referring to when he said exculpatory. That just means that would tend to prove innocence rather than guilt. That's constitutionally required that prosecutors turn that over. But these prosecutors don't have any accountability. And you're going to see in a few minutes when we. We're going to get to it what happened after JD Made his decision. What happened between when we filed it and today is if you don't have warm blood pumping through your veins, if this doesn't get you in some way. But, yeah, I think.

[J.D. Tomlinson]

I think there's an easier way to do it, Joe. I think that you get county prosecutors that are extraordinarily powerful in their community. It's like I try to tell people, vote local, because the President United States isn't gonna indict you. The guy that's sitting in the. The county prosecutor's office will. And so, you know, having experience as a defense attorney for that long changes the way you think about prosecution. So I think that the easier thing is to require that a county prosecutor had some experience as a defense attorney, because you get to see it from that perspective. And you never are the same because you understand how these things happen. You see it. You. If you practice long enough, you will have a few innocent clients. And I don't want to get down completely on the system, because I think most of the time it works most of the time, but when it doesn't work, it's awful. And it's the worst thing on the face of the planet. I think that prosecutors, especially when, you know, they hide evidence which does occur. I think they think, well, he's guilty. I'll cheat a little bit. So what? Which is insane. But it happens.

[Joe Rogan]

It's like that. Do you know that quote about capitalism? Capitalism is the absolute worst way to run a country, except for all the other ways.

[J.D. Tomlinson]

Right, right.

[Josh Dubin]

Yeah, yeah, it's a great quote. But when will. When will this is the lesser of all the evils finally start catching up with us? And it's so. Yeah, you know, it's so politically driven. If people were more aware of how politically driven some of these prosecutions are. And then you. You put your finger on the nerve root of what the problem is from the standpoint of human psychology. It's been happening since the beginning of time and will continue to happen until people suffer ego death. And suffering an ego death requires you to look yourself in the mirror in an honest way and to be able to say four magic words. I made a mistake. That's it. And what stands in the way in my mind of prosecutors just so often not moving from their position is because they can't say I made a mistake or the office where I work made a mistake. You're going to find that one of the judges that denied relief in this case of the Ohio four, was a prosecutor in this office, is friends with the current prosecutor. One of the other judges that denied relief is the same judge that denied Al Cleveland post conviction relief. When the sixth Circuit Court of Appeals, the federal government says, these guys, Al Cleveland is likely innocent, and they just shove it aside. What gets in the way. What gets in the way is you touched on it. I want to win. This is. I'm not going to go against the former office. Whatever swirl of emotions, you know, whatever it is that just has people. You know, when you get to that point in an argument, this happens. I always give the same example because she's always right. You know, you get to a point in argument where you're taking a real strong position. And the other person in this case, it's my wife, is always, you know, taking the opposite position. And then you realize in the argument that you're wrong. And it's oftentimes it's like, you gave me, I gave you my keys to put in your purse. Where are they? No, you didn't give me your keys. You took them back. Since then, I'M like, no, no, I remember where I gave them to you. And. And then you remember in the middle of the argument, oh, yeah, that's right. She did give them back to me. And what happens is at that moment, you have a choice to make. You could stop, which I've learned to do, and say, you know what? I fucked up. You're right. In my experience, especially in a case like this, it's just like the. And that's not to pat myself on the back. There's plenty of times I dig in and I know I might be wrong, but, you know, it's just the inability to say something bad might have happened here.

[J.D. Tomlinson]

Well, and it's protect the state at all times at all costs.

[Joe Rogan]

But wouldn't it be valuable for the people to know that the prosecuting attorneys are very ethical? Wouldn't that make you trust them more and want to support them more? Wouldn't that be good for everybody if they just said a mistake was made? When a mistake was made, it maintains.

[J.D. Tomlinson]

The integrity of it. I mean, Joe, let me say something might blow your mind. It blew mine when I had exonerated Nancy Smith and Joseph Allen. Really was the highlight of my career.

[Josh Dubin]

Yeah.

[J.D. Tomlinson]

It was a 94 case, which is interesting because it was happening simultaneously with the same assistant prosecutor is the one that Josh is referring to. They were accused. She was a bus driver. She's kind of. She's now become family to me. So. And they're big fans, Joe, by the way. Yes. Shout out. So, you know, I. They were 94. She was a bus driver for a place called Head Start for young kids. She was alleged to have driven these kids after picking them up from their homes, back to another individual's house, a male, and severely abused him sexually. Now the Broadway, which is the road where he allegedly lived off of is a main thoroughfare through Lorraine. The allegations were so wild that, you know, if you can imagine seeing a school bus pull up on the main street, watch little kids go into a house. They were alleged to have been like punished by being tied up outside in trees, which is just impossible. So this, this is the alleged abuse that occurred because what happened was someone coach the kids. Y. That's in fact, that's exactly what occurred. So one of the mother that eventually got paid, I think it was about 1.5 million in 95 money, which is a decent amount of money. She had indicated that her daughter had been abused by Nancy the bus driver. Now, when the investigation occurred, there was a detective on it that did a very thorough investigation. And after months found out that, listen, this is. I don't even think a crime occurred. You know, he was very confused by the evidence. It was. It wasn't clear, it was plain as day that he couldn't even prove that these two individuals knew one another. And so he had indicated that basically, listen, I can't go forward on this. I have no evidence that it's true. Well, the public pressure, I'm assuming, was rising because the victim, the woman that had the child, was becoming pretty public. She was organizing the other parents was, as you well know, you can't get these parents together and start, you know, talking about the case because it just compromises so much. Now, to the police credit, they would try to tell these individuals, you can't be meet and talk about the case. But they did anyways. So then a bunch of erratic stories turned into one pretty, pretty substantial story that pretty much stated all the way through, is that she would drive, allegedly these kids to a house and they would take them down the basement. And pretty much every child said that it was a basement that they went to. It turns out, for example, Joseph Smith didn't even have a basement. It was a slab home. I mean, that's one fact out of a million facts that are true, that are. That are so disturbing about the case. And so when I started to look at it, the funny part is, during the first three or four months of me evaluating it, I had a couple investigators with me, and we were reading only exculpatory information. Nancy didn't do it. We don't think a crime occurred. And I was wondering, when am I going to start finding the inculpatory information? When am I going to start seeing the guilt? And it just really never happened. And so when I exonerated these two individuals that were clearly innocent, she had done 15 years. Joe, he had done 25. I was in court and, and my chief of staff and I had written something to kind of indicate to the court, and I apologized to them for what had occurred to them. After the hearing, Mark Gotzi of the Ohio Innocence Project came up to me, said, J.D. i gotta tell you something. You're the only prosecutor I've ever heard actually apologize to a defendant, Joe. Imagine how remarkable that statement is. That's crazy. We took 40 years of your life combined. But we're not even gonna apologize to, to you now. Probably because they're assuming that it's going to protect the state's interest better. I'm a firm believer in that. If the state suffers, then maybe it deserves to suffer, and that's justice.

[Josh Dubin]

You know, it's funny, a lot of cases where I ask where I have the. I represent a client in a civil rights case for wrongful conviction. I sometimes give the law enforcement official during a deposition in a civil case. I say, you know, I did it recently for Clementia Aguirre, who was exonerated from Florida's death row. I gave the, you know, the crime scene technician, the. The fingerprint analyst, all of who played a part in his wrongful conviction. I said, Mr. Aguirre's here. Would you like to apologize to him? No, sir, I will not. Yeah, they won't do it.

[J.D. Tomlinson]

So he.

[Josh Dubin]

He exonerates Anthony Smith and Joseph Allen. Joseph Allen. Allen. And all of these folks that prosecuted Nancy Smith and Joseph Allen, law enforcement, the prosecutors, they all turn on him. I had no idea about anything.

[Joe Rogan]

Because you apologize or because you exonerated?

[J.D. Tomlinson]

No, it's because I. Yeah, I mean, it was that. I mean, the. The assistant prosecutor, Rosenbaum, that you're. That you're referring to with these cases. He was the assistant prosecutor. He was heavily tied in with. With. With that office because he had been the chief prosecutor for a very long time under an individual by the name of Greg White, who was the Lorraine county prosecutor at the time. Now, Greg White doesn't get mentioned. You probably never even heard his name. Now, that's interesting. He was the county prosecutor during that time. He seems to have escaped criticism. I think part of the reason is he's. He's smart enough to be quiet. So when these cases come out in public, he doesn't say very much. But the truth of the matter is the buck stops at the office holding.

[Josh Dubin]

So just so. Just so we're clear, this prosecutor Rosenbaum prosecuted Nancy Smith and Joseph Allen, and I believe he prosecuted all four of the Ohio. Four.

[J.D. Tomlinson]

Yes, he did. And so when I review two cases, Joe, two cases from this assistant prosecutor, I found that six people were wrongly convicted and did about 162 years in prison. That's two cases, Joe. The question is, how many more are there out there? Jesus. Two cases. It's extraordinary.

[Joe Rogan]

It's terrifying.

[J.D. Tomlinson]

Two cases, and those are the only two I. I review. Now, that doesn't mean most of them are probably good. That's the way the statistics are. But I think it was. It was pretty scary, the thought of me going through all those cases, and I think they knew that I was open to that type of stuff.

[Joe Rogan]

Oh, God.

[J.D. Tomlinson]

And so I think that created these enemies that I never thought they would go as far as they do. I just never, you know, maybe it's naivete, but I was just, I never assumed that they would go that far, but they, they did.

[Josh Dubin]

So I, I, after I presented to jd, he, he had a, A cart. It's like a popular thing with prosecutors. They wheel in a cart of evidence. You know, it's like a shopping cart, it looks like, without the.

[J.D. Tomlinson]

Full of files.

[Josh Dubin]

Yeah, and it's full of files. And he had read a lot of it in years prior and he said he wanted to re. Familiarize himself with more. So I think we both canceled our Thanksgiving plans and got into a lot of. I was annoyed because when I left Ohio, it was so obvious to me that these men were innocent and that there was a terrible mistake made. And a federal court never goes out of their way to say something like this. I have the opinion here. And I showed this to JD and his chief of staff and it says, this is the way it concludes. It goes through the things that the juries in the case heard that were bad about Avery, that he was a liar. He was a liar, but it didn't have, you know, all these prosecutors that are trying to protect convictions. And the man that's the county prosecutor now in his motion to withdraw JD's decision to grant these men a new trial and then dismiss the case. We're going to get to this in a minute. This is what ended up happening. Happening. He says, well, these cases have gone through the courts for 30 years, and that could be said about every single human that has ever been exonerated in this country. It's the weakest argument. What's the evidence that they did it? And here's one court that says, had the jury also been able to consider Avery's unsolicited 2004 recantation, that's when he went into the FBI. The 2006 recanting affidavit, that's the one that Al Cleveland had in his post conviction filings. Evidence that Cleveland was in New York a couple of hours before Blakely's murder and could not have flown from New York to Ohio in time to commit the murder. Along with the fact that there was no other evidence tying Cleveland to the crime, quote, that now they're quoting a case in this opinion. It surely cannot be said that a juror conscientiously following the judge's instructions requiring proof beyond a reasonable doubt would vote to convict. We find that Cleveland has presented a credible claim of actual innocence.

[J.D. Tomlinson]

So it's amazing. I.

[Josh Dubin]

It's that's that is such a rare thing for a federal court to say those things. That's the federal court telling the lower courts in Lorain county, you have to give Al Cleveland a hearing. It's at that hearing where the Judge advises Avery Jr. You know, you're basically going to get charged with perjury. So I make the presentation to JD and he spends roughly the next five days. You know, at some point. Point, we were joking to each other, and there was a lot of arguing because he wanted to go out to the apartment where the alleged beating took place, and he did. And he was reading lines of transcript from four different trials, and he'd say, well, what about this? What about that? And I just said, you know what? I'm gonna cancel my Thanksgiving. He canceled his. And I was just there to answer any question he had. And there weren't really many questions of substance. And I started to realize the second or third day that he's looking for something to say they're guilty, he's looking for some evidence. And every. Around every corner he looked, he would say things to me like, what. What is going on here? Why in the world would this happen? And why. How is this. It's so ob. You know, I'd be curious as to what your thought process was before you finally told us.

[J.D. Tomlinson]

I couldn't believe they were ultimately convicted. I couldn't believe that there were four trials where people believed Avery. You know, I never told you this story, Josh, but I knew one of the lawyers for one of the defendants, but I won't mention names. And I heard from a good source that would hang around with him in the office on Saturday that like. Almost. Like almost every Saturday, one of the defendants would call him. And after the phone call, he would cry because he. He would say, that man does not deserve to be there. And I screwed it up. And. And so. And. And I. And when I heard that, it made sense to me because. And Josh is right, I was looking for some reason why I was making the wrong decision. You know, it's a big decision to decide to maybe try to free four people from prison. I wanted to be sure. I wanted to get there.

[Joe Rogan]

You have to look at it from all angles.

[J.D. Tomlinson]

You have to. And. And I understand. I appreciated Josh's tenacity because that's what good defense attorneys do. But I had to get there myself. And so I wanted to take my parents to Mexico City. I called my mom, said, we're not going to Mexico City. It's not happening. So we just stayed, and I Just. But it was so. It was almost therapeutic for me because I had been so much stress on my own case. It was nice to divert attention away from me and trying to think about something else. So I really immersed myself in it. And I went to crime scene, which I always believed defense attorneys should go to. Every case I had, I went to the crime scene. I learned something that I didn't know, but I eventually got there. And it was extremely extraordinary, though. Not only was this case just on this individual, Avery Jr. S testimony, he might have been the worst witness I've ever seen in my life. I mean, so not only was there no physical evidence that linked these men to it, the only witness that was present was perhaps the worst I'd ever seen.

[Josh Dubin]

And you know, what the federal court is saying is that, yeah, they could damage his credibility at trial, but they didn't know, obviously, because he does it later, that he made the whole thing up, up. And they didn't know that he's admitted he made the whole thing up. And importantly, what. Who walks in unsolicited, no to the FBI and says, here's what I did, and I want to clear my conscience and I'm. I want to tell you what I did.

[Joe Rogan]

That'd be a hell of a double cross.

[J.D. Tomlinson]

Yeah. And it's a crime to lie.

[Josh Dubin]

And I. I knew. I started to feel like, oh, okay, okay. We're about to get hometown, small town. Something bad is happening here. Because this should have been a moment to. Here we are. Myself, my co counsel, we're about to change the trajectory. Not of just these four men's lives, but of their families that have lived under the crushing weight of these wrongful convictions for three decades. My client, John Edwards and Al Cleveland, and the other two as well, Lenworth and Benson. You know, John is in, Al is out, but Al is suffering, you know, the most horrific psychological damage you can imagine. And John calls me from prison all the time. JD Tells us that he is going to file a joint motion, joint meeting between defense counsel and the prosecutor to grant these men a new trial. That's the procedural mechanism based on new evidence. Based on new evidence, which is the 2004 recantation, which they never had the.

[J.D. Tomlinson]

Benefit of taking the trial. That evidence was never seen.

[Josh Dubin]

And then the 2006 affidavit, and that once the new trial was granted, he would dismiss the case. So that all gets filed in front of one judge because it really should have been a matter of procedure. In all my years of doing this, 25 years, 24 years have never seen a judge do anything other than have the hearing and respect what the prosecutor has filed for and asked for, especially when it's joined by the defense. So all of a sudden, the judge that this has filed before is silent. Now the clock is ticking because now we have the whole month of December, and after January 6th, he's out of office. And right away, within a few days of us filing this joint motion, there's a newspaper article that comes out. What's your local paper again? The Chronicle? Telegraph. Telegraph or Telegraph? The Chronicle Telegram. And it has the person that just defeated him in the election, his name is Tony Sillo. It has comments from him and from this prosecutor, Rosenberg, saying that I don't understand what the rush is. I don't understand, you know, essentially saying, wait until I take office. I, Tony Sillo, take office, and I want to review this. And I thought that that was really interesting because he's someone that worked in that office. He's someone that actually played a role in some of the investigation that I believe should have taken place when he was a prosecutor in that office. And he did not have the benefit of the thorough investigation that JD had done. And he's a private citizen until he takes office. So I found that to be interesting. And all of a sudden, a brief gets filed from the Attorney General of Ohio saying, whoa. It's a brief that gets filed to the court where we filed this joint motion for a new trial, and the Attorney General gets involved. You don't have to look far to see other attorney Generals getting involved in criminal cases. Right? That's happened on a national stage, happened in New York. And he basically is taking the position that this man. This should all wait until Tony Silla takes office. And I thought, what? This is weird. Why? Then I come to find out that Tony Silla used to work at the Attorney General's office. So I started to have hope when the judge, one of the judges in the case, because I won't bore you with the details, but the cases get sent out to different judges that were assigned to each man's case. And what the judge says is the AG's motion. This is a quote. This is from an order from the Honorable Chris cook. Look, the AG, and this is dated December 23rd. The AG's motion is not to advocate for either party to this litigation, which in most situations is the sole purpose of filing an amicus brief, but instead to ask this court to delay ruling on the pending motions until such time as the newly elected Lorain county prosecutor is in office and the victims can be notified. Neither of these purported reasons to opine on this litigation are persuasive or necessary to aid the court. First, the AG argues that the current prosecutor will be leaving office shortly, referring to JD within the next two weeks, in fact. And any ruling should be delayed in order to allow the incoming prosecutor to evaluate the matter and weigh in on the issues. But this reason is hardly compelling. After all, all elected officials eventually leave office. And to suggest that simply because a newly elected prosecutor is taking over a pending matter should be delayed for the incoming official to review is unwieldy, inconvenient, invites delay and not how the system operates. Moreover, why should rulings or evaluation of this case be singled out and subject to delay in favor of the new administration but not the other 150 pending criminal cases on this court? Stock it. At the end of the day, the concept that a court or any government entity for that matter should come to a grinding halt because a newly elected official will be taking over is not how government should or does work.

[Joe Rogan]

Shout out to that guy.

[Josh Dubin]

Yeah, put that thought on hold. Because three days later. Three days later. Now this is curious. What changes in three days? Well, I don't know if it happened during these three days, but this is the prosecutor. I mean, this is the judge that swears in the new prosecuting attorney. Three days later, there is another mo. Another order filed by the same judge. And because we had moved for an emergency hearing, because in our mind, this incoming prosecutor opines on the case in the paper, had worked at that prosecutor's office and obviously had some feeling about the case. And if he had taken such an interest in talking to the press, we were concerned and filed an emergency motion not to let these men suffer any longer. Longer. So the same judge that you just said shout out, which was exactly my sentiment, issues another order. You could not get a more stark 180 degree turn than this. I'm going to quote from that order. How can it be possibly an emergency that a hearing and potential ruling be accomplished in a matter of weeks for a case in cases that have been pending for almost three decades, not to mention four years on the current prosecutor's watch? Moreover, no rational person would conclude that a change in county prosecutor constitutes an emergency. An inconvenience to the movement, to the movements, arguably a delay in rulings, no doubt. But in an emergency, I don't think so. In addition to the to the lack of emergency, two additional but troubling issues are apparent by this motion. This is three Days later. First, the movements go to great pains to paint the incoming prosecutor as incapable of fairly and rationally evaluating the defendant's claims of innocence and request for new trial to pause there because this man had sat and listened to and dove through and, and tore through this entire trial record. So yeah, we had concerns that we would face further delay. It already agreed. We filed. This is oftentimes right away the court will call a hearing and grant the relief. So the judge goes on to say this effort is unfounded, contra the movement's reliance on a newspaper article. That's the one I was talking about. The same article quotes prosecutor Alex Sillo as saying he would review the matter initially just like prosecutor Tomlinson did. And it goes on to say, second, even more troubling is the movement's assertion that Tomlinson's successor has no authority to review agreements made by Tomlinson. I've never seen this in an opinion before. Oh really? With a question mark. The movement's right that Mr. Tomlinson's successor has an obligation to honor the good faith decisions made by the prior administration. JD and it then goes on to use the Head Start case, the Nancy Smith case and Joe Allen where he granted these people, he exonerated these people. He then goes on to throw it in their face. In my opinion, he says, recall the Head Start case. And he goes through make personalizing this and saying that because J.D. tomlinson exonerated these people, thereby undoing a prior administration's prosecution, that why should the same not apply to you? So in other words, three days before he says, why should justice wait? Three days later he says, wait a second. This should wait and it should wait. And by the way, here's one to poke this man in the eye. Because he exonerated people, you're undermining the decision of a prior administration. So he's using his granting of innocence in my opinion to now go back on what he said three days earlier, which is why should this wait? What happened in these three days? I don't know, but I can tell you that you've taken position A and then you've taken position Z. So what happens is on these judges, one of the judges, the one that denied Al Cleveland post conviction relief, that, you know, said to Avery Jr. You know, there are potential consequences here. He denies the joint motion for a new trial for Al Cleveland based on nothing. He doesn't call a hearing. This is in December. He says, I'm not, I'm denying it. He, then he, then this man Cillow takes office all the other judges deny it, by the way, or delay it. The other judge is punt until the new prosecutor comes to office. And you don't think this is personal? This man's second day in office. Tony Sillo takes office. His set. His first order of business is to withdraw the joint motion on behalf of the state. So he undoes everything that we did because he worked at that office, because he's friends with these guys. I don't know, but I'd like to know. And to make these men suffer is truly, at this point, it's really, really difficult to understand. The craziest part about these is that this Judge Cook, in that first opinion, he said the AG sites as one of the reasons why this should be delayed is that the victims have to be notified. He notified the victims, and the judge said, calls them on it here. So this is. This is like, it's fascinating.

[J.D. Tomlinson]

Well, you know, you know, I. I must have a caveat, because I do love and respect Chris Cook. I really do. He's. He's been there for me a lot in my career. Where I disagree with his opinion is the idea that I didn't have any experience with the idea that maybe Tony Sillo couldn't be objective. And I think where I. Where I diverge from Judge Cook is that I had a very real experience on why Tony Sillo couldn't be objective of when I. When involved in the Nancy Smith case. He was involved in that case in the later stages of it. And in my. My humble opinion, Joe, anybody that looks at that case and doesn't do the right thing is just. It's scary. It's scary. So I did have an experience, and I know that the relationship that he shares with attorney Rosenbaum, who's the assistant prosecutor, I know that was a mentor, protege type relationship. And so the idea that he's going to be objective in undoing such a major case for someone that's arguably his mentor is almost impossible to conceive. And so I knew that I had to be quick about it, because if I wasn't quick about it, I don't think it would ever get done. And I still don't think it'll ever get done.

[Josh Dubin]

Well, I. I refuse to think it won't get done. It's. It's interesting.

[J.D. Tomlinson]

I hope it does.

[Josh Dubin]

It's interesting to me that I had spoken to Mr. Silla when he took office, and his first. First my conversation with him wasn't about all the reasons they're innocent. He said, you know, there's this phone call between Al Cleveland and his dad where they're talking about giving Avery money. And I said, what are you talking about? And I went and read the transcript. It's about them giving him Money in 2006 for his expenses, to put him in a hotel room so he could feel safe with a court reporter and to do the affidavit. And I felt like saying, you know, so let me get this straight. You, your office pays this man reward money. He then tries to extort your office for more money in exchange for testimony? He has gone into the FBI before this affidavit was ever a thing. He went into the FBI and admitted he made the whole thing up. And you want to talk about a conversation between Al Cleveland and his father when they're talking about whether or not they could reimburse him for expenses if they have to fly him to Florida or, you know, get him to a place where he feels safe because he felt like if he told the truth again, that there would be consequences for him because he was going against his father, he'd be labeled a snitch in the community. And, you know, I then emailed him and asked him for a meeting, and I didn't hear back. I heard back finally last week for the first time, that we have a meeting with him on March 18th. And I found that curious timing. And I said to JD this morning, did you tell anyone you were coming on the show? And he looked at me, and it's a small town. A word travels fast. So I have my suspicions. But I would make Tony Sillo the following offer. Two things. If you have any evidence that these men actually did this, any whatsoever, with your blessing, Joe, I'd offer him a seat right next to me to show the world what the evidence is. Sure. Tell me what the evidence.

[Joe Rogan]

Come on. On.

[Josh Dubin]

And how about this? Rather than do this behind closed doors on the 18th, how about let's open it to the public? Public. I just argued for a sentence commutation before Governor Desantis last week. It was a public hearing. I had been told, just as I heard from J.D. it just gives me fuel. I don't think it'll happen. I was told that he has never publicly listened to a sentence commutation ever. And you know what? It happened. And he listened, and he's considering the case. And I feel like if we talk with each other and not at each other, we can get to the right place. And I'm not this. I want to be really clear. I have deep respect for what prosecutors do. I have Deep respect for Tony Sillo's commitment to public service. I don't know the man. I don't know him personally. I don't know anything about him. But I do find. I find it really difficult to understand why he took such an interest in this case, such that he blocked justice from happening and withdrew the state's position. How about hear us out and meet with us before you withdraw the joint motion to dismiss? How about that? How about you hear the evidence before making it the first, like, official act or among the first official acts? It was just. Just. It's so. I don't. I'm not optimistic going in. But I can tell you this. I have found something as recent as yesterday where alternative suspects were brought to the attention of the Lorain county prosecutor. And wouldn't you know that the person assigned to investigate these alternative suspects and. And to liaise with the police department was one Tony Silicon. I saw that document for the first time yesterday.

[Joe Rogan]

So what do you think that could mean?

[Josh Dubin]

I don't know what it means. I'd like. I have a lot of questions. Do you. What did you do to investigate these men? One of their. One of their ex wives says that he was cleaning bloody clothes the night of the Marshall Blakely murder and he knew her. I don't know what it means, but I'd like to know. I have questions. You know, what is it? Truth crushed to earth. Truth crushed to earth shall rise again. It always. The truth comes out at some point. And I am singularly focused on finding out as much truth as I can about this case. And I just won't let up until I find out it. Something's wrong, and I want to figure out what it is. But these men are suffering. They should have been out in December. And to continuously, needlessly delay the process. Hard to imagine.

[J.D. Tomlinson]

You know, Joe, I think we're also getting in this dangerous territory where we're not. I mean, the idea that you could ever prove them guilty with this evidence objectively is impossible. Now we're getting in this dangerous territory where we're having to prove their innocence. And that's significant because that is not the standard. And so when the case is that bad that you have to then just continue to try to find out ways to prove these guys innocent, which is. It's difficult. I was talking with my father. I said, I can't prove you didn't kill Marshall Blakely on August 8, 1991. I can't prove that. So we're in this dangerous territory now where we're Trying to actually just argue actual innocence. And the standard is proof beyond a reasonable doubt. It's not even close. It's not even close.

[Josh Dubin]

You know, and where do I.

[J.D. Tomlinson]

Scary. Yeah.

[Josh Dubin]

And all I want to do is. What I want to do is do what I did with JD is to say, you know, how many times in your life do you have a chance to say, you know, something was really wrong and I helped make it right? And Tony Sillo has that chance. I mean, how many moments are there when you have the ability to impact other human beings in a way to set them literally free and to end the most unfathomable of nightmares? And he has that chance. I'm trying to appeal to. You know, I don't want there to be some nefarious conclusion drawn from. Maybe he did investigate alternative Sussex. Maybe there is an explanation for it. One thing I know for sure is that no one has been able to show me any physical evidence, any eyewitness account. And actually, we have been able to prove their innocence. What constellation of fate would come together so that you could show to a factual certainty that Al Cleveland was not in Ohio on the night these killings took place? He meets with his probation officer, and he's seen by multiple people. And, you know, what more do you need that's standing alone? And then you factor in Avery saying, I made it all up, and you factor in the fact that the story he tells is belied by the physical evidence. It should. It is so easy to put people behind those bars, and it is a. It takes almost a miracle to fight their way out. So am I hoping for a miracle here? I hope not. I hope that these individuals that are presiding over this put whatever it is aside that is causing them to hang on and say, you know what? We just got this one wrong. We can't stand by this and think about this.

[J.D. Tomlinson]

Also, the only person to ever place themselves at the murder scene is Avery Jr. He's the only one, and he's the only one that wasn't charged. It's fascinating. He admitted basically to being complicit. Fair enough. I mean, you're at the murder. It's happening. You're there. You're the only one that has been charged. In fact, I think maybe one of the facts you left out, Josh, is. In 2004, he implicated his own father, Avery Sr. Who went to the police originally. He said, I think he killed her. I think he killed her. And told me to tell that story to cover up not only his guilt and killing, that he did know Marsha Blakely. There was some. Some reports that they had a contentious relationship. So, you know, it's very likely that, you know, the two individuals that implicated these individuals may have been involved with the crime. It's. It's. It's fascinating. And. And, you know, I've just never seen cases like this before. Like I said, I can't stress it enough. If I took this case to a bunch of fifth graders, they would be objectively able to see that this is a crazy, bad case. I mean, it's not even close.

[Josh Dubin]

And for the retort to be, well, four juries saw it another way, and court saw it another way. That's not true. These juries did not see that. This man said, I made it all up. And, you know, it always leads to this place, like, what do we do? You know, I. If you're a citizen of Lorain county, you want to feel that this couldn't happen to you, regardless of what your background is. I would think that the citizens of Lorain county would, at some point, demand action here. These men are not expendable. Whether you disagree with. Look, I'll be the first one to say it on behalf of my client, on behalf of Al Cleveland and the others. They're not proud of the fact that they were dealing drugs back then. They're not proud of the life they were living. That's not a reason to pin a murder on them.

[Joe Rogan]

Absolutely. And, you know, the reality is, if you grew up where they grew up and you lived their life, you're probably selling drugs, too.

[J.D. Tomlinson]

100%.

[Joe Rogan]

That's reality. Nobody likes that. Everybody's got that pulled them up by their bootstrap in their head. That's not real. That's not real. You grow up in crime, you commit crime.

[J.D. Tomlinson]

100.

[Joe Rogan]

It's not 100. That one. If you grow up in crime, you got to commit crime. Some people get out. Some people realize the folly of other people's ways, and they have incredible strength and resolve and discipline. And we get extraordinary people from those circumstances, Whether it's in athletics or art or music, comedy. There's a lot of people that grew up in horrific circumstances. They became very extraordinary because of that pressure. But that's not normal. The normal thing is everybody gets beaten down by what's around you. You imitate your atmosphere. You're a part of a system that seems inescapable to all your family, to all your friends. People getting locked up, getting out, they're getting murdered, they're selling drugs. It's. That's your reality. And if you grew up, up in Connecticut and you go to private school and you're. You're sitting here talking about this like you. You're so lucky. You don't know how lucky you are to get. If you're a person that's never committed crimes, never gone to jail, and never done anything horrible, you are so lucky.

[J.D. Tomlinson]

That's right.

[Joe Rogan]

You're so lucky. You're so lucky you didn't have to shoot somebody who was stealing money from you because you're both involved in some crime together and he was going to kill you. And all of a sudden you're in jail, you're like, what the fuck have I done? That's. There's people out there doing that.

[Josh Dubin]

That.

[Joe Rogan]

There's people out there that are committing crimes wishing they didn't have to commit them, wishing they had some sort of pathway to life or some life skills or some education or counseling or mentorship or something that have given them a path to get out of there and be what everybody wants to be, a normal, healthy person who's enjoying their life, enjoying their family, enjoying their friends. And hopefully you get to make a living doing something you like doing, too. That's what everybody fucking wants. Just. Everybody doesn't grow up in the right circumstances. Some people just get a roll of the dice, one right out of the gate, pop out of the vagina, right into chaos.

[J.D. Tomlinson]

That's like Chris Rock had that joke, you know, Kind of depends on what vagina you fall out of, right? I mean, I got lucky. I mean, my parents. I didn't come from money, Joe, but my parents are still together. They cared about what I was doing. Did you get your homework done? Did you get your homework done? You know, I mean, and I remember having these clients, and it really taught me a lot where it's like they never even had a shot.

[Joe Rogan]

So they didn't have a shot. I mean, so many of these people, they're just growing up abused physically, mentally, they're seeing drug addiction in the household. It's just, you know, it's not the same for everybody. So, yeah, it sucks that they were selling drugs. It sucks that anybody sells drugs. It sucks that people die of overdose. It sucks. Sucks that people get addicted. All that sucks. But that's not murder. You know, what these people did and you can't charge people for, they didn't.

[Josh Dubin]

Do, you know, And I. And I do. I. I've been called a lot of things. One of them that I take exception to is being called a race baiter. I find that really? Who calls you problematic? You know, trolls on the Internet. They don't matter.

[Joe Rogan]

Stop reading comments.

[Josh Dubin]

I know, but one of the things, one of the things.

[J.D. Tomlinson]

That's a robot.

[Josh Dubin]

One of the things that people should read if you want a better understanding of what it's like to grow up a minority in this country or black in America again, four black men in a very white community that were from out of town and drug dealers. So read Cast by Isabel Wilkerson. And you know, before you go judging what is going on in terms of, you know, your perception that people should pull their self up by their bootstraps, you try being born into a caste system.

[Joe Rogan]

Oh C A S T E C.

[Josh Dubin]

A S T E and we are a country and I'm not on my soapbox. This is a fact. And if you can dispute anything in Isabel Wilkerson's book, this is a caste system that exists in America since its inception. And the experience of a black American in this country is different than that of a white American. So I think that these wrongful convictions happen disproportionately to people of color for a reason. And we have to start changing minds and we have to start getting people to come back to. I don't know what's more innate. Is it innate to be to find the humanity within ourselves or is it more innate to tear each other down? We all have that decision to make. Make. I don't know what it is about human beings where there's some sort of, you know, ostensibly it's like some satisfaction in the tearing down of another. Yeah, I know where that comes from. It comes from a weakness within you. It comes from a hole that you're trying to fill. What we should want is, you know, uplifting these people that have been born into circumstances that are just different. Different. I come from a middle, middle class family, you know, sometimes trending toward the lower end. My dad had a knock around guy from Brooklyn. My mom was a school teacher. And I think that going through some of those struggles set me up for success and to learn how to scrape a little bit. But I didn't have the experience of someone that was born in Watts or Bever Stuyvesant or Harlem. I just didn't. And you know, I. I'm a little less quick to judge. Me too, that, you know, if more people had your sentiment, Joe. Right. That sometimes it's a little bit deeper than you think as to why someone resorts to committing a crime.

[Joe Rogan]

It's almost always deeper than you think. I mean, I'm Not a full, believable believer in determinism. Because I think will is real. I think free will, there's an element of will, and that's one of the reasons why we seek inspiration from others. Right? Inspiration is fuel for will, whether it's reading or just watching how people live their lives by example, that fuels people to make better decisions. Is that a part of determinism? If it is, maybe. I do believe in it, but I think that there's a certain aspect of will. But you can't deny circumstances. You can't deny environmental influences. You can't deny. Deny poverty. You can't deny growing up abused. You can't deny those things. We have a real problem in this country is that we only treat the side effects. We only treat the symptoms of this greater problem, the symptoms of the crime, the side effect. They're a side effect of poverty and of horrible environments that never get fixed. And that probably a lot of them are there because of red line loss and because of. Of Jim Crow laws. All of it started out in, you know, in the 1950s and 60s when they started making these places where you literally couldn't sell to black people. I mean, there's tracks of Baltimore that were, like, sectioned off where you. You could not sell these areas to black people.

[Josh Dubin]

You would love this book. I mean, you. The Cast by Isabel Wilkerson. I feel like a paid spokesperson for it. But she talks about how, you know, there's very real consequences from the practical implications of what Jim Crow laws did to fragmenting our society. And it's not as if this went on a thousand years ago.

[Joe Rogan]

Right. It would take hundreds of years to mellow out. You know, this is like you're talking about the civil rights movement. You can watch videos on YouTube of them sicing dogs on protesters. You can watch that. It's from the 1960s. You could see all that. You know, that's my childhood. That's when I was a baby. That was going on, okay. You know, and here I am an adult, and there's people alive that experienced, that went through it, and then their children went through it because they carried that trauma.

[J.D. Tomlinson]

And, you know, resource is so important when it comes to defending yourself, too. I mean, I remember when I was a kid, I watched the O.J. trial, and what $8 million can do is pretty extraordinary. You know, you can have juries that are simultaneously going on. You're testing theories out while the trial's going. And, you know, a lot of these guys get charged with crimes. They kind of get Ushered through the system. You know, sometimes they'll get a good appointed attorney, sometimes they won't.

[Joe Rogan]

That one, to me, seemed like that was going to go that way anyway because of Rodney King. I don't think that had anything to do with being a good jury system or that definitely the prosecutors weren't as good as the defense attorneys. I think that was just horseshit.

[J.D. Tomlinson]

Kind of a foregone conclusion.

[Joe Rogan]

Yeah, the way he's trying on the.

[J.D. Tomlinson]

Glove, like out of here, gonna just slip it on.

[Joe Rogan]

It was a circus. But it was also a wake up call to people that just because someone's guilty doesn't mean they get convicted. That, that you can see it that way too. I remember watching that case, watching how they, they did it live on television. The Verdict. And I remember being in my apartment going, whoa, this girl I was dating at the time, she started crying. She couldn't believe it.

[Josh Dubin]

I, I, I remember where I was when that verdict was read. I was shucking oysters at Barnacle Bills on North Monroe when I was a student at Florida State.

[Joe Rogan]

Wow.

[Josh Dubin]

And I remember feeling like something really awful had just happened. But I understood it because of Rodney King, and I understood it not just because of Rodney King, because of what had happened to the community in Los Angeles that for decades had been abused by police. Now, whether or not one wrong begets another, and whether that's rough justice, you know, I don't even feel like I'm in a position to say. I don't think that there's ever been a more guilty person put trial than O.J. simpson.

[Joe Rogan]

Pretty fucking guilty.

[Josh Dubin]

I mean, you have the victim's blood in your car, in your house.

[Joe Rogan]

I mean, somebody gave me a copy of that book that he wrote. If I did it and my wife threw it out.

[J.D. Tomlinson]

Did you even get to read it?

[Joe Rogan]

I never was going to read it. It's one of those books I was just going to put on the shelf.

[Josh Dubin]

I just watched the news.

[J.D. Tomlinson]

You know, there's certain books so wild.

[Joe Rogan]

You have somebody in your office, you go, look, somebody gave me this book. I'm not reading it.

[Josh Dubin]

So it's so difficult because, you know, one, one thing that always stuck with me about that case is the, and I won't mention them by name, the moral high ground that some of the lawyers involved have taken, you know, on various social and criminal justice reform issues. And always in the back of my mind, I'd be like, you fucking defended O.J. simpson. What are you talking about? That's number one. And the second part of it Is that the human cost behind that tragedy? Also? I have these seared images into my brain of that Goldman family. The sister and the father.

[Joe Rogan]

Yeah.

[Josh Dubin]

Where they were very outward with their torment. And I recently watched the. I. I'm a sucker for it. I guess I'm admitting it for true. The true crime genre. But I watched the latest documentary. There's a new one on Netflix. There's always a new one on O.J. o.J. And. And it's very well done. And it's like 30 years later. And I know that there have been a few. This one is excellent. And, you know, Kim Goldman is still. This ruined her life. And you know, on the flip side, you have these, you know, when there's a wrongful conviction, that was in my mind a tragedy going the other way. But when there's a wrongful conviction, it's not just the people that are in there doing all the suffering. It's their families, it's their kids. You know, there is. It has a ripple effect where there is a community of people fighting for them. And I just wish I had some sort of magical power to pull these prosecutors into what that emotional tumult is like. I was grateful that I had had, you know, JD Was able to let his guard down and I don't know, but for his experience, being wrongfully accused of something and, you know, that he would have. Have had the openness to hearing it and, you know, the, the way that he was charged with a crime without a grand jury. And I don't think that there's a person among us that if in your. In your worst moments, if someone was recording you, you, and you're saying things you wish you didn't say to a significant other, that's. That's what he did. That's the crime. I mean, hey, I'll tell on myself. There are things that I've done that if someone was recording it or things that I've said that I wish I didn't do or say that, you know, but for the grace of God, go there I it up.

[J.D. Tomlinson]

Yeah.

[Josh Dubin]

But, you know, I mean, I. Anyone in their private moments, you know, and then to just use that to weaponize and, and undermine, you know, to me. Is he a perfect man? No, he's not a perfect man doesn't exist. Yeah. Am I saying it because he ended up agreeing with me? No. Has. He's. He's a human that errs just like all of us. And I, I think we need more prosecutors, more judges like this man that have been on both sides of it and are willing to set their egos aside, willing to suffer whatever consequences come from it. You know, he told me at one point he, when he was nervous about doing this, these people ruined my life because I exonerated two people. He said they've been after me ever since. And the fact that that sort of one upmanship and that competitiveness that you referred to earlier, it's just sad to me that we can't get over ourselves enough.

[J.D. Tomlinson]

What bothers me so much is that I gave him that opening. I gave him that opening and somebody was hurt that I cared about very much and, and used and exploited. And it's not like they're calling her today going, hey, how are you doing? Are you doing okay? I mean, it was simply, you know, political. It was just political in, in its entirety. And I, I feel like I had a lot more years, Joe, to kind of look at these kind of cases, because I was open to it. And, you know, when I, when I mentioned that those are just the only two I reviewed, how many more are there? And I'll never see them. And it was because of a mistake I made.

[Joe Rogan]

Do you think you're going to run again?

[J.D. Tomlinson]

You know, I really loved, I really love the experience of politics. I was a door to door guy, Joe. I didn't have any money in the beginning because nobody gives you money when you first start. And so I just went door to door like eight, nine hours a day. My dad would take me. My dad's 75 now, but he was 70 and he was. You're a big fucker.

[Joe Rogan]

I wouldn't let you in my house. I believe this guy's gonna rob me, brother.

[J.D. Tomlinson]

You'd be surprised. You'd be surprised.

[Joe Rogan]

People just let you right in.

[J.D. Tomlinson]

You know what? It's, it's.

[Joe Rogan]

You look a little too dangerous.

[J.D. Tomlinson]

I got really good at kind of at reading somebody when they came to the door. How quickly I could be, how, how much time I could take. My goal was to get you to smile, be happy that I show up, and then leave before you ask me to leave. And I really enjoyed doing this. I really, I thought it was going to be the rest of my career was gonna be politics. And so I'm at this kind of interesting crossroads where I don't really know what I'm going to do next.

[Joe Rogan]

Well, hopefully this conversation will help you in that regard.

[J.D. Tomlinson]

Yeah, maybe.

[Joe Rogan]

You know, I'm sure it will. And I'm hoping that all the stuff that you reveal that will cause people. Let's be as charitably as charitable about this as possible. Just review things and maybe take the correct approach.

[J.D. Tomlinson]

I hope it does.

[Joe Rogan]

It seems like if you expose something to this extent that you have today, it seems like something has to be done. And if you. You can't just allow this to go on. There's too much. Too much we know now.

[J.D. Tomlinson]

Yeah.

[Joe Rogan]

And too much that's been revealed.

[J.D. Tomlinson]

I don't want egos to get in the way.

[Josh Dubin]

Well, I also think that, you know, if there's more lurking beneath, it's going to get found out at some point. You know, we've. We filed a public records request with the AG's office so that we could see what communications occurred between, if any, between the incoming prosecutor, Sillo and Yost, who's the AG of Ohio. We're entitled to that. And, you know, at the time this decision came out, the first decision from Judge Cook, we filed a public records request with him and he sent it to us, and it turned out that. Well, I don't know if it was before or after this decision, but this guy Rosenbaum was the one, I believe, that made the request or that sent an email to Judge Cook saying, you were at the Lorain County Prosecutor's office in the past. Maybe you shouldn't be sitting in judgment of this. So there are communications that. That must exist, I would think, between the AG and the prosecutor. But, yeah, all this will come to light, and we have. We're not going anywhere. We're going to keep on pushing until. And the easy thing to do is just. All we're asking is look at the objective facts. That's why I want to do it. I think what. What would help, you know, in terms of reform is what's the downside of hearing this out publicly? Let me make my presentation to you and make it a public hearing. What. What. What is there. What's the downside of the community knowing what evidence exists against these four men. Men or the lack of evidence? And I just hope we. We end up connecting with. With them on some sort of human level so that they can put whatever it is aside that is causing them to have this pushback. And, you know, the. These. I used to be way harder on myself about making a change happen. And you know this because I've. You've watched my evolution in that regard. And I just realized we just got to keep, you know, building the sand castle one grain at a time. And when you again. Said it before. I'll say it again. When you walk hand in hand with another individual and helping Restore their freedom. I don't care.

[J.D. Tomlinson]

There's nothing like it.

[Josh Dubin]

Yeah, there's no drug, there's no material. There's just nothing that can match that feeling of having. Of playing a role in that and helping them just live out their days breathing free air.

[J.D. Tomlinson]

You know what I find most interesting? And Nancy exonerates. This is like the lack of bitterness is pretty amazing in some of these exonerees. You know, you're dealing with somebody that did 15 years for a crime not only that she didn't commit, but that no crime occurred. And she's still not bitter. And they still fight her at every moment. Right now she's battling. You know, there's a statutory remedy for getting paid when you're an innocent individual, when you're in jail, jail. But you have a relatively high standard of proving you're innocent to get the money. There's nobody in a better position to prove they're innocent than Nancy Smith and Joseph Allen. And they still fight them tooth and nail every day. I mean, after the case exonerated them, I tried my hardest to. To forego the interest of the state. And I actually stipulated in a motion that they were innocent, which is very unusual because obviously that's acknowledging that the state screwed up pretty big. And because my goal was to get her paid. I mean, you know, I got criticized, you know, from some people that basically, you know, that that shouldn't be my role, but my role is, you know, if hurting the state represents justice, then that's what happens. And, and sometimes it's costly. You put someone in prison for 15 years because you were reckless in the way you did it, then they should deserve compensation. And she was at the peak of her earning years. You know, she was a middle class woman, but she was at the peak of her life. And in know, I think what I really want to get out today is Amber is her daughter and she's got several children and they've become like family to me. And Amber wanted to make sure that I told you how big of a fan she was, Joe.

[Joe Rogan]

But shout out to Amber.

[J.D. Tomlinson]

Shout out to Amber. She's gonna love that. But the truth of the matter is I got to know them and I got to know the fact that like their story is the untold story. Imagine having your mom leave you and then for the worst allegations that you could possibly have is child molestation. And so every day they had to fight in school every day. And the older brother had to take care of the family. And the fact that she's still Fighting to, to. To get paid 50 something thousand a year for the time that she was in. That's what the statutory remedy is. And they're still fighting it every minute. Eventually I had to get off.

[Joe Rogan]

So crazy.

[J.D. Tomlinson]

It's so crazy.

[Joe Rogan]

It's like, it's like such a small amount of money.

[Josh Dubin]

It happens in every. It happens in every state. I was on the way here, I just took his card out of my wallet. It. I was on the way up here and I was sitting next to a guy that I asked to borrow his phone cord to charge my phone. And we started talking and it turns out he's in the Florida House of Representatives. His name is John Snyder, Marine Corps veteran. Wasn't a lawyer, which made him in many ways a heck of a lot more down to earth. And he told me he got into politics because he was like, tired of complaining and wanted to actually do something different. And we got to talking. Where are you going? I told him where I was going. He happened to have you. He happened to be listening to you and Elon from the other day. And I said, I'm actually going there. And he said, you know, I'm a Republican and growing up in this party, I was all tough on crime, and now I sit through the claims bill process. A claims bill in Florida is when you have been wrongfully incarcerated and you're asking the legislator to compensate you. And he said, it changed my entire perspective on, you can be for a position or against a position, but you don't understand the subtleties and the vagaries until you're in it and to have somebody. And then he took out his card and gave it to me and he said, if there's any way I can help, there's some bills pending. And that kind of openness and that kind of, you know, he struck me as a guy that was super comfortable with himself and secure with himself to be able to have that approach. And if we could all have that approach. I'm not right about. I've fucked up plenty. I'm not right about every position I take. I'm just trying to find, you know, some common ground. The humanity in all of us should always bend toward the truth. Right? And that's what we mean when we say we want justice for these men. That's what we want.

[Joe Rogan]

It's undeniable. How could anybody argue with that?

[J.D. Tomlinson]

No. Wow. You know, it's pretty well laid out. When we, when we Talked about that 2008 hearing with Al Cleveland, I was a young attorney. I was probably 27. And I'd only been practicing for a year. And I remember being in there waiting for my case to be called. I had another client and I saw one of the most unbelievable interactions I've ever seen in a courtroom. Still this day was Al Cleveland begging William Avery Jr. To tell the truth, begging him. And I didn't know exactly what the facts were, I later found out. But, you know, I'm sitting in this courtroom watching what seemed to be very genuine emotions, emotion, and, and a man begging another man just to tell the truth so he can get out of prison. And it, in, it stuck with me. And, and even now, it's like, Al's a very charismatic guy. You know, what's, what's, what's devastating is what was his potential?

[Josh Dubin]

Well, Al, Al and his wife Roberta are remarkable.

[J.D. Tomlinson]

Still married.

[Josh Dubin]

Still married.

[J.D. Tomlinson]

Married the whole time. Joe Crazy.

[Josh Dubin]

And, you know, John Edwards is still suffering. He's in prison. Benson Davis and Lenworth Edwards. You know, my message to the four of you is I won't stop fighting. Unfortunately for my mental health, but fortunately for your prospects, I'm going to keep digging until I get you guys free. And thank you again. I always want to make sure I show my gratitude to continuing to give this forum. It makes a huge difference. I mean, if, if anybody not saying it makes a huge difference is a terrible understatement. In my wildest dreams, if someone would have said to me the prosecutor that agreed to set these men free would be sitting next to you on the show, I would have, I would have bet the house against it. And I think that this is just a remarkable forum to be able to tell these stories and to get into the level of detail where we can touch people. And there's too many people in criminal justice reform that don't extend, you know, their hand to prosecutors and, you know, people in law enforcement. And I have, it's been an eye opening and incredibly rewarding experience to get to know these folks that feel just as passionate about issues that are on the other side, side. And that's what, you know, has led me more to the middle. And, you know, I thank you for your humanity, JD And I, I hope you do run for something again because we need more people like you in those seats.

[J.D. Tomlinson]

Well, you know, I appreciate you saying that. I think that like you said, humility is important. And I've always tried to pride myself on, on admitting when I'm wrong and knowing when I'm wrong and knowing when I don't know. I think one of the problems I See, in society now is like, everybody wants to know, know, and they don't know. Right. And. And it's, it's. It's like sacrilegious to say you don't know.

[Joe Rogan]

Right.

[J.D. Tomlinson]

And. And I find that to be really just lying. You know, if you're just guessing, you're just lying, really. And so it's foolish. Yeah. And so I tried to always put my ego in check. And, and I'm telling you, I can't stress enough that doing defense work is really what allows that vision for me to kind of understand where it can happen. Because I've had innocent clients. And in my experience, you know, it was most likely domestic violence cases because, you know, passions arise, there's cheating going on, there's infidelity, you know, emotions run high, it's easy to make accusations. And so those were the scenarios. Now, obviously, I gotta make a caveat. There's very terrible domestic violence cases that are awful, but because of the dynamic between the victim and the. And the perpetrator, that seemed to generate, in my view, any cases that I had that were innocent typically were cases like that where, for example, the allegations didn't match up. So. So, you know, someone said they struck their head on the curb, but there was no injuries. You know, stuff like that. But it's so easy to get probable cause. Probable cause is very easy. And so, you know, I was so lucky when I got charged. I joked around with Jim Burge, my. My co defendant and mentor for many years, who taught me a lot, was, thank God I've got the smartest lawyer as a co defendant ever. You know, thank God, you know, because, I mean, you know, I was. I. And I also learned that I'm probably not the best client as a lawyer lawyer. I used to about clients like me, and I think I'm that way. You know, I'm sitting at the defense table trying to dictate everything to my lawyer. You know, it's like I wasn't the best client and shout out to Mike Camera, who was our lawyer, who really had to deal with me. But the truth of the matter is when you, when it happens to you, I. The only thing I disagree, Josh, is even if it didn't happen to me, I knew that it could happen. I would have listened no matter what. I think that, you know, I was briefed about this case in 2020. I was invited down to Cincinnati for a Ohio Innocence Project, but I think I was probably the only prosecutor in there. But I got to be honest, I never really felt comfortable in the, in. We would go to Ohio Prosecuting association meetings. My, my mentor and I, and we never really fit in. I mean, prosecutions, they're fantastic, but, you know, they're almost like the hall monitors in class, you know what I mean? And I always just thought defense attorneys were much more fun to hang out with. But, but, but we always kind of. And we would. Because I have so much respect for defense attorneys. You know, I remember the, the presenters would go up and kind of clown on defense attorneys and, and I look around and me and Jim were the only ones pissed off. You know, we were pissed off going, hey, what the hell? You know, defense attorneys trying to do their thing, man.

[Joe Rogan]

And thank God it is opposing quarterbacks a pussy.

[J.D. Tomlinson]

And that's the problem. And that's the problem right there, Joe, is, is really, we're all looking for the same thing, justice. And you hit it right on the head. It's about winning. And I almost trust. I trust police much more than I almost do prosecutors because it seems like there's an inherent desire for them to get it right. And it's more of the prosecutors that want to win.

[Joe Rogan]

Yeah.

[J.D. Tomlinson]

And I just had such a great experience with law enforcement, and they changed my mind because I, I didn't really like the narrative and I criticized my own party about it. The anti, you know, law enforcement rhetoric is just unwarranted.

[Joe Rogan]

Agreed. It's a terribly difficult job that gets no reward and your life is in danger every day.

[J.D. Tomlinson]

And Joe, when I was county prosecutor, I had about 10 police involved shootings with fatalities in four years. So about two a year, two or three year. Every one of them was good. Every one of them was good. And, you know, I would get with the officers. And I had a policy which is a little unusual, where if I made a decision that, that a shooting was good, I would make a decision. That's it. It never went to the grand jury. It's easy for prosecutors to kind of just dish it off over the grand jury, then it's not their responsibility anymore. But I felt like I wasn't going to put something through the grand jury that I didn't believe in. So I had officers that, you know, the, the difficult part about being a police officer is when you have to use that lethal force, then you get people armchair quarterbacking it for the next six months. Do you know what I mean? On what you should have done, what you shouldn't have done? And what happens is what they get in the end of that is, hey, congratulations, you're not getting Indicted, when in reality maybe we should say, hey, thank you for saving your partner's life and thank you for saving the community from a guy that's obviously dangerous enough to pull a weapon on a police officer.

[Joe Rogan]

I was just watching an officer involved shooting on one of the social media platforms the other day where there's this young, very large man who seemed to be. Something was wrong, some, some mental issue. Yeah, he was just talking crazy. Maybe he was on drugs. The cops are trying to calm him down for like the longest time. It's a long, prolonged video. He escalates and then he eventually gets physical. And I think they tried to tase him and it didn't work. And then they wind up shooting this guy. And the officer broke down in tears. When it was over, he was devastated. He couldn't believe he made, he had to do this. He was horrified. His hands were shaking. The other officer was comforting him, trying to get him to breathe and calm down. But you, when you see it in real life like that, you see what, how it actually went down. Like how they're trying to make these split second decisions and, and this big crazed guy who's out of his mind is running at you.

[J.D. Tomlinson]

Right.

[Joe Rogan]

And you don't know what to do. You don't know what's going to happen. Is this going to be the end of your life? And it happened. That happens all the time. Cops get their guns taken away all the time. It's a terrifying situation.

[J.D. Tomlinson]

And, and so I, I, I always am very careful to kind of parse out the fact that, you know, I'm always amazed by how much patience they really do show.

[Joe Rogan]

Yes.

[J.D. Tomlinson]

I mean, the millions of interactions that happen every day. Now listen, does it happen? And there's, and there's bad conduct? Yeah. I indicted police officers when I, there was someone I had to indict. But I believe, I believe the vast majority just don't want, they just want to go home.

[Joe Rogan]

100%.

[J.D. Tomlinson]

They just want to go home.

[Joe Rogan]

The vast majority of interactions that people have with police are positive. One only gets to see the ones that are negative that get recorded.

[J.D. Tomlinson]

That's right.

[Joe Rogan]

And then it's, you get sampling bias because all you see is negative. And so you start thinking. So I mean, I'm sure you saw that Harvard professor who conducted that study about violence and in police encounters and he found it was like it wasn't biased towards black people and people attacked him. Right. Because we're seeing it every day. You're seeing these videos every day. But they're the only Videos you're seeing.

[J.D. Tomlinson]

That's right.

[Joe Rogan]

There's the only ones you see. You don't see the. Have a nice day. Thank you for your service. I appreciate you, too. Knuckles. Drive safe. You don't see those.

[J.D. Tomlinson]

That's right.

[Joe Rogan]

You don't. Those are real. Those things happen where cops, you know, smooth things over and everybody's okay and they go home and everybody's fine. That. That happens, too. That happens a lot. It happens way more than the other way. But you think cop murder, black people bad. Everything happened horrible. Bang, bang, windows shot out. You see. You see those videos over and over again, and they run like a fucking slideshow in your mind.

[J.D. Tomlinson]

Yes. And. But the. You know, those are statistically insignificant almost when it comes to the grand scheme of things. I mean, it doesn't happen very often. When it does, we have to punish it harshly. But I just. I grew more respectful police officers the closer I got to them.

[Josh Dubin]

I think the big problem that people have these days is you see something and you see it often, and you see it replayed, and it's just like you said, it becomes a slideshow on your mind, and it's hard to know how frequent the occurrence is. I had an interesting thing happen to me recently where my son Carter made the travel baseball team. And I'm like. He's like the new kid on the team because we moved from New York and we went to our first tournament, and we're. I'm the new dad hanging out because it's out of town, and I sit down at a table with these other three dads, and they're introducing themselves, and we just struck up a conversation, and we were talking about bias, and I said, you know, I would probably be the wrong. We were talking about, you know, juries and jury service. And he. I said, you know, I'd be like, the wrong. Oh. Someone asked me. One of the dads asked me, how do I get out of jury service? I said, tell the truth, because we're all biased. We all have a bias against something. And I was like. Like, for me, I've done a bunch of cases where corrections officers, like, did something bad to someone, so I'd probably be bad for a case like that, because the reality is that most of them do their job and want to go home, and it's dangerous. But I was. I was recognizing my own bias. And I look around the table, and they're all looking at each other, smiling. And I knew it in that moment that one of them was a correction. Topic is my buddy, my Buddy Ryan gets jealous. And it was. I was like, oh, how do I wipe the. Off my foot? So I've gotten to know Ryan, and he's a corrections officer in Florida. He's. And he's just a great guy. He's quiet and soft spoken. And my daughter was going to the county fair, and there's, like, rough nights some nights where, like, kids try to start fights. And I was talking to him about it, and he goes, you know, I do security detail there, and I'm gonna. I'm not there that night, but I'm gonna tell the guys, you know, if she has an issue, have her call. And he's just a. He's a great dude, you know, and.

[Joe Rogan]

There'S great people in all walks of life.

[Josh Dubin]

And I look at him, and sometimes I'll be thinking, man, I wonder what his day was like, because he has, you know, a really tough, dangerous job, and I have such deep respect for him. And it was like one of those moments where I was like, that came out wrong. I articulated wrong. And I think the problem that a lot of people have, and we're in a society where you.

[J.D. Tomlinson]

It's.

[Josh Dubin]

You're so quick to pick a side and to label something, and I'm just trying to. To do a lot less, be quicker to listen and slower to speak when it comes to making some big judgment about a group of people, because, you know, you got to take each of these situations individually.

[Joe Rogan]

Well said. So well said. Words to live by.

[J.D. Tomlinson]

That's right.

[Joe Rogan]

I think we did it. I think we got it all out.

[Josh Dubin]

I do, too.

[Joe Rogan]

I do. Thank you, jd.

[J.D. Tomlinson]

Thank you for having me.

[Joe Rogan]

Really great, man.

[J.D. Tomlinson]

Thank you for having me.

[Joe Rogan]

I really appreciate you doing this and appreciate your honesty and the way you're able to express yourself.

[J.D. Tomlinson]

Thank you.

[Joe Rogan]

It was excellent. Josh.

[Josh Dubin]

Thank you for everything.

[J.D. Tomlinson]

My pleasure.

[Joe Rogan]

All right, bye, everybody.