Yes, YOU might go to prison

California Innocence Project Director describes horrifying real-life scenarios in new book

March 2023

BY LYNN MOLLER

Imagine this mind-boggling scenario: you’re going about your normal daily life when suddenly you’re accused of a crime you didn’t commit. Surely the truth will eventually prevail, right?

Instead, you’re arrested, convicted, and sentenced to prison. Your claims of innocence are doubted, ignored, disregarded.

Sound far-fetched? Think it could never happen to you?

Think again.

Anyone can be wrongfully convicted.

That’s the message of Justin Brooks, director of the California Innocence Project, in his new book, You Might Go to Prison, Even Though You’re Innocent. He reveals how it really could—and does—happen by sharing details from dozens of wrongfully accused cases and people that he and others have tried to help and exonerate.

“The book is filled with stories of ruined lives due to wrongful convictions and supported with research proving how common wrongful convictions are,” Brooks explained during a lengthy question-and-answer session with The Reporters Inc. (See below.) “No one wants to believe that innocent people go to prison because then you must accept that one day you might go to prison. But the reality is you might.”

There are 10 chapters in Brooks’ book, each title exploring one of the many reasons why, and how, innocent people actually end up behind bars:

* You Hired the Wrong Lawyer (Pleas with No Bargain)

* You Live in the Country or the City

* You Are in a Relationship and Live with Someone Who is Murdered.

* You (Kind of) Look like Other People in the World

* You Get Confused When You Are Tired and Hungry, and People Yell at You

* You Have or Care for a Sick Child.

* You Got a Jury That Was Blinded by “Science”

* You Work with Children or Let Them in Your House

* Someone Lies about You

* You Are Poor and/or a Person of Color

Brooks explores several harrowing cases in each of these chapters. Some involve his personal experiences representing innocent people; others are cases from other Innocence Projects around the world. These are heartbreaking and agonizing narratives, in which the average person can easily picture him or herself. Landmark litigation and research are intertwined with the stories.

Justin Brooks, Director of the California Innocence Project and author of You Might Go to Prison, Even Though You’re Innocent.

Brooks also discusses the importance of reforms to improve the criminal legal system. When an innocent person goes to prison, he says, we have a responsibility to get them out and address the problem(s) that led to the wrongful conviction.

“It’s outrageous that the richest country in the world locks up the highest percentage of its population and has the largest prison system in the world,” Brooks said. “We need to change that, and to do so we need to reject the politics of fear and bring more common sense and compassion into our system.”

Here’s an excerpt from You Might Go to Prison, Even Though You’re Innocent—from Brooks’ introduction:

In May of 1872, William Marion and his friend John Cameron traveled to Kansas from Nebraska with plans to work on the railroad for four or five weeks. Several days later, Marion returned to Nebraska alone but with Cameron’s horses and harnesses. Marion claimed he’d purchased them from Cameron.

A decomposed body found in the desert with a bullet in the skull that could have come from Marion’s gun led to murder charges. He was convicted, sentenced to death, and executed by hanging. Four years after the execution, Cameron reappeared alive and well. He told authorities he sold his horses and harnesses to Marion and fled to Mexico to avoid a shotgun wedding. One hundred years later, the Governor of Nebraska pardoned Marion.

Wrongful convictions are nothing new. And yet, when I began my criminal defense career thirty-two years ago, I often had conversations with people who were deeply cynical about the idea that innocent people are convicted in our criminal legal system.

In the 1990s, DNA technology changed the discussion. People began to be released from prison based on definitive scientific proof of innocence— nearly as definitive as John Cameron showing up alive after William Marion’s execution.

Since the 1990s, thousands of innocent people have been freed from prison. And yet, those freed people, those exonerees, are simply the tip of the iceberg. They are the lucky ones.

It’s hard to tell someone who is innocent and has spent years in prison they are lucky, but they are. They are lucky the evidence from their trial wasn’t thrown in the trash. They are lucky they didn’t get killed in prison. They are lucky they found a competent lawyer to listen to their pleas of innocence. They are lucky the lawyer spent time and resources on their case. They are lucky their case was assigned to a judge who would grant a hearing. And ultimately, they are lucky they were able to jump over the many barriers in our legal system to gain their freedom. The unlucky ones, regardless of innocence, die in prison.

Despite the thousands of documented cases of innocence, there’s still a cynicism surrounding the notion that innocent people are wrongfully convicted. Although the claim that innocent people never go to prison has softened, many still believe such instances are exceedingly rare or it only happens to people “who must have done something wrong.” This dismissive attitude results in the conclusion that “it happens to some people, but it won’t happen to me.”

That’s the reason I wrote this book. The criminal legal system is imperfect. No matter what country, state, city, or town you live in, you can be wrongfully convicted. This imperfect system acts on your behalf. It protects your family, your home, and your life. This imperfect system also can take away everything you have ever loved and cared for.

I’m confident once you read the stories of injustice that fill this book, you will see the possibility that you or a loved one could be the victim of a wrongful conviction. Each chapter will take you through causes of wrongful convictions that are typically beyond the control of those who suffer the fate of landing in prison as an innocent person. Maybe it’s getting the wrong lawyer, living in a neighborhood that is over- or under-policed, finding a dead body, or a host of failings by government entities and pseudo-sciences. Even though the statistical chances of this happening to you change based on factors such as race, gender, age, socioeconomic standing, education, and who you associate with, anyone, including you, can be wrongfully convicted.

Justin Brooks, marching to Free the California 12. (Photo credit: Heidi Brooks.)

Brooks’ introduction ends with this:

Although this book is dedicated to the causes and devastating effects of wrongful convictions, I don’t want to leave you with the impression that wrongful convictions are the only problem with the criminal legal system. There’s a great deal wrong with our system beyond convicting the innocent. Our unending devotion to antiquated notions of punishment in the hands of bureaucratic government agencies, combined with overwhelming political influences, has left us with a system that is often both impractical and cruel. In the United States, decades of tough-on-crime policies have created the largest prison system in the world, disproportionally filled with people of color, that incarcerates a higher percentage of our population than any other country.

We must not only address the issues in this book that lead innocent people to prison, but also holistically examine the criminal legal system and ask hard questions. What behaviors should be criminalized to truly serve society? What processes and resources are needed to serve justice? What sentences and remedies are reasonable responses to criminal behavior? What type of correctional system will return a person back to society who is less likely to commit more crimes? It is only by answering these questions that we can create a system that is just.

The Reporters Inc. is pleased to present the following Q&A with Brooks, in anticipation of the April 2023 release of You Might Go to Prison, Even Though You’re Innocent. It should be required reading for every law enforcement officer, prosecutor, law student, judge, and, well, everyone—because, once again, no one is safe from being wrongfully convicted.

Justin Brooks with Guy Miles after his conviction was overturned in 2017. (Photo from Brooks’ new book.) 

The Reporters Inc.: First off, tell us about Justin Brooks, your background, your role with the California Innocence Project, and what the CIP does, for those who aren’t familiar.

Brooks: I was born in the Bronx. I have five brothers and one sister. My mother was a British schoolteacher, and my father was an Australian pro tennis player. I grew up in different places along the East coast and spent my high school years in Puerto Rico.

Living in Puerto Rico as a teenager shaped my vision of the world. I was exposed to real poverty for the first time. I was still in the United States, but within a completely different culture. I learned a great deal from people who didn’t look like me or come from my background. I still go there every year and teach a course on wrongful convictions at Interamerican Law School.

I went to college in Philadelphia and law school in Washington DC in the 1980s and practiced as a criminal defense attorney in DC, Michigan, and Chicago in the 1990s. In 1995, I took on the case of Marilyn Mulero, a woman who was sentenced to death even though there was strong evidence of her innocence. I worked on her case with law students at a law school where I was teaching, and her case inspired me to start the California Innocence Project in 1999.

CIP is an organization (based in San Diego) dedicated to freeing innocent people from prison.  Law students and lawyers work together to investigate and litigate cases of innocent people who have been wrongfully convicted with the goal of freeing them.

The Reporters Inc.: How many people has the CIP successfully helped since its creation? How many convictions have you had overtured, people released from prison, etc.? And how many have you tried to help but, in the end, your efforts weren’t enough?

Brooks: CIP has freed 37 innocent people since 1999. Sadly, I couldn’t put a number to the amount of innocent people we have not been able to help. We receive thousands of requests a year, and each claim is assessed. Unfortunately, in most cases we determine we will not be able to develop the evidence needed to reverse the conviction. At trial, the prosecution bears the burden of proof, but we get cases after our clients have lost their trial and their appeals. We are the final stop. To reverse a conviction, we need to develop compelling evidence of innocence.  In most cases that is not possible, regardless of whether the person is innocent.

The moment Brian Banks is finally exonerated in 2012. From left: California Innocence Project Attorney Alissa Bjerkhoel, Brian Banks, Justin Brooks. (Photo credit: Heidi Brooks.)

The Reporters Inc.: How do you determine if someone has truly been exonerated? The National Registry of Exonerations says a person has been exonerated if he or she was convicted of a crime and later was either (a) declared to be factually innocent by a government official or agency with the authority to make that declaration; or (b) relieved of all the consequences of the criminal conviction by a government official or body with the authority to take that action. This definition seems to leave some people, whose convictions were overturned but weren’t tried again to determine their innocence, in legal limbo.

Brooks: I hate the fact that whether someone is innocent is often determined by whether the government takes an action to formally dismiss charges.  If a conviction is reversed that person is innocent.  In our legal system we are innocent until being proven guilty.  If a guilty verdict is reversed, then the presumption of innocence is in effect.  We don’t need to wait to hear what the prosecution has to say or do about it.  Often, they are deeply biased and vested in the conviction, and refuse to dismiss a case even in light of powerful evidence of innocence.

The Reporters Inc.: Of all the cases you’ve been involved with, which are you most proud of, and why?

Brooks: That’s like asking which of my two children I’m most proud of.  I’m proud of both. One is a special education teacher and the other is a public defender. I’m also proud of every case that has been handled by the California Innocence Project. I’m mostly proud of my lawyers and students who have worked those cases.

The Reporters Inc.: The title of the book infers that any one of us could become the victim of a wrongful conviction. But how likely is that really?

Brooks: It is true that based on your race, gender, socioeconomic standing, where you live, and other factors, there are significant statistical distinctions as to your chances of being wrongfully convicted, but anyone can be wrongfully convicted.  I’m so confident of this that I have even planned how to survive if I’m wrongfully convicted.  On day one in the yard, I’ll approach all the gang leaders and promise to work every day in the law library on their cases in exchange for protection.

Justin Brooks, fighting in court to free John Stoll in 2004 after 20 years of wrongful incarceration. (Photo from Brooks’ new book.) 

The Reporters Inc.: You devote two chapters of your book to those who work or live with children. Caregivers put themselves at risk every time they accept a child for care. There is no faster way to shut down a childcare program or completely devastate a provider’s life than with allegations of abuse of neglect. You even state in your book “If I knew then what I know now, I’d never have been involved in any childcare beyond our own family.” Yet we need the vital services these caregivers provide. Do you have any suggestions for educators, child care providers, or even family members to protect themselves from allegations of child abuse?

Brooks: I met my wife when I was in law school. She was a British au pair taking care of a three-year-old and two 18-month-old boys. After we were married, she ran a daycare business out of our house so she could make some income and take care of our children at home.  Around that time Louise Woodward, a British au pair who looked and talked like my wife, was falsely charged with the death of a baby in her care. It shocked and dismayed me at a very personal level. We now know that many parents and caregivers have been wrongfully convicted in baby death cases and at the same time there have been false charges for child molestation. There is much to learn about these topics in my book, but in short, do not make statements to the police that can later be twisted, get a lawyer, make sure that lawyer hires excellent experts, and don’t give up hope and give in to lies that are being told to you and about you.

The Reporters Inc.: Following up on the previous question, in chapter six you outline the 1995 case of Audrey Edmunds, a Wisconsin babysitter who was convicted of killing a child in her care based on the “Shaken Baby Syndrome” theory (now more commonly referred to as Abusive Head Trauma). With the help of the Wisconsin innocence Project, Audrey’s conviction was thrown out in 2008 after she had served more than 11 years in prison. The state chose not to retry her, claiming a new trial would unnecessarily re-traumatize the dead child’s family, but WIP leaders say it’s because prosecutors knew that the new medical evidence WIP had presented cast more than reasonable doubt on the state’s case. The Reporters Inc. is planning to release a documentary about Audrey’s case later this year and, in our research, we’ve found that the vast majority of medical experts, especially in the pediatric field (including the American Academy of Pediatrics), still maintain that most people convicted of Shaken Baby Syndrome/Abusive Head Trauma are guilty and that the defense experts who testify in hearings like the one that freed Audrey are simply confusing courts and jurors with extraordinarily rare medical scenarios and alternate theories that are either unsubstantiated or improbable. What are your thoughts on this?

Brooks: Absolute nonsense. I’m often amazed when people get so vested in their own beliefs that they ignore rock solid evidence that proves them wrong. We see that all around us in an era where science deniers have platforms to spread untruths. Doctors are not science deniers, but like lawyers they often have big egos that refuse to accept they are wrong.  Particularly when their work has led to tragic consequences like an innocent person going to prison.

Audrey Edmunds, the subject of an upcoming Reporters Inc. documentary.

The Reporters Inc.: How can we better prevent false confession-based wrongful convictions? What more is being done in this area?

Brooks: The most simple and cheapest way to lessen wrongful convictions based on false confessions is to record all confessions. It’s crazy that in 2023, when everyone is carrying a cellphone in their pockets, it’s not mandated in every state that every confession is recorded. With a recording, the jury could contextualize exactly what was said and understand the pressure that is often put on suspects in weighing the evidentiary value of the confession. There are also many reforms that need to be made in the way interrogations are done. They are usually not focused on getting the truth, they are focused on getting the suspects to agree to the narrative the police have already formed. 

The Reporters Inc.: Sir William Blackstone was an 18th century British jurist. His doctrine, which has become known as Blackstone’s Ratio or Blackstone’s Formulation, holds that “it is better that 10 guilty persons escape than that one innocent suffer.” Benjamin Franklin took it a step further and stated that “it is better that a hundred guilty people should escape than that one innocent person should suffer.” Do you think there is an inversion of that concept in the minds of those who are concerned only with getting a conviction rather that pursuing justice?

Brooks: The downside of the adversarial system is that it pits prosecutors against defense attorneys in a battle where winning often becomes the goal, not doing justice. And, in terms of jurors, the tough on crime rhetoric of the past few decades has created a great deal of fear in the general public that plays out in our courts every day.  If a prosecution presents evidence that a defendant is a member of a gang, or if a juror gets any other impression that this might be a person to fear, whether they committed the crime that is presented in court can get lost in the decision-making process.

The Reporters Inc.: Do you feel that the presumption of innocence exists more in theory than reality?

Brooks: I think jurors mostly try to do the best they can, but they are humans with all the biases and imperfections that come with being human. To expect that they can put their biases aside and make computer like decisions in making sure in every case the prosecution has met their burden of proof is unrealistic. Often it just comes down to the question of whether the juror thinks the defendant is guilty or thinks the defendant is not guilty.

The Reporters Inc.: Although defendants charged with a crime in our country have certain constitutional rights, they most often are at a disadvantage in their defense. Unless a defendant is very wealthy, he or she cannot match the resources available to the prosecution team, from the initial investigation through any appeals. This results in an imbalanced system that supports convictions. How can we level the playing field?

Brooks: The imbalance begins at the crime scene. The police are typically at the crime scene at the time of the crime or shortly thereafter. Thus, the defense is often relying on the police investigation while the police are fundamentally working for the prosecution. Evidence is often missed or ignored that could assist in the defense and the defense never knows about it. As the prosecution continues, there is not equal access to investigative tools, forensic analysis, or the many other advantages that the government has.

The Reporters Inc.: Despite strong evidence of innocence, it can be an uphill battle and take years for a wrongfully convicted person to be freed. Many prosecutors and even judges fight back hard and refuse to admit mistakes. Is there a way to overcome this resistance?

Brooks: It’s tough, but I’ve learned some things over the years that have improved my track record in getting cooperation from prosecutors and judges.  First, it’s important to establish credibility and that is done by being completely transparent and having a good track record of proving innocence claims. Second, putting blame on the prosecutors and judges for what happened in the past doesn’t help your current cause. Third, be civil and respectful and willing to get things done in a cooperative manner until it’s clear it doesn’t make a difference. Then, go to war.

The Reporters Inc.: Following up on the last question, in chapter four of your book you outline the case of a San Diego man named Uriah Courtney and how, despite DNA evidence that cleared him in a sexual assault, the deputy district attorney who prosecuted the case refused to accept the new evidence. The Reporters Inc. is also working on a documentary (in which you’ve been interviewed) about Uriah’s case and in our research we also found that the victim of this assault also still believes that Uriah was her attacker, despite the fact the DNA evidence, in your words, “matched the profile of a man who was approximately Uriah’s age, lived in the area, matched the general description, and had prior sexual assault charges.” How do you explain this?

Brooks: In terms of the prosecutor, she just refused to accept that she put an innocent man in prison. I think it is a tough thing to accept.  In terms of the victim, there is a dynamic where, after victims go through a faulty and suggestive identification process, the person they select is permanently embedded in their brain as the person who committed that crime. That’s why it’s so important to have good identification processes. The victim’s ability to identify the person who actually committed the crime can be permanently compromised.

Drawings and a photo array of suspects used to identify Uriah Courtney (as presented in Brooks’ new book).

California Innocence Project Attorney Alissa Bjerkhoel, Uriah Courtney, and Justin Brooks.

The Reporters Inc.: Additionally, we were told that despite the DNA link to the other man, the DA did not bring charges against him. How then, has justice been served in this case?

Brooks: It has not. This is what often happens when the police and prosecutors go after the wrong person. Once the mistake is discovered, it can be too late or too difficult to go after the real perpetrator. Or maybe the prosecutor still believes the innocent person is guilty? And sometimes, everyone just wants to close the book and walk away so the news cycle on the case ends.

The Reporters Inc.:  What more can be done on a legislative level to help the cause of freeing the innocent?

Brooks: Every state should examine and improve their police procedures, especially identification and interrogation procedures. State and federal crime labs should be audited to make sure they are following best practices. There should be increased funding for defense work so that caseloads are not so high that mistakes are made. We should end immunity for people in the criminal legal system who destroy lives with their malfeasance including judges, prosecutors, and police. Every state should fully fund every innocence organization operating within their borders.  It’s a great investment because we save the state a lot of money with each person we free and it’s also the right thing to do.

The Reporters Inc.: Unfortunately, there are many cases where DNA is not part of a case, or the DNA evidence is no longer available. Is there any hope for an innocent person to fight a conviction lacking this type of evidence?

Brooks: 34 of the 37 people we have freed from prison were exonerated without DNA evidence. The first generation of innocence exonerations in the ‘90s were mostly DNA cases.  That’s not true today, because DNA is being used at the trial level. Non-DNA cases are difficult because you need evidence that can tear apart the prosecution’s case and prove innocence.  But it’s certainly been proven to be possible over and over again.

The Reporters Inc.: If you could change one aspect of the legal system, what would it be?

Brooks: The change I would most like to see is a change in philosophy regarding our criminal legal system. We talk about rehabilitation, and we call prisons correctional facilities, but we are far too focused on punishment, and we have over criminalized behavior that should be dealt with in other ways. Drug abuse should be treated as a public health problem as opposed to locking people away for the rest of their lives. Correctional facilities should be used to improve citizens who end up in them, not make them less functional and less employable upon release.

The Reporters Inc.: Do you think our law schools can play a role in helping the next generation of lawyers avoid wrongful convictions?

Brooks: Absolutely, or I wouldn’t have started the California Innocence Project and made it into a law school clinical program. The impact on my students, working on real cases with real consequences, can’t be overstated.  It is particularly impactful on my students who become prosecutors. They are changed forever. Throughout their careers they will see the innocent clients they encountered in the clinic in the faces of those they must decide whether to prosecute.

The Reporters Inc.: How many Innocence Projects are there now, and what do you envision for the future of Innocence Projects?

Brooks: There are more than 60 innocence organizations in the United States. In Latin America, I have helped start 30 projects from the Mexican border all the way down to Chile and Argentina. We have projects in Europe, Asia, and the South Pacific. It is a global movement because there are no perfect criminal legal systems in the world.

The Reporters Inc.: Besides your upcoming book, are there any others on similar topics, readable for the average person, that you recommend?

Brooks: There are so many great books written by my colleagues and innocent people released from prison that I don’t want to name any for fear of leaving some great ones out. One book I will recommend that is totally unique is Picking Cotton by Ronald Cotton and Jennifer Thompson. I have all my students read it because it tells the story of a wrongful conviction from both the perspective of a man who suffers a wrongful conviction and a rape victim who suffers both the crime and then the failures of the system to get it right.

The Reporters Inc.: How do we get/buy the book? When does it officially come out?

Brooks: You Might Go to Prison, Even Though You’re Innocent is available for pre-order on Amazon and other web outlets. It will be in stores April 4.

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