A chat with John Grisham

The prolific author talks about his new book, the innocence movement, and the long, slow road to reform

Photo by Sophie Bassouls/Sygma via Getty Images

I first read A Time to Kill the summer after my freshman year of college during slow weekday afternoons working at a go-kart track. The moral ambiguities the book explores about vigilantism in the face of injustice piqued my interest. It’s one of the first influences that put me on the track toward what I do today.

That was John Grisham’s first book. Thirty-seven bestselling books, 300 million sales, and several adapted movies later, he’s now of course a household name

Grisham has also become a prominent voice for the innocence movement, lending both his name and financial support to reform organizations.

(Disclosure: Grisham has been supportive of my own work. He wrote the forward to The Cadaver King and the Country Dentist, the book I wrote with Tucker Carrington, director of the Mississippi Innocence Project — which Grisham also co-founded. He’s also a paid subscriber to this newsletter.)

Grisham’s new book is Framed, written with Jim McCloskey, the founder of the legal advocacy group Centurion Ministries.

Framed — Grisham’s second foray into nonfiction — weaves infuriating stories about wrongful convictions into a powerful indictment of the criminal justice system and its inability to correct its mistakes.

I interviewed Grisham about the new book last month.

But before I get to our conversation, I wanted to offer some perspective on a mini-controversy that has emerged about the book. In telling these stories, Grisham and McCloskey drew from years of work by lawyers and journalists. Although they do cite their sources, they don’t use the sort of footnoting you typically see in nonfiction. Instead, at the end of the book, they write short tributes to the sources and authors they relied upon. There’s also some phrasing throughout the book that’s pretty similar to the phrasing used by their sources. That sort of similar language is typically attributed and put in quotes.

I think much of the problem boils down to differences in how the fields of journalism and law handle sourcing. Grisham and McCloskey have more experience in law (and in Grisham’s case, fiction) than journalism or nonfiction. In legal filings, it’s common to cut and paste descriptive language from other sources. There are only so many different ways to describe, say, a murder scene based on police reports, and still be accurate about the details.

With respect to our book, Grisham worked closely with Carrington for the section of Framed drawn from Cadaver King, and Carrington signed off on the final copy. So we have no complaints. But from what I read, this was not the case with some of the other journalists whose work informs the book.

I do understand why those other journalists are upset, and they include some folks for whom I have enormous respect. It isn’t how I would have written a book like this, and I think Grisham and McCloskey would have been better off using proper footnotes (in no small part because this has distracted from the issues they raise in the book).

But given the acknowledgments in the back, along with the generous praise for their sources, I also don’t think their intent here was to pass others’ work off as their own. When another reporter asked me for comment about all of this several weeks ago, he mentioned that Framed was selling well, suggesting that Grisham was profiting off of others’ work. Knowing what I do of Grisham, my hunch at the time was that he was likely donating his royalties from the book to innocence groups.

He didn’t mention it in our interview, and it isn’t the sort of thing he’s usually public about, but I have since confirmed that Grisham is indeed donating his own royalties from Framed to both innocence organizations and to the individual exonerees mentioned in the book. It isn’t my place to say if that should appease the other journalist’s concerns, but I do think it’s relevant information.

The discussion this has generated also gives me a chance to harp on a perennial complaint: The standards we apply in journalism about what does and doesn’t amount to stealing someone else’s work really don’t make much sense.

One of our industry’s most prestigious publications is pretty notorious for re-reporting stories other people broke without any credit at all. Ironically, this same publication also happens to be one of the outlets raising complaints about attribution in the Grisham/McCloskey book.

I’ve personally experienced this several times over the course of my career — a bigger outlet clearly re-interviewed my sources, re-reviewed and cited primary documents I uncovered, and then published their own story without acknowledgment.

It’s a pretty frustrating thing to experience. A lot of risk (legal and professional), time, and hard work goes into good investigative reporting, particularly when you work for a small outlet, and don’t have the resources, fact-checkers, extra layers of editors, and armies of lawyers that large publications do.

I’ve never really understood why someone who writes for a living would knowingly steal someone else’s copy. You’re a writer! Write! But it’s just as strange to me that journalism considers insufficiently reconfiguring the wording of a few sentences to be a cardinal sin, but co-opting the hours and risk someone else put in to break a story is accepted practice.

I’ll put away my soapbox, now.

On to the interview.

(Note: This interview was conducted before the 2024 election.)

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You’re a lawyer by training and have been writing fiction with legal themes for a long time. When did you first start to have doubts about the fairness of the criminal justice system?

I was a small town lawyer for 10 years in Mississippi — rural Mississippi, just outside of Memphis. I did a lot of court appointed criminal cases — very few criminal cases by private contract, because most people accused of crimes can't afford to pay a lawyer. Our county was pretty small. We did not have a full-time public defender. There was this tradition that the young lawyers fresh out of law school would take the court appointed cases, criminal cases, because the older lawyers had taken those when they were younger. That's the way the system worked. We all understood that. So if you wanted to get a lot of time in a courtroom, you could volunteer for court appointed cases.

So I had dozens of cases. I had two murder cases by myself within my first two years out of law school. Not capital cases, but murder cases. I won both of them. I really enjoyed the courtroom, so I was there all the time. And for that 10 year period, I never had a problem with the system. I never had a client who I thought was wrongfully convicted or abused by the police. I knew the police, I knew the prosecutors, and the judges were great. It was a fair, efficient system. And I never slowed down to think that the court I worked in was unusual. I thought all systems worked that way.

Years went by. I changed careers and started writing books. Somehow I missed the first big wave of DNA exonerations. But then I came face to face with one almost 20 years ago. And I wrote about it.

The Ron Williamson case out of Oklahoma. So that was the first innocence case that jumped onto your radar?

Absolutely. It was a smack in the face. I guess it’s lmost 20 years ago now. I had seen the obituary for Williamson by Jim Dwyer in the New York Times. It included a picture of Ron in court on the day he was set free. He's my age, from my neck of the woods, my background, everything. And he was a small town baseball hero. I had dreamed of being a baseball player.

So we had a lot of similarities. I identified with him. And he had gone to death row and had been within five days of being executed, until in 1992 or 93, a wise and courageous federal judge saved his life. He was completely innocent — a DNA exoneration.

It was such a compelling story. When I read the obituary — I think it was by Paul Dwyer— I just thought, that's not right. I said to myself that I’ve got to pursue this story. I had never thought about writing nonfiction before. Right then and there I called my publisher at Doubleday and I said “Read this obituary. I'm gonna write this book.” That's how it got started.

That book, The Innocent Man, was my first work of nonfiction, and it took me into the world of wrongful convictions. I really had my eyes opened. Soon I joined the board of the Innocence Project in New York. I've been on that board for 17 years now, as well as the board of Centurion Ministries. That's how my career as a writer took me into the world or wrongful convictions. I'm still writing about them. I’ve lived with some of these cases for a long time.

I’d like to go back to your time as a small-town defense attorney. I’m struck by the fact that you had two murder cases right so soon out of law school. I’ve written about a number of wrongful convictions from the 1980s and 1990s, and my sense is that this was pretty common. People facing the most serious charges were represented by attorneys with the least amount of experience. I recently wrote about a wrongly convicted guy still lingering in an Arkansas prison named Charlie Vaughn. The attorney the court appointed to represent him back in the late 1980s was also fresh out of law school. He got something like $350 for a homicide case. That’s it, whether his client pleaded guilty on the spot or was convicted three years later. The attorney told me in an interview that he had no business taking a case like that.

It’s crazy to think how many people are in prison because they were given a lawyer with no experience — perhaps well-intentioned, but just completely unprepared.

I'm not sure if it's that bad today, but certainly when I started 40 years ago it was not unusual for rookies to get these cases. One summer during law school I was working for a law firm in my hometown and there was a horrible, horrible murder. It came out of Memphis, but it happened in Mississippi. Just a terrible crime. These two guys I knew, two young lawyers down the street, had just started a law firm, and they were hustling and trying to make a buck and get ahead.

It was a capital murder case, and for some reason they wanted to take the case to get the experience. Just wanted to see what it was like. And they got the case. And the guy was convicted. He was executed some years later. It consumed them for probably a year or two before the trial. I remember watching some of the trial as I was finishing law school. The case just broke them. It just absolutely broke them financially and emotionally. They quit practicing law. The guy’s post-conviction lawyers later sued the two lawyers, claiming ineffective of assistance of counsel.

And yeah, of course they did. They were a couple of rookies. It was a just a total disaster. I forget what they got paid, but it was nothing. If it was 5,000 bucks each for the case, I’d be surprised. It just ruined them. They gave up on the law, dissolved the firm, and left town.

I remember thinking that's not going to happen to me. I wasn’t going to sign up for a capital murder case. There were ways to game the system back then. There were some horrible crimes in my county when I was a young lawyer. I've previously written about this in a humorous way, but when there was a terrible crime, all the lawyers disappeared. When the judge started calling around looking for someone to take those cases, the experienced lawyers all knew to stop answering the phone. They didn’t want those cases because they were long, expensive, and certain losers.

So it happened a lot back then. For the really serious crimes, the cases were just handed off to lawyers who weren’t ready for them. And DNA testing showed us some of the consequences of that.

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Your coauthor Jim McCloskey is the founder of Centurion Ministries. Most people are pretty familiar with the Innocence Project by now, but Centurion has been around quite a bit longer, and does similar work. Can you talk a little bit more about them?

Centurion was founded almost 50 years ago by one of my heroes in life, Jim McCloskey. When Jim was a divinity student at Princeton, he got involved with a prison ministry. He would go to the prison in Trenton once or twice a week, talk to the inmates, and act as a sort of as a minister for them. There were around 40 guys on that cell block at the time, and he got to know them all.

But there was one guy who wouldn't shut up about being innocent. There's this myth that everybody in prison claims to be innocent. It just isn’t true. Most of the people in prison are pretty honest about how they got there. But this one guy claimed to be innocent, and he just wouldn't shut up about it. He’d been convicted of a shooting, and he finally convinced Jim to talk to one of the witnesses. Then Jim talked to another witness. And another.

As he started digging, Jim became convinced that this guy was innocent. It took him two years to piece the case together, to talk to all the witnesses and find a lawyer. The guy was eventually exonerated, and Jim walked out of prison with him. Jim had always thought he’d be a Presbyterian minister. But he says at that moment God said, “This is your new calling. This is what you're going do with your life.”

He’s done it for 45 years now. For the first few years he did it all by himself. But with his successes he slowly started to build Centurion with more donations and more lawyers.

To date, Centurion has exonerated 71 men and women around the country. Almost all of those are non-DNA cases. That’s important because those cases are much more difficult. With DNA you have clear biological proof. If you can get testing, it’s easier to get a court exonerate you. It isn’t a guarantee, but without DNA it’s almost impossible.

We know most crimes don't have DNA evidence. So for those case you have to go back to the scene of the crime, talk to the witnesses, review police and prosecutor files, and build a case from there. For Jim it was a hard, lonely labor for many, many years. He has since retired, but he's built such a great organization. Every day Centurion lawyers are somewhere in a courtroom, litigating to free the innocent.

There’s been some controversy about the way you and Jim McCloskey used and cited your sources in the book. I know you’ve recently talked to a couple reporters about it, but is there anything you’d like to add?

I was asked about this last week several times when I was doing interviews in New York. So I guess I’d say that the 10 stories that we put in the book are all fairly famous. Most of them are 20 or more years old. Most have had not only books, magazine articles, and news reports by the dozens done about them, but also documentaries and movies. These are very well known cases. And we used all of that stuff.

When you write nonfiction, you have to rely on the work of other people. And so we thought we were being very careful in saying what we used and giving full acknowledgement, full credit, full sourcing, to some really talented investigative journalists, including yourself. We thought we had covered our butts by doing that. And I still think we have. But there's been a claim that we got too close to some others’ work with our wording. And, you know, we're dealing with it. I hope we can work it out. There was no intent on our part to use somebody else's work without giving proper credit. That's all I can say.

There was once this idea that if it were ever shown that a state executed an innocent person, that would be the case that changes everything. And then it happened. You discuss that case in the book — the wrongful conviction and execution of Cameron Todd Willingham. The case was made most famous by David Grann's investigation in the New Yorker.

Willingham’s story made national headlines, and sparked some reform in Texas with the Forensic Science Commission and a new law called the Junk Science Writ. But years later, it doesn't seem like much has changed. The commission is mostly advisory, the junk science writ has been watered down by the Texas Criminal Court of Criminal Appeals, and there are still people sitting in prison around the country who were convicted with the disproven arson investigation methods that convicted Willingham.

And now we have the Robert Roberson case, where a man convicted with dubious Shaken Baby Syndrome testimony is facing execution.

Just wondering what you make of all of this. If even the knowledge that the government executed an innocent man can't spur the sorts of reforms that would stop it from happening again, can the system be fixed at all?

I'm optimistic in that there are fewer death verdicts every year. There are fewer executions every year. I'm optimistic in that there is a growing movement in the country to abolish the death penalty. I live in Virginia, where we abolished it three or four years ago. The death penalty itself is dying a slow death.

That said, a majority of Americans still support it. And so long as that's the case, the politicians will support it.

I also take a little bit of optimism from the fact that police and prosecutors are learning. They're using DNA to solve crimes, and they're using better science in many areas. Each year lawmakers slowly -- slowly -- pass more important legislation. New Mexico recently passed a law prohibiting police officers from lying to children during interrogations, which has long been a huge problem in police work.

These little victories make me more optimistic, but there aren’t nearly enough of them. So every year we push legislation in all 50 states. Each year we try to pass more laws to prevent wrongful convictions.

On the other hand, yeah, the Roberson case in Texas is grounds for pessimism, both because the guy is innocent and because it’s a junk science case based on Shaken Baby Syndrome, which has been discredited in 18 states. It’s bad science. Roberson has spent 20-something years on death row in Texas for that murder. He's also autistic, which was not known at the time, but was probably why the police thought he was acting suspiciously. Watching the authorities in Texas pull out all the stops to kill him has been disheartening.

But then you have the Texas State legislature, a bipartisan committee of lawmakers, move to save Roberson life at the last minute with this maneuver that's never been done before. They subpoenaed Roberson to come testify before their committee. And a Texas Supreme Court judge said they have to honor that subpoena. So it stopped the execution at midnight on October the 17th. The AG’s office is now appealing that decision.

So it's still all playing out, and Roberson will probably get another execution date. We're trying to get back into court, a different court, because we have solid medical and scientific experts, unassailable experts who will testify that this little girl died of pneumonia, and not from being shaken to death.

We're clawing away. We're punching away. But yeah, watching the AG and governor in Texas try so hard to execute this guy just to prove some point is really disappointing. They just don’t seem to believe that you can ever have a bad execution, or that you can ever have a bad conviction. "We refuse to admit we could be wrong. So we’ve got to kill this guy."

It’s just so disheartening to see that sort of thirst for blood, just no willingness at all to consider the possibility that this guy you’re trying to kill may be innocent.

The inability to admit to concede mistakes and the prioritization of “finality” in these cases is such a huge problem. You would think that after a wrongful conviction, state officials would want to look at everyone involved — the cop who coerced a confession proven to be false, the forensic expert who claimed to match a defendant to a crime DNA shows he couldn’t have committed, and so on. But there’s this huge barrier, because inevitably the people who helped win that conviction also likely contributed to hundreds, perhaps thousands of other convictions. So if a judge or prosecutor concedes that mistakes were in this case, it's logical to ask why you wouldn't look into the others. But that seems to be just too much to ask. It’s far easier to just defend every conviction. How do we overcome this problem?

I don't think it's possible. I don't think it's possible to expect, say, policemen to say, “Okay, yeah, we hid the evidence. Okay, we lied at trial.” It’s just not going to happen. It's impossible to expect prosecutors, even when faced with clear DNA evidence, to admit they got it wrong. These mistakes are too huge, and the stakes are too high. You're talking about ruining somebody's life. You're talking about putting somebody away for decades. You're talking about killing, executing someone. The stakes are just too enormous for any of them to ever say they were wrong. It's just human nature.

It also seems to go beyond individual actors unwilling to admit to their own mistakes. They don’t want to concede systemic errors either, even errors from decades ago. I’ve noticed this "Pandora’s Box" problem. After the big crime lab scandal in Virginia, even sympathetic public officials like then-governor Mark Warner didn't want a thorough investigation because they were afraid of what they'd find. In Mississippi, no one wanted to admit that medical examiner Steven Hayne wasn’t a reliable expert and that the criminal autopsy system was broken because to do so would have called into question a majority of homicide convictions over 30 years. One state supreme court justice told us he regretted the way he had ruled in those cases, but he only had that revelation after he retired.

You’re talking about Ed Pittman, a guy I knew very well in Mississippi. He was a longtime public servant, a great guy, and he was on the Supreme Court.

In your book he looked back and said “Yeah, I wish I'd asked more questions about Dr. Hayne. I wish we had been more curious.”

But you can see why it’s so difficult. Because one or two judges on the Supreme Court in Mississippi did dig into the problem. They did look at Hayne and Michael West and wrote opinions criticizing them. And we know now that they were right. And what happened? They got thrown off the court in the next election.

It's just . . . I don't know. I think we're asking too much to expect other human beings to admit to these horrendous, horrendous mistakes. It just never happens.

I think about really clear-cut areas of junk forensics like bitemark analysis. It’s only been used in a comparatively small number of cases, but the courts just can’t seem to admit they were wrong about it. So it seems hopeless to think there will ever be any serious reevaluation of a field like forensic firearm analysis, which is also inherently flawed, but is still used in tens of thousands of cases every year. Because you’re not just calling thousands of convictions into question, the implication is the very system by which the courts assess expert testimony is fundamentally broken, which means the system itself is broken. You’re asking judges to conclude that the very system in which they’ve made their careers -- that’s part of their identity -- is fundamentally broken.

I think what we have to do is work hard to free the innocent and expose these cases. And that's the main purpose of our book. Expose these cases. Let people see what really happens. Then push to pass legislation. Pass legislation to regulate forensics, snitch testimony, eyewitness testimony, interrogation techniques. If we can’t get the people in the system to look back, we can at least pass laws and change procedures that will make it harder to convict innocent people going forward.

Right now, it’s left to groups like Centurion, the various Innocence Projects, and a handful of lightly-staffed Conviction Integrity Units to uncover and litigate all of these potential wrongful convictions. Should legislatures take more of an active role in starting and funding investigations of old cases?

I think you're on point. Let’s go back to Mississippi with Dr. Hayne and Dr. West. There should have been an effort to go back and examine all the cases those two had a hand in. And we tried to do that at the Innocence Project. We thought we had the funding to dig through all of Hayne's cases and try to find out how many innocent people had been convicted. But it was just overwhelming. We found out it would take millions of dollars to do that. And so it just didn’t get done. And I remember thinking, why should we have to do that? Why should it be left to these small teams of nonprofit lawyers to do all of that? Why isn't the state government that caused all these problems doing this?

Right. Especially given that we know the state legislature's refusal to fund the state medical examiner’s office is why Hayne was able to dominate the criminal autopsy system in the first place.

Right. Why wouldn’t the state say, okay, we have a problem here with a lot of probable, wrongful convictions. We have people in prison who shouldn't be. Why don’t we take the initiative and open an investigation into these cases?

But it's never going to happen. We know it’s just not going to happen. It's too much time, too much money, too much effort. The biggest barrier is that it affects too small a number of people. Against the whole state, the wrongly convicted are a tiny number of people. It’s just too insignificant a number for legislators to spend much time on when you look at the scale of all the big problems we have. So it's not going to happen.

So if that isn't going to happen, we just have to continue our work, case by case. We just keep at it, keeping trying to exonerate people one case at a time while we also push for laws that will make these cases rarer.

I think you're right that the number of people affected is just too small for legislators to care. But it's also the demographics of who's affected. I think about that crushing case in the Delta town of Belzoni, where this grisly murder of a woman there that traumatized the whole town. Local law enforcement brought in Hayne and West, who matched alleged bite marks on the woman to her boyfriend. A year later, DNA from the saliva on those marks cleared him. By then the case had gone cold. Prosecutors lost interest because this is a small, poor, majority black town. Decades later, attorneys from the Mississippi Innocence Project solved the murder by finding the evidence and having it tested. It took defense attorneys who actually gave a damn about the people in this town to get that murder solved. The DNA hit on a guy who by then was already in prison for subsequently killing another man with a hammer.

You mentioned optimism versus pessimism. It can be very frustrating work. So it’s sometimes hard to be optimistic about it. But if you look at our rate of incarceration in this country — 2.3 million people locked up — it’s the highest rate in the history of the world. We lock up so many of our own people. So how many of those might be innocent? Well even if it’s 2 or 5 percent, that’s still a huge number. And it may not affect you, but it affects those people and their families.

And what I try to tell my more conservative friends is exactly what happened in Belzoni. When you convict the wrong person, the real killer is still out there. The real rapist is still out there. We have case after case after case where we can prove for a fact that once the wrong rapist or killer went to prison, the real culprit didn't stop. While the DA or AG was fighting to stop the innocent person from getting out, the real culprit was still out there committing more crimes.

Sometimes, really horrific crimes. 

But I don't pretend to have all the answers. I have far more questions than answers.

For years the Supreme Court has been gradually chipping away at the ability of federal courts to review state convictions. Trump's appointees to the federal bench are only accelerating that process. It seems like it’s just going to get more difficult to get exonerations in these cases.

Politicians like to rail against the fact that it takes 20 years to execute somebody. They’ll say let's speed it all up, let's have more executions, let's do it faster, faster, faster.

And you hear — especially from southern governors running for office — these promises to fire up the gas chamber. Bring back the electric chair. Bring back the firing squad. Let's get tougher and tougher and tougher. And average people say, “Yeah, why does it take so long? Why do these cases drag on for 20 years?”

We need to be better at explaining that the reason it takes so long is that it takes very skilled lawyers, investigators, and experts often working pro bono to find the truth -- to find the evidence hidden by the police, to find the evidence hidden by the prosecutors. And for many people, that sort of skill and expertise just isn’t available at trial.

The trial happens quickly after the crime. You have the crime, you have the trial within a year or two, you have the guilty verdict, and then the person is sent off to prison. And then, if that person is lucky, several years down the road they might get a good law firm or a good lawyer or some innocence attorney who will take the case and spend a ton of money to try to find the truth.

Look at the Roberson case in Texas. He was convicted I think in 2001 or 2002. In 2016, he finally got some lawyers who believed in his innocence. But he only had a state lawyer because he was on death row. If you're not on death row, and most people are not, you don't have the right to a lawyer at this stage, at least not in most states. 

But that legal team was able to put together the experts who finally got the medical records from the little girl that proved she actually died of pneumonia. But that wasn’t until 2016, some 15 years after the trial.

The reason it takes forever is because some of these cases are so botched and so screwed up that it takes real legal experience and expertise to piece it all together. And most of the time, you don’t get to see the state’s file until years after the conviction, if it at all.

So I didn't answer your question. Yes. It’s going to make it a lot harder if we don't let federal courts review these cases.

One big reason why it’s so difficult for people to get into federal court anymore is AEDPA --  the Anti-terrorism and Effective Death Penalty Act -- the law Congress passed in 1996 that basically forced federal courts to defer to the states on criminal cases, even on clear constitutional issues. Is there’s any chance of changing that law?

I don't know, but it needs to be reformed. All we can do is keep fighting, one exoneration at a time, and wait for public sentiment to catch up. It looks bleak right now. But there are reasons for hope. Look at the huge fight in Texas right now. It's basically law-and-order Republicans versus Republicans who are opposed to the Roberson execution. I've talked to some Republicans in Texas who hate the system. They hate the death penalty machine in Texas, and they want to reform it. When you have politicians who have always supported the death penalty now asking serious questions,  that's progress. We're making progress. It's slow. But right now,I think that's the best we can hope for.

The Roberts court, along with some Trump appointees at the district and appellate courts, seem to be moving in the direction of further restricting federal review of state convictions, to the point of stopping it altogether. Meanwhile, you have states like Florida allowing non-unanimous juries to impose death sentences. So the death penalty is dying out on the whole, but parts of the country seem hellbent on reviving it.

It's a disaster. We're going to see more and more of these cases where you've got people who are probably innocent facing death or facing life without parole because they can't get back into court. It’s a looming disaster. And it’s caused primarily by judges who don’t want to deal with innocence, by judges who just don't believe in it.

I guess we should talk about the election. On the one hand we have Harris, who is touting her career as a prosecutor. But then there's Trump, who despite the First Step Act rails against progressive prosecutors, looks ready to stock DOJ with hard-charging law-and-order types, who’s talking about executing drug dealers, and who seems certain to fire up the federal execution machinery again. We were in a golden era for reform about 10 years ago, when even deep-red state legislatures were moving in that direction.

Is that era over? Are we now just back to stopping the bleeding?

Before Trump, we had real progress with criminal justice reform because we had Democrats who saw the problems and wanted to correct them, but also because Republicans were looking at it from a fiscal point of view and noticing that we’re spending a bloody fortune on prisons that don’t work. Let’s meet in the middle here and talk. Let’s have some meaningful discussion about reform.

Most of that was happening in the states, but you also had Obama looking at issues like forensics reform. And then Trump gets elected and puts Sessions at DOJ, and that’s all out the window.

I hope Harris will be serious about change, and her experience as a prosecutor could give her some credibility there. I hope that's the case. The problem though is that if you’re sitting in the Oval Office, there's a really long list of problems. The whole world is blowing up. Major conflict around the world, and major conflict at home. So there’s no reason to make criminal justice reform a priority. I'm hopeful that Harris will be elected, and that her background in criminal justice will spur some serious efforts at reform. If Trump wins, the prospects are grim. But even then we just keep plugging away, case by case.

Here’s a question I get fairly often: What can regular people do? Say someone reads your book. They're outraged and want to do something. But they don't have a lot of money to donate. How can they help?

Here’s a really simple thing you can do that can make a huge difference: Write a letter to someone in prison. Get the name of someone on death row, or a client of one of the innocence groups who's in prison, and just sit down and write them a letter. You'd be surprised at how powerful that can be.

Some years ago in New York, I was talking to this exoneree at an Innocence Project dinner in New York. This guy had spent 19 years in prison in Massachusetts. He’d been sentenced to life without parole. He was later exonerated. At some point during those 19 years in prison he had given up and he was seriously thinking about suicide. He had no hope, no future, no real family. He was lonely, and had nothing.

He was facing life in prison. He was looking at dying in prison, with no no outside advocate, because you’re not facing the death penalty you have the right to a lawyer after your appeal. But then he got a letter one day from someone who was volunteering with the Innocence Project. The letter didn’t say they were taking his case. It was just, “Hey, I got your letter and I’m looking at your file and I hope you’re doing all right.”

This guy told me the letter made him weep. He told me he completely broke down just knowing that there was somebody out there willing to talk to him. Willing to treat him like a person. He said that letter saved his life. Because suddenly, now he had a little bit of hope. Not much. But a little bit.

As the case developed, the lawyers got involved. The investigators got involved, and he was finally exonerated. But he said that one letter just meant everything in the world to him. And that's something that's fairly easy to do. It doesn’t cost you any money.

But beyond that, if you’ve got a few bucks, send it to a local Innocence Project. Or ask if they need volunteers. These exonerees are such remarkable people when you get to know them. They’ve survived nightmares that most of us cannot begin to contemplate. And they only survive with patience, grace, and enthusiasm for the future. They're just remarkable people.

There are innocence groups all over the country. Get to know them. I live in Virginia and we have one here at UVA. There's also one at the law school at Richmond, and one at the law school at Liberty. We started one at Ole Miss. Almost every state has an Innocence group now. I think there are about 50 around the country. The Innocence Project in New York is the flagship, but there's a huge Innocence network, and they all try to work together. There's never enough money, but it's also easy to volunteer.

I’ve heard some — I don’t know if criticism is the right word for it so I'll say worry -- there's this worry from activists, families of prisoners, and others that the innocence movement has swallowed up other reform efforts. The fear is that while wrongful convictions are of course terrible, they represent just a small portion of the harm inflicted by the criminal justice system. Most of the harm comes from the way the system grinds people down — people who may be guilty of something due to addiction or crimes associated with poverty, but are just sort of chewed up and spit out. No hope for rehabilitation. The more extensive, widespread harm is this day to day dehumanizing why the system treats those people and their families.

Do you think there's any validity to this idea -- that while we should obviously advocate for innocent people, there’s a risk that focusing on wrongful convictions distracts from the more common, everyday harm?

I’ll be honest with you, I'm not really sure that I can respond to that. I’ve worked mostly with innocence groups, so I don’t have the exposure to those day to day problems. So I just don’t know. I can imagine that those people aren’t organized, and they probably can't get organized. So they don’t have a voice.

I can tell you, though, that these innocence cases hurt more than just the wrongly convicted. I’ve spent time with families of the victims of horrible crimes. And they’re traumatized by these mistakes too. They’ve lost their loved one. That’s the first trauma. Then they have to sit through the trial. Then years later they learn that the system convicted the wrong person. So now they have to go through that nightmare. And then they realize that the real culprit is still out there. And that's another nightmare. They’re re-victimized time and time again by bad police work, bad prosecutors, bad experts, and this broken system.

I wish I had a better response to your question. But the truth is, I’m just not as familiar with those other parts of the system. From what I know, it’s terribly inefficient and unfair. But I don’t have good answers for how you fix it.

That's fair.

As I’m sure you're aware, the U.S. Supreme Court is currently considering the case of Richard Glossip. It’s a bizarre case because the attorney general, who represents the state, doesn’t think Glossip should be executed. The defense obviously doesn’t, either. But the Oklahoma Court of Criminal Appeals wants him executed anyway. 

So the Supreme Court took up the case, but because of the AG's position, there’s no one to argue the pro-execution side. So Roberts hires one of his former clerks, this attorney in California with no prior involvement in the case, to come and argue the pro-execution side before the justices. It's just so strange.

As you said, the death penalty is fading in much of the country, but it seems like that facing has sparked a backlash, where some judges and state officials seem determined to execute people almost out of spite.

Yeah. Glossip has had his final meal three times. Can you imagine that? He’s been on death row all this time. He eats his final meal. And then he gets a stay. And then that happens two more times.

I didn’t listen to the oral arguments, but I have read the summaries. And from what I can tell, Thomas and Alito were much more concerned about whether or not the prosecutor was going to be embarrassed than about the truth of whether this guy was innocent. That’s the sort of court we have right now.

And then we get back to Texas, where all eyes are on Roberson because it’s such a fascinating political fight. The attorney general Paxton is now just furious with the legislature — as is the governor. The decisions against Roberson in the Texas Court of Criminal Appeals were five to four — every decision was five to four. So if he could have flipped just one judge, he’d get a new trial. But three of those four were primaried out.

So now you have three new members coming on board. You’ll have a brand new court come January. And so if Roberson's case comes back, it will be in front of that new court. Meanwhile, as all this politicking is going on, you have this poor guy who's sitting on death row just getting whipsawed back and forth.

It’s interesting because the three who were primaried out were beaten by more conservative candidates, which you’d think would be bad for Roberson. But as with the Glossip case in Oklahoma, some conservative politicians in the state legislature have taken interest in his case. So it’s not really clear what the election results will mean for him.

Yeah that’s right, they were beaten by Republicans. So you have three new Republicans coming in, and I do believe that the three new ones are probably more conservative than the three they beat. I mean, if you can get more conservative than the Texas Republican Party. But there are some powerful Republicans in Texas who are on Roberson's side, and who are frustrated with the system there. They’re convinced of Roberson’s innocence and want to stop his execution. So I guess we’ll see how it plays out.

(Note: After this interview, the three Republicans running for the CCA won easily. Thanks to a surge in funding from Elon Musk and other wealthy donors, Republicans also flipped 23 state appellate court judgeships in Texas, and swept all but one of the state’s 32 judicial elections on the ballot.)

I want to close by asking you about the Barry Jones case in Arizona, because I think it’s such a jarring indication of where we are right now.

The law-and-order crowd used to complain about people getting “released on a technicality.” In truth, that rarely happened. But we do now often see people who should be released kept in prison on technicalities — their attorney missed a deadline, incorrectly estimated when the window for an appeal would close, and so on.

In the Jones case, the attorney for the state of Arizona literally argued to the Supreme Court that “innocence isn’t enough” to intervene and stop a state from executing someone. And he won. 

It was a couple years ago, but it still astounds me every time I think about it. If innocence isn’t enough to prevent an execution, what is? If protecting the innocent from wrongful prosecution and execution isn't a priority for our system, how can we think it has any moral legitimacy at all?

I don’t think that’s a question anybody can answer. I’m with you, though. When you hear yourself say something like “innocence is not enough,” that ought to be your wake-up call. It should be the thing that tells you that you’re so hopelessly wrapped up in your legal arguments and your fervent desire to execute that you’ve completely lost sight of what ought to matter, of what ought to be common sense.

There are so many procedural bars in these cases. Every state has them at every step in the process. They’re designed to trip people up, to get these appeals and petitions thrown out for  reasons that have nothing to do with the merits of the case. It’s almost impossible to get back into court now without DNA. But even when you’ve got the DNA — even when you can show that the blood wasn't yours, or the semen wasn't yours, even when there’s no way you could have been there, you often still cannot get back into court. It happens all the time. Clear proof is not enough. Innocence is not enough. 

It’s just so frustrating. It's maddening.

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