Wrongful Convictions: Last Week Tonight with John Oliver | Transcript

John Oliver explains why it’s so difficult to be exonerated for a wrongful conviction, even when there’s compelling evidence to prove your innocence, and how we can correct the state’s mistakes. Other segment: 2022 Russian invasion of Ukraine
Wrongful Convictions: Last Week Tonight with John Oliver

Last Week Tonight with John Oliver
Season 9 Episode 3
Aired on March 6, 2022

Main segment: Wrongful Convictions
Other segments: 2022 Russian invasion of Ukraine

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John: Welcome welcome, welcome to “Last Week Tonight”! I’m John Oliver. Thanks so much for joining us, and let’s dive straight in with Ukraine, where it’s been a truly grim week. And yet, Ukrainian citizens have continued to show incredible signs of resistance, proving they’re truly the “fuck around and find out” country of eastern Europe.

For grandmother and retired economist. These are the only weapons she has but she says she’s ready to fight. Let those Russian shits come here. We are ready to greet them.

Do you have a message for president Putin.

Putin [bleep]

It’s a popular sentiment on the streets. This man’s sign is too vulgar to translate.

John: Oh, is it? Well, we can help you there. This is the network that airs shows about high schoolers taking heroin and hosting orgies before homeroom, so we have no such problems. I can tell you that sign translates to “Putin is a dickhead,” which he clearly very much is. Also, it’s notable “dickhead” was too vulgar for CNN, but molotov grandma got to say “let those Russian shits come” with no problem. It seems she’s above the law, as she should be. Ukrainians’ defiance and sense of humor in the midst of such an brutal, outmatched fight has understandably captured the world’s imagination, although what some have chosen to do with that imagination has left a little to be desired.

To me, Zielinski is a cross between Churchill and Arnold Schwarzenegger. He’s just incredible.

A great story, slash, maybe one day a movie.

People were quick to cast the film on twitter saying Jeremy Renner would make the perfect president Zelenskyy.

We are in the middle of a war.

A little insensitive but whenever it does get made, it’s going to be up epic.

John: Maybe wait for the actual word to end before start casting the fucking movie. But to be fair, “yeah, a little insensitive but we’re gonna run with it anyway” is the official motto of TMZ. And spare a thought there for Volodmir Zelensky. He’s got enough going on right now without being described as a “Jeremy Renner type.” That’s not a nice thing to say. As for Russia, they’ve responded to worldwide criticism by clamping down hard on dissent at home. Putin just signed a law effectively criminalizing any public opposition to, or independent news reporting about this war, and authorities have blocked twitter and Facebook, and threating to block Wikipedia. The education ministry even produced a nationwide online lesson for children, featuring a little girl asking questions about what was going on there and getting some spectacular answers.

Interpreter: I have a question. Special operations. What does that mean?

Goals lead to peace. We do not attack residential buildings. We do not hit civilians. We do not destroy social infrastructure. Kindergarten, school, water utilities, substations.

John: Except you’ve literally just done almost all those things. Russian strikes have destroyed hospitals, schools, and homes. Also I don’t want to be giving notes to state propaganda. But if you’re lying to a child’s face, maybe cast a less creepy man to do that. May I suggest film actor Jeremy Renner? People seem to want him involved in this somehow. And yet, despite Russia’s efforts to control the narrative, we continue to see public protests and some Russian celebrities, politicians, and even a few oligarchs have cautiously spoken out. Which is understandable, not only is the war morally indefensible, but the impacts of global sanctions are now being felt at every level of Russian society. The economy there is in free fall and just watch the level of despair in this exchange on a Russian financial network.

Interpreter: hello.

I won’t say good day.

No one does these days.

Jokes aside, let’s do this quick. Sending regards. 12 To 13 years ago, he drank to the death of the stock market. Dear stock market, you were close to us. You are interesting to us. Rest in peace, dear comrade.

John: Wow. That guy toasted the death of the Russian stock market, saying “you were close to us, you were interesting to us,” then chugging some seltzer. Which is striking, but sounds less like how you’d mourn a financial system and more like how you’d give a eulogy for a clown you don’t know all that well personally. “You were close to us, you were interesting to us.” Kshhhh.
Yet, for all the Ukrainian resistance and Russian discontent, the fact is, Russia’s advancing and committing human rights abuses along the way. And it looks like casualties are only going to rise, especially given, after a call with Putin on Thursday, French president Emmanuel Macron was reportedly convinced that Putin wants to seize the whole of Ukraine and that “the worst is to come.” So sadly, we have no idea what’s going to happen next or just how bad this could get. What determines the outcome here may not so much be Ukrainian resistance or Russian propaganda, so much as one man’s determination to be — if I may quote one of the most applicable phrases in any language– a total fucking dickhead. And now this.

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Announcer: and now the line every bachelor and bachelorette is forced to say.

Clear waters, blue skies, sunshine. It’s magical. Seriously. The perfect place to fall in love.

Tahiti is the perfect place to fall in love.

The perfect place to fall in love.

St. Thomas is the perfect place to fall in love.

Creation is the perfect place to fall in love.

Bimini is the perfect place to fall in love.

Isla is the perfect place to fall in love.

Wisconsin is a perfect place to follow love.

Fort Lauderdale is a beautiful place upon love. Perfect place, perfect place, perfect place from a perfect place to follow love.

I’m in Deadwood, South Dakota. This is the perfect place either fall in love or get shot in the back.

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John: Moving on. Our main story concerns justice, the thing best served by Steve Harvey.

This court is going to award you a VIP moment. You and your girl an additional $5,000. From me. And my court. You take your girl to Vegas. Party like it’s 1999. That’s my verdict. And that’s how I see it.

John: Incredible. Just top to bottom great. From awarding a woman a “VIP moment” as if that phrase means anything, to the entire gallery clapping for the plaintiff, including the defendant, to demanding she organize a vacation with all of her friends, every Google calendar’s nightmare. And that’s saying nothing of the m.v.p. of that clip: Steve Harvey’s little golden gavel which he is making a full five course meal out of. Honestly, I wish I had one. Wait, hold on, I do. Clomp-clomp-clomp-clomp-clomp, order in the court. Clomp clomp! Big man, tiny hammer alert. Clompity clomp! I’m a gavel guy now. Get used to it. Sadly, though, not all courts are as infallible as Steve Harvey’s. As we’ve discussed many times on this show, trials can go awry for a number of reasons, from prosecutorial misconduct to underfunded and overworked public defenders, to flawed jury selection, to how we elect judges, to problems with mandatory minimums, all the way to flimsy jizz analysis. Luckily, as pop culture has taught us, there’s a remedy for wrongful convictions, built right into the system.

It isn’t over.

I will get the convictions overturned on the appeal.

I will appeal this all the way to the supreme court.

We will appeal this.

John: Okay, hold on. Let’s just acknowledge Julianna Margulies there, because she is capital “a” acting there, doing absolutely everything with absolutely nothing. Julianna Margulies is doing more in this three second clip than The Rock has done in his entire career. You heard me. I said what I said. The Rock has officially been clomped. The idea that you can simply fight a wrongful conviction and get exonerated runs deep. But the truth is, it’s far more difficult than you might expect. Even if there’s compelling evidence you’re innocent. Take Lamar Johnson, who was convicted in 1995 of murder. But between his conviction, and his sentencing, one of the real killers wrote him a letter that you’d think would’ve changed everything.

The letter opens by saying it’s pretty much messed up Johnson was convicted when he didn’t do anything and that explains who did it and what happened. Believe it or not, even with the letter, this is still the justice system trying to figure out how to free an innocent man.

I never expected that this case would go the way that it did, that I would end up charged much less convicted and be here for the last 20 some years trying to prove I didn’t do it.

John: Okay, a lot to unpack there. From the fact that letter didn’t say it was “messed up,” it said it was “fucked up.” To the fact it opened with “what’s up, dude.” Which is a weird way to greet a person who’s in prison for something you did. How’d he expect Johnson to respond: “oh, not much, you?” But it’s not just that letter — both the real killers have now signed multiple affidavits. That’s an automatic get of jail free card, unfortunately, life isn’t a game of monopoly. For one thing, no one these days can afford to buy property and top hats are only worn by Amy Sherman Palladino and the Babadook. So as of now, Johnson is still in prison, and it’s very much up in the air whether he’ll get out. And if you’re wondering how the fuck that can be the case, that’s what our story tonight’s about. It concerns all the reasons why, if you’re wrongfully convicted — even if there’s compelling evidence of your innocence — it’s really hard to be exonerated. And let’s start with the fact the constitution guarantees the writ of habeas corpus which is to protect against unlawful imprisonment. Basically, you have a right to challenge your incarceration. And you can do that in both state and federal court. But as this defense attorney explains, there’s a major limitation on that right:

It’s not just enough to be innocent. That doesn’t get you anywhere. You have to have something else to be able to get back on.

John: Yeah, it’s true. In general, innocence itself is not an appealable issue. So shocking, it might prompt you to go the full Margulies — she was in the background of that scene giving at that kind of commitment. What you can appeal on this in a shocking new evidence that wasn’t available during your original trial or claim their constitutional rights were violated. And that’s already a long shot. Especially because while you have the right to an attorney at your original trial, you’re not guaranteed one after your conviction. Most states do provide one in death penalty cases, but even then, there’s no guarantee they be competent. And attorneys can be incompetent. Take Geddes Anderson. He represented a man named Edward Lee Elmore in a murder case and lost it. Elmore was sentenced to death, and while on death row, appealed his conviction. He petitioned for a different lawyer, but was told he had to stick with Anderson, who’d only spent eight days preparing for his trial and who can only be described as the most Tennessee Williams of characters.

In retrospect, perhaps I should have asked for more time. I never proclaimed to be the best lawyer that ever graced the courtroom.

John: Well, that’s not great. The only thing worse than being a bad lawyer is being a bad lawyer with low self-esteem. In the words of Rupaul, if you can’t defend yourself, how in the hell are you going to defend somebody else? You do need an exceptionally good attorney for an appeal. Postconviction laws and currently difficult to understand even for a seasoned attorney and you want to get it right because any technical error could result in your appeal being dismissed. So many wrongful conviction cases are won or lost on technicalities. Even ones that are pretty compelling! Take Ricky Kidd, a man wrongfully convicted of murder in 1997 despite the fact that no physical evidence linked him to the murders. The case against him was littered with police incompetence and prosecutorial misconduct. And his own lawyer failed to chase down exonerating evidence, such as the fact that, around the time the murder took place, Kidd was in a sheriff’s office, applying for a gun permit. Which is a pretty fucking solid alibi. Kidd’s best grounds to appeal were that he had ineffective counsel at his first trial. But unfortunately, when his new lawyers filed that appeal, they failed to include that argument. So the state fought to keep him locked up. Which is both outrageous, and something the assistant state A.G. was comically unwilling to discuss.

Don’t have any concern that a police commissioner and former prosecutor say he’s innocent?

Your name is here in the court document. We are not even arguing that he’s guilty. Just technicalities that he missed his chance to properly appeal. You don’t seem concerned about this. Do you even think he’s guilty? No answer? You’re spending taxpayer money to fight this case. You’re keeping him locked up in prison. Is that the best use of taxpayer money?

Y’all have a good day, sir.

John: Wow. I’m conflicted there. Obviously that man is a heartless monster, smirking like a wax statue of Paul Giamatti when a man’s life is at stake. But I do respect his ice cold attempt at ignoring small talk in an elevator. Elevators are flying coffins that demand total silence from each of their pallbearers. We have to reach agreement on this. And while it’s not important, quick shout-out to the guy waving at the camera in the background there. Hey, buddy! Hey, bet you had no idea at the time that your wave was underscoring a grotesque failure of our entire judicial system! But it was! It was! Bye! But that actually brings us to a key point here, which is, when the whole criminal justice system is geared toward getting a conviction, it has little interest in seeing its work undone. So, for instance, I mentioned earlier that one of the few ways to get a post-conviction appeal is to argue that you have new evidence to introduce. But you still have to be able to show that it would have changed the outcome at your trial. And prosecutors will fight that notion hard. When one of the West Memphis three tried to get a new trial, based on new evidence, including DNA, an assistant A.G. appeared before the state’s supreme court to try and talk them out of considering it, citing the harm that could do.

What harm is there allowing him to present all evidence?

The harm is in the finality of the criminal judgment not demonstrated to have any constitutional or procedural defense and just try it again. You’re suggesting. As though every 15 or 17 years or so we ought to try cases again to reestablish guilt. The harm is to the criminal justice systems interest in finality.

John: Hold on. The harm is to the “finality?” But if the final decision could be wrong, you should want to make sure you got it right. There’s a reason La La Land didn’t just keep the Oscar after Faye Dunaway and Warren Beatty skin smiled their way through that mistake. But while, thankfully, those judges were skeptical — many defer to prosecutors. That was the case with Edward Lee Elmore, the guy whose initial lawyer was insecure foghorn leghorn. The key evidence against him were hairs at a murder scene that police claimed were of African American descent. But there were no photos of those hairs at the scene — which is already suspicious, and the state later found a box of evidence, previously claimed to be missing by police, that contained Caucasian hair recovered from the victim’s body during her autopsy. But when the judge was presented with this pretty important new information, he simply wasn’t interested.

This is a completely different case than what the jury heard. This is not enough to grant somebody a new trial.

Unexpectedly rather than adjourn and read the filings before ruling, the judge issued his decision on the spot.

All motions are denied.

John: Oh, it gets worse. That judge went on to say that, obviously, the evidence should have been disclosed to counsel, but as far as impacting the original verdict, I don’t think it would have, and in closing, he said, “good luck to everybody, I’m out of here.” Which is a terrible way to wrap up a court proceeding. The best, of course, being this:

That’s my verdict and that’s how I see it.

John: Unimpeachable. But the thing is, a quick ruling like that isn’t unusual. Many times, appeals judges will just sign the state prosecutor’s documents without even changing the heading. One study looked at post-conviction appeals in the largest county in Texas and found judges adopted the prosecutors findings verbatim in 96% of their rulings. And if, at this point, it seems like our whole system is set up to preserve its process — even at the cost of human life — well, during one death row appeal before the Missouri supreme court, for this man, Joe Amrine, one assistant A.G. basically admitted as much.

You are suggesting if we don’t find there’s a constitutional violation then even if we find that he is innocent, that he should be executed?

The U.S. Supreme Court.

Is that what you are arguing?

John: Holy shit. You know you’re on the wrong side of an argument when you’re asked, “should innocent people be executed?” And you say, “that’s correct, your honor.” That’s the kind of question that has only one right answer, like “is the queen dead?” The obvious answer to that being, yes, she’s been dead since 2007. And it’s a good thing. It’s a good thing. It’s a good thing. Order in the court. And so far, everything we’ve discussed has been at the state level. But what about if you appeal up to federal court? Well, in some cases, they do step in to overturn egregious convictions. But as this defense attorney will tell you, that is very much the exception.

We all understand that the role of an appeals court is to get it right and if it gets it wrong, that it will be fixed down the road in the system. That’s the belief we all have in the system. If some court gets it wrong, another court is going to come along and set it right. Federal courts can only grant relief of the state court was unreasonably wrong, so wrong that no other judge, no other fair-minded judge could possibly agree. That is an incredibly high bar.

John: Yeah, it really is. Because “no fair-minded judge could possibly agree” is a high bar to clear. Reasonable people disagree all the time, on issues like which way the toilet paper roll should go or how a tortoise would wear clothes. Is it over the shell? Or under the shell? There’s a vibrant discussion to be had here. The truth is federal courts’ hands are tied pretty tightly, by something called AEDPA. It stands for the anti-terrorism and effective death penalty act, – it was passed in the 1990 – s in the wake of the Oklahoma city bombing and at the time, the justification for it was we can’t let terrorists like Timothy McVeigh, or any prisoners on death row, appeal their cases endlessly. Here’s the argument in a nutshell.

What about the fact that many sit on death row for years and years and years with access to libraries and computers and everything they could possibly need so they continue to drag out the process question like there’s got to be in end to it.

John: Okay, that’s actually an even worse argument than it seems. Because remember: this was 1995. The only things computers were good for back then were minesweeper and still images of Cal Ripken Jr. I’m guessing that in 1995, if you typed “postconviction habeas – corpus appeal” into Lycos. – Com your hard drive would spark into a full blown house fire. So prisoners sometimes having access to computers clearly wasn’t the real problem here. And although AEDPA sounds like it only applied to terrorists and death row inmates, it applies to everyone. And in addition to that high bar that gutted federal review of state convictions, it also imposed a strict one year deadline to file a federal appeal once your conviction is finalized. Which I know might sound like a lot of time, but it really isn’t. A federal appeal is a massive undertaking, often involving doing new research, speaking to experts, witnesses, previous attorneys and investigators, one year can not be enough, as proven by the fact that, post-AEDPA, the deadline had been missed at least eighty times in death row cases. Eighty times, death-row prisoners went to the trouble of filing an appeal, only to be told, “sorry, too late, it doesn’t count.” And even when filings do come in on time, that high bar means they’re less likely to be successful to the point that while, before AEDPA, 40% of death row defendants succeeded in getting their verdict or sentence overturned in federal court, a decade after it, that rate had dropped to 10%. And I will say this. There was one senator who saw all of these problems with AEDPA pretty clearly, and warned against what might happen.

This just doesn’t make sense in my view, mr. President. As a practical matter or matter of principle. We should not in our haste to hurry up execution lucite to our commitment to constitutional values. We should not endorse proposals that increase the chance that were execution is imminent that an innocent person the executed. We should not sacrifice certainty in the name of speed or fairness in the name of vengeance.

John: Yeah! Pretty good. I know it’s weird to see Joe Biden actually on the right side of a criminal justice issue in the nineties, it’s like watching home movies and seeing your bitterly divorced parents passionately frenching each other. It’s just hard to imagine a world where that ever happened. So enjoy that for just a moment. Are you enjoying it? I really hope you are. Because now I should tell you that Biden actually voted for the bill in the end. You don’t get to be surprised. The guy is who he is. And that brings us to today. Where many wrongfully convicted people are still locked up, with a racially disproportionate impact. Innocent black people are about seven times more likely to be convicted of murder than innocent white people. And at the same time, those who actually committed the crimes are still at large, as the Philly D.A. points out.

Justice means that you try to do things that are proportional and you try to do things that are accurate. Trying to do things that are accurate, that means you do not want the guilty person who got away to continue to get away and you also don’t want the innocent person to stay in jail. That ain’t right. I mean. Duh.

John: Yeah, he’s right. Fucking duh! You’ve probably already been screaming it at your tv for the last 15 minutes, along with “talk slower!” And “this guy’s a furry, right?” That’s my business. But I will say, the clues are all there. But again: he’s right. We know prosecutors are fallible, even when the stakes are incredibly high. And if you want to see this whole maddening system in one story, consider the case of Melissa Lucio. She went through the most horrific thing imaginable — the death of her two-year-old daughter after a fall down a flight of stairs. But the police suspected foul play, and over the course of a marathon interrogation the night of her daughter’s death, lasting until 3:00 in the morning, they pushed her to confess to murder.

Basically what they were doing and is they were trying to make me admit that I was the one responsible for her fall. And I kept telling them that I hadn’t hurt my daughter. They were very vulgar. Very rough. Very persistent.

This is your chance to set it straight. Right now it looks like you’re a cold-blooded killer. Are you a cold-blooded killer or frustrated mother? We know somebody did it. We are trying to find out who did it.

It happens. We all make mistakes. We all make mistakes. We all get upset. You already know what happened. We already know what happened.

John: I know that’s upsetting to watch, but it’s really important to see just how aggressive and manipulative the system can be in someone’s most vulnerable moments that lead to things like false confessions. Because after all that, she told those officers what they wanted to hear, that she had, “in the past,” spanked her daughter. The state argued to the jury that that counted as a murder confession. And she was convicted in a trial where not only did the prosecution keep the jury from hearing psychologist’s testimony that could speak to her mental state at the time, but her own defense attorney decided not to call her other children to the stand, who’d have testified they never witnessed any physical abuse from her. And yet, when she tried to appeal her conviction to state court, the judge was apparently in such a hurry, he initially tried to rule for the prosecution before the defense had even filed their response. Once it got to federal court, a split ruling denied her appeal, but even the judges who ruled against her admitted, “there was expert testimony that, if jurors had only heard it, could have impacted the verdict, going on to acknowledge, “we are all, though, working within the constraints of AEDPA.” Melissa Lucio is now scheduled to be executed on April 27. Next month. And to hear her prosecutor tell it, there’s only one person to blame for that.

She has nobody to blame but herself. She has nobody to blame but herself. People say well, she shouldn’t be there. She shouldn’t be there. She put herself there. Who’s fault is it? Who’s fault is it that she’s there if it’s not hers?

John: I mean… I can take a crack at that answer if you want. It starts with “not hers,” and while it isn’t a complete list, it includes the cops who badgered her, the Texans who voted for a governor who seems unwilling to intervene, Ted Cruz — I’m assuming, somehow, the 91 senators who voted for AEDPA in 1996, Hammurabi for codifying capital punishment in ancient Babylon, and you for prosecuting based on a confession that wasn’t even a confession, you fucking asshole. So with a system so fundamentally fucked, what do we do? Well, immediately we can get rid of AEDPA. And we should do that as soon as possible, as the will could be there considering how against it Biden once briefly was. In addition, we should continue to address all the many factors that lead to wrongful convictions in the first place. And when they do happen, we need to make sure we’ve elected prosecutors who’ll undertake conviction integrity reviews, and governors who’ll use their pardon power to undo the state’s mistakes. We need to make this a priority, because right now, we have a system where people can be wrongly convicted with bad defense attorneys and left to fight in a convoluted appeals system with little to no help. At which point, it really feels like our system is essentially “guilty until proven rich or lucky.” And that has to change, because we can’t keep letting the most vulnerable be casualties of a system that cares more about quick and final decisions than actually correct ones. That’s my verdict, and that’s how I see it. Clomp clomp. Motherfuckers. Clomp clomp. And now this.

* * *

Announcer: now great moments in Steve Harvey’s jurisprudence.

I’m about to hear a series of unbelievable statements. We are arguing about ass? I’m sorry. I’m sorry. This is not funny.

No, it’s not.

It’s really not funny. You are way more stupid than I thought you were. Let me tell you something. You ain’t going to get nobody finer than that. You can’t object because you’re not a lawyer. Is that a pair of handcuffs with corn on the cob with a condom on it? You are fixing to have one of a party. That’s the way I see it.

John: That’s our show. Thanks so much for watching. See you next week.


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