#2287 - Josh Dubin & J.D. Tomlinson

Speaker 0 Joe Rogan podcast, check it out.

Speaker 1 The Joe Rogan experience. Train by day, Joe Rogan podcast by night, all day.

Speaker 1 Josh Tuber, my man, introduce your friend.

Speaker 1 This is going to be wild.

Speaker 1 This is J.D. Tomlinson, the former prosecuting attorney for Lorain County, Ohio.
And for the listeners, prosecuting attorney is

Speaker 1 similar to a DA in most jurisdictions. They just call it the prosecuting attorney.
He was the head attorney in

Speaker 1 Lorain County, Ohio.

Speaker 1 Up until January.

Speaker 3 So the reason why that's significant is

Speaker 3 last time we were here, we were talking about that case, the case of the Ohio Four.

Speaker 3 So let's, why don't you recap that for everybody for people that didn't listen to the previous podcast where we talked about this?

Speaker 1 So the Ohio Four

Speaker 1 are four gentlemen that were wrongfully convicted of a murder they didn't commit.

Speaker 1 And the last time I came on,

Speaker 1 we talked extensively about the case. You could read about it at free theohio4.com.
We have

Speaker 1 on that site my submission that I made to JD when he was the prosecuting attorney and all the exhibits supporting it. But what happened is this woman is murdered in the 90s.

Speaker 1 And

Speaker 1 these four men become suspects

Speaker 1 actually

Speaker 1 before there's any evidence against them whatsoever.

Speaker 1 In two and a half decades of doing post-conviction work, I had never seen the police put in an affidavit

Speaker 1 where they're, excuse me, not an affidavit, a police report when they're investigating this murder that these four men are people we should look at

Speaker 1 Based on nothing other than there was

Speaker 1 a lot of commotion in the community, understandably so, that there were people from out of town selling drugs. No question,

Speaker 1 my client and these other three guys were involved in selling drugs. And they wanted drugs off the street in Lorraine.
So they immediately start

Speaker 1 looking at them.

Speaker 1 This woman is found behind a shopping center, horribly, savagely murdered.

Speaker 1 She's stabbed multiple times. Her throat is cut.
Her name is Marsha Blakely. She had been run over by a car.
It was obvious because there were tire marks on her body. And

Speaker 1 several hours later that morning, someone that she lived with, gentleman by the name of Epps, was found murdered in...

Speaker 1 strikingly similar fashion. So the police are investigating this crime and run into a dead end.
They have no leads, they don't have any evidence, and they're searching for the perpetrators.

Speaker 1 So the Lorain County Prosecutor's Office goes public with the offer of an award.

Speaker 1 They offer $2,500 to anybody that has information about this crime.

Speaker 1 The next day,

Speaker 1 or a couple of days later, in walks a man named William Avery Sr., who is no stranger to the Lorain County Police Department. He had been a paid informant for them for a long time.

Speaker 1 And he comes in and he speaks to detectives, and they say, everything you're telling, in essence, they say, everything you're telling us has been public.

Speaker 1 You know, you need to give us more information.

Speaker 1 He then,

Speaker 1 that week, brings his son in, William Avery Jr.,

Speaker 1 and his son claims to have information about the case.

Speaker 1 And

Speaker 1 they tell him, you know, you're not telling us enough. He comes back about a week later and he says, well, I know the guys that did this.
And he blames the murder on Al Cleveland.

Speaker 1 John Edwards, Lenworth Edwards, and Benson Davis. And he claims that Al Cleveland confessed it to him.

Speaker 1 So

Speaker 1 they start investigating

Speaker 1 this man, William Avery Jr.'s account of what happened.

Speaker 1 And what he is telling them happened does not match the physical

Speaker 1 state of this apartment where he claims this beating happened.

Speaker 1 So this is like one of the telltale ways to tell if someone is falsely confessing to you or falsely implicating others.

Speaker 1 He tells them that there's this horrific beating of this victim that occurs in an apartment.

Speaker 1 And they go to the apartment, I mean, chairs turned over, tables turned over, a bloody knockdown, drag-out fight for her life. And they go to the apartment and take pictures.

Speaker 1 And it's in the most pristine condition you can imagine. Not a chair turned over, not a table.
And they immediately had reason to know that this guy was bullshitting because

Speaker 1 he then comes and says to them, you know, I have other details, and the more details he gives them, the less it's matching up with the evidence that they have.

Speaker 1 So

Speaker 1 they're trying these four men separately. When the first trial happens,

Speaker 1 William Avery Jr. has an idea.
And his idea is, I'm going to extort these people for money.

Speaker 1 He shows up at the trial and he tells the prosecutors, I want $10,000.

Speaker 1 And the prosecutors say to him, what are you talking about?

Speaker 1 You have to testify. You got the reward money.
And he says, I'm not testifying.

Speaker 1 They put him in jail for contempt.

Speaker 1 And he says, I made the whole thing up anyways. I did it for the reward money.
I made it up.

Speaker 1 They should have known right then and there, before any of these four men were tried, that this was someone that led them down the wrong path. But instead of doing that, they keep him in jail.

Speaker 1 I don't remember if it was for 30 days or 60 days, and they let him cool his heels a little bit.

Speaker 1 The judge in the trial calls a mistrial,

Speaker 1 and when there's a mistrial, you can try someone again.

Speaker 1 So about a month goes by,

Speaker 1 and William Avery Jr.'s story has now evolved. He now no longer claims that Al Cleveland confessed to him.
He claims that he was a witness to it.

Speaker 1 And

Speaker 1 what happens in that intervening month, I think people can draw their own obvious conclusions about what happens. But suffice to say, it's my opinion and my belief that they did a number on this guy.

Speaker 1 So he goes on

Speaker 1 to testify at all four of their trials individually,

Speaker 1 during which time the lead prosecutor gets a correspondence from the U.S. Secret Service saying that we know you use this man, William Avery Jr., as an informant.

Speaker 1 We have been using him as a paid informant in some food stamp sting, and we just caught him in a lie.

Speaker 1 And he's compromising our investigations because he is accepting reward money and making things up. And we're ceasing to use him as an informant, and we are investigating him

Speaker 1 for crimes

Speaker 1 and giving us false information and accepting reward money for it. So the prosecutor, you would think at that point, would say, all right, it's over.
Obviously, it's over.

Speaker 1 So

Speaker 1 these guys all get

Speaker 1 sentenced and convicted to,

Speaker 1 I believe it was 25 years to life.

Speaker 2 That's right.

Speaker 1 And I became involved in the case

Speaker 1 about two years ago, year and a half ago, and dissected the record. And I was blown away by what I had seen.
And I've seen it all.

Speaker 1 I found out that William Avery Jr.

Speaker 1 walked into the FBI in 2004.

Speaker 1 And the FBI documents it. And he says, look, I was a drug addict.
My father had threatened me. He was a drug addict.

Speaker 1 And he made me go in there and tell a lie about these men and falsely implicate them in a murder that they didn't commit.

Speaker 1 I'm now off drugs, and I want to clear my conscience.

Speaker 1 So the FBI documents it and sends the report to the Lorain County prosecutors.

Speaker 1 In 2006, Al Cleveland has an investigator searching for this man, William Avery Jr., for years. They couldn't find him.
They finally find him,

Speaker 1 and they get an affidavit explaining

Speaker 1 William Avery Jr. explains how he made the whole thing up.
He recounts what he told the FBI.

Speaker 1 And post-conviction proceedings get scheduled. And post-conviction proceedings is we're going to have a hearing as to whether Al Cleveland is innocent.

Speaker 1 So the hearing is before a judge named Judge Rothgarry in Lorain County. And what happens in essence is that William Avery Jr.
shows up to testify.

Speaker 1 And the judge tells him, before you testify, you should know your rights

Speaker 1 in words or substance. And he tells him that if you testify here

Speaker 1 that these men actually didn't do it, there are potential consequences for making it up.

Speaker 1 And if you're lying now and saying they didn't do it just to help them out, there's consequences for that. So he's quickly told that he's going to be facing potential perjury charges.

Speaker 1 So he decides not to testify at that post-conviction hearing. He walks out of the courthouse and reporters for the local paper ask him, look, why didn't you testify what happened?

Speaker 1 And he says, look, I made the whole thing up. These guys didn't do it, but I'm not going to jail for 25 years.

Speaker 1 So

Speaker 3 that's the, that is the This episode is brought to you by Squarespace. If you've got something to sell or want to take your business online, Squarespace has you covered.

Speaker 3 Their built-in SEO tools help people find you

Speaker 3 and you can sell products, take payments, even manage bookings all from one easy platform. Go to squarespace.com/slash Rogan for a free trial.

Speaker 3 And when you're ready to launch, use the code Rogan to get 10% off your first purchase of a website or domain. This episode is brought to you by the farmer's dog.

Speaker 3 I think we can all agree that eating highly processed food for every meal isn't optimal. So why is processed food the status quo for dog food? Because that's what kibble is: an ultra-processed food.

Speaker 3 But a healthy alternative exists, the farmer's dog. They make fresh food for dogs.
And what does it look like?

Speaker 3 Real meat and vegetables that are gently cooked to retain vital nutrients and help avoid any of the bad stuff that comes with ultra-processing. And it's not just random ingredients thrown together.

Speaker 3 Their food is formulated by on-staff board-certified vet nutritionists. These people are experts on dog nutrition, and they're all in on on fresh food.
The farmer's dog also does something unique.

Speaker 3 They portion out the food to your dog's nutritional needs. This ensures that you don't overfeed them, making weight management easy.

Speaker 3 Research shows that dogs kept at a healthy weight can live up to two and a half years longer. Head to thefarmersdog.com/slash Rogan to get 50% off your first box, plus free shipping.

Speaker 3 This offer is for new customers only.

Speaker 1 Recap.

Speaker 1 I was at that hearing. So this is crazy.
I found out from Al Cleveland, Al Cleveland spent so much time in prison that he timed out and was paroled. I think he spent close to 30 years in prison.

Speaker 1 And he approached JD,

Speaker 1 and he approached J.D. with his wife.
And it turned out that J.D., as a young lawyer, was sitting at that hearing watching it. and knew as a young lawyer that there was something terribly wrong.

Speaker 1 But back to just to get listeners and viewers up to speed on where we're at. So I came on the show in November, about a week before Thanksgiving,

Speaker 1 and I laid the case out in

Speaker 1 finer detail than I just did. And like I said, if you want more details, you could go to free theohio4.com and my submission to JD and all the exhibits are there.

Speaker 1 But that's basically the story as I told it.

Speaker 1 So I had been trying to get in touch with JD because he was running for re-election. he had listed his cell phone number on the internet.
So I had a cell phone number and I was

Speaker 1 sending him text messages and emails and calling him and I was getting ghosted.

Speaker 2 We had communicated for a little bit beforehand. Is that true?

Speaker 1 No, sir. No.

Speaker 1 No, sir.

Speaker 1 So

Speaker 1 I couldn't get in touch with him. And then as I'm trying to get in touch with him prior to my coming on the show and speaking to you about it in November, JD gets indicted.

Speaker 2 Oh, excuse me. Charged by complaint.

Speaker 1 No, he gets charged by complaint.

Speaker 1 No grand jury. They charge him with three felonies.
And I take a look and I see that he's running against someone.

Speaker 1 And that person that he's running against is posting about the fact that he was charged with three felonies. And I'm like, all right, well, this seems like a political witch hunt.

Speaker 1 I don't know much about it, but it seems like a tactic.

Speaker 1 So I came on the show and I said, look,

Speaker 1 I know this guy's up against it. Hopefully he now knows what it's like to be accused of something he didn't do.

Speaker 1 And I said,

Speaker 1 he's either under so much stress or isn't tech savvy enough

Speaker 1 to know that every time I text him and say, please, I just need five minutes of your time, I could see he's reading my text because he had his read receipts on and he didn't know it. Whoopsies.

Speaker 1 I learned, Joe. I learned.

Speaker 1 So I leave Austin, fly back to New York. I'm in New York.
The episode aired, I think, at 12 p.m. or 1 p.m.
Eastern Time. And at about 5:30,

Speaker 1 I see on my phone J.D. Tomlinson.

Speaker 1 And

Speaker 1 I said,

Speaker 1 I was about to teach my

Speaker 1 law school class, these kids at the Cardozo Law School that take the freedom clinic at the Pearlmutter Center for Legal Justice. They all know about the case.
They know what just happened.

Speaker 1 I was like, holy shit,

Speaker 1 this guy is trying to get in touch with me now. And I picked up the phone.
I said, hello. And he said, Josh, this is J.D.
Tomlinson. He's like, hey, man,

Speaker 1 he said, I've been under a lot of stress.

Speaker 1 There's people calling and emailing and flooding our office. You got to make this stop.
And I said, that's the Joe Rogue in fact. There's no stopping.

Speaker 3 What can't be stopped?

Speaker 1 So

Speaker 1 it had its intended effect. And JD and I got into a discussion right away.
And

Speaker 1 I had to quickly figure out a way to connect with him and tell him, I feel your pain. I hear what you're going through.
And he told me, listen, I'm fighting for my life over here.

Speaker 1 These people have upended my life. They're threatening my freedom.
I've been charged with crimes I didn't commit.

Speaker 1 And I just quickly pivoted and I said, if you just give me a date, I want to come down and I want to just show you. You now know what this is like.

Speaker 1 Imagine going through this for 30 years.

Speaker 1 So

Speaker 1 I have to say, in all my years of doing this, considering the circumstances that he was in,

Speaker 1 for him to say,

Speaker 1 you know, he was wrestling with it on the call.

Speaker 1 And

Speaker 1 he said, you know, I'll never forget what he said to me. He said, you know, if I don't at least agree to meet with you, who am I?

Speaker 1 And I said, thank you. And he said, I just don't know if there's time, but I owe you at least a meeting.
And given what he was going through and what he was up against, and he knew the case well.

Speaker 1 He had had the Ohio Innocence Project had presented to him years earlier, and he knew the case well. So I think he had a sense that there was something really wrong going on.

Speaker 2 And I'd exonerated two people prior to that. So I had some experience in that.

Speaker 1 Well, you're going to get to that.

Speaker 1 The way that J.D. made enemies in Ohio, in that town, is because he had the audacity.

Speaker 1 He had the nerve to say, I see two innocent people in another case, and I'm going to exonerate them. And that is the beginning of his issues

Speaker 1 in Ohio. So

Speaker 1 I mean, if you want to hear from JD's perspective, because what ensued and what has happened in the months since has been one of the most shocking, disturbing, you know, frankly, disgusting displays of what I think is ego and abuse of the system, in my opinion.

Speaker 1 That two of these four men are still in prison

Speaker 1 and two of them are only out because they paroled out but they're on parole as convicted murderers for a crime they didn't commit so I mean I don't know it'd be interesting to hear JD's perspective on that call and that I then met with him right before Thanksgiving and we had a big rally in Ohio.

Speaker 1 Derek Hamilton, who's the deputy director of the Pearl Mutter Center, was there. We organized a bunch of folks in the community, a lot of coverage on local news.
And then the next day I met with JD

Speaker 1 and his team and presented essentially about a two-hour, three-hour closing argument where I showed him all the evidence in the case.

Speaker 3 JD, what was the whole experience like for you? Like starting from the first contact with Josh and you know, how your situation unfolded when you were getting wrongfully accused of

Speaker 2 being accused. It all really started is because I had developed a relationship with a woman in my office who I had known for many years.

Speaker 2 And that was a mistake on my part. And it was contentious.
It was really beautiful for a long time, like many relationships are. And then it started to entangle, disentangle.

Speaker 3 Shocker.

Speaker 2 Yeah, right. I mean, and it was all my fault, Joe.
I mean, I'm really contrived about the situation because I'm very aware of my mistakes. And I've made amends with her.
And

Speaker 2 thankfully, she has accepted my apologies because I put her in a position where she should have never been in as being an employee of mine. But I had known her for 19 years.

Speaker 2 I had never really been at the head of such a big office. I mean, it's about 100 people.

Speaker 2 So for me, it was a really big thing. And there's a romance that goes with kind of winning an election and coming in and trying to make a difference.

Speaker 2 I think it swept us up, and we really genuinely cared about each other. But then it started to kind of fail, and it was my fault.

Speaker 2 And I brought a lot of toxicity to the relationship that I and I don't like the word toxic. I don't know why I don't, but it's a compromise today.

Speaker 1 Yeah, it is. It is.

Speaker 2 It is, but that's exactly probably what it was.

Speaker 2 And so I'm lucky that, but so, anyways, there were arguments that were caught, you know, on camera with her and I that were released to the public, and it showed us, you know, me arguing with her and raising my voice.

Speaker 2 And so it was an extremely embarrassing time of my life.

Speaker 2 But so this was all happening amidst this. And so it really, it all really did start happening when I exonerated those Nancy Smith and Joseph Allen in 2022.

Speaker 2 My life changed because I I knew there would be consequences to actions like that because it creates financial problems. People are suing people in federal courts.

Speaker 2 So it causes problems even in the sense that I was very close with police. I was a county prosecutor.

Speaker 2 I'm a very pro-policeman. And so it was difficult, the strain that it put on some of the police departments, even though it was an old case, you know, I'm still friends with a lot of these detectives.

Speaker 2 And to sort of make decisions like that where you have to kind of disagree, it can be difficult. It could strain relationships.

Speaker 2 But I really really didn't realize the extent of how much it would do it.

Speaker 2 So when I exonerated Nancy Smith and Joseph Allen, which is one of the worst cases I've ever seen, I thought that it was the worst case I'd ever seen.

Speaker 2 And then I got Josh's case. And after I was going through all that hardship, basically on October 1st of 2024, I was charged with three felonies, tampering with records, intimidation, and bribery.

Speaker 2 It was shocking to me because I couldn't figure out what the conduct was that they were referring to.

Speaker 2 So what in essence it was, is because of that fallout from the videos that were released, and she didn't have a partner releasing the videos, and so she had called us in the summer time, even though we weren't really talking a bunch, and she had kind of expressed her sorrow that those videos had gotten out.

Speaker 2 and that she didn't intend for them to, and that she kind of wanted some help with the media about how can we kind of help a little bit with the PR.

Speaker 2 And my partner and my chief of staff, Jim Burge, who's a legend

Speaker 2 unto himself, he's the best writer I've ever seen.

Speaker 2 So he wrote a statement, and it was supposed to be prepared for her lawyers if they wanted to review it and see if they agreed with it or change it or anything like that. So,

Speaker 2 and to prove that that's what occurred was I have text messages from her on the day that Jim wrote the statement that says, you know, I trust Jim and

Speaker 2 his magic pen because she knew how good of a writer he was.

Speaker 2 And then the next day, when I'm supposed to be intimidating him, according to the state, when I'm supposed to be intimidating her, according to the state, you know,

Speaker 2 I received a text message apologizing to this situation that we're in because we both were just really...

Speaker 2 It was dramatic to have your personal life right in even a small town like that. It was dramatic.

Speaker 2 So that's really what happened. But what they alleged was they alleged that we had created this false narrative, this false document, and then intimidated her into adopting it.

Speaker 2 That was the allegation, which was completely, completely false.

Speaker 2 And we had all the evidence to prove it. So I was fairly confident in my case because I'm a lawyer.
I've defended it. I was a defense attorney for 15 years before I took office.

Speaker 2 So I'm fairly knowledgeable about what constitutes a good case or not. And I had a great case.

Speaker 2 But the stress that it put on my family and my mother and my father,

Speaker 2 just awful. You know, I have nieces and nephews.
I'm a bachelor, but I've got nieces and nephews with my last name, and that really bothered me.

Speaker 2 And so while I'm battling with this, the interesting thing, I'm charged on October 1st.

Speaker 2 On October 4th, and they had, once we broke up in 23, they had kind kind of been courting her because they knew that she was my weakness,

Speaker 2 that the contentious relationship, and I think they were hoping that they would turn her on me.

Speaker 2 And so they did as much

Speaker 2 to exploit and try to utilize our relationship against me. In fact, the lead detective that was investigating us was attempting to sleep with her at the same time, attempting to sleep with her.

Speaker 2 I have text messages, asking for nude photographs, asking to go over her house. This is while he's investigating me, Joe.
He's trying to sleep with my girlfriend.

Speaker 2 Saying stuff like, you should get back at him. You should get back at him.

Speaker 3 How dumb is this guy to make this in text messages?

Speaker 2 I couldn't believe it.

Speaker 3 You want to think the people that are evil, that are manipulating people and falsely trying people, they're like evil geniuses.

Speaker 2 Joe, it was extraordinary. That's why at first I didn't believe it.
I was like, why would he write it? Why would he do that?

Speaker 2 And then she shared those messages with me. She showed me them.
I didn't get to actually physically, and then later I acknowledged it. But so what it all occurred was in 2020, I won an election.

Speaker 2 I went against my own party and I ran in a primary and I ended up winning. And then

Speaker 2 my relationship with the sheriff, who actually ended up investigating me for this case that I'm referring to,

Speaker 2 we had pretty good relationship there for the first couple months when I got elected.

Speaker 2 I had asked for a couple of my deputies to be deputed, or a couple of my investigators to be deputized, which is a pretty standard procedure. He agreed.

Speaker 2 And then he hired the individual that I had defeated in the election, and the whole attitude changed. Everything changed.
It was now very contentious. He had withdrawn his desire to

Speaker 2 deputize my investigators. The relationship turned very sour, very fast, when he hired

Speaker 2 my predecessor, which is unusual to have a lawyer working in the Sheriff's Department anyways, because statutorily I'm the lawyer for the sheriff's department.

Speaker 2 So it's an unusual move to even hire a lawyer in a sheriff's department. You could probably get two deputies for that kind of money.
So it was unusual in a sense.

Speaker 2 And then, so the relationship just soured, and it was kind of like they were coming after me immediately.

Speaker 2 And then in late 23, they actually hired then the guy that's running against me, another lawyer who was a former employee of mine, who's now the Lorain County prosecutor. They had hired him.
So

Speaker 2 the agency that was investigating me had hired my predecessor and then the individual who was not running against me for the office.

Speaker 2 Two lawyers, first of all, in a smaller town, I mean, we have about 3,300,000,

Speaker 2 a 10th maybe out of the 88 counties in Lorain County. It's fairly high, but it's a small town.
To hire two lawyers on a sheriff's department is unusual. And they were both my political enemies.

Speaker 2 And then

Speaker 2 the detective that's investigating me is attempting to sleep with my girlfriend. So if you can think of a less objective investigation, Joe, I'm all ears.

Speaker 3 What a fun workplace environment. I'm telling you.
What was it like going to that office every day?

Speaker 2 It was wild. So really what happened was on October 1st, they charged me with

Speaker 2 the felonies.

Speaker 2 I was flabbergasted because I was kind of so confident in their inability to ever get anything like that on me that I was kind of boasting in the sense that, hey, all you had to do is go to a Leary Municipal Court, grab a complaint, you can do it, never thinking that it would actually happen, yeah, because I was very confident that I did anything, nothing illegal.

Speaker 1 So

Speaker 2 what occurred was on October 4th,

Speaker 2 it makes the papers on October 1st.

Speaker 2 October 4th, the woman that I had a relationship with,

Speaker 2 she sees it in the paper.

Speaker 2 She's walking in the store and she sees it in the paper and she sees me and my chief of staff, who she was very close with, and her instinct was to go, well, what did they do?

Speaker 2 Like, she had no idea that the conduct that they had interviewed her about was actually the conduct they had used to charge me. So she was wondering, like, what the hell did we do?

Speaker 2 You know, she had no idea. So that very same day,

Speaker 2 she sent text messages to the detective in charge.

Speaker 2 And she said, what are you guys doing? These guys, JD never bribed me. These are false charges.
All this this is on text message. He never bribed.
What are you doing?

Speaker 2 You turned our personal life into charges against JD. This is crazy.
And she was emphatic that she wanted to speak with me.

Speaker 2 And the problem was I had an order by the court that I was not to speak to her because her lawyer had represented that she didn't want to speak with us. So

Speaker 2 she was trying to get to me to tell me what had happened, but I couldn't speak with her. And so she was growing more frustrated and more frustrated.
Eventually, she spoke to our lawyers.

Speaker 2 But what happened was that I was charged 30 days before the election, and that's devastating.

Speaker 2 I mean, and so what happened was on October 4th, when she sent the text message in, I was entitled to those text messages. Those are exculpatory, and I was entitled to those immediately.

Speaker 2 And they waited a month, and they waited until two days after the election on November 7th, and then they gave me the text messages that showed everything I had said was true. So dirty.
It was.

Speaker 2 Nobody wants to believe that.

Speaker 3 politics and that law enforcement could be that dirty.

Speaker 1 So this is what's going on

Speaker 1 while I'm trying to get his attention. And I have no fucking idea.

Speaker 3 It's a perfect storm. Oh, my God.

Speaker 1 So I then,

Speaker 1 when I made contact with

Speaker 1 JD,

Speaker 1 he started explaining this to me. And I'm very,

Speaker 1 I approach this work like a surgeon

Speaker 1 or how I... picture a surgeon would approach an operation.
I'm single-handedly

Speaker 1 focused on making the kidney transplant or whatever,

Speaker 1 however you want to analogize it. So I was hearing him, but I was kind of of the mindset that those are your problems.
I understand. This sounds wild.

Speaker 1 But I said, you should now know what it feels like. Because I was pissed that he wasn't paying attention because these guys were so remarkably,

Speaker 1 in my mind,

Speaker 1 so demonstrably innocent.

Speaker 3 JD, why didn't you contact him?

Speaker 2 I was going through hell.

Speaker 2 I had been kind of attacked. They'd been trying to get special prosecutors on me.

Speaker 3 In the cloud of it all, you had to focus on that.

Speaker 2 I had to completely self-preserve. And because, you know, I had thought that I was going to be a politician for a long time, Joe.
I was really passionate about it.

Speaker 2 And so it was really important to me. And I had never dreamed that I would ever be charged with felonies.
It's insane. So it really, we had been, Jim and I had been fighting, though, for a year.

Speaker 2 I mean, we were battle-torn. I mean, you know, know, we always joked around about how we're gunfighters.
You face that way, I'll face this way, and we just got to fight our way out.

Speaker 2 And it had been that way for a year. So I was kind of just,

Speaker 2 I was stressed. It was very difficult to think about focusing my mind on anything else other than trying to exonerate myself first.

Speaker 3 Which is always good for your opponents because it makes you bad at your job.

Speaker 1 Awful.

Speaker 2 It gums everything up. Of course.
I started to understand how on a national level, what effects that has.

Speaker 3 Imagine what Trump went through.

Speaker 2 It's a similar thing.

Speaker 1 I've said it before. I'll say it again.
I don't care what your opinion is of that man, to have the metal

Speaker 1 to face what he faced and continue

Speaker 1 on a path of getting anything accomplished, let alone what he accomplished. If you don't stand up and cheer for that,

Speaker 1 the human cost of these prosecutions, you're hearing it right now.

Speaker 1 I mean, he still haven't gotten over it.

Speaker 3 The law fair is very uncomfortable. This episode is brought to you by Visible.
When your phone plans as good as Visible, you've got to tell your people.

Speaker 3 It's the ultimate wireless hack to save money and still get great coverage and a reliable connection. Get one-line wireless with unlimited data and hotspot for $25 a month.

Speaker 3 Taxes and fees included all on Verizon's 5G network. Plus, now for a limited time, new members can get the Visible plan for just $19 a month for the first 26 months.

Speaker 3 Use promo code switch26 and save beyond the season. It's a deal so good, you're going to want to tell your people.
Switch now at visible.com/slash Rogan.

Speaker 3 Terms apply, limited time offers subject to change. See visible.com for planned features and network management details.
This episode is brought to you by Dodge.

Speaker 3 The 2026 Dodge Durango SRT Hellcat is all about one thing, unlocking performance.

Speaker 3 With 710 horsepower, 645 pound feet of torque, and a supercharged 6.2-liter Hemi V8 under the hood, the Dodge Durango SRT Hellcat is the most powerful SUV in the segment.

Speaker 3 It's also insanely capable, towing up to 8,700 pounds with seating up to seven. That's best-in-class muscle in a three-row SUV.
Plus, you can jailbreak it and customize the hell out of it.

Speaker 3 The SRT Hellcat jailbreak has over 6 million possible configurations. You can customize everything from paint to wheels to badging to seats.
Make it your own. This isn't a quiet SUV.
It's loud.

Speaker 3 It's fast. It's powerful and unapologetically Dodge.
Learn more now at dodge.com based on the latest competitive information available, IHS standard full-size CUV segment and horsepower.

Speaker 3 It's a very un-American thing to do to unjustly accuse someone of crimes and use your position of power to try to arrest that person and jail that person. That's very un-American.

Speaker 1 Well, you know what's that?

Speaker 3 That's how we should all look at it. Instead of looking at it in terms of like parties and this is, you know, these are my people.

Speaker 3 This is against me. This is for me.
It's bad for the country.

Speaker 2 It is. It's real bad for the country.

Speaker 3 We are supposed to represent freedom on the world stage.

Speaker 3 We're supposed to be the people that have the most freedom of speech, the most freedom of expression, the best path to success if you're a nobody.

Speaker 3 This is supposed to be a place where everybody gets a shot. And if you allow the system to unjustly accuse and prosecute people for crimes that are demonstrably false, that's very, very un-American.

Speaker 3 And that's how we should look at it. I mean, instead of this fucking fuck my enemies, us versus them, you're kind of committing treason.

Speaker 3 You're kind of ruining everyone's faith. If you could pull it off, you ruin our faith in what this thing is supposed to be.

Speaker 1 Well, look, I think that

Speaker 1 quite obviously there are prosecutions that need to happen when someone commits a violent crime, when there's domestic abuse, when there's robbery,

Speaker 1 all of that.

Speaker 1 For sure.

Speaker 1 What should not be lost on people, because you saw it play out on a national stage with the president. You are now hearing about it in a smaller, you know,

Speaker 1 not a small town, but a smaller jurisdiction. And the irony of this,

Speaker 1 it struck me as I was speaking to JD the first time is here's a man that's fighting for his life. And I just, I mean, I'll confess to you, I used it to say, I continually said to JD,

Speaker 1 imagine you have to go through this for 30 years

Speaker 1 behind bars. So when I finally got through to him that night, we must have spoke eight times that night.

Speaker 1 He was, he knew that there was a problem with this case and he

Speaker 1 he was creating in his,

Speaker 1 understandably so, we don't have time for me to actually sit and listen to you and go through the evidence again because he had been through it before in the in the Ohio 4 case. So, as

Speaker 1 dame fortune would have it, I don't know where I heard that, but as

Speaker 1 the way it worked out is that three or four days after we spoke, the charges against JD were dropped.

Speaker 1 The election happened.

Speaker 1 He gets defeated in the election. It had its intended effect, I guess, in my opinion.

Speaker 1 That's why else. But they dropped the case.
So now his problem went away for the time being.

Speaker 1 So

Speaker 1 he became a lot more

Speaker 1 singularly focused. So by the time I got to Ohio

Speaker 1 and I had a team of lawyers that were representing the other three men, and

Speaker 1 I felt like I had a more captive audience at that point.

Speaker 1 You know, what happens from here and what leads us to today is, in my mind, just as perverse as the irony of him getting wrongfully accused of a crime. Because I presented to JD

Speaker 1 and,

Speaker 1 you know, at one point, he welled up.

Speaker 1 You know, to prove a negative is one of the most difficult things. Our standard is the presumption of innocence.

Speaker 1 When someone is already convicted, And they're wrongfully convicted, in order for you to get someone in JD's position there, he was tough on me, as he should have been.

Speaker 1 But I had to prove a negative because I had to prove that Al Cleveland was not in Ohio when this happened, which frankly became easy to prove because we were able to show that he was in New York visiting his probation officer on a different drug case.

Speaker 1 He had Damon John, who of Shark Tank fame,

Speaker 1 was with him. the day that this allegedly happened.
People saw him all over New York. There were John Edwards, who's my client,

Speaker 1 had

Speaker 1 alibi witnesses all over the place.

Speaker 1 And if Al Cleveland is in New York, this never happened because William Avery Jr.'s story was that Al Cleveland was there leading the charge and they're beating this woman to death.

Speaker 1 So when I was there and I, by the time I was done presenting to J.D. and his chief of staff, they asked if they could have some time and get back to us.

Speaker 1 And we said, well, well, if you guys are going to go chat, we're here in Ohio.

Speaker 1 You know, I'd come in from New York and the other attorneys had come from other parts of Ohio. And we stayed for several hours.

Speaker 2 I think he was prepared to stay there the whole night.

Speaker 1 I had already extended my trip. And, you know,

Speaker 1 interesting

Speaker 1 because

Speaker 1 he didn't make a decision until sometime about a week later, but I never asked you what your impression was at that moment after we met.

Speaker 2 I'd had experience not only with the assistant prosecutor that was involved in these cases, but with the Nancy Smith matter. I can't indicate to you how important that was to my thinking.

Speaker 2 And doing 15 years of being a defense attorney, I know how easy it is for this stuff to happen. It happens.
And so

Speaker 2 I was open to it. I was open to it.
And so I think that, but I was free from the stress, at least for that part, and I was going to dedicate the rest of those two months to this issue.

Speaker 1 And he, I think, realized, he told me this morning when we were talking,

Speaker 1 he said, I knew you weren't going away.

Speaker 2 Tenacious.

Speaker 1 Do you think,

Speaker 3 is it possible to have a third-party system? Like, you know, you have your prosecutors, you have your defense attorneys.

Speaker 3 Is it possible to also have an overview by an independent group before anything gets started where people can present their evidence so you can find out if something's totally bullshit.

Speaker 1 Well, Joe, it's supposed to be the grand jury system.

Speaker 1 And you know what? Most people don't know this.

Speaker 1 There's a judge in New York that has a very famous quote, which is you can indict a ham sandwich. You can get a grand jury to believe anything because the standard is much lower than it is to convict.

Speaker 1 It's that they have to be convinced what is.

Speaker 2 There has to be a probable chance of success at trial. So two issues, probable cause and a success, a relatively good chance of success at trial.

Speaker 3 And who consists of the grand jury? Who are the members?

Speaker 2 Nine citizens.

Speaker 1 Well, it's nine citizens in Ohio.

Speaker 1 There are other jurisdictions, both federal and state, where there's more. But what happens is, and something that the people don't know, is that the defense is not allowed to present anything.

Speaker 1 The defense lawyer is not allowed to be there. So it is quite literally, this is not hyperbole, it is quite literally a one-sided affair.

Speaker 1 The number of cases that go before grand juries and don't get indicted is

Speaker 1 so infinitesimal that it's probably less than 0.0001%.

Speaker 2 It's probably not even statistically significant.

Speaker 3 What I was asking about is an independent group of attorneys.

Speaker 3 Instead of having a grand jury system, have a completely independent

Speaker 3 and then regulate it. Make sure they're independent.
No financial ties,

Speaker 3 no ties to anybody that's a part of any of it. And then make sure that those people, that their position is to review things and make sure there's no bias and there's no bullshit.
Yeah.

Speaker 3 Wouldn't that be before you could actually say, yeah, let's try it out in court.

Speaker 2 Are you kind of saying after the arrest, Joe?

Speaker 1 Yes. And when you, it should be equal sides.

Speaker 3 Like the prosecution side should be able to divulge their evidence. The defense side should be able to divulge their evidence.

Speaker 3 It should be independently reviewed by a group of completely outside attorneys that have no vested interest in the results of this whatsoever.

Speaker 2 It's an interesting idea.

Speaker 3 It's not a bad idea. Because

Speaker 3 people would be less likely to try to commit fraud because then you would have to have some conspiratorial relationship with the people that are the independent attorneys now.

Speaker 3 There'd be another paper trail. It'd be a little sketchier.
You wouldn't know if you could pull that off. That would be dangerous, especially if they're completely independent.
You don't know them.

Speaker 3 So

Speaker 3 the way you could do it would be you could

Speaker 3 find independent. First of all, think about the amount of money we spend in this country on shit that everybody agrees is terrible.

Speaker 3 If we could funnel some, I don't even want to bring up whatever political cause.

Speaker 3 Just if we could funnel some of that money into preserving innocence, make sure that people are never tried with a crime that they shouldn't be be tried with.

Speaker 3 And it's not that you have a bad defense attorney and they have an awesome prosecutor.

Speaker 3 It's all, is this a legitimate case?

Speaker 1 Right.

Speaker 3 And

Speaker 3 if you started doing that,

Speaker 3 there would be consequences for bringing up illegitimate cases. You would be investigated.
You could potentially face charges.

Speaker 1 You've just stumbled into

Speaker 1 what is a wormhole because you've brought up so many issues that are so mired in politics and statutes that, in my mind, make no sense.

Speaker 1 You would be upending

Speaker 1 such an

Speaker 1 institution that it would cause a revolution.

Speaker 1 And it's in fact not that revolutionary of an idea. It's not.
And

Speaker 1 if it were ever possible,

Speaker 1 I would venture to say that

Speaker 1 these times make me feel like about anything is possible.

Speaker 3 Yeah, this would be the time that something like that could get pulled off. I think there's a problem.
And I think the problem is

Speaker 3 people are very competitive and they want to win. Everybody wants to win.
And it's important for your career if you win. And when people play games, they cheat.

Speaker 3 I see people cheat at pool.

Speaker 3 I've seen professionals cheat at pool.

Speaker 3 I've seen people cheat at cards. I've seen people cheat at everything.
People cheat. They want to win.
It's a

Speaker 3 horrible byproduct of that instinct that we have to win when attached to a legal system that could lead innocent people to be prosecuted. I was listening to a podcast today about

Speaker 3 the founding of Jerusalem. And it was in one of the cases was a guy who was in trouble for something that he didn't commit.

Speaker 3 They knew he didn't commit it, and then they kept him in jail and trumped up charges and charged him with something else. So it's just like this is 1948 or 47 or whatever it was.

Speaker 3 So this shit's been going on probably thousands of years.

Speaker 2 For sure.

Speaker 3 People have been prosecuting people for things that they didn't do, knowing they didn't do it so they can win. I think cops do it sometimes.
I've seen cops plant drugs. I've seen it on video.

Speaker 3 There's a ton of them online. You can see cops plant guns.
You could see, there's a one where a cop shot a guy and then pulls out a gun and throws it on the ground. You could see the video of it.

Speaker 3 He didn't know he was being filmed. It fucking happens.
It does happen. It's because people want to win.
They want to win.

Speaker 3 They're playing a game and they're in a system and the system rewards success. And if you fucking fail or if

Speaker 3 something falls apart and it looks bad, your career doesn't progress.

Speaker 1 Well, you know where you can start, which is an easier fix.

Speaker 1 If there's accountability, and I say easier fix because I don't want to throw cold water on your idea, it's a fantastic idea.

Speaker 1 But it it just seems like pushing not a boulder uphill, like a mountain and moving it.

Speaker 3 Do you think that's bigger than Bobby Kennedy running the HHS?

Speaker 1 Yeah, I do.

Speaker 1 I'll tell you why. Because you would be,

Speaker 1 there are so many constitutional issues with the grand jury system and so forth. But here's something that is not that difficult.
Prosecutors

Speaker 1 have immunity.

Speaker 1 There are no consequences.

Speaker 1 So all of these cases where you hear people have been wrongfully convicted, prosecutors don't turn over evidence that would point to their innocence. That's what J.D.

Speaker 1 was referring to when he said exculpatory. That just means that would tend to prove innocence rather than guilt.
That's constitutionally required that prosecutors turn that over.

Speaker 1 But these prosecutors don't have any accountability. And you're going to see in a few minutes when we're going to get to it, what happened after

Speaker 1 JD made his decision? What happened between when we filed it and today is

Speaker 1 if you don't have warm blood pumping through your veins if this doesn't get you in some way. But yeah, I think,

Speaker 2 you know. I think there's an easier way to do it, Joe.
Yeah. I think that you get county prosecutors that are extraordinarily powerful in their community.

Speaker 2 It's like, you know, I try to tell people, vote local because, you know, the president of the United States isn't going to indict you. The guy that's sitting in the county prosecutor's office will.

Speaker 2 And so

Speaker 2 having experience as a defense attorney for that long,

Speaker 2 it changes the way you think about prosecutions.

Speaker 2 So I think that the easier thing is to require that a county prosecutor had some experience as a defense attorney because you get to see it from that perspective and you never are the same because you understand how these things happen.

Speaker 2 You see it.

Speaker 2 If you practice long enough, you will have a few minutes of clients. And I don't want to get down completely on the system because I think most of the time it works, most most of the time.

Speaker 2 But when it doesn't work, it's awful and it's the worst thing on the face of the planet.

Speaker 2 I think that prosecutors, especially when

Speaker 2 they hide evidence, which does occur, I think they think, well, he's guilty, I'll cheat a little bit, so what?

Speaker 2 Which is insane, but it happens.

Speaker 3 It's like that. Do you know that quote about capitalism? Capitalism is the absolute worst way to run a country except for all the other ways.

Speaker 1 Right, right. Yeah.

Speaker 1 Yeah, but similarly. It's a great quote, but

Speaker 1 when will

Speaker 1 this is the lesser of all the evils finally start catching up with us? And it's so, you know, it's so politically driven.

Speaker 1 If people were more aware of how politically driven some of these prosecutions are, and then you, you put your finger on the nerve root of

Speaker 1 what the problem is from the standpoint of human psychology. It's been happening since the beginning of time and will continue to happen until people suffer ego death.

Speaker 1 And suffering an ego death requires you to look yourself in the mirror in an honest way and to be able to say

Speaker 1 four magic words, I made

Speaker 2 a mistake.

Speaker 1 That's it. And what stands in the way,

Speaker 1 in my mind, of prosecutors just so often not moving from their position is because they can't say, I made a mistake, or the office where I work made a mistake you're gonna find that one of the judges that denied relief in this case of the Ohio 4

Speaker 1 was a prosecutor in this office

Speaker 1 is friends with the current prosecutor one of the other judges that denied relief is the same judge that denied Al Cleveland post-conviction relief when the Sixth Circuit Court of Appeals

Speaker 1 the federal government says these guys, Al Cleveland is likely innocent. And they just shove it aside.
What gets in the way? What gets in the way is

Speaker 1 you touched on it. I want to win.
This is, I'm not going to go against the former office. Whatever swirl of

Speaker 1 emotions, you know, whatever it is that just has people, you know, when you get to that point in an argument, this happens, I always give the same example because she's always right.

Speaker 1 you know you get to a point in an argument where you're taking a real strong position and the other person in this case it's my wife is always you know taking the opposite position and then you realize in the argument that you're wrong and it's oftentimes it's like you gave me i gave you my keys to put in your purse where are they no you didn't give me your keys you took them back since then i'm not no no no no i remember where i gave them to you and and then you remember in the middle of the the argument, oh, yeah, that's right.

Speaker 1 She did give them back to me.

Speaker 1 And what happens is, at that moment, you have a choice to make.

Speaker 1 You could stop,

Speaker 1 which I've learned to do and say, you know what?

Speaker 2 I fucked up. You're right.

Speaker 1 In my experience, especially in a case like this, it's just like the, and that's not to pat myself on the back.

Speaker 1 There's plenty of times I dig in and I know I might be wrong, but you know, it's just the inability to say

Speaker 1 something bad might have happened to you.

Speaker 2 Well, and it's protect the state

Speaker 2 at all times, at all costs.

Speaker 3 But wouldn't it be valuable for the people to know that the prosecuting attorneys are very ethical?

Speaker 3 Wouldn't that make you trust them more and want to support them more? Wouldn't that be good for everybody if they just said a mistake was made when a mistake was made?

Speaker 2 It maintains the integrity of it. I mean, Joe, let me say something.
It might blow your mind. It blew mine.

Speaker 2 When I had exonerated Nancy Smith and Joseph Allen, it really was the highlight of my career.

Speaker 1 Can you tell me what the case was?

Speaker 2 Yeah, it was a 94 case, which is interesting because it was happening simultaneously with the same assistant prosecutor as the one that Josh is referring to. They were accused.
She was a bus driver.

Speaker 2 She's now become family to me,

Speaker 2 and they're big fans, Joe, by the way.

Speaker 2 Shout out. Yeah, shout out.

Speaker 2 So, you know, I, they were 94. She was a bus driver for a place called Head Start for young kids.

Speaker 2 She was alleged to have driven these kids after picking them up from their homes back to another individual's house, a male, and severely abused them sexually.

Speaker 2 Now, the Broadway, which is the road where he allegedly lived off of, was

Speaker 2 a main thoroughfare through Lorain. The allegations were so wild that, you know, if you can imagine seeing a school bus pull up on the main street, watch little kids go into a house.

Speaker 2 They were alleged to have been punished by being tied up outside in trees, which is just impossible. So this is the alleged abuse that occurred because what happened was...

Speaker 3 Did someone coach the kids? Yes,

Speaker 2 in fact, that's exactly what occurred so one of the the mother that eventually got paid i think it was about 1.5 million in 95 money which is a decent amount of money um she had indicated that her daughter had been uh abused by uh nancy the bus driver um now when the investigation occurred uh there was a detective on it that that did a very thorough investigation and after months found out that listen this is i don't even think a crime occurred you know um he was very confused by the evidence it wasn't it wasn't clear um it was plain as day that he couldn't couldn't even prove that these two individuals knew one another.

Speaker 2 And so he had indicated that basically, listen, I can't go forward on this. I have no evidence that it's true.

Speaker 2 Well, the public pressure, I'm assuming, was rising because the victim, the woman that had the child, was becoming pretty public.

Speaker 2 She was organizing the other parents, but as you well know, you can't get these parents together and start

Speaker 2 talking about the case because it just compromises so much. Now, to the police credit, they would try to tell these individuals, you can't meet and talk about the case, but they did anyways.

Speaker 2 So then a bunch of erratic stories turned into one pretty substantial story that pretty much stayed all the way through is that she would drive allegedly these kids to a house and they would take them down the basement and pretty much every child said that it was a basement that they went to.

Speaker 2 It turns out, for example, Joseph Smith didn't even have a basement. It was a slab home.
I mean, that's one fact out of a million facts

Speaker 2 that are so disturbing about the case. And so when I started to look at it, the funny part is during the first three or four months of me evaluating it, I had a couple investigators with me.
And

Speaker 2 we were reading only exculpatory information. Nancy didn't do it.
We don't think a crime occurred. And I was wondering, when am I going to start finding the inculpatory information?

Speaker 2 When am I going to start seeing the guilt? And it just really never happened. And so when I exonerated these two individuals that were clearly innocent, she had done 15 years, Joe, he had done 25.

Speaker 2 I was in in court, and my chief of staff and I had written something to kind of indicate to the court, and I apologized to them for what had occurred to them.

Speaker 2 After the hearing, Mark Gotzi of the Ohio Innocence Project came up to me and said, JD, I got to tell you something. You're the only prosecutor I've ever heard actually apologize to a defendant.

Speaker 2 Joe, imagine how remarkable that statement is. It's crazy.
We took 40 years of your life combined, but we're not even going to apologize to you.

Speaker 2 Now, probably because they're assuming that it's going to protect the state's interests better. I'm a firm believer in that if the state suffers, then maybe it deserves to suffer, and that's justice.

Speaker 3 This episode is brought to you by Activision.

Speaker 2 You know me.

Speaker 3 I love a bit of action. That's why I'm excited to tell you that Call of Duty Black Ops 7 is out now.
And let me tell you, this game is the biggest black ops ever.

Speaker 3 If you're into intense action, strategic gameplay, and just straight up kicking ass, this is it. Kicking ass? Sounds like that's right up my alley.

Speaker 3 Black Ops 7 drops you right into three massive modes. First, you've got the co-op campaign where you can team up with your buddies to tackle some serious missions.
Then the multiplayer.

Speaker 3 It's explosive. 18 maps that keep the fights fresh and the stakes high.
And zombies.

Speaker 3 Oh boy, this is the best zombie mode yet, featuring a brand new drivable wonder vehicle that completely changes the game.

Speaker 3 Seriously, whether you're a hardcore gamer or just want to jump into some crazy action, Black Ops 7 delivers. Call of Duty, Black Ops 7 is available now.
Rated M for mature.

Speaker 3 This episode is brought to you by Traeger. Thanksgiving is right around the corner and Traeger is here to make yours legendary.

Speaker 3 Whether you're hosting the whole family or keeping it casual, Traeger makes it easy to grill, smoke, bake, and serve up memorable meals from the bird to the last slice of pie. Let's talk turkey.

Speaker 3 Traeger's got you covered from the first brine to the final bite with their turkey blend pellets, complete with an included brine and rub kit.

Speaker 3 And you can cook the whole meal on your Traeger from savory sides and even dessert, enjoying set it and forget it usability that lets you spend less time cooking and more time connecting.

Speaker 3 Skip the oven this year and make your Thanksgiving a wood-fired one with Traeger Grills. Head over to Traeger.com and use the code Rogan25 at checkout for free shipping.

Speaker 1 You know, it's funny, a lot of cases where I ask, where I have the, I represent a client in a civil rights case for wrongful conviction, I sometimes give the law enforcement official during a deposition in a civil case, I say, you know, I did it recently for Clementia Geary, who was exonerated from Florida's death row.

Speaker 1 I gave the, you know, the crime scene technician,

Speaker 1 the fingerprint analyst,

Speaker 1 all of who played a part in his wrongful conviction, I said, Mr. Geary's here.
Would you like to apologize to him?

Speaker 1 No, sir, I will not. Yeah, they won't do apologize.
So he exonerates Nancy Smith and

Speaker 1 Joseph Allen.

Speaker 1 And all of these folks that prosecuted Nancy Smith and Joseph Allen, law enforcement, the prosecutors, they all turn on him. I had no idea about any.

Speaker 3 Because you apologized or because you exonerated him?

Speaker 2 No, it was because I... Yeah, I mean, it was that.
I mean, the assistant prosecutor Rosenbaum that you're referring to with these cases, he was the assistant prosecutor.

Speaker 2 He was heavily tied in with that office because he had been the chief prosecutor for a very long time under an individual by the name of Greg White, who was the Lorain County prosecutor at the time.

Speaker 2 Now, Greg White doesn't get mentioned. You probably never even heard his name.
Now, that's interesting. He was the county prosecutor during that time.

Speaker 2 He seems to have escaped criticism. I think part of the reason is he's smart enough to be quiet.
So when these cases come out in public, he doesn't say very much.

Speaker 2 But the truth of the matter is the buck stops at the office holder.

Speaker 1 So just so we're clear, this prosecutor, Rosenbaum, prosecuted Nancy Smith

Speaker 1 and Joseph Allen, and I believe he prosecuted all four of the Ohio four. Yes, he did.

Speaker 2 And so when I reviewed two cases, Joe, two cases from this assistant prosecutor, I found that six people were wrongly convicted and did about 162 years in prison. That's two cases, Joe.

Speaker 2 The question question is, how many more are there out there?

Speaker 1 Jesus.

Speaker 2 Two cases.

Speaker 1 It's extraordinary. It's terrifying.

Speaker 2 Two cases. And those are the only two I review.
Now, that doesn't mean most of them are probably good. That's the way the statistics are.

Speaker 2 But I think it was pretty scary the thought of me going through all those cases. And I think they knew that I was open to that type of stuff.
Oh, God.

Speaker 2 And so I think that created these enemies that I never thought they would go as far as they do. I just never, you know, maybe it's naivete, but I was just, I never assumed that they would go that far.

Speaker 1 But they did. So after I presented to JD,

Speaker 1 he had

Speaker 1 a cart.

Speaker 1 This is like a popular thing with prosecutors.

Speaker 1 They wheel in a cart of evidence.

Speaker 1 You know, it's like a shopping cart, it looks like, without the full of files. Yeah, and it's full of files.

Speaker 1 And he had read a lot of it in years prior, and he said he wanted to re-familiarize himself with more.

Speaker 1 So

Speaker 1 I think we both canceled our Thanksgiving plans and got into a lot of I was annoyed because when I left Ohio, it was so obvious to me that these men were innocent and that

Speaker 1 there was a terrible mistake made and a federal court never goes out of their way to say something like this. I have the opinion here.
And I showed this to JD and his chief of staff. And it says,

Speaker 1 this is the way it concludes.

Speaker 1 It goes through the things that the juries in the case heard that were bad about Avery, that he was a liar, he was a liar.

Speaker 1 But it didn't have, you know, all these prosecutors that are trying to protect convictions.

Speaker 1 And the man that's the county prosecutor now, in his motion to withdraw JD's decision to grant these men a new trial and then dismiss the case, we're going to get to this in a minute.

Speaker 1 This is what ended up happening. He says, well, these cases have gone through the courts for 30 years.
And that could be said about every single human that has ever been exonerated in this country.

Speaker 1 It's the weakest argument. It's the weakest argument.
What's the evidence that they did it?

Speaker 1 And here's one court that says, had the jury also been able to consider Avery's unsolicited 2004 recantation, that's when he went into the FBI,

Speaker 1 the 2006 recanting affidavit, that's the one that Al Cleveland had in his post-conviction filings, evidence that Cleveland was in New York a couple of hours before Blakely's murder and could not have flown from New York to Ohio in time to commit the murder, along with the fact that there was no other evidence tying Cleveland to the crime.

Speaker 1 Now they're quoting a case in this opinion. It surely cannot be said that a juror, conscientiously following the judge's instructions requiring proof beyond a reasonable doubt, would vote to convict.

Speaker 1 We find that Cleveland has presented a credible claim of actual innocence.

Speaker 1 So

Speaker 1 that is such a rare thing for a federal court to say those things. That's the federal court telling the lower courts in Lorain County, you have to give Al Cleveland a hearing.

Speaker 1 It's at that hearing where the judge advises Avery Jr., you know, you're basically going to get charged with perjury.

Speaker 1 So I make the presentation to JD, and he spends roughly the next five days, you know, at some point, we were joking to each other, and there was a lot of arguing because he wanted to go out to the apartment where the alleged beating took place, and he did, and he was reading lines of transcript from four different trials, and he'd say, well, what about this?

Speaker 1 What about that? And I just said, you know what? I'm going to cancel my Thanksgiving. He canceled his, and I was just there to answer any question he had.

Speaker 1 And there weren't really many questions of substance. And I started to realize the second or third day that he's looking for something

Speaker 1 to say they're guilty.

Speaker 1 He's looking for some evidence, and every around every corner he looked, he would say things to me like,

Speaker 1 what is going on here? Why in the world would this happen? And why, how is it, it's so obvious. You know, I'd be curious curious as to what your thought process was before you finally told them.

Speaker 2 I couldn't believe they were ultimately convicted. I couldn't believe that there were four trials where people believed Avery.

Speaker 2 You know, I never told you this story, Josh, but I knew one of the lawyers for one of the defendants, but I won't mention names.

Speaker 2 And I heard from a good source that would hang around with him in the office on Saturday that, like, almost like almost every Saturday, one of the defendants would call him.

Speaker 2 And after the phone call, he would cry because he would say, that man does not deserve to be there. And I screwed it up.

Speaker 2 And so,

Speaker 2 and when I heard that, it made sense to me because in Josh's write up, I was looking for some reason why I was making the wrong decision.

Speaker 2 You know, it's a big decision to decide to maybe try to free four people from prison. I wanted to be sure.
I wanted to get there.

Speaker 1 You have to look at it from all angles.

Speaker 2 You have to. And I appreciated Josh's tenacity because that's what good defense attorneys do.
But I had to get there myself. And so

Speaker 2 I wanted to take my parents to Mexico City. I called my mom and said, we're not going to Mexico City.
It's not happening.

Speaker 2 So we just stayed, and I just, but it was so, it was almost therapeutic for me because I had been so much stressed on my own case.

Speaker 2 It was nice to divert attention away from me and try to think about something else. So I really immersed myself in it, and I went to crime scene, which I always believe defense attorneys should go.

Speaker 2 To every case I had, I went to the crime scene. I learned something that I didn't know.

Speaker 2 But I eventually got there, and it was extraordinary, though, not only was this case just on this individual, Avery Jr.'s testimony, he might have been the worst witness I've ever seen in my life.

Speaker 2 I mean, so not so, not only was there no physical evidence that linked these men to it, the only witness that was present was perhaps the worst I'd ever seen.

Speaker 1 And, you know, what the federal court is saying is that,

Speaker 1 yeah, they could damage his credibility at trial, but they didn't know,

Speaker 1 obviously, because he does it later, that he made the whole thing up.

Speaker 1 And they didn't know that he's

Speaker 1 admitted he made the whole thing up. And importantly,

Speaker 1 who walks in unsolicited

Speaker 1 to the FBI and says, Here's what I did, and I want to clear my conscience, and I want to tell you what I did.

Speaker 3 That'd be a hell of a double-cross.

Speaker 2 Yeah, and it's a crime to lie.

Speaker 1 And I knew, I started to feel like, oh, okay,

Speaker 1 we're about to get hometown, small town. Something bad is happening here because

Speaker 1 this should have been a moment to, here we are, myself,

Speaker 1 my co-counsel, we're about to change the trajectory, not of just these four men's lives, but of their families that have lived under the crushing weight of these wrongful convictions for three decades.

Speaker 1 My client, John Edwards, and Al Cleveland and the other two as well, Lenworth and Benson, you know, John is in, Al is out. But Al is suffering,

Speaker 1 you know, the most horrific psychological damage you can imagine. And John calls me from prison all the time.

Speaker 1 JD tells us that he is going to file a joint motion,

Speaker 1 joint meeting between defense counsel and the prosecutor to grant these men a new trial. That's the procedural mechanism.

Speaker 2 Based on new evidence.

Speaker 1 Based on new evidence, which is the 2004 recantation.

Speaker 2 Which they never had the benefit of taking to trial. That evidence was never seen.

Speaker 1 And then the 2006 affidavit, and that once the new trial was granted, he would dismiss the case. So that all gets filed in front of one judge because it really should have been a matter of procedure.

Speaker 1 In all my years of doing this,

Speaker 1 25 years, 24 years, I've never seen a judge do anything other than have the hearing and respect what the prosecutor has

Speaker 1 filed for and asked for, especially when it's joined by the defense. So all of a sudden, the judge that this has filed before

Speaker 1 is silent. Now, the clock is ticking because now we have the whole month of December, and after January 6th, he's out of office.
And right away, within a few days of us filing this joint motion,

Speaker 1 there's a newspaper article that comes out. What's your local paper again? I thought.

Speaker 1 The Chronicle Telegraph. Telegraph or Telegram? Telegram.

Speaker 1 The Chronicle Telegram. And it has the person that just defeated him in the election.
His name is Tony Sillow.

Speaker 1 It has comments from him and from this prosecutor Rosenberg saying that I don't understand what the rush is.

Speaker 1 I don't understand, you know, essentially saying, wait until I take office, I, Tony Sillow, take office, and I want to review this.

Speaker 1 And I thought that that was really interesting because

Speaker 1 he's someone that worked in that office. He's someone that actually

Speaker 1 played a role in some of the investigation that I believe should have taken place

Speaker 1 when he was a prosecutor in that office. And he did not have the benefit of the thorough

Speaker 1 investigation that J.D. had done.
And he's a private citizen until he takes office. So I found that to be interesting.

Speaker 1 And all of a sudden, a brief gets filed from the Attorney General of Ohio saying, whoa,

Speaker 1 it's a brief that gets filed to the court where we filed this joint motion for a new trial. And the Attorney General gets involved.

Speaker 1 You don't have to look far to see other Attorney Generals getting involved in criminal cases, right? That's happened on a national stage, happened in New York.

Speaker 1 And he basically is taking the position that this man,

Speaker 1 this should all wait until Tony Silla takes office. And I thought, what? This is weird.
Why? Then I come to find out that Tony Silla used to work at the Attorney General's office.

Speaker 1 So I started to have hope when the judge,

Speaker 1 one of the judges in the case,

Speaker 1 because I won't bore you with the details, but the cases get

Speaker 1 sent out to different judges that were assigned to each man's case.

Speaker 1 And

Speaker 1 what the judge says is

Speaker 1 the AG's motion, this is a quote, this is from an order from the Honorable Chris Cook,

Speaker 1 the AG, and this is dated December 23rd,

Speaker 1 the AG's motion is not to advocate for either party to this litigation, which in most situations is the sole purpose of filing an amicus brief, but instead to ask this court to delay ruling on the pending motions until such time as the newly elected Lorain County County prosecutor is in office and the victims can be notified.

Speaker 1 Neither of these purported reasons to opine on this litigation are persuasive or necessary to aid the court.

Speaker 1 First, the AG argues that the current prosecutor will be leaving office shortly, referring to J.D.,

Speaker 1 within the next two weeks, in fact, and any ruling should be delayed in order to allow the incoming prosecutor to evaluate the matter and weigh in on the issues. But this reason is hardly compelling.

Speaker 1 After all, all elected officials eventually leave office and to suggest that simply because a newly elected prosecutor is taking over, a pending matter should be delayed for the incoming official to review is unwieldy,

Speaker 1 inconvenient, invites delay, and not how the system operates.

Speaker 1 Moreover, why should rulings or evaluation of this case be singled out and subject to delay in favor of the new administration, but not the other 150 pending criminal cases on this court's docket.

Speaker 1 At the end of the day, the concept that a court or any government entity, for that matter, should come to a grinding halt because a newly elected official will be taking over is not how government should or does work.

Speaker 1 Shout out to that guy. Yeah.

Speaker 1 Put that thought on hold because

Speaker 1 three days later,

Speaker 1 three days later, now this is curious.

Speaker 1 What changes in three days?

Speaker 1 Well, I don't don't know if it happened during these three days, but this is the prosecutor. I mean, this is the judge that swears in the new prosecuting attorney.

Speaker 1 Three days later,

Speaker 1 there is

Speaker 1 another order filed by the same judge.

Speaker 1 And

Speaker 1 because we had moved for an emergency hearing, because in our mind, this incoming prosecutor

Speaker 1 opines on the case in the paper had worked at that prosecutor's office and obviously had some feeling about the case and if he had taken such an interest in talking to the press we were concerned and filed an emergency motion not to let these men suffer any longer

Speaker 1 so the same judge that you just said shout out which was exactly my sentiment

Speaker 1 issues another order.

Speaker 1 You could not get

Speaker 1 a more stark 180-degree turn than this. I'm going to quote from that order.

Speaker 1 How can it be possibly an emergency that a hearing and potential ruling be accomplished in a matter of weeks for a case and cases that have been pending for almost three decades?

Speaker 1 Not to mention four years on the current prosecutor's watch. Moreover, no rational person would conclude that a change in county prosecutor constitutes an emergency.
An inconvenience

Speaker 1 to the move-ins, arguably, a delay in rulings, no doubt, but an emergency? I don't think so.

Speaker 1 In addition

Speaker 1 to the lack of emergency, two additional but troubling issues are apparent by this motion. This is three days later.

Speaker 1 First, the movements go to great pains to paint the incoming prosecutor prosecutor as incapable of fairly and rationally evaluating the defendant's claims of innocence and request for a new trial.

Speaker 1 To pause there, because this man had sat and listened to and dove through and tore through this entire trial record.

Speaker 1 So, yeah, we had concerns that we would face further delay. He had already agreed.
We filed, this is oftentimes right away, the court will call a hearing and grant the relief.

Speaker 1 So the judge goes on to say this effort is unfounded.

Speaker 1 Contra the movement's reliance on a newspaper article, that's the one I was talking about, the same article quotes prosecutor Alex Sillow as saying he would review the matter anew,

Speaker 1 just like Prosecutor Tomlinson did.

Speaker 1 And it goes on to say,

Speaker 1 second,

Speaker 1 Even more troubling is the movement's assertion that Tomlinson's successor has no authority to review agreements made by Tomlinson. I've never seen this in an opinion before.

Speaker 1 Oh, really?

Speaker 1 With a question mark. The movement's right that Mr.
Tomlinson's successor has an obligation to honor the good faith decisions made by the prior administration, J.D.,

Speaker 1 and it then goes on to use the Head Start case, the Nancy Smith case in Joe Allen, where he granted these people,

Speaker 1 he exonerated these people, he then goes on to throw it in their face, in my opinion. He says, recall the Head Start case.
And he goes through

Speaker 1 personalizing this and saying that because J.D. Tomlinson exonerated these people, thereby undoing a prior administration's prosecution, that why should the same not apply to you?

Speaker 1 So, in other words, three days before he says, why should justice wait? Three days later,

Speaker 1 he says,

Speaker 1 wait a second,

Speaker 2 this should wait.

Speaker 1 And it should wait. And by the way,

Speaker 1 here's one to poke this man in the eye because he exonerated people. You're undermining the decision of a prior administration.

Speaker 1 So he's using his granting of innocence, in my opinion, to now go back on what he said three days earlier, which is why should this wait? What happened in these three days? I don't know.

Speaker 1 But I can tell you that you've taken position A and then you've taken position Z.

Speaker 1 So what happens is

Speaker 1 on the these judges, one of the judges, the one that denied Al Cleveland post-conviction relief that, you know, said to Avery Jr.,

Speaker 1 you know,

Speaker 1 there are potential consequences here. He denies the joint motion for a new trial for Al Cleveland based on nothing.
He doesn't call a hearing. This is in December.
He says,

Speaker 1 I'm denying it.

Speaker 1 He then, he then,

Speaker 1 this man Sillo takes office. All the other judges deny it, by the way,

Speaker 1 or delay it. The other judges punt until the new prosecutor comes to office.
And you don't think this is personal? This man's second day in office,

Speaker 1 Tony Sillow takes office,

Speaker 1 his first order of business is to withdraw the joint motion on behalf of the state.

Speaker 1 So he undoes

Speaker 1 everything that we did.

Speaker 1 Because he worked at that office, because he's friends with these guys. I don't know.
But I'd like to know. And to make these men suffer

Speaker 1 is truly at this point, it's really, really difficult to understand. The craziest part about these is that this judge Cook in that first opinion, he said the AG

Speaker 1 cites as one of the reasons why this should be delayed is that the victims have to be notified. He notified the victims and the judge calls them on it here.

Speaker 1 So this is this is like

Speaker 1 it's fascinating.

Speaker 2 Well, you know, you know, I must have a caveat because I do love and respect Chris Cook. I really do.
He's been there for me a lot of my career.

Speaker 2 Where I disagree with his opinion is the idea that I didn't have any experience with the idea that maybe Tony Sillow couldn't be objective.

Speaker 2 And I think where I diverge from Judge Cook is that I had a very real experience on why Tony Sillow couldn't be objective when involving the Nancy Smith case.

Speaker 2 He was involved in that case in the later stages of it. And in my humble opinion, Joe, anybody that looks at that case and doesn't do the right thing is just, it's scary.
It's scary.

Speaker 2 So I did have an experience, and I know that the relationship that he shares with Attorney Rosenbaum, who's the assistant prosecutor with that, I know that was a mentor-protege-type relationship.

Speaker 2 And so, the idea that he's going to be objective in undoing such a major case for someone that's arguably his mentor is almost impossible to conceive.

Speaker 2 And so, I knew that I had to be quick about it because if I wasn't quick about it, I don't think it would ever be done, and I still don't think it'll ever get done.

Speaker 1 Well, I refuse to think it won't get done. It's interesting.
I hope it does. it's interesting to me that i had spoken to mr sillow when he took office

Speaker 1 and

Speaker 1 his first my conversation with him wasn't about all the reasons they're innocent he said you know there's this phone call between al cleveland and his dad where they're talking about um giving avery money and i said what are you talking about And I went and read the transcript.

Speaker 1 It's about them giving him money in 2006 for his expenses to put him in a hotel room so he could feel safe with a court reporter and to do the affidavit.

Speaker 1 And I felt like saying, you know, so let me get this straight.

Speaker 1 You,

Speaker 1 your office, pays this man reward money. He then tries to extort your office for more money in exchange for testimony.
He has gone into the FBI before this affidavit was ever a thing.

Speaker 1 He went into the FBI and admitted he made the whole thing up.

Speaker 1 And you want to talk about a conversation between Al Cleveland and his father when they're talking about whether or not they could reimburse him for expenses if they have to fly him to Florida or, you know, get him to a place where he feels safe because he felt like if he told the truth again, that there would be consequences for him because he was going against his father.

Speaker 1 He'd be labeled a snitch in the community. And, you know, I then emailed him and asked him for a meeting.

Speaker 1 And

Speaker 1 I didn't hear back.

Speaker 1 I heard back finally last week for the first time that we have a meeting with him on March 18th.

Speaker 1 And I found that curious timing. And I said to JD this morning, did you tell anyone you were coming on the show?

Speaker 1 And he looked at me. And it's a small town.
A word travels fast. So I have my suspicions.
But I would make Tony Sillow the following offer.

Speaker 1 Two things.

Speaker 1 If you have any evidence that these men actually did this, any whatsoever,

Speaker 1 with your blessing, Joe, I'd offer him a seat right next to me to show the world

Speaker 1 what the evidence is.

Speaker 1 You tell me what the evidence is.

Speaker 3 Come on on.

Speaker 1 And how about this?

Speaker 1 Rather than do this behind closed doors on the 18th,

Speaker 1 how about let's open it to the public? I just argued for a sentence commutation before Governor DeSantis last week. It was a public hearing.

Speaker 1 I had been told, just as I heard from JD, it just gives me fuel. I don't think it'll happen.
I was told that he has never publicly listened to a sentence commutation, ever.

Speaker 1 And you know what? It happened. And he listened, and he's considering the case.
And I feel like if we talk with each other and not at each other, we can get to the right place.

Speaker 1 And I'm not, this, I want to be really clear. I have deep respect for what prosecutors do.
I have deep respect for Tony Sillow's commitment to public service. I don't know the man.

Speaker 1 I don't know him personally. I don't know anything about him.
But I do find,

Speaker 1 I find it

Speaker 1 really difficult to understand

Speaker 1 why he took such an interest in this case,

Speaker 1 such that he blocked

Speaker 1 justice from happening

Speaker 1 and withdrew the state's position. How about hear us out and meet with us before you withdraw

Speaker 1 the joint motion to dismiss? How about that? How about you

Speaker 1 hear the evidence before making it the first official act or among the first official acts? It was just, it's so I don't, I'm not optimistic going in, but I can tell you this.

Speaker 1 I have found something as recent as yesterday where alternative suspects were brought to the attention of the Lorain County prosecutor.

Speaker 1 And wouldn't you know that the person assigned to investigate these alternative suspects and to liaise with the police department was one Tony Sillow?

Speaker 1 I saw that document for the first time yesterday.

Speaker 3 So what do you think that could mean?

Speaker 1 I don't know what it means.

Speaker 1 I have a lot of questions.

Speaker 1 What did you do to investigate these men?

Speaker 1 One of their ex-wives

Speaker 1 says that he was cleaning bloody clothes the night of the Marshall Blakely murder and he knew her. I don't know what it means, but I'd like to know.
I have questions. You know, what is it?

Speaker 1 Truth crushed to earth.

Speaker 1 Truth crushed to earth shall rise again.

Speaker 1 It always, the truth comes out at some point. And I am, I am

Speaker 1 singularly focused on finding out as much truth as I can about this case. And I just won't let up until I find it.
Something's wrong, and I want to figure out what it is. But these men are suffering.

Speaker 1 They should have been out in December, and to continuously, needlessly delay the process, hard to imagine.

Speaker 3 This episode is brought to you by Fox One. Fox One is now live.
Stream all your Fox favorites together in one place from NFL on Fox to big noon Saturdays. With Fox One, you'll get it all live.

Speaker 3 Start your seven-day free trial today. Offers are subject to change.
Go to Fox One for complete terms and conditions. Fox One streaming now.

Speaker 3 This episode is brought to you by Paramount Plus, now streaming on Paramount Plus.

Speaker 3 It's the return of Landman from Taylor Sheridan, co-creator of Yellowstone, featuring Academy Award winner Billy Bob Thornton, Demi Moore, Andy Garcia, and Sam Elliott.

Speaker 3 In the wake of his former boss's passing, Tommy and Cammie Miller struggle to maintain control of M.Tech's oil.

Speaker 3 And with his father coming back into his life, Tommy must juggle his responsibilities as pressure builds and his worlds collide. Landman, new season, now streaming only on Paramount Plus.

Speaker 2 You know, Joe, I think we're also getting in this dangerous territory where we're not, I mean, the idea that you could ever prove them guilty with this evidence objectively is impossible.

Speaker 2 Now we're getting in this dangerous territory where we're having to prove their innocence. And

Speaker 2 that's significant because that is not the standard. And so when the case is that bad that you have to then just continue to try to find out ways to prove these guys innocent, which is it's difficult.

Speaker 2 You know, I was talking with my father. I said, I can't prove you didn't kill Marshall Blakely on August 8th, 1991.
I can't prove that.

Speaker 2 So we're in this dangerous territory now where we're trying to actually just argue actual innocence. And the standard is proof beyond a reasonable doubt.
It's not even close.

Speaker 1 It's not even close. You know, and where do I...
Scary. Yeah, and all I want to do is, what I want to do is is do what I did with JD is to say, you know, how many times in your life

Speaker 1 do you have a chance

Speaker 1 to say, you know,

Speaker 1 something was really wrong

Speaker 1 and I helped make it right.

Speaker 1 And Tony Sillow has that chance.

Speaker 1 I mean, how many moments are there when you have the ability to impact other human beings in a way to set them literally free and to end the most unfathomable of nightmares.

Speaker 1 And he has that chance. I'm trying to appeal to, you know, I don't want there to be some nefarious conclusion drawn from maybe he did investigate alternative suspects.

Speaker 1 Maybe there is an explanation for it. One thing I know for sure is that no one has been able to show me any physical evidence, any eyewitness account.

Speaker 1 And actually, we have been able to prove their innocence.

Speaker 1 What constellation of fate would come together so that you could show to a

Speaker 1 factual certainty that Al Cleveland was not in Ohio on the night these killings took place?

Speaker 1 He meets with his

Speaker 1 probation officer and he's seen by multiple people.

Speaker 1 And,

Speaker 1 you know,

Speaker 1 what more do you need? That's standing alone.

Speaker 1 You know, and then you factor in Avery saying, I made it all up. And you factor in the fact that the story he tells is belied by the physical evidence.

Speaker 1 It should, it is so easy to put people behind those bars. And it is a,

Speaker 1 it takes almost a miracle.

Speaker 2 to fight their way out.

Speaker 1 So am I hoping for a miracle here? I hope not.

Speaker 1 I hope that these individuals that are presiding over this put whatever it is aside that is causing them to hang on and say, you know what, we just got this one wrong. We can't stand by this.

Speaker 2 And think about this also. The only person to ever place themselves at the murder scene is Avery Jr.

Speaker 2 He's the only one. And he's the only one that wasn't charged.
It's fascinating. He admitted basically to being complicit.

Speaker 1 Fair enough.

Speaker 2 I mean, you're at the murder. It's happening.
You're there. You're the only one that has been charged.

Speaker 2 In fact, I think maybe one of the facts you left out, Josh, is in 2004, he implicated his own father, Avery Sr., who went to the police originally. He said, I think he killed her.

Speaker 2 I think he killed her and told me to tell that story to cover up not only his guilt in killing, that he did know Marsha Blakely.

Speaker 2 There was some reports that they had a contentious relationship.

Speaker 2 So, you know, it's very likely that the two individuals that implicated these individuals may have been involved with the crime.

Speaker 2 It's fascinating. And, you know, I've just never seen cases like this before.
Like I said, I can't stress it enough.

Speaker 2 If I took this case to a bunch of fifth graders, they would be objectively able to see that this is a crazy bad case. I mean, it's not even close.

Speaker 1 And for the retort to be, well, four juries saw it another way, and court saw it another way, that's not true. These juries did not see that this man said, I made it all up.

Speaker 1 And, you know, it always leads to this place: like, what do we do? You know, I,

Speaker 1 if you're a citizen of Lorain County,

Speaker 1 you want to feel that this couldn't happen to you,

Speaker 1 regardless of what your background is, I would think that the citizens of Lorain County would at some point demand action here.

Speaker 1 These men are not

Speaker 1 expendable.

Speaker 1 Whether you disagree with, look, I'll be the first one to say it on behalf of my client, on behalf of Al Cleveland and the others. They're not proud of the fact that they were dealing drugs back then.

Speaker 1 They're not proud of the life they were living. That's not a reason to pin a murder on them.

Speaker 1 Absolutely.

Speaker 3 And, you know,

Speaker 3 the reality is, if you grew up where they grew up and you lived their life, you'd probably sell them drugs too.

Speaker 2 100%.

Speaker 3 That's reality. Nobody likes that.
100%. Everybody's got that pulled them up by their bootstrap shit in their head.
That's not real. That's not real.
You grow up in crime, you commit crime.

Speaker 2 100%.

Speaker 3 It's not 100% that if you grow up in crime, you've got to commit crime. Some people get out.

Speaker 3 Some people realize the folly of other people's ways, and they have incredible strength and resolve and discipline.

Speaker 3 We get extraordinary people from those circumstances, whether it's in athletics or art or music, comedy. There's a lot of people that grew up in horrific circumstances.

Speaker 3 They became very extraordinary because of that pressure. But that's not normal.
The normal thing is everybody gets beaten down by what's around you. You imitate your atmosphere.

Speaker 3 You're a part of a system that seems inescapable to all your family, to all your friends, people getting locked up, getting out, they're getting murdered, they're selling drugs.

Speaker 3 That's your reality.

Speaker 3 And if you grew up in fucking Connecticut and you go to private school and you're sitting here talking shit about this, like you, you're so fucking lucky.

Speaker 3 You don't know how lucky you are to get, if you're a person that's never committed crimes and never gone to jail and never done anything horrible, you are so lucky. That's right.
You're so lucky.

Speaker 3 You're so lucky you didn't have to shoot somebody who was stealing money from you because you were both involved in some crime together and he was going to kill you.

Speaker 3 And all of a sudden, you're in jail. You're like, what the fuck have I done? That's what there's people out there doing that.

Speaker 3 There's people out there that are committing crimes, wishing they didn't have to commit them, wishing they had some sort of pathway to life or some life skills or some education or counseling or mentorship or something that'll have given them them a path to get out of there and be what everybody wants to be.

Speaker 3 A normal, healthy person who's enjoying their life, enjoying their family, enjoying their friends, and hopefully you get to make a living doing something you like doing too.

Speaker 3 That's what everybody fucking wants.

Speaker 3 Just everybody doesn't grow up in the right circumstances. Some people just get a shit roll of the dice

Speaker 3 right out of the gate, pop out of the vagina, right into chaos.

Speaker 2 Say Chris Reich had that joke. You know, it kind of depends on what vagina you fall out of.

Speaker 1 Totally.

Speaker 2 Right? I mean, I got lucky. I mean, my parents, I didn't come from money, Joe, but my parents are still together.
They cared about what I was doing. Did you get your homework done?

Speaker 2 Did you get your homework done? You know, I mean, and I remember having these clients that really taught me a lot where it's like they never even had a shot.

Speaker 3 They didn't have a shot. I mean, so many of these people, they're just growing up abused physically, mentally.
They're seeing drug addiction in the household. It's just...

Speaker 3 You know, it's not the same for everybody. So yeah, it sucks that they were selling drugs.
It sucks that anybody sells drugs. It sucks that people die of overdoses.

Speaker 3 It sucks sucks that people get addicted. All that sucks.
But that's not murder. That's not what these people did.
And you can't charge people for shit they didn't do.

Speaker 1 You know, and I and I do,

Speaker 1 I've been called a lot of things.

Speaker 1 One of them that I take exception to is being called a race baiter. I find that really

Speaker 1 problematic. You know, trolls on the internet that don't matter.

Speaker 3 I don't stop reading comments. I know.

Speaker 1 I don't know. I don't keep doing that.
I'm not even real. But one of the things, one of the things that's right, it's a robot.

Speaker 1 One of the things that people should read, if you want a better better understanding of what it's like to grow up a minority in this country, or black in America, again, four black men in a very white community that were from out of town and drug dealers.

Speaker 1 So read Cast by Isabel Wilkerson.

Speaker 1 And,

Speaker 1 you know, before you go judging what is going on in terms of,

Speaker 1 you know, your perception that people should pull theirself up by their bootstraps, you try being born into a caste system CASTE CASTE

Speaker 1 and we are a country and I'm not on my soapbox this is a fact and if you can dispute anything in Isabel Wilkerson's book this is a caste system that exists in America since its inception and the experience of a black American in this country is different than that of a white American.

Speaker 1 So I think that these

Speaker 1 wrongful convictions happen disproportionately to people of color for a reason.

Speaker 1 And we have to start changing minds and we have to start getting people to come back to, I don't know what's more innate. Is it innate to be,

Speaker 1 to find the humanity within ourselves? Or is it more innate to tear each other down? We all have that decision to make. I don't know what it is about human beings where there's some sort of,

Speaker 1 you know, ostensibly there's like some satisfaction in the tearing down of another.

Speaker 1 I know where that comes from. It comes from a weakness within you.
It comes from a hole that you're trying to fill. What we should want

Speaker 1 is,

Speaker 1 you know, uplifting these people

Speaker 1 that have

Speaker 1 been born into circumstances that are just different. I come from a middle, middle class family.
you know, sometimes trending toward the lower end. My dad had a knockaround guy from Brooklyn.

Speaker 1 My mom was a school teacher. And

Speaker 1 I think that going through some of those struggles set me up for success and to learn how to scrape a little bit.

Speaker 1 But I didn't have the experience of someone that was born in Watts or Beverly Stuyverson or Harlem. I just didn't.
And, you know, I'm a little less quick to judge

Speaker 1 that, you know, if more people had your sentiment, Joe, right? That

Speaker 1 sometimes it's a little bit deeper than you think

Speaker 1 as to why someone resorts to committing a crime.

Speaker 3 Trevor Burrus, Jr.: It's almost always deeper than you think. I mean, I'm not a full

Speaker 3 believer in determinism because I think will is real. I think free will, there's an element of will, and that's one of the reasons why we seek inspiration from others, right?

Speaker 3 Inspiration is fuel for will, you know, whether it's reading or just watching how people live their lives by example.

Speaker 3 That fuels people to make better decisions. Is that a part of determinism? If it is, maybe I do believe in it.
But I think that there's a certain aspect of will. But you can't deny circumstances.

Speaker 3 You can't deny environmental influences. You can't deny poverty.

Speaker 3 You can't deny growing up abused. You can't deny those things.

Speaker 3 We have a real problem in this country is that we only treat

Speaker 3 the side effects. We only treat the symptoms of this greater problem.
The symptoms are the crime. The side effect, they're a side effect of poverty and of horrible environments that never get fixed.

Speaker 3 And that probably a lot of them are there because of red line laws and because of Jim Crow laws. All of it started out

Speaker 3 in the 1950s and 60s when they started making these places where you literally couldn't sell to black people.

Speaker 3 I mean, there's tracts of Baltimore that were like sectioned off where you could not sell these areas to black people.

Speaker 1 You would love this book. I mean, the cast by Isabel Wilkerson, I feel like a paid spokesperson for it, but she talks about how, you know, there's very real consequences from

Speaker 1 the practical implications of what Jim Crow laws did to fragmenting our society.

Speaker 1 And

Speaker 1 it's not as if this went on a thousand years ago. Right.

Speaker 3 It would take hundreds of years to mellow out.

Speaker 3 You know, this is like you're talking about the civil rights movement. You can watch videos on YouTube of them sicking dogs on protesters.
You can watch that. It's from the 1960s.

Speaker 3 You can see all that.

Speaker 3 That's my childhood. That's when I was a baby.
That was going on.

Speaker 1 Okay.

Speaker 3 You know, and here I am an adult, and there's people alive that experienced that, went through it, and then their children went through it because they carried that trauma.

Speaker 2 And, you know, resources are so important when it comes to defending yourself, too. I mean, I remember when I was a kid, I watched the O.J.

Speaker 1 trial.

Speaker 2 And what $8 million can do is pretty extraordinary. You know, you can have juries that are simultaneously going on.
You're testing theories out while the trial's going.

Speaker 2 And, you know, a lot of these guys get charged with crimes. They kind of get ushered through the system.
And, you know, sometimes they'll get a good appointed attorney, sometimes they won't.

Speaker 3 That one, to me, seemed like that was going to go that way anyway because of Rodney King. I don't think that had anything to do with being a good jury system or

Speaker 3 I thought the prosecutors weren't as good as the defense attorneys. I think that was just horse shit.

Speaker 2 Kind of a foregone conclusion.

Speaker 1 Yeah, the way he's trying on the glove, like,

Speaker 1 get the fuck out of here.

Speaker 2 I think I was going to just slip it on.

Speaker 1 It was a circus.

Speaker 3 But it was also a wake-up call to people that just because someone's guilty doesn't mean they get convicted.

Speaker 3 That you can see it that way, too. I remember watching that case, watching how they did it live on television, the verdict.
And I remember being in my apartment going, whoa.

Speaker 3 This girl I was dating at the time, she started crying. She couldn't believe it.

Speaker 1 I remember where I was when that verdict was read. I was shucking oysters at Barnacle Bills on North Monroe when I was a student at Florida State.

Speaker 1 And I remember feeling like something really awful had just happened, but I understood it because of Rodney King.

Speaker 1 And I understood it not just because of Rodney King, because of what had happened to the community in Los Angeles that for decades had been abused by police. Now, whether or not

Speaker 1 one

Speaker 1 wrong begets another and whether that's rough justice, You know, I don't even feel like I'm in a position to to say I don't think that there's ever been a more guilty person put on trial than OJ Simpson Pretty fucking guilty.

Speaker 1 I mean you have the victim's blood in your car in your house

Speaker 1 I mean this

Speaker 3 somebody gave me a copy of that book that he wrote if I did it

Speaker 3 and my wife threw it out Did you even get to read it?

Speaker 3 I never was going to read it. It's one of those books I was just going to put on the shelf.

Speaker 1 I just watched the news

Speaker 1 you know there's certain books So why?

Speaker 3 You have somebody in your office, you go, look, somebody gave me this book.

Speaker 1 I'm not reading it. It's so difficult because, you know, one thing that always stuck with me about that case is the,

Speaker 1 and I won't mention them by name, the moral high ground that some of the lawyers involved have taken, you know, on various social and criminal justice reform issues.

Speaker 1 And always in the back of my mind, I'd be like, you fucking defended O.J. Simpson.
What are you talking about? That's number one. And the second part of it is

Speaker 1 the human cost behind that tragedy also. I have these seared images into my brain of that Goldman family, the sister and the father,

Speaker 1 where they were very outward with their

Speaker 1 torment. And I recently watched the

Speaker 1 I'm a sucker for it. I guess I'm admitting it

Speaker 1 for the true crime genre, but I watched the latest documentary. There's a new one on Netflix.
There's always a new one. On OJ? on OJ

Speaker 1 and it's very well done it is and it's like 30 years later and I know that there have been a few this one is excellent and you know Kim Goldman is still this ruined her life and you know on the flip side you have

Speaker 1 these you know when there's a wrongful conviction that was in my mind a tragedy going the other way but when there's a wrongful conviction it's not just the people that are in there doing all the suffering.

Speaker 1 It's their families. It's their kids.
You know, there is,

Speaker 1 it has a ripple effect where there is a community of people fighting for them. And I just wish I had some sort of magical power to pull these prosecutors into what that emotional tumult is like.

Speaker 1 I was grateful that I had...

Speaker 1 You know, JD was able to let his guard down. And I don't know, but for his experience being wrongfully accused of something, and, you know,

Speaker 1 that he would have

Speaker 1 had the openness to hearing it.

Speaker 1 And, you know, the way that he was charged with a crime without a grand jury, and I don't think that there's a person among us that if in your, in your worst moments, if someone was recording you and you're saying things you wish you didn't say to a significant other,

Speaker 1 that's what he did. That's the crime.
I mean, hey, I'll tell on myself. There are things that I've done that if someone was recording it or things that I've said that I wish I didn't do or say that

Speaker 1 You know, but for the grace of God, go there.

Speaker 1 I fucked it up.

Speaker 1 But, you know, I mean, I

Speaker 1 and anyone in their private moments, you know, and then to just use that to weaponize and

Speaker 1 undermine, you know, to me, is he a perfect man? No, he's not a perfect man.

Speaker 3 My My perfect man doesn't exist.

Speaker 1 Yeah, am I saying it because he ended up agreeing with me? No.

Speaker 1 He's a human that errs, just like all of us.

Speaker 1 And I think we need more prosecutors, more judges like this man that have been on both sides of it and are willing to set their egos aside,

Speaker 1 willing to suffer whatever consequences come from it. You know, he told me at one point, when he was nervous about doing this, these people ruined my life because I exonerated two people.

Speaker 1 He said, they've been after me ever since.

Speaker 1 And the fact that that sort of one-upsmanship and that competitiveness that you referred to earlier, it's just sad to me that we can't get over ourselves enough.

Speaker 2 What bothers me so much is that I gave them that opening.

Speaker 2 I gave them that opening.

Speaker 2 And somebody was hurt that I cared about very much and used and exploited. And it's not like they're calling her today going, hey, how are you doing? Are you doing okay?

Speaker 2 i mean it was simply you know political

Speaker 2 it was just political in in its entirety and uh i i feel like i had a lot more years joe to kind of look at these kind of cases because i was open to it and you know when i when i mentioned that that those are just the only two i reviewed how many more are there and i'll never see them and it was because of a mistake i made

Speaker 3 you think you're going to run again

Speaker 2 you know

Speaker 2 I really loved the experience of politics. I was a door-to-door guy, Joe.
I didn't have any any money in the beginning because nobody gives you money when you first start.

Speaker 2 And so I just went door-to-door like eight, nine hours a day. My dad would take me.
My dad's 75 now, but he was 70.

Speaker 3 You're a big fucker. I wouldn't let you in my house.
I'd be like, this guy's going to rob me.

Speaker 2 Brother, you'd be surprised.

Speaker 1 You'd be surprised. People just let you right in?

Speaker 3 You know what?

Speaker 2 You look good too dangerous. I got really good at kind of at reading somebody when they came to the door, how quickly I could be,

Speaker 2 how much time I could... I could take.
My goal was to get you to smile, be happy that I show up, and then leave before you ask me to leave.

Speaker 3 This episode is brought to you by Tommy John. I really love their underwear.
They're very comfortable. And if you prefer classic colors or holiday prints, they have all kinds of different styles.

Speaker 3 And comfort never gets out of style with Tommy John. They have up to four times more stretch than competing brands.
They're very breathable, these fabrics they use to keep you cool and dry.

Speaker 3 No more chafing, adjusting, or jingling, just softness and support right where you need it.

Speaker 3 At Tommy John, I can grab gifts for myself and others all in one place because it's not just men's underwear. They have women's products too, including pajama sets, hoodies, joggers, and more.

Speaker 3 And don't forget, your first purchase is backed by Tommy John's risk-free guarantee. So in the rare instance that you don't love it, you get your money back.

Speaker 3 Look, with 30 million pairs sold, there are thousands of other guys wearing Tommy John right now that are way more comfortable than you are. Don't settle for less.
I wear Tommy John.

Speaker 3 They're great as gifts, and you're going to love it. Give the gift that lasts with Tommy John and get 30% off site-wide right now at tommyjohn.com/slash Rogan with promo code Rogan.

Speaker 3 This episode is brought to you by Manscape. The holidays are upon us, and that means it's time to take care of that shopping list.

Speaker 3 And finding the perfect gift just got a whole lot easier this year, though, because you can just get Manscaped's performance package 5.0 Ultra.

Speaker 3 It's perfect for your partner, your dad, your brother, or even yourself. Everyone needs a decent razor and a little self-care, after all.

Speaker 3 This all-in-one grooming kit comes with everything you could possibly need to trim, shave, and get ready for a festive occasion.

Speaker 3 It comes with two trimmers, one for body hair and one for those small, pesky nose and eyebrow hairs. And there's the aftercare.

Speaker 3 The performance package 5.0 Ultra also includes aftershave lotion and deodorant to keep you fresh, comfortable, and confident when you finally step out of the bathroom.

Speaker 3 Because nothing says, I care like a well-groomed man. Give the gift of smooth this holiday season with the performance package 5.0 Ultra.

Speaker 3 It even comes with two free gifts, a pair of boxers, and a spiffy toiletry bag. Get 15% off with the code JRE at manscaped.com.
That's 15% off plus free shipping at manscaped.com with the code JRE.

Speaker 2 And I really enjoyed doing this. I really, I thought it was going to be, the rest of my career was going to be politics.

Speaker 2 And so I'm at this kind of interesting crossroads where I don't really know what I'm going to do next.

Speaker 3 Well, hopefully this conversation will help you in that regard.

Speaker 2 Yeah, maybe.

Speaker 3 You know, I'm sure it will. And I'm hoping that all this stuff that you reveal will cause people, and let's be as

Speaker 3 charitable about this as possible, to just review things and maybe

Speaker 3 take the correct approach.

Speaker 2 I hope it does.

Speaker 3 Because it seems like

Speaker 3 if you expose something to this extent that you have today, it seems like something has to be done. If you can't just allow this to go on, there's too much, too much we know now.

Speaker 3 Yeah, and too much that's been revealed.

Speaker 2 I don't want egos to get in the way.

Speaker 1 Well, I also think that

Speaker 1 if there's more lurking beneath, it's going to get found out at some point.

Speaker 1 You know, we've filed a public records request with the AG's office so that we could see what communications occurred between, if any, between the incoming prosecutor Sillo and Yost, who's the AG of Ohio, we're entitled to that.

Speaker 1 And, you know, at the time this decision came out, the first decision from Judge Cook,

Speaker 1 we filed a public records request with him and he sent it to us. And it turned out that,

Speaker 1 well, I don't know if it was before or after this decision, but this guy, Rosenbaum, was the one, I believe, that made the request

Speaker 1 or that sent an email to Judge Cook saying, you were at the Lorain County Prosecutor's Office in the past. Maybe you shouldn't be sitting in judgment of this.

Speaker 1 So there are communications that must exist, I would think, between the AG and the prosecutor. But yeah, all this will come to light, and we have, we're not going anywhere.

Speaker 1 We're going to keep on pushing until. And the easy thing to do is just, all we're asking is look at the objective facts.
That's why I want to do it. I think what would help,

Speaker 1 you know, in terms of reform is what's the downside of hearing this out publicly? Let me make my presentation to you and make it a public hearing.

Speaker 1 What's the downside of the community knowing what evidence exists against these four men or the lack of evidence?

Speaker 1 And I just hope we end up connecting with them on some sort of human level so that they

Speaker 1 can put whatever it is aside that is causing them to have this pushback. And, you know,

Speaker 1 these, I used to be way harder on myself about making a change happen. And you know this because you've watched my evolution in that regard.
And I just realized we just got to keep

Speaker 1 building the sand castle one grain at a time. And when you,

Speaker 1 again,

Speaker 1 I said it before, I'll say it again, when you walk hand in hand with another individual and helping restore their freedom.

Speaker 1 I don't care.

Speaker 1 There's nothing like it. Yeah, there's no drug, there's no material, there's just nothing that can match that feeling of

Speaker 1 playing a role in that and helping them just live out their days breathing free air.

Speaker 2 You know what I find most interesting, and Nancy exonerates this, is like the lack of bitterness is pretty amazing in some of these exonerees.

Speaker 2 You know, you're dealing with somebody that did 15 years for a crime, not only that she didn't commit, but that no crime occurred, and she's still not bitter. And they still fight her at every moment.

Speaker 2 Right now she's battling, you know, you know, there's a statutory remedy for getting paid when you're an innocent individual when you're in jail.

Speaker 2 But you have a relatively high standard of proving you're innocent to get the money.

Speaker 2 There's nobody in a better position to prove they're innocent than Nancy Smith and Joseph Allen, and they still fight them tooth and nail every day.

Speaker 2 I mean, after the case exonerated them, I tried my hardest to

Speaker 2 forego the interest of the state, and I actually stipulated in a motion that they were innocent, which is very unusual because obviously that's acknowledging that the state screwed up pretty big and because my goal was to get her paid.

Speaker 2 I mean, you know, I got criticized, you know, from some people that basically, you know, that shouldn't be my role, but my role is, you know, if hurting the state represents justice, then that's what happens.

Speaker 2 And sometimes it's costly. You put someone in prison for 15 years because you were reckless in the way you did it, then they should deserve compensation.
And she was at the peak of her earning years.

Speaker 2 You know, she was a middle-class woman, but she was at the peak of her life. And, you know, I think what I really want to get out today is Amber is her daughter, and she's got several children.

Speaker 2 And they've become like family to me. And Amber wanted to make sure that I told you how big of a fan she was, Joe.
But

Speaker 2 shout out to Amber. She's going to love that.
But the truth of the matter is, I got to know them. And I got to know the fact that, like, their story is the untold story.

Speaker 2 Imagine having your mom leave you.

Speaker 2 And then, for the worst allegations that you could possibly have is child molestation. And so every day they had to fight in school, every day.

Speaker 2 And the older brother had to care of the family. And the fact that she's still fighting to get paid 50-something thousand a year for the time that she was in.
That's what the statutory remedy is.

Speaker 2 And they're still fighting it every minute. Eventually, I had to get off.

Speaker 1 It's so crazy.

Speaker 2 It's so crazy. It's like, it's like such a small amount of money.

Speaker 1 It happens in every state. I was on the way here.
I just took this card out of my wallet.

Speaker 1 I was on the way up here, and I was sitting next to a guy that I asked to borrow his phone cord to charge my phone.

Speaker 1 And we started talking. And it turns out he's in the Florida House of Representatives.
His name is John Snyder, Marine Corps veteran, wasn't a lawyer,

Speaker 1 which made him

Speaker 1 in many ways a heck of a lot more down-to-earth.

Speaker 1 And he told me he got into politics because he was like tired of complaining and wanted to actually do something different. And we got to talking.
Where are you going? I told him where I was going.

Speaker 1 He happened to have you he happened to be listening to you and Elon from the other day. And I said, I'm actually going there.
And he said, you know, I'm a Republican.

Speaker 1 And

Speaker 1 growing up in this party, I was all tough on crime. And now I sit through the claims bill process.

Speaker 1 A claims bill in Florida is when you have been wrongfully incarcerated and you're asking the legislator to compensate you. And he said, it changed my entire perspective on

Speaker 1 you can be for a position or against a position, but you don't understand the subtleties and the vagaries until you're in it. And to have somebody...

Speaker 1 And then he took out his card and gave it to me. And he said, if there's any way I can help, there's some bills pending.

Speaker 1 And that kind of openness and that kind of, you know, he struck me as a a guy that was super comfortable with himself and secure with himself to be able to have that approach.

Speaker 1 And if we could all have that approach, I'm not right about, I've fucked up plenty. I'm not right about every position I take.
I'm just trying to find, you know, some common ground.

Speaker 1 The humanity in all of us should always bend toward the truth. Right.
And that's what we mean when we say we want justice for these men. That's what we want.

Speaker 3 It's undeniable. How could anybody argue with that?

Speaker 2 No.

Speaker 3 You know, it's pretty well laid out.

Speaker 2 When we talked about that 2008 hearing with Al Cleveland, I was a young attorney. I was probably 27, and I'd only been practicing for a year.

Speaker 2 And I remember being in there waiting for my case to be called. I had another client, and I saw one of the most unbelievable

Speaker 2 interactions I've ever seen in a courtroom still to this day, was Al Cleveland begging William Avery Jr. to tell the truth, begging him.
And I didn't know exactly what the facts were.

Speaker 2 I later found out, but I'm sitting in this courtroom watching what seemed to be very genuine emotion

Speaker 2 and a man begging another man just to tell him the truth so he can get out of prison.

Speaker 2 And

Speaker 2 it stuck with me. And even now, it's like Al's a very charismatic guy.

Speaker 2 What's devastating is what was his potential?

Speaker 1 Well,

Speaker 1 Al and his wife, Roberta, are remarkable. Still married.
Still married. Married the whole time, Joe.
Crazy. And, you know, John Edwards is still suffering.
He's in prison.

Speaker 1 Benson Davis and Lenworth Edwards. You know, my message to the four of you is I won't stop fighting.

Speaker 1 Unfortunately for my mental health, but fortunately for your prospects, I'm going to keep digging until I get you guys free.

Speaker 1 Thank you again. I always want to make sure I show my gratitude to continuing to give this forum.
It makes a huge difference. I mean, if anybody,

Speaker 1 saying it makes a huge difference is a terrible understatement.

Speaker 1 In my wildest dreams, if someone would have said to me, the prosecutor that agreed to set these men free would be sitting next to you on this show,

Speaker 1 I would have bet the house against it. And I think that this is just a remarkable forum

Speaker 1 to be able to tell these stories and to get into the level of detail where we can touch people. And

Speaker 1 there's too many people in criminal justice reform that don't extend

Speaker 1 their hand to prosecutors and

Speaker 1 people in law enforcement. And

Speaker 1 it's been an eye-opening and incredibly rewarding experience to get to know these folks that feel just as passionate about issues that are on the other side.

Speaker 1 And that's what has led me more to the middle. And,

Speaker 1 you know, I thank you for your humanity, JD. And I hope you do run for something again because we need more people like you in those seats.

Speaker 2 Well, you know, I appreciate you saying that. I think that, like you said, humility is important.
And I've always tried to pride myself on

Speaker 2 admitting when I'm wrong and knowing when I'm wrong and knowing when I don't know. I think one of the problems I see in society now is like everybody wants to know and they don't know.

Speaker 2 And

Speaker 2 it's like sacrilegious to say you don't know.

Speaker 2 And I find that to be really just lying. You know, if you're just guessing, you're just lying, really.

Speaker 2 Yeah, and so I tried to always put my ego in check. And I'm telling you, I can't stress enough that doing defense work is really what allows that.

Speaker 2 vision for me to kind of understand where it can happen because I've had innocent clients and in my experience, you know, it was most likely domestic violence cases because, you know, passions arise, there's cheating going on, there's infidelity, you know, emotions run high, it's easy to make accusations.

Speaker 2 And so those were the scenarios. Now, obviously, I got to make a a caveat.
There's very terrible domestic violence cases that are awful.

Speaker 2 But because of the dynamic between the victim and the perpetrator, that seemed to generate, in my view, any cases that I had that were innocent.

Speaker 2 Typically, there were cases like that, where, for example, the allegations didn't match up.

Speaker 2 So, you know, someone said they struck their head on the curb, but there was no injuries, you know, stuff like that. But it's so easy to get probable cause.
Probable cause is very easy.

Speaker 2 And so, you know, I was so lucky when I got charged, I joked around with Jim Burge, my co-defendant and mentor for many years, who taught me a lot.

Speaker 2 Was, thank God, I've got the smartest lawyer as a co-defendant ever.

Speaker 2 Thank God.

Speaker 2 Because, I mean,

Speaker 2 and I also learned that I'm probably not the best client as a lawyer.

Speaker 2 I used to bitch about clients like me. And I think I'm that way.
You know, I'm sitting at the defense table trying to dictate everything to my lawyer. You know, it's like I wasn't the best client.

Speaker 2 And shout out to Mike Cameron, who was our lawyer, who really had to deal with me.

Speaker 2 But the truth of the matter is, when it happens to you, the only thing I disagree, Josh, is even if it didn't happen to me, I knew that it could happen. I would have listened no matter what.

Speaker 2 I think that

Speaker 2 I was briefed about this case in 2022, 23. I was invited down to Cincinnati for a

Speaker 2 Ohio innocence project, but I think I was probably the only prosecutor in there. But I got to be honest, I never really felt comfortable in the in

Speaker 2 we would go to Ohio Prosecuting Association meetings, my mentor and I, and we never really fit in.

Speaker 2 I mean, the prosecutions, they're fantastic, but they're almost like the hall monitors in class, you know what I mean? And I always just thought defense attorneys were much more fun to hang out with.

Speaker 2 But we always kind of, and we would, because I have so much respect for defense attorneys, you know, I remember the presenters would go up and kind of clown on defense attorneys, and I'd look around, and me and Jim were the only ones pissed off.

Speaker 1 You know, we were pissed off going, hey, what the hell?

Speaker 2 You know, defense attorneys trying to do their thing, man.

Speaker 1 And

Speaker 1 it's a good team. It is.

Speaker 3 Opposing quarterbacks are pussy.

Speaker 1 And that's the problem.

Speaker 2 And that's the problem right there, Joe, really we're all looking for the same thing, justice. And you hit it right on the head.
It's about winning.

Speaker 2 And I almost trust, I trust police much more than I almost do prosecutors because it seems like there's an inherent desire for them to get it right. And it's more of the prosecutors that want to win.

Speaker 2 And I've just had such a great experience with law enforcement, and they changed my mind because I didn't really like the narrative, and I criticized my own party about it.

Speaker 2 The anti-law enforcement rhetoric is just

Speaker 2 unwarranted.

Speaker 3 Agreed. It's a terribly difficult job that gets no reward, and your life is in danger every day.

Speaker 2 And, Joe, when I was county prosecutor, I had about 10 police-involved shootings with fatalities in four years. So about two a year, two or three a year.
Every one of them was good.

Speaker 2 Every one of them was good. And, you know, I would get with the officers, and I had a policy which is a little unusual, where if I made a decision that a shooting was good, I would make a decision.

Speaker 2 That's it. It never went to the grand jury.
It's easy for prosecutors to kind of of just dish it off over to the grand jury. Then that's not their responsibility anymore.

Speaker 2 But I felt like I wasn't going to put something through the grand jury that I didn't believe in.

Speaker 2 So I had officers that, you know, the difficult part about being a police officer is when you have to use that lethal force, then you get people armchair quarterbacking it for the next six months.

Speaker 2 Do you know what I mean? Or what you should have done, what you shouldn't have done. And what happens is what they get in the end of that is, hey, congratulations, you're not getting indicted.

Speaker 2 When in reality, maybe we should say, hey, thank you for saving your partner's life. and thank you for saving the community from a guy that's obviously dangerous enough to pull

Speaker 2 a weapon on a police officer.

Speaker 3 I was just watching an officer involved shooting on one of the social media platforms the other day where there's this young, very large man who seemed to be something was wrong,

Speaker 3 some mental issue.

Speaker 3 He was just talking crazy.

Speaker 3 Maybe he was on drugs. The cops are trying to calm him down for like the longest time.
It's a long, prolonged video. He escalates and then he eventually gets physical.

Speaker 3 And I think they try to tase him and it didn't work. And then they wind up shooting this guy and the officer broke down in tears when it was over.
He was devastated.

Speaker 3 He couldn't believe he had to do this. He was horrified.
His hands were shaking. The other officer was comforting him, trying to get him to breathe and calm down.

Speaker 1 But

Speaker 3 when you see it in real life like that,

Speaker 3 You see how it actually went down like how they're trying to make these split-second decisions and this big crazed guy who's out of his fucking mind is running at you. Right.

Speaker 3 And you don't know what to do. You don't know what's going to happen.
Is this going to be the end of your life? It didn't happen. That happens all the time.

Speaker 3 Cops get their guns taken away all the time. It's a terrifying situation.

Speaker 2 And so I always am very careful to kind of parse out the fact that, you know, I'm always amazed by how much patience they really do show. Yes.

Speaker 2 I mean, the millions of interactions that happen every day. Now, listen, does it happen and there's bad conduct? Yeah, I indicted police officers when I was, there was some I had to indict.

Speaker 2 But

Speaker 2 I believe the vast majority just don't want. They they just want to go home.

Speaker 1 100%. They just want to go home.

Speaker 3 The vast majority of interactions that people have with police are positive. One only gets to see the ones that are negative, that get recorded.

Speaker 1 That's right.

Speaker 3 And then you get sampling bias because all you see is negative, and so you start thinking. So I mean, I'm sure you saw that Harvard professor who conducted that study about

Speaker 3 violence and

Speaker 3 police encounters. And he found it was like it wasn't biased towards black people.
And people attacked him

Speaker 3 because we're seeing it every day. You're seeing these videos every day.
But they're the only videos you're seeing. That's right.
There's the only ones you see.

Speaker 3 You don't see the have a nice day. Thank you for your service.
I appreciate you too. Knuckles.
Drive safe. You don't see those.
That's right. Those are real.

Speaker 3 Those things happen where cops, you know, smooth things over and everybody's okay and they go home and everybody's fine. That happens too.
That happens a lot. It happens way more than the other way.

Speaker 3 But you think cop murder black people bad. Everything happened.

Speaker 1 Horrible.

Speaker 3 Bang, bang, windows shot out. You see those videos over and over again, and they run like a fucking slideshow in your mind.

Speaker 1 Yes.

Speaker 2 And but

Speaker 2 those are statistically insignificant almost. When it comes to the grand scheme of things, I mean, it doesn't happen very often.
When it does, we have to punish it harshly.

Speaker 2 But I just, I grew more respectful of police officers the closer I got to them.

Speaker 1 I think the big problem that people have these days is

Speaker 1 you see something

Speaker 1 and you see it often and you see it replayed and it's just like you said, it becomes a slideshow in your mind and it's hard to know how frequent the occurrence is.

Speaker 1 I had an interesting thing happen to me recently where my son

Speaker 1 Carter made the travel baseball team and I'm like, he's like the new kid on the team because we moved from New York and we went to our first tournament and where I'm the new dad.

Speaker 1 hanging out because it's out of town. And I sit down at a table with these other three dads and they're introducing themselves and we just struck up a conversation and we were talking about bias.

Speaker 1 And I said, you know, I would probably be the wrong, we were talking about, you know, juries and jury service. And he, I said, you know, I'd be like the wrong.

Speaker 1 Oh, someone asked me, one of the dads asked me, how do I get out of jury service? I said, tell the truth. Because we're all biased.
We all have a bias against something.

Speaker 1 And I was like, like for me, I've done a bunch of cases where corrections officers like

Speaker 1 did something bad to someone so I'd probably be bad for a case like that because the reality is that most of them do their job and want to go home and it's dangerous but I was I was recognizing my own bias and I look around the table and they're all looking at each other smiling and I knew it in that moment that one of them was a corrections officer.

Speaker 1 It's my buddy, my buddy Ryan Gillis. And

Speaker 1 I was like, oh, how do I wipe the shit off my foot? So I've gotten to know Ryan, and he's a corrections officer in Florida.

Speaker 1 And he's just a great guy. He's quiet and soft-spoken.
And my daughter was going to the county fair, and there's like rough nights, some nights where like kids try to start fights.

Speaker 1 And I was talking to him about it. And he goes, you know, I do security detail there.
And I'm not there that night, but I'm going to tell the guys you know

Speaker 1 if she has an issue have her call and he's just a he's a great dude you know and there's great people in all walks of life and I look at him and sometimes I'll be thinking man I wonder what his day was like because he has you know a really tough dangerous job and I have such deep respect for him and it was like one of those moments where I was like shit that came out wrong I articulated wrong and I think the problem that a lot of people have and we're in a society where you it's you're so quick to pick a side and to label something.

Speaker 1 And I'm just trying to do a lot less,

Speaker 1 be quicker to listen and slower to speak when it comes to making some big judgment about a group of people. Because,

Speaker 1 you know, you got to take each of these situations individually. Well said.

Speaker 1 Well said.

Speaker 3 Words to live by.

Speaker 1 That's right.

Speaker 3 I think we did it.

Speaker 3 I think we got it all out.

Speaker 1 I do too. I do.

Speaker 3 Thank you, JD.

Speaker 1 That was really, really great, man. Thank you, Brad.

Speaker 3 I really appreciate you doing this, and I appreciate your honesty and the way you're able to express yourself. Thank you.
That was excellent, Josh.

Speaker 2 Love the Moor, bro. Thank you for everything.

Speaker 3 My pleasure. All right.
Bye, everybody.