Joe Rogan Experience #1521 - Josh Dubin & Jason Flom

1. 0:00 – 1:02

   Why they’re here: Innocence Project, wrongful convictions, and the “Junk Science” spinoff

   1. JRJoe Rogan0:00

      Dope. Josh, Jason, (slaps desk) thank you. Thanks for being here. Try to keep this sucker like a fist from your face. Gentlemen, what's happening? How are you?

   2. JDJosh Dubin0:09

      Thanks for having us. Happy to be here.

   3. JRJoe Rogan0:10

      My pleasure, my pleasure. Te- let's, let's just start this off, just tell everybody what you guys are here for and what you do.

   4. JDJosh Dubin0:16

      Okay. Well, we do a lot of things, um...

   5. JRJoe Rogan0:19

      You do a lot of things.

   6. JDJosh Dubin0:19

      (laughs) Or I do. I, I guess.

   7. JRJoe Rogan0:21

      Shout out to Andre Ward for introducing us.

   8. JDJosh Dubin0:23

      Oh, yeah. Yeah, absolutely. One of my, one of my best friends and, and actually personal heroes. But, uh, so Jason and I both work at the Innocence Project. Um, I'm the, I'm the ambassador, the innocence ambassador at the Innocence Project in New York. And, um, we're here to get the word out about wrongful convictions. We have a podcast. Jason has had a long, successful podcast called Wrongful Conviction with Jason Flom. I'm the host of a new spinoff of that called Wrongful Conviction: Junk Science, which examines all of these disciplines of forensic sciences that have been proven, um, to be total bullshit, total junk, as the name would suggest. There's-

   9. JRJoe Rogan1:01

      Let's, let's get to that.

   10. JDJosh Dubin1:02

       Yeah.

2. 1:02 – 5:18

   Jason Flom’s pivot from music executive to criminal justice reform advocate

   1. JRJoe Rogan1:02

      I, I wanna hear what those are. But, um, Jason, can you just tell everybody what you, you were, you were originally in the record business?

   2. JFJason Flom1:09

      Yeah, um, thanks for bringing that up. I've been in the music business since I was 18 years old. So I've signed acts over the years, everybody from-

   3. JRJoe Rogan1:14

      I said record business 'cause I'm old. (laughs)

   4. JFJason Flom1:18

      Yeah, I still call it-

   5. JDJosh Dubin1:19

      (laughs)

   6. JFJason Flom1:19

      (laughs) I still call it that too.

   7. JDJosh Dubin1:19

      You've been in the 8-track game for a while. (laughs)

   8. JFJason Flom1:22

      It sounds nostalgic a little bit, right?

   9. JDJosh Dubin1:23

      Yeah.

   10. JFJason Flom1:23

       We miss those di- vinyl discs and stuff.

   11. JDJosh Dubin1:25

       A little bit, yeah.

   12. JFJason Flom1:26

       And, uh, they used to be able to clean your weed on and everything else-

   13. JDJosh Dubin1:29

       (laughs)

   14. JFJason Flom1:29

       ... on the, on the album covers. But, um, yeah, I've been in the music business since I was 18. So I've signed acts over the years, everybody from Stone Temple Pilots and Skid Row all the way to Tori Amos and Katy Perry and Kid Rock, and more recently Greta Van Fleet and Lorde. And, you know, it's been an amazing run. At various times I was chairman and CEO of Atlantic Records, Virgin Records, Capitol Records. But my calling in life has been, uh, e- eliminating mandatory sentencing, decriminalizing drugs, uh, basically getting people out of prison that don't belong there and reversing mass incarceration, which I believe to be the worst failed social policy disaster since slavery. And it's really just an extension of slavery. So, I really appreciate you having us here, and I can't wait to tell you the story of how we first met. But, um, anyoo-

   15. JRJoe Rogan2:11

       I love that you're doing this. I just, before-

   16. JFJason Flom2:13

       Thanks.

   17. JRJoe Rogan2:13

       ... before we even get started, this makes me excited. When, when successful people go out of their way to do something like this where it's just good, you know, you're, you're, you're just trying to right wrongs. And I couldn't agree with you more. I mean, the, the war on drugs is one of the most disgusting and, and confusing aspects of our enlightened culture. It's just, it's, it's infuriating that we have a gigantic percentage of people that are in prison for n- nonviolent drug offend- offenses, and then a lot of them are wrongly in prison.

   18. JFJason Flom2:43

       There's that. And, Joe, do you know how many people are still annually locked up for possession of marijuana in this country?

   19. JRJoe Rogan2:50

       How many?

   20. JFJason Flom2:51

       Almost 700,000 last year. Like, that's, that's-

   21. JRJoe Rogan2:54

       That's insane.

   22. JFJason Flom2:55

       For possession of pot. It's legal.

   23. JRJoe Rogan2:57

       It's insane.

   24. JFJason Flom2:57

       People are making tons of money on it. I mean, I don't have to tell you, you know.

   25. JRJoe Rogan3:00

       Yeah, you don't have to tell me I'm a pothead.

   26. JFJason Flom3:01

       Yeah.

   27. JRJoe Rogan3:02

       Yeah. It's, it's, it's outrageous. It's, it doesn't make any sense and it's, it's the slowest battleship to turn, you know, in, in terms of the way our culture deals with it and handles it. We all, we all know that it doesn't kill anybody. We all know that... Look, I got a fucking bottle of whiskey right here. This isn't illegal. How come... I could drink this and die, like this in my hand. If I drank that, I'd be dead, right? Or close to it.

   28. JFJason Flom3:22

       Yeah.

   29. JDJosh Dubin3:23

       You know what? Y- you know what's crazy is that when you said, "Thank you," and, "We like when successful people do this," when you said that, I almost felt like I... I don't know the right way to articulate it. I never feel like I'm doing enough 'cause there's so much bad shit happening to people. And, you know, I remember reading this book called Inside Rikers. Um, I forget the author's name, Jennifer Winn, but she did this study of in... of the population of incarcerated people at Rikers Island and how such a large percentage of them were in there for petty drug crimes. And the recidivism was all about people that wa- had drug and alcohol problems and makes up over 90% of the population at Rikers Island. And she had a revolutionary idea, right? She said, "What if we start a program and give them vocational training and put them in jobs?" And the recidivism rate in her program called Fresh Start dropped to almost zero, 0.3%. And it just shows you that the... You know, on the first episode of my, my podcast there was a great quote, and I'm a sucker for quotes, from the guy that I interviewed. He's a attorney at the Innocence Project named Chris Fabrikant. He said that "The justice system is an efficient eating and killing machine for poor people of color."

   30. JRJoe Rogan4:43

       Oof.
3. 5:18 – 8:43

   Getting hooked: Jason’s first case—mandatory minimums and a 15-to-life cocaine sentence

   1. JFJason Flom5:18

      Oh, um, thanks for asking. I, um... It's, it's kind of crazy serendipitous occurrence that happened in the early '90s. I was on my way to play tennis, I used to play tennis, and I wanted a newspaper to read in the, in the taxi ride. And usually I would buy The Times, but it was sold out, so I happened to pick up The Post. And there was this story, um, Cuomo bid... uh, sorry, Ferraro bid for, uh, cocaine kid, right? So the story... Of course I'd read this, I was fascinated by, you know, drugs and stuff. And the story was about a kid named Steven Lennon who had been, uh, sentenced to 15 years to life for a nonviolent first offense cocaine possession charge in New York State. And just in case people think they might be... that I might be misstating that, that was a nonviolent first offense cocaine possession charge in New York State.

   2. JRJoe Rogan6:02

      15 to life?

   3. JFJason Flom6:03

      15 to life, right. So-

   4. JRJoe Rogan6:05

      What year was this?

   5. JFJason Flom6:06

      This was '92 or '93.

   6. JRJoe Rogan6:08

      Jesus Christ.

   7. JFJason Flom6:08

      And... Well, no, he was sentenced in the '80s, so he had been in for eight years already and he... The reason it was in the newspaper was because his mother, Shirley Lennon was her name, had been trying to get clemency from Governor Mario Cuomo, um, Andrew Cuomo's father, of course.... and for you New Yorkers out there, remember that. And she had gotten letters from the sentencing judge, from the warden, and even Geraldine Ferraro had written a letter on behalf of this kid, you know, who had a, you know, good record in prison and everything else. And it had been turned down. So that's why it made the newspaper. And I read this, and my whole sense of fairness and equity and, and everything just got thrown completely out of whack. I was like, "I don't understand." Like, I kept rereading it and going, "This doesn't make any sense. Non-violent first offense?" Like that could be anybody, right?

   8. JRJoe Rogan6:51

      (laughs) .

   9. JFJason Flom6:51

      Wrong place, wrong time kinda thing. And I decided I wanted to do something about it. So I only knew one criminal defense lawyer back in those days, and it was a guy named Bob Collini. He represented Stone Temple Pilots and Skid Row, who both were artists that I had signed. And so I had him on speed dial 'cause, you know, they were getting arrested a lot in those days, and, uh, like weekly. So Bob agreed to take the case pro bono, and long story short, even though he said it was hopeless, uh, six months later we ended up in a courtroom in Malone, New York. And I sat there holding Mrs. Lennon's hand. Uh, the woman I originally spoke to, Shirley Lennon, who was in the story, her s- husband Stan was on the other side of her. And they brought the kid in in shackles like he was Manson or something, right? Leg irons. I was like, "This is all new to me." Like, uh, I'm just like, "What the hell?"

   10. JRJoe Rogan7:35

       Mm-hmm.

   11. JFJason Flom7:35

       And, um, you know, skinny guy with glasses, whatever. And, uh, the judge looked like Ted Forsythe. I thought, "We're, we're screwed," right? There's no way this guy's gonna ... He's an old guy with white hair. And the arguments went back and forth. I knew n- nothing about what was going on. And finally a judge says, "Blah, blah, blah, blah, blah," whatever he said, and he goes, "The motion is granted." (gavel bangs) And he bangs the gavel down and Bob comes running over. I go, uh, I go, "Bob, what just happened?" He goes, "We won." I go, "We won? Get the fuck outta here. We won?" And he's like, "We won." I was like, "Holy shit, that's incredible." And it was the best feeling I'd ever had. And they sent the kid home. He had served nine years.

   12. JRJoe Rogan8:09

       (sighs) .

   13. JFJason Flom8:09

       But he had six to go before his, uh, uh, parole, his first eligible parole date.

   14. JRJoe Rogan8:14

       (sighs) .

   15. JFJason Flom8:14

       And, um, and that's ... I was hooked, you know? So, uh, I did a little research just to, to make it, to, to bring it to a close. I found out about an organization called Families Against Mandatory Minimums, FAMM.org, which had just started. And I joined their board. And then soon after that I found out about the work of the Innocence Project. Then I, I marched in and just offered my services for whatever they needed. And, um, and that's how it started.

   16. JRJoe Rogan8:36

       I s-

   17. JFJason Flom8:36

       I started in a similar ... I got hooked in a similar way. (laughs) . I mean, I didn't wanna cut you off.

   18. JRJoe Rogan8:42

       No, no, no, go ahead. I was gonna go-

4. 8:43 – 12:50

   Josh Dubin’s entry point: Barry Scheck’s call and the Pizza Hut false confession case

   1. JFJason Flom8:43

      I mean I ... So I'm trying to remember the year, but it was a, so it was about 18 years ago. My, my, um, I got a phone call and I was only 27, 28. I'm only 45 only. That makes me feel good.

   2. JRJoe Rogan9:00

      (laughs) .

   3. JFJason Flom9:00

      But I got a phone call and it was like, "Hey Josh, this is Barry Scheck. Um, I need your help on something. Can you give me a call back?" Now I thought it was my brother pranking me, because when I was in college, we used to watch the O.J. Simpson trial and we used to think he was fucking great. He was hysterical. He was like this dynamo, like this, this tornado of action that, you know, it was just like everybody was watching that trial.

   4. JRJoe Rogan9:26

      I don't remember. I'm trying to remember Barry Scheck.

   5. JFJason Flom9:28

      He's the, he's the f-

   6. JRJoe Rogan9:29

      Which one was he?

   7. JFJason Flom9:30

      He's the, the little Jewish guy that said, "How about (bangs table) that, Mr. Funk?" At the O.J. trial. It was like the big moment at the O.J. trial where he was undermining all of the DNA.

   8. JRJoe Rogan9:41

      Oh.

   9. JFJason Flom9:41

      And he found the Innocence Project.

   10. JRJoe Rogan9:44

       That guy.

   11. JFJason Flom9:45

       Yes.

   12. JRJoe Rogan9:45

       He and Peter Neufeld founded it together.

   13. JFJason Flom9:47

       Yeah.

   14. JRJoe Rogan9:47

       Yeah, yeah, yeah.

   15. JFJason Flom9:47

       They founded it together. Yeah, I, I almost got myself into trouble. So there, that's Barry Scheck. So I didn't return the call, because I thought it was my brother fucking with me. So I then got a call from a real famous civil rights lawyer named Jerry Lefcourt who said, he said, "What the fuck is wrong with you? I refer you to Barry Scheck and you don't return his phone call?" So I said, "Oh my god." So I called him, and at the time, I was, you know, a, um, a alleged expert in jury selection. So I was getting passed around this circle of criminal defense lawyers. And I had to lie about my age a lot, 'cause I was 27, 28 and I was, you know, regarded as an expert in jury selection. And people would see me and be like, "Why the fuck am I gonna take advice from this young kid?" So I s- went and met with Barry Scheck, and he had this case where this guy was, um, like literally brutalized. Um, he, his name is Christopher Ochoa, in Austin, Texas, and he gets implicated in this murder at a Pizza Hut. And he's accused of raping, and, uh, his friend is accused of raping and murdering this employee at a Pizza Hut. He had nothing to do with it. His friend had nothing to do with it. And he was a vulnerable kid. And they took him in an interrogation room and they beat a confession out of him. And I was so horrified, I was so perplexed that this could happen in our country. And what happened to him was they threw things at him, they threatened him with prison rape. They did everything that you hear about happening in an interrogation room to him until he finally just said what a lot of people say, which is, "Okay, I'll tell you what you wanna hear just to get out of the room." And he spent, you know, 13+ years in prison for a rape and murder he didn't commit. He implicated his friend. His life was ruined. And I said, "You know what?"

   16. JRJoe Rogan11:46

       (sighs) .

   17. JFJason Flom11:46

       "I can't do anything else with my life if I don't commit it to this." And that was it. I was hooked.

   18. JRJoe Rogan11:52

       Wow.

   19. JFJason Flom11:53

       Yeah. I mean, I hate injustice in any form. It just ... I have a visceral reaction to it and I hate it, and when it's in the form of bullying even more. Um, you know, as a kid my brother was a victim of, uh, terrible bullying. I think we all have been at some stage, but he was really, uh ... And that really affected me a lot, and maybe that informed me. I think I learned a lot from my dad too. My dad always taught me, you know, about doing the right thing and I try to do that in my life, you know? Um, but this is my way of giving back. And it's extremely rewarding. I think anyone that's in this work with us would say the same thing. That it's ... The feeling that you get when you're able to have that impact on someone who's in a position through no fault of their own, that is the most dire circumstance anyone can find themself in. Like some of Josh's clients are our clients sentenced to death. Julius Jones is one we're working on now. Of course James Daly in Florida. Innocent on death row. It's like those words should never be in the same sentence together.

5. 12:50 – 16:08

   How do you know they’re innocent? Death row indicators and the Julius Jones case

   1. JRJoe Rogan12:50

      Let's, let's talk about how you know they're innocent. Like, with these, th- these individual cases you're talking about here. How, how are you sure? Like, how do you know?

   2. JFJason Flom12:59

      Well, so, uh, you know, we could pick on any particular one and on my podcast, Wrongful Conviction, we've covered a number of death penalty cases. Um, and, you know, this one, Julius Jones, for instance, and Josh can speak about James Daly, who we also just did a podcast on recently. Josh and I did it together, um, which I thought was really powerful. Um, I mean, and it, and, and again, he'll speak about that, but J- but Julius Jones, in this case, the actual killer has confessed to n- to numerous people. The-

   3. JDJosh Dubin13:27

      To numerous people-

   4. JFJason Flom13:28

      Yeah.

   5. JDJosh Dubin13:28

      ... like in law enforcement?

   6. JFJason Flom13:29

      In, no, in prison. He, he confessed-

   7. JDJosh Dubin13:31

      In prison?

   8. JFJason Flom13:31

      ... to other people in prison, who, who were strangers-

   9. JDJosh Dubin13:32

      Mm-hmm.

   10. JFJason Flom13:32

       ... who came forward and admitted it-

   11. JDJosh Dubin13:33

       Okay.

   12. JFJason Flom13:34

       ... uh, who, who, who talked about it. The description didn't match Julius. He had-

   13. JDJosh Dubin13:37

       The man... Um, I'm sorry to cut you off, but the, the guy who was in prison who confessed, is he in prison for life? Does he have, uh-

   14. JFJason Flom13:42

       No, he's out. He got out.

   15. JDJosh Dubin13:44

       He's-

   16. JFJason Flom13:44

       Yeah. He, he did 15 years and Julius has been on death row for 21 and he's facing execution unless we're able to, um-

   17. JDJosh Dubin13:50

       Okay, so he confessed to people. So you have an, uh, an account that he confessed to other inmates.

   18. JFJason Flom13:56

       Where-

   19. JDJosh Dubin13:56

       So other inmates have said that he confessed.

   20. JFJason Flom13:58

       We have multiple accounts and we have... Julius had alibis. He also was a, uh, student at Oklahoma, uh, University. He had, um, you know, he had his whole life in front of him. He was a, a phenomenal athlete as well. And, um, this was a kid who he had befriended in high school, uh, because the basketball coach asked him to 'cause he was a troubled kid, his friend. And this kid ended up, you know, as Julius says, "When you're a kid, you don't... You know, the company you keep, you're not so careful." And he, you know, hung around with him. The kid would stay at Julius's house sometimes. And ultimately, we know exactly what happened. There was a carjacking. This, uh, this other young man went and carjacked a local prominent member of the community, a White guy. Um, I think he was a church deacon as well as a businessman. Um, and you know, those cases get a lot of attention in Oklahoma, White victim killed in a carjacking, Black perpetrator, you know, shit goes crazy. And he implicated Julius to get the attention off of him. He actually hid the gun in Julius's house and then brought the cops, who went in. It was hidden in the attic. And the cops went in and came out with the gun like 30, 45 seconds later. So they just magically had, like, radar to figure out where it was? No, the kid had told them where it was 'cause he put it there. And it gets worse from there. Um, this particular case, Joe, is an all-White jury. Um, Julius had a defense lawyer who basically mounted no defense on his behalf in a capital murder case. And the all- not only was it an all-White jury, but one of the jurors, a- and this is probably gonna blow some people's minds, but one of the jurors sent a note to the judge during jury deliberations and said that the other juror had used the N-word and said, "Why don't we just take this..." I won't say the word, "... out behind the courthouse, shoot him and bury him back there and just quit wasting our time with this stupid trial?" Or whatever, I'm paraphrasing, but he used those words. So the other juror reported it to the judge and the judge allowed the juror to continue to stay on the- on the... I mean, i- it gets worse from there. So, eh, the whole concept of a fair trial in this country, unfortunately, is kind of a myth. I mean-

   21. JDJosh Dubin15:58

       But I have, I have a different answer to the question though, 'cause-

   22. JFJason Flom16:01

       Go for it.

   23. JDJosh Dubin16:01

       ... the question was, how do you know they're innocent?

   24. JFJason Flom16:03

       Yeah.

   25. JDJosh Dubin16:04

       And- Well, in this case, it seems like you have a lot of evidence. Yeah.

   26. JFJason Flom16:08

       Or a lot of indicators.

6. 16:08 – 22:06

   Josh’s “science is truth” standard—and the Clemente Aguirre death row saga (Part 1: accusation and conviction)

   1. JDJosh Dubin16:08

      See, we... It's interesting. We have a different perspec- a slightly different perspective because I'm an attorney that represents these guys and he's a justice advocate. And, but he does get to know the facts of the case. But for me, you know, I have three young kids. And, you know, a lot of the crimes are rapes and murders that these guys are accused of, which is why they get long prison sentences, at least the cases that I deal with for the Innocence Project and that I take on pro bono. And I'll give you two examples, because I take it... You know, a lot of criminal defense lawyers say, "Well, who- you're not supposed to ever ask the question, is the person innocent?" To me, it does matter. Um, and I, I had two cases where I demanded of myself and of the client that I really was convinced they were innocent. And what blows my mind is that science is the truth to me. Good science, DNA is the truth. So here we had a case, and, and this was one where I said, "Well, I wanna be convinced that he's innocent." So it's the case of this guy named Clemente Aguirre. And if I tell you this story, you'll say t- "You gotta be making this shit up. It can't be true." Because, uh, the story from start to finish is, is just mind-bending. He's a Honduran immigrant. He is escaping MS-13 in Honduras. And he wins like, what? It was like the Honduran version of The Voice, right?

   2. JFJason Flom17:32

      American Idol. It's like-

   3. JDJosh Dubin17:33

      American Idol.

   4. JFJason Flom17:34

      Y- the Honduran Idol, yeah.

   5. JDJosh Dubin17:35

      Right, Honduran Idol when he's young, when he's in grade school. So the gang leaves him alone 'cause he's kind of a novelty. And he's nicknamed Shorty because he's only 4'11" as a grown person. He's in his early 20s. And the violence is getting so bad, he says, "I gotta get the fuck out of here." They kill his front friend... They, they kill his best friend and dump him in the street in front of them. So he flees to America. And he does the whole circuitous route through Mexico where he gets- tries to get a Mexican accent. He finds a coyote and he swims across the Rio Grande, almost drowns. Um, and then he's taken... Um, I mean, that whole story I could spend a half hour on. He's put in a, in an escape hatch of a car and driven around the country till he finally lands in Sanford, Florida. All right? And Sanford, Florida is where the Trayvon Martin trial happened. And I end up in front of the same judge that presided originally over the Trayvon Martin trial. So Clemente is accused. He gets to Sanford, Florida on a Saturday. He s- begins working at a golf course on a Monday, climbing trees and cutting down branches. One of the golf, um, members says, "I like this kid's work ethic. You wanna come work at my restaurant?" He goes and begins working at the restaurant. He lives in a trailer. In the back of a trailer, no shit, on Vagabond Way.... and he's got neighbors who are three generations of poor white trash. It's a grandmother, a mother, and a daughter. And he's like a novelty. They call him Little Mexico. He's not even from Mexico. He can't speak English. And he used to go and do coke with the daughter, smoke weed, drink, and it was like a outdoor dorm. You know, they would go to his, um, trailer. He would go to hers. It was like their doors were always unlocked. He's out one day partying with his friends. He does coke. He comes home and it's like 5:00 in the morning, and he wants a beer because he wants to try to come down. So he waits till the sun comes up and he goes to knock on their door, and he sees a bloody shoulder blocking the door. And he goes to push it open and the mother is stabbed 129 times. And he bends down. He, he was no stranger to seeing violence. He bends down to check her, and the dog starts barking. He hears noise and he picks up... He sees a butcher knife, bloody butcher knife sitting on a, on a, uh, box, and he picks it up and he screams in Spanish, says, "Anyone here?"

   6. NANarrator20:09

      Oh.

   7. JDJosh Dubin20:10

      He then walks into the other room and he sees the grandmother slumped over in her wheelchair, and he freaks out. He goes... He's about to call the police and he says, "Wait a second, I'm illegal. They'll never believe me." Can you imagine this shit?

   8. NANarrator20:25

      Oh.

   9. JDJosh Dubin20:25

      On a cocaine bender.

   10. NANarrator20:27

       Oh.

   11. JDJosh Dubin20:27

       So he leaves the trailer, he runs back to his, throws the knife in the grass, takes his bloody clothes off. His clothes are bloody because he picked up the mother and... to check her pulse.

   12. NANarrator20:39

       Oh, Jesus.

   13. JDJosh Dubin20:39

       Takes off his clothes, throws them in a garbage bag, puts them on top of his trailer. The boyfriend and the daughter slept out that night. All right? So the mother and the grandmother are dead, the daughter slept out that night. He... And bear with me because this will... This is, like, worth waiting for. He... The police show up l- a couple of hours later because the boyfriend is sent by the daughter. The daughter says, "I have a weird feeling about my mother and grandmother. Can you go check on them and get my work clothes?" Because she worked at Subway, the sandwich shop. So the boyfriend of the daughter discovers the dead bodies, calls 911. The police come, they come next door to Clemente's trailer and say, "Did you hear anything last night? You know anything about this?" He says, "No." He's freaked out. He then goes to a friend's house and tells his friend what happened. He said, "I'm just gonna go back and tell the cops what happened. This is America, right?"

   14. NANarrator21:35

       Oh.

   15. JDJosh Dubin21:36

       And the friend says, "You don't know America. You need to get the fuck out of town." And he says, "No, I'm going back. I'm gonna tell them." He goes back, walks over there and says... tells them exactly what happened. They put him in handcuffs and they sit him down and they say, "Listen, we know how you Latin guys are. You wanted sex from them, right?" He says, "Are you out of your fucking mind? No. I had nothing to do with this." P.S., long story short,

7. 22:06 – 31:25

   Clemente Aguirre (Part 2): untested blood evidence, alternative suspect, and the mid-trial collapse

   1. JDJosh Dubin22:06

      he gets tried, convicted, and put on death row in Florida. The crime scene analyst sat on their hands and knees for days in the stinking Florida heat and scraping blood swabs in the trailer. Okay? 151 blood swabs. And what they're swabbing for is not the victim's blood. They know it's the victim's blood. This woman has been butchered 129 times. The crime scene analyst in his case testified that we were swabbing for evidence of who the perpetrator was, 'cause in a knife fight, the perpetrator often gets nicked and cut, especially when you're stabbing someone that many times. So when the Innocence Project got the case, they said, "Well, what were the results of that blood test?" You know how many drops of blood they tested? Not a single drop of blood. They never tested a single drop of blood because they thought that he was guilty. We had the blood tested and right in the m- in... within inches of the mother's body and in the bathroom where the State argued the killer cleaned up is the daughter's blood. A trail of the daughter's blood going to the bathroom, and then the mother's blood on the outside of the daughter's window. All right?

   2. NANarrator23:24

      Oh.

   3. JDJosh Dubin23:24

      We did a... just a minimal investigation into the daughter and it turns out that she had a history of crazy violence. She had a condition called intermittent explosive disorder where you would snap and just go off the rails.

   4. NANarrator23:44

      That, that's a condition?

   5. JDJosh Dubin23:45

      It's a condition, a psychiatric condition. We look at her medical file. When she's diagnosed with intermittent expres- explosive disorder, they ha- they put her in four points restraints, that's your arms and legs, and there's... in the doctor's notes, few years before this happened, where she says to her mother, "I'm gonna fucking kill you if I ever get out of here. I'll fucking kill all of you." Then we find out that she has confessed all over town. We had people coming in all over the place testifying, affidavits that she said, "I killed my fucking mother and my grandmother. I'll do it to you." And I got her on the witness... So watch this. The State still retries him. His conviction gets overturned, the Florida Supreme Court throws it out, says that he is obviously... there's obviously a real problem here. And the State instead of saying, "You know what, we screwed up here," they doubled down. And it happens in all of our cases. Very rare, not all of them, most of them, where the State comes up with a new theory. They said, "Well, that must have been old blood from her cutting herself," and they had no explanation for why her mother's blood is mixed with her blood in her bedroom, why her mother's blood is outside of her window. I demanded proof there and there was incontrovertible proof. So watch what happens.... there's a blood swipe on her mother's ass. Her mother is struggling to get out of the house and the, the killer m- grabbed at her and pulled her pants down and there's a four-finger blood swipe. And I always thought it was weird. A three-finger blood swipe, excuse me. And I always thought it was weird that there was only three fingers in blood at someone trying to grab at her. So when I had her on the stand, I said, I got a court order to take pictures of her hands, 'cause I wanted to see if there were scars on her hand. And she lifts up her hand and her pinky is bent down like this. And I said, "What happened to your pinky?" She said-

   6. JRJoe Rogan25:50

      Severed tendon.

   7. JDJosh Dubin25:51

      ... "I cut my finger off when I was 14 'cause I'm a cutter and I severed my tendon." That's exactly right. And I said, "Was your hand like that on the night that your mother and grandmother were killed?" She said, "Yes." And I looked at the prosecutor and I said, "Have you, have you seen enough?" They don't quit. I had-

   8. JRJoe Rogan26:11

      They just wanna win.

   9. JDJosh Dubin26:12

      ... they just wanna win. They just wanna win. And he, I, um, I'm happy to report that after her examination and then an amazing examination by my co-counsel, Mari Palmer, which explodes a bunch of other lies, the ex-boyfriend, the ex-boyfriend's current wife came in and testified that he told her that the daughter killed her, and that she snuck out of her house that night, his house that night, climbed out of the window, and then returned later in the night. They dropped the charges in the middle of his retrial, and I got to walk him out, um, off of death row. And in Trump's America, they would not ... they put an immigration hold on him. And it was like out of a movie. He got walked out of the prison to immigration, and there's like a mounting crowd outside of immigration. On, s- we still don't know how it happened. I got him an immigration bond and walked him out of the immigration center that night. And to Jason's point, I have nev- other than the birth of my kids, marrying my wife, hitting a home run in Little League, I've never had ...

   10. JFJason Flom27:21

       (laughs)

   11. JDJosh Dubin27:21

       ... I've never floated like that.

   12. JFJason Flom27:23

       Right.

   13. JDJosh Dubin27:24

       Fighters winning world titles that you ...

   14. JFJason Flom27:26

       Yeah.

   15. JDJosh Dubin27:27

       No f- better feeling than to restore someone's life.

   16. JFJason Flom27:30

       You hit a home run in Little League?

   17. JDJosh Dubin27:31

       One.

   18. JFJason Flom27:32

       Way to go. (laughs)

   19. JRJoe Rogan27:33

       (laughs)

   20. JFJason Flom27:33

       That's gotta be great. Oh.

   21. JRJoe Rogan27:34

       So, so, it's so hard to hear these stories, man, 'cause you just imagine yourself ... (sniffs)

   22. JDJosh Dubin27:39

       Did I get to you on that?

   23. JRJoe Rogan27:40

       Yeah, man. Yeah.

   24. JFJason Flom27:43

       Yeah. He's a beautiful guy, too, Joe. I mean, I'm sure-

   25. JRJoe Rogan27:46

       Imagine meeting some guy who comes to America, you know?

   26. JDJosh Dubin27:49

       And, you know, you me- you get me going. You meet this guy and ...

   27. JFJason Flom27:56

       (sighs)

   28. JDJosh Dubin27:56

       Here's the crazy part. I was called ... Oh, he got me.

   29. JRJoe Rogan28:01

       Yeah. It's fucking crazy, ma- Just-

   30. JDJosh Dubin28:03

       How about, Joe, I'll tell you what I had to go through to get it. I'm not patting myself on the back. Watch this. I've skipped one retrial. The first retrial, I was in front of a judge, the same judge that denied him post-conviction relief. Said, "I don't care that the daughter's blood is there, that she confessed, I don't care." Watch this. She denied him post-conviction relief and she, he then gets his case overturned in the Supreme Court. Her credentials to serve as a judge in a death penalty case had lapsed. After his case gets reversed, she files for special dispensation to become a death penalty judge and says, "Even though I don't still have my credentials, I want to be the judge on his case." Seeks out his case. They're seeking the death penalty and she denied him the constitutional protections that the US Constitution said that when you death qualify a jury, if you violate these rules, the case is going back on appeal. And I would say to her, "Your Honor, you don't understand. W- we're gonna be back here again. You can't not tell the jury, 'Don't research the case in the hallway.' They're gonna research the case in the hallway." And she was, she wanted to kill him. And at one point, I stood up and I said, "I'll tell you something." I had to go at her so hard. I find out that she was the judge in the Trayvon Martin case, whose husband represented George Zimmerman and wouldn't recuse herself. So, all of a sudden, the papers start picking up that I'm clashing with her in court. And I, one point, had such a run-in with her that I sat down and Clemente was crying and I said, "I'm sorry." I thought he was gonna fire me, because I went at it with her so hard and I said, I said, "I understand." And he put his arm on me and he said, (clears throat) "She's gonna kill me." He said, "Please, keep doing it." (clears throat) So, I kept, I just kept going at her and she finally had to declare a mistrial (clears throat) b- because a juror came in and said that they were all researching the case in the hallway and that they thought that he was listening to music because he was listening to the translation on the headphones. So, to get these exonerations, it is such a grueling fight. And if you meet Clemente, he is the most gentle, kind human being and is still in immigration limbo. And to tell you what a great man this guy is, I'm in there, in Florida, like, fighting, like, I'm thinking, "There's no fucking way I'm gonna get him off." And he's calling me going, "Listen, when we get him out, I'm gonna get, we'll get him up in an apartment and we'll pay for this and pay for that." I thought he was crazy. I said, "This guy has no fucking clue what I'm up against." And to, you know, I'm, I'm such a, I'm m- so in his debt and I, I, I'm so in awe of him even though he's my friend that, to this day-... he and I have jointly supported Clemente financially, but he pays for his ho- room and board. And to be able to be in a position to help these guys and just help them start a life again. And, you know, this guy still believes in America. After all that's happened to him, he still believes it's the best place to be.

8. 31:25 – 44:23

   Why officials rarely face consequences: immunity, career incentives, and the “win at all costs” culture

   1. JRJoe Rogan31:25

      What happens to a judge like that? How does a judge not go to jail? How, uh, how does someone... I mean, how does someone get away with that? I mean, it's, she's violating the law.

   2. JDJosh Dubin31:37

      You know-

   3. JRJoe Rogan31:37

      And, uh, and, and clearly, he's innocent, right? So she's trying to kill a man who's innocent.

   4. JDJosh Dubin31:42

      You know, the judge that took over the case, she had to recuse herself in a fit of embarrassment.

   5. JRJoe Rogan31:47

      (laughs)

   6. JDJosh Dubin31:47

      And the judge that took over the case was such a beautiful guy, his name is Judge Galuzo. And all he did was uphold the law. And he... The prosecutors would come in and try to get rid of jurors that said, "I believe that, you know, I'll listen to the facts, and I will only get rid of... You know, I'll, I will consider life instead of death." And he was just so pe-... And, you know, they have immunity is the short answer. These judges and prosecutors, one of the many flaws of our system, right, Jason, is that they all have immunity.

   7. JRJoe Rogan32:20

      So what about these cops, where you're talking about the cop beat the guy in the, in, in the confession? Uh, how does a cop like that not go to jail? How does... If you know that, what, where is that cop now?

   8. JDJosh Dubin32:33

      One of them got promoted. Um, one of them got promoted. One of them got, um-

   9. JRJoe Rogan32:39

      Does the cop know that the kid was innocent and that they did this?

   10. JFJason Flom32:44

       Many times they do, Joe.

   11. JRJoe Rogan32:45

       (sniffs)

   12. JFJason Flom32:45

       And, you know, we can't say, make a blanket statement that they all do, and none of us believe that all of them are bad, but there are a lot of really bad actors throughout the system, and they don't face repercussions. And as a-

   13. JRJoe Rogan32:57

       Right.

   14. JFJason Flom32:57

       ... result of that... And it's so important for people to know this. I talk about it on my podcast all the time. And, and Clemente's episode is so wonderful because in, in that episode, you really feel his humanity. He still has a great sense of humor. He still has a joy of life. And all the exonerees I find have this sort of incredible s- I, I can only describe it as grace, right, after literally being to hell. Like, death row on Florida, it doesn't get closer to hell than that, right? And he was there for 14 years. And he talks about on the podcast-

   15. JRJoe Rogan33:27

       Clemente was on death row for 14 years?

   16. JDJosh Dubin33:30

       Yeah.

   17. JFJason Flom33:30

       Yeah. Listen, there's a lot, a lot worse than that too, you know. Don't get me started on Anthony Panovich, which is a current case in Ohio. You, you'll... Your fucking head will explode.

   18. JDJosh Dubin33:38

       Oh, yeah, I got him off after he, he had... It was actually 10 of the 14 years, he was on Florida's death row. The other four years were in jails. Not to be technical, but yeah, he was on death row.

   19. JFJason Flom33:49

       Right.

   20. JDJosh Dubin33:50

       Yep.

   21. JFJason Flom33:50

       But he, he's funny, Joe, because we got to inject a little humor into this, right? So in, in, on the podcast, on Wrongful Conviction, he talks about how when he went to prison, he didn't speak English, and he figured he ne- Do you remember this, Josh? And he said, "I needed to learn how to speak English. I figured I'm never gonna get out of here if I can't, you know, help in my own defense." So he asked the guard for a Bible, and the bi- guard said, "There's no, no Bible." To which he goes, "This is hell. There's no Bibles here." So he gave him instead a letter of pe- a book of Penthouse Letters, like, porn. He gave him porn. And so what Clemente says, he, he read this thing 17 times, and he says the 17th time, he finally (laughs) got a hard on, he says. But not-

   22. JRJoe Rogan34:27

       (laughs)

   23. JDJosh Dubin34:27

       ... not because of the porn, because I realized I could speak English, right?

   24. JRJoe Rogan34:30

       (laughs)

   25. JFJason Flom34:30

       (laughs)

   26. JDJosh Dubin34:30

       And when you hear him say this, and you just, you wanna hug the motherfucker.

   27. JRJoe Rogan34:34

       Oh.

   28. JFJason Flom34:34

       He's such a good and decent guy, and he just loves life, and he appreciates everything. But imagine that it took Josh Dubin, right, one of the great lawyers in, in our country-

   29. JDJosh Dubin34:44

       Oh.

   30. JRJoe Rogan34:44

       Is that him right there?
9. 44:23 – 51:29

   False confessions and interrogation deception: “Ask for a lawyer” and say nothing else

   1. JFJason Flom44:23

      They, they, they, they just... It's a psychological thing. Um, it's also blind ambition. Um, and there's so many factors that, that, that I think some of them are preventable, and when, when we set out to do these podcasts, whether it's the Wrongful Conviction one or Junk Science that Josh is the host of that just came out, or even the False Confession series that we did, our goal is to educate the public because your listeners are gonna... What you, you and me, everyone, um, Jamie over here, the engineer, is gonna end up on, uh, on a jury at some point, right? And may be having s- You may be holding somebody's life in your hands. And it's important for you to understand that the people that you hope that are, are gonna be telling you the truth, that you respect because they're authority figures, right? I grew up res- respecting uniforms and, and everything else, and I still do. But the fact is, they may not be telling the truth. And the... Just because somebody says they're an expert, that's what Josh talks about on his podcast, doesn't mean they're really an expert. They may be talking about things that are actually junk science. And furthermore, they're allowed to lie in the interrogation room, and this is something, if we get nothing else across today, I, I, I always tell people when I go... Do talks and, on my show. I talk about the fact that if you get picked up and brought in for questioning and y-... You know, people who are innocent waive their Miranda rights. 85% of people waive their Miranda rights anyway, but people who are innocent almost always do because they don't think they have anything to hide. They think, "I'll just go in. I'll tell them what, what... You know? Like, "I wasn't there," or, "I was with my mom," whatever it was, "and I can go home." And they may not say that you're a suspect at all. They may say, "We just wanna ask you a few ques-" So the answer is, if that happens to you, the only thing you should say is, "This is my... I'm Joe Rogan, and I want a lawyer," or whatever your name is, whoever's listening. Those are the only words you should say because they're not your friends, and you can get talked... In that interrogation room, crazy shit happens. They don't always beat people up. They don't need to. They can use coercive, psychological tactics that can get people to confess to crimes that they didn't commit, and once you start talking and you're in that little airless room. You've seen it on TV, right? And they start the good cop, bad cop, and they intimidate you, and they threaten you with the death penalty, and they're allowed to lie. Now-

   2. JRJoe Rogan46:34

      Now, why are they allowed to lie?

   3. JFJason Flom46:36

      That's a great question, Joe. I mean, in other Western countries, they're not, but here they are. So they can sit there, especially... And you know the people that are most likely to falsely confess are people... Adolescents, right? Anyone whose brain is not fully formed, and we know that your brain's not fully formed till you're 25, and military veterans, interestingly enough. And they're disproportionately affected by this 'cause they're used to obeying authority figures, right? And following orders. And so the Norfolk Four, a classic case of that, um. For- Four guys confessed to a crime they didn't commit, um, and none of them did it, and this act-

   4. JDJosh Dubin47:07

      The Central Park Five is another good example.

   5. JFJason Flom47:09

      Right. Those were just kids. They were just young teenage kids, and, you know, they, they can sit there and they can threaten you with the death pen- And they can sit there and go, "Joe, listen, we got your buddy in the next room." He's not even there. "And he says he saw you do it. We got your fingerprints on the, on the knife, Joe. What are you talking about?"

   6. JDJosh Dubin47:24

      You, you-

   7. JFJason Flom47:24

      "The best thing for you is to confess."

   8. JDJosh Dubin47:26

      And Joe asks, you asked the, the, the critical question, which is, why are they allowed to do it? Because there's not a law. No one has the balls. All these blowhard politicians have the balls to introduce le- 'Cause, you know, they're afraid to piss off the police union because they'll lose that vote, right? To in- introduce legis-

   9. JRJoe Rogan47:45

      Goddamn it. The police union should be the ones who are clamoring for that.

   10. JDJosh Dubin47:47

       Right? That, that introduce legis-

   11. JRJoe Rogan47:49

       Especially now, right?

   12. JDJosh Dubin47:50

       Introduce legislation. Right, especially now. Introduce legislation that makes it a crime, right? To lie to a suspect. Think about the mindfuck that's going on here. And remember, the psychology is, we're gonna deprive you of sleep, we're gonna deprive you of food, we're gonna scare the living shit out of you, and we're gonna lie to you. We're gonna lie to you and make you... You ever see that Chris Rock bit where he's like, "Cop pulled me over, and after a while, I'm like, 'Damn, maybe I fucking did do it'" (laughs) ?

   13. JRJoe Rogan48:18

       Right. Yeah.

   14. JDJosh Dubin48:19

       You know? It's like that shit-

   15. JRJoe Rogan48:20

       Yeah.

   16. JDJosh Dubin48:20

       ... is going on. And it's like... You know, you're like, "Maybe I did something and didn't remember it." That's what they start getting you to believe because if they're telling me, they're saying, "Joe, listen. We have... How the fuck do you explain how your DNA is on the victim? How do you explain that?" And you're thinking to yourself, "I can't fucking explain that. A, I didn't do it, but maybe... I don't, I don't know. Maybe I did something and don't remember it." And then there's, there's this, which is, you'll hear from a lot of people that are victims of coercive interrogations, is, um, "I figured I would just tell them what they wanted to hear, get out of the room, and then sort it out."

   17. JRJoe Rogan49:02

       ... right, where you can't.

   18. JFJason Flom49:03

       Right. And they- and they'll- and they'll say to you, "Listen, y- you're just a kid."

   19. JRJoe Rogan49:06

       Right.

   20. JFJason Flom49:06

       "No one's gonna believe that you committed this gruesome murder, right? You just gotta... And my partner's crazy. I don't know what he's gonna do to you. But while he's out of the room, let me tell you, kid, the best thing for you to do is just sign the piece of paper and, you know, we'll sort this out later. You'll be fine." But now you've just signed your own death warrant because juries can't understand. When you ask people, "Would you ever confess to a crime you didn't commit?"

   21. JRJoe Rogan49:27

       They all say no.

   22. JFJason Flom49:27

       You'll ask the first 100 people you see. They'll all say, "No, no, no. I'm t- I'm smart. I would never do that." Ri- but the thing is, they don't realize 25% of the DNA exonerations, approximately 25%, Joe, o- involve false confessions. So just process that, right? That's how many people confess because they-

   23. JRJoe Rogan49:46

       'Cause they're good at it.

   24. JFJason Flom49:46

       ... and some of them are-

   25. JDJosh Dubin49:47

       Yeah, that's right.

   26. JFJason Flom49:48

       ... uh...

   27. JDJosh Dubin49:48

       The cops are great at it.

   28. JFJason Flom49:49

       Some of them- some of them may be mentally challenged, right. The cops are-

   29. JRJoe Rogan49:50

       And it's also a game. It's- it's a game to get you.

   30. JDJosh Dubin49:53

       Oh, that's a game.
10. 51:29 – 1:05:18

    Politics and prosecutors: Kamala Harris, Amy Klobuchar, and reputational consequences

    1. JRJoe Rogan51:29

       Josh, you- you- you were talking about Kamala Harris, and I think this might be a good time to talk about this because she might be the vice presidential nominee. What- what specifically did she do where there was someone who was innocent or someone who was wrongfully convicted?

    2. JDJosh Dubin51:48

       Let me give a caveat.

    3. JRJoe Rogan51:49

       Okay.

    4. JDJosh Dubin51:50

       Caveat is that I know I'll catch shit from some people that say, "You have to do everything you can to make sure that Trump is not elected." Um, and I will say that even h- even she's an improvement as vice president, um, if he does pick her. Anything's an improvement in my mind, so with that caveat, we- it would take this podcast and four more to go through. She fiercely fought wrongful convictions and was shamed by judges when she was district attorney in San Francisco. What was the case? The Ga- the Gage case?

    5. JRJoe Rogan52:23

       George Gage.

    6. JDJosh Dubin52:24

       The George Gage case, where her prosecutors hid evidence, um, and they tried to protect... Once she knew that there was, um, evidence that was withheld from defense attorneys, once she should have known, in my opinion, that people were innocent, she tried to protect those convictions. Why? Because she wanted to continue winning. She blocked DNA... She- she went to great lengths to try to block access to DNA for people that were accused of or convicted of felonies. Think about it. We're talking about a $12 DNA test to see if the biological material from a crime, um, that has been preserved is actually the defendant's, right? She blocked access to that. I mean, the list-

    7. JRJoe Rogan53:17

       How do you block access to something like that? That seems like that should be a right.

    8. JDJosh Dubin53:20

       Yeah, it seems like it should be a right, but in a lot of states, there's legislation that says you cannot get access to it, and the- the rationale behind it is that it'll open up a floodgate of criminal defendants asking for the biological evidence in their case to be tested. I mean, can you even-

    9. JRJoe Rogan53:35

       Oh, that's the last thing we would want-

    10. JDJosh Dubin53:37

        Yeah. (laughs)

    11. JRJoe Rogan53:37

        ... is more innocent people being freed.

    12. JDJosh Dubin53:38

        We-

    13. JRJoe Rogan53:38

        So what was her ru- justification for this?

    14. JDJosh Dubin53:42

        You know, when she's asked for her justification of it, it's always been on a debate stage and she'll always default to, "I- I stand by my record as a prosecutor." And, um, she's never had a- uh, an explanation that I have ever seen. I don't know if Jason... There was... Jason and I were talking about this before we came on today because there was a New York Times piece by, um... Her name's escaping me.

    15. JFJason Flom54:06

        Lara Bazelon.

    16. JDJosh Dubin54:06

        Lara Bazelon, which if- if any of your listeners wanna listen to her, she goes into, you know, exhaustive detail about specific cases and things that Kamala Harris did. And you know the sad part about it... Yeah, that's it right there.

    17. JRJoe Rogan54:22

        New York Times, "Kamala Harris was not a progressive prosecutor."

    18. JDJosh Dubin54:26

        Yeah, "She was often on the wrong side of history." Um, you know-

    19. JRJoe Rogan54:30

        What- what is that? The highlight? The marijuana one that you just highlighted there?

    20. JDJosh Dubin54:32

        Oh, she- she- she stood by criminalizing marijuana in this state.

    21. JFJason Flom54:37

        Now, listen, what we can hope is that she's certainly been saying all the right things lately. I don't know what to believe, to be honest. I-

    22. JRJoe Rogan54:45

        Well, it's 'cause she wants to be the president.

    23. JFJason Flom54:46

        Well, okay, fair enough. I mean, I like to believe that people can evolve and I hope that her viewpoints have evolved. Now she supports, um, legalization, uh, I believe. But the fact is, it's- it's impossible to ignore... And I hope t- I hope, uh, Biden picks someone else personally, but, you know, we'll see. Um, and, you know-

    24. JRJoe Rogan55:05

        Biden ain't picking anything.

    25. JFJason Flom55:07

        I will, uh-

    26. JRJoe Rogan55:07

        They're doing it for him at this point.

    27. JFJason Flom55:09

        Well, I'll support him no matter what, uh, who he picks. Uh, if he picks her, so be it, because I believe we're in an existential crisis and we need to, uh, do you see the result-

    28. JDJosh Dubin55:17

        I mean, look. Look at this. This is crazy. She could've demanded DNA testing in Cooper's case. Now, Kevin Cooper is on death row, all right? You think about this.... could, if they had denied DNA testing in Clemente's case, he would have been either dead or still on death row. What are we talking about here? We're talking about a test she has constantly in case after case, issue after issue. And look, the, the people that she hurts the most are people of color in this country, because they make up, you know, the sp-

    29. JRJoe Rogan55:49

        The disproportionate number of people in jail.

    30. JDJosh Dubin55:50

        Yeah, disproportionate. And so it's, it's, it's kind of-
11. 1:05:18 – 1:14:29

    After exoneration: compensation gaps, civil suits, and lifelong trauma

    1. JFJason Flom1:05:18

       But he's still there, just like so many of these other people are. And I do want to talk about the compensation 'cause you raised that earlier, Joe. 'Cause I think that's an important thing for us to talk about because in the 27 years I've been doing this work, um, people ask me the question that you asked. Both questions that you asked, actually. Most c- uh, frequently people who are new to it, I'm talking to them on the golf course or I'm talking to them in, anywhere we are and 'cause I'm always, you know, out there talking about this stuff. And they'll say to me, uh, "Did, did, did the, the people who framed him, did they, did they have to face any consequences?" Right? And the answer is almost always no. Uh, and then they say, "Well, tell me that, uh, that, that, that they got compensated." Like people are like breathless, right?

    2. JRJoe Rogan1:05:57

       Right.

    3. JFJason Flom1:05:57

       Like I, I wanna know. Like this is so horrible they react the way you did. They st- cry, uh, anything, right? Um, and the answer is usually not. I mean, this, uh, Restivo case and Jon is such a beautiful, beautiful guy. He also was on my podcast. What a guy, man. (laughs) He's incredible. And he's helping other exonerees too. And as, as so many others are. Um, but and, and I wanna shout him out for that. But in the majority of cases there's no compensation. We at the Innocence Project, and that's innocenceproject.org for people who want to learn more, we are working state by state. Rebecca Brown runs our policy department, she's incredible. And she's going state by state with exonerees to pass compensation statutes because 18 states have no compensation statute whatsoever for exonerees. And some of them it's capped at 25,000 or like in Illinois it's 200,000 no matter how long you're in for.

    4. JRJoe Rogan1:06:48

       Can I ask you this? Uh, the cop that planted the evidence, is there consequences for him?

    5. JDJosh Dubin1:06:53

       None.

    6. JRJoe Rogan1:06:53

       What?

    7. JDJosh Dubin1:06:54

       None.

    8. JRJoe Rogan1:06:54

       What?

    9. JDJosh Dubin1:06:54

       You know, the ju- the judgment against him was covered by Nassau County. Um, (clears throat) he died a horrible death of cancer and, you know, Jon always says to me, "Look, I would never wish ill on anyone but it seems like karma, um, played a part in that." Um, you know, and it's interesting. You asked the question earlier that I'm not so sure I know the answer to which is, you know, when they're in there interrogating someone, are they beating a confession out of them 'cause they think they did it or not? And I don't know the answer. I think that there are some cops that... You know, Barry Scheck taught me this once. He said, "Don't always demonize the cop." Because sometimes I think that they feel like they have a hu- that their hunch is better than the lack of evidence. In other words, they feel like 'cause they feel it, they think that the person did it, that they'll let the, the means justify the, uh, the ends justify the means. Um, so I don't know that they go in trying to frame someone but there's always a point at which, like the story with my wife and the keys-

    10. JRJoe Rogan1:08:03

        Yeah.

    11. JDJosh Dubin1:08:03

        ... where you have a choice to b- you have to s- open your eyes and say, you know, "Are-...am I going to realize that there's no evidence here and get off this notion that this person committed the crime?

    12. JRJoe Rogan1:08:16

        The problem is with your wife and the keys, there's no consequences.

    13. JDJosh Dubin1:08:19

        Right. Right.

    14. JRJoe Rogan1:08:19

        You just... You're a man, you say, "I fucked up, I'm sorry."

    15. JDJosh Dubin1:08:22

        Right.

    16. JRJoe Rogan1:08:22

        But if you're a prosecutor and you realize that this person is innocent, and you back off and you lose the case, there's consequences for your career. You look like a fool. You look like you can't be trusted. Someone's going to point that out when there's another case.

    17. JDJosh Dubin1:08:36

        Right. I mean, listen, it, it extends the compensation issue. Watch what happened to Clemente. There's a wrongful incarceration, um, compensation statute in Florida, all right? And what it says is that, um, from the time you are no longer incarcerated, um, you have 90 days to file. Clemente's case got overturned in, I think, 2013. The very day the Florida Supreme Court overturned his conviction, the state of Florida said, "We're going to retry you." They announced it the same day. We filed for wrongful compensation... wrongful incarceration compensation, and it got denied. And what the state said was on the day that they announced they were going to retry him, he was no longer incarcerated. He was... Went from being incarcerated to being in custody. And I said, "Wow, that's, that's pretty fucking rich." Um, so in other words, what he should have thought was, "I'm gonna face the death penalty again for a crime I didn't commit." No one came to his prison cell and said, "By the way, you're no longer incarcerated, you're just in custody." So they write these statutes in a way that they have a trap door to jump f- jump out of and deny... His compensation was denied. So I filed a federal civil rights complaint on his behalf. We have a civil case going. But it's very rare that they get compensated, and I think that that's where, you know, where I have been, um, inspired so much by Jason. Because here's a guy that uses... And it's made me poorer, but I'm happy to be poorer as a result, because where he's made it his mission in life... I mean, he's like a modern-day Robin Hood, he really is. He's made it his mission in life to... I'm sorry if I make you blush, but he's like a hero of mine because he has made it his, his life's calling that, you know, the people in need and that need it most are gonna get it as long as he can give it. And he's sort of brought me along on that ride, so we personally financially support as many exonerees as we can, because we feel like it's, it's the very least we can do to try to help, whether it's buying someone a car, um, helping them with their rent, with school tuition, whatever it is, um, because it's the very least we can do. And most of them are denied compensation, and until they can get back on their feet in some way... I mean, you think about it, they come out, their life is ruined, you don't ever real- I don't care what anybody says, you never really recover from this. I mean, look, Clemente would send my daughter from his prison cell exquisite, um, drawings. He taught himself to draw on death row, and he told me, "The only reason I learned to draw is because I would have... I literally would have lost my mind. I was losing my mind, and I had to figure out something to channel my anxiety." So when he got out, Jason has been having these art shows for death row, um, for, um, death row inmates because so many of them b- become good artists 'cause they have so much time on their hands. And I said, "Clemente, do you want... Maybe we could do some art and raise some money for you," and he started to weep. I said, "What's wrong?" He said, "Josh, I tried to draw and I had a panic attack that brought me back into the cell."

    18. JFJason Flom1:12:10

        True. Yeah, and, and let me just, uh, talk about Josh for a second too, because-

    19. JDJosh Dubin1:12:16

        While, while-

    20. JFJason Flom1:12:17

        ... uh, first of all-

    21. JDJosh Dubin1:12:17

        ... while (laughs) while we're blowing each other-

    22. JFJason Flom1:12:19

        Exactly. (laughs)

    23. JDJosh Dubin1:12:20

        ... for fucking air. (laughs)

    24. JFJason Flom1:12:21

        It's funny, it's funny though, 'cause I was... we were introduced by Nina Morrison, who is the, um, just super badass senior litigation counsel at the Innocence Project.

    25. JDJosh Dubin1:12:30

        (laughs)

    26. JFJason Flom1:12:30

        And when she put us together, which was several years ago, she, sh- I said to Josh, "What do you... What do you do?" He goes, "I'm a jury selection expert." He goes, "I can look in your eyes and see your soul." I was like, "Oh, shit." (laughs) But anyway, but he's more than that. And the fact is that this case... My son, Michael, Michael Flom, he, he called us earlier when we were talking, he, um, he brought me to... uh, uh, my attention to a case of a guy named Albert Wilson, who we believe is wrongfully convicted in Kansas.

    27. JDJosh Dubin1:12:54

        Oh, there you go. Mm-hmm.

    28. JFJason Flom1:12:55

        Um, Josh is wearing the shirt, "Free Albert Wilson." And I brought it to Josh's attention. He looked at it and he said, "You know what? I'm, I'm gonna take this case pro bono." We flew out there, we visited Albert.

    29. JDJosh Dubin1:13:05

        (laughs)

    30. JFJason Flom1:13:05

        It was funny because his lawyer forgot to tell him that... His, his local lawyer forgot to tell him we were coming. It felt like the scene in Animal House where the kid's reading, uh, uh, Playboy and then the bunny flies in the window.
12. 1:14:29 – 1:33:07

    What “Junk Science” means: bite marks, blood spatter, arson, and why courts still admit it

    1. JRJoe Rogan1:14:29

       Well, this is what we started talking about in the beginning and I made you stop and redirect it.

Episode duration: 2:54:26