The Joe Rogan ExperienceJoe Rogan Experience #1858 - Josh Dubin & Derrick Hamilton
EVERY SPOKEN WORD
150 min read · 30,101 words- 0:02 – 1:37
Meet Derrick Hamilton: wrongful conviction survivor turned powerhouse jailhouse lawyer
- JDJosh Dubin
(drumming) Joe Rogan podcast, check it out.
- DHDerrick Hamilton
The Joe Rogan Experience.
- JDJosh Dubin
Train by day, Joe Rogan podcast by night. All day. (instrumental music) All right, we're rolling. Joshua, my brother. What's- what's up, man? Good to see you, my friend. It's great to see you, always. Please introduce your friend. Man, it's hard to introduce the un-introducible. So, this is Derrick Hamilton, who has been (squeak) regarded by The New Yorker as the most prolific jail house lawyer that ever lived. He is, um, y- single-handedly responsible for freeing probably over 100 people, including himself. Wow. He spent, um, three decades in jail for murders that he didn't commit. He was framed by one of the most horrific corrupt cops in the city of New York's history, someone by the name of Scarcella. Um, but more than that, he's become known as the- one of the- the biggest and most effective criminal justice reform advocates in the country. And, uh, we'll tell you- get into it a little bit more later, but Derrick is- is not a miracle, he's a force of fucking nature. And I'll- I'll tell you a little bit about how we met and how we got involved together. So,
- 1:37 – 7:41
How Josh and Derrick connected: Roc Nation, Jay-Z’s foundation, and mentoring innocence work
- JDJosh Dubin
probably about nine years ago, Jay-Z wanted to get into boxing, and Roc Nation started a- a promotional company to promote boxers, and Andre Ward was one of them. So, we were on the opposite sides of the negotiating table, um, and it might be less or more than nine years ago. It was right on the heels of the Eric Garner, um, murder when he was, you know, s- put in a chokehold on Staten Island. And Jay-Z was coming to sign the contract, and I was there with J Prince, and we started talking about like what the fuck is wrong with this country, and figured out that we had like a common bond in that regard. So, fast-forward to a few years later, we, um, I find out through working with Roc Nation on just criminal justice reform initiatives that Jay-Z has this foundation that flies under the radar that is just remarkable. It's called the Shawn Carter Foundation. He and his mother started it, and they take inner city youth, uh, mostly from Brooklyn, c- really the five boroughs, and, um, help give them an opportunity to go to college, but they start when they're in high school. They take them on a bus tour, they help them with the application process, and they literally change the trajectory of these people's lives. So, I had this idea that I would have five of their scholars, we would do a scholarship program, come work on social justice cases with me. And Jay-Z's mom loved it, he loved it, Roc Nation, there's someone named Danya Diaz who runs their philanthropy arm and she's on the board of the Shawn Carter Foundation. We made it a reality, it took a couple of years. So, this summer, I had five college students that were coming to work with me on innocence cases. And I said, "You know, I need somebody that can really connect with these people, um, because I have sympathy for the way they grew up, for the conditions that they were born into, for the opportunities that they didn't have, but I can't empathize because I'm white. It's just as simple as that." So, I thought of Derrick, and I had met Derrick about five years ago, after he had been out for only six years, and Derrick was the first person on my mind that could mentor these students. And I asked him if he would join me in helping mentor them through this seven-week program working with me on a case. And over the past seven weeks, we're this close to freeing this man named Bruce Bryant, who they worked on together. Uh, they worked on his case together. And to watch Derrick and to know his story, I- I knew right away that he'd be able to connect with them, but I did not know his power. So, when he picks up the phone and calls the District Attorney of Queens, they take his call right away. He calls the head of a conviction integrity unit that's involved in re-reviewing cases, he's got such deep respect, and people in high places have such admiration for him because of what he was able to overcome in not only helping himself, but helping free others. He had a settlement with the city, uh, and the state, and instead of taking that settlement and resting on his laurels and doing whatever, which would have been understandable, he's dedicated his life to helping get people out of jail. And not only that, to helping reform the criminal justice system, but these are words like "reform the criminal justice system" we kick around. This man is a- he is a- a human tornado of- o- of action that instead of leaving destruction in its wake, leaves hope, and instead of de- you know, d- devastation, leaves opportunity. I mean, so maybe tornado was the wrong analogy, but I have just never witnessed anything like it. So, I'm on the- the verge of starting this new criminal justice reform center, which we're not at liberty to announce...Um, that is being funded by, um, someone that I've talked about quite a bit on this show. And they were asking me to find a deputy director, you know, a lawyer, and I said... I looked at resumes, I interviewed people and I said, "I found him." I found my lawyer. He may not have a law degree, but he knows more about criminal procedure, he's more respected, he's the best strategic thinker I've ever encountered, and he knows human beings better than anyone. And Derrick's gonna be my... I'm the executive director, Derrick is going to be my deputy director and, I mean, I'll let him tell his story. But when you hear what he's been through, and what he's overcome and what he has done since, um, he's, he's not a force of na- there's words aren't adequate to describe who this man is and what he's overcome and what he's been through. I was trying to suck an ounce of his mental, um, energy on the- the ride over here from Houston, j- just trying to understand how he summons the strength, 'cause I'm trying to use it and apply it in my own life. So it's just, uh, it- it... I'm not gonna cry yet-
- JRJoe Rogan
(laughs)
- JDJosh Dubin
... I usually wait till hour two, but it just so-
- JRJoe Rogan
(laughs)
- JDJosh Dubin
... it's ama- it's just amazing to me the way the universe aligned for us to come together and for him to be next to me t- today and for your listeners and you to hear his story is just, uh, an honor.
- JRJoe Rogan
Well, it's an honor to meet you, Derrick, especially after such high praise. So, t- tell me your story, like how did, uh, what happened to you?
- 7:41 – 10:42
Derrick’s first murder case at 17: coerced testimony, lost confrontation rights, and a reversed conviction
- DHDerrick Hamilton
Well, thanks for having me and Josh, thanks for the accolades. Um, you know, I was a 17-year-old kid running around Brooklyn at a time when Brooklyn was, uh, terrible, and I was a product of my environment. I was doing little robberies and, you know, little stump stuff that adolescents do, and I got on the radar of the police department. Uh, they used to search me all the time, pat me down, you know, throw me up on the car, regular stuff that happened in that community. Um, one day, uh, a man was killed about 5:00 AM by some older guys in the neighborhood. Uh, the police had an identification of they car, they called the guy in and he somehow told them he rented me the car, and that I was the one that brought the car back and told him that I had committed the crime and that I had shot the guy by accident. Um, and that was my first real experience with the criminal justice system 'cause it was a murder. Um, I'm like, "Murder?" You know, I did a couple of robberies. I, you know, I did some petty stuff, but murder, that's not me. So, um, you know, what was amazing to me is, number one, um, nobody would've gave me they car at 17 years old, right? Any cop would've known that this guy wouldn't have gave me his car. Um, but they arrested me and they charged me with murder, um, and I was convicted, uh, by a jury because they admitted grand jury testimony of a witness who came before the court and said, "I never seen this guy at all." The police made me lie in the grand jury and say that I seen this guy. I'm not testifying. I refuse to testify. I'm not gonna get up there and perjure myself. Uh, the judge told the prosecutor that day that they was dismissing the case, that if they don't get another witness, this case is going out of here. Um, judge's name was Lombardo back then, this was 1983. Um, I went back to Rikers Island that day, we came back the next day and the judge said that he thought about this all night, and he felt that the only person would benefit from this witness not testifying would be me. Therefore, he was gonna allow the prosecutor to admit their grand jury testimony as evidence-in-chief at my trial, and I would forfeit my right to confront the witness and let the jury hear the truth, that she never saw the crime. So that was my first real experience. I was a young knucklehead. The lawyer that I had at the time, Candace Kirtz said, "Look, young man, get your head out your ass and you better read these cases and you better see what's going on, like they're railroading you." She took the stand and told the judge what the witness told her, um, and- and- and I was convicted. I was sentenced to 25 years to life, um, and it was at that moment that I knew that I had to study law, that I had to really dig deep in- in the books and I did it. New York State, uh, thank God, had a law library. They had all the books in the world, only thing you had to do was apply yourself. And I spent the next five and six years working on my case. Uh, in 1987, the appellate division in that case found that the judge had no evidence whatsoever that me or anybody acting on my behalf had threatened this witness, did anything improper, and that the judge was right, there was no evidence that- that can prove that. So they reversed the conviction, uh, and I was
- 10:42 – 13:44
Scarcella’s retaliation: second murder case, pressured witness, and decades of post-conviction battles
- DHDerrick Hamilton
able to get out of prison, uh, after six and a half years. Unbeknownst to me, there was a rogue cop by the name of Louis Scarcella who felt that I didn't do enough time for this conviction. He didn't like the appellate division decision. Eight months later, I was in New Haven, Connecticut at a unisex salon that I had owned at the time, uh, he came in that store and arrested me, told me I was going back to Brooklyn for a murder. Um, and I'm like, "A murder?" Like, this can't be true, like, again? Like, how- how many times this happen? Uh, went to New York, um, I was processed, uh, about a year later I went to trial, I was convicted. They brought a witness in by the name of Jewel Smith, who said that she was present at the murder when her boyfriend was killed, that I was a gun man, I had a gun in my hand and I shot this individual several times with this gun. Um, but her original statement to the police said she wasn't there, that she never saw this crime, she was around the corner at a store, when she came back her boyfriend was dead. The jury never heard that statement. But in any event, um, the ballistics evidence proved that this guy was shot with two different guns, that he wasn't shot in the building where she said he was shot at, but he was shot outside in the street. Uh, despite this evidence, I was convicted. Uh, after I was convicted was when I learned that she had first told the cops at the crime scene she never saw the crime, but she had told it to a different detective. So I made a pro se motion to set aside the verdict-And in the motion, I argued that this detective that never came in that she gave the statement, uh, to, could prove my innocence. And the judge ordered a hearing for a year. He said, "I can't give this guy a day in jail, let alone, uh, 15 years." Which was the minimum. "I want this witness to come back." The prosecutor said, "I'm not calling her." And the judge said, "If you don't call her back, this case is going to a new trial." Right? They called her back and she admitted that she never saw the crime, that the detective, Louis Costello, told her what happened and told her that if she didn't get up here and say that I committed the crime, she was going to jail. She was on parole, her boyfriend was a felon that just got out, she had kids. They said, "You're going to jail." She said, "What was I supposed to do? Here's the system telling me this, that if I don't come in and say this, I'm going to jail. And I came in and said it." Uh, the judge ruled a year later that, again, he felt that I was ... He said there was a common thread of string, that I manipulated this evidence. Again, I called the detective. The detective came in and said exactly what the witness said, that she told him she didn't see the crime, that she was beat up and took to the priest and then told she was going to jail. Now, had that jury heard that, there'd have been different results. At the, at the trial they told the jury that her first statement was the most important statement in this case, and that when the police arrived on the scene, she didn't hesitate. She said Derrick Hamilton, somebody I know my entire life, committed the crime. Which wasn't true. In fact, she said the truth, which she didn't see the crime, that she was somewhere else. Um, I was sentenced to 25 years to life. Uh, I filed numerous post-conviction motions after post-conviction motions. Every time a judge gave me a hearing, every time he said he can throw
- 13:44 – 19:43
Parole, protest, and the ‘Actual Innocence’ breakthrough: changing NY law and exposing Scarcella
- DHDerrick Hamilton
the case out, every time he said he was troubled by this conviction, uh, the prosecutor would come in and tell him I'm a bad guy, that this is not somebody you want to release, that ... You know, they, they put imagined harms, they'd make a judge thinking I was the most terrible person in the world. And he would deny the motion every single time. Um, you know, I filed numerous motions, numerous post-convictions. I did everything you could imagine, uh, to prove my innocence, but to no avail. Uh, I began going to parole board around 2009. Uh, it was a very traumatic experience for me because at that time, the parole board wanted me to admit guilt and I wasn't gonna do that. I'm not gonna come in and say I killed somebody I didn't kill. I'm not doing that. I don't care what you say. And I had to challenge them and fight them for two years. Uh, and then my family went out in protest, and we got a Daily News article put out that said that I will be free if the court would just basically give me justice. If they just give this guy a fair shot, he'll be home. So it changed the, the mentality of the parole board. They looked at all of my evidence and they said, "You know, based on the evidence that you presented here, um, we believe in your innocence. Like, this evidence speaks for itself. Even the judge said you was innocent. I don't know what you're doing here all these years." And they released me. And at that point, I began a crusade, 'cause when I was in prison there were several guys, we, we built something called an Axial Innocence Team. Guys who I was working with at the law library, so I would read guy's case and, and check them out. So what I had to do was get families together, get people to come together and bring their families and say, "Look, let's send these people to City Hall, let them know there's a lot of us in here. It's not just me. It's white, there's black, there's a bunch of us in here that got the same issue." That they're procedurally barring us. They're not looking at our cases, just kicking it into the garbage. "We don't want to hear it. Get out of here." Right? Because they can. They had the power. So when we started bringing attention to these cases, it changed the whole dynamic. So when I got out, I joined that group, Family and Friends of the Wrongfully Convictions. Uh, we had a PR guy by the name of Lonnie Sory who was helping us keep it together. And we just began blasting the prosecutors. We began protesting outside their offices and getting rid of them. Uh, the first one we was able to get rid of was Charles Hines in Brooklyn, the prosecutor who sent me to prison. We was able to remove him and put a progressive prosecutor in that agreed that he would look at these convictions if he was elected. So he got in, and in two years he exonerated 22 people and he found that there was a systemic racist problem in Brooklyn that was convicting the wrong people. Uh, fortunately for me, uh, the New York Times reporter called me in, I believe it was 2012, and they said, "Why are people afraid of the police?" And I just thought, "Are you kidding me? Why are they afraid of the police?" And I told them names of guys that I knew that was in prison that this cop set up. And a lawyer had contacted me and said that he was working on a case which this cop framed another guy by the name of David Ranta. And he said, "In two weeks, there's gonna be an article in New York Times that exposed this cop." And I told the New York Times reporter that. And I said, "Look, in two weeks, if it comes out, you come back to me and I'll take you to these guys." And she came back, Frances Roebuck, she came back and I took her to these guys. She got the prosecutor to agree to look at 50 of these cops' cases. 50 of them. And, um, you know, 20 was exonerated so far of those guys. And, um, I was exonerated in 2015. In 2014, for the first time in, uh, New York history, the Appellate Division Second Department ruled in my case that a freestanding actual innocence claim can be reco- recognized under post-conviction motion. And they said to anybody that's innocent, the courts could no longer procedurally bar you. They got to reach it, the merits of your contentions. They just can't say, "Well, you should have raised this before," or, "Your lawyer failed to do this before," or, "You should have did..." You gotta reach the merits of it. Get to the bottom line. Is this guy innocent or not? And when they gave me that opinion, it kind of, like, in itself exonerated me, 'cause the prosecutor now had to hear my witnesses. I had alibis. I had police officers who said, "Look, this guy was in New Haven and Connecticut, not Brooklyn when this murder happened. We know 'cause we seen him there." He was at a party with them. I had hotel receipts. I had many witnesses that could verify where I was at on the day Natanya Cast was murdered. The courts were just throwing that evidence in the garbage. We, in fact, proved who committed the crime. The real murderer was present when the cops arrived. He was on parole for manslaughter. They took his name down, but never even investigated who he was. So we had a lot of evidence. We had, uh, a witness who was there who identified who was there, identified why the guy was shot. There was a 911 call that said three male blacks fleeing in a red car. He admitted they was in a red car. So there was just overwhelming evidence of my innocence, but courts was just throwing it in the garbage because of the prosecutor lied to them and said he's a bad guy.So my experiences taught me that, you know, there's a lot of innocent people. I was in prison, man. Look, one thing about prison and I tell people, they say, "Hey, everybody says they're innocent." That's not true. Right? They may tell a lawyer that, but they're not going to tell the guy in the neighborhood with them that, "I know you're guilty. You know, I was with you. You... I know what you did. You told me." Everybody tells... We from the same neighborhoods. So it's a small minority of people that's in the law library every single day. If you go to the yard, guys working out in the weight pal, right? They playing basketball. But the innocent guys is in that law library every single day trying to find a way out. And that was me, um, every single day. And I studied every book in there. I taught law classes. Um, and I became very good at it. I mean, I was surprised at how... I mean, I didn't go to college, right? When the lawyer gave me the first two cases and I read them, I was surprised how well I knew the cases. I was surprised how I comprehended them. And it was because of that, um, that I kept going. And I found a civilian who liked me. Uh, he was working in the local library and the first test I got was a 44. And he said, "Look, man, I'm not gonna waste my time." I came back in '97 with a 44.
- JDJosh Dubin
You got to explain what that is, what's a 44?
- JRJoe Rogan
What's a 44?
- DHDerrick Hamilton
Uh, a 44 was my grade on the test.
- JDJosh Dubin
(clears throat)
- DHDerrick Hamilton
Um, I took a test. The first test he gave me was on the Constitution of the United States. I had to learn the 4th, 5th, 6th, 8th, and 14th Amendment. Um, and I, I failed. I was playing. And he said, "Look, you're not gonna waste my time. You're smarter than that." He challenged me. Next time I came back, I got a 97. So from that point on, I just start studying. I start, start, you know, gravitating to the older guys that knew more than me. Uh, because I was young, they was willing to teach me. And I was like a young sponge, and I just... I just loved what I did. I became passionate about it. And that's why I'm here now.
- 19:43 – 26:31
Why corrupt cops face little consequence: statutes of limitations, pensions, and systemic protection
- JRJoe Rogan
Derrick, what kind of repercussions are there for cops that do things like this?
- DHDerrick Hamilton
None. I mean, in our case, uh, the statute of limitations had ran out on this cop. And let me just tell you about this cop. He didn't just do it in the police department. He left the police department, went into the DOE, the Department of Education, and he did it there. He framed a guy in, in the DOE. They later found out the guy did nothing wrong. They had to reinstate him. This is just his nature and his character. Um, he was just-
- JRJoe Rogan
And he just gets away with it?
- DHDerrick Hamilton
He gets away. He's still-
- JRJoe Rogan
What's his name?
- DHDerrick Hamilton
Louis Scarcella.
- JRJoe Rogan
And he's out there still?
- DHDerrick Hamilton
He's out there. He's still getting a pension. The city is still paying this guy. Uh, we still got cases today that we are fighting in court for him. James Jenkins, Nelson Cruz. Uh, they're still active cases that we're litigating.
- JRJoe Rogan
How many people do you think that guy wrongfully put in prison?
- DHDerrick Hamilton
You know, I'll tell you something that I didn't even tell you, Josh, about this one, and it's gonna... This guy worked on over 200 cases. My father was killed in 1988. He was the detective on that case. Um, and I'll tell you something about that. Um, he said that one of the guys snatched the confession out of his hand and ate it. I didn't believe that. I said, "As much as I want people who may be responsible for my father's death, I can't trust this guy. I can't take nothing he say to be truth." Right? Just recently, that case was overturned, Samuel Edmonson case, because of his sloppy police work. So I... He says 200 cases he worked on. I would like to believe at least half of those guys, uh, are innocent.
- JDJosh Dubin
Well, a lot of them have been exonerated. How many Scarcella exonerations have there been?
- DHDerrick Hamilton
20 to date. 20 to date.
- JRJoe Rogan
(exhales) How does a guy not just get locked up immediately for that?
- DHDerrick Hamilton
And when he testifies-
- JRJoe Rogan
20.
- DHDerrick Hamilton
And when he testifies, he has two lawyers with him now. Right? I've never seen a witness come to court and have two lawyers standing with him. We object to it all the time. But, I mean, this is how much of a criminal he is. He had two lawyers standing with him all the time, um, to try to protect his rights. And he don't remember anything now. Like, he don't remember, you know, of course he don't recall nothing. Uh, you got to bring the police reports to him and say, "Is that your signature? Did you do this?" But he don't remember anything, of course. Selectively, he don't remember anything.
- JDJosh Dubin
It just shows you, you know, he, he's been written about a lot. Scarcella, there have been scores of articles out there about him, because he was exposed. And this is not an indictment of all police that, that are amazing cops. Th- there are... But a couple of bad eggs that let the power get to their head, a couple of, of rogue cops, they don't just destroy a life. They destroy... You know, it's a ripple. One, you know, if, if you... Like, Derrick and I were at Sing Sing, um, visiting one of our clients, this guy Bruce Bryant. And, you know, it's the brothers, the sisters, the family, and then you start to multiply that out and the ripple effect of how it affects these families. There's been 20 exonerations. Th- there's been 22, actually, but there's been 20, 22 exonerations connected to this one cop. It only takes, you know, some rogue cops and people to look the other way and... I mean, look at this beautiful man, how articulate and bright and, and he's prolific in what he does. And, and, and he snatched his life from him. You know, we were talking last night about how this is like a second chance to live for him. Some of the best years of his life, he'll never get back. You're never the same, but he's easily the exception to the rule because he's out there and a force of nature and working toward helping to, to solve this problem. But, you know, Scarcella, you know, we were just asked the same question on the way here because... Show you how small the world can get. I haven't talked to Paulie Malignaggi in years. Uh, and he said to me something interesting. Called me the other day to check up, "How you doing?" Uh, you know, "What's been going on?" He said, "You know, I've been following the work you're doing." And for those that don't know, Paulie was a, a, a world champion fighter that l- liked to talk a lot that I managed years ago but go... He's got... He's a good soul. He's got a good heart. Um, and he said, "You know, there's this case you got to look into for me. A guy named Louis Fama, F-A-M-A."... he's-
- DHDerrick Hamilton
Joey, Joey, Joey-
- JDJosh Dubin
... Joey Fama.
- DHDerrick Hamilton
... Farmer.
- JDJosh Dubin
Joey Fama. Um, and he's like, "This guy was railroaded by this cop, Scarcella." And he's like, "Will you look into this case for me? I, I, I write to him every month." So I asked Derek on the drive over here, "You hear about this, this guy Joey Fama?" He goes, "Yeah, I'm working on his case right now." We just filed post-conviction motions on his behalf. So we called Pauly in the car and Pauly was like, "Oh my God, there's a reason why I called you." And he said, you know, he asked the same question you did, "How in the fuck is this guy still out there?" Because whatever crimes he committed, the statute of limitations have run on.
- DHDerrick Hamilton
Yes.
- JDJosh Dubin
Number one. Number two, nobody's got the balls to prosecute him because that would be an admission, wouldn't it?
- DHDerrick Hamilton
Ab- absolutely. And let me tell you how crazy it was, right? Again, the prosecutor was down with him, they was all a part of the same clique, right? And he used a witness by the name of Theresa Gomez. In six murders, for six months in a row, each month she gave him a murder. In one murder, she said she looked through the peephole and saw the guy shoot. There was no peephole on the door. Um, six... Look, just think about it, six murders. Who see one murder, but six in your lifetime, in six months in a row? To today, he swears she was the most credible witness ever, that she was the best witness in the world. Um, and, and they used her. The prosecutor Ross at that time is now a judge in Brooklyn. Um, and on, on a cigar, uh, website he said the first time he smoked a cigar was when that lying crackhead whore got a conviction. He was talking about Theresa Gomez, they knew she was a liar, they knew that she would lie on people.
- JDJosh Dubin
(laughs)
- DHDerrick Hamilton
And that was in Robert Hill's case, he was exonerated. His brother, Alvina Jeanette, uh, is exonerated. And Daryl Austin... Three brothers she put in jail, uh, all three of them is exonerated. Daryl Austin dr- died in jail. There's no, you know, repercussions for that. He just lives his life, runs on happy. And he's still, to the day, despite 20 convictions being overturned, said he did nothing wrong. It's bigger than him, it was the system. He said, "I arrest, the prosecutors convict. You know, I give it to them, they decide what to do. It wasn't my decision." And it's just crazy. That's not how the system works, though.
- 26:31 – 47:28
Power, politics, and tribalism: why reforms stall and how officials exploit hot-button issues
- JRJoe Rogan
How is there no law that, first of all, eliminates the statute of limitations when someone puts someone in jail for the rest of their fucking life, and, and also treats something like that as organized crime? That's organized crime-
- JDJosh Dubin
Well, we're gonna-
- JRJoe Rogan
... by any definition, isn't it?
- JDJosh Dubin
Yeah, that's a great question. Here's the, here's the thing that people have to start to understand and get through their, get through their heads and believe it. We have to be careful about who we put in power. This is not a, "Are you a Democrat? Are you a Republican?"
- DHDerrick Hamilton
Right.
- JDJosh Dubin
"Are you this or..." We have to be careful, because power is a, is a, is worse than any drug. I'm now convinced of that.
- JRJoe Rogan
Yeah.
- JDJosh Dubin
Fame, power, any form of it. And when... if you don't start paying attention to the people that we are putting in positions of power, this... it is, it is human nature that this will keep happening. As m- the mammals that we are, we're hardwired to abuse power. And you ask a great question, which is how do we not suspend the statute of limitations? It takes people that are willing to do the right thing.
- DHDerrick Hamilton
That's right.
- JDJosh Dubin
You know, like I have been, I have been excoriated about, "Oh, you went on Rogan and said that, that Kamala Harris was this, but then you voted for her." No, I fucking didn't. I call it like I see it. Now, I'm not a Democrat, I'm not a Republican. We have to be careful about who we put into power. And once you start putting people in power that will do just the right thing, not the popular thing but the right thing, laws like that can get changed. They can get changed. And, and, you know, you, you have said it before, and you're right, we're too... U- until we can get out of this tribal mentality of either us, them, those-
- DHDerrick Hamilton
Right.
- JDJosh Dubin
... w- we're gonna keep on seeing this happen.
- JRJoe Rogan
That shit is built into our DNA. We have to understand that we evolved as tribal groups.
- JDJosh Dubin
Mm-hmm.
- JRJoe Rogan
And because of that, we had to fight off other tribal groups who wanted to steal our resources, who wanted to take our women. That's always been the case with human beings. And we have just moved that into Republicans versus Democrats.
- JDJosh Dubin
True.
- JRJoe Rogan
That's what we're doing.
- JDJosh Dubin
And it's ba-
- JRJoe Rogan
True.
- JDJosh Dubin
And, and, and it's dan-
- JRJoe Rogan
True.
- JDJosh Dubin
... it's dangerous. I call it like I see it. The reason I was critical of Kamala Harris is 'cause I called it like I saw it. And I'll tell you what, it was not a popular thing to do. Derek knows some of the fallout that I faced from "the left," quote, unquote. I don't-
- JRJoe Rogan
Because they wanted to protect her. But it's accurate.
- JDJosh Dubin
Yeah.
- JRJoe Rogan
The problem is everything you said was accurate. Everything you said is provable. Everything you said is a 100% stone cold, carved-in-steel fact.
- JDJosh Dubin
Yeah, but, uh, but it happens on both sides. Like, let me give you an example. Here's something that blows my mind, okay? And we just have to be willing to step out of this tribal mentality, all right? If you look at a guy like Ron DeSantis, all right? Everyone's gonna... has their back up already. Ron DeSantis, all right? What he did in Orlando was so fucking mind-blowing. Or Hill- w- was it in Orlando that he did this?
- JRJoe Rogan
Tampa.
- JDJosh Dubin
No, in Hillsborough Canning in, uh, uh, Hillsborough County in Tampa. He goes and removes this really terrific guy, right? Who, whether you like him or not, let's, let's not call him a terrific guy. He goes and removes a prosecutor, an elected official, on the hypothetical that if a state law passes that this guy won't enforce it. All right. Now-
- JRJoe Rogan
Hypothetical. This, is this from a statement?
- JDJosh Dubin
This is a hypothetical, because the guy signed a letter along with a bunch of other state and district attorneys saying, "If you pass an abortion law, uh-I don't think it's a good use of our resources to prosecute people that might be the victims of rape, you know, who were, um, doctors who were trying to help the victims of rape. I don't th-... I think it clogs up the system and they had their rationale for it. But there had never been a case brought before him yet. Now, why did Ron DeSantis do that, in my opinion? He did that because he knows abortion is a hot button issue, and if he goes down there and removes this guy, he becomes a hero for it. Here's the hypocrisy in that. This has nothing to do with politics. This has to do with the right thing. Flo-... Watch this. This, this should fucking freak everybody out.
- 47:28 – 1:19:27
Racial disparities in enforcement: marijuana data, poverty traps, and unequal defense resources
- JDJosh Dubin
about Brittney Griner, right? (smacks lips) And, you know, I think w- we all agree as human beings that she ... It's, it's insane. It's not ... The word doesn't give it justice. It's, it's horrific. It's, you know, every adjective that you can pull, it's a nightmare for her. Um, and you asked me a, a question that, um, I think you asked it ... You, you articulated it on the podcast and you and I were texting about it, which is that, you know, does ... Th- this happens here. And yes, she's getting attention because she's in Russia, it's a political thing, it's en vogue. And I want her to get out, of course, more than anyone, but there are way worse situations here in this country.
- JRJoe Rogan
Everyday.
- JDJosh Dubin
I, I sent you some of these cases.
- JRJoe Rogan
Yeah. They're insane.
- JDJosh Dubin
So I, I went down, I went down a, a bit of a rabbit hole and I said, you know, there's gotta be some, um ... (smacks lips) There has to be someone that has studied the disparity between the sentences that Black men and women get for marijuana possession-... or marijuana, um, you know, marijuana convictions versus White people. And Derek found a study that I have with me, and when I read it, I, you know, I kept on saying, "This can't... Is this... This, this is unbelievable." It was commissioned by the ACLU from 2010 to 2018, and they examined this from every angle. They took the, the crystal b- ball and they turned it around and then they turned it over and then they looked at the inside of it. They looked at it from every angle, okay? Does, did the decriminalization of marijuana reduce the number of arrests overall? Yes, slightly. Did it reduce the number, the ratio of arrests when you look at Black people that are arrested for marijuana possession as opposed to White people? And the resounding answer is no. If you are a Black person in this country and you are caught possessing marijuana, you are three and a half times more likely to, A, get arrested, and B, get a disproportionate sentence. And if anybody's interested in the report, it's called the ACLU, ACLU Research Report: A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform. It will blow your fucking mind. It is... It went, they went down to a level of granularity that you would expect from a rigorous research study. They said, "Okay, well, do White people possess weed more than Black people, or do Black people?" Because if you think that if Black folks, uh, possessed more marijuana they would get arrested at a higher rate, the answer is no. White people do. You know, and you cannot look at these statistics and not be in outrage and say, "Okay, we have a problem here in this country." This... Our criminal justice system is infected by racism. It doesn't just stay in one segment of society. They looked at the arrest rate, right? The Black-White ratio in Table 6 of this report. From 2010 to 2018, the arrests per 100,000 may go down, but Black people get arrested in this country for marijuana possession in the same scenario 3.6 times more than White people. They broke it down state by state. I brought it because I wanted to leave it with you and, you know, they went down to states with the highest Black arrest rates for marijuana possession, states with the largest increases in racial disparities. I mean, a lot of this shit is happening in the South. It's happening to Black people. They're being brutalized by our criminal justice system. And unless people are willing to wake up to that fact, I mean, we're in 2022-
Yes.
... where marijuana is legal in many states, decriminalized in many others. And, so getting back to DeSantis, I'm not beating up on him. If you really cared about removing a state attorney and you wanna, you know, do something right, you know, decriminalize it in the entire state. How many people... You know, well, imagine this. This is who this guy is, and I'm just calling it like I see him. I've met him. I've met with him. He is the jerk at work. You know, everybody has that person that is just an asshole at work and is always telling on people and causing a fucking problem and, and looking to be difficult. That's who this guy is. He, he has a bad temperament. He doesn't have patience. I, I mean, I was there meeting with him as a favor to one of, from one of his biggest donors. He had no patience with me. And why was I there? I was there because I wanted him to simply give me a clemency hearing. I wasn't asking for anything. I wasn't saying, "Please commute the sentence of this innocent man, James Daly, who I know is innocent." I was just there to say, "Just hold the hearing and let me show you," as Derek said, "the merits. Let me just show you the merits of the case." The only person that would meet with me on the clemency board and hear me out is a woman that's running for governor in Florida named Nikki Fried. She's the fucking Commissioner of Agriculture. She didn't need to meet with me. She met with me for three and a half hours, with her general counsel, with other members of her clemency team. I'm supporting her, because I'm, uh, you know, something that I'm interested in, she paid attention to. And she said, "There's a problem here. We have to hear people out." This is before she had intentions to run for governor, and now, you know, she's neck and neck with Charlie Crist in Florida. People want to make change happen, you know, take a look at her. She's an interesting alternative. She was a, she was a, a public defender. I think she then became a prosecutor. She gets it from all angles. She's the Commissioner of Agriculture and she's not a politician. The thing that bothers me is that when you look at racial disparities in marijuana possession arrests, you know, what's happening in the South in this country, Pickens County, Georgia, the arrest rate for Black people caught possessing marijuana, you're 97 times more likely to get arrested if you're Black possessing marijuana. The face that you just made is what happened in my fucking heart when I read it. You know, in, in Illinois people wonder, th- you know, like, it's like a popular thing for White people to say, is like, when they're in social circles where they don't think anyone's listening, "Fucking Black people are killing each other in Chicago," right? Well, you know, in, in Tazewell County, Illinois, you're 43 times more likely to be arrested if you're Black and caught with weed than if you're White.There's, I mean, we have a broken system and if people aren't willing to step up and recognize that, this report confirmed what I already thought and knew, but if people aren't willing to recognize and say, "Okay, well how do we go about fixing it?" You know, the legislatures pass laws that are made by people and are, and are conjured up by people. They get in a room and they sit there with a pen and paper and they come up with a law and then we try to get them passed. You're absolutely right, there should be no statue of limitations for a cop like Louis Scarcella who has fucking ruined the lives of a generation of people.
- DHDerrick Hamilton
And, and I would like to just add that, that those stats just don't apply to marijuana. If you go to the Almanac, those stats apply to all crimes around the board, that Black people were being arrested, uh, and in some in- instances when you look in the Almanac, white people were being arrested more but convicted less of the same crimes. So it's just, it's just systemic, it's systemic racism, um, as you said, it's tribal, right? People tend to go with their tribe more than others, right? And then if you're poor, that plays another role, whether you're white or Black, right? If you're poor you can't get the money to defend yourselves so you're d- you're relying on who? A public defender or somebody who a judge has to sign off on their, their money to get paid. Right? So you, you still stuck. I had a 18B lawyer, which is a county lawyer, one time come to me on a motion that I made pro se and say, "The judge told me that he's going to deny your motion no matter what we do." She was scared to death. He was signing her voucher. She was scared. What did I do? Went right in the court and said it, "Judge, this lawyer just told me that you're gonna deny the motion no matter what we do." And she says, "I never said that Judge." And I says, "Well, she's a liar and that's the reason why I don't want her on my case." I'm asking that she be removed, there's a conflict. But she was so afraid, she was so scared that this judge had already told her what the disposition, she didn't know what to do. And this happens every day and if you're poor, you don't have a chance.
- JRJoe Rogan
And there's also racial disparity that's clearly written in the law when it comes to the difference between the way they recognize crack cocaine versus regular cocaine. There's a far greater sentence for crack cocaine.
- DHDerrick Hamilton
Yes.
- JRJoe Rogan
But if you talk to a, an actual person who understands the effects of the drug-
- DHDerrick Hamilton
Yes.
- JRJoe Rogan
... like Dr. Carl Hart-
- DHDerrick Hamilton
Yes.
- JRJoe Rogan
... he will tell you it is exactly the same drug.
- DHDerrick Hamilton
Yes.
- JRJoe Rogan
It's the same drug, but the conviction, what you get if you get convicted for crack cocaine, like you would probably know this better than I-
- DHDerrick Hamilton
Yes.
- JRJoe Rogan
... it's far-
- DHDerrick Hamilton
Yes.
- JDJosh Dubin
... greater sentence, far more likely to be convicted, far greater sentence, and it directly impacts impoverished communities.
- DHDerrick Hamilton
Yes.
- JDJosh Dubin
And w- thank you Bill Clinton and Joe Biden-
- JRJoe Rogan
Yeah.
- JDJosh Dubin
... and, and a whole score of other Democrats that wait-
- JRJoe Rogan
The '94 Crime bill.
- JDJosh Dubin
Yeah, the '94 Crime Bill was a fucking disaster. So that's why it enrages me, well, it doesn't enrage me, let's say it frustrates me to know and-
- DHDerrick Hamilton
It enrages me, it enrages me.
- JDJosh Dubin
You know, because-
- DHDerrick Hamilton
You should be enraged. (laughs)
- 1:06:04 – 1:20:30
Anger, trauma, and purpose: redirecting rage into organizing and liberation work
- JDJosh Dubin
How did you get over the anger though? That's what I don't understand, like how you're not-
- DHDerrick Hamilton
I never said I got over the anger. What I did-
- JDJosh Dubin
(laughs)
- DHDerrick Hamilton
... was challenge the anger somewhere else.
- JDJosh Dubin
Fueled it.
- DHDerrick Hamilton
Yeah, yeah. I didn't, I didn't get over the anger. I mean, I do what I do. My passion is, is a direct, uh, line of that anger. Um, you know, one of the things we know, and I'm gonna say we, and I'm talking about as Black people, right? We believe that the system was designed the way that it is, that it didn't happen by happenstance, right? So when you know that, you work to change the system. I work to change the system so that my kids will get a better opportunity, their kids will get a better opportunity. And that we can together gel as human beings. If I don't do the work, what good is me criticizing it, right? If I be angry and upset and grab a gun and become some animal, that doesn't help the society, it doesn't help the criminal justice system. So again, I had to really, really think about it. Let me tell you, I'm the first person to tell you that I had fantasies-... of killing a cop. I had fallacies of killing a prosecutor. I went and spoke to mental health people and said, "Listen, I can't sleep at night. All I think about is killing these guys when I get out of here." Oh, and you know what, you know what they, they, the social worker told me in Attica Correctional Facility? "I looked at your record and this is what guys like you do." Right? And this is why till today, right, I got a, a trauma about speaking to mental health people, because this is somebody I went to say, "Look, I can't sleep at night." I had fantasies about killing Scarcella. You think I didn't? Fantasies, right? I had a whole list of people that I was gonna kill. But it was a program that I went to when I was in prison called Challenge The Chains, I went to the program solely for the purpose to see if they can change that in my mind, and they did.
- JRJoe Rogan
Hmm.
- DHDerrick Hamilton
And you know how they did it? They had me put the people that I love, my kids, up on the board. They said, "Put down the people that you love up there and think about how it would affect them. What would happen? You already did these many years." And I had a daughter that's, that's 30 years old now, and I was telling her for 21 years I was coming home.
- JRJoe Rogan
(exhales)
- DHDerrick Hamilton
Every year, I'm thinking, "I'm coming home." I'm filing these motions, they're great motions. It's impossible for the judge to deny it, right? And at some point she said, "You's a liar. You been telling me for 21 years you coming home."
- JRJoe Rogan
Hmm.
- DHDerrick Hamilton
"That you are a liar." How do you deal with that?
- JRJoe Rogan
Ooh.
- DHDerrick Hamilton
You're trapped.
- JRJoe Rogan
What was it, what was it like the day you got out?
- DHDerrick Hamilton
You know, it was the most rewarding experience ever. Um, it was, it was, you know-
- JRJoe Rogan
What's the first thing you did?
- DHDerrick Hamilton
You know, there was bells. I tell you, psychologically, you know, there was bells ringing. Uh, it was the church bells that used to ring in Auburn Corrections Facility. And I used to say, "Well, you know what? When the bells ring, I'm gonna pray. And hopefully there's a God out there who hear my prayer." Right? That was my spiritual analysis. And the first thing I did when I went out was found that church and went over there and said a prayer. My wife picked me up. We went down to see my kids in Albany on the way down to the city, had dinner with my son who I haven't had dinner with in 21 years.
- JRJoe Rogan
(exhales)
- DHDerrick Hamilton
Um, and, and my other son came to visit me. And I just sat there and had the first ... We went to, uh, uh, seafood joint, what's the name but I forget it, this popular one. We went there and, and had a seafood dinner. And, you know, I, I tell you as a video of me getting out, and I'm moving so fast I almost got hit by a fucking car (laughs) -
- JRJoe Rogan
(laughs)
- DHDerrick Hamilton
... coming across the street. But even that was, was a blessing to be able to almost get hit by a car, and just to spend time with my wife and my kids. I mean, it was the most rewarding experience ever. And, and, you know, from that moment, like I said, I knew what I wanted to do. Uh, I just went and had f- uh, look, just the fact that I can stop in Albany and, and rekindle with my son, uh, and just have a moment with my kids, man, that was the most rewarding experience ever for me. It was, it was everything.
- JRJoe Rogan
What's the bottleneck, Josh, in terms of resources to, to g- to elevate this, to get more people out, to get more funds to do? What can we do where we can amplify this, get more people involved?
- JDJosh Dubin
Yeah. Well, I think one big step is ... I always thank you, and I don't, I don't think that there's, there should be a limit to my gratitude. Being on, on this podcast is, is the best example, because I don't think we would've got the two exonerations in Kansas without the attention, and I think we need to keep the drumbeat going. So, I'm forever and, and continually grateful to you for giving me a platform. But I think that in addition to that, more people need to understand that they can help make the change happen. So, I ... Again, we can't announce the name, we have been sworn to secrecy, but Derek and I, um, are on the precipice of starting a very major legal justice center at a major law school together, where I'll be the executive director and he'll be the deputy director. And it was funded by someone who had this experience where they were wrongfully accused of a crime and had the resources to fight it, and has now funded it. Um, and we need ... You know, donations always help, because the more resources you have, the more attorneys you can hire. Um, but it needs the, the public awareness, and then it needs to, um, keep the drumbeat of pressure going, because we know that works. Derek mentioned the Daily News article that got the parole board's attention. Getting these stories out there work. There are guys that we have talked about, and we might as well do it because we're here, okay? And we're here to try to get the word out. There are stories of cases that are out there now, "You said this can't be true," and then I sent you the, the, uh, the Joe Shilling case, right? Where Joe Shilling is serving life in prison, right? After being convicted of having an ounce and a half of weed, and had his appeal denied. And you wrote to me, "Is this true?" And then I sent you the opinion. And, you know, Joe Shilling is like an example, this happened in Mississippi, this is what happens to, to Black men in the South. And Joe Shilling is, is, is an example of a case where if enough people write to the clemency board, write to the governor, somebody will pay attention at some point. And here's a guy where they look at, you know, things that he has done in the past, and they say, "Well, it wasn't just this marijuana conviction, he was also involved in an armed robbery." Right? Well, he wasn't involved in an armed robbery. When you say involved, you picture stick 'em up, here's a gun or a knife. You know, there are different levels of involvement, and people make mistakes. So you don't use those past mistakes as a way to shoehorn them in to throwing their life away.... right? So, I think-
- JRJoe Rogan
Especially for something so fucking innocuous.
- JDJosh Dubin
It's, it, I mean-
- JRJoe Rogan
It should be legal anyway.
- JDJosh Dubin
Well, think about it this way: How m- if you really wanna do something to change the h- the, the rate of deaths in this country, the rate of, uh, violence in this country, and you really are not a hypocrite, you'll ban alcohol. All right? Because alcohol causes a lot more accidental deaths because of drunk driving, it rav- there's not a lot of people that are sitting there smoking weed, getting in their car, and blowing up another car and a family. There's, you know, the biggest, uh, the biggest victims of marijuana smoking are fucking potato chips and chocolate.
- JRJoe Rogan
(laughs)
- JDJosh Dubin
You know? I mean, it's like-
Episode duration: 3:00:52
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Transcript of episode 13Cg6yXWAhA
