Joe Rogan Experience #2287 - Josh Dubin & J.D. Tomlinson

1. 0:00 – 15:00

   (drumming) Joe Rogan podcast,…

   1. JTJ.D. Tomlinson0:00

      (drumming) Joe Rogan podcast, check it out.

   2. JDJosh Dubin0:04

      The Joe Rogan Experience.

   3. JRJoe Rogan0:06

      Train by day, Joe Rogan podcast by night, all day. (instrumental music plays) Josh Dubin, my man. Introduce your friend. (laughs)

   4. JTJ.D. Tomlinson0:16

      (laughs) This is gonna be wild. Uh, this is JD Tomlinson, the former prosecuting attorney for Lorain County, Ohio. And for the listeners, prosecuting attorney is, um, similar to a DA in most jurisdictions. They just call it the prosecuting attorney. He was the- the head attorney in, um, (smacks lips) Lorain County, Ohio-

   5. JRJoe Rogan0:40

      That's correct.

   6. JTJ.D. Tomlinson0:40

      ... up until January.

   7. JRJoe Rogan0:43

      So, the reason why that's significant is that- (laughs) last time we were here, we were talking about that case, the case of the Ohio Four. So, let's- why don't you recap that for everybody just for- for people that didn't listen to the previous podcast when we talked about this.

   8. JTJ.D. Tomlinson0:58

      So, the Ohio Four are four gentlemen that were wrongfully convicted of a murder they didn't commit. And the last time I- I came on, uh, we talked extensively about the case. You can read about it at freetheohiofour.com. We have on that site my submission that I made to JD when he was the prosecuting attorney, and all the exhibits supporting it. But what happened is this woman is murdered in the '90s, and these four men become suspects actually before there's any evidence against them whatsoever. Uh, in two and a half decades of doing post-conviction work, I had never seen the police put in an affidavit, um, where they're... Excuse me, not an affidavit, a police report when they're investigating this murder that these four men are people we should look at. Based on nothing other than there was a lot of commotion in the community, understandably so, that there were people from out of town selling drugs. No question my client, um, and these other three guys were involved in selling drugs, and they wanted drugs off the street in Lorain. So, they immediately start looking at them. This woman is found behind a shopping center horribly, savagely murdered. She is stabbed multiple times. Her throat is cut. Her name is Marcia Blakey. She had been run over by a car. It was obvious because there were tire marks on her body. And several hours later that morning someone that she lived with, a gentleman by the name of Epps, was found murdered in strikingly similar fashion. So, the police are investigating this crime and run into a dead end. They have no leads. They don't have any evidence, and they're searching for the perpetrators. So, the Lorain County Prosecutor's Office goes public with the offer of an award. They offer $2,500 to anybody that has information about this crime. The next day or a couple of days later, in walks a man named William Avery Sr., who is no stranger to the Lorain County Police Department. He had been a- a paid informant for them for a long time, and he comes in and he speaks to detectives. And they say, "Everything you're tell-" In- in essence, they say, "Everything you're telling us has been public, you know. You need to give us more information." He then that week brings his son in, William Avery Jr., and his son claims to have information about the case. And they tell him, you know, "You're not telling us enough." He comes back about a week later and he says, "Well, I know the guys that did this." And he blames it, the murder, on Al Cleveland, um, John Edwards, Lenworth Edwards, and Benson Davis. And he claims that Al Cleveland confessed it to him. So, they start investigating this man William Avery Jr.'s account of what happened, and what he is telling them happened does not match the physical, um, state of this apartment where he claims this beating happened. So, this is like one of the telltale ways to tell if someone is falsely confessing to you or- or falsely implicating others. He tells them that there's this horrific beating of- of this victim that occurs in an apartment, and they go to the apartment. I mean, chairs turned over, tables turned over, a bloody knockdown, drag out fight for her life. And they go to the apartment and take pictures, and it's in the most pristine condition you can imagine. Not a chair turned over, not a table, and they immediately had reason to know that this guy was bullshitting because he then comes and says to them, "You know, I have other details." And the more details he gives them, the less it's matching up with the evidence that they have. So, they're trying these four men separately. When the first trial happens, William Avery Jr. has an idea, and his idea is I'm gonna extort these people for money. He shows up at the trial and he tells the prosecutors, "I want $10,000."And the prosecutor said to him, "What are you talking about? Um, you have to testify. You got the, the reward money." And he says, "I'm not testifying." They put him in jail for contempt and he says, "I made the whole thing up anyways. I did it for the reward money. I made it up." They should have known right then and there, before any of these four men were tried, that this was someone that led them down the wrong path. But instead of doing that, they keep him in jail. I don't remember if it was for 30 days or 60 days, and they let him cool his heels a little bit. The judge in the trial calls a mistrial, and when there's a mistrial, you can try someone again. So about a month goes by and William Avery Jr.'s story has now evolved. He now no longer claims that Al Cleveland confessed to him. He claims that he was a witness to it.

   9. JDJosh Dubin7:07

      Oh, boy.

   10. JTJ.D. Tomlinson7:08

       And what happens in that intervening month, I think people can draw their own obvious conclusions about what happens. But suffice to say, it's my opinion and my belief that they did a number on this guy. So he goes on to testify at all four of their trials individually, during which time the lead prosecutor gets a correspondence from the US Secret Service saying that, "We know you used this man, William Avery Jr., as an informant. We have been using him as a paid informant in some food stamp sting and we just caught him in a lie, and he's compromising our investigations because he is accepting reward money and making things up, and we're ceasing to use him as an informant and we are investigating him for crimes in, in, in giving us false information and accepting reward money for it." So the prosecutor you would think at that point would say-

   11. JDJosh Dubin8:13

       It's over, yeah.

   12. JTJ.D. Tomlinson8:13

       ... "All right, um, obviously it's over." So these guys all get sentenced and convicted to, I believe it was 25 years to life.

   13. JDJosh Dubin8:25

       That's right.

   14. JTJ.D. Tomlinson8:26

       And I became involved in the case at about two years ago, a year and a half ago, and dissected the record, and I, I was blown away by what I had seen, and I've seen it all. I found out that William Avery Jr. walked into the FBI in 2004, and the FBI documents it, and he says, "Look, I was a drug addict. My father had threatened me. He was a drug addict, and he made me go in there and tell a lie about these men and falsely implicate them in a murder that they didn't commit. I'm now off drugs and I want to clear my conscience." So the FBI documents it and sends the report to the Lorain County prosecutors. In 2006, Al Cleveland has an investigator searching for this man, William Avery Jr. For years, they couldn't find him. They finally find him and they get an affidavit explaining... William Avery Jr. explains how he made the whole thing up. He recounts what he told the FBI, and post-conviction proceedings get scheduled. And post-conviction proceedings is we're gonna have a hearing as to whether Al Cleveland is innocent. So the hearing is before a judge named Judge Rothgery in Lorain County, and what happens in essence is that William Avery Jr. shows up to testify. And the judge tells him, "Before you testify, you should know your rights." And that... in, in words or substance. And he tells him that, "If you testify here that these men actually didn't do it, there are potential consequences for making it up. And if you're lying now and saying they didn't do it just to help them out, there's consequences for that." So he's quickly told that he's gonna be facing potential perjury charges, so he decides not to testify at that post-conviction hearing. He walks out of the courthouse and reporters for the local paper ask him like, "Why didn't you testify? What happened?" And he says, "Look, I made the whole thing up. These guys didn't do it, but I'm not going to jail for 25 years."

   15. JDJosh Dubin10:47

       Exhales sharply Tense, tense.

   16. JTJ.D. Tomlinson10:48

       So that's the... that is the recap. So-

   17. JDJosh Dubin10:51

       I was at that hearing.

   18. JTJ.D. Tomlinson10:53

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

   19. JDJosh Dubin11:07

       Wow.

   20. JTJ.D. Tomlinson11:07

       And he approached JD, and he approached JD with his wife, and it turned out that JD, as a young lawyer, was sitting at that hearing watching it, and knew as a young lawyer that there was something terribly wrong. But back to... just to get listeners and viewers up to speed on where we're at. So I came on the show in November, about a week before Thanksgiving, and I laid the case out in finer detail than I just did. And like I said, if you want more details, you could go to freetheohio4.com, and my submission to JD and all the exhibits are there. But that's basically the story as I told it.

   21. JDJosh Dubin11:46

       Yeah.

   22. JTJ.D. Tomlinson11:47

       So I had been trying to get in touch with, with JD. Because he was running for re-election he had listed his cell phone number on the internet. So I had his cell phone number, and I was sending him text messages and emails and calling him, and I was getting ghosted.

   23. JDJosh Dubin12:09

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

   24. JTJ.D. Tomlinson12:11

       No, sir.

   25. JDJosh Dubin12:12

       No? There you go.

   26. JTJ.D. Tomlinson12:12

       (laughs) No, sir.

   27. JDJosh Dubin12:14

       (laughs)

   28. JTJ.D. Tomlinson12:14

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

   29. JDJosh Dubin12:32

       Charged by complaint.

   30. JTJ.D. Tomlinson12:32

       No, he gets charged by complaint. No one, no grand jury.
2. 15:00 – 30:00

   And I'd exonerated two…

   1. JTJ.D. Tomlinson15:00

      "If you just give me a date, I wanna come down and I wanna just show you, you now know what this is like. These... Imagine going through this for 30 years." So I, I have to say, in all my years of doing this, considering the circumstances that he was in, for him to say... You know, he was wrestling with it on the call and he said, you know... I'll never forget what he said to me, he said, "You know, if I don't at least agree to meet with you, then who am I?" And I said, "Thank you." And he said, "I, I just don't know if there's time, but I, I owe you at least a meeting." And given what he was going through and what he was up against, and he knew the case well, he had had... The Ohio Innocence Project had presented to him years earlier and he knew the case well, so he n- I think he had a sense that there was something really wrong going on.

   2. JDJosh Dubin15:57

      And I'd exonerated two people prior to that, so I had some experience in that.

   3. JTJ.D. Tomlinson16:01

      Well, you're gonna get to that, uh, the way that JD made enemies in Ohio, in that town, is because he had the audacity, he had the nerve to say, "I see two innocent people in another case and I'm gonna exonerate them." And that is the beginning of his issues, um, in Ohio. So I, I mean, uh, if you wanna hear from JD's perspective, because what ensued and what has happened in the months since, has been one of the most shocking, disturbing, you know, frankly, disgusting displays of, of what I think is ego and abuse of the system, in my opinion, um, that two of these four men are still in prison. And two of them are only out 'cause they paroled out, but they're on parole as convicted murderers for a crime they didn't commit. So I mean, I don't know, it'll be interesting to hear JD's perspective on that call and that... I then met with him right before Thanksgiving.

   4. JDJosh Dubin17:10

      Mm-hmm.

   5. JTJ.D. Tomlinson17:11

      And we had a big rally in Ohio, Derek Hamilton, who's the deputy director of the Perlmutter Center was there. We organized a bunch of folks in the community, a lot of coverage on local news, and then the next day I met with JD and his team, and presented essentially about a two-hour, three-hour closing argument-

   6. JDJosh Dubin17:32

      Mm-hmm.

   7. JTJ.D. Tomlinson17:32

      ... where I showed him all the evidence in the case.

   8. JRJoe Rogan17:36

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

   9. JDJosh Dubin17:49

      Yeah, um-

   10. JRJoe Rogan17:50

       ... tr- accused.

   11. JDJosh Dubin17:50

       It all really started is because I, I had developed a relationship with a woman in my office who I'd known for many years. And, uh, that was a mistake on my part and, uh, it was contentious. It was really beautiful for a long time, like many relationships are, and then it started to entangle, uh, disentangle and, uh...

   12. JRJoe Rogan18:09

       Shocker.

   13. JDJosh Dubin18:10

       Yeah, right. I mean...

   14. JRJoe Rogan18:11

       (laughs)

   15. JDJosh Dubin18:11

       And, and it was all my fault, Joe. I mean, it was-

   16. JRJoe Rogan18:13

       Yeah.

   17. JDJosh Dubin18:13

       I'm really contrite about the situation because I'm very aware of my mistakes and I've made amends with her.And, uh, and, and thankfully she has, uh, accepted my apologies because I, we, I put her in a position where she should have never been in as being an employee of mine. But I'd known her for 19 years. I'd never really been at the head of such a big office. I mean, it's about 100 people, um, so for me it was a really big thing and, uh, there's a romance that goes with kind of winning an election and coming in and trying to make a difference. I think it swept us up, and we really genuinely cared about each other. Um, but then it started to kind of fail and it was my fault, and, and I brought a lot of toxicity to the relationship that I... And I don't like the word toxic, I don't know why I don't, but it-

   18. JRJoe Rogan18:51

       Well, it's a compromise today.

   19. JDJosh Dubin18:53

       Yeah, it is, it is.

   20. JRJoe Rogan18:54

       Little bit.

   21. JDJosh Dubin18:54

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

   22. JRJoe Rogan18:56

       Yeah.

   23. JDJosh Dubin18:56

       And so I'm lucky that, uh... But so anyways, there was arguments that were caught, you know, on camera with her and I that were released to the public, and it showed us, you know, me arguing with her and raising my voice and, uh, so it was an extremely embarrassing time in my life. Um, but so this was all happening amidst this and so, uh, really it all really did start happening when I exonerated those f- uh, Nancy Smith and Joseph Allen, uh, in 2022. My life changed because, um, I knew there would be consequences to actions like that because it, it creates financial problems, people are suing people in federal courts, um, uh, so it causes problems even in the sense that I was very close with police. I was a, I was a county prosecutor, um, I was... I'm a very pro-police man and so it was difficult to, uh, the, the strain that it put on some of the police departments even though it was an old case. You know, I'm still friends with a lot of these detectives and to sort of make decisions like that where you have to kind of disagree, uh, it can be difficult. It could strain relationships and, uh, but I really didn't realize the extent of, of how much it would do it. So when I exonerated Nancy Smith and Joseph Allen, which is one of the worst cases I've ever seen, um, I thought that it was the worst case I'd ever seen. Uh, and then I got Josh's case, and, uh, after I was going through all that hardship, uh, basically on October 1st of 2024 I was charged with three felonies; tampering with records, intimidation and bribery. It was shocking to me because, uh, I couldn't figure out what the conduct was that they were referring to. So what in essence it was is, is because of that fallout from the videos that were released and, and, and she didn't have a part in the releasing of videos and so she had called us in the summer c- time even though we weren't really talking a, a bunch and she had kind of expressed her sor- sorrow that those videos had gotten out, uh, and that she didn't intend for them to, and that she kind of wanted some help with, with the media about how can we kind of help a little bit with the PR. And my partner and my Chief of Staff Jim Burge, who's a legend onto its u- onto himself, um, he's the best writer I've ever seen. So he wrote a statement, uh, and we, it was supposed to be prepared, uh, for her lawyers if they wanted to review it and see if they agreed with it or change it or anything like that so, uh, and, and to prove that that's what occurred was w- I have text messages from her on the day that j- uh, Jim wrote this statement that says, you know, "I trust Jim and his, and his, and his magic pen," because she knew how good of a writer he was and then the next day when I'm supposed to be intimidating him according, according to the state when I'm supposed to be-

   24. JRJoe Rogan21:24

       Intimidating her. Yeah.

   25. JDJosh Dubin21:25

       ... intimidating her according to the state, you know, you know, she, I received a text message apologizing that this situation that we're in because I, I, we both were just really... It was dramatic to have your personal life right in the, even a small town like that-

   26. JRJoe Rogan21:36

       Sure.

   27. JDJosh Dubin21:36

       ... it was dramatic. So, um, so that's really what happened but th- but what they alleged was, they alleged that we had created this, this false narrative, this false document and then intimidated her into adopting it. That was the allegation.

   28. JRJoe Rogan21:48

       Mm.

   29. JDJosh Dubin21:48

       Which is completely, completely false and, uh, and we had all the evidence to prove it so I was fairly confident in my case because I'm a lawyer, I've defended, I was a defense attorney for 15 years before I took office, so I'm fairly knowledgeable what constitutes a good case or not and I had a great case. Um, but it, the stress that it put on my family and my mother and my father, just awful. You know, I had nieces and nephews on, I'm a bachelor but I've got nieces and nephews with my last name and that really bothered me and so while I'm battling with this th- the interesting thing I'm charged on October 1st. On October 4th and they had... Once we broke up in, in '23 they had kind of been courting her because they knew that she was my weakness, um, that the contentious relationship and I think they were hoping that they would turn her on me, um, and so they did as much as, and to, uh, to exploit and try to, try to utilize our relationship against me. In fact, the lead detective that was investigating her, us, uh, was attempting to sleep with her at the same time. Attempting to sleep with her. I have text messages asking for nude photographs, um, asking just to go over to her house. This is while he's investigating me, Joe.

   30. JRJoe Rogan22:52

       (laughs)
3. 30:00 – 45:00

   Well, you know, it…

   1. JRJoe Rogan30:00

      position of power to try to arrest that person and jail that person. That's very un-American.

   2. JTJ.D. Tomlinson30:06

      Well, you know, it sounds-

   3. JRJoe Rogan30:07

      That's how we should all look at it.

   4. JTJ.D. Tomlinson30:08

      Something-

   5. JRJoe Rogan30:08

      Instead of looking at it in terms of, like, parties and this is, you know, the- these are my people, these are, this is against me, this is for me. It's bad for the country.

   6. JDJosh Dubin30:18

      It is.

   7. JRJoe Rogan30:19

      Real bad for the country. We are supposed to represent freedom.

   8. JDJosh Dubin30:23

      Yeah.

   9. JRJoe Rogan30:24

      On the world stage. We're supposed to be the people that have the most freedom of speech, the most freedom of expression, the, the best path to success if you're a nobody. This is supposed to be a place where everybody gets a shot, and if you allow the system to unjustly accuse and prosecute people for crimes that are demonstrably false, that's very-... very un-American. And that's how we should look at it. I mean, w- instead of this fucking "fuck my enemies-"

   10. JDJosh Dubin30:50

       Yeah.

   11. JRJoe Rogan30:50

       "... us versus them," you're, you're kind of committing treason. You're kind of, you're kind of ruining everyone's f- if you could pull it off, you ruin our faith in what this thing is supposed to be.

   12. JTJ.D. Tomlinson31:01

       Well, look, I think that quite obviously there are prosecutions that need to happen when someone commits a violent crime, when there's domestic abuse, when there's robbery, the- w- all of that.

   13. JRJoe Rogan31:14

       Fuck yeah.

   14. JTJ.D. Tomlinson31:14

       That's not... But-

   15. JRJoe Rogan31:15

       For sure.

   16. JTJ.D. Tomlinson31:16

       ... the, what should not be lost on people, because you are, you saw it play out on a national stage with the president. You are now hearing about it in a smaller r- you know, not a small town, but a smaller jurisdiction. And w- the irony of this, w- it struck me as I was speaking to JD the first time, is here's a man that's fighting for his life, and I just, I, I mean, I'll confess to you, I used it to say, I continually said to JD, "Imagine you have to go through this for 30 years-"

   17. JDJosh Dubin31:54

       It's not even comparable.

   18. JRJoe Rogan31:54

       "... behind bars."

   19. JTJ.D. Tomlinson31:55

       So when I finally got through to him, uh, that night, we must have spoke eight times that night.

   20. JDJosh Dubin32:02

       Yeah.

   21. JTJ.D. Tomlinson32:02

       He was, he knew that there was a problem with this case, and he, he was creating in his, w- and understandably so, "We don't have time for me to actually sit and listen to you and go through the evidence again." 'Cause he had been through it before in the cl- in the Ohio Four case. So as, as dame fortune would have it... I don't know where I heard that, but as-

   22. JRJoe Rogan32:26

       Good saying.

   23. JTJ.D. Tomlinson32:27

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

   24. JRJoe Rogan32:38

       Yeah.

   25. JTJ.D. Tomlinson32:38

       He gets defeated in the election. It had its intended effect, I guess, in my opinion. Uh, that's l- else, but they dropped the case. So now, his problem went away for the time being. So he became a lot more-

   26. JDJosh Dubin32:55

       I was free for a minute.

   27. JTJ.D. Tomlinson32:57

       ... s- singularly focused.

   28. JDJosh Dubin32:58

       Yeah.

   29. JTJ.D. Tomlinson32:58

       So by the time I got to Ohio and I had a, you know, team of, of lawyers that were representing the other three men, and I th- I felt like I had a more captive audience at that point. And, um, you know, what happens from here and what tha- what leads us to today is, in my mind, just as perverse as the irony of him getting wrongfully accused of a crime. Because I presented to JD, and y- you know, at one point, he welled up. You know, to prove a negative is one of the most difficult things. Our standard is p- the presumption of innocence. When someone is already convicted, and they're wrongfully convicted, in order for you to get someone in JD's position there, he was tough on me, as he should have been. But I had to prove a negative because I had to prove that Al Cleveland was not in Ohio when this happened, which frankly became easy to prove, because we were able to show that he was in New York visiting his probation officer on a different drug case. He had Daymond John, who, of Shark Tank fame-

   30. JDJosh Dubin34:11

       Mm-hmm.
4. 45:00 – 1:00:00

   Mm-hmm. …

   1. JTJ.D. Tomlinson45:00

      of how politically driven some of these prosecutions are, and then you- you put your finger on the nerve root of- of what the problem is from the standpoint of human psychology. It's been happening since the beginning of time and will continue to happen until people suffer ego death, and suffering an ego death requires you to look yourself in the mirror in a- in an honest way and to be able to say, um, four magic words: "I made a mistake." That's it. And what stands in the way, in my mind, of prosecutors just so often not moving from their position is because they can't say, "I made a mistake," or, "The office where I work made a mistake." You're gonna find that one of the judges that denied relief in this case of the Ohio Four was a prosecutor in this office, is friends with the current prosecutor. One of the other judges that denied relief is the same judge that denied Al Cleveland post-conviction relief when the Sixth Circuit Court of Appeals... The federal government says, "These guys, Al Cleveland is likely innocent," and they just shove it aside. What gets in the way? What gets in the way is... You touched on it. "I want to win."

   2. JDJosh Dubin46:31

      Mm-hmm.

   3. JTJ.D. Tomlinson46:32

      "This is... I'm not gonna go against the former office I..." Whatever swirl of emotions, you know, whatever it is that just has people... You know when you get to that point in an argument? This happens... I- I always give the same example 'cause she's always right. I- you know you get to a point in an argument where you're taking a real strong position and the other person, in this case it's my wife, is always, you know, taking the opposite position, and then you realize in the argument that you're wrong? And it's... Oftentimes it's like, "You gave me m- I gave you my keys to put in your purse. Where are they?" "No, you didn't give me your keys. You took them back since then." I'm not... "No, no, no, no, I remember where I gave them to you." And- and then you remember in the middle of the argument, "Oh, yeah, that's right. She did give them back to me."

   4. JDJosh Dubin47:23

      Which also-

   5. JTJ.D. Tomlinson47:23

      And- and- and what happens is, at that moment you have a choice to make. Y- you could stop-

   6. JDJosh Dubin47:30

      Right.

   7. JTJ.D. Tomlinson47:31

      ... which I've learned to do and say, "You know what? I fucked up. You're right." In my experience, especially in a case like this, it's just like the... And that's not to pat myself on the back. There's plenty of times (laughs) I dig in and I know I might be wrong. But, you know, it's just the inability to say, "Something bad might have happened here."

   8. JDJosh Dubin47:51

      Well, and it's- it's protect the state at all ti- at all times, at all costs. But wouldn't it be valuable for the people to know that the prosecuting attorneys are very ethical? Oh, 100%. Wouldn't that make you trust them more and want to support them more? Wouldn't that be good for everybody if they just said a mistake was made when a mistake was made?

   9. JTJ.D. Tomlinson48:09

      He- he thinks so.

   10. JDJosh Dubin48:09

       It maintains the integrity of it. I mean, Joe, let me say something that might blow your mind. It blew mine. Um, when I had exonerated Nancy Smith and Joseph Allen, what really was the highlight of my career, um- Can you tell me-

   11. JTJ.D. Tomlinson48:20

       What- what year was that?

   12. JDJosh Dubin48:20

       ... me what that case was? Yeah, it was a '94 case, which is interesting 'cause it was happening simultaneously with the same assistant prosecutor as the one that Josh is referring to. Uh, they were accused... She was a bus driver. She's kind- she's now become family to me, so, uh, and they're big fans, Joe, by the way. Um, but- Shout-out. Yeah, shout-out. Um, so, you know, I...They were 94. She was a bus driver for a place called Head Start, for young kids. She was alleged to have driven these kids, after picking them up from their homes, back to another individual's house, a, a male, uh, and severely abuse them sexually. Uh, now the, the, the Broadway, which is the, the road where he allegedly lift off, lived off of, was a main, is a main thoroughfare through Lorain. The allegations were so wild that they, you know, if you can imagine seeing a school bus pull up on the main street, watch little kids go into a house. They were alleged to have been, um, like, punished by being tied up outside in trees, which is just impossible. Um, so this, this is the alleged abuse that occurred, because what happened was, uh-

   13. JTJ.D. Tomlinson49:17

       Did someone coach the kids?

   14. JDJosh Dubin49:18

       Yes. That's, that's, in fact, that's exactly what occurred. So one of the... the mother that eventually got paid, I think it was about $1.5 million in, in '95 money.

   15. JTJ.D. Tomlinson49:26

       (laughs)

   16. JDJosh Dubin49:26

       Which is a decent amount of money. Um, she had indicated that her daughter had been, uh, abused by, uh, Nancy, the bus driver. Um, now, when the investigation occurred, uh, there was a detective on it that, that did a very thorough investigation, and after months found out that li- listen, this is, I don't even think a crime occurred, you know. Um, he was very confused by the evidence. It wasn't, wasn't clear. Um, it was plain as day that he couldn't even prove that these two individuals knew one another. Um, and so he had indicated that, that basically, "Listen, I can't go forward on this. I have no evidence that it's true." Well, the, the public pressure, I, I'm assuming, was, was rising, uh, because the, the victim, uh, the woman that had the child, uh, was becoming pretty public. She was organizing the other parents, which as you well know, you can't get these parents together and start, you know, talking about the case, because it just compromises so much. Now, to the police credit, they would try to tell these individuals, "You can't meet and talk about the case." But they did anyways. So then a bunch of erratic stories turned into one pretty s- pretty substantial story that pretty much stayed all the way through is that she would drive, allegedly, these kids to a house and they would take them down in the basement, and pretty much every child said that it was a basement that they went to. Um, it turns out, for example, Joseph Smith didn't even have a basement. It was a slab home. I mean, that's one fact out of a million facts that are true, that are, that are, uh, so disturbing about the case. And so when I started to look at it, the funny th- part is, during the first three or four months of me evaluating it, I had a couple investigators th- with me. And, uh, we, we were reading only exculpatory information. "Nancy didn't do it." Um, "We don't think a crime occurred." And I was wondering, "When am I gonna start finding the inculpatory information? When am I gonna start seeing the guilt?" And, uh, it just really never happened. And so, uh, when I exonerated these, these two individuals that were clearly innocent, she had done 15 years, Joe.

   17. JTJ.D. Tomlinson51:16

       Ugh.

   18. JDJosh Dubin51:16

       Uh, he had done 25. Um, I was in court and, and my chief of staff and I had written something, uh-

   19. JTJ.D. Tomlinson51:23

       (laughs) .

   20. JDJosh Dubin51:23

       ... to, to kind of indicate to the court, and I apologized to them for what had occurred to them. After the hearing, uh, Mark Godsey of the Ohio Innocence Project came up to me. He said, "JD, I gotta tell you something. You're the only prosecutor I've ever heard actually apologize to a defendant." Joe, imagine how remarkable that statement is.

   21. JTJ.D. Tomlinson51:41

       That's crazy.

   22. JDJosh Dubin51:42

       "We took 40 years of your life combined, but we're not even gonna apologize to you." Now, probably because they're, they're assuming that it's gonna protect the state's interest better. Uh, I'm a firm believer in that, uh, i- if the state suffers, then maybe it deserves to suffer, and that's justice.

   23. JTJ.D. Tomlinson51:57

       You know what's funny? A lot of cases where I ask, or I have the... I represent a client in a civil rights case for wrongful conviction, I sometimes give the law enforcement official, they're in a deposition in a civil case, I say, you know... I did it, uh, recently for Clemente Aguirre, who was exonerated from Florida's death row. I gave the, you know, the crime scene technician, the, the fingerprint analyst, all of who played a part in his wrongful conviction, I said, "Mr. Aguirre's here. Would you like to apologize to him?" "No sir, I will not."

   24. JDJosh Dubin52:31

       Yeah, they won't do it.

   25. JTJ.D. Tomlinson52:32

       So he, he exonerates-

   26. JDJosh Dubin52:33

       They won't do it.

   27. JTJ.D. Tomlinson52:34

       ... Nancy Smith and-

   28. JDJosh Dubin52:36

       Joseph Allen.

   29. JTJ.D. Tomlinson52:36

       ... Joseph Allen. And all of these folks that prosecuted Nancy Smith and Joseph Allen, law enforcement, uh, the prosecutors, they all turn on him. I had no idea about any of this. Because you apologized or because you exonerated them?

   30. JDJosh Dubin52:53

       No, it was because I-
5. 1:00:00 – 1:15:00

   Right. …

   1. JDJosh Dubin1:00:00

      therapeutic for me because I had been in so much stress on my own case, it was nice to divert attention away from me and try to think about something else.

   2. JTJ.D. Tomlinson1:00:07

      Right.

   3. JDJosh Dubin1:00:07

      So I really immersed myself in it, and I went to crime scene, which I always believe d- defense attorneys should go. To every, e- every case I had, I went to the, the crime scene. I learned something that I didn't know. Um, but I eventually got there and, and it was extraordinary, th- though not only was this case just on this, this individual, Avery Jr.'s testimony, he might've been the worst witness I've ever seen in my life.

   4. JTJ.D. Tomlinson1:00:27

      (sighs)

   5. JDJosh Dubin1:00:27

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

   6. JTJ.D. Tomlinson1:00:35

      And, and, you know, what the federal court is saying is that, yeah, they could damage his credibility at trial, but they didn't know, obviously, 'cause he does it later, that he made the whole thing up.And they didn't know that he's admitted he made the whole thing up. And importantly, wa- who walks in, unsolicited-

   7. JDJosh Dubin1:00:57

      Nope.

   8. JTJ.D. Tomlinson1:00:57

      ... to the FBI and says, "Here's what I did. And I wanna clear my conscience and I'm, I wanna tell you what I did."

   9. JRJoe Rogan1:01:05

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

   10. JDJosh Dubin1:01:07

       Yeah.

   11. JTJ.D. Tomlinson1:01:07

       So-

   12. JDJosh Dubin1:01:07

       And it's a crime to lie.

   13. JTJ.D. Tomlinson1:01:08

       And I, I knew... I started to feel like, "Oh, okay. We're about to get hometown, small town... Something bad is happening here." Because this should've been a moment to, here we are, myself, um, my co-counsel, we're about to change the trajectory, not of just these four men's lives, but of their families that have lived under the crushing weight of these wrongful convictions for three decades. My client, John Edwards, and Al Cleveland, and the other two as well, Lenworth and Benson, you know, John is in, Al is out. But Al is suffering hor- ho- you know, the most horrific psychological damage you can imagine. And John calls me from prison all the time. "JD tells us that he is going to file a joint motion." Joint meaning between defense counsel and the prosecutor, to grant these men a new trial. That's the procedural mechanism.

   14. JDJosh Dubin1:02:13

       Based on new evidence.

   15. JTJ.D. Tomlinson1:02:14

       Based on new evidence, which is the 2004 recantation.

   16. JDJosh Dubin1:02:18

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

   17. JTJ.D. Tomlinson1:02:23

       And then the 2006 affidavit, and that once the new trial was granted, he would dismiss the case. So, that all gets filed in front of one judge, because it really should've been a matter of procedure. Um, in all my years of doing this, 25 years, 24 years, I've never seen a judge do anything other than have the hearing and respect what the prosecutor has filed for and asked for, especially when it's joined by the defense. So, all of a sudden, the judge that this is filed before is silent. Now, the clock is ticking because now we have the whole month of December, and after January 6th, he's out of office.

   18. JDJosh Dubin1:03:08

       Mm-hmm.

   19. JTJ.D. Tomlinson1:03:09

       And right away, within a few days of us filing this joint motion, there's a newspaper article that comes out. What's your local paper again? I've, uh-

   20. JDJosh Dubin1:03:20

       Chronicle Telegram.

   21. JTJ.D. Tomlinson1:03:21

       The Chronicle Telegraph. Telegraph or Telegram?

   22. JDJosh Dubin1:03:22

       Telegram.

   23. JTJ.D. Tomlinson1:03:23

       The Chronicle Telegram, and it has the person that just defeated him in the election, his name is Tony Cillo. It has comments from him and from this prosecutor, Rosenberg, saying that "I don't understand what the rush is. I don't understand..." You know, e- essentially saying, "Wait until I take office, I, Tony Cillo, take office, and I want to review this." And I thought that that was really interesting, because he's someone that worked in that office. He's someone that actually played a role in some of the investigation that sh- I believe should've taken place when he was a prosecutor in that office, and he did not have the benefit of the thorough, uh, investigation that JD had done, and he's a private citizen until he takes office. So, I found that to be interesting. And all of a sudden, a brief gets filed from the Attorney General of Ohio saying, "Whoa." It's a brief that gets filed to the court where we filed this joint motion for a new trial, and the Attorney General gets involved. Uh, you don't have to look far to see other attorney generals getting involved in criminal cases, right? That's happened on a national stage, happened in New York. And he basically is taking the position that this man, we, this should all wait until Tony Cillo takes office. And I thought, "What? This is weird. Why..." Then I come to find out that Tony Cillo used to work at the Attorney General's office. So, I started to have hope when the judge, one of the judges in the case, because I won't bore you with the details, but the cases get sent out to different judges that were assigned to each man's case. And what the judge says is, "The AG's motion..." This is a quote, this is from an order from the Honorable Chris Cook. "The AG..." And this is dated December 23rd. "The AG's motion is not to advocate for either party to this litigation, which in most situations is the sole purpose of filing an amicus brief, but instead to ask this court to delay ruling on the pending motions until such time as the newly elected Lorain County prosecutor is in office and the victims can be notified. Neither of these purported reasons to opine on this litigation are persuasive or necessary to aid the court."

   24. JDJosh Dubin1:06:07

       (sighs)

   25. JTJ.D. Tomlinson1:06:08

       "First, the AG argues that the current prosecutor will be leaving office shortly," referring to JD, "within the next two weeks, in fact, and any ruling should be delayed in order to allow the incoming prosecutor to evaluate the matter and weigh in on the issues. But this reason is hardly compelling. After all, all elected officials eventually leave office, and to suggest that simply because a newly elected prosecutor is taking over, a pending matter should be delayed for the incoming official to review is unwieldy, incon- inconvenient, invites delay, and not how the system operates. Moreover, why should rulings or evaluation of this case be singled out and subject to delay in favor of the new administration, but not the other 150 pending criminal cases on this court's docket?""At the end of the day, the concept that a court or any government entity for that matter should come to a grinding halt because a newly elected official will be taking over is not how government should or does work."

   26. JRJoe Rogan1:07:11

       Shout out to that guy.

   27. JTJ.D. Tomlinson1:07:12

       Yeah. Put that thought on hold, because-

   28. JRJoe Rogan1:07:15

       Oh, no.

   29. JTJ.D. Tomlinson1:07:16

       ... three days later, three days later... Now, this is curious. What changes in three days? Well, I don't know if it happened during these three days, but this is the prosecutor. I mean, this is the judge that swears in the new prosecuting attorney. Three days later, there is another mo- another order filed by the same judge. And because we had moved for an emergency hearing, because in our mind this incoming prosecutor opines on the case in the paper, had worked at that prosecutor's office, and obviously had some feeling about the case. And if he had taken such an interest in talking to the press, we were concerned and filed an emergency motion not to let these men suffer any longer. So, the same judge that you just said shout out, which was exactly my sentiment, issues another order. You could not get a, a more stark 180 degree turn than this. I'm gonna quote from that order. "How can it be possibly an emergency that a hearing and potential ruling be accomplished in a matter of weeks for a case and cases that have been pending for almost three decades? Not to mention four years on the current prosecutor's watch. Moreover, no rational person would conclude that a change in county prosecutor constitutes an emergency. An inconvenience to the movant, to the movants arguably, a delay in rulings, no doubt, but an emergency? I don't think so. In addition to the l- to the lack of emergency, two additional but troubling issues are apparent by this motion." This is three days later. "First, the movants go to great pains to paint the incoming prosecutor as incapable of fairly and rationally evaluating the defendants' claims of innocence and requests for a new trial." To pause there, because this man had sat and listened to and dove through and then tore through this entire trial record. So yeah, we had concerns that we would face further delay, he'd already agreed, we'd filed m- this is oftentimes right away the court will call a hearing and grant the relief. So the judge goes on to say, "This effort is unfounded. Contra the movants reliance on a newspaper article," that's the one I was talking about, "the same article quotes prosecutor-elect Sillo as saying he would review the matter anew, just like Prosecutor Tomlinson did." And it goes on to say, "Second, even more troubling is the movants assertion that Tomlinson's successor has no authority to review agreements made by Tomlinson." I've never seen this in an opinion before. "Oh, really?" With a question mark. "The movant's right that Mr. Tomlinson's successor has an obligation to honor the good faith decisions made by the prior administration, J.D." And it then goes on to use the Head Start case, the Nancy Smyth case and Joe Allen where he granted these people, I mean, he, he exonerated these people. He then goes on to, to throw it in their face in my opinion. He says, "Recall the Head Start case," and he goes through make personalizing this, and saying that because J.D. Tomlinson exonerated these people their, thereby undoing a prior administration's prosecution, then why should the same not apply to you? So in other words, three days before he says, "Why should justice wait?" Three days later, he says, "W- wait a second. Um, this should wait. And it should wait, and by the way, here's one to poke this man in the eye because he exonerated people. You're undermining the decision of a prior administration." So he's using his granting of innocence in my opinion to now go back on what he said three days earlier, which is, "Why should this wait?"

   30. JRJoe Rogan1:11:53

       Jesus Christ.
6. 1:15:00 – 1:25:10

   (laughs) Yeah. …

   1. JTJ.D. Tomlinson1:15:00

      when he took office, and his first... My conversation with him wasn't about all the reasons they're innocent. He said, "You know, there's this phone call between Al Cleveland and his dad where they're talking about, um, giving Avery money." And I said, "What are you talking about?" And I went and read the transcript. It's about them giving him money in 2006 for his expenses, to put him in a hotel room so he could feel safe with a court reporter and to do the affidavit. And I felt like saying, you know, "So let me get this straight. You, your office pays this man reward money. He then tries to extort your office for more money in exchange for testimony. He has gone into the FBI before this affidavit was ever a thing. He went into the FBI and admitted he made the whole thing up, and you want to talk about a conversation between Al Cleveland and his father when they're talking about whether or not they can reimburse them for expenses if they have to fly him to Florida or, you know, get him to a place where he feels safe?" 'Cause he felt like if he told the truth again that there would be consequences for him, 'cause he was going against his father, he'd be labeled a snitch in the community. And, you know, I, I then emailed him and asked him for a meeting. And, uh, I didn't hear back. I heard back finally last week for the first time that we have a meeting with him on March 18th, and I found that curious timing. And I said to JD this morning, "Did you tell anyone you were coming on the show?" (laughs)

   2. JDJosh Dubin1:16:39

      (laughs) Yeah.

   3. JTJ.D. Tomlinson1:16:40

      And he looked at me, and it's a small town and word travels fast, so I have my suspicions. But I, I would make Tony Cillo the following offer. Uh, two things. If you have any evidence that these men actually did this, any whatsoever, with your blessing, Joe, I'd offer him a seat right next to me to show the world-

   4. JDJosh Dubin1:17:03

      Sure.

   5. JTJ.D. Tomlinson1:17:04

      ... what the evidence is.

   6. JDJosh Dubin1:17:05

      Sure.

   7. JTJ.D. Tomlinson1:17:06

      You tell me what the evidence is.

   8. JRJoe Rogan1:17:07

      Open invitation, come on on.

   9. JTJ.D. Tomlinson1:17:08

      And how about this? Rather than do this behind closed doors on the 18th, how about let's open it to the public? I just argued for a sentence commutation before Governor DeSantis last week. It was a public hearing. I had been told, just as I heard from JD, it just gives me fuel, "I don't think it'll happen." I was told that he has never publicly listened to a co- sentence commutation, ever. And you know what? It happened. And he listened, and he's considering the case. And I feel like if we talk with each other and not at each other, we can get to the right place. And I'm not... This... I want, I wanna be really clear. I have deep respect for what prosecutors do. I have deep respect for Tony Cillo's commitment to public service. I don't know the man. I don't know him personally. I don't know anything about him. But I do find, uh, I find it really difficult to understand why he took such an interest in this case, such that he blocked justice from happening and withdrew the state's position. How about hear us out and meet with us before you withdraw the joint motion to dismiss? How about that? How about you, um, hear the evidence before making it the first, like, official act or among the first official acts? It was just, it's... So I don't, I'm not optimistic going in, but I can tell you this. I have found something as recent as yesterday where alternative suspects were brought to the attention of the Lorain County prosecutor, and wouldn't you know that the person assigned to investigate these alternative suspects and, and to liaise with the police department was one Tony Cillo? I saw that document for the first time yesterday.

   10. JRJoe Rogan1:19:08

       So what do you think that could mean?

   11. JTJ.D. Tomlinson1:19:10

       I don't know what it means. I'd like... I have a lot of questions. Uh, uh, do you... What did you do to investigate these men?One of their, one of their ex-wives says that he was cleaning bloody clothes the night of the Marsha Blakeley murder and he knew her. I don't know what it means, but I'd like to know. I have questions. You know, what is it? Truth crushed to earth, truth crushed to earth shall rise again.

   12. JDJosh Dubin1:19:38

       Mm-hmm.

   13. JTJ.D. Tomlinson1:19:39

       It always... The truth comes out at some point. And I am, I am, uh, singularly focused on finding out as much truth as I can about this case, and I just won't let up until I find it. Something's wrong, and I want to figure out what it is. But these men are suffering. They should have been out in December, and to continuously, needlessly delay the process, hard to imagine.

   14. JDJosh Dubin1:20:11

       You know, Joe, I think we're also getting in this dangerous territory where we're not... I mean, the idea that you could ever prove them guilty with this evidence objectively is impossible. Now, we're getting in this dangerous territory where we're having to prove their innocence. And I, and I, and that's, that's significant, because that is not the standard. And so when the case is that bad, that you have to then just continue to try to find out ways to prove these guys innocent, which is... It's difficult. And I was talking with my father, I said, "I can't prove you didn't kill Marsha Blakeley on August 8th, 1991." I can't prove that. So we're in this dangerous territory now where we're trying to actually just argue actual innocence, and the standard is proof beyond a reasonable doubt, and it's not even close. It's not even close.

   15. JTJ.D. Tomlinson1:20:48

       You know, and where do I...

   16. JDJosh Dubin1:20:49

       Scary.

   17. JTJ.D. Tomlinson1:20:50

       Yeah, no, all I want to do is... What I want to do is, uh, do what I did with JD, is to say, you know, how many times in your life do you have a chance to say, "You know, something was really wrong, and I helped make it right"? And, and Tony Cillo has that chance. I mean, how many moments are there when you have the ability to impact other human beings in a way to set them literally free, and to end the most unfathomable of nightmares? And he has that chance. I'm trying to appeal to, you know... I don't w- want there to be some nefarious conclusion drawn from, maybe he did investigate alternative suspects. Maybe there is a- an explanation for it. One thing I know for sure is that no one has been able to show me any physical evidence, any eyewitness account. And actually, we have been able to prove their innocence. What constellation of, of fate would come together so that you could show to a, uh, factual certainty that Al Cleveland was not in Ohio on the night these killings took place? He meets with his probation officer, and he's seen by multiple people. And, you know, what more do you need?

   18. JDJosh Dubin1:22:25

       Mm-hmm.

   19. JTJ.D. Tomlinson1:22:25

       That standing alone, th- you know, and then you factor in Avery saying, "I made it all up." And you factor in the fact that the story he tells is belied by the physical evidence. It should... It is so easy to put people behind those bars, and it is a, um... It, it takes almost, uh, a miracle to fight their way out. So am I hoping for a miracle here? I hope not. I hope that these individuals that are presiding over this put whatever it is aside that is causing them to hang on and say, "You know what? We just got this one wrong. We can't stand by this."

   20. JDJosh Dubin1:23:04

       A- and think about this also. The only person to ever place themselves at the murder scene is Avery Jr. He's the only one, and he's the only one that wasn't charged. It's fascinating. He admitted, basically, to being complicit. Fair enough? I mean, you're at the murder. It's happening. You're there. You're the only one that hasn't been charged. Uh, in fact, I think maybe one of the facts you left out, Josh, is in 2004, he implicated his own father. Avery Sr., who w- went to the police originally. He said, "I think he killed her. I think he killed her and, and told me to tell that story to cover up not only his guilt in killing..." But he did know Marsha Blakeley. There was some, some, some reports that they had a contentious relationship. Um, so, you know, it's very likely that, you know, the two individuals that, that implicated these individuals may have been involved with the crime.

   21. JTJ.D. Tomlinson1:23:50

       (sighs)

   22. JDJosh Dubin1:23:50

       It's, it's, it's fascinating, and, and, uh, you know, I've just never seen cases like this before. Like I said, I can't stress it enough. If I took this case to a bunch of fifth graders, they would be objectively able to see that this is a crazy bad case. I mean, it's, it's not even close.

   23. JTJ.D. Tomlinson1:24:04

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

   24. JDJosh Dubin1:24:13

       Right.

   25. JTJ.D. Tomlinson1:24:14

       And, you know, it, it always leads to this place. Like, what do we do? You know? I, um... If you're a citizen of Lorain County, you want to feel that this couldn't happen to you. Regardless of what your background is, I would think that the citizens of Lorain County would, at some point, demand action here. These men are not expendable. Whether you disagree with... Look, I'll be the first one to say it. On behalf of my client, on behalf of Al Cleveland and the others, they're not proud of the fact that they were dealing drugs back then. They're not proud of the life they were living. That's not a reason to pin a murder on them.

Episode duration: 2:01:31