EVERY SPOKEN WORD
150 min read · 30,208 words- 0:00 – 15:00
(drum beat plays) Joe Rogan podcast.…
- NANarrator
(drum beat plays) Joe Rogan podcast. Check it out. The Joe Rogan Experience.
- JRJoe Rogan
Train by day, Joe Rogan podcast by night. All day. (rock music plays) Hello, Michael. How you doing, brother?
- JDJosh Dubin
Brother Joe.
- JRJoe Rogan
I can see you again. (laughs)
- JDJosh Dubin
Nice to see you, man.
- JRJoe Rogan
What's happening?
- JDJosh Dubin
Everything's happening. Uh, I got a lot on my mind. I got notes today and everything.
- JRJoe Rogan
Beautiful. So, let's kick it off. What do you got?
- JDJosh Dubin
(laughs) No, I, I was just, um ... I, I was thinking that the more you do this work, the more routine the stories would get, and you would start to see fact patterns and situations repeat. But I'm starting to think the more you do it, the more nutty and bizarre it gets, and you find yourself in these situations where you're like, "That can't be. You gotta check that out." So, I, I have, like, multiple cases going on where I feel that way and, um ... And they range from wrongful convictions to why was this person charged in the first place, where you're seeking clemency. I mean, um, yeah, it's a, it's a weird world.
- JRJoe Rogan
Yeah, your world in particular. The world of wrongfully accused and wrongfully convicted people is a, one of the darkest worlds in the world, because you're taking away a person's freedom.
- JDJosh Dubin
Yeah.
- JRJoe Rogan
And they do it all the time for corruption. They, they do it 'cause they're corrupt. They do it 'cause they're dirty. They do it 'cause they want convictions. They do it 'cause they said someone was guilty and then they just wanna fucking lock them up anyway.
- JDJosh Dubin
You know, I started to read this, um ... Malcolm Gladwell just published a new book called Revenge or the Tipping Point, and I'm only like 15 pages in. And the way he starts it out is about ... I, I think he's gonna come back to it at the end, but I think it's the opioid scandal. He's leaving it blank until the end of the book, about how when they testified, the executives of the company testified before Congress, that they couldn't bring themselves to apologize or admit that they were wrong, and they keep on using the words, "Our drug has been associated with, associated with addiction." And it's almost this... So I'm starting to think that this inability to admit fault, that you're wrong, um, that you're sorry, it, it, it transcends the legal system. And, uh, you know, I'm starting to believe that the cases where these cops are out to frame someone are far more, um ... Well, maybe not far more, but they're less common than the cases where law enforcement's trying to do the right thing and a detective has a hunch and they just get to where they think they need to be on the evidence by following the hunch, which is often wrong. So, yeah, it's a mix of all that shit.
- JRJoe Rogan
Yeah, and people don't like to admit they're wrong, ever, especially when it comes to something as crazy as a pharmaceutical drug company releasing some opioid that's gonna kill a million people. Like, they can't admit they're wrong. They almost have to say things like "associated with," especially during hearings.
- JDJosh Dubin
Yeah, during Congressional hearings I guess there's a lot on the line if there's anything that smells like an admission, right?
- JRJoe Rogan
Yeah, they can't admit it. They have to not lie, right? Because then they can get hit with perjury. So they come up with different terms, like "associated with."
- JDJosh Dubin
Yeah. I mean, I'm interested to see where he goes with it. I listen to his podcast a lot. It's actually really good. Um, some of them are good. Revisionist History. Because he's, he's a curious dude, this Malcolm Gladwell.
- JRJoe Rogan
Mm-hmm.
- JDJosh Dubin
And, um, you know, some of his stuff I agree with, some I don't. But I like that he looks beneath the surface and tries to figure out what is motivating people or what they're tricking themselves into believing.
- JRJoe Rogan
Mm.
- JDJosh Dubin
And I just, uh ... I was watching this Maniscalco bit the other day and he was like, "Can't you just say I'm sorry?"
- JRJoe Rogan
(laughs)
- JDJosh Dubin
'Cause (laughs) he's talking about his wife. "That's all I want." And him and this dude are going back and forth. I forget the guy's name on the podcast. Some other comedian. And, uh, it d- the bit is so fucking funny. And, and so I just find myself apologizing all the time. Because what's wrong with just admitting that you're wrong?
- JRJoe Rogan
Nothing at all. It's good. It's actually a sh- a show of strength. And people that don't recognize that, they just believe that they're never wrong or that they want people to know they're never wrong or think they're never wrong, so they just don't admit it and they just bury it deep inside.
- JDJosh Dubin
But you find yourself apologizing all the fucking time sometimes. (laughs)
- JRJoe Rogan
Yeah.
- JDJosh Dubin
You know, when you're conscious of it. I'm like, "Damn, I apologize a lot." Maybe I didn't do all this shit."
- JRJoe Rogan
That's probably good. Well, better to apologize for something you didn't do than to not apologize for something you did.
- JDJosh Dubin
Well, I don't know.
- JRJoe Rogan
As long as you mean it.
- 15:00 – 30:00
(laughs) …
- JDJosh Dubin
hate mail. And then there's another one in the Globe and Mail, which is a big Canadian paper. So it was a defamation case against this guy and against this lawyer for Chubb because Chubb helped... This Chubb lawyer, Federal Insurance, also known as Chubb, helps him draw up the blueprints for collecting their DNA at the deposition. So, um, it was a super gratifying case. We won a $50 million verdict and res- you know, he was found liable for defamation, abuse of process, which is abuse of the legal process, and, you know, it's taken Ike and Laurie all of these years to have their name restored in court. And they've s- uh, they'd kill me if I admitted it and it'd be a violation of their confidence in my professional obligation, but they've spent an untold fortune and, you know, the case is important for forensic science 'cause DNA is supposed to be the Holy Grail. And you can't have private citizens running around trying to collect people's DNA without knowing what they're doing. You could be leaning on someone and have good intentions to get results, but if I told you or if I said to Jamie, "Here's my suspect. Take a look at these fingerprints and tell me if they match him or her," or, "Here's my suspect. Here's their genetic profile. Tell me if it matches," you don't realize the... Uh, I mean, sometimes the error rate skyrockets by as much as 50%, with fingerprints over 80%. And fingerprint analysts will agree and they will say, "Yeah, I know that that happens, and if someone tells me who the suspect is and only who the suspect is and I'm comparing it, I think the error rate goes up, but not with me."
- NANarrator
(laughs)
- JDJosh Dubin
Not with me. I mean, again, it's that phenomenon where-
- NANarrator
Yeah.
- JDJosh Dubin
... you just can't think that you would be biased. So, look, the case was super important because I think it reasp- but beyond restoring their name and, you know, it's the namesake of the center where we do this work, it also preserves the integrity of forensic science and especially DNA, which is really one of the few, um, super reliable forms of forensic science. But even that, when put in the wrong hands or if it's exposed to subjectivity and people's belief that they have the right person, it's vulnerable, and science shouldn't be vulnerable.It should be ... It's either A or B. It's either yes or no, especially with DNA.
- NANarrator
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- JDJosh Dubin
So-
- NANarrator
Can I ask you a question?
- JDJosh Dubin
Yeah.
- NANarrator
When you said that her, uh ... The evidence against her, the DNA evidence had to be thrown out because the machine was contaminated-
- JDJosh Dubin
Yeah.
- NANarrator
... how was it contaminated, and how did that implicate her DNA?
- JDJosh Dubin
So, what happens is, um, when you're ... I don't want to go too deep into DNA analysis, but it is actually interesting. When you're conducting DNA testing, the manufacturer of the machine, um ... I think it's called the PowerPlex Plus. They ask you to run what's called a positive control and a negative control to make sure that the machine is correctly calibrated. Because it's ... What it's doing through electrophoresis, um, is shooting out what's called an electropherogram on the other end so that you're able to, um ... You're able to do what they g- what they ... What's referred to as calling alleles. So you're recalling, you know, chromosome pairing at a specific genetic marker. All right? So ... And they called them ... There's m- m- ... Various different loci, or locations, where there are ... You either have two alleles or one. You get one from your mom, one from your fob- ... One from your mom (laughs) , one from your dad. And sometimes the one from your father might not show but your mother's will show, but there'll be two alleles at most, at a specific location. So they want to make sure that the machine is working properly, so the manufacturer has the lab analyst every time you do it, run a positive control. Meaning that you'll put a solution through the machine, and it should, on the other end, give you very specific results. And he accidentally pipetted or took the solution from her DNA mixture instead of from the positive control mixture and put that through the machine, so when he was running the test, her DNA is already mixed in there.
- NANarrator
Oh.
- JDJosh Dubin
But he realized he made a mistake, so when he issued his report, he didn't rely on that run. Because when I say run, it's another, um ... It's another ... You'll run the DNA on different occasions and sometimes on different dates, because you want to make sure that your genetic profile will never change. My genetic profile will never change. So, when you are looking at somebody's genetic profile, it should be consistent. So when he saw that, wait a second, the first run of this doesn't match the second and third or f- or the fourth, he realized he made a mistake. But without having the lab analyst that's doing the interpretation, you know, weighing in on the results, and you're antsy to get an answer, and you're r- leaning on an unaccredited lab, saying, "Interpret the results! Interpret the results! Money's no object," there's an email that said that. You know, instead of waiting, she relies on this run of the DNA. And, you know, then what happens happened. But at some point, this Canadian guy came to learn what actually happened and kept on going.
- NANarrator
Wow.
- JDJosh Dubin
And kept on going and kept on going. And there was evidence that he wanted hundreds of millions of dollars from my clients. You know, I think what turned out to be a shitty situation for him, because no doubt, getting hate mail like that has to be disturbing and-
- NANarrator
I just have to ask you.
- JDJosh Dubin
... upsetting to the family.
- NANarrator
Did it turn out that he had any sort of relationship with the Canadian man who was sen- sending him the hate mail?
- JDJosh Dubin
Yeah. That was his former ... One of his former business colleagues-
- NANarrator
Oh.
- JDJosh Dubin
... who he ha- he had a vicious falling-out with, and he kept it from everyone.
- NANarrator
Oh.
- JDJosh Dubin
So I think that the inference, in my opinion, the inference is that at some point ... And, and in fact, there's an allegation in the hate mail where it says, "You were involved in the murder of these two people." He accuses this man in Canada, months after the hate mail began to arrive, of spreading that rumor, so I believe that he knew it was him the whole time.
- NANarrator
Oh.
- JDJosh Dubin
And at some point, I believe he was trying to shake the Perlmutters down.
- NANarrator
Oh.
- JDJosh Dubin
So-
- NANarrator
So he wanted money from them, otherwise he was gonna go public?
- 30:00 – 45:00
So good came out…
- JDJosh Dubin
for life. I mean, they've become like surrogate family to me, but yeah, the center was born out of their experience in this case.
- JRJoe Rogan
So good came out of it. (laughs) Does the guy have the money to pay them?
- JDJosh Dubin
I don't, I don't know. I don't know, but I'm gonna find out.
- JRJoe Rogan
(laughs)
- JDJosh Dubin
About, uh, you know, we have post-trial motions that the judge has to decide and then, you know, once we get, hopefully we get the judgment entered. Um, Ike is not the guy to pick a fight with. He was standing up for his wife's honor really and, um, look, sometimes you pick a fight with the wrong person and you, what do they say? You fuck around and find out.
- JRJoe Rogan
There's a lot of people that fuck around a lot until they find out. And it sounds like this guy might have been one of those people.
- JDJosh Dubin
I don't know. I don't know. I mean-
- JRJoe Rogan
Perhaps?
- JDJosh Dubin
Perhaps.
- JRJoe Rogan
Allegedly? It just seems like there's people that are involved in conflict their whole fucking life, man. And they never get out of that pattern.
- JDJosh Dubin
I don't get it.
- JRJoe Rogan
Yeah. Unhealthy people. They develop a pattern. They develop a pattern of thinking and behaving, you know?
- JDJosh Dubin
Well, I don't know if it's the empath in me, but I try to see like what are you thinking? Why can't you realize I've, I've gone down the wrong path, let me course correct.
- JRJoe Rogan
Mm.
- JDJosh Dubin
And you just end up with theories. I mean, look, I, um, I can understand why a former detective might be concerned about liability, so they can't just say, "Well, here's what I was up to all this time." I guess I can understand that. But I can understand the thinking in not just saying, "I've gone down the wrong path." And some people start to believe their own lies, I think. Some people start to believe their own theories. Um, human psychology is like, it's vast and abstract and so complicated on some level.
- JRJoe Rogan
It varies. Varies from individual to individual.
- JDJosh Dubin
Yeah.
- JRJoe Rogan
What they can justify, what they can sort of rationalize in their head.
- JDJosh Dubin
Look, I told you at the beginning that there's only been like a handful of cases where I was like, "Oh, that can't be." There's some- there's gotta be something missing from that story that you're not telling me. But wa- watch this. Two officers in 1998 were on patrol in New York City, in Brooklyn, on Pitken Avenue. Gunfire breaks out and literally as they're rolling down the street, the gunfire breaks out. One of the officers looks to his left and sees the muzzle flash of the gun that was used to kill this young man, Trevor Viera. He exits the patrol car, draws on the man and says, "Drop the gun." The guy's pointing the gun still that was used to shoot Trevor Viera and there's a tense moment. And this officer has testified that there was a 14-year-old girl in the area or he otherwise would have just shot the guy. So, he literally catches the murderer with the gun smoking in his hand. Well, I've used that expression over the past two decades. "Oh, it's a smoking gun." This is the fucking smoking gun. He finally drops the gun. His name is Eduardo, uh, Eduardo Rodriguez. He's put in handcuffs and, you know, you get documents as you're going through the discovery process during post-conviction. You get it from the prosecutor or from the police. And there's a radio call by a, a serg- a detective that says, "Perps in custody." Contemporaneous with the arrest. They arrest two men. One guy standing next to him and the guy that Eduardo Rodriguez had shot the gun. He's placed under arrest, he's brought to the precinct, and he's delivered into the arms of no other than one of the most corrupt, sadistic detectives to ever work homicide in Brooklyn, in my opinion, Louis Scarcella. Now, why should that name sound familiar to you or to others? Because Louis Scarcella is the guy that framed Derrick Hamilton, who's the Deputy Director of the Perlmutter Center for Legal Justice at Cardozo. Louis Scarcella and his partner, I think his, his name is Chmil or Chmil, Chmil, it's C-H-M-I-L, um, these guys were so notorious for framing people for murders they didn't commit that there have been 21 cases where people's convictions were vacated where they were the lead detectives, 21. Derrick's is one of them. So Edwar- Eduardo Rodriguez is delivered to the precinct, smoking gun in his hand, and a couple of hours later-... he's brought to the home of Nelson Cruz, who was 17 years old at the time, 16 turning 17. And it's the story of these cops that while he was in the precinct, that he was yelling and screaming and tearing the place up, "I didn't do it. Uh, Nelson Cruz did it. He shot him and ran and dropped the gun and I just picked it up." The officer that arrested him never saw Nelson Cruz, he didn't see someone shoot and drop a gun. The story is literally ludicrous. Nelson Cruz is arrested and charged with murder. So when I heard the story, I was like, "There's no fucking way that this is what happened. You're leaving something out." And I then read the trial transcript. There's another guy that shows up at the precinct named Andre Bellinger. And Andre Bellinger says, "Yeah. I saw Nelson Cruz do it too." And he shows up at the precinct and he's told what kind of gun was used, he's told that Nelson Cruz is the suspect, and then he picks him out of a lineup after being told we're gonna put Nelson Cruz in a lineup.
- NANarrator
(laughs)
- JDJosh Dubin
All three of those things are gross violations of, um, investigatory practices and this has been established for decades. So this guy ends up put on trial and they somehow claim that they don't have, um... They can't locate this guy that is saying that he witnessed the crime. They can't locate him. He's not around to be located. So this... The, the person who had the gun in his hand that is shooting the gun, who they believe, who v- who says Nelson Cruz did it, at Nelson Cruz's trial, he's nowhere to be found. Wouldn't you think that the prosecutors would put that man, Eduardo Rodriguez, on the stand so he could explain how he picked up the gun? He could explain, "What did you see? You saw Nelson Cruz do this and he ran and dropped the gun?" And he's never put on the stand. It's like a three-day trial. The only person put on the stand that claimed to have been a witness is this guy, Andre Bellinger. So, I mean, some people have, like, bad luck, shitty luck, or cataclysmic, fucking, um, apocalyptically bad luck, and Nelson Cruz just happens to have, you know, won that shit lottery. Nelson Cruz ends up before a judge about eight years ago and... About six years ago. And it's a post-conviction hearing, and this guy, Andre Bellinger, who claims that he watched Nelson Cruz do it, um, is outed as a liar. There are eyewitnesses that were with him that night who said, "He wasn't at that murder scene. He was, like, blocks away with me." He was outed as a liar on so many different occasions it becomes like... It would become laughable if it wasn't so serious. After these post-conviction proceedings during which 20-some-odd witnesses were called, the courtroom is packed on the day of the decision because the expectation amongst the press and in the legal community is Nelson Cruz is about to get exonerated. This judge had exonerated people that had been, um, investigated by Louis Scarcella, and she's acting kind of weird and erratic, and she rules against Nelson Cruz and contradicts herself on multiple occasions and... This is in 2019. And we lay- Or 2020. And we later learn she never takes the bench again and she resigns because she has advanced-stage Alzheimer's disease.
- NANarrator
Oh, Jesus.
- JDJosh Dubin
I have an affidavit that... From an investigator that says her husband said that she had been suffering from these symptoms for years before. There was a judicial, um, complaint filed because she wasn't showing up to court. Uh, there's a ProPublica article about it, about this whole debacle. And, you know, it's stories like this... And it... So the Perlmutter Center for Legal Justice, um, is working on the case and, you know, thankfully, we're before the Conviction Integrity Unit in Brooklyn and it's led by a, a really special guy, Eric Gonzalez, who's the district attorney in Brooklyn, and he listens to these cases. He has a real conviction integrity unit. So I'm hopeful that once we present the case to them, um, that we'll get him some relief. But to think about... He was paroled in 2023. He's a mess.He walks around nervous. He's got terrible anxiety, i- para... He's a wonderful guy. And he's, he's so stone-cold innocent, and you just wonder wh- how and why this shit can happen to someone. And, you know, it's like the, the perfect constellation of, like, you got this, these crooked detectives who have already been found to have ruined a bunch of people's lives. You have the smoking gun found in the hand of the murderer, who mysteriously disappears. And if you're wondering, so why, why do they believe this guy? How does he go to the precinct and he raises hell and says, "Nelson Cruz did it and I picked up the gun," even though there's no evidence of that? What would be your guess?
- JRJoe Rogan
Well, he's probably some sort of a witness on something else.
- JDJosh Dubin
It was pretty well-known back at the time that Louis Scarcella, other detectives in Brooklyn Homicide in, in all the boroughs had informants. I mean, that's my best guess. Why else would you just beli- ... And they, they've gone as far as to try to discredit their own and say, "Well, Piotti must not have seen him drop the gun and run." This guy has been th- consistent throughout. He hears the gunfire, looks, sees the muzzle flash. He literally witnesses the murder. So, you know, there was an F- there was a joint FBI task force with the NYPD going at the time, so yeah, they relied on informants.
- JRJoe Rogan
Where's ... What's the state of the guy who actually committed the murder currently?
- JDJosh Dubin
He's out.
- JRJoe Rogan
Jesus.
- JDJosh Dubin
He's running around the streets. Who knows where he is?
- JRJoe Rogan
So if your guy gets exonerated, does this guy get tried?
- 45:00 – 1:00:00
That's insane. …
- JDJosh Dubin
be a civil rights lawsuit. I mean, look, to Brooklyn's credit, with this DA, they have done that and done the right thing. But in terms of them going after the person that they think did it, you know, it's 2000 almost 26, and this crime happened in 1998. It's 30 years later. To be able to reassemble the witnesses and some of whom are probably dead or hard to find, um, but it's very rare that once there's an exoneration and you're able to point to who the true killer is, very rare that, um ... law enforcement will go after the person that defense counsel has established actually did it.
- JRJoe Rogan
That's insane.
- JDJosh Dubin
Is it?
- JRJoe Rogan
Yeah. Because if the defense counsel has ruled that this other guy is innocent, and that the police officer did see the guy execute that person, how do you not try that person with murder?
- JDJosh Dubin
(clears throat) Now you're, you're stumbling into the how could that b- the, the how could that be's of our legal justice system.
- JRJoe Rogan
Right.
- JDJosh Dubin
It just ... It doesn't happen. I mean, Clem- Clemente Aguirre, who I've talked about before, who was exonerated from death row, um ... You know, if there's any doubt about this phenomenon of children killing their parents, uh, I think that that was laid to rest a few days ago. It happens. It happens a lot more than, than was recently publicized. You know, the real killer was the daughter of this, of her mother and her grandmother. Clemente Aguirre gets, you know, charged, put on death row and, in the middle of his retrial, you know, she all but confessed on the stand to me. They have her blood mixed with her b- mother's blood at the crime scene and in a trail leading to the bathroom where the killer cleaned up. She confessed on six or seven different occasions, not under duress, not to law enforcement, to various people around town. "She's roaming the streets."
- JRJoe Rogan
(laughs)
- JDJosh Dubin
The, the day that Clemente got exonerated, I, I, you know, like ... I, I said ... (laughs) You know, I think I might have quoted, like, Jim Morrison. I was like, "There's a killer on the roam and she's in Kentucky and you better go get her." You know? And they were like, "Ah, objection." That's w- you know? But yeah, it happens. I mean, sh- it's my belief that she's f- she's stone-cold guilty and they haven't gone after her, and that happens a lot. I mean, look, the word exoneration is thrown around, but it's certain ... Like, Derek's case is rare. He was declared actually innocent. Sometimes the conviction gets vacated. Sometimes it, um ... You know, they decide not to retry the person and agree to time served. But you're pushing a massive boulder up a steep hill every time. Like, Nelson Cruz should not have to carry this weight around anymore. He's had other lawyers that have done a great job representing him. You know, we've come in now-
- JRJoe Rogan
How much time did he wind up doing?
- JDJosh Dubin
I think 26 years.
- JRJoe Rogan
Jesus.
- JDJosh Dubin
Dang. Yep. Yeah, it's horrifying.
- NANarrator
Jesus.
- JDJosh Dubin
I mean, when you've done so much time that you've paroled out and are still trying to prove your innocence?
- NANarrator
Jesus. Oh.
- JDJosh Dubin
I, I hate to give you indigestion on a ... I mean, but it's, this is like ... I, I'm past tears at this point. I'm, I'm more like, we just gotta keep going and keep fighting. And when you get these little victories here and there, like, we've had a few releases recently that were super encouraging, where you're able to get people a second chance, where you're able to, you know, get, get it to the point where they could, even though they didn't do it, plead guilty. We just had a, a release, um, she was actually my co-counsel in the Clemente Aguirre case, uh, Maury Palmer, and our client pled guilty, but we believe he's innocent. He did it to get out. He had done 24 years and he'd had enough. But for her to get it to the place where he could even plead guilty after serving all that time, you know, innocent people plead guilty all the time.
- NANarrator
Yeah, they do, just to get a lighter sentence.
- JDJosh Dubin
Yep.
- NANarrator
It's a dirty business you're in, buddy.
- JDJosh Dubin
Filthy.
- NANarrator
(laughs)
- JDJosh Dubin
(laughs) It's filthy, and it's got all these tentacles because if you're doing post-conviction work, um, it's not just the wrongfully accused and convicted, it's also, you know, we do clemency work, commutations and pardons. We, um ... You start to wade into the h- the human mess and you see that, like, people have made mistakes and are worth a second chance. What they do with it is up to them, but some of the stuff you can't explain. Some of these prosecutions are political. Look, I'm dealing with a case right now that's like at the intersection of wrongful conviction and what the fuck are we doing with our immigration policy in this country? And I don't even want to mention his name because I don't want to, uh, you know ... Or the state, because I don't want to sacrifice the good work that we're doing to get him a public hearing, but I can say this much: this is a guy from Albania that came to this country in the early '70s and had to sit in a refugee camp in Italy for damn near a month under horrid conditions just to come here to try to live a, a life. He's in his early 20s. He's at a gas station. He has a $100 bill for $5 of gas. He goes into the gas station, the guy takes the $100 bill, he doesn't have change. He says, "When you get $5 back, come back. I'm gonna hold on to this $100 bill." And they get into an argument. He won't give him back the $100 bill. So, he leaves and goes to get his brother, and he tells his brother about it. They return to the gas station, they have a gun in the back seat of their car. His brother tells him, "You stay here. I'm gonna go in and try to talk some sense into this guy and get your money back, give him five bucks." My client's sitting in the car, and gunshots erupt. He goes in the back seat, gets the gun, goes around to the side, comes into the gas station. Uh, comes into the, um, you know the ... You remember back in the '80s where the, you would go in to pay?
- NANarrator
Mm-hmm.
- JDJosh Dubin
And there would be, like, a little, a little front desk area?
- NANarrator
Mm-hmm.
- JDJosh Dubin
And the gas station attendant is holding the gun, and he looks to his left and his brother is bleeding out. The gas station attendant had shot his brother in the stomach. Still holding the gun, shaking, he shoots him one time, dead. Shoots the gas station attendant dead. His brother miraculously survives, and he's put on trial for murder, and he goes to trial the first time. Remember, he's in his early 20s. And it's a hung jury. Most of them are in favor of acquittal. Goes to trial a second time and gets convicted. The judge must have seen that this was damn near as close to self-defense as it gets. He got sentenced to, like, four to seven years. He was out in just under four years. He had become an accomplished boxer in prison. He's lived the last 51 years of his life without so much as a traffic ticket. He goes to New York, joins the union as a super for buildings. He pays taxes, social security, pays into his pension, builds a life for himself, has five kids, eight grandchildren.... and he's living in Upstate New York. Leaves the country couple of years ago to go to Albania to see family, comes back and gets stopped at the border. Somehow is not detained at the border, but they start removal proceedings on him.
- NANarrator
Why?
- JDJosh Dubin
Because there is-
- NANarrator
Is he a citizen at this point?
- 1:00:00 – 1:15:00
I think what's going…
- JDJosh Dubin
that they're gonna take him." I mean, ICE is waiting outside courthouses and they're gonna take this guy, he's in his 70s, take him away from his family and his grandchildren? So, again, you don't just see these wrongful conviction cases, you see cases that are like, this man has built a life and if you start to get beneath the surface and you see the pain and agony and fear that people are living, um, it's, it's... They're living it day to day. We were able to get a delay into February for his removal proceeding, so I'm now trying to get him pardoned because if he gets pardoned there's no-... basis upon which to remove him. And, you know, we have a team at my center that's working on it, and you want... These are the kind of people you want to fight for once you get to know them. So, I, um, there's like... I don't want to just tell nightmare after nightmare, but the reason why it's important, I think, for people to hear this is it's not just what you're seeing on TV or what you're hearing about. I mean, what basis do we have to remove a grandfather who's lived here for 50 years and contributed to this society and paid his taxes and paid into Social Security and was part of a union? And just, like, I'm looking for a flaw. I really am. I'm looking for, like, a reason for me not to like them, and I just get drawn in more and more. They're just wonderful people and th- these are the kinds of things that are, like, worth fighting for.
- JRJoe Rogan
I think what's going on with ICE is one of the things that's going on with quotas for speeding tickets and things along those lines, is that they have numbers that they want to achieve and they've openly talked about this-
- JDJosh Dubin
Hmm.
- JRJoe Rogan
... that they want to remove a certain amount of people per week. And when they do that, I think everything's on the table. Then they start showing up at Home Depot. Instead of, like, looking for gangbangers and looking for criminals and cartel members, they're- they go to whatever's easiest pickings so they can get numbers up. Uh, uh, there's, um... Do you know Ed Calderon? Do you know who he is?
- JDJosh Dubin
Mm-hmm.
- JRJoe Rogan
Um, he's, uh... He worked, uh... He was a Mexican military guy who, uh, now is an American citizen, but he, uh, reports extensively on the cartels, and just was telling me some horror stories about ICE raids. And one of them was they took this guy who'd been brought over here when he was a baby but didn't have American citizenship. His family w- Yeah. ... you know, came over here illegally. Lived here for 20 years. Can't speak Spanish. They deport him, send him to Tijuana.
- JDJosh Dubin
Can't speak Spanish?
- JRJoe Rogan
Can't speak Spanish. Does not speak Spanish. He is essentially an American citizen. He just... Never lived anywhere else. He just doesn't have the paperwork. He's not a criminal. They sent him over to Tijuana, and now he has to live in Mexico. He c- he doesn't know what the fuck to do. His law- he's on the streets. Has no idea. He doesn't have any money.
- JDJosh Dubin
Uh, yeah, I don't understand. I wish that there was... It's... It's sort of a black box, immigration, um, in terms of what is... What the policy exactly is. And why do you want to continue this narrative that seems to be, again, more of a human rights issue than a political issue? Like, what is the endgame here?
- JRJoe Rogan
The endgame is to get as many illegals out as they can because so many were brought in over the last four years.
- JDJosh Dubin
Well, that's... That's a fair argument. I understand that. But do we want to be getting rid of 70-year-old men that-
- JRJoe Rogan
No.
- JDJosh Dubin
... really... I mean, I gotta tell you, I have an older brother, and if someone had did something like that to him, I can't tell you I wouldn't have done the same fucking thing.
- JRJoe Rogan
Of course. Almost anybody who has family would say that. You go and you see your brother shot and you know the whole circumstances surrounding it. Yeah.
- JDJosh Dubin
So I don't... I just don't... And... And it's not... These immigration judges, I've come to learn, don't have much flexibility. You know, there are hard and fast statutes about whether or not someone is considered removable, and... You know, my appeal is really to the prosecutors, like, "Why are you doing this?" But then they're following orders from someone above them that's telling them, "This is your case. You're assigned to it. Do the best job you can." So, that kind of shit just rolls downhill, unfortunately.
- JRJoe Rogan
Yeah.
- JDJosh Dubin
(exhales) And... And, you know, I try not to... I try not to wear this, um... For my own mental health, I'm trying to keep the empath in me in check a little bit more, because... But sometimes it's difficult. Like Nelson's case, this case that I'm talking about. And the only reason I'm not using names in that case is I don't want to alienate. There's great people in the state that this happened in, which wasn't New York, that I think actually care and have shown that, "Yeah, this is... Doesn't seem right, and we want to make sure that you get a public hearing." Um, I'm confident that we will before February, and I like my chances if we do, because I think that this story... He's worth pardoning. He's worth saving. Um, but, you know, I don't... I don't understand. I mean, that's what I... What I meant by this human mess. It's like... I wish there was a more transparent process of how and why people get pardons, certainly on the state and on the federal level. I don't get it.
- JRJoe Rogan
Well, I mean, the... The nuttiest thing is that the president can pardon people. That he could just decide, because you're the president or the governor. He could just decide, "This person, um, I like him." He could just do it.
- JDJosh Dubin
It's an ama- it's an amazing, um, responsibility, and it's kind of an awesome power to have, and how you go about exercising it becomes-... challenging, right? Because-
- JRJoe Rogan
Well, it gets real weird. Like, how about during the Biden Administration, when some of 'em, Biden clearly didn't even sign the pardons? It was all autopen, and he had the most pardons of any president ever. So you have political influence, you have people that would like to get someone pardoned, and you know someone inside, "Do you think you can make this happen?" "Well, he's pardoning 9,000 people, fuck it. Let's just throw that one in there."
- JDJosh Dubin
Yeah, I mean, I don't think he's... I don't really know the autopen issue that well. I don't know if he saw those, didn't see them. I don't know what... It's like organized chaos-
- JRJoe Rogan
Mm-hmm.
- JDJosh Dubin
... for, for every presidency. You know, Bill Clinton pardoned people at the end of his terms that are fucking bananas when you look at them. Biden did it with his son, you know, the-
- JRJoe Rogan
Biden did it with his, with family members that weren't even accused of anything.
- JDJosh Dubin
Preemptive pardons.
- JRJoe Rogan
Yeah.
- JDJosh Dubin
I don't even know that that was a thing before.
- JRJoe Rogan
It never was. He did it with Fauci. Preemptive back to 2014.
- JDJosh Dubin
Yeah, listen-
- JRJoe Rogan
(laughs)
- 1:15:00 – 1:30:00
I mean, I could…
- JDJosh Dubin
the guy's name, has found that 80% of MAGA voters support this act. It's called the Safer Supervision Act, and it, it's actually a system that rewards people for when they get out for doing the right thing, so that if you want to make sure that your, you know, when you get out, there are terms of your supervision. How many times you check in with your parole or probation officer? How often are you being subject to drug tests? Is there an end in sight? This act actually is a merit system, and it's heavily supported, um, by Republicans, by Democrats, by everyone in between. And you would hope that something like that would get passed and, and get pushed through, because the Safer Supervision Act is a way that we can reward people for doing the right thing and hold people accountable that aren't doing the right thing when they get out. But, but your question about, like, what happens to the cops or the prosecutors that do this, they have immunity. It's one of the most frustrating things in the world, is that most of these, most of the time, qualified immunity applies.
- JRJoe Rogan
I mean, I could see immunity for a mistake perhaps, but if there's a pattern and it's clearly corruption, and you have a person that is taking away people's freedom, how is there not a crime committed? How is, how are they not convicted or at least charged with crimes?
- JDJosh Dubin
Well, listen, for those listeners that want to get involved in the process and actually make a difference, you gotta get involved. This isn't just like activist speak. You can make a fucking difference, the person that ends up in a position to actually exercise their executive authority, executive clemency, whether it's a governor or a president, you should be a little more invested. I mean, I had this situation, I gave this guy every benefit of the doubt, and I thought I made a breakthrough, and ... I mean, thi- this is almost sadistic, I think, and I'm sure I'll get a bunch of hate mail about this and I could really give a shit. I went through this process with Governor DeSantis in Florida, and I think he was actually fucking with me, to be honest with you, and he listened to the case as a favor, and there's a public hearing of the clemency board, and this guy's name is Michael Giles, and again, read the transcript. Um, as a matter of fact, I brought a passage to read here. This is a- another mind-bender. This guy's in the Air Force. He is in Tampa. He ends up, um, taking leave for the weekend and goes up from Tampa to FAMU in Tallahassee. Never been there before. He has a firearm that he's licensed to carry. He actually went into a police station to get his carry license. Military guy, never been in trouble in his life. Goes up to Tallahassee and a massive fight breaks out in this club where they're at. Literally zero testimony that he has anything to do with this fight.... fight spills out into the parking lot and it's being instigated by one guy. And this guy that's instigating the fight was thrown out of the club and his own friends testified in the trial, "We were afraid he was going to hurt someone bad." My client, Michael Giles, ends up in a car with the people he came there with waiting for the person that had the keys to the car to come out and emerge from this melee. And this fight is going on all around him, people testified they were petrified, and he takes his gun and puts it in his pocket. He's standing there, like on the outskirts of this fight after he gets out of the car and goes to look for his friend that has the keys to the car. The car was left unlocked, but they couldn't leave because there was no ignition key, and he gets sucker punched. And the guy that punched him says, "Yeah, I f- I looked for the first person I could." Hey, don't take it from me. Here's what he said at the trial. Here's what he said at the trial. First of all, they're... his friends are testifying, this is from the trial, right? That he was a- that this man was acting, quote, "Crazy." That they were afraid he was going to, quote, "Attack someone." He was excited and acting crazy and talking and cursing and upset and agitated. "Were you concerned that he was gonna attack someone?" Question. Answer, "Yes, I was." "Or get in a fight?" Answer, "Yes, I was. That's why I told him to leave." And that's why he was told to leave the club, because he was wanting to fight someone. Isn't that correct? Witnesses testify, que- question, "You saw Courtney Thrower," this is the guy that punched my client, "jump on the individual with the plaid shirt, didn't you?" The guy with the plaid shirt is my client, "Yes, I did." "Your testimony is Courtney Thrower leapt and attacked Mr. Giles from the front." "Yeah, I was... That was the thing." "Courtney then leaps toward Mr. Giles and takes a swing at his face." And it goes on and on and on, that he took a running start, left his feet, and punched my client in the face. And, look, there's a melee going on, so he's on the ground after getting punched and, and the person that punched him didn't hold back. He was asked at the trial, question, "Mr. Thrower, is it your testimony that you ran with your entire body to strike this person?" Answer, "Yes." Question, "So you, at a full run or a sprint, used the weight of your body to impact this person in the head?" Answer, "Yes." Question, "Was it your intention to knock him out?" Answer, "Yes, it was." Question, "And is there any doubt in your intention?" Answer, "No." Question, "Had this person actually done anything to you at any time whatsoever?" Answer, "Physically, directly, no." Question, "Was it your intent to hurt this individual?" Answer, "Yes, that's normally what you do when you punch someone." So on those facts, as my client is laying on the ground and there's a melee going on where people are getting punched and kicked, is he justified at that point to take his gun out and shoot in self-defense? He shoots this guy in the leg and fragments of the bullet hit two other people. That's the case. That's it. He is sentenced under Florida's mandatory minimum to 25 years in prison, 25 years. He's been in for 15 years.
- NANarrator
(inhales)
- JDJosh Dubin
I have gone to visit him. He is the only client that I've ever represented that has never got a ticket in prison. What is a ticket? You know, f- didn't listen to a s- corrections officer when they said, "Get against the fucking wall." Um, you didn't have, uh, you know... You didn't follow the rules, you didn't do the... Uh, not a ticket. So various powerful people that know the governor finally got him to listen. Now, before I got involved in the case, the family was told that the governor was prepared to grant him clemency and traveled to Tallahassee the day that they thought he was gonna get released and were told on that day the governor changed his mind. So I knew this all going in. (smacks lips) I went and I appeared at a clemency hearing, and I was as, um... What do they say? You're, um... The word's escaping me. When you're not subservient, but you're... Tsk. I'm, I'm trying to think, articulate it the right way. I mean, I was not only respectful, but, you know, I understood the gravity of what I was asking for. This is a governor that has never granted clemency, commuted a sentence to someone that was currently incarcerated-
- NANarrator
Hmm.
- JDJosh Dubin
... and, you know, he went through a laundry list of things that he would like me to do.... his parents live ... Michael Giles' parents live ... he's, that's the name of my client, Michael Giles. His parents live in Georgia. Could you con- the governor, could you get in touch with the State of Georgia ... I mean, this is all at a public hearing, it's online ... and see if their governor has any problem with abiding by the terms of release? Re- you want me to contact the governor of ... okay. Submit a supervised release plan that is exhaustive and runs all the way through the term that he would serve out his incarceration, so that he should be on supervised release for another 10 years? Contact this one, contact that one. So, I learned, on good information, that the governor was like, "He'll never be able to get all that done." I got it all done. I had people help me. Went to the governor, spoke to the governor in Georgia, and he said, "Yeah, of course. We'll abide by it." There's something called the Interstate Compact. States have to abide by each other's supervision requirements once someone goes from one state to another. This had the support of John Ashcroft, Mike Mukasey, right-wing Republicans that otherwise wouldn't support this sort of thing. It was like, I had a list of, like, 40 people, former US attorneys. It got so much that the, the head of the Florida Commission of Offender Review, um, they gave him a positive recommendation to get out. Super rare. The attorney general was in support. Everyone was in support. A week before, I was told, "We're gonna grant him relief." They actually had me speaking to the prison to transport him up to the clemency hearing. We were down to whether he would be able to change into a suit. Because at the public hearing, Governor DeSantis said, "I wanna actually look at him eye-to-eye."
- JRJoe Rogan
(laughs) .
- JDJosh Dubin
And at the last second, for no fucking articulated reason, he said, "You know what? I've changed my mind." That's, that is brutal. It's, it's, uh, evil, in my opinion. And it's precisely why, you know, sometimes the king has to show mercy. And it's precisely why this, this guy is not very popular, I don't think. And, and I ask this because it's relevant. Does Michael Giles get prosecuted if he's not a tall Black man? I don't think so. The prosecutor that prosecuted him ... I'm not calling him anything, I'm giving you the facts. The prosecutor that prosecuted him went through a DOJ investigation because something was found in his office targeting Hispanic residents for harsher punishment. A whistleblower took a photo of it. It was a memo hanging over a water cooler.
- JRJoe Rogan
(laughs) .
- JDJosh Dubin
And it's all over the place, it's all online. You can read about it. And he had to enter into some agreement with the Department of Justice, so-
- JRJoe Rogan
How was it phrased?
- JDJosh Dubin
How was what phrased?
- JRJoe Rogan
How was, this, the, the determination to prose-
- JDJosh Dubin
If, if prior criminal history or Hispanic, and then it has an arrow-
- JRJoe Rogan
Or Hispanic?
- JDJosh Dubin
Oh, yeah, you can pull it up. His name-
- JRJoe Rogan
So, prior criminal history is the same as just being innocent and Hispanic?
- JDJosh Dubin
Oh, yeah. This is, this is the South.
- JRJoe Rogan
Wow.
- JDJosh Dubin
I mean, it's, it's out there. His name is, his name is Jack Campbell. Um, I mean-
- JRJoe Rogan
That is so crazy that they would-
- JDJosh Dubin
There's a-
- JRJoe Rogan
... not just, but actually print-
- JDJosh Dubin
There's a p-
- JRJoe Rogan
... that prior criminal history is equal to being Hispanic.
- JDJosh Dubin
I don't think it said equal. I'd love, I'd love to see-
- JRJoe Rogan
But it's the same. Or Hispanic.
- JDJosh Dubin
There's a w-
- JRJoe Rogan
Might as well be saying equal.
- 1:30:00 – 1:42:55
Yeah. And, and so…
- JRJoe Rogan
extensive criminal history, and/or Hispanic. And Hispanic is in capital letters.
- JDJosh Dubin
Yeah. And, and so this, this whistleblower takes a picture of this, and it leads to a DOJ investigation where he agrees, he apologizes publicly, and he agrees to go into some training program and have the prosecutors that work for him in a training program for racial sensitivity. So, you think ... you know, I deal with the facts and I deal with what I see every day, so should it beg the question, is Michael Giles getting charged with this crime under the facts as I just told you, with the, the testimony that I just read to you? And they said, "Well, he ran initially. And when the police initially spoke to him, he, he didn't say he shot the gun." He's a Black man in America. Later that night, he admitted it. So, what does it make a dif- and what does it make a difference anyway? The guy was attacked.... with a running start, someone leaves their feet and punches him in the face. Isn't 15 years enough? 15 years? He's had to go through ... I mean, you read the letters from his kids, who have now grown up without him-
- JRJoe Rogan
(sighs)
- JDJosh Dubin
... your, your heart ends up in, in 50 million pieces. And you know, so a guy like G- Governor DeSantis, I think it's like ... there's no humanity there. And you know, the craziest part about it is that you never know who you'll meet and why this is all, to me, human rights issue. The only, um, person that gave me a sympathetic ear when I would go to Florida, before I lived there, when I was still living in New York, and talk about clemency cases was Nikki Fried. I think she was the Commissioner of Agriculture. And she ran against DeSantis in the last gubernatorial election and she's ... Like, the fascinating part about it is that this is like a woman that's dedicated herself to public service and she's a major marijuana advocate. Legalizing marijuana has been her mission for so many years. She's on the board of NORML. She'd be a, an awesome guest because she became super unpopular in Florida (laughs) because of her stance on legalization of marijuana. And, um, you know, she was attacked over it, about how weed is a gateway drug. Somehow, in the minds of, you know, people that don't get it, that it's l- some, like, pathway to heroin addiction. And, you know, medicinal marijuana, you know, cannabis for healing, all of those things, she's been a major advocate for. And she told me, "He's, you're being strung along," after she was out of office. She's now the head of the, I think she's the head of the Democratic Party for Florida. Wonderful woman. She's like, "You're gonna get strung along." I said, "No, watch. Watch. I'm gonna be the first one to get clemency from someone in pris-" And he still can do it. Why won't he? Fuck knows. And it's ... You know, I have to l- to talk to Michael's mom and I have to talk to him, and it's like, you know, you run outta words. And yeah, it's not, not just is this a dirty business. Heartbreaking, you know? It's, um ...
- JRJoe Rogan
Oh, that's gotta be particularly par- hard for you. You are a very sensitive guy. It's, which is odd. You're a very empathetic guy, which is odd for a lawyer. You know, usually lawyers eventually develop some sort of a shell.
- JDJosh Dubin
(laughs)
- JRJoe Rogan
Just don't let enough in. You get hurt too many times. Even if you start out empathetic, you eventually develop a thick skin.
- JDJosh Dubin
I, listen. I'm a crier and I don't hide that, and, uh-
- JRJoe Rogan
Well, that's why you're able to do the kinda work you do, 'cause you still are sensitive to this and you still are empathetic despite all the shit you've seen.
- JDJosh Dubin
Well, I mean, look. I have to be ... I don't think you're go- ... I used to think that it was something to shrink from. In other words, that ... Because it g- it becomes, um, it becomes a heavy cross to bear when you start wearing other people's hurt and emotions and, you know ... I, I, I've found myself sometimes, um, inferring that people feel a certain way when they don't, and I have to make sure that I'm careful about that. I mean, my son, Carter, is like, he's 13. He's gonna be 14 in April. And I sometimes feel like ... I have to be careful with the empathy because sometimes I'll be reliving some traumatic event from my childhood, and I'll think, "Oh, he must feel this way at this point in time," at 13, and I'm imputing an emotion to him that isn't there.
- JRJoe Rogan
Mm-hmm.
- JDJosh Dubin
And sometimes I'll do that with a client or their family, um, and I've, I've gotten better at it. But when you have to deliver hard news or bad news because there's so many ... These, these exonerations, the commutations, the pardons, they're like each one of them is its own miracle. Each one of them is ... It's so hard, so hard to get it done.
- JRJoe Rogan
I gotta pee. We'll be right back. So today, right before we started this, uh, Trump rescheduled marijuana. So it's now Schedule III.
- JDJosh Dubin
Hmm.
- JRJoe Rogan
So it's in the same category as Tylenol.
- JDJosh Dubin
(sighs)
- JRJoe Rogan
Which is interesting. Um, that's a compromise, right? It should be legal and regulated.
- JDJosh Dubin
Well-
- JRJoe Rogan
That's what I think.
- JDJosh Dubin
Isn't, isn't there been a stain on Tylenol, though, under this Administration?
- JRJoe Rogan
Sure. Yeah. Sure. It's been ... Acetaminophen is responsible for at least 500 deaths a year. Um, I read a horrible case about a lady who had COVID-
- JDJosh Dubin
(coughs)
- JRJoe Rogan
...and she was struggling, you know, and in pain, really hurting.
- JDJosh Dubin
Tylenol with codeine.
- JRJoe Rogan
Kept taking Tylenol.
- JDJosh Dubin
Slight difference.
- JRJoe Rogan
Tylenol is co- ... With codein? Yeah. Codeine?
- NANarrator
That's in Schedule III.
- JRJoe Rogan
Oh, okay. Tylenol with codeine.
- NANarrator
(clears throat)
Episode duration: 2:50:45
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