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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Those of you who read The New York Times Magazine may recall the cover story written by our next guest last summer called I Write About the Law, But Could I Really Help Free a Prisoner? That story detailed the relationship between reporter Emily Bazelon and Yutico Briley. Briley wrote a letter to Bazelon from prison in 2019, a letter that she admits she almost ignored.

When she read up on Briley's case eventually, it stuck out as quite troubling. At the age of 19, he was sentenced to 60 years in prison with no possibility of parole for an armed robbery in which nobody was hurt. The case relied on a single eyewitness, the victim of the crime. Briley was the only suspect presented to the victim who despite describing his robber as having a different build and different facial hair than Briley's said he was a match.

Bazelon shared Briley's case with her sister Lara. Some of you know of Lara Bazelon, the professor at the University of San Francisco School of Law, where she runs a criminal justice clinic. To quote the story Lara could see casual indifference as she put it on the part of the police, the prosecutors, the judge, and even Briley's own lawyers. The case passed from hand-to-hand with little regard for the stakes for Briley, it seemed. That's a quote from Lara Bazelon.

With the help of Emily and Lara Bazelon, Yutico Briley was exonerated, [unintelligible 00:01:47] and released from prison in the spring of 2021 and Emily knew more letters from prison would come, which is why she and fellow journalist John Lennon, not that John Lennon, started the Prison Letters Project.

With me now is Emily Bazelon herself, staff writer for The New York Times Magazine, co-host of Slate's Political Gabfest podcast, Truman Capote fellow for creative writing and law at Yale Law School, and author of the book, Charged: The New Movement to Transform American Prosecution and Mass Incarceration. If we have time, we'll also touch on some breaking January 6th investigation news with Emily. Emily, welcome back to WNYC. So good to have you on and wow, about the prison letters project.

Emily Bazelon: Well, thank you. I'm so glad to be here to talk about it with you. Thanks for having me.

Brian Lehrer: You had this one case that we just described in which someone was exonerated. How did that lead to letters from more prisoners and you framing this in an ongoing way?

Emily Bazelon: Well, people often write to journalists and other people they think might be able to publicize their cases, to Innocence Projects, to other lawyers when they're incarcerated. Yutiko Briley, when he wrote to me, he had written to 50 or 60 other people. There is no national clearinghouse for those kinds of letters and honestly, most of them go unanswered because it's just not really clear what to do with them exactly. I've gotten other letters like this in the past that I haven't answered.

Yutico's letter, though, had a profound effect on me and the idea of all the other letters being unanswered started to haunt me. That's why I launched this project and I am really lucky to have support for it from Yale Law School and a project of a poet and lawyer and amazing activist named Dwayne Betts who started a project called Freedom Reads to bring libraries to prisons. He and I both are moved by the letters that we get from people who are incarcerated and we thought, "Well, if other people could see what we see and read what we read, maybe shining that kind of light could help bring more resources to the plate of people who are on the inside."

Brian Lehrer: Were you tempted when you first read Yutico Briley's letter to dismiss it as like, "Yeah, yeah, yeah, everybody in prison says they're innocent."

Emily Bazelon: Yutico's letter had two things in it. It had a really clear description of why he was saying he was innocent. It talked about a single eyewitness to his crime. It was in the middle of the night. I wondered immediately whether there was a problem of cross-racial witness identification because I know that that is often a vulnerability in cases like this. Yutico also had been sentenced to have 50 years in prison without parole for a crime in which, even by the facts that the state admitted, no one had been physically injured. It was an armed robbery, and that's a serious offense, but there were no physical injuries to the victim.

I just thought in the beginning, "Okay. Well, I don't know if this person is innocent or not, but that is a really, really long punishment for this crime." That in itself makes me want to look into this case.

Brian Lehrer: How common in your experience as a law professor and somebody interested in exoneration of the wrongfully convicted generally, how common are cases like Yutico Briley's in the context of the faultiness of human memory and reliance on eyewitness testimony? I see you wrote in the magazine article, cross-racial IDs like in Briley's case make up more than 40% of misidentifications. Does this case play into patterns of wrongful convictions that people should know about?

Emily Bazelon: Yes, it absolutely does. What happened in Yutico's case is that there was an armed robbery on the street in New Orleans and it was in the middle of the night. The whole thing took about two minutes. It was dark. Then the police picked up Yutico the next day, almost 24 hours later, totally unrelated. Then they took him to the police station, they put him in handcuffs, they drove the victim up to the parking garage of the police station, they brought Yutico out, they shined a flashlight in Yutico's face and they said to the victim of the armed robbery, "Is this the guy?"

That is an ID procedure. It's called a show-up that just hearing about it, you could see what the problem would be versus that procedure and a lineup where you're being shown a group of people to pick from and the cops show you someone in handcuffs, they're obviously signaling, "Well, they think this is the guy who did it." That was really the victim testimony that convicted Yutico. It's especially a problem. We just know this from a lot of psychology experiments when a white person is trying to identify a black person or vice versa. We just aren't as good at distinguishing facial features across race. Those were all disadvantages that Yutico faced and that led to his wrongful conviction.

Brian Lehrer: Listeners, we can take some phone calls. Did you or someone in your life ever get wrongfully convicted and exonerated or not? Have you heard of the Prison Letters Project yet? We'll explain it more and describe how people can see the letters and some of the commentary around the letters that Emily and her colleagues are aggregating. Does it resonate with you personally?

Do you have questions about this for our guest, Emily Bazelon from The New York Times and Yale Law School, and The Slate Politics Gabfest? Maybe you yourself have written a letter to a journalist from prison hoping to get some attention to your case and maybe it went read, maybe it went unread. 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer. The Prison Letters Project, I see, is a collaboration between The Times Magazine, Freedom Reads, an organization that brings literary programs to prisons, and the Law and Racial Justice Center at Yale. Can you talk about what each of those institutions brings to the project?

Emily Bazelon: Yes. Freedom Reads is hosting us on their website, which is great and Dwayne Betts, who I mentioned, has really helped me think through the project. He also connected me with John J. Lennon, who is a prison journalist, an excellent journalist. He's written other stuff for The Times, for Esquire Magazine. He is going to be the lead writer on a newsletter that will be periodic.

We published the first issue of it and The Times Magazine is sending it out. I know that if John were here, which I wish he was, he would want us to say and make clear that we're interested in claims of innocence, but that's not all we're interested in. We care a lot about problems of excessive punishment. We're also eager to highlight the stories of people who say, "Yes, I did this crime, but I've been on the inside for a really long time, and here's how I'm trying to make the case for myself that it's time for me to come home." If you have a story like that or you know someone like that, you should absolutely feel free to write to us.

Brian Lehrer: How many letters have you gotten so far?

Emily Bazelon: Well, I have hundreds of letters from the time when my book came out and since then. We've been trying to be very careful, though, about putting them into this database we've created online. We want to make sure we have people's permission to publish everything we publish about them. We also want to make really clear to people that we're not providing legal representation. There's a huge gap between getting a letter and writing back and publicizing it and then actually stepping in and either representing someone or writing a longer journalistic story about them. We very much acknowledge we're only doing this one part of the puzzle and we're hoping that more resources will come in for incarcerated people through this project from other people as well.

Brian Lehrer: Lisa in Forest Hills, you're on WNYC with Emily Bazelon. Hi, Lisa.

Lisa: Hi. Thank you so much for taking my call. I just wondering is there anything if someone gets wrongfully convicted, is there either a way to compensate them for having to go to jail for something they didn't do, and/or are there consequences for the law enforcement that obviously didn't do their job correctly if that's the result.

Emily Bazelon: Those are great question. Some states have laws where if you show wrongfully convicted you get some standard compensation. It's usually like $30,000 a year for every year you were on the inside, not a huge amount. They have those laws because they're trying to prevent really big jury awards which some people have been able to win in court like millions of dollars. There are a lot of states though that make it really hard or almost impossible for people who've been wrongfully convicted to get any compensation.

This happened to Yutico. You get out and there's no money and no real help from the state which is a big burden that you have to carry. You also asked about accountability for the police or prosecutors. That is something that is very unusual.

I can only count a couple of cases of prosecutors actually going to jail themselves even when there's a lot of evidence that they deliberately varied evidence. That's just really really unusual. We have these rules these legal rules from the Supreme court that provide what's called absolute immunity for prosecutors.

The police have qualified immunity from getting sued prosecutors basically anything they do that relates to their job. They do not personally get sued and it's become very hard even to sue a city or a county or a DA's office for a wrongful conviction.

Brian Lehrer: Lisa, thank you. Amy in Baldwin. You're on WNYC with Emily Bazelon. Hi, Amy.

Amy: Hi. How are you? Thank you for taking my call.

Brian Lehrer: Sure. What would you like to say in this call? Go ahead.

Amy: Well, I absolutely love this piece and I have to bring to your attention that I have been writing a death row inmate in Florida for the last two years. It's through the death row support project and it's a group that's in Liberty Mills Indiana. When I first started writing I didn't want to know what this person had done. I just wanted to know who they were now.

It's been an amazing experience. It almost brings me to tears too because I ultimately did learn of this person's journey and he does claim that he's innocent. In Florida, in the 1990s if you were a person of color brought before a jury of all white people there is no way you weren't going to be given a fair trial.

I've really gotten close with this person and his sister Betty who's a retired policewoman and I've been trying to reach Brian Stevenson for the last two years I write him I think every month. I just want you to know that there is this great death row support project and it is available if anybody wants to join in.

Brian Lehrer: Amy what do you get from corresponding with his death row inmate?

Amy: Well, I get definitely a perspective of what a person's life is like to be forsaken. That word forsaken is the reason why I wanted to do it because I thought to myself what is it like to be forsaken? I've just learned friendship and empathy. I am a registered nurse and a librarian. I just wanted to connect with a person who lives their entire life being forsaken. Like I said for the longest time I told this person I don't want to know what you did or whether you were guilty or not.

I want to know who you are now. We've really become friends. We're two totally different people from different backgrounds, but we connect in a human way. What is his life day to day being in a cage essentially? What is that like? It also makes me think how grateful I am. Like if I complain about having to go food shopping and make dinner, my God.

Brian Lehrer: Amy, thank you. What a beautiful and moving story. Thank you. Thank you very, very, very much. Wow, Emily about Amy. I wonder if one of the goals of the prison letters project is that some of your readers might strike up correspondences with some of the prisoners who write to you.

Emily Bazelon: 100%. I love that story. I'm so glad that we're talking about this because being a pen pal to somebody who's on the inside is something any of us can do and it can be tremendously meaningful. Amy was talking about how it's meaningful to her. It's also meaningful to people who are behind bars and really want that sense that somebody out there is thinking about them and reading for them.

Amy mentioned the organization that she is volunteering through. There's also another organization called MISS, M-I-S-S Mothers of Incarcerated Sons Society. It's @mothersofinmates.org. I don't think you actually have to be a mother of someone who's been incarcerated to volunteer for it. You can also find links to other pen pal organizations through that site. I absolutely hope that is something that comes of this project.

Brian Lehrer: Vernon on Staten Island. You're on WNYC. Hi, Vernon.

Vernon: Hi, Brian. How are you doing?

Brian Lehrer: Doing good. What's you got for Emily?

Vernon: Deterrence is part of the constant rhetoric of tough-on-crime. Capital punishment will deter murder and what have you. What are the things it seems to me the only way to deter prosecutorial malfeasance and malicious prosecutions is that for the exonerated to be paid more money than they're being paid for having their lives stolen. There seems to be almost across-the-board hostility towards these kinds of restorative actions. I heard a little bit of what she was saying that in certain states they literally don't give the exonerate any money when they've taken somebody's life away.

Brian Lehrer: Emily?

Emily Bazelon: I also find that really troubling. Can you just think about how hard it is to come out of prison and rebuild your life? Often you're dealing with a lot of trauma and the psychological after-effects of having been essentially a victim yourself of the system because you were punished for something you didn't do. It just seems very rough that we don't do more to help people when they come out.

I think we can broaden this to people coming out in general because even if you committed the crime, you may have spent a very long time on the inside. We have really harsh punishments in the United States. Also you coming back and getting a job, finding a good place to live, becoming a productive citizen that's in everybody's interest because we don't want you to cycle back into prison. That does not help anybody. Yet that happens a lot. Part of the reason is that we are incredibly stingy and almost cruel in the way that we treat people when they're coming back instead of really trying to make sure that they have the support they need to have good lives.

Brian Lehrer: Vernon, thank you. Emily, Sometimes victims of wrongful conviction do get paid. I'm thinking of The Central Park Five the city did make payouts to them. What determines if it happens or it doesn't happen?

Emily Bazelon: Part of it is that you need a good lawyer. Part of it has to do with your state's laws. Some states, for example, in Louisiana one of the reasons Yutico couldn't get any money was that if you have done anything to quote contribute to your incarceration, well, then you're out of luck. Even though Yutico didn't commit an armed robbery, he was also separately convicted of gun possession, nothing to do with the armed robbery, but when the cops picked him up the next day, he had a gun and he wasn't supposed to have it. Because of that separate act, he couldn't recover. That's a way that States just make it very hard. There's something, I think odd at least to me about a system in which if you have a strong claim and the State law is on your side, and you have a good lawyer, you can get millions of dollars, but if those things aren't true, then you get nothing. It's very uneven.

Brian Lehrer: Your Prison Letters Project released its first newsletter on September 2nd. How can people get it and become part of this community?

Emily Bazelon: They can sign up for the New York Times Magazine Newsletter, which is easily available on the New York Times website. You'll get other newsletters along with ours, but our newsletter is great. It's a good thing to sign up for more generally, I think. John Lennon, with a little bit of participation by me and some editors, will be providing more content as we get interested in more of the stories in the letters that we want to tell.

Brian Lehrer: All right. I told the listeners at the beginning of the segment that if we had time, you would give us a brief legal take on these developments that The Times broke last night on the January 6th investigation. Apparently, something like 40 subpoenas issued to people who were Donald Trump associates in some way or another, just in very recent times like the last week, I think I saw a significant amping up of the investigation even as we're all focused on the classified documents issue with Trump, those of us who follow these kinds of things.

Two people even had their cellphone seized by the government now in the January 6th investigation. How much can you tell from that reporting what's new here and what they're honing in on?

Emily Bazelon: I think this is a pretty big deal, 40 subpoenas in a week. Some of the people being subpoenaed were legal advisors or lawyers for Trump like Boris Epstein, who is an in-house counsel helping to coordinate Trump's legal efforts. You also have Dan Scavino, who was the social media guru guy helping Trump tweet when he was allowed to do that.

The idea that The Justice Department sent all these subpoenas out at once, I think really shows that its own inquiry is escalating. We knew that The Justice Department was investigating the fake elector's scheme.

These subpoenas though also related to the January 6th rioting at the capital. Until now there have been a lot of questions is The Justice Department only going after the people who actually showed up that day and breached security at the capital, and committed crimes there, these subpoenas seem to be much more about the machinations that led to the assault on the capital. That's where you see legal vulnerability for people who are surrounding Donald Trump or potentially for Trump himself.

Brian Lehrer: All right. We will come back to this in more depth in our future segment. For now, we thank Emily Bazelon from the New York Times Magazine and Yale Law School, and Slate's Political Gap Fest and author of the book Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, and now curator of the Prison Letters Project Newsletter.

Emily, congratulations on this. What a worthy thing for you to devote your time to you could be doing so many different things and you're doing this. Congratulations, and thank you for sharing it with us.

Emily Bazelon: Thanks so much for having me, Brian. I really appreciate it.

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