This is the second episode in the miniseries about the Innocence Files. Host Rebecca Lavoie (Crime Writers On..) speaks with returning guest Academy-Award nominated director Liz Garbus (Lost Girls). Liz's block of episodes investigates the misuse of eyewitness testimony and how a person can be swayed into pointing to an innocent bystander.
This is the second episode in the miniseries about the Innocence Files. Host Rebecca Lavoie (Crime Writers On..) speaks with returning guest Academy-Award nominated director Liz Garbus (Lost Girls). Liz's block of episodes investigates the misuse of eyewitness testimony and how a person can be swayed into pointing to an innocent bystander.
Rebecca Welcome to You Can't Make This Up, a companion podcast from Netflix.
I'm Rebecca Lavoie. And I'll be hosting this week's episode. Here on You Can't Make This Up, we'll go behind the scenes of Netflix original true crime stories with special guests. This is part two of our mini series about The Innocence Files, that documentary series that explores three major causes of wrongful convictions. It was made in consultation with the Innocence Project.
In this episode, I have a phone call with Academy-Award nominated director Liz Garbus. Liz's block of episodes investigates the misuse of eyewitness testimony and how a person can be swayed into pointing to an innocent bystander. We'll be talking about how a high schooler got caught up in the 90s gang culture of Southern California and how an unexpected partnership led to the freeing of a man in Virginia. There will be spoilers, so make sure you've watched "The Witness" episodes of The Innocence Files. We also recorded this episode in our respective homes, so we appreciate your understanding of the change in our regular audio quality. Now here's my conversation with Liz.
Clip (Exonerees) I went to prison at the age of18, and I ain't seen streets until the age of 46. When I got out of jail, I took my shoes off and just walked around the yard. Twelve years, I haven't touched no grass. I wonder what would have happened if my incarceration wouldn't be part of my story.
Clip (Lawyers) I wouldn't do this job if I didn't think that can be fixed. I wanted him to know there was someone out there that was fighting for. I think the best thing that a lawyer can do with their license is get an innocent guy out of prison.
Rebecca Liz Garbus, filmmaker and director behind some of these episodes of The Innocence Files. Thank you so much for talking to me.
Liz I'm so happy to be here.
Rebecca What was it that attracted you to this project and also to the cases that are covered in your episodes in The Innocence Files?
Liz You know, I've been exploring issues in the criminal justice system for my entire career. You know, my first feature doc was a film called The Farm, where we focused on the stories of six men serving life or death sentences in Angola Prison in Louisiana.
When Netflix approached me and said they were kind of doing this overall deal with the Innocence Project, it was sort of like they had me at hello. They had me at Innocence. You know, I have always admired the work of the Innocence Project. I have seen the stories of exonerees. There seemed to be nothing more noble to do with one's life than what these lawyers were doing, you know, fighting for years and years, sometimes decade long battles to get an innocent person out of there, the biggest nightmare being in prison for something you didn't do.
Rebecca I’m curious about your thoughts about eyewitness testimony. I think that anybody who, you know, grew up watching Law & ORder or any sort of procedurals or even, you know, reading John Grisham books or being exposed to criminal justice through the pop culture lens. Eyewitness testimony probably next to video is the thing that's always like the, "Oh, yeah, that's it" moment in court. Right? You get somebody to say "that's the guy". Is it at all surprising that eyewitness testimony turns out to be just as flawed as many other cogs in the prosecution that we've been hearing about as wrongful convictions have kind of come to the forefront?
Liz Yeah, I mean, look, somebody is a witness or victim of a crime, and they point across that courtroom and they say “he did it”. I mean, what's more powerful than that? You know, in the case of Thomas Haynesworth, you know, one of the stories we profile in our episodes, he was accused of rape. And here was his victim, you know, pointing across that room, saying, “that's the guy. I have no doubt in my mind”. And so why would that not convince a jury? It would convince me. Common sense would say that's it, "it's the guy," right? And you know, you really have to unpack how these things go wrong for people to understand why this is one of the most common factors in sending innocent people to prison.
Rebecca You have two very different cases of eyewitness testimony here, as you mention. You have Janet, who was herself the victim. And then in the first case that you profiled the first two of your episodes, you have Frankie Carillo, who was fingered by another guy named Scotty Turner, who the police led on a journey of witness identification. I'd love you just to talk about that, just the idea of how police departments in this case, this particular cop, led Scotty on that journey and how that ends up being credible somehow in a case in court.
Liz Well, you know, the Frankie Carillo's episodes were directed by a great director, Jed Rothstein. And I think...Let's step back for a second. Right. What cops want, what the criminal justice system is geared towards, is gaining a conviction. And it's adversarial. Prosecutors want to win. That is how the entire system is set up. It is set up towards closing cases and getting the guy. So when there is ambiguity or when somebody is not sure if it's somebody, how is it that police can kind of nudge them there?
And, you know, we have seen over and over again that, you know, when police show somebody six photos and they say, OK, do you see the suspect on this piece of paper? They say no. If they say to you, “Well, you know what? Your suspect, the guy who did it is on this is in one of these six photos,” They will choose somebody. That type of suggestion that one moment in time, which I'll call the Original Sin, then sets off a chain of events which is nearly impossible to reverse. In the case of Frankie Carillo, Scotty Turner, really couldn't see the perpetrator, but was pressured by these cops who were part of their own gang, the Lynwood Vikings. And, you know, there were there were kids who they were policing and they had photo arrays of all of these kids. Frankie had just been.... Someone had just taken a picture of him when he was hanging out somewhere and they threw his picture into a photo array. And Scotty had heard some chatter in town about who might have done it. And he went in and picked them out. And then five other witnesses, you know, so-called witnesses after him went and corroborated his story.
Later, it's very clear that Scotty really couldn't see who the perpetrator was, who the gunman was, and that there was pressure exerted to make those IDs. And to go back to the larger point, the drive towards conviction, despite facts which may point in different directions. In the case of Frankie Carillo, while Frankie was on trial, there was another defendant sitting in the hallway of the courtroom who wanted to come and say, “you know what? This was one me who was going to confess”. But the prosecutors wouldn't even accept that evidence. So determined were they to close this case with the guy that they got. And they thought they could gain the conviction. They didn't want it derailed. You know, and that's a ruined life. Right. There was a murder victim, Donald Sarpy, and then there was another victim, Frankie Carillo.
Rebecca It was really interesting to me to see how this case kind of unraveled. I mean, there's a bigger picture look here at the crime situation in Los Angeles at the time. And there's also a thread here of a gang within the police department that's operating with its own set of rules and its own biases.
Clip There was the most oppressive and criminal law enforcement gang that I think we've ever known in Los Angeles County called the Vikings. A Federal judge, in a published opinion, called the Vikings a gang within the Los Angeles County Sheriff's Department, a neo-Nazi gang, in his opinion.
Rebecca And it just made me wonder, because I think this all the time when I hear about, read about watch films with, you know, potential wrongful convictions. And a lot of times the cops are kind of at the center of it. Are these guys waking up in the morning thinking, how can I screw people? Or are they waking up in the morning working in a system where they are incentivized to behave this way? I mean, is there is it one or the other? Is it some of both? In this case, what do you think?
Liz I think they're incentivized to gain convictions and close cases with some speed. And what that means is ignoring oftentimes incompatible sets of details which might point to a different perpetrator. You know, I think it would be a stretch to say they wake up in the morning and think, “oh, we feel like ruining Frankie Carillo's life”. I think no, it's more “we need to close this case”. And yes, you're right, the Lynwood Vikings were a known group of cops who some might say terrorized local kids and they were able to close cases because of some of these tactics.
Rebecca Why do you think you know, Frankie's father? He had an alibi. His father said we were together. And yet that wasn't enough. And of course, in the film, we learn now when Frankie's father dies. Not only does he lose his father while he's incarcerated, he also loses his very rock solid alibi. What bias does that speak to? I mean, of course there's the thing where a parent wants to protect their kid. But Frankie's father, by all metrics, is way more of like a legally more standup guy than Scotty Turner. Right?
Liz Right. Who had something to lose because he was constantly being picked up by cops. Part of the problem is oftentimes when people aren't in one place, where are they? At home. And if you live with your parents, they're going to be your alibi, you know? So most of the time when you're not somewhere else, you're home. Yeah. You might be at the office or you might be at a party or something like that. But more often than not, your home. And those alibis are the ones that people find it easier to rationalize away. Understandably so. However, it's often the case that you were at home. And when you live with your family, those are your, those are your alibi witnesses.
Rebecca Frankie has, if you just met him today, what appears to be a really beautiful life. He has a beautiful home, beautiful family. He seems very much at peace with his past. He has, you know, a really powerful voice when it comes to telling his story. But he also just seems so... the weight of this. I mean, all of the defendants in all of the parts of this documentary, just the weight that they're carrying is visible. It's just so visible. Can you just talk about, you know, your experience, you know, making films like this where people are carrying this kind of weight and what it is like to talk to them and just to see that in person when you're interviewing them.
Liz Yeah, I agree there is a heaviness. You know, you've survived something. I guess it's almost akin to, you know, surviving a near-death experience. But it's a 20 year experience or 30 years experience. And I think it does change you. I think with both Frankie and with Thomas, there is a calm. There was an ability to forgive . You know, there are people who will use their time in prison well. And I think both, you know, Frankie and Thomas are examples of people who gained wisdom, educated themselves about the criminal justice system and never gave up hope. But you can feel those years weighing on a person. You know, it's like Rip Van Winkle waking up from a thousand year sleep. You come out to a changed world, to children who have grown up, gotten married or found their first jobs. You know, you've met and you haven't seen them since they were babies. You've lost loved ones. So it's a very profound experience that changes a person.
Rebecca Well, speaking of that, I mean, Janet Burke, the rape victim in Episode 6, is also carrying a big burden. You know, she identified the wrong man and she is now making it a part of her story to talk about that.
Clip (Janet) Meeting Thomas for me was a huge part of my healing. But knowing what I did to this incredible human being sitting beside me, it’s tough. It’s tough. Every day it harps on my heart that I was so sure that it was him.
Rebecca What was it like talking with her?
Liz You know, Janet Burke is incredible. She was raped at knifepoint when she was 20 years old. It was a terrible assault, you know, and then she was manipulated by a system that was motivated to, again, close a case rather than do the hard work of investigation. Then Janet was revictimized all over again. In any case, I admire Janet enormously. And not only was she the victim of a heinous crime, but then to have the weight of Thomas's incarceration at least somewhat on her back, you know, it's a terrible thing to live with.
Rebecca You know, I often see how victims and the families of murder victims aren't able to accept the overturning of wrongful convictions. It’s a very, very common situation. They're very married to the idea of this story told in court. They're married to the idea of the closure they thought they had. And I don't think it's their fault. I mean, I do think that one of the consequences of the adversarial justice system is the narrative is the story that they have then packed up, held inside of them and are living their life with it. It makes sense that some victims aren't able to accept, even with hard evidence, that this story is different than the one the prosecutor, you know, I don't want to say sold them, but made them a part of. They actually become a part of that conviction story.
Liz Yeah. And I think it's quite layered because it is that original memory. You know, that memory that that is created when, you know, for instance, for Janet. Right. She was shown a composite sketch. Then she was shown a photo lineup. And she was told by the police that, you know, that the guy was in there, going from A to B. OK. There was a composite sketch. Then there was a lineup presented with some prejudice and guidance saying that the guy was in there. Then there's a memory: that face. She was just, she says today. I was 100 percent sure Thomas's face was that face.
What's really extraordinary in this case is, again, common sense might say, “wow. OK. DNA has shown that Thomas Hanyesworth is not the perpetrator. Leon Davis, he was in prison for a very similar string of crimes. OK. A mistake was made. They fingered the wrong guy”. Janet was able to hear that, process that information and do something with it. You know, become a victim's advocate, engage in efforts of reconciliation with Thomas. But many of the other victims were not. You know, we tried to interview other victims. And what it shows is just how powerful and devastating the misidentification process is on the victims. It's another trauma for them. You know, only Janet was comfortable speaking publicly about it. And I think that just goes to show how deeply troubling it is.
And, you know, and I think that there is also the question, the layer of guilt, because even if you might want to explore a potential other perpetrator, then you have to confront the guilt that you have been involved in this miscarriage of justice through no malice of your own. That's a lot to ask of a human being who was, you know, brought into this place by a trauma in the first place. So, yes, it's certainly a lot to expect victims or witnesses or family members to process all of this new information. And again, it just, it sort of shows how remarkable Janet really is.
Rebecca One of the most interesting aspects of this episode, and I just think it's captured so beautifully, is the problem with cross-racial identification. And there is this incredible montage of people looking at these two sketches and then two photos there.
Clip (Montage) There is a resemblance between the two men. Complexion is different. The most notable to me is the nose. The hairlines aren't dissimilar, their noses aren't dissimilar. They appear to have pretty much the same shade of skin. The noses do not look the same. The eyes don't look the same. The hairline is not the same.
Rebecca Can you just talk about that, that larger issue of the problems of cross racial identification?
Liz Yeah, sure. It's been proven over and over and over. And you could try these studies at home with your friends that, you know, you are much able to discern subtle differences in folks who are the same race as you. So black folks are more likely to, to identify correctly someone of their own race and to be able to notice the small distinctions of facial differences.
White folks are much more likely to mistake one African-American person for another, and the same would go, goes the other way where black folks might be more liable to confuse two white folks or Asian-American folks. So outside of your own tribe, so to speak, your brain is less attune to differences. Now, I think it's partially because we still live in a somewhat segregated society. People tend to be exposed to more people more frequently of their own race. and it is something that needs to be factored in when talking about eyewitness identification.
Rebecca One of the other things that was really surprising in the Haynesworth story is the unlikely teaming up in some ways of Michael Herring and Ken Cuccinelli.
Liz Yeah. I mean, you know, Ken Cuccinelli is not the person you would think would be running to the rescue of an African-American inmate in the state of Virginia. Ken Cuccinelli is a proud Tea Party member. He is now the acting deputy secretary of Homeland Security in the Trump administration. He was the attorney general of Virginia. And, you know, a very conservative, right wing Republican. However, sometimes politics makes strange bedfellows. You know, oftentimes very conservative Republicans. You know, they are suspicious of state power.
Rebecca Because criminal justice is one of the places where a lot of extreme conservatives feel like there's stuff to be done, which is surprising to a lot of people.
Liz Governor Mark Warner ordered the state's attorney general to conduct a big review of thousands of cases from 1973 to 1988. Once there was sort of, you know, more evolved DNA testing, because there had been a pattern of wrongfully convicted men. And Governor Mark Warner said, “you know what, if there's a few of them out there, there's probably more”. So he conducted the sweeping review. This is when Thomas Haynesworth was able to get the documentation showing that his DNA did not match the DNA of the perpetrator found in at least one of them of the rapes that he was in prison for. The state, Michael Herring, who is who is also an attorney and in Georgia, reached out to Ken Cuccinelli, who, you know, is quite a well-known political figure on the right and quite powerful in the state of Virginia. And he ended up getting on team Haynesworth And it is interesting how, you know, kind of conservatives and progressives can sometimes unite on this question of the intrusion or lack of trust of state and state power. When Haynesworth was ultimately freed and ultimately exonerated. You know, beyond just getting out of prison, he was also given a writ of actual innocence, which is a step beyond just getting yourself out of prison. Haynesworth ends up getting a job in Cuccinelli's office. It's a sort of an unbelievable set of bedfellows who came together on this, on this case.
Rebecca It does seem like a lot of core convictions does come down to... they come down to storytelling. They come down to sort of who can present the best story. I'm curious to know as a storyteller what you think of the power of the ability to just craft a story in court and have that determine the outcome of somebody's life in a way that is not undoable, even if it's eventually reversed a couple decades later.
Liz I think prosecutors and defense attorneys like to weave cohesive narratives to tell a satisfying story to the jury, to create a sense of what a motive could be, to create, you know, to go beyond reasonable doubt and push toward certainty. So juries can feel secure in their decisions. That is a form of storytelling.
And I think it's an interesting lesson for those of us who are also storytellers in different ways, myself included, to to think about how we actually participate in that. And I do start to wonder whether it's our responsibility as storytellers who have platforms to embrace more of the gray areas as the kind of paradigm for stories. You know, the film I made that was on Netflix, Lost Girls, is a film about an unsolved case, where there are anywhere from 10 to 16 murdered young women. Where we don't we don't have a killer, we don't know who did it. I wanted to explore how could it be that such a prolific killer who had robbed this world of so many young lives has gotten away with it, and be in that gray area. Be in those questions. So I think it is a larger cultural impulse to have tidy stories. You know, we're living through Coronavirus now. We all are desperate to know how will this end? Where is that light at the end of the tunnel. And we have to exist in the gray area right now of not knowing. It's very hard.
Rebecca I've been thinking a lot about including for the criminal justice system and for issues like this, how this moment in time is, might be recalibrating our brains a little bit. Like there's nothing we can do, you know, as concretely as we've been able. Does that make sense?
Liz Totally. I mean, you know, what's interesting is I do think it is part of the way we're wired. And like you said, there's almost something, you know, useful in the exercise of having to let go of that certainty.
Rebecca So in terms of eyewitness testimony, which was the underlying theme of the episodes of your part of this documentary, there are better practices that can make it more reliable, right?
Liz That's right. You know, what I think is hopeful about this show overall, not just with eyewitness testimony, is that we know what works. Like we're not just sitting here not knowing, you know, we actually do know how you can present a photo array without prejudice, without leading a witness to potentially make a, you know, somewhat fatal mistake. We know about junk science. We know that there should be prosecutorial oversight. There are ways that we can, you know, build towards a more just system. If you present six photos and you don't say anything to the witness and they don't pick a photo, then don't tell them they should pick a photo.
Rebecca Isn't there also a double blind component? We can have an officer who's not actually working the case, who doesn't know who the perpetrator is, be the one who presents the array.
Liz That's right. Yeah. And if you know so because in fact, there could be winks and tells even for the best intentioned officer. Bring in an officer who has no idea what's going on and present the photos. They're totally neutrally. That is the best practice. So I think when we look at the Innocence Project and we look at these three buckets of why people go to prison for the wrong reasons, we do know best practices of how to make a difference in people's lives. But I also think it is a larger question about our justice system overall. The fact that, you know, it is structured as adversarial where the state and the the accused are, looking for a win. You know, is there a different way to envision a justice system? What are other models where the truth is what is paramount as opposed to a win? Now this is getting very lofty and and not something that, you know, can be easily implemented because that's a top down reorganisation of a system. But, in the shorter term, you present a lineup with what, from an officer who has no knowledge of the case. Let's say the victim or the witness make the choice with no suggestion. This will save a tremendous amount of pain, money and lives.
Rebecca We do hear when the lawyers in your part of the documentary saying, she wouldn't do this job if she didn't think these problems could be fixed. You also see these Innocence Project lawyers in various Innocence Projects in states around the country and in the larger Innocence Project organization with thousands of files saying they can only choose a tiny percentage of the cases to work on. Does it feel, as somebody who's lived with so many of these stories in your work, like it's going to be swimming upstream forever?
Liz Definitely swimming upstream. And I think one of the big things to recognize that I didn't recognize until I had spent time in prison and heard about so many people's cases is, the original conviction. If something goes wrong in that in that conviction, in that case, The weight... it becomes a Sisyphean task to overturn. So you hear stories, oh, they had a court appointed lawyer and he fell asleep during the hearings. Oh, well, you should just appeal. Isn't that. You know, the guy was sleeping. You should be able to get a new trial. No, it's just not that simple. What happens in that first conviction in those original moments, you lose the presumption of innocence. You are subject to a different standard on appeal. So no matter how many things go wrong in that original trial. And of course, they're more likely to go wrong if you're poor, because you have not perhaps been afforded the best lawyer that money can buy. You are damned.
And that's when it can feel very Sisyphean. I mean, you see what happened with Thomas; we see what happened with Frankie. You know, you're looking at those trials, looking at those moments. We can see a slow motion train wreck of so many things going wrong. And I'm not saying everybody in prison is innocent, but I am saying everybody deserves a decent trial. And we do see over and over again how that original sin and that conviction it's nearly impossible to get a fair hearing after that.
Rebecca Well, as Sisyphean as it might feel for you sometimes making these projects and telling these stories. I really hope you keep doing it. I really enjoy it. You're part of the Innocence Files and I enjoy all your work. So thank you so much. Liz Garbus, for talking to me about this project.
Liz Thank you, Rebecca. I enjoy your work, too.
Rebecca And that's it for this week's episode. Thank you to Liz Garbus. Next week, I'll be speaking to director Alex Gibney about the final episodes of The Innocence Files. If you want to hear more of my thoughts on the show, check out my other podcast, Crime Writers On…. You can find this show on Apple podcast, Stitcher, Google Play, Spotify and wherever else you get your podcasts. Make sure to subscribe, rate, and review this show. You Can't Make This Up as a production of Pineapple Street Studios and Netflix. I'm Rebecca Lavoie. And thanks for listening.